Florida Senate - 2016 CS for SB 7054
By the Committees on Appropriations; and Children, Families, and
Elder Affairs
576-04977-16 20167054c1
1 A bill to be entitled
2 An act relating to the Agency for Persons with
3 Disabilities; amending s. 393.063, F.S.; revising
4 definitions; repealing s. 393.0641, F.S., relating to
5 a program for the prevention and treatment of severe
6 self-injurious behavior; amending s. 393.065, F.S.;
7 providing for the assignment of priority to clients
8 waiting for waiver services; requiring the agency to
9 allow an individual to receive specified services if
10 the individual’s parent or legal guardian is an active
11 duty military servicemember, under certain
12 circumstances; requiring the agency to send an annual
13 letter requesting updated information to clients,
14 their guardians, or their families; providing that
15 certain agency action does not establish a right to a
16 hearing or an administrative proceeding; amending s.
17 393.066, F.S.; providing for the use of an agency data
18 management system; providing requirements for persons
19 or entities under contract with the agency; amending
20 s. 393.0662, F.S.; revising the allocations
21 methodology that the agency is required to use to
22 develop each client’s iBudget; adding client needs
23 that qualify as extraordinary needs, which may result
24 in the approval of an increase in a client’s allocated
25 funds; revising duties of the Agency for Health Care
26 Administration relating to the iBudget system;
27 creating s. 393.0663, F.S.; providing legislative
28 findings; establishing The Arc Dental Program in the
29 Agency for Persons with Disabilities; authorizing the
30 agency to enter into a memorandum of agreement with
31 and assist The Arc of Florida; providing requirements
32 for the memorandum of agreement; requiring the agency
33 to submit an annual report to the Governor and the
34 Legislature; providing that implementation of the
35 program is contingent upon an appropriation; creating
36 s. 393.0679, F.S.; requiring the Agency for Persons
37 with Disabilities to conduct a certain utilization
38 review; requiring specified intermediate care
39 facilities to comply with certain requests and
40 inspections by the agency; amending s. 393.11, F.S.;
41 providing for annual reviews for persons involuntarily
42 committed to residential services; requiring the
43 agency to employ or contract with a qualified
44 evaluator; providing requirements for annual reviews;
45 requiring a hearing to be held to consider the results
46 of an annual review; requiring the agency to provide a
47 copy of the review to certain persons; defining a
48 term; repealing s. 24 of chapter 2015-222, Laws of
49 Florida, relating to the abrogation of the scheduled
50 expiration of an amendment to s. 393.067(15), F.S.,
51 and the scheduled reversion of the text of that
52 section; repealing s. 26 of chapter 2015-222, Laws of
53 Florida, relating to the abrogation of the scheduled
54 expiration of an amendment to s. 393.18, F.S., and the
55 scheduled reversion of the text of that section;
56 reenacting s. 393.067(15), F.S., relating to contracts
57 between the agency and licensed facilities; reenacting
58 and amending s. 393.18, F.S.; revising the purposes of
59 comprehensive transitional education programs;
60 requiring the supervisor of the clinical director of
61 such programs to meet specified requirements;
62 requiring such programs to include specified
63 components; revising the organization and operation of
64 the components; requiring components of a program to
65 be located within the same agency region; providing
66 for the integration of educational components of the
67 program, including individual education plans, with
68 the local school district of school-aged residents;
69 requiring licensees that have entered into settlement
70 agreements with the agency to comply with the
71 agreement or face disciplinary action; authorizing the
72 agency to approve the proposed admission or
73 readmission of an individual to a program for a
74 specified period of time; providing for an extended
75 stay under certain circumstances; amending s. 393.501,
76 F.S.; conforming provisions to changes made by the
77 act; amending ss. 383.141 and 1002.385, F.S.;
78 conforming cross references; providing effective
79 dates.
80
81 Be It Enacted by the Legislature of the State of Florida:
82
83 Section 1. Section 393.063, Florida Statutes, is reordered
84 and amended to read:
85 393.063 Definitions.—For the purposes of this chapter, the
86 term:
87 (2)(1) “Agency” means the Agency for Persons with
88 Disabilities.
89 (1)(2) “Adult day training” means training services that
90 which take place in a nonresidential setting, separate from the
91 home or facility in which the client resides, and; are intended
92 to support the participation of clients in daily, meaningful,
93 and valued routines of the community. Such training; and may be
94 provided in include work-like settings that do not meet the
95 definition of supported employment.
96 (3) “Algorithm” means the mathematical formula used by the
97 agency to calculate a budget amount for clients using variables
98 that have statistically validated relationships to clients’
99 needs for services provided by the home and community-based
100 Medicaid waiver program.
101 (4) “Allocation methodology” means the process used to
102 determine a client’s iBudget by summing the amount generated by
103 the algorithm and, if applicable, any funding authorized by the
104 agency for the client pursuant to s. 393.0662(1)(b).
105 (5)(3) “Autism” means a pervasive, neurologically based
106 developmental disability of extended duration which causes
107 severe learning, communication, and behavior disorders with age
108 of onset during infancy or childhood. Individuals with autism
109 exhibit impairment in reciprocal social interaction, impairment
110 in verbal and nonverbal communication and imaginative ability,
111 and a markedly restricted repertoire of activities and
112 interests.
113 (6)(4) “Cerebral palsy” means a group of disabling symptoms
114 of extended duration which results from damage to the developing
115 brain that may occur before, during, or after birth and that
116 results in the loss or impairment of control over voluntary
117 muscles. For the purposes of this definition, cerebral palsy
118 does not include those symptoms or impairments resulting solely
119 from a stroke.
120 (7)(5) “Client” means any person determined eligible by the
121 agency for services under this chapter.
122 (8)(6) “Client advocate” means a friend or relative of the
123 client, or of the client’s immediate family, who advocates for
124 the best interests of the client in any proceedings under this
125 chapter in which the client or his or her family has the right
126 or duty to participate.
127 (9)(7) “Comprehensive assessment” means the process used to
128 determine eligibility for services under this chapter.
129 (10)(8) “Comprehensive transitional education program”
130 means the program established in s. 393.18.
131 (12)(9) “Developmental disability” means a disorder or
132 syndrome that is attributable to intellectual disability,
133 cerebral palsy, autism, spina bifida, Down syndrome, or Prader
134 Willi syndrome; that manifests before the age of 18; and that
135 constitutes a substantial handicap that can reasonably be
136 expected to continue indefinitely.
137 (11)(10) “Developmental disabilities center” means a state
138 owned and state-operated facility, formerly known as a “Sunland
139 Center,” providing for the care, habilitation, and
140 rehabilitation of clients with developmental disabilities.
141 (13)(11) “Direct service provider” means a person 18 years
142 of age or older who has direct face-to-face contact with a
143 client while providing services to the client or has access to a
144 client’s living areas or to a client’s funds or personal
145 property.
146 (14)(12) “Domicile” means the place where a client legally
147 resides and, which place is his or her permanent home. Domicile
148 may be established as provided in s. 222.17. Domicile may not be
149 established in Florida by a minor who has no parent domiciled in
150 Florida, or by a minor who has no legal guardian domiciled in
151 Florida, or by any alien not classified as a resident alien.
152 (15)(13) “Down syndrome” means a disorder caused by the
153 presence of an extra chromosome 21.
154 (16)(14) “Express and informed consent” means consent
155 voluntarily given in writing with sufficient knowledge and
156 comprehension of the subject matter to enable the person giving
157 consent to make a knowing decision without any element of force,
158 fraud, deceit, duress, or other form of constraint or coercion.
159 (17)(15) “Family care program” means the program
160 established in s. 393.068.
161 (18)(16) “Foster care facility” means a residential
162 facility licensed under this chapter which provides a family
163 living environment including supervision and care necessary to
164 meet the physical, emotional, and social needs of its residents.
165 The capacity of such a facility may not be more than three
166 residents.
167 (19)(17) “Group home facility” means a residential facility
168 licensed under this chapter which provides a family living
169 environment including supervision and care necessary to meet the
170 physical, emotional, and social needs of its residents. The
171 capacity of such a facility shall be at least 4 but not more
172 than 15 residents.
173 (20) “Guardian” has the same meaning as in s. 744.102.
174 (21)(18) “Guardian advocate” means a person appointed by a
175 written order of the court to represent a person with
176 developmental disabilities under s. 393.12.
177 (22)(19) “Habilitation” means the process by which a client
178 is assisted in acquiring and maintaining to acquire and maintain
179 those life skills that which enable the client to cope more
180 effectively with the demands of his or her condition and
181 environment and to raise the level of his or her physical,
182 mental, and social efficiency. The term It includes, but is not
183 limited to, programs of formal structured education and
184 treatment.
185 (23)(20) “High-risk child” means, for the purposes of this
186 chapter, a child from 3 to 5 years of age with one or more of
187 the following characteristics:
188 (a) A developmental delay in cognition, language, or
189 physical development.
190 (b) A child surviving a catastrophic infectious or
191 traumatic illness known to be associated with developmental
192 delay, when funds are specifically appropriated.
193 (c) A child with a parent or guardian with developmental
194 disabilities who requires assistance in meeting the child’s
195 developmental needs.
196 (d) A child who has a physical or genetic anomaly
197 associated with developmental disability.
198 (24)(21) “Intellectual disability” means significantly
199 subaverage general intellectual functioning existing
200 concurrently with deficits in adaptive behavior which manifests
201 before the age of 18 and can reasonably be expected to continue
202 indefinitely. For the purposes of this definition, the term:
203 (a) “Adaptive behavior” means the effectiveness or degree
204 with which an individual meets the standards of personal
205 independence and social responsibility expected of his or her
206 age, cultural group, and community.
207 (b) “Significantly subaverage general intellectual
208 functioning” means performance that is two or more standard
209 deviations from the mean score on a standardized intelligence
210 test specified in the rules of the agency.
211
212 For purposes of the application of the criminal laws and
213 procedural rules of this state to matters relating to pretrial,
214 trial, sentencing, and any matters relating to the imposition
215 and execution of the death penalty, the terms “intellectual
216 disability” or “intellectually disabled” are interchangeable
217 with and have the same meaning as the terms “mental retardation”
218 or “retardation” and “mentally retarded” as defined in this
219 section before July 1, 2013.
220 (25)(22) “Intermediate care facility for the
221 developmentally disabled” or “ICF/DD” means a residential
222 facility licensed and certified under part VIII of chapter 400.
223 (26)(23) “Medical/dental services” means medically
224 necessary services that are provided or ordered for a client by
225 a person licensed under chapter 458, chapter 459, or chapter
226 466. Such services may include, but are not limited to,
227 prescription drugs, specialized therapies, nursing supervision,
228 hospitalization, dietary services, prosthetic devices, surgery,
229 specialized equipment and supplies, adaptive equipment, and
230 other services as required to prevent or alleviate a medical or
231 dental condition.
232 (27)(24) “Personal care services” means individual
233 assistance with or supervision of essential activities of daily
234 living for self-care, including ambulation, bathing, dressing,
235 eating, grooming, and toileting, and other similar services that
236 are incidental to the care furnished and essential to the
237 health, safety, and welfare of the client if no one else is
238 available to perform those services.
239 (28)(25) “Prader-Willi syndrome” means an inherited
240 condition typified by neonatal hypotonia with failure to thrive,
241 hyperphagia or an excessive drive to eat which leads to obesity
242 usually at 18 to 36 months of age, mild to moderate intellectual
243 disability, hypogonadism, short stature, mild facial
244 dysmorphism, and a characteristic neurobehavior.
245 (29)(26) “Relative” means an individual who is connected by
246 affinity or consanguinity to the client and who is 18 years of
247 age or older.
248 (30)(27) “Resident” means a person who has a developmental
249 disability and resides at a residential facility, whether or not
250 such person is a client of the agency.
251 (31)(28) “Residential facility” means a facility providing
252 room and board and personal care for persons who have
253 developmental disabilities.
254 (32)(29) “Residential habilitation” means supervision and
255 training with the acquisition, retention, or improvement in
256 skills related to activities of daily living, such as personal
257 hygiene skills, homemaking skills, and the social and adaptive
258 skills necessary to enable the individual to reside in the
259 community.
260 (33)(30) “Residential habilitation center” means a
261 community residential facility licensed under this chapter which
262 provides habilitation services. The capacity of such a facility
263 may not be fewer than nine residents. After October 1, 1989, new
264 residential habilitation centers may not be licensed and the
265 licensed capacity for any existing residential habilitation
266 center may not be increased.
267 (34)(31) “Respite service” means appropriate, short-term,
268 temporary care that is provided to a person who has a
269 developmental disability in order to meet the planned or
270 emergency needs of the person or the family or other direct
271 service provider.
272 (35)(32) “Restraint” means a physical device, method, or
273 drug used to control dangerous behavior.
274 (a) A physical restraint is any manual method or physical
275 or mechanical device, material, or equipment attached or
276 adjacent to an individual’s body so that he or she cannot easily
277 remove the restraint and which restricts freedom of movement or
278 normal access to one’s body.
279 (b) A drug used as a restraint is a medication used to
280 control the person’s behavior or to restrict his or her freedom
281 of movement and is not a standard treatment for the person’s
282 medical or psychiatric condition. Physically holding a person
283 during a procedure to forcibly administer psychotropic
284 medication is a physical restraint.
285 (c) Restraint does not include physical devices, such as
286 orthopedically prescribed appliances, surgical dressings and
287 bandages, supportive body bands, or other physical holding
288 necessary for routine physical examinations and tests; for
289 purposes of orthopedic, surgical, or other similar medical
290 treatment; to provide support for the achievement of functional
291 body position or proper balance; or to protect a person from
292 falling out of bed.
293 (36)(33) “Seclusion” means the involuntary isolation of a
294 person in a room or area from which the person is prevented from
295 leaving. The prevention may be by physical barrier or by a staff
296 member who is acting in a manner, or who is physically situated,
297 so as to prevent the person from leaving the room or area. For
298 the purposes of this chapter, the term does not mean isolation
299 due to the medical condition or symptoms of the person.
300 (37)(34) “Self-determination” means an individual’s freedom
301 to exercise the same rights as all other citizens, authority to
302 exercise control over funds needed for one’s own support,
303 including prioritizing these funds when necessary,
304 responsibility for the wise use of public funds, and self
305 advocacy to speak and advocate for oneself in order to gain
306 independence and ensure that individuals with a developmental
307 disability are treated equally.
308 (38)(35) “Specialized therapies” means those treatments or
309 activities prescribed by and provided by an appropriately
310 trained, licensed, or certified professional or staff person and
311 may include, but are not limited to, physical therapy, speech
312 therapy, respiratory therapy, occupational therapy, behavior
313 therapy, physical management services, and related specialized
314 equipment and supplies.
315 (39)(36) “Spina bifida” means, for purposes of this
316 chapter, a person with a medical diagnosis of spina bifida
317 cystica or myelomeningocele.
318 (40)(37) “Support coordinator” means a person who is
319 designated by the agency to assist individuals and families in
320 identifying their capacities, needs, and resources, as well as
321 finding and gaining access to necessary supports and services;
322 coordinating the delivery of supports and services; advocating
323 on behalf of the individual and family; maintaining relevant
324 records; and monitoring and evaluating the delivery of supports
325 and services to determine the extent to which they meet the
326 needs and expectations identified by the individual, family, and
327 others who participated in the development of the support plan.
328 (41)(38) “Supported employment” means employment located or
329 provided in an integrated work setting, with earnings paid on a
330 commensurate wage basis, and for which continued support is
331 needed for job maintenance.
332 (42)(39) “Supported living” means a category of
333 individually determined services designed and coordinated in
334 such a manner as to provide assistance to adult clients who
335 require ongoing supports to live as independently as possible in
336 their own homes, to be integrated into the community, and to
337 participate in community life to the fullest extent possible.
338 (43)(40) “Training” means a planned approach to assisting a
339 client to attain or maintain his or her maximum potential and
340 includes services ranging from sensory stimulation to
341 instruction in skills for independent living and employment.
342 (44)(41) “Treatment” means the prevention, amelioration, or
343 cure of a client’s physical and mental disabilities or
344 illnesses.
345 Section 2. Section 393.0641, Florida Statutes, is repealed.
346 Section 3. Present subsections (6) and (7) of section
347 393.065, Florida Statutes, are redesignated as subsections (7)
348 and (9), respectively, subsections (3) and (5) and present
349 subsections (6) and (7) of that section are amended, and new
350 subsections (6) and (8) are added to that section, to read:
351 393.065 Application and eligibility determination.—
352 (3) The agency shall notify each applicant, in writing, of
353 its eligibility decision. Any applicant determined by the agency
354 to be ineligible for developmental services has the right to
355 appeal this decision pursuant to ss. 120.569 and 120.57.
356 (5) Except as otherwise directed by law, beginning July 1,
357 2010, The agency shall assign and provide priority to clients
358 waiting for waiver services in the following order:
359 (a) Category 1, which includes clients deemed to be in
360 crisis as described in rule, shall be given first priority in
361 moving from the waiting list to the waiver.
362 (b) Category 2, which includes clients on the waiting
363 children on the wait list who are:
364 1. From the child welfare system with an open case in the
365 Department of Children and Families’ statewide automated child
366 welfare information system and who are:
367 a. Transitioning out of the child welfare system at the
368 finalization of an adoption, a reunification with a family
369 member, a permanent placement with a relative, or a guardianship
370 with a nonrelative; or
371 b. At least 18 years old, but not yet 22 years old, and who
372 need both waiver services and extended foster care services; or
373 2. At least 18 years old, but not yet 22 years old, and who
374 withdrew consent pursuant to s. 39.6251(5)(c) to remain in
375 extended foster care.
376
377 For clients who are eligible under sub-subparagraph 1.b., the
378 agency shall provide waiver services, including residential
379 habilitation, and the community-based care lead agency shall
380 fund room and board at the rates established in s. 409.145(4)
381 and provide case management and related services as defined in
382 s. 409.986(3). Such clients may receive both waiver services and
383 services under s. 39.6251 which may not duplicate services
384 available through the Medicaid state plan.
385 (c) Category 3, which includes, but is not required to be
386 limited to, clients:
387 1. Whose caregiver has a documented condition that is
388 expected to render the caregiver unable to provide care within
389 the next 12 months and for whom a caregiver is required but no
390 alternate caregiver is available;
391 2. At substantial risk of incarceration or court commitment
392 without supports;
393 3. Whose documented behaviors or physical needs place them
394 or their caregiver at risk of serious harm and other supports
395 are not currently available to alleviate the situation; or
396 4. Who are identified as ready for discharge within the
397 next year from a state mental health hospital or skilled nursing
398 facility and who require a caregiver but for whom no caregiver
399 is available, or whose caregiver cannot provide the care needed.
400 (d) Category 4, which includes, but is not required to be
401 limited to, clients whose caregivers are 70 years of age or
402 older and for whom a caregiver is required but no alternate
403 caregiver is available.
404 (e) Category 5, which includes, but is not required to be
405 limited to, clients who are expected to graduate within the next
406 12 months from secondary school and need support to obtain a
407 meaningful day activity, or maintain competitive employment, or
408 to pursue an accredited program of postsecondary education to
409 which they have been accepted.
410 (f) Category 6, which includes clients 21 years of age or
411 older who do not meet the criteria for category 1, category 2,
412 category 3, category 4, or category 5.
413 (g) Category 7, which includes clients younger than 21
414 years of age who do not meet the criteria for category 1,
415 category 2, category 3, or category 4.
416
417 Within categories 3, 4, 5, 6, and 7, the agency shall maintain a
418 waiting wait list of clients placed in the order of the date
419 that the client is determined eligible for waiver services.
420 (6) The agency shall allow an individual who meets the
421 eligibility requirements pursuant to subsection (1) to receive
422 home and community-based services in this state if the
423 individual’s parent or legal guardian is an active duty military
424 servicemember and if at the time of the servicemember’s transfer
425 to this state, the individual was receiving home and community
426 based services in another state.
427 (7)(6) The client, the client’s guardian, or the client’s
428 family must ensure that accurate, up-to-date contact information
429 is provided to the agency at all times. Notwithstanding s.
430 393.0651, the agency shall send an annual letter requesting
431 updated information from the client, the client’s guardian, or
432 the client’s family. The agency shall remove from the waiting
433 wait list any individual who cannot be located using the contact
434 information provided to the agency, fails to meet eligibility
435 requirements, or becomes domiciled outside the state.
436 (8) Agency action that selects individuals to receive
437 waiver services pursuant to this section does not establish a
438 right to a hearing or an administrative proceeding under chapter
439 120 for individuals remaining on the waiting list.
440 (9)(7) The agency and the Agency for Health Care
441 Administration may adopt rules specifying application
442 procedures, criteria associated with the waiting list wait-list
443 categories, procedures for administering the waiting wait list,
444 including tools for prioritizing waiver enrollment within
445 categories, and eligibility criteria as needed to administer
446 this section.
447 Section 4. Subsection (2) of section 393.066, Florida
448 Statutes, is amended to read:
449 393.066 Community services and treatment.—
450 (2) Necessary All services needed shall be purchased,
451 rather than instead of provided directly by the agency, when the
452 purchase of services such arrangement is more cost-efficient
453 than providing them having those services provided directly. All
454 purchased services must be approved by the agency. Persons or
455 entities under contract with the agency to provide services
456 shall use agency data management systems to document service
457 provision to clients. Contracted persons and entities shall meet
458 the minimum hardware and software technical requirements
459 established by the agency for the use of such systems. Such
460 persons or entities shall also meet any requirements established
461 by the agency for training and professional development of staff
462 providing direct services to clients.
463 Section 5. Section 393.0662, Florida Statutes, is amended
464 to read:
465 393.0662 Individual budgets for delivery of home and
466 community-based services; iBudget system established.—The
467 Legislature finds that improved financial management of the
468 existing home and community-based Medicaid waiver program is
469 necessary to avoid deficits that impede the provision of
470 services to individuals who are on the waiting list for
471 enrollment in the program. The Legislature further finds that
472 clients and their families should have greater flexibility to
473 choose the services that best allow them to live in their
474 community within the limits of an established budget. Therefore,
475 the Legislature intends that the agency, in consultation with
476 the Agency for Health Care Administration, shall manage develop
477 and implement a comprehensive redesign of the service delivery
478 system using individual budgets as the basis for allocating the
479 funds appropriated for the home and community-based services
480 Medicaid waiver program among eligible enrolled clients. The
481 service delivery system that uses individual budgets shall be
482 called the iBudget system.
483 (1) The agency shall administer establish an individual
484 budget, referred to as an iBudget, for each individual served by
485 the home and community-based services Medicaid waiver program.
486 The funds appropriated to the agency shall be allocated through
487 the iBudget system to eligible, Medicaid-enrolled clients. For
488 the iBudget system, eligible clients shall include individuals
489 with a diagnosis of Down syndrome or a developmental disability
490 as defined in s. 393.063. The iBudget system shall be designed
491 to provide for: enhanced client choice within a specified
492 service package; appropriate assessment strategies; an efficient
493 consumer budgeting and billing process that includes
494 reconciliation and monitoring components; a redefined role for
495 support coordinators which that avoids potential conflicts of
496 interest; a flexible and streamlined service review process; and
497 a methodology and process that ensures the equitable allocation
498 of available funds to each client based on the client’s level of
499 need, as determined by the variables in the allocation
500 algorithm.
501 (a) In developing each client’s iBudget, the agency shall
502 use the an allocation algorithm and methodology as defined in s.
503 393.063. The algorithm shall use variables that have been
504 determined by the agency to have a statistically validated
505 relationship to the client’s level of need for services provided
506 through the home and community-based services Medicaid waiver
507 program. The algorithm and methodology may consider individual
508 characteristics, including, but not limited to, a client’s age
509 and living situation, information from a formal assessment
510 instrument that the agency determines is valid and reliable, and
511 information from other assessment processes.
512 (b) The allocation methodology shall determine provide the
513 algorithm that determines the amount of funds allocated to a
514 client’s iBudget.
515 (b) The agency may authorize funding approve an increase in
516 the amount of funds allocated, as determined by the algorithm,
517 based on a the client having one or more of the following needs
518 that cannot be accommodated within the funding as determined by
519 the algorithm and having no other resources, supports, or
520 services available to meet the need:
521 1. An extraordinary need that would place the health and
522 safety of the client, the client’s caregiver, or the public in
523 immediate, serious jeopardy unless the increase is approved.
524 However, the presence of an extraordinary need in and of itself
525 does not warrant authorized funding by the agency. An
526 extraordinary need may include, but is not limited to:
527 a. The loss of or a change in the client’s caregiver
528 arrangement or a documented need based on a medical, behavioral,
529 or psychological assessment;
530 b.a. A documented history of significant, potentially life
531 threatening behaviors, such as recent attempts at suicide,
532 arson, nonconsensual sexual behavior, or self-injurious behavior
533 requiring medical attention;
534 c.b. A complex medical condition that requires active
535 intervention by a licensed nurse on an ongoing basis that cannot
536 be taught or delegated to a nonlicensed person;
537 d.c. A chronic comorbid condition. As used in this
538 subparagraph, the term “comorbid condition” means a medical
539 condition existing simultaneously but independently with another
540 medical condition in a patient; or
541 e.d. A need for total physical assistance with activities
542 such as eating, bathing, toileting, grooming, and personal
543 hygiene.
544
545 However, the presence of an extraordinary need alone does not
546 warrant an increase in the amount of funds allocated to a
547 client’s iBudget as determined by the algorithm.
548 2. A significant need for one-time or temporary support or
549 services that, if not provided, would place the health and
550 safety of the client, the client’s caregiver, or the public in
551 serious jeopardy, unless the increase is approved. A significant
552 need may include, but is not limited to, the provision of
553 environmental modifications, durable medical equipment, services
554 to address the temporary loss of support from a caregiver, or
555 special services or treatment for a serious temporary condition
556 when the service or treatment is expected to ameliorate the
557 underlying condition. As used in this subparagraph, the term
558 “temporary” means a period of fewer than 12 continuous months.
559 However, the presence of such significant need for one-time or
560 temporary supports or services alone does not in and of itself
561 warrant authorized funding by the agency an increase in the
562 amount of funds allocated to a client’s iBudget as determined by
563 the algorithm.
564 3. A significant increase in the need for services after
565 the beginning of the service plan year which that would place
566 the health and safety of the client, the client’s caregiver, or
567 the public in serious jeopardy because of substantial changes in
568 the client’s circumstances, including, but not limited to,
569 permanent or long-term loss or incapacity of a caregiver, loss
570 of services authorized under the state Medicaid plan due to a
571 change in age, or a significant change in medical or functional
572 status which requires the provision of additional services on a
573 permanent or long-term basis that cannot be accommodated within
574 the client’s current iBudget. As used in this subparagraph, the
575 term “long-term” means a period of 12 or more continuous months.
576 However, such significant increase in need for services of a
577 permanent or long-term nature alone does not in and of itself
578 warrant authorized funding by the agency warrant an increase in
579 the amount of funds allocated to a client’s iBudget as
580 determined by the algorithm.
581 4. A significant need for transportation services to a
582 waiver-funded adult day training program or to waiver-funded
583 employment services when such need cannot be accommodated within
584 a client’s iBudget as determined by the algorithm without
585 affecting the health and safety of the client, when public
586 transportation is not an option due to the unique needs of the
587 client, or when other transportation resources are not
588 reasonably available.
589
590 The agency shall reserve portions of the appropriation for the
591 home and community-based services Medicaid waiver program for
592 adjustments required pursuant to this paragraph and may use the
593 services of an independent actuary in determining the amount of
594 the portions to be reserved.
595 (c) A client’s iBudget shall be the total of the amount
596 determined by the algorithm and any additional funding provided
597 pursuant to paragraph (b). A client’s annual expenditures for
598 home and community-based services Medicaid waiver services may
599 not exceed the limits of his or her iBudget. The total of all
600 clients’ projected annual iBudget expenditures may not exceed
601 the agency’s appropriation for waiver services.
602 (2) The Agency for Health Care Administration, in
603 consultation with the agency, shall seek federal approval to
604 amend current waivers, request a new waiver, and amend contracts
605 as necessary to manage the iBudget system, to improve services
606 for eligible and enrolled clients, and to improve the delivery
607 of services implement the iBudget system to serve eligible,
608 enrolled clients through the home and community-based services
609 Medicaid waiver program and the Consumer-Directed Care Plus
610 Program.
611 (3) The agency shall transition all eligible, enrolled
612 clients to the iBudget system. The agency may gradually phase in
613 the iBudget system.
614 (a) While the agency phases in the iBudget system, the
615 agency may continue to serve eligible, enrolled clients under
616 the four-tiered waiver system established under s. 393.065 while
617 those clients await transitioning to the iBudget system.
618 (b) The agency shall design the phase-in process to ensure
619 that a client does not experience more than one-half of any
620 expected overall increase or decrease to his or her existing
621 annualized cost plan during the first year that the client is
622 provided an iBudget due solely to the transition to the iBudget
623 system.
624 (3)(4) A client must use all available services authorized
625 under the state Medicaid plan, school-based services, private
626 insurance and other benefits, and any other resources that may
627 be available to the client before using funds from his or her
628 iBudget to pay for support and services.
629 (4)(5) The service limitations in s. 393.0661(3)(f)1., 2.,
630 and 3. do not apply to the iBudget system.
631 (5)(6) Rates for any or all services established under
632 rules of the Agency for Health Care Administration must shall be
633 designated as the maximum rather than a fixed amount for
634 individuals who receive an iBudget, except for services
635 specifically identified in those rules that the agency
636 determines are not appropriate for negotiation, which may
637 include, but are not limited to, residential habilitation
638 services.
639 (6)(7) The agency shall ensure that clients and caregivers
640 have access to training and education that to inform them about
641 the iBudget system and enhance their ability for self-direction.
642 Such training and education must shall be offered in a variety
643 of formats; and at a minimum, must shall address the policies
644 and processes of the iBudget system and; the roles and
645 responsibilities of consumers, caregivers, waiver support
646 coordinators, providers, and the agency; must provide;
647 information available to help the client make decisions
648 regarding the iBudget system; and must provide examples of
649 support and resources available in the community.
650 (7)(8) The agency shall collect data to evaluate the
651 implementation and outcomes of the iBudget system.
652 (8)(9) The agency and the Agency for Health Care
653 Administration may adopt rules specifying the allocation
654 algorithm and methodology; criteria and processes for clients to
655 access reserved funds for extraordinary needs, temporarily or
656 permanently changed needs, and one-time needs; and processes and
657 requirements for selection and review of services, development
658 of support and cost plans, and management of the iBudget system
659 as needed to administer this section.
660 Section 6. Section 393.0663, Florida Statutes, is created
661 to read:
662 393.0663 The Arc Dental Program.—
663 (1) The Legislature finds that many individuals with
664 intellectual or developmental disabilities in this state are in
665 need of dental treatment and that such individuals often lack
666 access to such services. The Legislature further finds that The
667 Arc of Florida, a not-for-profit organization that maintains
668 programs to assist in the delivery of needed services to
669 individuals with intellectual or developmental disabilities,
670 operates The Arc of Florida Dental Program to provide dental
671 services to such individuals. Since the 2012-2013 fiscal year,
672 the Legislature has appropriated general revenue funds to the
673 organization to allow it to recruit 180 dental practices to
674 provide dental services to hundreds of individuals with
675 intellectual or developmental disabilities. Such services
676 include X-rays, cleanings, fluoride treatments, fillings, root
677 canals, crowns, extractions, and dentures. The Legislature finds
678 that it is in the public interest to establish a program to
679 assist The Arc of Florida in providing dental services to
680 individuals with intellectual or developmental disabilities.
681 (2) The Arc Dental Program is established in the Agency for
682 Persons with Disabilities. The agency shall enter into a
683 memorandum of agreement with and provide assistance to The Arc
684 of Florida in operating and expanding The Arc of Florida Dental
685 Program. The memorandum of agreement entered into between the
686 agency and The Arc of Florida shall require quantifiable,
687 measurable, and verifiable units of deliverables and require The
688 Arc of Florida to submit an annual accounting of the funding
689 allocated by the agency.
690 (3) Beginning January 1, 2018, and each January 1
691 thereafter, the agency shall submit a report to the Governor,
692 the President of the Senate, and the Speaker of the House of
693 Representatives which summarizes contract performance by The Arc
694 of Florida for the previous fiscal year.
695 (4) Implementation of the Arc Dental Program is contingent
696 upon appropriation.
697 Section 7. Section 393.0679, Florida Statutes, is created
698 to read:
699 393.0679 Utilization review.—The agency shall conduct
700 utilization review activities in intermediate care facilities
701 for individuals with developmental disabilities, both public and
702 private, as necessary to meet the requirements of the approved
703 Medicaid state plan and federal law, and such facilities shall
704 comply with any requests for information and documentation made
705 by the agency and permit any agency inspections in connection
706 with such activities.
707 Section 8. Subsection (1), paragraphs (a) and (b) of
708 subsection (4), paragraphs (b), (e), (f), (g), and (h) of
709 subsection (5), subsection (6), paragraph (d) of subsection (7),
710 subsection (10), and paragraph (b) of subsection (12) of section
711 393.11, Florida Statutes, are amended, and subsection (14) is
712 added to that section, to read:
713 393.11 Involuntary admission to residential services.—
714 (1) JURISDICTION.—If a person has an intellectual
715 disability or autism and requires involuntary admission to
716 residential services provided by the agency, the circuit court
717 of the county in which the person resides has jurisdiction to
718 conduct a hearing and enter an order involuntarily admitting the
719 person in order for the person to receive the care, treatment,
720 habilitation, and rehabilitation that the person needs. For the
721 purpose of identifying intellectual disability or autism,
722 diagnostic capability shall be established by the agency. Except
723 as otherwise specified, the proceedings under this section are
724 governed by the Florida Rules of Civil Procedure.
725 (4) AGENCY PARTICIPATION.—
726 (a) Upon receiving the petition, the court shall
727 immediately order the developmental services program of the
728 agency to examine the person being considered for involuntary
729 admission to residential services.
730 (b) Following examination, the agency shall file a written
731 report with the court at least 10 working days before the date
732 of the hearing. The report must be served on the petitioner, the
733 person who has the intellectual disability or autism, and the
734 person’s attorney at the time the report is filed with the
735 court.
736 (5) EXAMINING COMMITTEE.—
737 (b) The court shall appoint at least three disinterested
738 experts who have demonstrated to the court an expertise in the
739 diagnosis, evaluation, and treatment of persons who have
740 intellectual disabilities or autism. The committee must include
741 at least one licensed and qualified physician, one licensed and
742 qualified psychologist, and one qualified professional who, at a
743 minimum, has a master’s degree in social work, special
744 education, or vocational rehabilitation counseling, to examine
745 the person and to testify at the hearing on the involuntary
746 admission to residential services.
747 (e) The committee shall prepare a written report for the
748 court. The report must explicitly document the extent that the
749 person meets the criteria for involuntary admission. The report,
750 and expert testimony, must include, but not be limited to:
751 1. The degree of the person’s intellectual disability or
752 autism and whether, using diagnostic capabilities established by
753 the agency, the person is eligible for agency services;
754 2. Whether, because of the person’s degree of intellectual
755 disability or autism, the person:
756 a. Lacks sufficient capacity to give express and informed
757 consent to a voluntary application for services pursuant to s.
758 393.065 and lacks basic survival and self-care skills to such a
759 degree that close supervision and habilitation in a residential
760 setting are necessary and, if not provided, would result in a
761 threat of substantial harm to the person’s well-being; or
762 b. Lacks basic survival and self-care skills to such a
763 degree that close supervision and habilitation in a residential
764 setting is necessary and if not provided would result in a real
765 and present threat of substantial harm to the person’s well
766 being; or
767 b.c. Is likely to physically injure others if allowed to
768 remain at liberty.
769 3. The purpose to be served by residential care;
770 4. A recommendation on the type of residential placement
771 which would be the most appropriate and least restrictive for
772 the person; and
773 5. The appropriate care, habilitation, and treatment.
774 (f) The committee shall file the report with the court at
775 least 10 working days before the date of the hearing. The report
776 must be served on the petitioner, the person who has the
777 intellectual disability or autism, the person’s attorney at the
778 time the report is filed with the court, and the agency.
779 (g) Members of the examining committee shall receive a
780 reasonable fee to be determined by the court. The fees shall be
781 paid from the general revenue fund of the county in which the
782 person who has the intellectual disability or autism resided
783 when the petition was filed.
784 (h) The agency shall develop and prescribe by rule one or
785 more standard forms to be used as a guide for members of the
786 examining committee.
787 (6) COUNSEL; GUARDIAN AD LITEM.—
788 (a) The person who has the intellectual disability or
789 autism must be represented by counsel at all stages of the
790 judicial proceeding. If the person is indigent and cannot afford
791 counsel, the court shall appoint a public defender at least 20
792 working days before the scheduled hearing. The person’s counsel
793 shall have full access to the records of the service provider
794 and the agency. In all cases, the attorney shall represent the
795 rights and legal interests of the person, regardless of who
796 initiates the proceedings or pays the attorney attorney’s fee.
797 (b) If the attorney, during the course of his or her
798 representation, reasonably believes that the person who has the
799 intellectual disability or autism cannot adequately act in his
800 or her own interest, the attorney may seek the appointment of a
801 guardian ad litem. A prior finding of incompetency is not
802 required before a guardian ad litem is appointed pursuant to
803 this section.
804 (7) HEARING.—
805 (d) The person who has the intellectual disability or
806 autism must be physically present throughout the entire
807 proceeding. If the person’s attorney believes that the person’s
808 presence at the hearing is not in his or her best interest, the
809 person’s presence may be waived once the court has seen the
810 person and the hearing has commenced.
811 (10) COMPETENCY.—
812 (a) The issue of competency is separate and distinct from a
813 determination of the appropriateness of involuntary admission to
814 residential services due to intellectual disability or autism.
815 (b) The issue of the competency of a person who has an
816 intellectual disability or autism for purposes of assigning
817 guardianship shall be determined in a separate proceeding
818 according to the procedures and requirements of chapter 744. The
819 issue of the competency of a person who has an intellectual
820 disability or autism for purposes of determining whether the
821 person is competent to proceed in a criminal trial shall be
822 determined in accordance with chapter 916.
823 (12) APPEAL.—
824 (b) The filing of an appeal by the person who has an
825 intellectual disability or autism stays admission of the person
826 into residential care. The stay remains in effect during the
827 pendency of all review proceedings in Florida courts until a
828 mandate issues.
829 (14) REVIEW OF CONTINUED INVOLUNTARY ADMISSION TO
830 RESIDENTIAL SERVICES.—
831 (a) If a person is involuntarily admitted to residential
832 services provided by the agency, the agency shall employ or, if
833 necessary, contract with a qualified evaluator to conduct a
834 review annually, unless otherwise ordered, to determine the
835 appropriateness of the person’s continued involuntary admission
836 to residential services based on the criteria in paragraph
837 (8)(b). The review must include an assessment of the most
838 appropriate and least restrictive type of residential placement
839 for the person.
840 (b) A placement resulting from an involuntary admission to
841 residential services must be reviewed by the court at a hearing
842 annually, unless a shorter review period is ordered. The agency
843 shall provide to the court the completed reviews by the
844 qualified evaluator. The review hearing must determine whether
845 the person continues to meet the criteria in paragraph (8)(b)
846 and, if so, whether the person still requires involuntary
847 placement in a residential setting and whether the person is
848 receiving adequate care, treatment, habilitation, and
849 rehabilitation in the residential setting.
850 (c) The agency shall provide a copy of the annual review
851 and reasonable notice of the hearing to the appropriate state’s
852 attorney, if applicable, and the person’s attorney and guardian,
853 or guardian advocate if one is appointed.
854 (d) As used in this subsection, the term “qualified
855 evaluator” means a psychiatrist licensed under chapter 458 or
856 chapter 459, or a psychologist licensed under chapter 490, who
857 has demonstrated to the court an expertise in the diagnosis,
858 evaluation, and treatment of persons with intellectual
859 disabilities.
860 Section 9. Effective June 30, 2016, or, if this act fails
861 to become a law until after that date, effective upon becoming a
862 law and operating retroactively to June 30, 2016, sections 24
863 and 26 of chapter 2015-222, Laws of Florida, are repealed.
864 Section 10. Subsection (15) of section 393.067, Florida
865 Statutes, is reenacted to read:
866 393.067 Facility licensure.—
867 (15) The agency is not required to contract with facilities
868 licensed pursuant to this chapter.
869 Section 11. Section 393.18, Florida Statutes, is reenacted
870 and amended to read:
871 393.18 Comprehensive transitional education program.—A
872 comprehensive transitional education program serves individuals
873 is a group of jointly operating centers or units, the collective
874 purpose of which is to provide a sequential series of
875 educational care, training, treatment, habilitation, and
876 rehabilitation services to persons who have developmental
877 disabilities, and who have severe or moderate maladaptive
878 behaviors, severe maladaptive behaviors and co-occurring complex
879 medical conditions, or a dual diagnosis of developmental
880 disability and mental illness. However, this section does not
881 require such programs to provide services only to persons with
882 developmental disabilities. All such Services provided by the
883 program must shall be temporary in nature and delivered in a
884 manner designed to achieve structured residential setting,
885 having the primary goal of incorporating the principles
886 principle of self-determination and person-centered planning to
887 transition individuals to the most appropriate, least
888 restrictive community living option of their choice which is not
889 operated as a in establishing permanent residence for persons
890 with maladaptive behaviors in facilities that are not associated
891 with the comprehensive transitional education program. The
892 supervisor of the clinical director of the program licensee must
893 hold a doctorate degree with a primary focus in behavior
894 analysis from an accredited university, be a certified behavior
895 analyst pursuant to s. 393.17, and have at least 1 year of
896 experience in providing behavior analysis services for
897 individuals with developmental disabilities. The staff must
898 shall include behavior analysts and teachers, as appropriate,
899 who shall be available to provide services in each component
900 center or unit of the program. A behavior analyst must be
901 certified pursuant to s. 393.17.
902 (1) Comprehensive transitional education programs must
903 shall include a minimum of two component centers or units, one
904 of which shall be an intensive treatment and educational center
905 or a transitional training and educational center, which
906 provides services to persons with maladaptive behaviors in the
907 following components sequential order:
908 (a) Intensive treatment and education educational center.
909 This component provides is a self-contained residential unit
910 providing intensive behavioral and educational programming for
911 individuals whose conditions persons with severe maladaptive
912 behaviors whose behaviors preclude placement in a less
913 restrictive environment due to the threat of danger or injury to
914 themselves or others. Continuous-shift staff are shall be
915 required for this component.
916 (b) Intensive Transitional training and education
917 educational center.—This component provides is a residential
918 unit for persons with moderate maladaptive behaviors providing
919 concentrated psychological and educational programming that
920 emphasizes a transition toward a less restrictive environment.
921 Continuous-shift staff are shall be required for this component.
922 (c) Community Transition residence.—This component provides
923 is a residential center providing educational programs and any
924 support services, training, and care that are needed to assist
925 persons with maladaptive behaviors to avoid regression to more
926 restrictive environments while preparing individuals them for
927 more independent living. Continuous-shift staff are shall be
928 required for this component.
929 (d) Alternative living center.—This component is a
930 residential unit providing an educational and family living
931 environment for persons with maladaptive behaviors in a
932 moderately unrestricted setting. Residential staff shall be
933 required for this component.
934 (e) Independent living education center.—This component is
935 a facility providing a family living environment for persons
936 with maladaptive behaviors in a largely unrestricted setting and
937 includes education and monitoring that is appropriate to support
938 the development of independent living skills.
939 (2) Components of a comprehensive transitional education
940 program are subject to the license issued under s. 393.067 to a
941 comprehensive transitional education program and may be located
942 on a single site or multiple sites as long as such components
943 are located within the same agency region.
944 (3) Comprehensive transitional education programs shall
945 develop individual education plans for each school-aged person
946 with maladaptive behaviors, severe maladaptive behaviors and co
947 occurring complex medical conditions, or a dual diagnosis of
948 development disability and mental illness who receives services
949 from the program. Each individual education plan shall be
950 developed in accordance with the criteria specified in 20 U.S.C.
951 ss. 401 et seq., and 34 C.F.R. part 300. To the extent possible,
952 educational components of the program, including individual
953 education plans, must be integrated with the referring school
954 district of each school-aged resident.
955 (4) For comprehensive transitional education programs, The
956 total number of persons in a comprehensive transitional
957 education program residents who are being provided with services
958 may not in any instance exceed the licensed capacity of 120
959 residents, and each residential unit within the component
960 centers of a the program authorized under this section may not
961 in any instance exceed 15 residents. However, a program that was
962 authorized to operate residential units with more than 15
963 residents before July 1, 2015, may continue to operate such
964 units.
965 (5) Any licensee that has executed a settlement agreement
966 with the agency which is enforceable by the court must comply
967 with the terms of the settlement agreement or be subject to
968 grounds for discipline as provided by law and rule.
969 (6) Beginning July 1, 2016, the agency may approve the
970 proposed admission or readmission of individuals into a
971 comprehensive transitional education program for up to 2 years,
972 subject to a specific review process. The agency may allow an
973 individual to live in this setting for a longer period of time
974 if, after a clinical review is conducted by the agency, it is
975 determined that remaining in the program for a longer period of
976 time is in the best interest of the individual.
977 Section 12. Subsection (2) of section 393.501, Florida
978 Statutes, is amended to read:
979 393.501 Rulemaking.—
980 (2) Such rules must address the number of facilities on a
981 single lot or on adjacent lots, except that there is no
982 restriction on the number of facilities designated as community
983 residential homes located within a planned residential community
984 as those terms are defined in s. 419.001(1). In adopting rules,
985 comprehensive transitional education programs an alternative
986 living center and an independent living education center, as
987 described in s. 393.18, are subject to s. 419.001, except that
988 such program centers are exempt from the 1,000-foot-radius
989 requirement of s. 419.001(2) if:
990 (a) The program centers are located on a site zoned in a
991 manner that permits all the components of a comprehensive
992 transitional education program center to be located on the site;
993 or
994 (b) There are no more than three such program centers
995 within a radius of 1,000 feet.
996 Section 13. Paragraph (b) of subsection (1) of section
997 383.141, Florida Statutes, is amended to read:
998 383.141 Prenatally diagnosed conditions; patient to be
999 provided information; definitions; information clearinghouse;
1000 advisory council.—
1001 (1) As used in this section, the term:
1002 (b) “Developmental disability” includes Down syndrome and
1003 other developmental disabilities defined by s. 393.063(12) s.
1004 393.063(9).
1005 Section 14. Paragraph (d) of subsection (2) of section
1006 1002.385, Florida Statutes, is amended to read:
1007 1002.385 Florida personal learning scholarship accounts.—
1008 (2) DEFINITIONS.—As used in this section, the term:
1009 (d) “Disability” means, for a 3- or 4-year-old child or for
1010 a student in kindergarten to grade 12, autism spectrum disorder,
1011 as defined in the Diagnostic and Statistical Manual of Mental
1012 Disorders, Fifth Edition, published by the American Psychiatric
1013 Association; cerebral palsy, as defined in s. 393.063(6) s.
1014 393.063(4); Down syndrome, as defined in s. 393.063(15) s.
1015 393.063(13); an intellectual disability, as defined in s.
1016 393.063(24) s. 393.063(21); Prader-Willi syndrome, as defined in
1017 s. 393.063(28) s. 393.063(25); or spina bifida, as defined in s.
1018 393.063(39) s. 393.063(36); for a student in kindergarten, being
1019 a high-risk child, as defined in s. 393.063(23)(a) s.
1020 393.063(20)(a); muscular dystrophy; and Williams syndrome.
1021 Section 15. Except as otherwise expressly provided in this
1022 act and except for this section, which shall take effect upon
1023 this act becoming a law, this act shall take effect July 1,
1024 2016.