Florida Senate - 2013 (Corrected Copy) SB 142
By Senator Altman
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 Law Revision and Information; amending ss. 916.301,
37 916.3012, 916.302, 916.3025, 916.303, 916.304, 918.16,
38 921.137, 941.38, 944.602, 945.025, 945.12, 945.42,
39 947.185, 984.19, 985.14, 985.145, 985.18, 985.19,
40 985.195, and 985.61, F.S.; clarifying in s. 921.137,
41 F.S., that the terms “intellectual disability” or
42 “intellectually disabled” are interchangeable with and
43 have the same meaning as the terms “mental
44 retardation,” or “retardation” and “mentally
45 retarded,” as defined before the effective date of the
46 act; substituting the term “intellectual disability”
47 for the term “mental retardation”; expressing
48 legislative intent; providing an effective date.
50 Be It Enacted by the Legislature of the State of Florida:
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
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
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.
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
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 men tal 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 retarda tion 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
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 ment al
146 retardation and in interpreting the answers of the child or
147 person during with mental retardati on 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
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
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
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
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
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
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.
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).
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
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
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) (2 2 ) “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) (2 3 ) “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) (2 4 ) “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) (2 5 ) “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) (2 6 ) “Resident” means a any person who has a with
378 developmental disability and resides disabilit ies residing at a
379 residential facility, whether or not such person is a client of
380 the agency.
381 (28) (2 7 ) “Residential facility” means a facility providing
382 room and board and personal care for persons who have with
383 developmental disabilities.
384 (29) (2 8 ) “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
390 (30) (2 9 ) “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) (3 1 ) “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.
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, 2013.
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
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
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.
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
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
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
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
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:
711 409.908 Reimbursement of Medicaid providers.—Subject to
712 specific appropriations, the agency shall reimburse Medicaid
713 providers, in accordance with state and federal law, according
714 to methodologies set forth in the rules of the agency and in
715 policy manuals and handbooks incorporated by reference therein.
716 These methodologies may include fee schedules, reimbursement
717 methods based on cost reporting, negotiated fees, competitive
718 bidding pursuant to s. 287.057, and other mechanisms the agency
719 considers efficient and effective for purchasing services or
720 goods on behalf of recipients. If a provider is reimbursed based
721 on cost reporting and submits a cost report late and that cost
722 report would have been used to set a lower reimbursement rate
723 for a rate semester, then the provider’s rate for that semester
724 shall be retroactively calculated using the new cost report, and
725 full payment at the recalculated rate shall be effected
726 retroactively. Medicare-granted extensions for filing cost
727 reports, if applicable, shall also apply to Medicaid cost
728 reports. Payment for Medicaid compensable services made on
729 behalf of Medicaid eligible persons is subject to the
730 availability of moneys and any limitations or directions
731 provided for in the General Appropriations Act or chapter 216.
732 Further, nothing in this section shall be construed to prevent
733 or limit the agency from adjusting fees, reimbursement rates,
734 lengths of stay, number of visits, or number of services, or
735 making any other adjustments necessary to comply with the
736 availability of moneys and any limitations or directions
737 provided for in the General Appropriations Act, provided the
738 adjustment is consistent with legislative intent.
739 (8) A provider of home-based or community-based services
740 rendered pursuant to a federally approved waiver shall be
741 reimbursed based on an established or negotiated rate for each
742 service. These rates shall be established according to an
743 analysis of the expenditure history and prospective budget
744 developed by each contract provider participating in the waiver
745 program, or under any other methodology adopted by the agency
746 and approved by the Federal Government in accordance with the
747 waiver. Privately owned and operated community-based residential
748 facilities which meet agency requirements and which formerly
749 received Medicaid reimbursement for the optional intermediate
750 care facility for the intellectually disabled mentally retarded
751 service may participate in the developmental services waiver as
752 part of a home-and-community-based continuum of care for
753 Medicaid recipients who receive waiver services.
754 Section 15. Subsection (16) of section 413.20, Florida
755 Statutes, is amended to read:
756 413.20 Definitions.—As used in this part, the term:
757 (16) “Person who has a significant disability” means an
758 individual who has a disability that is a severe physical or
759 mental impairment that seriously limits one or more functional
760 capacities, such as mobility, communication, self-care, self
761 direction, interpersonal skills, work tolerance, or work skills,
762 in terms of an employment outcome; whose vocational
763 rehabilitation may be expected to require multiple vocational
764 rehabilitation services over an extended period of time; and who
765 has one or more physical or mental disabilities resulting from
766 amputation, arthritis, autism, blindness, burn injury, cancer,
767 cerebral palsy, cystic fibrosis, deafness, head injury, heart
768 disease, hemiplegia, hemophilia, respiratory or pulmonary
769 dysfunction, intellectual disability mental retardation, mental
770 illness, multiple sclerosis, muscular dystrophy, musculoskeletal
771 disorder, neurological disorder, including stroke and epilepsy,
772 paraplegia, quadriplegia, or other spinal cord condition,
773 sickle-cell anemia, specific learning disability, end-stage
774 renal disease, or another disability or a combination of
775 disabilities that is determined, after an assessment for
776 determining eligibility and vocational rehabilitation needs, to
777 cause comparable substantial functional limitation.
778 Section 16. Paragraph (a) of subsection (6) of section
779 440.49, Florida Statutes, is amended to read:
780 440.49 Limitation of liability for subsequent injury
781 through Special Disability Trust Fund.—
782 (6) EMPLOYER KNOWLEDGE, EFFECT ON REIMBURSEMENT.—
783 (a) Reimbursement is not allowed under this section unless
784 it is established that the employer knew of the preexisting
785 permanent physical impairment prior to the occurrence of the
786 subsequent injury or occupational disease, and that the
787 permanent physical impairment is one of the following:
788 1. Epilepsy.
789 2. Diabetes.
790 3. Cardiac disease.
791 4. Amputation of foot, leg, arm, or hand.
792 5. Total loss of sight of one or both eyes or a partial
793 loss of corrected vision of more than 75 percent bilaterally.
794 6. Residual disability from poliomyelitis.
795 7. Cerebral palsy.
796 8. Multiple sclerosis.
797 9. Parkinson’s disease.
798 10. Meniscectomy.
799 11. Patellectomy.
800 12. Ruptured cruciate ligament.
801 13. Hemophilia.
802 14. Chronic osteomyelitis.
803 15. Surgical or spontaneous fusion of a major weight
804 bearing joint.
805 16. Hyperinsulinism.
806 17. Muscular dystrophy.
807 18. Thrombophlebitis.
808 19. Herniated intervertebral disk.
809 20. Surgical removal of an intervertebral disk or spinal
811 21. One or more back injuries or a disease process of the
812 back resulting in disability over a total of 120 or more days,
813 if substantiated by a doctor’s opinion that there was a
814 preexisting impairment to the claimant’s back.
815 22. Total deafness.
816 23. Intellectual disability if Mental retardation, provided
817 the employee’s intelligence quotient is such that she or he
818 falls within the lowest 2 percentile of the general population.
819 However, it shall not be necessary for the employer does not
820 need to know the employee’s actual intelligence quotient or
821 actual relative ranking in relation to the intelligence quotient
822 of the general population.
823 24. Any permanent physical condition that which, prior to
824 the industrial accident or occupational disease, constitutes a
825 20 percent 20-percent impairment of a member or of the body as a
827 25. Obesity if , provided the employee is 30 percent or more
828 over the average weight designated for her or his height and age
829 in the Table of Average Weight of Americans by Height and Age
830 prepared by the Society of Actuaries using data from the 1979
831 Build and Blood Pressure Study.
832 26. Any permanent physical impairment as provided defined
833 in s. 440.15(3) which is a result of a prior industrial accident
834 with the same employer or the employer’s parent company,
835 subsidiary, sister company, or affiliate located within the
836 geographical boundaries of this state.
837 Section 17. Paragraph (g) of subsection (1) of section
838 499.0054, Florida Statutes, is amended to read:
839 499.0054 Advertising and labeling of drugs, devices, and
840 cosmetics; exemptions.—
841 (1) It is a violation of the Florida Drug and Cosmetic Act
842 to perform or cause the performance of any of the following
844 (g) The advertising of any drug or device represented to
845 have any effect in any of the following conditions, disorders,
846 diseases, or processes:
847 1. Blood disorders.
848 2. Bone or joint diseases.
849 3. Kidney diseases or disorders.
850 4. Cancer.
851 5. Diabetes.
852 6. Gall bladder diseases or disorders.
853 7. Heart and vascular diseases.
854 8. High blood pressure.
855 9. Diseases or disorders of the ear or auditory apparatus,
856 including hearing loss or deafness.
857 10. Mental disease or intellectual disability mental
859 11. Paralysis.
860 12. Prostate gland disorders.
861 13. Conditions of the scalp affecting hair loss.
862 14. Baldness.
863 15. Endocrine disorders.
864 16. Sexual impotence.
865 17. Tumors.
866 18. Venereal diseases.
867 19. Varicose ulcers.
868 20. Breast enlargement.
869 21. Purifying blood.
870 22. Metabolic disorders.
871 23. Immune system disorders or conditions affecting the
872 immune system.
873 24. Extension of life expectancy.
874 25. Stress and tension.
875 26. Brain stimulation or performance.
876 27. The body’s natural defense mechanisms.
877 28. Blood flow.
878 29. Depression.
879 30. Human immunodeficiency virus or acquired immune
880 deficiency syndrome or related disorders or conditions.
881 Section 18. Section 514.072, Florida Statutes, is amended
882 to read:
883 514.072 Certification of swimming instructors for people
884 who have developmental disabilities required.—Any person working
885 at a swimming pool who holds himself or herself out as a
886 swimming instructor specializing in training people who have
887 developmental disabilities, as defined in s. 393.063 ( 9 ), may be
888 certified by the Dan Marino Foundation, Inc., in addition to
889 being certified under s. 514.071. The Dan Marino Foundation,
890 Inc., must develop certification requirements and a training
891 curriculum for swimming instructors for people who have
892 developmental disabilities and must submit the certification
893 requirements to the Department of Health for review by January
894 1, 2007. A person certified under s. 514.071 before July 1,
895 2007, must meet the additional certification requirements of
896 this section before January 1, 2008. A person certified under s.
897 514.071 on or after July 1, 2007, must meet the additional
898 certification requirements of this section within 6 months after
899 receiving certification under s. 514.071.
900 Section 19. Section 627.6041, Florida Statutes, is amended
901 to read:
902 627.6041 Handicapped Children with disabilities;
903 continuation of coverage.—
904 (1) A hospital or medical expense insurance policy or
905 health care services plan contract that is delivered or issued
906 for delivery in this state and that provides that coverage of a
907 dependent child terminates will terminate upon attainment of the
908 limiting age for dependent children specified in the policy or
909 contract must shall also provide in substance that attainment of
910 the limiting age does not terminate the coverage of the child
911 while the child continues to be both:
912 (a) (1) Incapable of self-sustaining employment by reason of
913 an intellectual mental retardation or physical disability.
914 handicap; and
915 (b) (2) Chiefly dependent upon the policyholder or
916 subscriber for support and maintenance.
917 (2) If a claim is denied under a policy or contract for the
918 stated reason that the child has attained the limiting age for
919 dependent children specified in the policy or contract, the
920 notice of denial must state that the policyholder has the burden
921 of establishing that the child continues to meet the criteria
922 specified in subsection subsections (1) and (2).
923 Section 20. Section 627.6615, Florida Statutes, is amended
924 to read:
925 627.6615 Handicapped Children with disabilities;
926 continuation of coverage under group policy.—
927 (1) A group health insurance policy or health care services
928 plan contract that is delivered or issued for delivery in this
929 state and that provides that coverage of a dependent child of an
930 employee or other member of the covered group terminates will
931 terminate upon attainment of the limiting age for dependent
932 children specified in the policy or contract must shall also
933 provide in substance that attainment of the limiting age does
934 not terminate the coverage of the child while the child
935 continues to be both:
936 (a) (1) Incapable of self-sustaining employment by reason of
937 an intellectual mental retardation or physical disability.
938 handicap; and
939 (b) (2) Chiefly dependent upon the employee or member for
940 support and maintenance.
941 (2) If a claim is denied under a policy or contract for the
942 stated reason that the child has attained the limiting age for
943 dependent children specified in the policy or contract, the
944 notice of denial must state that the certificateholder or
945 subscriber has the burden of establishing that the child
946 continues to meet the criteria specified in subsection
947 subsections (1) and (2).
948 Section 21. Subsection (29) of section 641.31, Florida
949 Statutes, is amended to read:
950 641.31 Health maintenance contracts.—
951 (29) If a health maintenance contract provides that
952 coverage of a dependent child of the subscriber terminates will
953 terminate upon attainment of the limiting age for dependent
954 children which is specified in the contract, the contract must
955 also provide in substance that attainment of the limiting age
956 does not terminate the coverage of the child while the child
957 continues to be both:
958 (a) Incapable of self-sustaining employment by reason of an
959 intellectual mental retardation or physical disability.
960 handicap, and
961 (b) Chiefly dependent upon the employee or member for
962 support and maintenance.
964 If the claim is denied under a contract for the stated reason
965 that the child has attained the limiting age for dependent
966 children specified in the contract, the notice or denial must
967 state that the subscriber has the burden of establishing that
968 the child continues to meet the criteria specified in this
969 subsection paragraphs (a) and (b).
970 Section 22. Subsection (4) of section 650.05, Florida
971 Statutes, is amended to read:
972 650.05 Plans for coverage of employees of political
974 (4) (a) Notwithstanding any other provision of this chapter,
975 effective January 1, 1972, all state political subdivisions
976 receiving financial aid which that provide social security
977 coverage for their employees pursuant to the provisions of this
978 chapter and the provisions of the various retirement systems as
979 authorized by law shall, in addition to other purposes, use
980 utilize all grants-in-aid and other revenue received from the
981 state to pay the employer’s share of social security cost.
982 (b) The grants-in-aid and other revenue referred to in
983 paragraph (a) specifically include, but are not limited to,
984 minimum foundation program grants to public school districts and
985 community colleges; gasoline, motor fuel, cigarette, racing, and
986 insurance premium taxes distributed to political subdivisions;
987 and amounts specifically appropriated as grants-in-aid for
988 mental health, intellectual disabilities mental retardation, and
989 mosquito control programs.
990 Section 23. Subsection (1) of section 765.204, Florida
991 Statutes, is amended to read:
992 765.204 Capacity of principal; procedure.—
993 (1) A principal is presumed to be capable of making health
994 care decisions for herself or himself unless she or he is
995 determined to be incapacitated. Incapacity may not be inferred
996 from the person’s voluntary or involuntary hospitalization for
997 mental illness or from her or his intellectual disability mental
999 Section 24. Section 849.04, Florida Statutes, is amended to
1001 849.04 Permitting minors and persons under guardianship to
1002 gamble.— Whoever being The proprietor, owner, or keeper of any E.
1003 O., keno or pool table, or billiard table, wheel of fortune, or
1004 other game of chance , kept for the purpose of betting, who
1005 willfully and knowingly allows a any minor or any person who is
1006 mentally incompetent or under guardianship to play at such game
1007 or to bet on such game of chance; or whoever aids or abets or
1008 otherwise encourages such playing or betting of any money or
1009 other valuable thing upon the result of such game of chance by a
1010 any minor or any person who is mentally incompetent or under
1011 guardianship, commits shall be guilty of a felony of the third
1012 degree, punishable as provided in s. 775.082, s. 775.083, or s.
1013 775.084. For the purpose of this section, the term a “person who
1014 is mentally incompetent person” means a person is on e who
1015 because of mental illness, intellectual disability mental
1016 retardation, senility, excessive use of drugs or alcohol, or
1017 other mental incapacity is incapable of either managing his or
1018 her property or caring for himself or herself or both.
1019 Section 25. Section 914.16, Florida Statutes, is amended to
1021 914.16 Child abuse and sexual abuse of victims under age 16
1022 or who have an intellectual disability persons with mental
1023 retardation; limits on interviews.—The chief judge of each
1024 judicial circuit, after consultation with the state attorney and
1025 the public defender for the judicial circuit, the appropriate
1026 chief law enforcement officer, and any other person deemed
1027 appropriate by the chief judge, shall provide by order
1028 reasonable limits on the number of interviews which that a
1029 victim of a violation of s. 794.011, s. 800.04, s. 827.03, or s.
1030 847.0135(5) who is under 16 years of age or a victim of a
1031 violation of s. 794.011, s. 800.02, s. 800.03, or s. 825.102 who
1032 has an intellectual disability is a person with mental
1033 retardation as defined in s. 393.063 must submit to for law
1034 enforcement or discovery purposes. The order shall, To the
1035 extent possible, the order must protect the victim from the
1036 psychological damage of repeated interrogations while preserving
1037 the rights of the public, the victim, and the person charged
1038 with the violation.
1039 Section 26. Section 914.17, Florida Statutes, is amended to
1041 914.17 Appointment of advocate for victims or witnesses who
1042 are minors or intellectually disabled persons with mental
1044 (1) A guardian ad litem or other advocate shall be
1045 appointed by the court to represent a minor in any criminal
1046 proceeding if the minor is a victim of or witness to child abuse
1047 or neglect, or if the minor is a victim of a sexual offense, or
1048 a witness to a sexual offense committed against another minor.
1049 The court may appoint a guardian ad litem or other advocate in
1050 any other criminal proceeding in which a minor is involved as
1051 either a victim or a witness. The guardian ad litem or other
1052 advocate shall have full access to all evidence and reports
1053 introduced during the proceedings, may interview witnesses, may
1054 make recommendations to the court, shall be noticed and have the
1055 right to appear on behalf of the minor at all proceedings, and
1056 may request additional examinations by medical doctors,
1057 psychiatrists, or psychologists. It is the duty of The guardian
1058 ad litem or other advocate shall to perform the following
1060 (a) To Explain, in language understandable to the minor,
1061 all legal proceedings in which the minor is shall be involved;
1062 (b) To Act, as a friend of the court, to advise the judge,
1063 whenever appropriate, of the minor’s ability to understand and
1064 cooperate with any court proceeding; and
1065 (c) To Assist the minor and the minor’s family in coping
1066 with the emotional effects of the crime and subsequent criminal
1067 proceedings in which the minor is involved.
1068 (2) An advocate shall be appointed by the court to
1069 represent a person who has an intellectual disability with
1070 mental retardation as defined in s. 393.063 in any criminal
1071 proceeding if the person with mental retardation is a victim of
1072 or witness to abuse or neglect, or if the person with mental
1073 retardation is a victim of a sexual offense, or a witness to a
1074 sexual offense committed against a minor or person who has an
1075 intellectual disability with mental retardation. The court may
1076 appoint an advocate in any other criminal proceeding in which
1077 such a person with mental retardation is involved as either a
1078 victim or a witness. The advocate shall have full access to all
1079 evidence and reports introduced during the proceedings, may
1080 interview witnesses, may make recommendations to the court,
1081 shall be noticed and have the right to appear on behalf of the
1082 person with mental retardation at all proceedings, and may
1083 request additional examinations by medical doctors,
1084 psychiatrists, or psychologists. It is the duty of The advocate
1085 shall to perform the following services:
1086 (a) To Explain, in language understandable to the person
1087 with mental retardation, all legal proceedings in which the
1088 person is shall be involved;
1089 (b) To Act, as a friend of the court, to advise the judge,
1090 whenever appropriate, of the person’s person with mental
1091 retardation’s ability to understand and cooperate with any court
1092 proceedings; and
1093 (c) To Assist the person with mental retardation and the
1094 person’s family in coping with the emotional effects of the
1095 crime and subsequent criminal proceedings in which the person
1096 with mental retardation is involved.
1097 (3) Any person participating in a judicial proceeding as a
1098 guardian ad litem or other advocate is shall be presumed prima
1099 facie to be acting in good faith and in so doing is shall be
1100 immune from any liability, civil or criminal, which that
1101 otherwise might be incurred or imposed.
1102 Section 27. Subsections (1), (2), and (3) of section
1103 916.105, Florida Statutes, are amended to read:
1104 916.105 Legislative intent.—
1105 (1) It is the intent of the Legislature that the Department
1106 of Children and Family Services and the Agency for Persons with
1107 Disabilities, as appropriate, establish, locate, and maintain
1108 separate and secure forensic facilities and programs for the
1109 treatment or training of defendants who have been charged with a
1110 felony and who have been found to be incompetent to proceed due
1111 to their mental illness, intellectual disability mental
1112 retardation, or autism, or who have been acquitted of a felony
1113 by reason of insanity, and who, while still under the
1114 jurisdiction of the committing court, are committed to the
1115 department or agency under the provisions of this chapter. Such
1116 facilities must shall be sufficient to accommodate the number of
1117 defendants committed under the conditions noted above. Except
1118 for those defendants found by the department or agency to be
1119 appropriate for treatment or training in a civil facility or
1120 program pursuant to subsection (3), forensic facilities must
1121 shall be designed and administered so that ingress and egress,
1122 together with other requirements of this chapter, may be
1123 strictly controlled by staff responsible for security in order
1124 to protect the defendant, facility personnel, other clients, and
1125 citizens in adjacent communities.
1126 (2) It is the intent of the Legislature that treatment or
1127 training programs for defendants who are found to have mental
1128 illness, intellectual disability mental retardation, or autism
1129 and are involuntarily committed to the department or agency, and
1130 who are still under the jurisdiction of the committing court, be
1131 provided in a manner, subject to security requirements and other
1132 mandates of this chapter, which ensures as to ensure the rights
1133 of the defendants as provided in this chapter.
1134 (3) It is the intent of the Legislature that evaluation and
1135 services to defendants who have mental illness, intellectual
1136 disability mental retardation, or autism be provided in
1137 community settings, in community residential facilities, or in
1138 civil facilities, whenever this is a feasible alternative to
1139 treatment or training in a state forensic facility.
1140 Section 28. Subsections (1), (10), (11), (12), and (17) of
1141 section 916.106, Florida Statutes, are amended, and subsections
1142 (13) through (15) of that section are reordered and amended, to
1144 916.106 Definitions.—For the purposes of this chapter, the
1146 (1) “Agency” means the Agency for Persons with
1147 Disabilities. The agency is responsible for training forensic
1148 clients who are developmentally disabled due to intellectual
1149 disability mental retardation or autism and have been determined
1150 incompetent to proceed.
1151 (10) “Forensic facility” means a separate and secure
1152 facility established within the department or agency to serve
1153 forensic clients. A separate and secure facility means a
1154 security-grade building for the purpose of separately housing
1155 persons who have mental illness from persons who have
1156 intellectual disabilities with retardation or autism and
1157 separately housing persons who have been involuntarily committed
1158 pursuant to this chapter from nonforensic residents.
1159 (11) “Incompetent to proceed” means unable to proceed at
1160 any material stage of a criminal proceeding, which includes the
1161 shall include trial of the case, pretrial hearings involving
1162 questions of fact on which the defendant might be expected to
1163 testify, entry of a plea, proceedings for violation of probation
1164 or violation of community control, sentencing, and hearings on
1165 issues regarding a defendant’s failure to comply with court
1166 orders or conditions or other matters in which the mental
1167 competence of the defendant is necessary for a just resolution
1168 of the issues being considered.
1169 (12) “Institutional security personnel” means the staff of
1170 forensic facilities who meet or exceed the requirements of s.
1171 943.13 and who are responsible for providing security,
1172 protecting clients and personnel, enforcing rules, preventing
1173 and investigating unauthorized activities, and safeguarding the
1174 interests of residents citizens in the surrounding communities.
1175 (14) (13) “Mental illness” means an impairment of the
1176 emotional processes that exercise conscious control of one’s
1177 actions, or of the ability to perceive or understand reality,
1178 which impairment substantially interferes with the a defendant’s
1179 ability to meet the ordinary demands of living. For the purposes
1180 of this chapter, the term does not apply to defendants who have
1181 only an intellectual disability with only mental retardation or
1182 autism and does not include intoxication or conditions
1183 manifested only by antisocial behavior or substance abuse
1185 (15) (14) “Restraint” means a physical device, method, or
1186 drug used to control dangerous behavior.
1187 (a) A physical restraint is any manual method or physical
1188 or mechanical device, material, or equipment attached or
1189 adjacent to a person’s body so that he or she cannot easily
1190 remove the restraint and that restricts freedom of movement or
1191 normal access to one’s body.
1192 (b) A drug used as a restraint is a medication used to
1193 control the person’s behavior or to restrict his or her freedom
1194 of movement and not part of the standard treatment regimen of
1195 the person with a diagnosed mental illness who is a client of
1196 the department. Physically holding a person during a procedure
1197 to forcibly administer psychotropic medication is a physical
1199 (c) Restraint does not include physical devices, such as
1200 orthopedically prescribed appliances, surgical dressings and
1201 bandages, supportive body bands, or other physical holding when
1202 necessary for routine physical examinations and tests; for
1203 purposes of orthopedic, surgical, or other similar medical
1204 treatment; when used to provide support for the achievement of
1205 functional body position or proper balance; or when used to
1206 protect a person from falling out of bed.
1207 (13) (15) “Intellectual disability” “Retardation” has the
1208 same meaning as in s. 393.063.
1209 (17) “Social service professional” means a person whose
1210 minimum qualifications include a bachelor’s degree and at least
1211 2 years of social work, clinical practice, special education,
1212 habilitation, or equivalent experience working directly with
1213 persons who have intellectual disabilities with retardation,
1214 autism, or other developmental disabilities.
1215 Section 29. Paragraph (a) of subsection (1) and paragraph
1216 (a) of subsection (3) of section 916.107, Florida Statutes, are
1217 amended to read:
1218 916.107 Rights of forensic clients.—
1219 (1) RIGHT TO INDIVIDUAL DIGNITY.—
1220 (a) The policy of the state is that the individual dignity
1221 of the client shall be respected at all times and upon all
1222 occasions, including any occasion when the forensic client is
1223 detained, transported, or treated. Clients with mental illness,
1224 intellectual disability retardation, or autism and who are
1225 charged with committing felonies shall receive appropriate
1226 treatment or training. In a criminal case involving a client who
1227 has been adjudicated incompetent to proceed or not guilty by
1228 reason of insanity, a jail may be used as an emergency facility
1229 for up to 15 days following the date the department or agency
1230 receives a completed copy of the court commitment order
1231 containing all documentation required by the applicable Florida
1232 Rules of Criminal Procedure. For a forensic client who is held
1233 in a jail awaiting admission to a facility of the department or
1234 agency, evaluation and treatment or training may be provided in
1235 the jail by the local community mental health provider for
1236 mental health services, by the developmental disabilities
1237 program for persons with intellectual disability retardation or
1238 autism, the client’s physician or psychologist, or any other
1239 appropriate program until the client is transferred to a civil
1240 or forensic facility.
1241 (3) RIGHT TO EXPRESS AND INFORMED CONSENT.—
1242 (a) A forensic client shall be asked to give express and
1243 informed written consent for treatment. If a client refuses such
1244 treatment as is deemed necessary and essential by the client’s
1245 multidisciplinary treatment team for the appropriate care of the
1246 client, such treatment may be provided under the following
1248 1. In an emergency situation in which there is immediate
1249 danger to the safety of the client or others, such treatment may
1250 be provided upon the written order of a physician for a period
1251 not to exceed 48 hours, excluding weekends and legal holidays.
1252 If, after the 48-hour period, the client has not given express
1253 and informed consent to the treatment initially refused, the
1254 administrator or designee of the civil or forensic facility
1255 shall, within 48 hours, excluding weekends and legal holidays,
1256 petition the committing court or the circuit court serving the
1257 county in which the facility is located, at the option of the
1258 facility administrator or designee, for an order authorizing the
1259 continued treatment of the client. In the interim, the need for
1260 treatment shall be reviewed every 48 hours and may be continued
1261 without the consent of the client upon the continued written
1262 order of a physician who has determined that the emergency
1263 situation continues to present a danger to the safety of the
1264 client or others.
1265 2. In a situation other than an emergency situation, the
1266 administrator or designee of the facility shall petition the
1267 court for an order authorizing necessary and essential treatment
1268 for the client. The order shall allow such treatment for a
1269 period not to exceed 90 days following the date of the entry of
1270 the order. Unless the court is notified in writing that the
1271 client has provided express and informed consent in writing or
1272 that the client has been discharged by the committing court, the
1273 administrator or designee shall, before prior to the expiration
1274 of the initial 90-day order, petition the court for an order
1275 authorizing the continuation of treatment for another 90-day
1276 period. This procedure shall be repeated until the client
1277 provides consent or is discharged by the committing court.
1278 3. At the hearing on the issue of whether the court should
1279 enter an order authorizing treatment for which a client was
1280 unable to or refused to give express and informed consent, the
1281 court shall determine by clear and convincing evidence that the
1282 client has mental illness, intellectual disability retardation,
1283 or autism, that the treatment not consented to is essential to
1284 the care of the client, and that the treatment not consented to
1285 is not experimental and does not present an unreasonable risk of
1286 serious, hazardous, or irreversible side effects. In arriving at
1287 the substitute judgment decision, the court must consider at
1288 least the following factors:
1289 a. The client’s expressed preference regarding treatment;
1290 b. The probability of adverse side effects;
1291 c. The prognosis without treatment; and
1292 d. The prognosis with treatment.
1294 The hearing shall be as convenient to the client as may be
1295 consistent with orderly procedure and shall be conducted in
1296 physical settings not likely to be injurious to the client’s
1297 condition. The court may appoint a general or special magistrate
1298 to preside at the hearing. The client or the client’s guardian,
1299 and the representative, shall be provided with a copy of the
1300 petition and the date, time, and location of the hearing. The
1301 client has the right to have an attorney represent him or her at
1302 the hearing, and, if the client is indigent, the court shall
1303 appoint the office of the public defender to represent the
1304 client at the hearing. The client may testify or not, as he or
1305 she chooses, and has the right to cross-examine witnesses and
1306 may present his or her own witnesses.
1307 Section 30. The Division of Law Revision and Information is
1308 requested to rename part III of chapter 916, Florida Statutes,
1309 consisting of ss. 916.301-916.304, as “Forensic Services for
1310 Persons who are Intellectually Disabled or Autistic.”
1311 Section 31. Subsections (1) and (2) of section 916.301,
1312 Florida Statutes, are amended to read:
1313 916.301 Appointment of experts.—
1314 (1) All evaluations ordered by the court under this part
1315 must be conducted by qualified experts who have expertise in
1316 evaluating persons who have an intellectual disability with
1317 retardation or autism. The agency shall maintain and provide the
1318 courts annually with a list of available retardation and autism
1319 professionals who are appropriately licensed and qualified to
1320 perform evaluations of defendants alleged to be incompetent to
1321 proceed due to intellectual disability retardation or autism.
1322 The courts may use professionals from this list when appointing
1323 experts and ordering evaluations under this part.
1324 (2) If a defendant’s suspected mental condition is
1325 intellectual disability retardation or autism, the court shall
1326 appoint the following:
1327 (a) At least one, or at the request of any party, two
1328 experts to evaluate whether the defendant meets the definition
1329 of intellectual disability retardation or autism and, if so,
1330 whether the defendant is competent to proceed; and
1331 (b) A psychologist selected by the agency who is licensed
1332 or authorized by law to practice in this state, with experience
1333 in evaluating persons suspected of having an intellectual
1334 disability retardation or autism, and a social service
1335 professional, with experience in working with persons who have
1336 an intellectual disability with retardation or autism.
1337 1. The psychologist shall evaluate whether the defendant
1338 meets the definition of intellectual disability retardation or
1339 autism and, if so, whether the defendant is incompetent to
1340 proceed due to intellectual disability retardation or autism.
1341 2. The social service professional shall provide a social
1342 and developmental history of the defendant.
1343 Section 32. Subsections (1), (2), and (4) of section
1344 916.3012, Florida Statutes, are amended to read:
1345 916.3012 Mental competence to proceed.—
1346 (1) A defendant whose suspected mental condition is
1347 intellectual disability retardation or autism is incompetent to
1348 proceed within the meaning of this chapter if the defendant does
1349 not have sufficient present ability to consult with the
1350 defendant’s lawyer with a reasonable degree of rational
1351 understanding or if the defendant has no rational, as well as
1352 factual, understanding of the proceedings against the defendant.
1353 (2) Experts in intellectual disability retardation or
1354 autism appointed pursuant to s. 916.301 shall first consider
1355 whether the defendant meets the definition of intellectual
1356 disability retardation or autism and, if so, consider the
1357 factors related to the issue of whether the defendant meets the
1358 criteria for competence to proceed as described in subsection
1360 (4) If the experts should find that the defendant is
1361 incompetent to proceed, the experts shall report on any
1362 recommended training for the defendant to attain competence to
1363 proceed. In considering the issues relating to training, the
1364 examining experts shall specifically report on:
1365 (a) The intellectual disability retardation or autism
1366 causing the incompetence;
1367 (b) The training appropriate for the intellectual
1368 disability retardation or autism of the defendant and an
1369 explanation of each of the possible training alternatives in
1370 order of choices;
1371 (c) The availability of acceptable training and, if
1372 training is available in the community, the expert shall so
1373 state in the report; and
1374 (d) The likelihood of the defendant’s attaining competence
1375 under the training recommended, an assessment of the probable
1376 duration of the training required to restore competence, and the
1377 probability that the defendant will attain competence to proceed
1378 in the foreseeable future.
1379 Section 33. Subsection (1), paragraphs (a) and (b) of
1380 subsection (2), and paragraph (a) of subsection (3) of section
1381 916.302, Florida Statutes, are amended to read:
1382 916.302 Involuntary commitment of defendant determined to
1383 be incompetent to proceed.—
1384 (1) CRITERIA.—Every defendant who is charged with a felony
1385 and who is adjudicated incompetent to proceed due to
1386 intellectual disability retardation or autism may be
1387 involuntarily committed for training upon a finding by the court
1388 of clear and convincing evidence that:
1389 (a) The defendant has an intellectual disability
1390 retardation or autism;
1391 (b) There is a substantial likelihood that in the near
1392 future the defendant will inflict serious bodily harm on himself
1393 or herself or another person, as evidenced by recent behavior
1394 causing, attempting, or threatening such harm;
1395 (c) All available, less restrictive alternatives, including
1396 services provided in community residential facilities or other
1397 community settings, which would offer an opportunity for
1398 improvement of the condition have been judged to be
1399 inappropriate; and
1400 (d) There is a substantial probability that the
1401 intellectual disability retardation or autism causing the
1402 defendant’s incompetence will respond to training and the
1403 defendant will regain competency to proceed in the reasonably
1404 foreseeable future.
1405 (2) ADMISSION TO A FACILITY.—
1406 (a) A defendant who has been charged with a felony and who
1407 is found to be incompetent to proceed due to intellectual
1408 disability retardation or autism, and who meets the criteria for
1409 involuntary commitment to the agency under the provisions of
1410 this chapter, shall be committed to the agency, and the agency
1411 shall retain and provide appropriate training for the defendant.
1412 Within No later than 6 months after the date of admission or at
1413 the end of any period of extended commitment or at any time the
1414 administrator or designee determines shall have determined that
1415 the defendant has regained competency to proceed or no longer
1416 meets the criteria for continued commitment, the administrator
1417 or designee shall file a report with the court pursuant to this
1418 chapter and the applicable Florida Rules of Criminal Procedure.
1419 (b) A defendant determined to be incompetent to proceed due
1420 to intellectual disability retardation or autism may be ordered
1421 by a circuit court into a forensic facility designated by the
1422 agency for defendants who have an intellectual disability mental
1423 retardation or autism.
1424 (3) PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.—
1425 (a) If a defendant has both an intellectual disability
1426 mental retardation or autism and has a mental illness,
1427 evaluations must address which condition is primarily affecting
1428 the defendant’s competency to proceed. Referral of the defendant
1429 should be made to a civil or forensic facility most appropriate
1430 to address the symptoms that are the cause of the defendant’s
1432 Section 34. Subsection (1) of section 916.3025, Florida
1433 Statutes, is amended to read:
1434 916.3025 Jurisdiction of committing court.—
1435 (1) The committing court shall retain jurisdiction in the
1436 case of any defendant found to be incompetent to proceed due to
1437 intellectual disability retardation or autism and ordered into a
1438 forensic facility designated by the agency for defendants who
1439 have intellectual disabilities mental retardation or autism. A
1440 defendant may not be released except by the order of the
1441 committing court. An administrative hearing examiner does not
1442 have jurisdiction to determine issues of continuing commitment
1443 or release of any defendant involuntarily committed pursuant to
1444 this chapter.
1445 Section 35. Section 916.303, Florida Statutes, is amended
1446 to read:
1447 916.303 Determination of incompetency due to retardation or
1448 autism; dismissal of charges.—
1449 (1) The charges against any defendant found to be
1450 incompetent to proceed due to intellectual disability
1451 retardation or autism shall be dismissed without prejudice to
1452 the state if the defendant remains incompetent to proceed within
1453 a reasonable time after such determination, not to exceed 2
1454 years, unless the court in its order specifies its reasons for
1455 believing that the defendant will become competent to proceed
1456 within the foreseeable future and specifies the time within
1457 which the defendant is expected to become competent to proceed.
1458 The charges may be refiled by the state if the defendant is
1459 declared competent to proceed in the future.
1460 (2) If the charges are dismissed and if the defendant is
1461 considered to lack sufficient capacity to give express and
1462 informed consent to a voluntary application for services and
1463 lacks the basic survival and self-care skills to provide for his
1464 or her well-being or is likely to physically injure himself or
1465 herself or others if allowed to remain at liberty, the agency,
1466 the state attorney, or the defendant’s attorney shall apply to
1467 the committing court to involuntarily admit the defendant to
1468 residential services pursuant to s. 393.11.
1469 (3) If the defendant is considered to need involuntary
1470 residential services for reasons described in subsection (2)
1471 and, further, there is a substantial likelihood that the
1472 defendant will injure another person or continues to present a
1473 danger of escape, and all available less restrictive
1474 alternatives, including services in community residential
1475 facilities or other community settings, which would offer an
1476 opportunity for improvement of the condition have been judged to
1477 be inappropriate, the agency, the state attorney, or the
1478 defendant’s counsel may request the committing court to continue
1479 the defendant’s placement in a secure facility pursuant to this
1480 part. Any placement so continued under this subsection must be
1481 reviewed by the court at least annually at a hearing. The annual
1482 review and hearing must shall determine whether the defendant
1483 continues to meet the criteria described in this subsection and,
1484 if so, whether the defendant still requires involuntary
1485 placement in a secure facility and whether the defendant is
1486 receiving adequate care, treatment, habilitation, and
1487 rehabilitation, including psychotropic medication and behavioral
1488 programming. Notice of the annual review and review hearing
1489 shall be given to the state attorney and the defendant’s
1490 attorney. In no instance may A defendant’s placement in a secure
1491 facility may not exceed the maximum sentence for the crime for
1492 which the defendant was charged.
1493 Section 36. Subsection (1) of section 916.304, Florida
1494 Statutes, is amended to read:
1495 916.304 Conditional release.—
1496 (1) Except for an inmate currently serving a prison
1497 sentence, the committing court may order a conditional release
1498 of any defendant who has been found to be incompetent to proceed
1499 due to intellectual disability retardation or autism, based on
1500 an approved plan for providing community-based training. The
1501 committing criminal court may order a conditional release of any
1502 defendant to a civil facility in lieu of an involuntary
1503 commitment to a forensic facility pursuant to s. 916.302. Upon a
1504 recommendation that community-based training for the defendant
1505 is appropriate, a written plan for community-based training,
1506 including recommendations from qualified professionals, may be
1507 filed with the court, with copies to all parties. Such a plan
1508 may also be submitted by the defendant and filed with the court,
1509 with copies to all parties. The plan must include:
1510 (a) Special provisions for residential care and adequate
1511 supervision of the defendant, including recommended location of
1513 (b) Recommendations for auxiliary services such as
1514 vocational training, psychological training, educational
1515 services, leisure services, and special medical care.
1517 In its order of conditional release, the court shall specify the
1518 conditions of release based upon the release plan and shall
1519 direct the appropriate agencies or persons to submit periodic
1520 reports to the courts regarding the defendant’s compliance with
1521 the conditions of the release and progress in training, with
1522 copies to all parties.
1523 Section 37. Section 918.16, Florida Statutes, is amended to
1525 918.16 Sex offenses; testimony of person under age 16 or
1526 who has an intellectual disability person with mental
1527 retardation; testimony of victim; courtroom cleared;
1529 (1) Except as provided in subsection (2), in the trial of
1530 any case, civil or criminal, if when any person under the age of
1531 16 or any person with an intellectual disability mental
1532 retardation as defined in s. 393.063 is testifying concerning
1533 any sex offense, the court shall clear the courtroom of all
1534 persons except parties to the cause and their immediate families
1535 or guardians, attorneys and their secretaries, officers of the
1536 court, jurors, newspaper reporters or broadcasters, court
1537 reporters, and, at the request of the victim, victim or witness
1538 advocates designated by the state attorney’s office.
1539 (2) If When the victim of a sex offense is testifying
1540 concerning that offense in any civil or criminal trial, the
1541 court shall clear the courtroom of all persons upon the request
1542 of the victim, regardless of the victim’s age or mental
1543 capacity, except that parties to the cause and their immediate
1544 families or guardians, attorneys and their secretaries, officers
1545 of the court, jurors, newspaper reporters or broadcasters, court
1546 reporters, and, at the request of the victim, victim or witness
1547 advocates designated by the state attorney may remain in the
1549 Section 38. Section 921.137, Florida Statutes, is amended
1550 to read:
1551 921.137 Imposition of the death sentence upon an
1552 intellectually disabled a defendant with mental retardation
1554 (1) As used in this section, the term “intellectually
1555 disabled” or “intellectual disability” “mental retardation”
1556 means significantly subaverage general intellectual functioning
1557 existing concurrently with deficits in adaptive behavior and
1558 manifested during the period from conception to age 18. The term
1559 “significantly subaverage general intellectual functioning,” for
1560 the purpose of this section, means performance that is two or
1561 more standard deviations from the mean score on a standardized
1562 intelligence test specified in the rules of the Agency for
1563 Persons with Disabilities. The term “adaptive behavior,” for the
1564 purpose of this definition, means the effectiveness or degree
1565 with which an individual meets the standards of personal
1566 independence and social responsibility expected of his or her
1567 age, cultural group, and community. The Agency for Persons with
1568 Disabilities shall adopt rules to specify the standardized
1569 intelligence tests as provided in this subsection.
1570 (2) A sentence of death may not be imposed upon a defendant
1571 convicted of a capital felony if it is determined in accordance
1572 with this section that the defendant is intellectually disabled
1573 has mental retardation.
1574 (3) A defendant charged with a capital felony who intends
1575 to raise intellectual disability mental retardation as a bar to
1576 the death sentence must give notice of such intention in
1577 accordance with the rules of court governing notices of intent
1578 to offer expert testimony regarding mental health mitigation
1579 during the penalty phase of a capital trial.
1580 (4) After a defendant who has given notice of his or her
1581 intention to raise intellectual disability mental retardation as
1582 a bar to the death sentence is convicted of a capital felony and
1583 an advisory jury has returned a recommended sentence of death,
1584 the defendant may file a motion to determine whether the
1585 defendant is intellectually disabled has mental retardation.
1586 Upon receipt of the motion, the court shall appoint two experts
1587 in the field of intellectual disabilities mental retardation who
1588 shall evaluate the defendant and report their findings to the
1589 court and all interested parties prior to the final sentencing
1590 hearing. Notwithstanding s. 921.141 or s. 921.142, the final
1591 sentencing hearing shall be held without a jury. At the final
1592 sentencing hearing, the court shall consider the findings of the
1593 court-appointed experts and consider the findings of any other
1594 expert which is offered by the state or the defense on the issue
1595 of whether the defendant has an intellectual disability mental
1596 retardation. If the court finds, by clear and convincing
1597 evidence, that the defendant has an intellectual disability
1598 mental retardation as defined in subsection (1), the court may
1599 not impose a sentence of death and shall enter a written order
1600 that sets forth with specificity the findings in support of the
1602 (5) If a defendant waives his or her right to a recommended
1603 sentence by an advisory jury following a plea of guilt or nolo
1604 contendere to a capital felony and adjudication of guilt by the
1605 court, or following a jury finding of guilt of a capital felony,
1606 upon acceptance of the waiver by the court, a defendant who has
1607 given notice as required in subsection (3) may file a motion for
1608 a determination of intellectual disability mental retardation.
1609 Upon granting the motion, the court shall proceed as provided in
1610 subsection (4).
1611 (6) If, following a recommendation by an advisory jury that
1612 the defendant be sentenced to life imprisonment, the state
1613 intends to request the court to order that the defendant be
1614 sentenced to death, the state must inform the defendant of such
1615 request if the defendant has notified the court of his or her
1616 intent to raise intellectual disability mental retardation as a
1617 bar to the death sentence. After receipt of the notice from the
1618 state, the defendant may file a motion requesting a
1619 determination by the court of whether the defendant is
1620 intellectually disabled has mental retardation. Upon granting
1621 the motion, the court shall proceed as provided in subsection
1623 (7) Pursuant to s. 924.07, the state may appeal , pursuant
1624 to s. 924.07 , a determination of intellectual disability mental
1625 retardation made under subsection (4).
1626 (8) This section does not apply to a defendant who was
1627 sentenced to death before June 12, 2001 prior to the effective
1628 date of this act.
1629 (9) For purposes of the application of the criminal laws
1630 and procedural rules of this state to any matters relating to
1631 the imposition and execution of the death penalty, the terms
1632 “intellectual disability” or “intellectually disabled” are
1633 interchangeable with and have the same meaning as the terms
1634 “mental retardation” or “retardation” and “mentally retarded” as
1635 those terms were defined before July 1, 2012.
1636 Section 39. Paragraph (b) of subsection (2) of section
1637 941.38, Florida Statutes, is amended to read:
1638 941.38 Extradition of persons alleged to be of unsound
1640 (2) For the purpose of this section:
1641 (b) A “mentally incompetent person” is one who because of
1642 mental illness, intellectual disability mental retardation,
1643 senility, excessive use of drugs or alcohol, or other mental
1644 incapacity is incapable of either managing his or her property
1645 or caring for himself or herself or both.
1646 Section 40. Section 944.602, Florida Statutes, is amended
1647 to read:
1648 944.602 Agency notification before release of
1649 intellectually disabled mentally retarded inmates.—Before the
1650 release by parole, release by reason of gain-time allowances
1651 provided for in s. 944.291, or expiration of sentence of any
1652 inmate who has been diagnosed as having an intellectual
1653 disability mentally retarded as defined in s. 393.063, the
1654 Department of Corrections shall notify the Agency for Persons
1655 with Disabilities in order that sufficient time be allowed to
1656 notify the inmate or the inmate’s representative, in writing, at
1657 least 7 days before prior to the inmate’s release, of available
1658 community services.
1659 Section 41. Subsection (2) of section 945.025, Florida
1660 Statutes, is amended to read:
1661 945.025 Jurisdiction of department.—
1662 (2) In establishing, operating, and using utilizing these
1663 facilities, the department shall attempt, whenever possible, to
1664 avoid the placement of nondangerous offenders who have potential
1665 for rehabilitation with repeat offenders or dangerous offenders.
1666 Medical, mental, and psychological problems must shall be
1667 diagnosed and treated whenever possible. The Department of
1668 Children and Family Services and the Agency for Persons with
1669 Disabilities shall cooperate to ensure the delivery of services
1670 to persons under the custody or supervision of the department.
1671 If When it is the intent of the department intends to transfer a
1672 mentally ill or retarded prisoner who has a mental illness or
1673 intellectual disability to the Department of Children and Family
1674 Services or the Agency for Persons with Disabilities, an
1675 involuntary commitment hearing shall be held in accordance with
1676 according to the provisions of chapter 393 or chapter 394.
1677 Section 42. Subsection (5) of section 945.12, Florida
1678 Statutes, is amended to read:
1679 945.12 Transfers for rehabilitative treatment.—
1680 (5) When the department plans to release an offender who is
1681 a mentally ill or intellectually disabled retarded offender, an
1682 involuntary commitment hearing shall be held as soon as possible
1683 before prior to his or her release in accordance with , accord ing
1684 to the provisions of chapter 393 or chapter 394.
1685 Section 43. Subsection (9) of section 945.42, Florida
1686 Statutes, is amended to read:
1687 945.42 Definitions; ss. 945.40-945.49.—As used in ss.
1688 945.40-945.49, the following terms shall have the meanings
1689 ascribed to them, unless the context shall clearly indicate
1691 (9) “Mentally ill” means an impairment of the mental or
1692 emotional processes that , of the ability to exercise conscious
1693 control of one’s actions , or of the ability to perceive or
1694 understand reality, which impairment substantially interferes
1695 with the a person’s ability to meet the ordinary demands of
1696 living. However, regardless of etiology, except th at, for the
1697 purposes of transferring transfer of an inmate to a mental
1698 health treatment facility, the term does not include a
1699 retardation or developmental disability as defined in s. 393.063
1700 chapter 393, simple intoxication, or conditions manifested only
1701 by antisocial behavior or substance abuse addiction. However, an
1702 individual who is mentally retarded or developmentally disabled
1703 may also have a mental illness.
1704 Section 44. Section 947.185, Florida Statutes, is amended
1705 to read:
1706 947.185 Application for intellectual disability mental
1707 retardation services as condition of parole.—The Parole
1708 Commission may require as a condition of parole that any inmate
1709 who has been diagnosed as having an intellectual disability
1710 mentally retarded as defined in s. 393.063 shall, upon release,
1711 apply for services from the Agency for Persons with
1713 Section 45. Subsection (4) of section 984.19, Florida
1714 Statutes, is amended to read:
1715 984.19 Medical screening and treatment of child;
1716 examination of parent, guardian, or person requesting custody.—
1717 (4) A judge may order that a child alleged to be or
1718 adjudicated a child in need of services be treated by a licensed
1719 health care professional. The judge may also order such child to
1720 receive mental health or intellectual disability retardation
1721 services from a psychiatrist, psychologist, or other appropriate
1722 service provider. If it is necessary to place the child in a
1723 residential facility for such services, then the procedures and
1724 criteria established in s. 394.467 or chapter 393 shall be used,
1725 as whichever is applicable. A child may be provided mental
1726 health or retardation services in emergency situations , pursuant
1727 to the procedures and criteria contained in s. 394.463(1) or
1728 chapter 393, as whichever is applicable.
1729 Section 46. Paragraph (a) of subsection (3) of section
1730 985.14, Florida Statutes, is amended to read:
1731 985.14 Intake and case management system.—
1732 (3) The intake and case management system shall facilitate
1733 consistency in the recommended placement of each child, and in
1734 the assessment, classification, and placement process, with the
1735 following purposes:
1736 (a) An individualized, multidisciplinary assessment process
1737 that identifies the priority needs of each individual child for
1738 rehabilitation and treatment and identifies any needs of the
1739 child’s parents or guardians for services that would enhance
1740 their ability to provide adequate support, guidance, and
1741 supervision for the child. The This process begins shall begin
1742 with the detention risk assessment instrument and decision,
1743 includes shall include the intake preliminary screening and
1744 comprehensive assessment for substance abuse treatment services,
1745 mental health services, intellectual disability retardation
1746 services, literacy services, and other educational and treatment
1747 services as components, additional assessment of the child’s
1748 treatment needs, and classification regarding the child’s risks
1749 to the community. The completed multidisciplinary assessment
1750 process must shall result in the predisposition report.
1751 Section 47. Paragraph (g) of subsection (1) and subsection
1752 (5) of section 985.145, Florida Statutes, are amended to read:
1753 985.145 Responsibilities of juvenile probation officer
1754 during intake; screenings and assessments.—
1755 (1) The juvenile probation officer shall serve as the
1756 primary case manager for the purpose of managing, coordinating,
1757 and monitoring the services provided to the child. Each program
1758 administrator within the Department of Children and Family
1759 Services shall cooperate with the primary case manager in
1760 carrying out the duties and responsibilities described in this
1761 section. In addition to duties specified in other sections and
1762 through departmental rules, the assigned juvenile probation
1763 officer shall be responsible for the following:
1764 (g) Comprehensive assessment.—The juvenile probation
1765 officer, pursuant to uniform procedures established by the
1766 department and upon determining that the report, affidavit, or
1767 complaint is complete, shall:
1768 1. Perform the preliminary screening and make referrals for
1769 a comprehensive assessment regarding the child’s need for
1770 substance abuse treatment services, mental health services,
1771 intellectual disability retardation services, literacy services,
1772 or other educational or treatment services.
1773 2. If When indicated by the preliminary screening, provide
1774 for a comprehensive assessment of the child and family for
1775 substance abuse problems, using community-based licensed
1776 programs with clinical expertise and experience in the
1777 assessment of substance abuse problems.
1778 3. If When indicated by the preliminary screening, provide
1779 for a comprehensive assessment of the child and family for
1780 mental health problems, using community-based psychologists,
1781 psychiatrists, or other licensed mental health professionals who
1782 have clinical expertise and experience in the assessment of
1783 mental health problems.
1784 (5) If the screening and assessment indicate that the
1785 interests of the child and the public will be best served
1786 thereby, the juvenile probation officer, with the approval of
1787 the state attorney, may refer the child for care, diagnostic,
1788 and evaluation services; substance abuse treatment services;
1789 mental health services; intellectual disability retardation
1790 services; a diversionary, arbitration, or mediation program;
1791 community service work; or other programs or treatment services
1792 voluntarily accepted by the child and the child’s parents or
1793 legal guardian. If Whenever a child volunteers to participate in
1794 any work program under this chapter or volunteers to work in a
1795 specified state, county, municipal, or community service
1796 organization supervised work program or to work for the victim,
1797 the child is shall be considered an employee of the state for
1798 the purposes of liability. In determining the child’s average
1799 weekly wage, unless otherwise determined by a specific funding
1800 program, all remuneration received from the employer is
1801 considered a gratuity, and the child is not entitled to any
1802 benefits otherwise payable under s. 440.15 , regardless of
1803 whether the child may be receiving wages and remuneration from
1804 other employment with another employer and regardless of the
1805 child’s future wage-earning capacity.
1806 Section 48. Subsections (2) and (6) of section 985.18,
1807 Florida Statutes, are amended to read:
1808 985.18 Medical, psychiatric, psychological, substance
1809 abuse, and educational examination and treatment.—
1810 (2) If Whenever a child has been found to have committed a
1811 delinquent act, or before such finding with the consent of any
1812 parent or legal custodian of the child, the court may order the
1813 child to be treated by a physician. The court may also order the
1814 child to receive mental health, substance abuse, or intellectual
1815 disability retardation services from a psychiatrist,
1816 psychologist, or other appropriate service provider. If it is
1817 necessary to place the child in a residential facility for such
1818 services, the procedures and criteria established in chapter
1819 393, chapter 394, or chapter 397, as whichever is applicable,
1820 must shall be used. After a child has been adjudicated
1821 delinquent, if an educational needs assessment by the district
1822 school board or the Department of Children and Family Services
1823 has been previously conducted, the court shall order the report
1824 of such needs assessment included in the child’s court record in
1825 lieu of a new assessment. For purposes of this section, an
1826 educational needs assessment includes, but is not limited to,
1827 reports of intelligence and achievement tests, screening for
1828 learning and other disabilities and other handicaps, and
1829 screening for the need for alternative education.
1830 (6) A physician must shall be immediately notified by the
1831 person taking the child into custody or the person having
1832 custody if there are indications of physical injury or illness,
1833 or the child shall be taken to the nearest available hospital
1834 for emergency care. A child may be provided mental health,
1835 substance abuse, or intellectual disability retardation
1836 services , in emergency situations , pursuant to chapter 393,
1837 chapter 394, or chapter 397, as whichever is applicable. After a
1838 hearing, the court may order the custodial parent or parents,
1839 guardian, or other custodian, if found able to do so, to
1840 reimburse the county or state for the expense involved in such
1841 emergency treatment or care.
1842 Section 49. Paragraph (e) of subsection (1), subsections
1843 (2) through (4), and paragraph (a) of subsection (6) of section
1844 985.19, Florida Statutes, are amended to read:
1845 985.19 Incompetency in juvenile delinquency cases.—
1846 (1) If, at any time prior to or during a delinquency case,
1847 the court has reason to believe that the child named in the
1848 petition may be incompetent to proceed with the hearing, the
1849 court on its own motion may, or on the motion of the child’s
1850 attorney or state attorney must, stay all proceedings and order
1851 an evaluation of the child’s mental condition.
1852 (e) For incompetency evaluations related to intellectual
1853 disability mental retardation or autism, the court shall order
1854 the Agency for Persons with Disabilities to examine the child to
1855 determine if the child meets the definition of “intellectual
1856 disability” “retardation” or “autism” in s. 393.063 and, if so,
1857 whether the child is competent to proceed with delinquency
1859 (2) A child who is adjudicated incompetent to proceed, and
1860 who has committed a delinquent act or violation of law, either
1861 of which would be a felony if committed by an adult, must be
1862 committed to the Department of Children and Family Services for
1863 treatment or training. A child who has been adjudicated
1864 incompetent to proceed because of age or immaturity, or for any
1865 reason other than for mental illness, intellectual disability,
1866 or re tardation or autism, must not be committed to the
1867 department or to the Department of Children and Family Services
1868 for restoration-of-competency treatment or training services.
1869 For purposes of this section, a child who has committed a
1870 delinquent act or violation of law, either of which would be a
1871 misdemeanor if committed by an adult, may not be committed to
1872 the department or to the Department of Children and Family
1873 Services for restoration-of-competency treatment or training
1875 (3) If the court finds that a child has mental illness,
1876 intellectual disability mental retardation, or autism and
1877 adjudicates the child incompetent to proceed, the court must
1878 also determine whether the child meets the criteria for secure
1879 placement. A child may be placed in a secure facility or program
1880 if the court makes a finding by clear and convincing evidence
1882 (a) The child has mental illness, intellectual disability
1883 mental retardation, or autism and because of the mental illness,
1884 intellectual disability mental retardation, or autism:
1885 1. The child is manifestly incapable of surviving with the
1886 help of willing and responsible family or friends, including
1887 available alternative services, and without treatment or
1888 training the child is likely to either suffer from neglect or
1889 refuse to care for self, and such neglect or refusal poses a
1890 real and present threat of substantial harm to the child’s well
1891 being; or
1892 2. There is a substantial likelihood that in the near
1893 future the child will inflict serious bodily harm on self or
1894 others, as evidenced by recent behavior causing, attempting, or
1895 threatening such harm; and
1896 (b) All available less restrictive alternatives, including
1897 treatment or training in community residential facilities or
1898 community settings which would offer an opportunity for
1899 improvement of the child’s condition, are inappropriate.
1900 (4) A child who is determined to have mental illness,
1901 intellectual disability mental retardation, or autism, who has
1902 been adjudicated incompetent to proceed, and who meets the
1903 criteria set forth in subsection (3), must be committed to the
1904 Department of Children and Family Services and receive treatment
1905 or training in a secure facility or program that is the least
1906 restrictive alternative consistent with public safety. Any
1907 placement of a child to a secure residential program must be
1908 separate from adult forensic programs. If the child attains
1909 competency, then custody, case management, and supervision of
1910 the child shall will be transferred to the department in order
1911 to continue delinquency proceedings; however, the court retains
1912 authority to order the Department of Children and Family
1913 Services to provide continued treatment or training to maintain
1915 (a) A child adjudicated incompetent due to intellectual
1916 disability mental retardation or autism may be ordered into a
1917 secure program or facility designated by the Department of
1918 Children and Family Services for children who have intellectual
1919 disabilities with me ntal retardation or autism.
1920 (b) A child adjudicated incompetent due to mental illness
1921 may be ordered into a secure program or facility designated by
1922 the Department of Children and Family Services for children
1923 having mental illnesses.
1924 (c) If Whenever a child is placed in a secure residential
1925 facility, the department shall will provide transportation to
1926 the secure residential facility for admission and from the
1927 secure residential facility upon discharge.
1928 (d) The purpose of the treatment or training is the
1929 restoration of the child’s competency to proceed.
1930 (e) The service provider must file a written report with
1931 the court pursuant to the applicable Florida Rules of Juvenile
1932 Procedure within not later than 6 months after the date of
1933 commitment, or at the end of any period of extended treatment or
1934 training, and at any time the Department of Children and Family
1935 Services, through its service provider, determines the child has
1936 attained competency or no longer meets the criteria for secure
1937 placement, or at such shorter intervals as ordered by the court.
1938 A copy of a written report evaluating the child’s competency
1939 must be filed by the provider with the court and with the state
1940 attorney, the child’s attorney, the department, and the
1941 Department of Children and Family Services.
1942 (6)(a) If a child is determined to have mental illness,
1943 intellectual disability mental retardation, or autism and is
1944 found to be incompetent to proceed but does not meet the
1945 criteria set forth in subsection (3), the court shall commit the
1946 child to the Department of Children and Family Services and
1947 shall order the Department of Children and Family Services to
1948 provide appropriate treatment and training in the community. The
1949 purpose of the treatment or training is the restoration of the
1950 child’s competency to proceed.
1951 Section 50. Section 985.195, Florida Statutes, is amended
1952 to read:
1953 985.195 Transfer to other treatment services.—Any child
1954 committed to the department may be transferred to intellectual
1955 disability retardation, mental health, or substance abuse
1956 treatment facilities for diagnosis and evaluation pursuant to
1957 chapter 393, chapter 394, or chapter 397, as whichever is
1958 applicable, for up to a period not to exceed 90 days.
1959 Section 51. Paragraph (b) of subsection (1) of section
1960 985.61, Florida Statutes, is amended to read:
1961 985.61 Early delinquency intervention program; criteria.—
1962 (1) The Department of Juvenile Justice shall, contingent
1963 upon specific appropriation and with the cooperation of local
1964 law enforcement agencies, the judiciary, district school board
1965 personnel, the office of the state attorney, the office of the
1966 public defender, the Department of Children and Family Services,
1967 and community service agencies that work with children,
1968 establish an early delinquency intervention program, the
1969 components of which shall include, but not be limited to:
1970 (b) Treatment modalities, including substance abuse
1971 treatment services, mental health services, and retardation
1972 services for intellectual disabilities.
1973 Section 52. It is the intent of the Legislature that this
1974 act not expand or contract the scope or application of any
1975 provision of the Florida Statutes. This act may not be construed
1976 to change the application of any provision of Florida Statutes
1977 to any person.
1978 Section 53. This act shall take effect July 1, 2013.