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Senate Bill 1280

Senate Bill sb1280c2

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    Florida Senate - 2004                    CS for CS for SB 1280

    By the Committees on Appropriations; Children and Families;
    and Senators Peaden and Lynn




    309-2682-04

  1                      A bill to be entitled

  2         An act relating to the Department of Children

  3         and Family Services; amending s. 20.19, F.S.;

  4         removing the developmental disabilities program

  5         from the Department of Children and Family

  6         Services; creating s. 20.197, F.S.;

  7         establishing the Agency for Persons with

  8         Disabilities for the purpose of providing

  9         services to persons with developmental

10         disabilities, including institutional services;

11         directing the agency to execute interagency

12         agreements with the Agency for Health Care

13         Administration for the financial management of

14         the Medicaid waivers and the Department of

15         Children and Family Services for administrative

16         support; amending s. 393.063, F.S.; updating

17         definitions and deleting obsolete definitions;

18         amending  s. 393.064, F.S.; deleting

19         requirements that the agency's legislative

20         budget request include funding for prevention;

21         amending s. 393.0655, F.S.; requiring Level 2

22         screening for specified service providers;

23         amending s. 393.066, F.S.; removing requirement

24         that services be administered and approved by

25         the districts; modifying a requirement to

26         provide certain services; deleting a

27         requirement for a 5-year plan relating to

28         community-based services; adding a requirement

29         to assist clients in gaining employment;

30         repealing obsolete requirement authorizing the

31         state to lease or construct residential

                                  1

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    Florida Senate - 2004                    CS for CS for SB 1280
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 1         facilities; deleting authorization to adopt

 2         rules ensuring compliance with federal rules;

 3         amending s. 393.0661, F.S.; deleting an

 4         obsolete provision; modifying provisions

 5         relating to an assessment instrument; adding

 6         requirements for adoption of rate

 7         methodologies; amending s. 393.068, F.S.;

 8         making service provision subject to available

 9         resources; updating list of services to be

10         provided; deleting provision referring to

11         5-year plans; amending s. 393.0695, F.S.;

12         requiring in-home subsidy amounts to be

13         reassessed annually; amending s. 393.11, F.S.;

14         deleting provisions referring to districts,

15         department programs, and the nonexistent

16         Department of Labor and Employment Security;

17         amending s. 393.13, F.S.; deleting obsolete

18         provisions; adding legislative intent relating

19         to reducing the use of sheltered workshops;

20         amending s. 393.17, F.S.; authorizing the

21         agency to contract for the certification of

22         behavioral analysts; deleting provisions

23         relating to a certification program and

24         provisions allowing fees; amending s. 393.22,

25         F.S.; deleting prohibition preventing transfer

26         of funds and ensuring financial commitment for

27         specified developmental conditions; amending s.

28         393.502, F.S.; removing reference to districts;

29         deleting a provision permitting appointment of

30         family care council members if the Governor

31         does not act; amending ss. 408.301, 408.302,

                                  2

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 1         F.S.; amending legislative intent to add the

 2         Agency for Persons with Disabilities and the

 3         Department of Elderly Affairs as agencies that

 4         the Agency for Health Care Administration must

 5         enter into interagency agreement with regarding

 6         persons with special needs; amending s.

 7         409.906, F.S.; clarifying powers of the Agency

 8         for Health Care Administration with respect to

 9         limiting coverage for certain services;

10         repealing s. 393.14, F.S.; requiring a

11         multiyear plan; repealing s. 393.165, F.S.,

12         relating to ICF/DDs; repealing s. 393.166,

13         F.S., relating to homes for special services;

14         repealing s. 393.505, F.S., relating to

15         comprehensive day treatment service projects;

16         transferring programs and institutions relating

17         to developmental disabilities from the

18         Department of Children and Family Services to

19         the Agency for Persons with Disabilities;

20         providing duties of those agencies as well as

21         the Department of Management Services;

22         providing for substitution of parties in

23         administrative and judicial proceedings;

24         providing duties of the Office of Program

25         Policy Analysis and Government Accountability;

26         providing for a report; amending ss. 92.53,

27         397.405, 400.464, 409.906, 419.001, 914.16,

28         914.17, 918.16, F.S.; conforming

29         cross-references; amending s. 393.067, F.S.;

30         conforming to changes made by the act;

31         providing that a license issued to a

                                  3

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    Florida Senate - 2004                    CS for CS for SB 1280
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 1         residential facility or a comprehensive

 2         transitional education program does not create

 3         a property right in the recipient; amending ss.

 4         393.0641, 393.065, 393.0651, 393.0673,

 5         393.0675, 393.0678, 393.071, 393.075, 393.115,

 6         393.12, 393.125, 393.15, 393.501, 393.503,

 7         393.506, F.S.; creating ss. 393.135, 394.4593,

 8         and 916.1075, F.S.; defining the terms

 9         "employee," "sexual activity," and "sexual

10         misconduct"; providing that it is a

11         second-degree felony for an employee to engage

12         in sexual misconduct with certain

13         developmentally disabled clients, certain

14         mental health patients, or certain forensic

15         clients; providing certain exceptions;

16         requiring certain employees to report sexual

17         misconduct to the central abuse hotline of the

18         department and to law enforcement; providing

19         for notification to the inspector general of

20         the department or agency; providing that it is

21         a first-degree misdemeanor to knowingly and

22         willfully fail to make a report as required, or

23         to prevent another from doing so, or to submit

24         inaccurate or untruthful information; providing

25         that it is a third-degree felony to coerce or

26         threaten another person to alter testimony or a

27         report with respect to an incident of sexual

28         misconduct; providing criminal penalties;

29         providing that the penalties are in addition to

30         other actions provided in law; amending s.

31         435.03, F.S.; expanding level 1 screening

                                  4

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    Florida Senate - 2004                    CS for CS for SB 1280
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 1         standards to include criminal offenses related

 2         to sexual misconduct with certain

 3         developmentally disabled clients, mental health

 4         patients, or forensic clients and the reporting

 5         of such sexual misconduct; amending s. 435.04,

 6         F.S.; expanding level 2 screening standards to

 7         include the offenses related to sexual

 8         misconduct with certain developmentally

 9         disabled clients, mental health patients, or

10         forensic clients and the reporting of such

11         sexual misconduct; amending s. 943.0585, F.S.,

12         relating to court-ordered expunction of

13         criminal history records, for the purpose of

14         incorporating the amendment to s. 943.059,

15         F.S., in a reference thereto; providing that

16         certain criminal history records relating to

17         sexual misconduct with developmentally disabled

18         clients, mental health patients, or forensic

19         clients, or the reporting of such sexual

20         misconduct, shall not be expunged; providing

21         that the application for eligibility for

22         expunction certify that the criminal history

23         record does not relate to an offense involving

24         sexual misconduct with certain developmentally

25         disabled clients, mental health patients, or

26         forensic clients, or the reporting of such

27         sexual misconduct; conforming cross-references;

28         amending s. 943.059, F.S., relating to

29         court-ordered sealing of criminal history

30         records, for the purpose of incorporating the

31         amendment to s. 943.0585, F.S., in a reference

                                  5

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    Florida Senate - 2004                    CS for CS for SB 1280
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 1         thereto; providing that certain criminal

 2         history records relating to sexual misconduct

 3         with developmentally disabled clients, mental

 4         health patients, or forensic clients, or the

 5         reporting of such sexual misconduct, shall not

 6         be sealed; providing that the application for

 7         eligibility for sealing certify that the

 8         criminal history record does not relate to an

 9         offense involving sexual misconduct with

10         certain developmentally disabled clients,

11         mental health patients, or forensic clients, or

12         the reporting of such sexual misconduct;

13         conforming cross-references; authorizing the

14         Department of Children and Family Services'

15         Economic Self-Sufficiency Services Program

16         Office to provide the eligibility determination

17         function through department staff or through

18         contract; providing restrictions; conforming to

19         the changes made by the act; providing an

20         effective date.

21  

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

23  

24         Section 1.  Paragraph (b) of subsection (4) of section

25  20.19, Florida Statutes, is amended to read:

26         20.19  Department of Children and Family

27  Services.--There is created a Department of Children and

28  Family Services.

29         (4)  PROGRAM OFFICES AND SUPPORT OFFICES.--

30         (b)  The following program offices are established:

31         1.  Adult Services.

                                  6

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 1         2.  Child Care Services.

 2         3.  Domestic Violence Developmental Disabilities.

 3         4.  Economic Self-Sufficiency Services.

 4         5.  Family Safety.

 5         6.  Mental Health.

 6         7.  Refugee Services.

 7         8.  Substance Abuse.

 8         Section 2.  Section 20.197, Florida Statutes, is

 9  created to read:

10         20.197  Agency for Persons with Disabilities.--There is

11  created the Agency for Persons with Disabilities, housed

12  within the Department of Children and Family Services for

13  administrative purposes only. The agency shall be a separate

14  budget entity not subject to control, supervision, or

15  direction by the Department of Children and Family Services in

16  any manner, including, but not limited to, personnel,

17  purchasing, transactions involving real or personal property,

18  and budgetary matters.

19         (1)  The director of the agency shall be the agency

20  head for all purposes and shall be appointed by the Governor

21  and serve at the pleasure of the Governor. The director shall

22  administer the affairs of the agency and establish

23  administrative units as needed and may, within available

24  resources, employ assistants, professional staff, and other

25  employees as necessary to discharge the powers and duties of

26  the agency.

27         (2)  The agency shall be responsible for the provision

28  of all services provided to persons with developmental

29  disabilities pursuant to chapter 393, including the operation

30  of all state institutional programs and the programmatic

31  

                                  7

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 1  management of Medicaid waivers established to provide services

 2  to persons with developmental disabilities.

 3         (3)  The agency shall engage in such other

 4  administrative activities as are deemed necessary to

 5  effectively and efficiently address the needs of the agency's

 6  clients.

 7         (4)  The agency shall enter into an interagency

 8  agreement that delineates the responsibilities of the Agency

 9  for Health Care Administration for the following:

10         (a)  The terms, and execution of contracts with

11  Medicaid providers for the provision of services provided

12  through Medicaid, including federally approved waiver

13  programs.

14         (b)  Billing, payment, and reconciliation of claims for

15  Medicaid services reimbursed by the agency.

16         (c)  The implementation of utilization management

17  measures, including the prior authorization of services plans

18  and the streamlining and consolidation of waivers services, to

19  ensure the cost-effective provision of needed Medicaid

20  services and to maximize the number of persons with access to

21  such services.

22         (d)  A system of approving each client's plan of care

23  to ensure that the services on the plan of care are those that

24  without which the client would require the services of an

25  intermediate care facility for the developmentally disabled.

26         Section 3.  Section 393.063, Florida Statutes, is

27  amended to read:

28         393.063  Definitions.--For the purposes of this

29  chapter:

30         (1)  "Active treatment" means the provision of services

31  by an interdisciplinary team necessary to maximize a client's

                                  8

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    Florida Senate - 2004                    CS for CS for SB 1280
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 1  individual independence or prevent regression or loss of

 2  functional status.

 3         (1)(2)  "Agency" means the Agency for Persons with

 4  Disabilities Health Care Administration.

 5         (2)(3)  "Autism" means a pervasive, neurologically

 6  based developmental disability of extended duration which

 7  causes severe learning, communication, and behavior disorders

 8  with age of onset during infancy or childhood. Individuals

 9  with autism exhibit impairment in reciprocal social

10  interaction, impairment in verbal and nonverbal communication

11  and imaginative ability, and a markedly restricted repertoire

12  of activities and interests.

13         (3)(4)  "Cerebral palsy" means a group of disabling

14  symptoms of extended duration which results from damage to the

15  developing brain that may occur before, during, or after birth

16  and that results in the loss or impairment of control over

17  voluntary muscles.  For the purposes of this definition,

18  cerebral palsy does not include those symptoms or impairments

19  resulting solely from a stroke.

20         (4)(5)  "Client" means any person determined eligible

21  by the agency department for developmental services under this

22  chapter.

23         (5)(6)  "Client advocate" means a friend or relative of

24  the client, or of the client's immediate family, who advocates

25  for the best interests of the client in any proceedings under

26  this chapter in which the client or his or her family has the

27  right or duty to participate.

28         (6)(7)  "Comprehensive assessment" means the process

29  which is used to determine eligibility for developmental

30  services under this chapter and develop the family or

31  individual support plan. The term includes review and

                                  9

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    Florida Senate - 2004                    CS for CS for SB 1280
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 1  evaluation of information provided by the applicant, the

 2  individual receiving supports or services through

 3  developmental services, or the family, and others providing

 4  supports or services to the individual or family, as well as

 5  the use of formal assessment instruments.

 6         (7)(8)  "Comprehensive transitional education program"

 7  means a group of jointly operating centers or units, the

 8  collective purpose of which is to provide a sequential series

 9  of educational care, training, treatment, habilitation, and

10  rehabilitation services to persons who have developmental

11  disabilities, as defined in subsection (12), and who have

12  severe or moderate maladaptive behaviors.  However, nothing in

13  this subsection shall require such comprehensive transitional

14  education programs to provide services only to persons with

15  developmental disabilities, as defined in subsection (12). All

16  such services shall be temporary in nature and delivered in a

17  structured residential setting with the primary goal of

18  incorporating the normalization principle to establish

19  permanent residence for persons with maladaptive behaviors in

20  facilities not associated with the comprehensive transitional

21  education program.  The staff shall include psychologists and

22  teachers who, and such staff personnel shall be available to

23  provide services in each component center or unit of the

24  program. The psychologists shall be individuals who are

25  licensed in this state and certified as behavior analysts in

26  this state, or individuals who meet the professional

27  requirements established by the department for district

28  behavior analysts and are certified as behavior analysts

29  pursuant to s. 393.17 in this state.

30         (a)  Comprehensive transitional education programs

31  shall include a minimum of two component centers or units, as

                                  10

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 1  defined in this paragraph, one of which shall be either an

 2  intensive treatment and educational center or a transitional

 3  training and educational center, which provide services to

 4  persons with maladaptive behaviors in the following sequential

 5  order:

 6         1.  Intensive treatment and educational center.  This

 7  component is a self-contained residential unit providing

 8  intensive psychological and educational programming for

 9  persons with severe maladaptive behaviors, whose behaviors

10  preclude placement in a less restrictive environment due to

11  the threat of danger or injury to themselves or others.

12         2.  Transitional training and educational center.  This

13  component is a residential unit for persons with moderate

14  maladaptive behaviors, providing concentrated psychological

15  and educational programming emphasizing a transition toward a

16  less restrictive environment.

17         3.  Community transition residence.  This component is

18  a residential center providing educational programs and such

19  support services, training, and care as are needed to assist

20  persons with maladaptive behaviors to avoid regression to more

21  restrictive environments while preparing them for more

22  independent living. Continuous-shift staff shall be required

23  for this component.

24         4.  Alternative living center.  This component is a

25  residential unit providing an educational and family living

26  environment for persons with maladaptive behaviors, in a

27  moderately unrestricted setting.  Residential staff shall be

28  required for this component.

29         5.  Independent living education center.  This

30  component is a facility providing a family living environment

31  for persons with maladaptive behaviors, in a largely

                                  11

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 1  unrestricted setting which includes education and monitoring

 2  appropriate to support the development of independent living

 3  skills by the students.

 4         (b)  Centers or units that are components of a

 5  comprehensive transitional education program are subject to

 6  the license issued to the comprehensive transitional education

 7  program and may be located on either single or multiple sites.

 8         (c)  Comprehensive transitional education programs

 9  shall develop individual education plans for each person with

10  maladaptive behaviors who receives services therein.  Such

11  individual education plans shall be developed in accordance

12  with the criteria specified included in Pub. L. No. 94-142, 20

13  U.S.C. ss. 401 et seq., and 34 C.F.R. part 300.

14         (d)  In no instance shall the total number of persons

15  with maladaptive behaviors being provided services in a

16  comprehensive transitional education program exceed 120.

17         (e)  This subsection shall authorize licensure for

18  comprehensive transitional education programs which by July 1,

19  1989:

20         1.  Are in actual operation; or

21         2.  Own a fee simple interest in real property for

22  which a county or city government has approved zoning allowing

23  for the placement of the facilities described in this

24  subsection, and have registered an intent with the department

25  to operate a comprehensive transitional education program.

26  However, nothing shall prohibit the assignment by such a

27  registrant to another entity at a different site within the

28  state, so long as there is compliance with all criteria of the

29  comprehensive transitional education program and local zoning

30  requirements and provided that each residential facility

31  within the component centers or units of the program

                                  12

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 1  authorized under this subparagraph shall not exceed a capacity

 2  of 15 persons.

 3         (9)  "Day service" means the care, protection, and

 4  supervision of a client for a period of less than 24 hours a

 5  day on a regular basis which supplements for the client, in

 6  accordance with his or her individual needs, daily care,

 7  enrichment opportunities, and health supervision.

 8         (8)(10)  "Day habilitation facility" means any

 9  nonresidential facility which provides day habilitation

10  services.

11         (9)  "Day habilitation service" means assistance with

12  the acquisition, retention, or improvement in self-help,

13  socialization, and adaptive skills which takes place in a

14  nonresidential setting, separate from the home or facility in

15  which the individual resides. Day habilitation services shall

16  focus on enabling the individual to attain or maintain his or

17  her maximum functional level and shall be coordinated with any

18  physical, occupational, or speech therapies listed in the plan

19  of care.

20         (11)  "Department" means the Department of Children and

21  Family Services.

22         (10)(12)  "Developmental disability" means a disorder

23  or syndrome that is attributable to retardation, cerebral

24  palsy, autism, spina bifida, or Prader-Willi syndrome and that

25  constitutes a substantial handicap that can reasonably be

26  expected to continue indefinitely.

27         (11)(13)  "Developmental disabilities services

28  institution" means a state-owned and state-operated facility,

29  formerly known as a "Sunland Center," providing for the care,

30  habilitation, and rehabilitation of clients with developmental

31  disabilities.

                                  13

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 1         (14)  "Developmental training facility" means any

 2  nonresidential facility which provides basic training and

 3  habilitation to clients.

 4         (12)(15)  "Direct service provider," also known as

 5  "caregiver" in chapters 39 and 415 or "caretaker" in

 6  provisions relating to employment security checks, means a

 7  person 18 years of age or older who has direct contact with

 8  individuals with developmental disabilities, or has access to

 9  a client's living areas or to a client's funds or personal

10  property, and is not a relative of such unrelated to the

11  individuals with developmental disabilities.

12         (a)  The term "direct service provider" also includes

13  any person, including members of the direct service provider's

14  family, over 12 years of age who resides with the direct

15  service provider when:

16         1.  The direct service provider provides supports or

17  services in his or her residence;

18         2.  The direct service provider provides supports or

19  services in a facility adjacent to his or her residence; or

20         3.  The person residing with the direct service

21  provider has direct contact with the individual with

22  developmental disabilities during the hours of provision of

23  supports or services.

24         (b)  Persons residing with the direct service provider,

25  including family members, who are between the ages of 12 years

26  and 18 years are not required to be fingerprinted, but shall

27  be screened for delinquency records.

28         (c)  A volunteer who assists on an intermittent basis

29  for less than 40 hours per month is not a direct service

30  provider for the purposes of screening if the volunteer is

31  

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 1  under the direct and constant supervision of persons who meet

 2  the personnel requirements of s. 393.0655.

 3         (d)  A physician, nurse, or other professional licensed

 4  and regulated by the Department of Business and Professional

 5  Regulation is not a direct service provider for the purposes

 6  of screening if the service he or she is providing to a client

 7  is within the scope of practice for which he or she is

 8  licensed.

 9         (e)  A person selected by the family or the individual

10  with developmental disabilities and paid by the family or the

11  individual to provide supports or services is not a direct

12  service provider for the purpose of screening.

13         (16)  "District" means a service district of the

14  department.

15         (13)(17)  "Domicile" means the place where a client

16  legally resides, which place is his or her permanent home.

17  Domicile may be established as provided in s. 222.17.

18  Domicile may not be established in Florida by a minor who has

19  no parent domiciled in Florida, or by a minor who has no legal

20  guardian domiciled in Florida, or by any alien not classified

21  as a resident alien.

22         (14)(18)  "Enclave" means a work station in public or

23  private business or industry where a small group of persons

24  with developmental disabilities is employed and receives

25  training and support services or follow-along services among

26  nonhandicapped workers.

27         (15)(19)  "Epilepsy" means a chronic brain disorder of

28  various causes which is characterized by recurrent seizures

29  due to excessive discharge of cerebral neurons.  When found

30  concurrently with retardation, autism, or cerebral palsy,

31  epilepsy is considered a secondary disability for which the

                                  15

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 1  client is eligible to receive services to ameliorate this

 2  condition pursuant according to the provisions of this

 3  chapter.

 4         (16)(20)  "Express and informed consent" means consent

 5  voluntarily given in writing with sufficient knowledge and

 6  comprehension of the subject matter involved to enable the

 7  person giving consent to make an understanding and enlightened

 8  decision without any element of force, fraud, deceit, duress,

 9  or other form of constraint or coercion.

10         (17)(21)  "Family care program" means the program

11  established in s. 393.068 an alternative to residential

12  placement, in which a direct service provider provides a home

13  for a client and assists him or her to the extent necessary

14  for the client to participate in normal activities and to meet

15  the demands of daily living. The program provides the support

16  needed by the client's family or caretaker to meet the

17  individual needs of the client.

18         (18)(22)  "Follow-along services" means those support

19  services which shall be provided to persons with developmental

20  disabilities in all supported employment programs and may

21  include, but are not limited to, family support, assistance in

22  meeting transportation and medical needs, employer

23  intervention, performance evaluation, advocacy, replacement,

24  retraining or promotional assistance, or other similar support

25  services.

26         (19)(23)  "Foster care facility" means a residential

27  facility which provides a family living environment including

28  supervision and care necessary to meet the physical,

29  emotional, and social needs of its residents. The capacity of

30  such a facility shall not be more than three residents.

31  

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 1         (20)(24)  "Group home facility" means a residential

 2  facility which provides a family living environment including

 3  supervision and care necessary to meet the physical,

 4  emotional, and social needs of its residents.  The capacity of

 5  such a facility shall be at least 4 residents but not more

 6  than 15 residents.  For the purposes of this chapter, group

 7  home facilities shall not be considered commercial

 8  enterprises.

 9         (21)(25)  "Guardian advocate" means a person appointed

10  by the circuit court to represent a person with developmental

11  disabilities in any proceedings brought pursuant to s. 393.12,

12  and excludes the use of the same term as applied to a guardian

13  advocate for mentally ill persons in chapter 394.

14         (22)(26)  "Habilitation" means the process by which a

15  client is assisted to acquire and maintain those life skills

16  which enable the client to cope more effectively with the

17  demands of his or her condition and environment and to raise

18  the level of his or her physical, mental, and social

19  efficiency. It includes, but is not limited to, programs of

20  formal structured education and treatment.

21         (23)(27)  "High-risk child" means, for the purposes of

22  this chapter, a child from birth to 5 years of age with one or

23  more of the following characteristics:

24         (a)  A developmental delay in cognition, language, or

25  physical development.

26         (b)  A child surviving a catastrophic infectious or

27  traumatic illness known to be associated with developmental

28  delay, when funds are specifically appropriated.

29         (c)  A child with a parent or guardian with

30  developmental disabilities who is developmentally disabled and

31  

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 1  who requires assistance in meeting the child's developmental

 2  needs.

 3         (d)  A child who has a physical or genetic anomaly

 4  associated with developmental disability.

 5         (24)(28)  "Intermediate care facility for the

 6  developmentally disabled" or "ICF/DD" means a residential

 7  facility licensed and certified pursuant to part XI of chapter

 8  400 in accordance with state law, and certified by the Federal

 9  Government pursuant to the Social Security Act, as a provider

10  of Medicaid services to persons who are developmentally

11  disabled. The capacity of such a facility shall not be more

12  than 120 clients.

13         (25)(29)  "Job coach" means a person who provides

14  employment-related training at a work site to individuals with

15  developmental disabilities.

16         (26)(30)  "Medical/dental services" means medically

17  necessary those services which are provided or ordered for a

18  client by a person licensed physician or dentist and includes

19  pursuant to the provisions of chapter 458, chapter 459, or

20  chapter 466.  Such services may include, but are not limited

21  to, prescription drugs, specialized therapies, nursing

22  supervision, hospitalization, dietary services, prosthetic

23  devices, surgery, specialized equipment and supplies, adaptive

24  equipment, and other services as required to prevent or

25  alleviate a medical or dental condition.

26         (27)(31)  "Mobile work crew" means a group of workers

27  employed by an agency that provides services outside the

28  agency, usually under service contracts.

29         (28)(32)  "Normalization principle" means the principle

30  of letting the client obtain an existence as close to the

31  normal as possible, making available to the client patterns

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 1  and conditions of everyday life which are as close as possible

 2  to the norm and patterns of the mainstream of society.

 3         (29)(33)  "Personal services" include, but are not

 4  limited to, such services as: individual assistance with or

 5  supervision of essential activities of daily living for

 6  self-care, including ambulation, bathing, dressing, eating,

 7  grooming, and toileting, and other similar services that which

 8  the agency department may define by rule. "Personal services"

 9  shall not be construed to mean the provision of medical,

10  nursing, dental, or mental health services by the staff of a

11  facility, except as provided in this chapter. In addition, an

12  emergency response device installed in the apartment or living

13  area of a resident shall not be classified as a personal

14  service.

15         (30)(34)  "Prader-Willi syndrome" means an inherited

16  condition typified by neonatal hypotonia with failure to

17  thrive, hyperphagia or an excessive drive to eat which leads

18  to obesity usually at 18 to 36 months of age, mild to moderate

19  retardation, hypogonadism, short stature, mild facial

20  dysmorphism, and a characteristic neurobehavior.

21         (31)(35)  "Reassessment" means a process which

22  periodically develops, through annual review and revision of a

23  client's family or individual support plan, a knowledgeable

24  statement of current needs and past development for each

25  client.

26         (36)  "Rehabilitation workshop facility" means a place

27  operated by a for-profit or nonprofit agency engaged in the

28  manufacture or production of products or provision of

29  services, which provides gainful rehabilitation to severely

30  handicapped persons until such persons can become employed or

31  

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 1  which provides gainful work to persons who are developmentally

 2  disabled.

 3         (32)(37)  "Relative" means an individual who is

 4  connected by affinity or consanguinity to the client and who

 5  is 18 years of age or more.

 6         (33)(38)  "Resident" means any person who is

 7  developmentally disabled residing at a residential facility in

 8  the state, whether or not such person is a client of the

 9  agency department.

10         (34)(39)  "Residential facility" means a facility

11  providing room and board and personal care for persons with

12  developmental disabilities.

13         (35)  "Residential habilitation" means assistance

14  provided in a residential habitation center with acquisition,

15  retention, or improvement in skills related to activities of

16  daily living, such as personal grooming and cleanliness,

17  bedmaking and household chores, eating and the preparation of

18  food, and the social and adaptive skills necessary to enable

19  the individual to reside in a noninstitutional setting.

20         (36)(40)  "Residential habilitation center" means a

21  community residential facility that provides residential

22  habilitation. operated primarily for the diagnosis, treatment,

23  habilitation, or rehabilitation of its residents, which

24  facility provides, in a structured residential setting,

25  individualized continuing evaluation, planning, 24-hour

26  supervision, and coordination and integration of health or

27  rehabilitative services to help each resident reach his or her

28  maximum functioning capabilities. The capacity of such a

29  facility shall not be fewer less than nine residents. After

30  October 1, 1989, no new residential habilitation centers shall

31  

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 1  be licensed and the licensed capacity shall not be increased

 2  for any existing residential habilitation center.

 3         (37)(41)  "Respite service" means appropriate,

 4  short-term, temporary care that is provided to a person with

 5  developmental disabilities to meet the planned or emergency

 6  needs of the person with developmental disabilities or the

 7  family or other direct service provider.

 8         (38)(42)  "Retardation" means significantly subaverage

 9  general intellectual functioning existing concurrently with

10  deficits in adaptive behavior and manifested during the period

11  from conception to age 18. "Significantly subaverage general

12  intellectual functioning," for the purpose of this definition,

13  means performance which is two or more standard deviations

14  from the mean score on a standardized intelligence test

15  specified in the rules of the agency department.  "Adaptive

16  behavior," for the purpose of this definition, means the

17  effectiveness or degree with which an individual meets the

18  standards of personal independence and social responsibility

19  expected of his or her age, cultural group, and community.

20         (43)  "Screening," for purposes of employment,

21  contracting, or certification, means the act of assessing the

22  background of direct service providers and independent support

23  coordinators, who are not related to clients for whom they

24  provide services, and includes, but is not limited to,

25  employment history checks, local criminal records checks

26  through local law enforcement agencies, fingerprinting for all

27  purposes and checks in this subsection, statewide criminal

28  records checks through the Department of Law Enforcement, and

29  federal criminal records checks through the Federal Bureau of

30  Investigation; except that screening for volunteers included

31  under the definition of personnel includes only local criminal

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 1  records checks through local law enforcement agencies for

 2  current residence and residence immediately prior to

 3  employment as a volunteer, if different; and statewide

 4  criminal records correspondence checks through the Department

 5  of Law Enforcement.

 6         (39)(44)  "Severe self-injurious behavior" means any

 7  chronic behavior that results in injury to the person's own

 8  body, which includes, but is not limited to, self-hitting,

 9  head banging, self-biting, scratching, and the ingestion of

10  harmful or potentially harmful nutritive or nonnutritive

11  substances.

12         (40)(45)  "Specialized therapies" means those

13  treatments or activities prescribed by and provided by an

14  appropriately trained, licensed, or certified professional or

15  staff person and may include, but are not limited to, physical

16  therapy, speech therapy, respiratory therapy, occupational

17  therapy, behavior therapy, physical management services, and

18  related specialized equipment and supplies.

19         (41)(46)  "Spina bifida" means, for purposes of this

20  chapter, a person with a medical diagnosis of spina bifida

21  cystica or myelomeningocele.

22         (42)(47)  "Support coordinator" means a person who is

23  designated by the agency department to assist individuals and

24  families in identifying their desires, capacities, needs, and

25  resources, as well as finding and gaining access to necessary

26  supports and services; coordinating the delivery of supports

27  and services; advocating on behalf of the individual and

28  family; maintaining relevant records; and monitoring and

29  evaluating the delivery of supports and services to determine

30  the extent to which they meet the needs and expectations

31  

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 1  identified by the individual, family, and others who

 2  participated in the development of the support plan.

 3         (43)(48)  "Supported employee" means a person whose

 4  developmental disability has traditionally kept him or her

 5  from integrated, community-based employment and who requires

 6  and receives supported employment ongoing support or

 7  follow-along services in order to maintain community-based

 8  employment.

 9         (44)(49)  "Supported employment" means employment

10  located or provided in a normal employment setting which

11  provides at least 20 hours employment per week in an

12  integrated work setting, with earnings paid on a commensurate

13  wage basis, and for which continued support is or follow-along

14  services are needed for continuing job maintenance.

15         (45)(50)  "Supported living" means a category of

16  individually determined services designed and coordinated in

17  such a manner as to provide assistance to adult clients who

18  require ongoing supports to live as independently as possible

19  in their own homes, to be integrated into the community, and

20  to participate in community life to the fullest extent

21  possible.

22         (46)(51)  "Training" means a planned approach to

23  assisting a client to attain or maintain his or her maximum

24  potential and includes services ranging from sensory

25  stimulation to instruction in skills for independent living

26  and employment.

27         (47)(52)  "Treatment" means the prevention,

28  amelioration, or cure of a client's physical and mental

29  disabilities or illnesses.

30         Section 4.  Subsections (1), (3), (4), and (5) of

31  section 393.064, Florida Statutes, are amended to read:

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 1         393.064  Prevention.--

 2         (1)  The agency Department of Children and Family

 3  Services shall give priority to the development, planning, and

 4  implementation of programs which have the potential to

 5  prevent, correct, cure, or reduce the severity of

 6  developmental disabilities.  The agency department shall

 7  direct an interagency interdepartmental and interprogram

 8  effort for the continued development of a prevention plan and

 9  program.  The agency department shall identify, through

10  demonstration projects, through departmental program

11  evaluation, and through monitoring of programs and projects

12  conducted outside of the agency department, any medical,

13  social, economic, or educational methods, techniques, or

14  procedures that which have the potential to effectively

15  ameliorate, correct, or cure developmental disabilities.  The

16  program department shall determine the costs and benefits that

17  would be associated with such prevention efforts and shall

18  implement, or recommend the implementation of, those methods,

19  techniques, or procedures which are found likely to be

20  cost-beneficial.  The department in its legislative budget

21  request shall identify funding needs for such prevention

22  programs.

23         (3)  Other agencies of state government shall cooperate

24  with and assist the agency department, within available

25  resources, in implementing programs which have the potential

26  to prevent, or reduce the severity of, developmental

27  disabilities and shall consider the findings and

28  recommendations of the agency department in developing and

29  implementing agency programs and formulating agency budget

30  requests.

31  

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 1         (4)  There is created at the developmental services

 2  institution in Gainesville a research and education unit.

 3  Such unit shall be named the Raymond C. Philips Research and

 4  Education Unit.  The functions of such unit shall include:

 5         (a)  Research into the etiology of developmental

 6  disabilities.

 7         (b)  Ensuring that new knowledge is rapidly

 8  disseminated throughout the developmental services program of

 9  the agency Department of Children and Family Services.

10         (c)  Diagnosis of unusual conditions and syndromes

11  associated with developmental disabilities in clients

12  identified throughout the developmental services programs.

13         (d)  Evaluation of families of clients with

14  developmental disabilities of genetic origin in order to

15  provide them with genetic counseling aimed at preventing the

16  recurrence of the disorder in other family members.

17         (e)  Ensuring that health professionals in the

18  developmental services institution at Gainesville have access

19  to information systems that will allow them to remain updated

20  on newer knowledge and maintain their postgraduate education

21  standards.

22         (f)  Enhancing staff training for professionals

23  throughout the agency department in the areas of genetics and

24  developmental disabilities.

25         (5)  The agency Department of Children and Family

26  Services shall have the authority, within available resources,

27  to contract for the supervision and management of the Raymond

28  C. Philips Research and Education Unit, and such contract

29  shall include specific program objectives.

30         Section 5.  Section 393.0655, Florida Statutes, is

31  amended to read:

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 1         393.0655  Screening of direct service providers.--

 2         (1)  MINIMUM STANDARDS.--The agency department shall

 3  require level 2 employment screening pursuant to chapter 435,

 4  using the level 2 standards for screening set forth in that

 5  chapter, for direct service providers who are unrelated to

 6  their clients, including support coordinators, and managers

 7  and supervisors of residential facilities or comprehensive

 8  transitional education programs licensed under s. 393.067 and

 9  any other person, including volunteers, who provide care or

10  services, who have access to a client's living areas, or who

11  have access to a client's funds or personal property.

12  Background screening shall include employment history checks

13  as provided in s. 435.03(1) and local criminal records checks

14  through local law enforcement agencies.

15         (a)  A volunteer who assists on an intermittent basis

16  for less than 40 hours per month does not have to be screened,

17  if the volunteer is under the direct and constant supervision

18  of persons who meet the screening requirements of this

19  section.

20         (b)  Licensed physicians, nurses, or other

21  professionals licensed and regulated by the Department of

22  Health are not subject to background screening pursuant to

23  this section if they are providing a service that is within

24  their scope of licensed practice.

25         (c)  A person selected by the family or the individual

26  with developmental disabilities and paid by the family or the

27  individual to provide supports or services is not required to

28  have a background screening under this section.

29         (d)  Persons residing with the direct services

30  provider, including family members, are subject to background

31  

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 1  screening; however, such persons who are 12 to 18 years of age

 2  shall be screened for delinquency records only.

 3         (2)  EXEMPTIONS FROM DISQUALIFICATION.--The agency

 4  department may grant exemptions from disqualification from

 5  working with children or adults with developmental

 6  disabilities the developmentally disabled as provided in s.

 7  435.07.

 8         (3)  PAYMENT FOR PROCESSING OF FINGERPRINTS AND STATE

 9  CRIMINAL RECORDS CHECKS.--The costs of processing fingerprints

10  and the state criminal records checks shall be borne by the

11  employer or by the employee or individual who is being

12  screened.

13         (4)  EXCLUSION FROM OWNING, OPERATING, OR BEING

14  EMPLOYED BY A DIRECT SERVICE PROVIDER RESIDENTIAL FACILITY;

15  HEARINGS PROVIDED.--

16         (a)  The agency department shall deny, suspend,

17  terminate, or revoke a license, certification, rate agreement,

18  purchase order, or contract, or pursue other remedies provided

19  in s. 393.0673, s. 393.0675, or s. 393.0678 in addition to or

20  in lieu of denial, suspension, termination, or revocation for

21  failure to comply with this section.

22         (b)  When the agency department has reasonable cause to

23  believe that grounds for denial or termination of employment

24  exist, it shall notify, in writing, the employer and the

25  direct service provider affected, stating the specific record

26  which indicates noncompliance with the standards in this

27  section.

28         (c)  The procedures established for hearing under

29  chapter 120 shall be available to the employer and the direct

30  service provider in order to present evidence relating either

31  

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 1  to the accuracy of the basis of exclusion or to the denial of

 2  an exemption from disqualification.

 3         (d)  Refusal on the part of an employer to dismiss a

 4  direct service provider who has been found to be in

 5  noncompliance with standards of this section shall result in

 6  automatic denial, termination, or revocation of the license,

 7  certification, rate agreement, purchase order, or contract, in

 8  addition to any other remedies pursued by the agency

 9  department.

10         Section 6.  Section 393.066, Florida Statutes, is

11  amended to read:

12         393.066  Community services and treatment for persons

13  who are developmentally disabled.--

14         (1)  The agency Department of Children and Family

15  Services shall plan, develop, organize, and implement its

16  programs of services and treatment for persons who are

17  developmentally disabled along district lines.  The goal of

18  such programs shall be to allow clients to live as

19  independently as possible in their own homes or communities

20  and to achieve productive lives as close to normal as

21  possible.

22         (2)  All programs of services and treatment for clients

23  shall be administered through the districts and shall serve

24  all clients regardless of the type of residential setting in

25  which the client lives.  All elements of community-based

26  services shall be made available, in each service district and

27  eligibility for these services shall be consistent across the

28  state districts.  In addition, all purchased services shall be

29  approved by the agency district.

30         (2)(3)  All services needed shall be purchased instead

31  of provided directly by the agency department, when such

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 1  arrangement is more cost-efficient than having those services

 2  provided directly by the department.

 3         (3)(4)  Community-based services that are medically

 4  necessary to prevent institutionalization shall, to the extent

 5  of available resources, include:

 6         (a)  Day habilitation services, including developmental

 7  training services.

 8         (b)  Family care services.

 9         (c)  Guardian advocate referral services.

10         (d)  Medical/dental services, except that medical

11  services shall not be provided to clients with spina bifida

12  except as specifically appropriated by the Legislature.

13         (e)  Parent training.

14         (f)  Recreation.

15         (g)  Residential services.

16         (h)  Respite services.

17         (i)  Social services.

18         (j)  Specialized therapies.

19         (k)  Supported employment, including enclave, job

20  coach, mobile work crew, and follow-along services.

21         (l)  Supported living.

22         (m)  Training, including behavioral programming.

23         (n)  Transportation.

24         (o)  Other habilitative and rehabilitative services as

25  needed.

26  

27  Services to clients with spina bifida shall not include

28  medical services except as appropriated by the Legislature.

29         (5)  Provided it is consistent with the intent of the

30  Legislature, the department shall prioritize increased

31  appropriations provided for community-based services for

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 1  developmentally disabled individuals toward individualized,

 2  community-based supports and services for consumers and their

 3  families.  Further, the department's 5-year plan for

 4  Developmental Services shall reflect a priority toward

 5  individualized, community-based supports and services for

 6  consumers and their families.

 7         (4)(6)  The agency department shall utilize the

 8  services of private businesses, not-for-profit organizations,

 9  and units of local government whenever such services are more

10  cost-efficient than such services provided directly by the

11  department, including arrangements for provision of

12  residential facilities.

13         (5)(7)  In order to improve the potential for

14  utilization of more cost-effective, community-based

15  residential facilities, the agency department shall promote

16  the statewide development of day habilitation services for

17  clients who live with a direct service provider in a

18  community-based residential facility and who do not require

19  24-hour-a-day care in a hospital or other health care

20  institution, but who may, in the absence of day habilitation

21  services, require admission to a developmental disabilities

22  services institution. Each day service facility shall provide

23  a protective physical environment for clients, ensure that

24  direct service providers meet the minimum screening standards

25  for good moral character as required contained in s. 393.0655,

26  make available to all day habilitation service participants at

27  least one meal on each day of operation, provide facilities to

28  enable participants to obtain needed rest while attending the

29  program, as appropriate, and provide social and educational

30  activities designed to stimulate interest and provide

31  socialization skills.

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 1         (6)  To promote independence and productivity, the

 2  agency shall provide supports and services, within available

 3  resources, to assist clients enrolled in Medicaid waivers who

 4  choose to pursue gainful employment.

 5         (7)(8)  For the purpose of making needed

 6  community-based residential facilities available at the least

 7  possible cost to the state, the agency department is

 8  authorized to lease privately owned residential facilities

 9  under long-term rental agreements, if such rental agreements

10  are projected to be less costly to the state over the useful

11  life of the facility than state purchase or state construction

12  of such a facility. In addition, the department is authorized

13  to permit, on any public land to which the department holds

14  the lease, construction of a residential facility for which

15  the department has entered into a long-term rental agreement

16  as specified in this subsection.

17         (8)(9)  The agency department may adopt rules to ensure

18  compliance with federal laws or regulations that apply to

19  services provided pursuant to this section.

20         Section 7.  Section 393.0661, Florida Statutes, is

21  amended to read:

22         393.0661  Home and community-based services delivery

23  system; comprehensive redesign.--The Legislature finds that

24  the home and community-based services delivery system for

25  persons with developmental disabilities and the availability

26  of appropriated funds are two of the critical elements in

27  making services available.  Therefore, it is the intent of the

28  Legislature that the Agency for Persons with Disabilities

29  Department of Children and Family Services shall develop and

30  implement a comprehensive redesign of the system. The redesign

31  of the home and community-based services system shall include,

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 1  at a minimum, all actions necessary to achieve an appropriate

 2  rate structure, client choice within a specified service

 3  package, appropriate assessment strategies, an efficient

 4  billing process that contains reconciliation and monitoring

 5  components, a redefined role for support coordinators that

 6  avoids potential conflicts of interest, and family/client

 7  budgets linked to levels of need. Prior to the release of

 8  funds in the lump-sum appropriation, the department shall

 9  present a plan to the Executive Office of the Governor, the

10  House Fiscal Responsibility Council, and the Senate

11  Appropriations Committee. The plan must result in a full

12  implementation of the redesigned system no later than July 1,

13  2003.  At a minimum, the plan must provide that the portions

14  related to direct provider enrollment and billing will be

15  operational no later than March 31, 2003.  The plan must

16  further provide that a more effective needs assessment

17  instrument will be deployed by January 1, 2003, and that all

18  clients will be assessed with this device by June 30, 2003.

19         (1)  In no event may The agency shall use department

20  select an assessment instrument without appropriate evidence

21  that is it will be reliable and valid for identifying the

22  support needs of individuals. Once such evidence has been

23  obtained, however, The agency may contract with department

24  shall determine the feasibility of contracting with an

25  external vendor to apply the new assessment device to all

26  clients receiving services through the Medicaid waiver. In

27  lieu of using an external vendor or, the department may use

28  support coordinators to complete client for the assessments if

29  it develops sufficient safeguards and training to ensure

30  ongoing significantly improve the inter-rater reliability of

31  the support coordinators administering the assessment.

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 1         (2)  The agency, with the concurrence of the Agency for

 2  Health Care Administration, may contract for the determination

 3  of medical necessity and establishment of individual budgets.

 4         Section 8.  Section 393.068, Florida Statutes, is

 5  amended to read:

 6         393.068  Family care program.--

 7         (1)  The family care program is established for the

 8  purpose of providing services and support to families and

 9  individuals with developmental disabilities in order to

10  maintain the individual in the home environment and avoid

11  costly out-of-home residential placement.  The Legislature

12  recognizes the importance of family support in the long-range

13  success of deinstitutionalization. Services and support

14  available to families and individuals with developmental

15  disabilities shall emphasize community living and enable

16  individuals with developmental disabilities to enjoy typical

17  lifestyles.  Support and flexibility in coordinating support

18  and services are core elements in caring for the individual

19  who is developmentally disabled. One way to accomplish this is

20  to recognize that families are the greatest resource available

21  to individuals who have developmental disabilities and that

22  families must be supported in their role as primary care

23  givers.

24         (2)  Services and support authorized under this program

25  shall, to the extent of available resources, include the

26  services listed under s. 393.066 s. 393.066(4) and, in

27  addition, shall include, but not be limited to:

28         (a)  Attendant care.

29         (b)  Barrier-free modifications to the home.

30         (c)  Home visitation by agency workers.

31         (d)  In-home subsidies.

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 1         (e)  Low-interest loans.

 2         (f)  Parent training.

 3         (g)  Respite care.

 4         (f)(h)  Modifications for vehicles used to transport

 5  the individual with a developmental disability.

 6         (g)(i)  Facilitated communication.

 7         (h)(j)  Family counseling.

 8         (i)(k)  Equipment and supplies.

 9         (j)(l)  Self-advocacy training.

10         (k)(m)  Roommate services.

11         (l)(n)  Integrated community activities.

12         (m)(o)  Emergency services.

13         (n)(p)  Support coordination.

14         (o)  Supported employment.

15         (p)(q)  Other support services as identified by the

16  family or individual.

17         (2)  Provided it is consistent with the intent of the

18  Legislature, the department shall prioritize increased

19  appropriations provided for family-based services for

20  developmentally disabled individuals toward individualized,

21  family-based supports and services for consumers and their

22  families. Further, the department's 5-year plan for

23  developmental services shall reflect a priority toward

24  individualized, family-based supports and services for

25  consumers and their families.

26         (3)  When it is determined by the agency department to

27  be more cost-effective and in the best interest of the client

28  to maintain such client in the home of a direct service

29  provider, the parent or guardian of the client or, if

30  competent, the client may enroll the client in the family care

31  program. The direct service provider of a client enrolled in

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 1  the family care program shall be reimbursed according to a

 2  rate schedule set by the agency department. In-home subsidies

 3  cited in paragraph (1)(d) shall be provided according to s.

 4  393.0695 and are not subject to any other payment method or

 5  rate schedule provided for in this section.

 6         (4)  All existing community resources available to the

 7  client shall be utilized to support program objectives.

 8  Additional services may be incorporated into the program as

 9  appropriate and to the extent that resources are available.

10  The agency department is authorized to accept gifts and grants

11  in order to carry out the program.

12         (5)  The agency department may contract for the

13  provision of any portion of the services required by the

14  program, except for in-home subsidies cited in paragraph

15  (2)(d) (1)(d), which shall be provided pursuant to s.

16  393.0695. Otherwise, purchase of service contracts shall be

17  used whenever the services so provided are more cost-efficient

18  than those provided by the agency department.

19         (6)  When possible, services shall be obtained under

20  the "Florida Comprehensive Annual Services Program Plan under

21  Title XX of the Social Security Act" and the "Florida Plan for

22  Medical Assistance under Title XIX of the Social Security

23  Act."

24         (7)  To provide a range of personal services for the

25  client, the use of volunteers shall be maximized.  The agency

26  department shall assure appropriate insurance coverage to

27  protect volunteers from personal liability while acting within

28  the scope of their volunteer assignments under the program.

29         (8)  The department shall submit to the President of

30  the Senate and the Speaker of the House of Representatives, as

31  part of the biennial plan required by s. 393.14, an evaluation

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 1  report summarizing the progress of the family care program.

 2  The report shall include the information and data necessary

 3  for an accurate analysis of the costs and benefits associated

 4  with the establishment and operation of the programs that were

 5  established.

 6         Section 9.  Subsections (1) and (3) of section

 7  393.0695, Florida Statutes, are amended to read:

 8         393.0695  Provision of in-home subsidies.--

 9         (1)  The agency may pay department shall develop by

10  October 1, 1991, a plan for paying in-home subsidies to

11  clients enrolled in the family care program or supported

12  living when it is determined to be more cost-effective and in

13  the best interest of the client to provide a cash supplement

14  to the client's income to enable the client to remain in the

15  family home or the client's own home. Payments may be made to

16  the parent or guardian of the client or, if the client is

17  competent, directly to the client.

18         (3)  In-home subsidies must be based on an individual

19  determination of need and must not exceed maximum amounts set

20  by the agency department and reassessed by the agency annually

21  department quarterly.

22         Section 10.  Subsection (1), paragraph (a) of

23  subsection (2), paragraph (a) of subsection (4), paragraphs

24  (a), (d), and (h) of subsection (5), paragraph (a) of

25  subsection (6), paragraphs (d) and (e) of subsection (8), and

26  subsection (13) of section 393.11, Florida Statutes, are

27  amended to read:

28         393.11  Involuntary admission to residential

29  services.--

30         (1)  JURISDICTION.--When a person is mentally retarded

31  and requires involuntary admission to residential services

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 1  provided by the agency developmental services program of the

 2  Department of Children and Family Services, the circuit court

 3  of the county in which the person resides shall have

 4  jurisdiction to conduct a hearing and enter an order

 5  involuntarily admitting the person in order that the person

 6  may receive the care, treatment, habilitation, and

 7  rehabilitation which the person needs.  For the purpose of

 8  identifying mental retardation, diagnostic capability shall be

 9  established by in every program function of the agency

10  department in the districts, including, but not limited to,

11  programs provided by children and families; delinquency

12  services; alcohol, drug abuse, and mental health; and economic

13  services, and by the Department of Labor and Employment

14  Security. Except as otherwise specified, the proceedings under

15  this section shall be governed by the Florida Rules of Civil

16  Procedure.

17         (2)  PETITION.--

18         (a)  A petition for involuntary admission to

19  residential services may be executed by a petitioning

20  commission. For proposed involuntary admission to residential

21  services arising out of chapter 916, the petition may be filed

22  by a petitioning commission, the agency department, the state

23  attorney of the circuit from which the defendant was

24  committed, or the defendant's attorney.

25         (4)  DEVELOPMENTAL SERVICES PARTICIPATION.--

26         (a)  Upon receiving the petition, the court shall

27  immediately order the developmental services program of the

28  agency department to examine the person being considered for

29  involuntary admission to residential services.

30         (5)  EXAMINING COMMITTEE.--

31  

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 1         (a)  Upon receiving the petition, the court shall

 2  immediately appoint an examining committee to examine the

 3  person being considered for involuntary admission to

 4  residential services of the developmental services program of

 5  the agency department.

 6         (d)  Members of the committee shall not be employees of

 7  the agency department or be associated with each other in

 8  practice or in employer-employee relationships.  Members of

 9  the committee shall not have served as members of the

10  petitioning commission.  Members of the committee shall not be

11  employees of the members of the petitioning commission or be

12  associated in practice with members of the commission.

13         (h)  The agency department shall develop and prescribe

14  by rule one or more standard forms to be used as a guide for

15  members of the examining committee.

16         (6)  COUNSEL; GUARDIAN AD LITEM.--

17         (a)  The person with mental retardation shall be

18  represented by counsel at all stages of the judicial

19  proceeding. In the event the person is indigent and cannot

20  afford counsel, the court shall appoint a public defender not

21  less than 20 working days before the scheduled hearing.  The

22  person's counsel shall have full access to the records of the

23  service provider and the agency department.  In all cases, the

24  attorney shall represent the rights and legal interests of the

25  person with mental retardation, regardless of who may initiate

26  the proceedings or pay the attorney's fee.

27         (8)  ORDER.--

28         (d)  If an order of involuntary admission to

29  residential services provided by the developmental services

30  program of the agency department is entered by the court, a

31  copy of the written order shall be served upon the person, the

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 1  person's counsel, the agency department, and the state

 2  attorney and the person's defense counsel, if applicable.  The

 3  order of involuntary admission sent to the agency department

 4  shall also be accompanied by a copy of the examining

 5  committee's report and other reports contained in the court

 6  file.

 7         (e)  Upon receiving the order, the agency department

 8  shall, within 45 days, provide the court with a copy of the

 9  person's family or individual support plan and copies of all

10  examinations and evaluations, outlining the treatment and

11  rehabilitative programs. The agency department shall document

12  that the person has been placed in the most appropriate, least

13  restrictive and cost-beneficial residential facility. A copy

14  of the family or individual support plan and other

15  examinations and evaluations shall be served upon the person

16  and the person's counsel at the same time the documents are

17  filed with the court.

18         (13)  HABEAS CORPUS.--At any time and without notice,

19  any person involuntarily admitted to the developmental

20  services program of the agency department, or the person's

21  parent or legal guardian in his or her behalf, is entitled to

22  a writ of habeas corpus to question the cause, legality, and

23  appropriateness of the person's involuntary admission.  Each

24  person, or the person's parent or legal guardian, shall

25  receive specific written notice of the right to petition for a

26  writ of habeas corpus at the time of his or her involuntary

27  placement.

28         Section 11.  Paragraphs (a), (b), and (d) of subsection

29  (2), subsection (3), paragraphs (b), (g), (i), and (j) of

30  subsection (4), and subsection (6) of section 393.13, Florida

31  Statutes, are amended to read:

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 1         393.13  Personal treatment of persons who are

 2  developmentally disabled.--

 3         (2)  LEGISLATIVE INTENT.--

 4         (a)  The Legislature finds and declares that the system

 5  of care provided which the state provides to individuals who

 6  are developmentally disabled must be designed to meet the

 7  needs of the clients as well as protect the integrity of their

 8  legal and human rights.  Further, the current system of care

 9  for persons who are developmentally disabled is in need of

10  substantial improvement in order to provide truly meaningful

11  treatment and habilitation.

12         (b)  The Legislature further finds and declares that

13  the design and delivery of treatment and services to persons

14  who are developmentally disabled should be directed by the

15  principles of normalization and therefore should:

16         1.  Abate the use of large institutions.

17         2.  Continue the development of community-based

18  services which provide reasonable alternatives to

19  institutionalization in settings that are least restrictive to

20  the client.

21         3.  Provide training and education to individuals who

22  are developmentally disabled which will maximize their

23  potential to lead independent and productive lives and which

24  will afford opportunities for outward mobility from

25  institutions.

26         4.  Reduce the use of sheltered workshops and other

27  noncompetitive employment day activities and promote

28  opportunities for gainful employment for persons with

29  developmental disabilities who choose to seek such employment.

30         (d)  It is the intent of the Legislature:

31  

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 1         1.  To articulate the existing legal and human rights

 2  of persons who are developmentally disabled so that they may

 3  be exercised and protected. Persons with developmental

 4  disabilities shall have all the rights enjoyed by citizens of

 5  the state and the United States.

 6         2.  To provide a mechanism for the identification,

 7  evaluation, and treatment of persons with developmental

 8  disabilities.

 9         3.  To divert those individuals from institutional

10  commitment who, by virtue of comprehensive assessment, can be

11  placed in less costly, more effective community environments

12  and programs.

13         4.  To develop a plan which will indicate the most

14  effective and efficient manner in which to implement treatment

15  programs which are meaningful to individuals with

16  developmental disabilities, while safeguarding and respecting

17  the legal and human rights of such individuals.

18         4.5.  Once the plan developed under the provisions of

19  subparagraph 4. is presented to the Legislature, To fund

20  improvements in the program in accordance with the

21  availability of state resources and yearly priorities

22  determined by the Legislature.

23         5.6.  To ensure that persons with developmental

24  disabilities receive treatment and habilitation which fosters

25  the developmental potential of the individual.

26         6.7.  To provide programs for the proper habilitation

27  and treatment of persons with developmental disabilities which

28  shall include, but not be limited to, comprehensive

29  medical/dental care, education, recreation, specialized

30  therapies, training, social services, transportation,

31  guardianship, family care programs, day habilitation services,

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 1  and habilitative and rehabilitative services suited to the

 2  needs of the individual regardless of age, degree of

 3  disability, or handicapping condition. No person with

 4  developmental disabilities shall be deprived of these

 5  enumerated services by reason of inability to pay.

 6         7.8.  To fully effectuate the normalization principle

 7  through the establishment of community services for persons

 8  with developmental disabilities as a viable and practical

 9  alternative to institutional care at each stage of individual

10  life development. If care in a residential facility becomes

11  necessary, it shall be in the least restrictive setting.

12         (3)  RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL

13  DISABILITIES.--The rights described in this subsection shall

14  apply to all persons with developmental disabilities, whether

15  or not such persons are clients of the agency department.

16         (a)  Persons with developmental disabilities shall have

17  a right to dignity, privacy, and humane care, including the

18  right to be free from sexual abuse in residential facilities.

19         (b)  Persons with developmental disabilities shall have

20  the right to religious freedom and practice.  Nothing shall

21  restrict or infringe on a person's right to religious

22  preference and practice.

23         (c)  Persons with developmental disabilities shall

24  receive services, within available sources, which protect the

25  personal liberty of the individual and which are provided in

26  the least restrictive conditions necessary to achieve the

27  purpose of treatment.

28         (d)  Persons who are developmentally disabled shall

29  have a right to participate in an appropriate program of

30  quality education and training services, within available

31  resources, regardless of chronological age or degree of

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 1  disability.  Such persons may be provided with instruction in

 2  sex education, marriage, and family planning.

 3         (e)  Persons who are developmentally disabled shall

 4  have a right to social interaction and to participate in

 5  community activities.

 6         (f)  Persons who are developmentally disabled shall

 7  have a right to physical exercise and recreational

 8  opportunities.

 9         (g)  Persons who are developmentally disabled shall

10  have a right to be free from harm, including unnecessary

11  physical, chemical, or mechanical restraint, isolation,

12  excessive medication, abuse, or neglect.

13         (h)  Persons who are developmentally disabled shall

14  have a right to consent to or refuse treatment, subject to the

15  provisions of s. 393.12(2)(a) or chapter 744.

16         (i)  No otherwise qualified person shall, by reason of

17  having a developmental disability, be excluded from

18  participation in, or be denied the benefits of, or be subject

19  to discrimination under, any program or activity which

20  receives public funds, and all prohibitions set forth under

21  any other statute shall be actionable under this statute.

22         (j)  No otherwise qualified person shall, by reason of

23  having a developmental disability, be denied the right to vote

24  in public elections.

25         (4)  CLIENT RIGHTS.--For purposes of this subsection,

26  the term "client," as defined in s. 393.063, shall also

27  include any person served in a facility licensed pursuant to

28  s. 393.067.

29         (b)  Each client has the right to the possession and

30  use of his or her own clothing and personal effects, except in

31  those specific instances where the use of some of these items

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 1  as reinforcers is essential for training the client as part of

 2  an appropriately approved behavioral program.  The chief

 3  administrator of the facility may take temporary custody of

 4  such effects when it is essential to do so for medical or

 5  safety reasons.  Custody of such personal effects shall be

 6  promptly recorded in the client's record, and a receipt for

 7  such effects shall be immediately given to the client, if

 8  competent, or the client's parent or legal guardian.

 9         1.  All money belonging to a client held by the agency

10  department shall be held in compliance with s. 402.17(2).

11         2.  All interest on money received and held for the

12  personal use and benefit of a client shall be the property of

13  that client and shall not accrue to the general welfare of all

14  clients or be used to defray the cost of residential care.

15  Interest so accrued shall be used or conserved for the

16  personal use or benefit of the individual client as provided

17  in s. 402.17(2).

18         3.  Upon the discharge or death of a client, a final

19  accounting shall be made of all personal effects and money

20  belonging to the client held by the agency department.  All

21  such personal effects and money, including interest, shall be

22  promptly turned over to the client or his or her heirs.

23         (g)  No client shall be subjected to a treatment

24  program to eliminate bizarre or unusual behaviors without

25  first being examined by a physician who in his or her best

26  judgment determines that such behaviors are not organically

27  caused.

28         1.  Treatment programs involving the use of noxious or

29  painful stimuli shall be prohibited.

30         2.  All alleged violations of this paragraph shall be

31  reported immediately to the chief administrative officer of

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 1  the facility or the district administrator, the agency

 2  department head, and the Florida local advocacy council. A

 3  thorough investigation of each incident shall be conducted and

 4  a written report of the finding and results of such

 5  investigation shall be submitted to the chief administrative

 6  officer of the facility or the district administrator and to

 7  the agency department head within 24 hours of the occurrence

 8  or discovery of the incident.

 9         3.  The agency department shall adopt promulgate by

10  rule a system for the oversight of behavioral programs.  Such

11  system shall establish guidelines and procedures governing the

12  design, approval, implementation, and monitoring of all

13  behavioral programs involving clients.  The system shall

14  ensure statewide and local review by committees of

15  professionals certified as behavior analysts pursuant to s.

16  393.17.  No behavioral program shall be implemented unless

17  reviewed according to the rules established by the agency

18  department under this section.  Nothing stated in this section

19  shall prohibit the review of programs by the Florida statewide

20  or local advocacy councils.

21         (i)  Clients shall have the right to be free from

22  unnecessary physical, chemical, or mechanical restraint.

23  Restraints shall be employed only in emergencies or to protect

24  the client from imminent injury to himself or herself or

25  others.  Restraints shall not be employed as punishment, for

26  the convenience of staff, or as a substitute for a

27  habilitative plan.  Restraints shall impose the least possible

28  restrictions consistent with their purpose and shall be

29  removed when the emergency ends.  Restraints shall not cause

30  physical injury to the client and shall be designed to allow

31  the greatest possible comfort.

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 1         1.  Mechanical supports used in normative situations to

 2  achieve proper body position and balance shall not be

 3  considered restraints, but shall be prescriptively designed

 4  and applied under the supervision of a qualified professional

 5  with concern for principles of good body alignment,

 6  circulation, and allowance for change of position.

 7         2.  Totally enclosed cribs and barred enclosures shall

 8  be considered restraints.

 9         3.  Daily reports on the employment of physical,

10  chemical, or mechanical restraints by those specialists

11  authorized in the use of such restraints shall be made to the

12  appropriate chief administrator of the facility, and a monthly

13  summary of such reports shall be relayed to the district

14  administrator and the Florida local advocacy council.  The

15  reports shall summarize all such cases of restraints, the type

16  used, the duration of usage, and the reasons therefor.

17  Districts shall submit districtwide quarterly reports of these

18  summaries to the state Developmental Disabilities Program

19  Office.

20         4.  The agency department shall post a copy of the

21  rules adopted promulgated under this section in each living

22  unit of residential facilities.  A copy of the rules adopted

23  promulgated under this section shall be given to all staff

24  members of licensed facilities and made a part of all

25  preservice and inservice training programs.

26         (j)1.  Each client shall have a central record.  The

27  record shall include data pertaining to admission and such

28  other information as may be required under rules of the agency

29  department.

30         2.  Unless waived by the client, if competent, or the

31  client's parent or legal guardian if the client is

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 1  incompetent, the client's central record shall be confidential

 2  and exempt from the provisions of s. 119.07(1), and no part of

 3  it shall be released except:

 4         a.  The record may be released to physicians,

 5  attorneys, and government agencies having need of the record

 6  to aid the client, as designated by the client, if competent,

 7  or the client's parent or legal guardian, if the client is

 8  incompetent.

 9         b.  The record shall be produced in response to a

10  subpoena or released to persons authorized by order of court,

11  excluding matters privileged by other provisions of law.

12         c.  The record or any part thereof may be disclosed to

13  a qualified researcher, a staff member of the facility, or an

14  employee of the agency department when the administrator of

15  the facility or the director secretary of the agency

16  department deems it necessary for the treatment of the client,

17  maintenance of adequate records, compilation of treatment

18  data, or evaluation of programs.

19         d.  Information from the records may be used for

20  statistical and research purposes if the information is

21  abstracted in such a way to protect the identity of

22  individuals.

23         3.  All central records for each client in residential

24  facilities shall be kept on uniform forms distributed by the

25  agency department.  The central record shall accurately

26  summarize each client's history and present condition.

27         4.  The client, if competent, or the client's parent or

28  legal guardian if the client is incompetent, shall be supplied

29  with a copy of the client's central record upon request.

30         (6)  NOTICE OF RIGHTS.--Each person with developmental

31  disabilities, if competent, or parent or legal guardian of

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 1  such person if the person is incompetent, shall promptly

 2  receive from the agency Department of Children and Family

 3  Services or the Department of Education a written copy of this

 4  act. Each person with developmental disabilities able to

 5  comprehend shall be promptly informed, in the language or

 6  other mode of communication which such person understands, of

 7  the above legal rights of persons with developmental

 8  disabilities.

 9         Section 12.  Section 393.17, Florida Statutes, is

10  amended to read:

11         393.17  Behavioral programs; certification of behavior

12  analysts; fees.--The agency may recognize the certification of

13  behavior analysts awarded by a nonprofit corporation whose

14  mission is to meet professional credentialing needs identified

15  by behavior analysts, state governments, and consumers of

16  behavior analysis services and whose work has the support of

17  the Association for Behavior Analysis International. The

18  department shall by rule implement a certification program to

19  ensure that qualified persons oversee the design and

20  implementation of behavioral programs for persons who are

21  developmentally disabled. Certification and recertification

22  minimum standards must comply with departmental rules and must

23  include, for initial certification, examination of

24  competencies in applying behavior analysis with persons who

25  are developmentally disabled within established competency

26  clusters.  These competency clusters shall include, but not be

27  limited to, behavioral assessments, observation and recording,

28  behavioral program development and monitoring, and other areas

29  as determined by professional practitioners of behavior

30  analysis. Fees shall be charged for certification not to

31  exceed the cost of development and administration of the

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 1  examination and periodic renewal of certification. The

 2  department shall establish by rule the procedures for

 3  certification and certification renewal.

 4         Section 13.  Section 393.22, Florida Statutes, is

 5  amended to read:

 6         393.22  Transfer of appropriations; barriers to

 7  services; Financial commitment to community services

 8  programs.--

 9         (1)  No funds appropriated for developmental services

10  programs shall be transferred pursuant to s. 216.292, unless

11  there is a finding by the secretary that treatment programs

12  for developmental disabilities will not be adversely affected

13  by the transfer.

14         (2)  Development of programs for other disabilities

15  shall not effectuate a reduction or dilution of the ongoing

16  financial commitment of the state through appropriations for

17  programs and services for persons with mental retardation,

18  cerebral palsy, autism, or spina bifida.

19         (3)  In order to The Department of Children and Family

20  Services and the Agency for Health Care Administration jointly

21  shall ensure that whenever a number of persons move from an

22  institution serving persons with developmental disabilities

23  which is sufficient to allow an entire residential unit within

24  that institution to be closed, no less than 80 percent of the

25  direct costs of providing services to persons who had resided

26  in that unit shall be reallocated for community services.

27         Section 14.  Section 393.502, Florida Statutes, is

28  amended to read:

29         393.502  Family care councils.--

30  

31  

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 1         (1)  CREATION.--There shall be established and located

 2  within each service area of the agency district of the

 3  department a district family care council.

 4         (2)  MEMBERSHIP.--

 5         (a)  Each local district family care council shall

 6  consist of at least 10 and no more than 15 members recommended

 7  by a majority vote of the local district family care council

 8  and appointed by the Governor.

 9         (b)  At least three of the members of the council must

10  be consumers. One such member shall be a consumer who received

11  developmental services within the 4 years prior to the date of

12  recommendation, or the legal guardian of such a consumer. The

13  remainder of the council members shall be parents, guardians,

14  or siblings of persons with developmental disabilities who

15  qualify for developmental services pursuant to this chapter.

16         (c)  A person who is currently serving on another board

17  or council of the agency department may not be appointed to a

18  local district family care council.

19         (d)  Employees of the agency department are not

20  eligible to serve on a local district family care council.

21         (e)  Persons related by consanguinity or affinity

22  within the third degree shall not serve on the same local

23  district family care council at the same time.

24         (f)  A chair for the council shall be chosen by the

25  council members to serve for 1 year. A person may serve no

26  more than four 1-year terms as chair.

27         (3)  TERMS; VACANCIES.--

28         (a)  Council members shall be appointed for a 3-year

29  term, except as provided in subsection (8), and may be

30  reappointed to one additional term.

31  

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 1         (b)  A member who has served two consecutive terms

 2  shall not be eligible to serve again until 12 months have

 3  elapsed since ending his or her service on the local district

 4  council.

 5         (c)  Upon expiration of a term or in the case of any

 6  other vacancy, the local district council shall, by majority

 7  vote, recommend to the Governor for appointment a person for

 8  each vacancy. If the Governor does not act on the council's

 9  recommendations within 45 days after receiving them, the

10  persons recommended shall be considered to be appointed.

11         (4)  COMMITTEE APPOINTMENTS.--The chair of the local

12  district family care council may appoint persons to serve on

13  council committees. Such persons may include former members of

14  the council and persons not eligible to serve on the council.

15         (5)  TRAINING.--

16         (a)  The agency department, in consultation with the

17  local district councils, shall establish a training program

18  for local district family care council members. Each local

19  area district shall provide the training program when new

20  persons are appointed to the local district council and at

21  other times as the secretary deems necessary.

22         (b)  The training shall assist the council members to

23  understand the laws, rules, and policies applicable to their

24  duties and responsibilities.

25         (c)  All persons appointed to a local district council

26  must complete this training within 90 days after their

27  appointment. A person who fails to meet this requirement shall

28  be considered to have resigned from the council.

29         (6)  MEETINGS.--Council members shall serve on a

30  voluntary basis without payment for their services but shall

31  be reimbursed for per diem and travel expenses as provided for

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 1  in s. 112.061.  The council shall meet at least six times per

 2  year.

 3         (7)  PURPOSE.--The purpose of the local district family

 4  care councils shall be to advise the agency department and its

 5  district advisory boards, to develop a plan for the delivery

 6  of developmental services family support services within the

 7  local area district, and to monitor the implementation and

 8  effectiveness of services and support provided under the plan.

 9  The primary functions of the local district family care

10  councils shall be to:

11         (a)  Assist in providing information and outreach to

12  families.

13         (b)  Review the effectiveness of service developmental

14  services programs and make recommendations with respect to

15  program implementation.

16         (c)  Advise the agency district developmental services

17  administrators with respect to policy issues relevant to the

18  community and family support system in the local area

19  district.

20         (d)  Meet and share information with other local

21  district family care councils.

22         (8)  NEW COUNCILS.--When a local district family care

23  council is established for the first time in a local area

24  district, the Governor shall appoint the first four council

25  members, who shall serve 3-year terms. These members shall

26  submit to the Governor, within 90 days after their

27  appointment, recommendations for at least six additional

28  members, selected by majority vote. If the Governor does not

29  act on the recommendations within 45 days after receiving

30  them, the persons recommended shall be considered to be

31  

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 1  appointed. Those members recommended for appointment by the

 2  Governor shall serve for 2 years.

 3         (9)  FUNDING; FINANCIAL REVIEW.--The local district

 4  family care council may apply for, receive, and accept grants,

 5  gifts, donations, bequests, and other payments from any public

 6  or private entity or person. Each local district council is

 7  shall be subject to an annual financial review by district

 8  staff assigned by the agency district administrator. Each

 9  local district council shall exercise care and prudence in the

10  expenditure of funds. The local district family care councils

11  shall comply with state expenditure requirements.

12         Section 15.  Section 408.301, Florida Statutes, is

13  amended to read:

14         408.301  Legislative findings.--The Legislature has

15  found that access to quality, affordable, health care for all

16  Floridians is an important goal for the state. The Legislature

17  recognizes that there are Floridians with special health care

18  and social needs which require particular attention. The

19  people served by the Department of Children and Family

20  Services, the Agency for Persons with Disabilities, and the

21  Department of Health, and the Department of Elderly Affairs

22  are examples of citizens with special needs. The Legislature

23  further recognizes that the Medicaid program is an intricate

24  part of the service delivery system for the special needs

25  citizens served by or through the Department of Children and

26  Family Services and the Department of Health. However, the

27  Agency for Health Care Administration is not a service

28  provider and does not develop or direct programs for the

29  special needs citizens served by or through the Department of

30  Children and Family Services and the Department of Health.

31  Therefore, it is the intent of the Legislature that the Agency

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 1  for Health Care Administration work closely with the

 2  Department of Children and Family Services, the Agency for

 3  Persons with Disabilities, and the Department of Health, and

 4  the Department of Elderly Affairs in developing plans for

 5  assuring access to all Floridians in order to assure that the

 6  needs of special citizens are met.

 7         Section 16.  Section 408.302, Florida Statutes, is

 8  amended to read:

 9         408.302  Interagency agreement.--

10         (1)  The Agency for Health Care Administration shall

11  enter into an interagency agreement with the Department of

12  Children and Family Services, the Agency for Persons with

13  Disabilities, and the Department of Health, and the Department

14  of Elderly Affairs to assure coordination and cooperation in

15  serving special needs citizens. The agreement shall include

16  the requirement that the secretaries or directors secretary of

17  the Department of Children and Family Services, the Agency for

18  Persons with Disabilities, and the secretary of the Department

19  of Health, and the Department of Elderly Affairs approve,

20  prior to adoption, any rule developed by the Agency for Health

21  Care Administration where such rule has a direct impact on the

22  mission of the respective state agencies Department of

23  Children and Family Services and the Department of Health,

24  their programs, or their budgets.

25         (2)  For rules which indirectly impact on the mission

26  of the Department of Children and Family Services, the Agency

27  for Persons with Disabilities, and the Department of Health,

28  and the Department of Elderly Affairs, their programs, or

29  their budgets, the concurrence of the respective secretaries

30  or directors secretary of the Department of Children and

31  

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 1  Family Services and the secretary of the Department of Health

 2  on the rule is required.

 3         (3)  For all other rules developed by the Agency for

 4  Health Care Administration, coordination with the Department

 5  of Children and Family Services, the Agency for Persons with

 6  Disabilities, and the Department of Health, and the Department

 7  of Elderly Affairs is encouraged.

 8         (4)  The interagency agreement shall also include any

 9  other provisions necessary to ensure a continued cooperative

10  working relationship between the Agency for Health Care

11  Administration and the Department of Children and Family

12  Services, the Agency for Persons with Disabilities, and the

13  Department of Health, and the Department of Elderly Affairs as

14  each strives to meet the needs of the citizens of Florida.

15         Section 17.  Subsection (13) of section 409.906,

16  Florida Statutes, is amended to read:

17         409.906  Optional Medicaid services.--Subject to

18  specific appropriations, the agency may make payments for

19  services which are optional to the state under Title XIX of

20  the Social Security Act and are furnished by Medicaid

21  providers to recipients who are determined to be eligible on

22  the dates on which the services were provided.  Any optional

23  service that is provided shall be provided only when medically

24  necessary and in accordance with state and federal law.

25  Optional services rendered by providers in mobile units to

26  Medicaid recipients may be restricted or prohibited by the

27  agency. Nothing in this section shall be construed to prevent

28  or limit the agency from adjusting fees, reimbursement rates,

29  lengths of stay, number of visits, or number of services, or

30  making any other adjustments necessary to comply with the

31  availability of moneys and any limitations or directions

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 1  provided for in the General Appropriations Act or chapter 216.

 2  If necessary to safeguard the state's systems of providing

 3  services to elderly and disabled persons and subject to the

 4  notice and review provisions of s. 216.177, the Governor may

 5  direct the Agency for Health Care Administration to amend the

 6  Medicaid state plan to delete the optional Medicaid service

 7  known as "Intermediate Care Facilities for the Developmentally

 8  Disabled."  Optional services may include:

 9         (13)  HOME AND COMMUNITY-BASED SERVICES.--The agency

10  may pay for home-based or community-based services that are

11  rendered to a recipient in accordance with a federally

12  approved waiver program. The agency may limit or eliminate

13  coverage for certain Project AIDS Care Waiver services,

14  preauthorize high-cost or highly utilized services, or make

15  any other adjustments necessary to comply with any limitations

16  or directions provided for in the General Appropriations Act.

17         Section 18.  Sections 393.14, 393.165, 393.166, and

18  393.505, Florida Statutes, are repealed.

19         Section 19.  (1)  Effective October 1, 2004, the

20  developmental disabilities program and the developmental

21  services institutions in the Department of Children and Family

22  Services shall be transferred to the Agency for Persons with

23  Disabilities by a type two transfer pursuant to section 20.06,

24  Florida Statutes. Prior to that date:

25         (a)  The Agency for Persons with Disabilities and the

26  Department of Children and Family Services, in consultation

27  with the Department of Management Services, shall determine

28  the number of positions and resources within the department

29  dedicated to the developmental disabilities program which

30  shall be transferred to the agency and will develop an

31  

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 1  agreement that delineates who within the department will

 2  provide administrative support to the agency.

 3         (b)  The Director of the Agency for Persons with

 4  Disabilities, in consultation with the Secretaries of the

 5  Department of Children and Family Services and the Agency for

 6  Health Care Administration or their designees, shall prepare a

 7  transition plan that must address, at a minimum, building

 8  leases, information support systems, cash ownership and

 9  transfer, administrative support functions, inventory and

10  transfers of equipment and structures, expenditure transfers,

11  budget authority and positions, and certifications forward.

12  This plan shall be submitted by September 1, 2004, to the

13  Executive Office of the Governor, the President of the Senate,

14  and the Speaker of the House of Representatives.

15         (c)  The Agency for Persons with Disabilities and the

16  Department of Children and Family Services shall work with the

17  Agency for Health Care Administration to develop a plan that

18  ensures that all of the necessary electronic and paper-based

19  data of the Developmental Disabilities program is accessible

20  to the Medicaid program and that all electronic records will

21  be migrated to a new data system that is compatible with the

22  Florida Medicaid Management Information System.

23         (d)  The Agency for Persons with Disabilities and the

24  Agency for Health Care Administration shall develop a plan for

25  the orderly relocation of the noncentral-office staff of the

26  Agency for Persons with Disabilities to the area offices of

27  the Agency for Health Care Administration. Such plan shall

28  include a schedule that takes into consideration the

29  availability of space, the expiration of current leases, and

30  the initiation of new leases that can accommodate the

31  relocated staff, as well as appropriate reimbursement for

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 1  collocation costs, including office space and other operating

 2  expenses.

 3         (2)  Effective October 1, 2004, the agency shall enter

 4  into an interagency agreement with the Department of Children

 5  and Family Services for the provision of the necessary

 6  day-to-day administrative and operational needs of the agency,

 7  including, but not limited to, personnel, purchasing,

 8  information technology support, legal support, and other

 9  related services. This interagency agreement shall continue

10  until the agency no longer requires the provision of services

11  through such agreement.

12         (3)  This act does not affect the validity of any

13  judicial or administrative proceeding pending on October 30,

14  2004, and the Agency for Persons with Disabilities is

15  substituted as a real party in interest with respect to any

16  proceeding pending on that date which involves the

17  developmental services programs of the Department of Children

18  and Family Services.

19         Section 20.  The Office of Program Policy Analysis and

20  Government Accountability shall identify and evaluate

21  statewide entities receiving state funding for the purpose of

22  addressing the interests of, but not directly providing

23  services for, persons with disabilities.

24         (1)  The purpose of the analysis shall be to provide

25  information with respect to:

26         (a)  The extent to which activities of these entities

27  are coordinated;

28         (b)  The similarities and differences in the

29  organizational missions of these entities; and

30         (c)  The amount of state funds provided to these

31  entities for the purpose of addressing the interests of

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 1  persons with disabilities, the uses of these funds, and

 2  whether they duplicate the efforts of other private or

 3  federally funded entities.

 4         (2)  The report shall be completed and provided to the

 5  Governor and Legislature by December 2005.

 6         Section 21.  Subsection (1) of section 92.53, Florida

 7  Statutes, is amended to read:

 8         92.53  Videotaping of testimony of victim or witness

 9  under age 16 or person with mental retardation.--

10         (1)  On motion and hearing in camera and a finding that

11  there is a substantial likelihood that a victim or witness who

12  is under the age of 16 or who is a person with mental

13  retardation as defined in s. 393.063 s. 393.063(42) would

14  suffer at least moderate emotional or mental harm due to the

15  presence of the defendant if the child or person with mental

16  retardation is required to testify in open court, or that such

17  victim or witness is otherwise unavailable as defined in s.

18  90.804(1), the trial court may order the videotaping of the

19  testimony of the victim or witness in a case, whether civil or

20  criminal in nature, in which videotaped testimony is to be

21  utilized at trial in lieu of trial testimony in open court.

22         Section 22.  Subsections (1), (2), and (3), paragraph

23  (i) of subsection (4), subsection (5), paragraphs (a), (b),

24  (c), (d), (f), and (g) of subsection (6), and subsections (8),

25  (9), (10), (11), (12), (13), (14), and (17) of section

26  393.067, Florida Statutes, are amended to read:

27         393.067  Licensure of residential facilities and

28  comprehensive transitional education programs.--

29         (1)  The agency department shall provide through its

30  licensing authority a system of provider qualifications,

31  standards, training criteria for meeting standards, and

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 1  monitoring for residential facilities and comprehensive

 2  transitional education programs.

 3         (2)  The agency department shall conduct inspections

 4  and reviews of residential facilities and comprehensive

 5  transitional education programs annually.

 6         (3)  An application for a license for a residential

 7  facility or a comprehensive transitional education program

 8  shall be made to the agency Department of Children and Family

 9  Services on a form furnished by it and shall be accompanied by

10  the appropriate license fee. A license issued to a residential

11  facility or a comprehensive transitional education program as

12  described in this section is not a professional license of any

13  individual. Receipt of a license under this section does not

14  create a property right in the recipient. A license is a

15  public trust and a privilege and is not an entitlement. This

16  privilege must guide the finder of fact or trier of law during

17  any administrative or court proceeding initiated by the

18  agency.

19         (4)  The application shall be under oath and shall

20  contain the following:

21         (i)  Such other information as the agency department

22  determines is necessary to carry out the provisions of this

23  chapter.

24         (5)  The applicant shall submit evidence which

25  establishes the good moral character of the manager or

26  supervisor of the facility or program and the direct service

27  providers in the facility or program and its component centers

28  or units. A license may be issued if all the screening

29  materials have been timely submitted; however, a license may

30  not be issued or renewed if any of the direct service

31  providers have failed the screening required by s. 393.0655.

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 1         (a)1.  A licensed residential facility or comprehensive

 2  transitional education program which applies for renewal of

 3  its license shall submit to the agency department a list of

 4  direct service providers who have worked on a continuous basis

 5  at the applicant facility or program since submitting

 6  fingerprints to the agency or the Department of Children and

 7  Family Services, identifying those direct service providers

 8  for whom a written assurance of compliance was provided by the

 9  agency or department and identifying those direct service

10  providers who have recently begun working at the facility or

11  program and are awaiting the results of the required

12  fingerprint check along with the date of the submission of

13  those fingerprints for processing. The agency department shall

14  by rule determine the frequency of requests to the Department

15  of Law Enforcement to run state criminal records checks for

16  such direct service providers except for those direct service

17  providers awaiting the results of initial fingerprint checks

18  for employment at the applicant facility or program. The

19  agency department shall review the records of the direct

20  service providers at the applicant facility or program with

21  respect to the crimes specified in s. 393.0655 and shall

22  notify the facility or program of its findings. When

23  disposition information is missing on a criminal record, it is

24  shall be the responsibility of the person being screened, upon

25  request of the agency department, to obtain and supply within

26  30 days the missing disposition information to the agency

27  department. Failure to supply the missing information within

28  30 days or to show reasonable efforts to obtain such

29  information shall result in automatic disqualification.

30         2.  The applicant shall sign an affidavit under penalty

31  of perjury stating that all new direct service providers have

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 1  been fingerprinted and that the facility's or program's

 2  remaining direct service providers have worked at the

 3  applicant facility or program on a continuous basis since

 4  being initially screened at that facility or program or have a

 5  written assurance of compliance from the agency or department.

 6         (b)  As a prerequisite for issuance of the initial

 7  license to a residential facility or comprehensive

 8  transitional education program:

 9         1.  The applicant shall submit to the agency department

10  a complete set of fingerprints, taken by an authorized law

11  enforcement agency or an employee of the agency department who

12  is trained to take fingerprints, for the manager, supervisor,

13  or direct service providers of the facility or program;

14         2.  The agency department shall submit the fingerprints

15  to the Department of Law Enforcement for state processing and

16  for federal processing by the Federal Bureau of Investigation;

17  and

18         3.  The agency department shall review the record of

19  the manager or supervisor with respect to the crimes specified

20  in s. 393.0655(1) and shall notify the applicant of its

21  findings. When disposition information is missing on a

22  criminal record, it is shall be the responsibility of the

23  manager or supervisor, upon request of the agency department,

24  to obtain and supply within 30 days the missing disposition

25  information to the agency department. Failure to supply the

26  missing information within 30 days or to show reasonable

27  efforts to obtain such information shall result in automatic

28  disqualification.

29         (c)  The agency department or a residential facility or

30  comprehensive transitional education program may not use the

31  criminal records or juvenile records of a person obtained

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 1  under this subsection for any purpose other than determining

 2  if that person meets the minimum standards for good moral

 3  character for a manager or supervisor of, or direct service

 4  provider in, such a facility or program. The criminal records

 5  or juvenile records obtained by the agency department or a

 6  residential facility or comprehensive transitional education

 7  program for determining the moral character of a manager,

 8  supervisor, or direct service provider are exempt from s.

 9  119.07(1).

10         (6)  Each applicant for licensure as an intermediate

11  care facility for the developmentally disabled must comply

12  with the following requirements:

13         (a)  Upon receipt of a completed, signed, and dated

14  application, the agency shall require background screening, in

15  accordance with the level 2 standards for screening set forth

16  in chapter 435, of the managing employee, or other similarly

17  titled individual who is responsible for the daily operation

18  of the facility, and of the financial officer, or other

19  similarly titled individual who is responsible for the

20  financial operation of the center, including billings for

21  resident care and services.  The applicant must comply with

22  the procedures for level 2 background screening as set forth

23  in chapter 435, as well as the requirements of s. 435.03(3).

24         (b)  The agency may require background screening of any

25  other individual who is an applicant if the agency has

26  probable cause to believe that he or she has been convicted of

27  a crime or has committed any other offense prohibited under

28  the level 2 standards for screening set forth in chapter 435.

29         (c)  Proof of compliance with the level 2 background

30  screening requirements of chapter 435 which has been submitted

31  within the previous 5 years in compliance with any other

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 1  health care licensure requirements of this state is acceptable

 2  in fulfillment of the requirements of paragraph (a).

 3         (d)  A provisional license may be granted to an

 4  applicant when each individual required by this section to

 5  undergo background screening has met the standards for the

 6  Department of Law Enforcement background check, but the agency

 7  has not yet received background screening results from the

 8  Federal Bureau of Investigation, or a request for a

 9  disqualification exemption has been submitted to the agency as

10  set forth in chapter 435, but a response has not yet been

11  issued. A standard license may be granted to the applicant

12  upon the agency's receipt of a report of the results of the

13  Federal Bureau of Investigation background screening for each

14  individual required by this section to undergo background

15  screening which confirms that all standards have been met, or

16  upon the granting of a disqualification exemption by the

17  agency as set forth in chapter 435. Any other person who is

18  required to undergo level 2 background screening may serve in

19  his or her capacity pending the agency's receipt of the report

20  from the Federal Bureau of Investigation. However, the person

21  may not continue to serve if the report indicates any

22  violation of background screening standards and a

23  disqualification exemption has not been requested of and

24  granted by the agency as set forth in chapter 435.

25         (f)  Each applicant must submit to the agency a

26  description and explanation of any conviction of an offense

27  prohibited under the level 2 standards of chapter 435 by a

28  member of the board of directors of the applicant, its

29  officers, or any individual owning 5 percent or more of the

30  applicant. This requirement does not apply to a director of a

31  not-for-profit corporation or organization if the director

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 1  serves solely in a voluntary capacity for the corporation or

 2  organization, does not regularly take part in the day-to-day

 3  operational decisions of the corporation or organization,

 4  receives no remuneration for his or her services on the

 5  corporation or organization's board of directors, and has no

 6  financial interest and has no family members with a financial

 7  interest in the corporation or organization, provided that the

 8  director and the not-for-profit corporation or organization

 9  include in the application a statement affirming that the

10  director's relationship to the corporation satisfies the

11  requirements of this paragraph.

12         (g)  A license may not be granted to an applicant if

13  the applicant or managing employee has been found guilty of,

14  regardless of adjudication, or has entered a plea of nolo

15  contendere or guilty to, any offense prohibited under the

16  level 2 standards for screening set forth in chapter 435,

17  unless an exemption from disqualification has been granted by

18  the agency as set forth in chapter 435.

19         (8)  The agency department shall adopt promulgate rules

20  establishing minimum standards for licensure of residential

21  facilities and comprehensive transitional education programs,

22  including rules requiring facilities and programs to train

23  staff to detect and prevent sexual abuse of residents and

24  clients, minimum standards of quality and adequacy of care,

25  and uniform firesafety standards established by the State Fire

26  Marshal which are appropriate to the size of the facility or

27  of the component centers or units of the program.

28         (9)  The agency department and the Agency for Health

29  Care Administration, after consultation with the Department of

30  Community Affairs, shall adopt rules for residential

31  facilities under the respective regulatory jurisdiction of

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 1  each establishing minimum standards for the preparation and

 2  annual update of a comprehensive emergency management plan. At

 3  a minimum, the rules must provide for plan components that

 4  address emergency evacuation transportation; adequate

 5  sheltering arrangements; postdisaster activities, including

 6  emergency power, food, and water; postdisaster transportation;

 7  supplies; staffing; emergency equipment; individual

 8  identification of residents and transfer of records; and

 9  responding to family inquiries. The comprehensive emergency

10  management plan for all comprehensive transitional education

11  programs and for homes serving individuals who have complex

12  medical conditions is subject to review and approval by the

13  local emergency management agency. During its review, the

14  local emergency management agency shall ensure that the

15  following agencies, at a minimum, are given the opportunity to

16  review the plan: the Agency for Health Care Administration,

17  the Agency for Persons with Disabilities Department of

18  Children and Family Services, and the Department of Community

19  Affairs. Also, appropriate volunteer organizations must be

20  given the opportunity to review the plan.  The local emergency

21  management agency shall complete its review within 60 days and

22  either approve the plan or advise the facility of necessary

23  revisions.

24         (10)  The agency department may conduct unannounced

25  inspections to determine compliance by residential facilities

26  and comprehensive transitional education programs with the

27  applicable provisions of this chapter and the rules adopted

28  pursuant hereto, including the rules adopted for training

29  staff of a facility or a program to detect and prevent sexual

30  abuse of residents and clients. The facility or program shall

31  

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 1  make copies of inspection reports available to the public upon

 2  request.

 3         (11)  An alternative living center and an independent

 4  living education center, as defined in s. 393.063 s.

 5  393.063(8), shall be subject to the provisions of s. 419.001,

 6  except that such centers shall be exempt from the

 7  1,000-foot-radius requirement of s. 419.001(2) if:

 8         (a)  Such centers are located on a site zoned in a

 9  manner so that all the component centers of a comprehensive

10  transition education center may be located thereon; or

11         (b)  There are no more than three such centers within

12  said radius of 1,000 feet.

13         (12)  Each residential facility or comprehensive

14  transitional education program licensed by the agency

15  department shall forward annually to the agency department a

16  true and accurate sworn statement of its costs of providing

17  care to clients funded by the agency department.

18         (13)  The agency department may audit the records of

19  any residential facility or comprehensive transitional

20  education program that which it has reason to believe may not

21  be in full compliance with the provisions of this section;

22  provided that, any financial audit of such facility or program

23  shall be limited to the records of clients funded by the

24  agency department.

25         (14)  The agency department shall establish, for the

26  purpose of control of licensure costs, a uniform management

27  information system and a uniform reporting system with uniform

28  definitions and reporting categories.

29         (17)  The agency department shall not be required to

30  contract with new facilities licensed after October 1, 1989,

31  pursuant to this chapter. Pursuant to chapter 287, the agency

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 1  department shall continue to contract within available

 2  resources for residential services with facilities licensed

 3  prior to October 1, 1989, if such facilities comply with the

 4  provisions of this chapter and all other applicable laws and

 5  regulations.

 6         Section 23.  Subsection (9) of section 397.405, Florida

 7  Statutes, is amended to read:

 8         397.405  Exemptions from licensure.--The following are

 9  exempt from the licensing provisions of this chapter:

10         (9)  Facilities licensed under s. 393.063 s. 393.063(8)

11  that, in addition to providing services to persons who are

12  developmentally disabled as defined therein, also provide

13  services to persons developmentally at risk as a consequence

14  of exposure to alcohol or other legal or illegal drugs while

15  in utero.

16  

17  The exemptions from licensure in this section do not apply to

18  any service provider that receives an appropriation, grant, or

19  contract from the state to operate as a service provider as

20  defined in this chapter or to any substance abuse program

21  regulated pursuant to s. 397.406.  Furthermore, this chapter

22  may not be construed to limit the practice of a physician

23  licensed under chapter 458 or chapter 459, a psychologist

24  licensed under chapter 490, or a psychotherapist licensed

25  under chapter 491 who provides substance abuse treatment, so

26  long as the physician, psychologist, or psychotherapist does

27  not represent to the public that he or she is a licensed

28  service provider and does not provide services to clients

29  pursuant to part V of this chapter. Failure to comply with any

30  requirement necessary to maintain an exempt status under this

31  

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 1  section is a misdemeanor of the first degree, punishable as

 2  provided in s. 775.082 or s. 775.083.

 3         Section 24.  Paragraph (b) of subsection (5) of section

 4  400.464, Florida Statutes, is amended to read:

 5         400.464  Home health agencies to be licensed;

 6  expiration of license; exemptions; unlawful acts; penalties.--

 7         (5)  The following are exempt from the licensure

 8  requirements of this part:

 9         (b)  Home health services provided by a state agency,

10  either directly or through a contractor with:

11         1.  The Department of Elderly Affairs.

12         2.  The Department of Health, a community health

13  center, or a rural health network that furnishes home visits

14  for the purpose of providing environmental assessments, case

15  management, health education, personal care services, family

16  planning, or followup treatment, or for the purpose of

17  monitoring and tracking disease.

18         3.  Services provided to persons who have developmental

19  disabilities, as defined in s. 393.063 s. 393.063(12).

20         4.  Companion and sitter organizations that were

21  registered under s. 400.509(1) on January 1, 1999, and were

22  authorized to provide personal services under s. 393.063(33)

23  under a developmental services provider certificate on January

24  1, 1999, may continue to provide such services to past,

25  present, and future clients of the organization who need such

26  services, notwithstanding the provisions of this act.

27         5.  The Department of Children and Family Services.

28         Section 25.  Paragraph (d) of subsection (1) of section

29  419.001, Florida Statutes, is amended to read:

30         419.001  Site selection of community residential

31  homes.--

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 1         (1)  For the purposes of this section, the following

 2  definitions shall apply:

 3         (d)  "Resident" means any of the following:  a frail

 4  elder as defined in s. 400.618; a physically disabled or

 5  handicapped person as defined in s. 760.22(7)(a); a

 6  developmentally disabled person as defined in s. 393.063 s.

 7  393.063(12); a nondangerous mentally ill person as defined in

 8  s. 394.455(18); or a child as defined in s. 39.01(14), s.

 9  984.03(9) or (12), or s. 985.03(8).

10         Section 26.  Section 914.16, Florida Statutes, is

11  amended to read:

12         914.16  Child abuse and sexual abuse of victims under

13  age 16 or persons with mental retardation; limits on

14  interviews.--The chief judge of each judicial circuit, after

15  consultation with the state attorney and the public defender

16  for the judicial circuit, the appropriate chief law

17  enforcement officer, and any other person deemed appropriate

18  by the chief judge, shall provide by order reasonable limits

19  on the number of interviews that a victim of a violation of s.

20  794.011, s. 800.04, or s. 827.03 who is under 16 years of age

21  or a victim of a violation of s. 794.011, s. 800.02, s.

22  800.03, or s. 825.102 who is a person with mental retardation

23  as defined in s. 393.063 s. 393.063(42) must submit to for law

24  enforcement or discovery purposes. The order shall, to the

25  extent possible, protect the victim from the psychological

26  damage of repeated interrogations while preserving the rights

27  of the public, the victim, and the person charged with the

28  violation.

29         Section 27.  Subsection (2) of section 914.17, Florida

30  Statutes, is amended to read:

31  

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 1         914.17  Appointment of advocate for victims or

 2  witnesses who are minors or persons with mental retardation.--

 3         (2)  An advocate shall be appointed by the court to

 4  represent a person with mental retardation as defined in s.

 5  393.063 s. 393.063(42) in any criminal proceeding if the

 6  person with mental retardation is a victim of or witness to

 7  abuse or neglect, or if the person with mental retardation is

 8  a victim of a sexual offense or a witness to a sexual offense

 9  committed against a minor or person with mental retardation.

10  The court may appoint an advocate in any other criminal

11  proceeding in which a person with mental retardation is

12  involved as either a victim or a witness. The advocate shall

13  have full access to all evidence and reports introduced during

14  the proceedings, may interview witnesses, may make

15  recommendations to the court, shall be noticed and have the

16  right to appear on behalf of the person with mental

17  retardation at all proceedings, and may request additional

18  examinations by medical doctors, psychiatrists, or

19  psychologists. It is the duty of the advocate to perform the

20  following services:

21         (a)  To explain, in language understandable to the

22  person with mental retardation, all legal proceedings in which

23  the person shall be involved;

24         (b)  To act, as a friend of the court, to advise the

25  judge, whenever appropriate, of the person with mental

26  retardation's ability to understand and cooperate with any

27  court proceedings; and

28         (c)  To assist the person with mental retardation and

29  the person's family in coping with the emotional effects of

30  the crime and subsequent criminal proceedings in which the

31  person with mental retardation is involved.

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 1         Section 28.  Subsection (1) of section 918.16, Florida

 2  Statutes, is amended to read:

 3         918.16  Sex offenses; testimony of person under age 16

 4  or person with mental retardation; testimony of victim;

 5  courtroom cleared; exceptions.--

 6         (1)  Except as provided in subsection (2), in the trial

 7  of any case, civil or criminal, when any person under the age

 8  of 16 or any person with mental retardation as defined in s.

 9  393.063 s. 393.063(42) is testifying concerning any sex

10  offense, the court shall clear the courtroom of all persons

11  except parties to the cause and their immediate families or

12  guardians, attorneys and their secretaries, officers of the

13  court, jurors, newspaper reporters or broadcasters, court

14  reporters, and, at the request of the victim, victim or

15  witness advocates designated by the state attorney's office.

16         Section 29.  Subsections (3) and (4) of section

17  393.0641, Florida Statutes, are amended to read:

18         393.0641  Program for the prevention and treatment of

19  severe self-injurious behavior.--

20         (3)  The agency department may contract for the

21  provision of any portion or all of the services required by

22  the program.

23         (4)  The agency has department shall have the authority

24  to license this program and shall adopt promulgate rules to

25  implement the program.

26         Section 30.  Section 393.065, Florida Statutes, is

27  amended to read:

28         393.065  Application and eligibility determination.--

29         (1)  Application for services shall be made in writing

30  to the agency Department of Children and Family Services, in

31  the district in which the applicant resides. Employees of the

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 1  agency's department's developmental services program shall

 2  review each applicant for eligibility within 45 days after the

 3  date the application is signed for children under 6 years of

 4  age and within 60 days after the date the application is

 5  signed for all other applicants. When necessary to

 6  definitively identify individual conditions or needs, the

 7  agency department shall provide a comprehensive assessment.

 8  Only individuals whose domicile is in Florida are shall be

 9  eligible for services. Information accumulated by other

10  agencies, including professional reports and collateral data,

11  shall be considered in this process when available.

12         (2)  In order to provide immediate services or crisis

13  intervention to applicants, the agency department shall

14  arrange for emergency eligibility determination, with a full

15  eligibility review to be accomplished within 45 days of the

16  emergency eligibility determination.

17         (3)  The agency department shall notify each applicant,

18  in writing, of its eligibility decision. Any applicant

19  determined by the agency department to be ineligible for

20  developmental services has shall have the right to appeal this

21  decision pursuant to ss. 120.569 and 120.57.

22         (4)  The agency department shall assess the level of

23  need and medical necessity for prospective residents of

24  intermediate-care facilities for the developmentally disabled

25  after October 1, 1999. The agency department may enter into an

26  agreement with the Department of Elderly Affairs for its

27  Comprehensive Assessment and Review for Long-Term-Care

28  Services (CARES) program to conduct assessments to determine

29  the level of need and medical necessity for long-term-care

30  services under this chapter. To the extent permissible under

31  

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 1  federal law, the assessments must be funded under Title XIX of

 2  the Social Security Act.

 3         Section 31.  Section 393.0651, Florida Statutes, is

 4  amended to read:

 5         393.0651  Family or individual support plan.--The

 6  agency department shall provide for an appropriate family

 7  support plan for children ages birth to 18 years of age and an

 8  individual support plan for each client. The parent or

 9  guardian of the client or, if competent, the client, or, when

10  appropriate, the client advocate, shall be consulted in the

11  development of the plan and shall receive a copy of the plan.

12  Each plan shall include the most appropriate, least

13  restrictive, and most cost-beneficial environment for

14  accomplishment of the objectives for client progress and a

15  specification of all services authorized. The plan shall

16  include provisions for the most appropriate level of care for

17  the client. Within the specification of needs and services for

18  each client, when residential care is necessary, the agency

19  department shall move toward placement of clients in

20  residential facilities based within the client's community.

21  The ultimate goal of each plan, whenever possible, shall be to

22  enable the client to live a dignified life in the least

23  restrictive setting, be that in the home or in the community.

24  For children under 6 years of age, the family support plan

25  shall be developed within the 45-day application period as

26  specified in s. 393.065(1); for all applicants 6 years of age

27  or older, the family or individual support plan shall be

28  developed within the 60-day period as specified in that

29  subsection.

30  

31  

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 1         (1)  The agency department shall develop and specify by

 2  rule the core components of support plans to be used by each

 3  district.

 4         (2)(a)  The family or individual support plan shall be

 5  integrated with the individual education plan (IEP) for all

 6  clients who are public school students entitled to a free

 7  appropriate public education under the Individuals with

 8  Disabilities Education Act, I.D.E.A., as amended. The family

 9  or individual support plan and IEP shall be implemented to

10  maximize the attainment of educational and habilitation goals.

11  If the IEP for a student enrolled in a public school program

12  indicates placement in a public or private residential program

13  is necessary to provide special education and related services

14  to a client, the local education agency shall provide for the

15  costs of that service in accordance with the requirements of

16  the Individuals with Disabilities Education Act, I.D.E.A., as

17  amended. This shall not preclude local education agencies and

18  the agency department from sharing the residential service

19  costs of students who are clients and require residential

20  placement. Under no circumstances shall clients entitled to a

21  public education or their parents be assessed a fee by the

22  agency department under s. 402.33 for placement in a

23  residential program.

24         (b)  For clients who are entering or exiting the school

25  system, an interdepartmental staffing team composed of

26  representatives of the agency department and the local school

27  system shall develop a written transitional living and

28  training plan with the participation of the client or with the

29  parent or guardian of the client, or the client advocate, as

30  appropriate.

31  

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 1         (3)  Each family or individual support plan shall be

 2  facilitated through case management designed solely to advance

 3  the individual needs of the client.

 4         (4)  In the development of the family or individual

 5  support plan, a client advocate may be appointed by the

 6  support planning team for a client who is a minor or for a

 7  client who is not capable of express and informed consent

 8  when:

 9         (a)  The parent or guardian cannot be identified;

10         (b)  The whereabouts of the parent or guardian cannot

11  be discovered; or

12         (c)  The state is the only legal representative of the

13  client.

14  

15  Such appointment shall not be construed to extend the powers

16  of the client advocate to include any of those powers

17  delegated by law to a legal guardian.

18         (5)  The agency department shall place a client in the

19  most appropriate and least restrictive, and cost-beneficial,

20  residential facility according to his or her individual

21  habilitation plan. The parent or guardian of the client or, if

22  competent, the client, or, when appropriate, the client

23  advocate, and the administrator of the residential facility to

24  which placement is proposed shall be consulted in determining

25  the appropriate placement for the client. Considerations for

26  placement shall be made in the following order:

27         (a)  Client's own home or the home of a family member

28  or direct service provider.

29         (b)  Foster care facility.

30         (c)  Group home facility.

31  

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 1         (d)  Intermediate care facility for the developmentally

 2  disabled.

 3         (e)  Other facilities licensed by the agency department

 4  which offer special programs for people with developmental

 5  disabilities.

 6         (f)  Developmental services institution.

 7         (6)  In developing a client's annual family or

 8  individual support plan, the individual or family with the

 9  assistance of the support planning team shall identify

10  measurable objectives for client progress and shall specify a

11  time period expected for achievement of each objective.

12         (7)  The individual, family, and support coordinator

13  shall review progress in achieving the objectives specified in

14  each client's family or individual support plan, and shall

15  revise the plan annually, following consultation with the

16  client, if competent, or with the parent or guardian of the

17  client, or, when appropriate, the client advocate. The agency

18  department shall annually report in writing to the client, if

19  competent, or to the parent or guardian of the client, or to

20  the client advocate, when appropriate, with respect to the

21  client's habilitative and medical progress.

22         (8)  Any client, or any parent of a minor client, or

23  guardian, authorized guardian advocate, or client advocate for

24  a client, who is substantially affected by the client's

25  initial family or individual support plan, or the annual

26  review thereof, shall have the right to file a notice to

27  challenge the decision pursuant to ss. 120.569 and 120.57.

28  Notice of such right to appeal shall be included in all

29  support plans provided by the agency department.

30         Section 32.  Section 393.0673, Florida Statutes, is

31  amended to read:

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 1         393.0673  Denial, suspension, revocation of license;

 2  moratorium on admissions; administrative fines; procedures.--

 3         (1)  The agency Department of Children and Family

 4  Services may deny, revoke, or suspend a license or impose an

 5  administrative fine, not to exceed $1,000 per violation per

 6  day, for a violation of any provision of s. 393.0655 or s.

 7  393.067 or rules adopted pursuant thereto. All hearings shall

 8  be held within the county in which the licensee or applicant

 9  operates or applies for a license to operate a facility as

10  defined herein.

11         (2)  The agency department, as a part of any final

12  order issued by it under the provisions of this chapter, may

13  impose such fine as it deems proper, except that such fine may

14  not exceed $1,000 for each violation.  Each day a violation of

15  this chapter occurs constitutes a separate violation and is

16  subject to a separate fine, but in no event may the aggregate

17  amount of any fine exceed $10,000.  Fines paid by any facility

18  licensee under the provisions of this subsection shall be

19  deposited in the Resident Protection Trust Fund and expended

20  as provided in s. 400.063.

21         (3)  The agency department may issue an order

22  immediately suspending or revoking a license when it

23  determines that any condition in the facility presents a

24  danger to the health, safety, or welfare of the residents in

25  the facility.

26         (4)  The agency department may impose an immediate

27  moratorium on admissions to any facility when the department

28  determines that any condition in the facility presents a

29  threat to the health, safety, or welfare of the residents in

30  the facility.

31  

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 1         Section 33.  Subsections (1) and (3) of section

 2  393.0675, Florida Statutes, are amended to read:

 3         393.0675  Injunctive proceedings authorized.--

 4         (1)  The agency Department of Children and Family

 5  Services may institute injunctive proceedings in a court of

 6  competent jurisdiction to:

 7         (a)  Enforce the provisions of this chapter or any

 8  minimum standard, rule, regulation, or order issued or entered

 9  pursuant thereto; or

10         (b)  Terminate the operation of facilities licensed

11  pursuant to this chapter when any of the following conditions

12  exist:

13         1.  Failure by the facility to take preventive or

14  corrective measures in accordance with any order of the agency

15  department.

16         2.  Failure by the facility to abide by any final order

17  of the agency department once it has become effective and

18  binding.

19         3.  Any violation by the facility constituting an

20  emergency requiring immediate action as provided in s.

21  393.0673.

22         (3)  The agency department may institute proceedings

23  for an injunction in a court of competent jurisdiction to

24  terminate the operation of a provider of supports or services

25  if such provider has willfully and knowingly refused to comply

26  with the screening requirement for direct service providers or

27  has refused to terminate direct service providers found not to

28  be in compliance with the requirements for good moral

29  character.

30  

31  

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 1         Section 34.  Subsection (1), paragraphs (b), (c), and

 2  (d) of subsection (2), and paragraph (e) of subsection (3) of

 3  section 393.0678, Florida Statutes, are amended to read:

 4         393.0678  Receivership proceedings.--

 5         (1)  The agency department may petition a court of

 6  competent jurisdiction for the appointment of a receiver for

 7  an intermediate care facility for the developmentally

 8  disabled, a residential habilitation center, or a group home

 9  facility owned and operated by a corporation or partnership

10  when any of the following conditions exist:

11         (a)  Any person is operating a facility without a

12  license and refuses to make application for a license as

13  required by s. 393.067 or, in the case of an intermediate care

14  facility for the developmentally disabled, as required by ss.

15  393.067 and 400.062.

16         (b)  The licensee is closing the facility or has

17  informed the department that it intends to close the facility;

18  and adequate arrangements have not been made for relocation of

19  the residents within 7 days, exclusive of weekends and

20  holidays, of the closing of the facility.

21         (c)  The agency department determines that conditions

22  exist in the facility which present an imminent danger to the

23  health, safety, or welfare of the residents of the facility or

24  which present a substantial probability that death or serious

25  physical harm would result therefrom.  Whenever possible, the

26  agency department shall facilitate the continued operation of

27  the program.

28         (d)  The licensee cannot meet its financial obligations

29  to provide food, shelter, care, and utilities. Evidence such

30  as the issuance of bad checks or the accumulation of

31  delinquent bills for such items as personnel salaries, food,

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 1  drugs, or utilities constitutes prima facie evidence that the

 2  ownership of the facility lacks the financial ability to

 3  operate the home in accordance with the requirements of this

 4  chapter and all rules promulgated thereunder.

 5         (2)

 6         (b)  A hearing shall be conducted within 5 days of the

 7  filing of the petition, at which time all interested parties

 8  shall have the opportunity to present evidence pertaining to

 9  the petition.  The agency department shall notify the owner or

10  operator of the facility named in the petition of its filing

11  and the date set for the hearing.

12         (c)  The court shall grant the petition only upon

13  finding that the health, safety, or welfare of residents of

14  the facility would be threatened if a condition existing at

15  the time the petition was filed is permitted to continue.  A

16  receiver may not be appointed ex parte unless the court

17  determines that one or more of the conditions in subsection

18  (1) exist; that the facility owner or operator cannot be

19  found; that all reasonable means of locating the owner or

20  operator and notifying him or her of the petition and hearing

21  have been exhausted; or that the owner or operator after

22  notification of the hearing chooses not to attend. After such

23  findings, the court may appoint any person qualified by

24  education, training, or experience to carry out the

25  responsibilities of receiver pursuant to this section, except

26  that the court may not appoint any owner or affiliate of the

27  facility which is in receivership.  Before the appointment as

28  receiver of a person who is the operator, manager, or

29  supervisor of another facility, the court shall determine that

30  the person can reasonably operate, manage, or supervise more

31  than one facility.  The receiver may be appointed for up to 90

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 1  days with the option of petitioning the court for 30-day

 2  extensions.  The receiver may be selected from a list of

 3  persons qualified to act as receivers developed by the agency

 4  department and presented to the court with each petition for

 5  receivership. Under no circumstances may the agency department

 6  or designated agency departmental employee be appointed as a

 7  receiver for more than 60 days; however, the agency

 8  departmental receiver may petition the court for 30-day

 9  extensions.  The court shall grant an extension upon a showing

10  of good cause.  The agency department may petition the court

11  to appoint a substitute receiver.

12         (d)  During the first 60 days of the receivership, the

13  agency department may not take action to decertify or revoke

14  the license of a facility unless conditions causing imminent

15  danger to the health and welfare of the residents exist and a

16  receiver has been unable to remove those conditions.  After

17  the first 60 days of receivership, and every 60 days

18  thereafter until the receivership is terminated, the agency

19  department shall submit to the court the results of an

20  assessment of the ability of the facility to assure the safety

21  and care of the residents.  If the conditions at the facility

22  or the intentions of the owner indicate that the purpose of

23  the receivership is to close the facility rather than to

24  facilitate its continued operation, the agency department

25  shall place the residents in appropriate alternate residential

26  settings as quickly as possible.  If, in the opinion of the

27  court, the agency department has not been diligent in its

28  efforts to make adequate arrangements for placement, the court

29  shall find the agency department to be in contempt and shall

30  order the agency department to submit its plans for moving the

31  residents.

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 1         (3)  The receiver shall make provisions for the

 2  continued health, safety, and welfare of all residents of the

 3  facility and:

 4         (e)  May use the building, fixtures, furnishings, and

 5  any accompanying consumable goods in the provision of care and

 6  services to residents and to any other persons receiving

 7  services from the facility at the time the petition for

 8  receivership was filed.  The receiver shall collect payments

 9  for all goods and services provided to residents or others

10  during the period of the receivership at the same rate of

11  payment charged by the owner at the time the petition for

12  receivership was filed, or at a fair and reasonable rate

13  otherwise approved by the court for private, paying residents.

14  The receiver may apply to the agency department for a rate

15  increase for residents under Title XIX of the Social Security

16  Act if the facility is not receiving the state reimbursement

17  cap and if expenditures justify an increase in the rate.

18         Section 35.  Section 393.071, Florida Statutes, is

19  amended to read:

20         393.071  Client fees.--The agency Department of

21  Children and Family Services shall charge fees for services

22  provided to clients in accordance with s. 402.33.

23         Section 36.  Subsection (2) of section 393.075, Florida

24  Statutes, is amended to read:

25         393.075  General liability coverage.--

26         (2)  The Division of Risk Management of the Department

27  of Financial Services shall provide coverage through the

28  agency Department of Children and Family Services to any

29  person who owns or operates a foster care facility or group

30  home facility solely for the agency Department of Children and

31  Family Services, who cares for children placed by

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 1  developmental services staff of the agency department, and who

 2  is licensed pursuant to s. 393.067 to provide such supervision

 3  and care in his or her place of residence. The coverage shall

 4  be provided from the general liability account of the State

 5  Risk Management Trust Fund.  The coverage is limited to

 6  general liability claims arising from the provision of

 7  supervision and care of children in a foster care facility or

 8  group home facility pursuant to an agreement with the agency

 9  department and pursuant to guidelines established through

10  policy, rule, or statute. Coverage shall be subject to the

11  limits provided in ss. 284.38 and 284.385, and the exclusions

12  set forth therein, together with other exclusions as may be

13  set forth in the certificate of coverage issued by the trust

14  fund. A person covered under the general liability account

15  pursuant to this subsection shall immediately notify the

16  Division of Risk Management of the Department of Financial

17  Services of any potential or actual claim.

18         Section 37.  Section 393.115, Florida Statutes, is

19  amended to read:

20         393.115  Discharge.--

21         (1)  DISCHARGE AT THE AGE OF MAJORITY.--

22         (a)  When any residential client reaches his or her

23  18th birthday, the agency department shall give the resident

24  or legal guardian the option to continue residential services

25  or to be discharged from residential services.

26         (b)  If the resident appears to meet the criteria for

27  involuntary admission to residential services, as defined in

28  s. 393.11, the agency department shall file a petition to

29  determine the appropriateness of continued residential

30  placement on an involuntary basis. The agency department shall

31  file the petition for involuntary admission in the county in

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 1  which the client resides. If the resident was originally

 2  involuntarily admitted to residential services pursuant to s.

 3  393.11, then the agency department shall file the petition in

 4  the court having continuing jurisdiction over the case.

 5         (c)  Nothing in this section shall in any way limit or

 6  restrict the resident's right to a writ of habeas corpus or

 7  the right of the agency department to transfer a resident

 8  receiving residential care to a program of appropriate

 9  services provided by the agency department when such program

10  is the appropriate habilitative setting for the resident.

11         (2)  DISCHARGE AFTER CRIMINAL OR JUVENILE

12  COMMITMENT.--Any person with developmental disabilities

13  committed to the custody of the agency department pursuant to

14  the provisions of the applicable criminal or juvenile court

15  law shall be discharged in accordance with the requirements of

16  the applicable criminal or juvenile court law.

17         Section 38.  Subsection (3) of section 393.12, Florida

18  Statutes, is amended to read:

19         393.12  Capacity; appointment of guardian advocate.--

20         (3)  COURT COSTS.--In all proceedings under this

21  section, no court costs shall be charged against the agency

22  department.

23         Section 39.  Section 393.125, Florida Statutes, is

24  amended to read:

25         393.125  Hearing rights.--

26         (1)  REVIEW OF AGENCY DEPARTMENT DECISIONS.--

27         (a)  Any developmental services applicant or client, or

28  his or her parent, guardian, guardian advocate, or authorized

29  representative, who has any substantial interest determined by

30  the agency department, has shall have the right to request an

31  administrative hearing pursuant to ss. 120.569 and 120.57.

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 1         (b)  Notice of the right to an administrative hearing

 2  shall be given, both verbally and in writing, to the applicant

 3  or client, and his or her parent, guardian, guardian advocate,

 4  or authorized representative, at the same time that the agency

 5  department gives the applicant or client notice of the

 6  agency's department's action.  The notice shall be given, both

 7  verbally and in writing, in the language of the client or

 8  applicant and in English.

 9         (c)  A request for a hearing under this section shall

10  be made to the agency department, in writing, within 30 days

11  of the applicant's or client's receipt of the notice.

12         (2)  REVIEW OF PROVIDER DECISIONS.--The agency

13  department shall adopt promulgate rules to establish uniform

14  guidelines for the agency department and service providers

15  relevant to termination, suspension, or reduction of client

16  services by the service provider.  The rules shall ensure the

17  due process rights of service providers and clients.

18         Section 40.  Subsections (3), (4), (5), and (6) of

19  section 393.15, Florida Statutes, are amended to read:

20         393.15  Legislative intent; Community Resources

21  Development Trust Fund.--

22         (3)  There is created a Community Resources Development

23  Trust Fund in the State Treasury to be used by the agency

24  Department of Children and Family Services for the purpose of

25  granting loans to eligible programs for the initial costs of

26  development of the programs.  Loans shall be made only to

27  those facilities which are in compliance with the zoning

28  regulations of the local community.  Costs of development may

29  include structural modification, the purchase of equipment and

30  fire and safety devices, preoperational staff training, and

31  

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 1  the purchase of insurance.  Such costs shall not include the

 2  actual construction of a facility.

 3         (4)  The agency department may grant to an eligible

 4  program a lump-sum loan in one payment not to exceed the cost

 5  to the program of providing 2 months' services, care, or

 6  maintenance to each person who is developmentally disabled to

 7  be placed in the program by the agency department, or the

 8  actual cost of firesafety renovations to a facility required

 9  by the state, whichever is greater.  Loans granted to programs

10  shall not be in lieu of payment for maintenance, services, or

11  care provided, but shall stand separate and distinct.  The

12  agency department shall adopt promulgate rules, as provided in

13  chapter 120, to determine the standards under which a program

14  shall be eligible to receive a loan as provided in this

15  section and criteria for the equitable allocation of loan

16  trust funds when eligible applications exceed the funds

17  available.

18         (5)  Any loan granted by the agency department under

19  this section shall be repaid by the program within 5 years.  A

20  program that which operates as a nonprofit corporation meeting

21  the requirements of s. 501(c)(3) of the Internal Revenue Code,

22  and that which seeks forgiveness of its loan shall submit to

23  the agency department a statement setting forth the service it

24  has provided during the year together with such other

25  information as the agency department by rule shall require,

26  and, upon approval of each such annual statement, the agency

27  department shall forgive 20 percent of the principal of any

28  such loan granted after June 30, 1975.

29         (6)  If any program that which has received a loan

30  under this section ceases to accept, or provide care,

31  services, or maintenance to persons placed in the program by

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 1  the department, or if such program files shall file papers of

 2  bankruptcy, at that point in time the loan shall become an

 3  interest-bearing loan at the rate of 5 percent per annum on

 4  the entire amount of the initial loan which shall be repaid

 5  within a 1-year period from the date on which the program

 6  ceases to provide care, services, or maintenance, or files

 7  papers in bankruptcy, and the amount of the loan due plus

 8  interest shall constitute a lien in favor of the state against

 9  all real and personal property of the program.  The lien shall

10  be perfected by the appropriate officer of the agency

11  department by executing and acknowledging a statement of the

12  name of the program and the amount due on the loan and a copy

13  of the promissory note, which shall be recorded by the agency

14  department with the clerk of the circuit court in the county

15  wherein the program is located.  If the program has filed a

16  petition for bankruptcy, the agency department shall file and

17  enforce the lien in the bankruptcy proceedings.  Otherwise,

18  the lien shall be enforced in the manner provided in s.

19  85.011.  All funds received by the agency department from the

20  enforcement of the lien shall be deposited in the Community

21  Resources Development Trust Fund.

22         Section 41.  Subsection (1) of section 393.501, Florida

23  Statutes, is amended to read:

24         393.501  Rulemaking.--

25         (1)  The agency department shall adopt rules to carry

26  out the provisions of this chapter.

27         Section 42.  Section 393.503, Florida Statutes, is

28  amended to read:

29         393.503  Respite and family care subsidy expenditures;

30  funding.--The agency Department of Children and Family

31  Services shall determine the amount of expenditures per fiscal

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 1  year for the respite and family care subsidy to families and

 2  individuals with developmental disabilities living in their

 3  own homes.  This information shall be made available to the

 4  family care councils and to others requesting the information.

 5  The family care councils shall review the expenditures and

 6  make recommendations to the agency department with respect to

 7  any new funds that are made available for family care.

 8         Section 43.  Subsection (2) of section 393.506, Florida

 9  Statutes, is amended to read:

10         393.506  Administration of medication.--

11         (2)  Each facility, institution, or program must

12  include in its policies and procedures a plan for training

13  designated staff to ensure the safe handling, storage, and

14  administration of prescription medication. These policies and

15  procedures must be approved by the agency department before

16  unlicensed direct care services staff assist with medication.

17         Section 44.  Section 393.135, Florida Statutes, is

18  created to read:

19         393.135  Sexual misconduct prohibited; reporting

20  required; penalties.--

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

22         (a)  "Employee" includes any paid staff member,

23  volunteer, or intern of the agency or the Agency for Health

24  Care Administration or any person under contract with the

25  agency or the Agency for Health Care Administration or any

26  person providing care or support to a client on behalf of the

27  agency or the Agency for Health Care Administration or their

28  providers.

29         (b)  "Sexual activity" means:

30         1.  Fondling the genital area, groin, inner thighs,

31  buttocks, or breasts of a person;

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 1         2.  The oral, anal, or vaginal penetration by, or union

 2  with, the sexual organ of another or the anal or vaginal

 3  penetration of another by any other object;

 4         3.  Intentionally touching in a lewd or lascivious

 5  manner the breasts, genitals, the genital area, or buttocks,

 6  or the clothing covering them, of a person, or forcing or

 7  enticing a person to touch the perpetrator;

 8         4.  Intentionally masturbating in the presence of

 9  another person;

10         5.  Intentionally exposing the genitals in a lewd or

11  lascivious manner in the presence of another person; or

12         6.  Intentionally committing any other sexual act that

13  does not involve actual physical or sexual contact with the

14  victim, including, but not limited to, sadomasochistic abuse,

15  sexual bestiality, or the simulation of any act involving

16  sexual activity in the presence of a victim.

17         (c)  "Sexual misconduct" means any sexual activity

18  between an employee and a client, regardless of the consent of

19  the client. The term does not include an act done for a bona

20  fide medical purpose or an internal search conducted in the

21  lawful performance of duty by an employee.

22         (2)  An employee who engages in sexual misconduct with

23  an individual with a developmental disability who:

24         (a)  Is in the custody of the agency;

25         (b)  Resides in a residential facility, including any

26  comprehensive transitional education program, developmental

27  disabilities institution, foster care facility, group home

28  facility, intermediate care facility for the developmentally

29  disabled, or residential habilitation center; or

30         (c)  Receives services from a family care program

31  

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 1  commits a felony of the second degree, punishable as provided

 2  in s. 775.082, s. 775.083, or s. 775.084. An employee may be

 3  found guilty of violating this subsection without having

 4  committed the crime of sexual battery.

 5         (3)  The consent of the client to sexual activity is

 6  not a defense to prosecution under this section.

 7         (4)  This section does not apply to an employee who:

 8         (a)  Is legally married to the client; or

 9         (b)  Had no reason to believe that the person with whom

10  the employee engaged in sexual misconduct is a client

11  receiving services as described in subsection (2).

12         (5)  An employee who witnesses sexual misconduct, or

13  who otherwise knows or has reasonable cause to suspect that a

14  person has engaged in sexual misconduct, shall immediately

15  report the incident to the Department of Children and Family

16  Services' central abuse hotline and to law enforcement. Such

17  employee shall also prepare, date, and sign an independent

18  report that specifically describes the nature of the sexual

19  misconduct, the location and time of the incident, and the

20  persons involved. The employee shall deliver the report to the

21  supervisor or program director, who is responsible for

22  providing copies to the agency's inspector general. The

23  inspector general shall immediately conduct an appropriate

24  administrative investigation, and, if there is probable cause

25  to believe that sexual misconduct has occurred, the inspector

26  general shall notify the state attorney in the circuit in

27  which the incident occurred.

28         (6)(a)  Any person who is required to make a report

29  under this section and who knowingly or willfully fails to do

30  so, or who knowingly or willfully prevents another person from

31  

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 1  doing so, commits a misdemeanor of the first degree,

 2  punishable as provided in s. 775.082 or s. 775.083.

 3         (b)  Any person who knowingly or willfully submits

 4  inaccurate, incomplete, or untruthful information with respect

 5  to a report required under this section commits a misdemeanor

 6  of the first degree, punishable as provided in s. 775.082 or

 7  s. 775.083.

 8         (c)  Any person who knowingly or willfully coerces or

 9  threatens any other person with the intent to alter testimony

10  or a written report regarding an incident of sexual misconduct

11  commits a felony of the third degree, punishable as provided

12  in s. 775.082, s. 775.083, or s. 775.084.

13         (7)  The provisions and penalties set forth in this

14  section are in addition to any other civil, administrative, or

15  criminal action provided by law which may be applied against

16  an employee.

17         Section 45.  Section 394.4593, Florida Statutes, is

18  created to read:

19         394.4593  Sexual misconduct prohibited; reporting

20  required; penalties.--

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

22         (a)  "Employee" includes any paid staff member,

23  volunteer, or intern of the department or any person under

24  contract with the department or any person providing care or

25  support to a patient on behalf of the department or its

26  providers.

27         (b)  "Sexual activity" means:

28         1.  Fondling the genital area, groin, inner thighs,

29  buttocks, or breasts of a person;

30  

31  

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 1         2.  The oral, anal, or vaginal penetration by, or union

 2  with, the sexual organ of another or the anal or vaginal

 3  penetration of another by any other object;

 4         3.  Intentionally touching in a lewd or lascivious

 5  manner the breasts, genitals, the genital area, or buttocks,

 6  or the clothing covering them, of a person, or forcing or

 7  enticing a person to touch the perpetrator;

 8         4.  Intentionally masturbating in the presence of

 9  another person;

10         5.  Intentionally exposing the genitals in a lewd or

11  lascivious manner in the presence of another person; or

12         6.  Intentionally committing any other sexual act that

13  does not involve actual physical or sexual contact with the

14  victim, including, but not limited to, sadomasochistic abuse,

15  sexual bestiality, or the simulation of any act involving

16  sexual activity in the presence of a victim.

17         (c)  "Sexual misconduct" means any sexual activity

18  between an employee and a patient, regardless of the consent

19  of the patient. The term does not include an act done for a

20  bona fide medical purpose or an internal search conducted in

21  the lawful performance of duty by an employee.

22         (2)  An employee who engages in sexual misconduct with

23  a patient who:

24         (a)  Is in the custody of the department; or

25         (b)  Resides in a receiving facility as defined in s.

26  394.455(26) or a treatment facility as defined in s.

27  394.455(30),

28  

29  commits a felony of the second degree, punishable as provided

30  in s. 775.082, s. 775.083, or s. 775.084. An employee may be

31  

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 1  found guilty of violating this subsection without having

 2  committed the crime of sexual battery.

 3         (3)  The consent of the patient to sexual activity is

 4  not a defense to prosecution under this section.

 5         (4)  This section does not apply to an employee who:

 6         (a)  Is legally married to the patient; or

 7         (b)  Had no reason to believe that the person with whom

 8  the employee engaged in sexual misconduct is a patient

 9  receiving services as described in subsection (2).

10         (5)  An employee who witnesses sexual misconduct, or

11  who otherwise knows or has reasonable cause to suspect that a

12  person has engaged in sexual misconduct, shall immediately

13  report the incident to the department's central abuse hotline

14  and to law enforcement. Such employee shall also prepare,

15  date, and sign an independent report that specifically

16  describes the nature of the sexual misconduct, the location

17  and time of the incident, and the persons involved. The

18  employee shall deliver the report to the supervisor or program

19  director, who is responsible for providing copies to the

20  department's inspector general. The inspector general shall

21  immediately conduct an appropriate administrative

22  investigation, and, if there is probable cause to believe that

23  sexual misconduct has occurred, the inspector general shall

24  notify the state attorney in the circuit in which the incident

25  occurred.

26         (6)(a)  Any person who is required to make a report

27  under this section and who knowingly or willfully fails to do

28  so, or who knowingly or willfully prevents another person from

29  doing so, commits a misdemeanor of the first degree,

30  punishable as provided in s. 775.082 or s. 775.083.

31  

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 1         (b)  Any person who knowingly or willfully submits

 2  inaccurate, incomplete, or untruthful information with respect

 3  to a report required under this section commits a misdemeanor

 4  of the first degree, punishable as provided in s. 775.082 or

 5  s. 775.083.

 6         (c)  Any person who knowingly or willfully coerces or

 7  threatens any other person with the intent to alter testimony

 8  or a written report regarding an incident of sexual misconduct

 9  commits a felony of the third degree, punishable as provided

10  in s. 775.082, s. 775.083, or s. 775.084.

11         (7)  The provisions and penalties set forth in this

12  section are in addition to any other civil, administrative, or

13  criminal action provided by law which may be applied against

14  an employee.

15         Section 46.  Section 916.1075, Florida Statutes, is

16  created to read:

17         916.1075  Sexual misconduct prohibited; reporting

18  required; penalties.--

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

20         (a)  "Employee" includes any paid staff member,

21  volunteer, or intern of the department or the Agency for

22  Persons with Disabilities or any person under contract with

23  the department or the Agency for Persons with Disabilities or

24  any person providing care or support to a client on behalf of

25  the department or the Agency for Persons with Disabilities or

26  their providers.

27         (b)  "Sexual activity" means:

28         1.  Fondling the genital area, groin, inner thighs,

29  buttocks, or breasts of a person;

30  

31  

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 1         2.  The oral, anal, or vaginal penetration by, or union

 2  with, the sexual organ of another or the anal or vaginal

 3  penetration of another by any other object;

 4         3.  Intentionally touching in a lewd or lascivious

 5  manner the breasts, genitals, the genital area, or buttocks,

 6  or the clothing covering them, of a person, or forcing or

 7  enticing a person to touch the perpetrator;

 8         4.  Intentionally masturbating in the presence of

 9  another person;

10         5.  Intentionally exposing the genitals in a lewd or

11  lascivious manner in the presence of another person; or

12         6.  Intentionally committing any other sexual act that

13  does not involve actual physical or sexual contact with the

14  victim, including, but not limited to, sadomasochistic abuse,

15  sexual bestiality, or the simulation of any act involving

16  sexual activity in the presence of a victim.

17         (c)  "Sexual misconduct" means any sexual activity

18  between an employee and a client, regardless of the consent of

19  the client. The term does not include an act done for a bona

20  fide medical purpose or an internal search conducted in the

21  lawful performance of duty by an employee.

22         (2)  An employee who engages in sexual misconduct with

23  a client who resides in a civil or forensic state mental

24  health treatment facility commits a felony of the second

25  degree, punishable as provided in s. 775.082, s. 775.083, or

26  s. 775.084. An employee may be found guilty of violating this

27  subsection without having committed the crime of sexual

28  battery.

29         (3)  The consent of the client to sexual activity is

30  not a defense to prosecution under this section.

31         (4)  This section does not apply to an employee who:

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 1         (a)  Is legally married to the client; or

 2         (b)  Had no reason to believe that the person with whom

 3  the employee engaged in sexual misconduct is a client

 4  receiving services as described in subsection (2).

 5         (5)  An employee who witnesses sexual misconduct, or

 6  who otherwise knows or has reasonable cause to suspect that a

 7  person has engaged in sexual misconduct, shall immediately

 8  report the incident to the department's central abuse hotline

 9  or law enforcement. Such employee shall also prepare, date,

10  and sign an independent report that specifically describes the

11  nature of the sexual misconduct, the location and time of the

12  incident, and the persons involved. The employee shall deliver

13  the report to the supervisor or program director, who is

14  responsible for providing copies to either the department's or

15  Agency for Persons with Disabilities' inspector general as

16  appropriate. The inspector general shall immediately conduct

17  an appropriate administrative investigation, and, if there is

18  probable cause to believe that sexual misconduct has occurred,

19  the inspector general shall notify the state attorney in the

20  circuit in which the incident occurred.

21         (6)(a)  Any person who is required to make a report

22  under this section and who knowingly or willfully fails to do

23  so, or who knowingly or willfully prevents another person from

24  doing so, commits a misdemeanor of the first degree,

25  punishable as provided in s. 775.082 or s. 775.083.

26         (b)  Any person who knowingly or willfully submits

27  inaccurate, incomplete, or untruthful information with respect

28  to a report required under this section commits a misdemeanor

29  of the first degree, punishable as provided in s. 775.082 or

30  s. 775.083.

31  

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 1         (c)  Any person who knowingly or willfully coerces or

 2  threatens any other person with the intent to alter testimony

 3  or a written report regarding an incident of sexual misconduct

 4  commits a felony of the third degree, punishable as provided

 5  in s. 775.082, s. 775.083, or s. 775.084.

 6         (7)  The provisions and penalties set forth in this

 7  section are in addition to any other civil, administrative, or

 8  criminal action provided by law which may be applied against

 9  an employee.

10         Section 47.  Subsection (2) of section 435.03, Florida

11  Statutes, is amended to read:

12         435.03  Level 1 screening standards.--

13         (2)  Any person for whom employment screening is

14  required by statute must not have been found guilty of,

15  regardless of adjudication, or entered a plea of nolo

16  contendere or guilty to, any offense prohibited under any of

17  the following provisions of the Florida Statutes or under any

18  similar statute of another jurisdiction:

19         (a)  Section 393.135, relating to sexual misconduct

20  with certain developmentally disabled clients and reporting of

21  such sexual misconduct.

22         (b)  Section 394.4593, relating to sexual misconduct

23  with certain mental health patients and reporting of such

24  sexual misconduct.

25         (c)(a)  Section 415.111, relating to abuse, neglect, or

26  exploitation of a vulnerable adult.

27         (d)(b)  Section 782.04, relating to murder.

28         (e)(c)  Section 782.07, relating to manslaughter,

29  aggravated manslaughter of an elderly person or disabled

30  adult, or aggravated manslaughter of a child.

31  

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 1         (f)(d)  Section 782.071, relating to vehicular

 2  homicide.

 3         (g)(e)  Section 782.09, relating to killing of an

 4  unborn child by injury to the mother.

 5         (h)(f)  Section 784.011, relating to assault, if the

 6  victim of the offense was a minor.

 7         (i)(g)  Section 784.021, relating to aggravated

 8  assault.

 9         (j)(h)  Section 784.03, relating to battery, if the

10  victim of the offense was a minor.

11         (k)(i)  Section 784.045, relating to aggravated

12  battery.

13         (l)(j)  Section 787.01, relating to kidnapping.

14         (m)(k)  Section 787.02, relating to false imprisonment.

15         (n)(l)  Section 794.011, relating to sexual battery.

16         (o)(m)  Former s. 794.041, relating to prohibited acts

17  of persons in familial or custodial authority.

18         (p)(n)  Chapter 796, relating to prostitution.

19         (q)(o)  Section 798.02, relating to lewd and lascivious

20  behavior.

21         (r)(p)  Chapter 800, relating to lewdness and indecent

22  exposure.

23         (s)(q)  Section 806.01, relating to arson.

24         (t)(r)  Chapter 812, relating to theft, robbery, and

25  related crimes, if the offense was a felony.

26         (u)(s)  Section 817.563, relating to fraudulent sale of

27  controlled substances, only if the offense was a felony.

28         (v)(t)  Section 825.102, relating to abuse, aggravated

29  abuse, or neglect of an elderly person or disabled adult.

30  

31  

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 1         (w)(u)  Section 825.1025, relating to lewd or

 2  lascivious offenses committed upon or in the presence of an

 3  elderly person or disabled adult.

 4         (x)(v)  Section 825.103, relating to exploitation of an

 5  elderly person or disabled adult, if the offense was a felony.

 6         (y)(w)  Section 826.04, relating to incest.

 7         (z)(x)  Section 827.03, relating to child abuse,

 8  aggravated child abuse, or neglect of a child.

 9         (aa)(y)  Section 827.04, relating to contributing to

10  the delinquency or dependency of a child.

11         (bb)(z)  Former s. 827.05, relating to negligent

12  treatment of children.

13         (cc)(aa)  Section 827.071, relating to sexual

14  performance by a child.

15         (dd)(bb)  Chapter 847, relating to obscene literature.

16         (ee)(cc)  Chapter 893, relating to drug abuse

17  prevention and control, only if the offense was a felony or if

18  any other person involved in the offense was a minor.

19         (ff)  Section 916.0175, relating to sexual misconduct

20  with certain forensic clients and reporting of such sexual

21  misconduct.

22         Section 48.  Subsection (2) of section 435.04, Florida

23  Statutes, is amended to read:

24         435.04  Level 2 screening standards.--

25         (2)  The security background investigations under this

26  section must ensure that no persons subject to the provisions

27  of this section have been found guilty of, regardless of

28  adjudication, or entered a plea of nolo contendere or guilty

29  to, any offense prohibited under any of the following

30  provisions of the Florida Statutes or under any similar

31  statute of another jurisdiction:

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 1         (a)  Section 393.135, relating to sexual misconduct

 2  with certain developmentally disabled clients and reporting of

 3  such sexual misconduct.

 4         (b)  Section 394.4593, relating to sexual misconduct

 5  with certain mental health patients and reporting of such

 6  sexual misconduct.

 7         (c)(a)  Section 415.111, relating to adult abuse,

 8  neglect, or exploitation of aged persons or disabled adults.

 9         (d)(b)  Section 782.04, relating to murder.

10         (e)(c)  Section 782.07, relating to manslaughter,

11  aggravated manslaughter of an elderly person or disabled

12  adult, or aggravated manslaughter of a child.

13         (f)(d)  Section 782.071, relating to vehicular

14  homicide.

15         (g)(e)  Section 782.09, relating to killing of an

16  unborn child by injury to the mother.

17         (h)(f)  Section 784.011, relating to assault, if the

18  victim of the offense was a minor.

19         (i)(g)  Section 784.021, relating to aggravated

20  assault.

21         (j)(h)  Section 784.03, relating to battery, if the

22  victim of the offense was a minor.

23         (k)(i)  Section 784.045, relating to aggravated

24  battery.

25         (l)(j)  Section 784.075, relating to battery on a

26  detention or commitment facility staff.

27         (m)(k)  Section 787.01, relating to kidnapping.

28         (n)(l)  Section 787.02, relating to false imprisonment.

29         (o)(m)  Section 787.04(2), relating to taking,

30  enticing, or removing a child beyond the state limits with

31  criminal intent pending custody proceedings.

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 1         (p)(n)  Section 787.04(3), relating to carrying a child

 2  beyond the state lines with criminal intent to avoid producing

 3  a child at a custody hearing or delivering the child to the

 4  designated person.

 5         (q)(o)  Section 790.115(1), relating to exhibiting

 6  firearms or weapons within 1,000 feet of a school.

 7         (r)(p)  Section 790.115(2)(b), relating to possessing

 8  an electric weapon or device, destructive device, or other

 9  weapon on school property.

10         (s)(q)  Section 794.011, relating to sexual battery.

11         (t)(r)  Former s. 794.041, relating to prohibited acts

12  of persons in familial or custodial authority.

13         (u)(s)  Chapter 796, relating to prostitution.

14         (v)(t)  Section 798.02, relating to lewd and lascivious

15  behavior.

16         (w)(u)  Chapter 800, relating to lewdness and indecent

17  exposure.

18         (x)(v)  Section 806.01, relating to arson.

19         (y)(w)  Chapter 812, relating to theft, robbery, and

20  related crimes, if the offense is a felony.

21         (z)(x)  Section 817.563, relating to fraudulent sale of

22  controlled substances, only if the offense was a felony.

23         (aa)(y)  Section 825.102, relating to abuse, aggravated

24  abuse, or neglect of an elderly person or disabled adult.

25         (bb)(z)  Section 825.1025, relating to lewd or

26  lascivious offenses committed upon or in the presence of an

27  elderly person or disabled adult.

28         (cc)(aa)  Section 825.103, relating to exploitation of

29  an elderly person or disabled adult, if the offense was a

30  felony.

31         (dd)(bb)  Section 826.04, relating to incest.

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 1         (ee)(cc)  Section 827.03, relating to child abuse,

 2  aggravated child abuse, or neglect of a child.

 3         (ff)(dd)  Section 827.04, relating to contributing to

 4  the delinquency or dependency of a child.

 5         (gg)(ee)  Former s. 827.05, relating to negligent

 6  treatment of children.

 7         (hh)(ff)  Section 827.071, relating to sexual

 8  performance by a child.

 9         (ii)(gg)  Section 843.01, relating to resisting arrest

10  with violence.

11         (jj)(hh)  Section 843.025, relating to depriving a law

12  enforcement, correctional, or correctional probation officer

13  means of protection or communication.

14         (kk)(ii)  Section 843.12, relating to aiding in an

15  escape.

16         (ll)(jj)  Section 843.13, relating to aiding in the

17  escape of juvenile inmates in correctional institutions.

18         (mm)(kk)  Chapter 847, relating to obscene literature.

19         (nn)(ll)  Section 874.05(1), relating to encouraging or

20  recruiting another to join a criminal gang.

21         (oo)(mm)  Chapter 893, relating to drug abuse

22  prevention and control, only if the offense was a felony or if

23  any other person involved in the offense was a minor.

24         (pp)  Section 916.0175, relating to sexual misconduct

25  with certain forensic clients and reporting of such sexual

26  misconduct.

27         (qq)(nn)  Section 944.35(3), relating to inflicting

28  cruel or inhuman treatment on an inmate resulting in great

29  bodily harm.

30         (rr)(oo)  Section 944.46, relating to harboring,

31  concealing, or aiding an escaped prisoner.

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 1         (ss)(pp)  Section 944.47, relating to introduction of

 2  contraband into a correctional facility.

 3         (tt)(qq)  Section 985.4045, relating to sexual

 4  misconduct in juvenile justice programs.

 5         (uu)(rr)  Section 985.4046, relating to contraband

 6  introduced into detention facilities.

 7         Section 49.  Section 943.0585, Florida Statutes, is

 8  amended to read:

 9         943.0585  Court-ordered expunction of criminal history

10  records.--The courts of this state have jurisdiction over

11  their own procedures, including the maintenance, expunction,

12  and correction of judicial records containing criminal history

13  information to the extent such procedures are not inconsistent

14  with the conditions, responsibilities, and duties established

15  by this section. Any court of competent jurisdiction may order

16  a criminal justice agency to expunge the criminal history

17  record of a minor or an adult who complies with the

18  requirements of this section. The court shall not order a

19  criminal justice agency to expunge a criminal history record

20  until the person seeking to expunge a criminal history record

21  has applied for and received a certificate of eligibility for

22  expunction pursuant to subsection (2). A criminal history

23  record that relates to a violation of s. 393.135, s. 394.4593,

24  s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s.

25  825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,

26  s. 847.0145, s. 893.135, s. 916.1075, or a violation

27  enumerated in s. 907.041 may not be expunged, without regard

28  to whether adjudication was withheld, if the defendant was

29  found guilty of or pled guilty or nolo contendere to the

30  offense, or if the defendant, as a minor, was found to have

31  committed, or pled guilty or nolo contendere to committing,

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 1  the offense as a delinquent act. The court may only order

 2  expunction of a criminal history record pertaining to one

 3  arrest or one incident of alleged criminal activity, except as

 4  provided in this section. The court may, at its sole

 5  discretion, order the expunction of a criminal history record

 6  pertaining to more than one arrest if the additional arrests

 7  directly relate to the original arrest. If the court intends

 8  to order the expunction of records pertaining to such

 9  additional arrests, such intent must be specified in the

10  order. A criminal justice agency may not expunge any record

11  pertaining to such additional arrests if the order to expunge

12  does not articulate the intention of the court to expunge a

13  record pertaining to more than one arrest. This section does

14  not prevent the court from ordering the expunction of only a

15  portion of a criminal history record pertaining to one arrest

16  or one incident of alleged criminal activity. Notwithstanding

17  any law to the contrary, a criminal justice agency may comply

18  with laws, court orders, and official requests of other

19  jurisdictions relating to expunction, correction, or

20  confidential handling of criminal history records or

21  information derived therefrom. This section does not confer

22  any right to the expunction of any criminal history record,

23  and any request for expunction of a criminal history record

24  may be denied at the sole discretion of the court.

25         (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY

26  RECORD.--Each petition to a court to expunge a criminal

27  history record is complete only when accompanied by:

28         (a)  A certificate of eligibility for expunction issued

29  by the department pursuant to subsection (2).

30         (b)  The petitioner's sworn statement attesting that

31  the petitioner:

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 1         1.  Has never, prior to the date on which the petition

 2  is filed, been adjudicated guilty of a criminal offense or

 3  comparable ordinance violation or adjudicated delinquent for

 4  committing a felony or a misdemeanor specified in s.

 5  943.051(3)(b).

 6         2.  Has not been adjudicated guilty of, or adjudicated

 7  delinquent for committing, any of the acts stemming from the

 8  arrest or alleged criminal activity to which the petition

 9  pertains.

10         3.  Has never secured a prior sealing or expunction of

11  a criminal history record under this section, former s.

12  893.14, former s. 901.33, or former s. 943.058, or from any

13  jurisdiction outside the state.

14         4.  Is eligible for such an expunction to the best of

15  his or her knowledge or belief and does not have any other

16  petition to expunge or any petition to seal pending before any

17  court.

18  

19  Any person who knowingly provides false information on such

20  sworn statement to the court commits a felony of the third

21  degree, punishable as provided in s. 775.082, s. 775.083, or

22  s. 775.084.

23         (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior

24  to petitioning the court to expunge a criminal history record,

25  a person seeking to expunge a criminal history record shall

26  apply to the department for a certificate of eligibility for

27  expunction. The department shall, by rule adopted pursuant to

28  chapter 120, establish procedures pertaining to the

29  application for and issuance of certificates of eligibility

30  for expunction. The department shall issue a certificate of

31  

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 1  eligibility for expunction to a person who is the subject of a

 2  criminal history record if that person:

 3         (a)  Has obtained, and submitted to the department, a

 4  written, certified statement from the appropriate state

 5  attorney or statewide prosecutor which indicates:

 6         1.  That an indictment, information, or other charging

 7  document was not filed or issued in the case.

 8         2.  That an indictment, information, or other charging

 9  document, if filed or issued in the case, was dismissed or

10  nolle prosequi by the state attorney or statewide prosecutor,

11  or was dismissed by a court of competent jurisdiction.

12         3.  That the criminal history record does not relate to

13  a violation of s. 393.135, s. 394.4593, s. 787.025, chapter

14  794, s. 796.03, s. 800.04, s. 817.034, s. 825.1025, s.

15  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145,

16  s. 893.135, s. 916.1075, or a violation enumerated in s.

17  907.041, where the defendant was found guilty of, or pled

18  guilty or nolo contendere to any such offense, or that the

19  defendant, as a minor, was found to have committed, or pled

20  guilty or nolo contendere to committing, such an offense as a

21  delinquent act, without regard to whether adjudication was

22  withheld.

23         (b)  Remits a $75 processing fee to the department for

24  placement in the Department of Law Enforcement Operating Trust

25  Fund, unless such fee is waived by the executive director.

26         (c)  Has submitted to the department a certified copy

27  of the disposition of the charge to which the petition to

28  expunge pertains.

29         (d)  Has never, prior to the date on which the

30  application for a certificate of eligibility is filed, been

31  adjudicated guilty of a criminal offense or comparable

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 1  ordinance violation or adjudicated delinquent for committing a

 2  felony or a misdemeanor specified in s. 943.051(3)(b).

 3         (e)  Has not been adjudicated guilty of, or adjudicated

 4  delinquent for committing, any of the acts stemming from the

 5  arrest or alleged criminal activity to which the petition to

 6  expunge pertains.

 7         (f)  Has never secured a prior sealing or expunction of

 8  a criminal history record under this section, former s.

 9  893.14, former s. 901.33, or former s. 943.058.

10         (g)  Is no longer under court supervision applicable to

11  the disposition of the arrest or alleged criminal activity to

12  which the petition to expunge pertains.

13         (h)  Is not required to wait a minimum of 10 years

14  prior to being eligible for an expunction of such records

15  because all charges related to the arrest or criminal activity

16  to which the petition to expunge pertains were dismissed prior

17  to trial, adjudication, or the withholding of adjudication.

18  Otherwise, such criminal history record must be sealed under

19  this section, former s. 893.14, former s. 901.33, or former s.

20  943.058 for at least 10 years before such record is eligible

21  for expunction.

22         (3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--

23         (a)  In judicial proceedings under this section, a copy

24  of the completed petition to expunge shall be served upon the

25  appropriate state attorney or the statewide prosecutor and

26  upon the arresting agency; however, it is not necessary to

27  make any agency other than the state a party. The appropriate

28  state attorney or the statewide prosecutor and the arresting

29  agency may respond to the court regarding the completed

30  petition to expunge.

31  

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 1         (b)  If relief is granted by the court, the clerk of

 2  the court shall certify copies of the order to the appropriate

 3  state attorney or the statewide prosecutor and the arresting

 4  agency. The arresting agency is responsible for forwarding the

 5  order to any other agency to which the arresting agency

 6  disseminated the criminal history record information to which

 7  the order pertains. The department shall forward the order to

 8  expunge to the Federal Bureau of Investigation. The clerk of

 9  the court shall certify a copy of the order to any other

10  agency which the records of the court reflect has received the

11  criminal history record from the court.

12         (c)  For an order to expunge entered by a court prior

13  to July 1, 1992, the department shall notify the appropriate

14  state attorney or statewide prosecutor of an order to expunge

15  which is contrary to law because the person who is the subject

16  of the record has previously been convicted of a crime or

17  comparable ordinance violation or has had a prior criminal

18  history record sealed or expunged. Upon receipt of such

19  notice, the appropriate state attorney or statewide prosecutor

20  shall take action, within 60 days, to correct the record and

21  petition the court to void the order to expunge. The

22  department shall seal the record until such time as the order

23  is voided by the court.

24         (d)  On or after July 1, 1992, the department or any

25  other criminal justice agency is not required to act on an

26  order to expunge entered by a court when such order does not

27  comply with the requirements of this section. Upon receipt of

28  such an order, the department must notify the issuing court,

29  the appropriate state attorney or statewide prosecutor, the

30  petitioner or the petitioner's attorney, and the arresting

31  agency of the reason for noncompliance. The appropriate state

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 1  attorney or statewide prosecutor shall take action within 60

 2  days to correct the record and petition the court to void the

 3  order. No cause of action, including contempt of court, shall

 4  arise against any criminal justice agency for failure to

 5  comply with an order to expunge when the petitioner for such

 6  order failed to obtain the certificate of eligibility as

 7  required by this section or such order does not otherwise

 8  comply with the requirements of this section.

 9         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

10  criminal history record of a minor or an adult which is

11  ordered expunged by a court of competent jurisdiction pursuant

12  to this section must be physically destroyed or obliterated by

13  any criminal justice agency having custody of such record;

14  except that any criminal history record in the custody of the

15  department must be retained in all cases. A criminal history

16  record ordered expunged that is retained by the department is

17  confidential and exempt from the provisions of s. 119.07(1)

18  and s. 24(a), Art. I of the State Constitution and not

19  available to any person or entity except upon order of a court

20  of competent jurisdiction. A criminal justice agency may

21  retain a notation indicating compliance with an order to

22  expunge.

23         (a)  The person who is the subject of a criminal

24  history record that is expunged under this section or under

25  other provisions of law, including former s. 893.14, former s.

26  901.33, and former s. 943.058, may lawfully deny or fail to

27  acknowledge the arrests covered by the expunged record, except

28  when the subject of the record:

29         1.  Is a candidate for employment with a criminal

30  justice agency;

31         2.  Is a defendant in a criminal prosecution;

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 1         3.  Concurrently or subsequently petitions for relief

 2  under this section or s. 943.059;

 3         4.  Is a candidate for admission to The Florida Bar;

 4         5.  Is seeking to be employed or licensed by or to

 5  contract with the Department of Children and Family Services

 6  or the Department of Juvenile Justice or to be employed or

 7  used by such contractor or licensee in a sensitive position

 8  having direct contact with children, the developmentally

 9  disabled, the aged, or the elderly as provided in s.

10  110.1127(3), s. 393.063 s. 393.063(15), s. 394.4572(1), s.

11  397.451, s. 402.302(3), s. 402.313(3), s. 409.175(2)(i), s.

12  415.102(4), s. 916.106(10) and (13), s. 985.407, or chapter

13  400; or

14         6.  Is seeking to be employed or licensed by the Office

15  of Teacher Education, Certification, Staff Development, and

16  Professional Practices of the Department of Education, any

17  district school board, or any local governmental entity that

18  licenses child care facilities.

19         (b)  Subject to the exceptions in paragraph (a), a

20  person who has been granted an expunction under this section,

21  former s. 893.14, former s. 901.33, or former s. 943.058 may

22  not be held under any provision of law of this state to commit

23  perjury or to be otherwise liable for giving a false statement

24  by reason of such person's failure to recite or acknowledge an

25  expunged criminal history record.

26         (c)  Information relating to the existence of an

27  expunged criminal history record which is provided in

28  accordance with paragraph (a) is confidential and exempt from

29  the provisions of s. 119.07(1) and s. 24(a), Art. I of the

30  State Constitution, except that the department shall disclose

31  the existence of a criminal history record ordered expunged to

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 1  the entities set forth in subparagraphs (a)1., 4., 5., and 6.

 2  for their respective licensing and employment purposes, and to

 3  criminal justice agencies for their respective criminal

 4  justice purposes. It is unlawful for any employee of an entity

 5  set forth in subparagraph (a)1., subparagraph (a)4.,

 6  subparagraph (a)5., or subparagraph (a)6. to disclose

 7  information relating to the existence of an expunged criminal

 8  history record of a person seeking employment or licensure

 9  with such entity or contractor, except to the person to whom

10  the criminal history record relates or to persons having

11  direct responsibility for employment or licensure decisions.

12  Any person who violates this paragraph commits a misdemeanor

13  of the first degree, punishable as provided in s. 775.082 or

14  s. 775.083.

15         (5)  STATUTORY REFERENCES.--Any reference to any other

16  chapter, section, or subdivision of the Florida Statutes in

17  this section constitutes a general reference under the

18  doctrine of incorporation by reference.

19         Section 50.  Section 943.059, Florida Statutes, is

20  amended to read:

21         943.059  Court-ordered sealing of criminal history

22  records.--The courts of this state shall continue to have

23  jurisdiction over their own procedures, including the

24  maintenance, sealing, and correction of judicial records

25  containing criminal history information to the extent such

26  procedures are not inconsistent with the conditions,

27  responsibilities, and duties established by this section. Any

28  court of competent jurisdiction may order a criminal justice

29  agency to seal the criminal history record of a minor or an

30  adult who complies with the requirements of this section. The

31  court shall not order a criminal justice agency to seal a

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 1  criminal history record until the person seeking to seal a

 2  criminal history record has applied for and received a

 3  certificate of eligibility for sealing pursuant to subsection

 4  (2). A criminal history record that relates to a violation of

 5  s. 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03,

 6  s. 800.04, s. 817.034, s. 825.1025, s. 827.071, chapter 839,

 7  s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.

 8  916.1075, or a violation enumerated in s. 907.041 may not be

 9  sealed, without regard to whether adjudication was withheld,

10  if the defendant was found guilty of or pled guilty or nolo

11  contendere to the offense, or if the defendant, as a minor,

12  was found to have committed or pled guilty or nolo contendere

13  to committing the offense as a delinquent act. The court may

14  only order sealing of a criminal history record pertaining to

15  one arrest or one incident of alleged criminal activity,

16  except as provided in this section. The court may, at its sole

17  discretion, order the sealing of a criminal history record

18  pertaining to more than one arrest if the additional arrests

19  directly relate to the original arrest. If the court intends

20  to order the sealing of records pertaining to such additional

21  arrests, such intent must be specified in the order. A

22  criminal justice agency may not seal any record pertaining to

23  such additional arrests if the order to seal does not

24  articulate the intention of the court to seal records

25  pertaining to more than one arrest. This section does not

26  prevent the court from ordering the sealing of only a portion

27  of a criminal history record pertaining to one arrest or one

28  incident of alleged criminal activity. Notwithstanding any law

29  to the contrary, a criminal justice agency may comply with

30  laws, court orders, and official requests of other

31  jurisdictions relating to sealing, correction, or confidential

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 1  handling of criminal history records or information derived

 2  therefrom. This section does not confer any right to the

 3  sealing of any criminal history record, and any request for

 4  sealing a criminal history record may be denied at the sole

 5  discretion of the court.

 6         (1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each

 7  petition to a court to seal a criminal history record is

 8  complete only when accompanied by:

 9         (a)  A certificate of eligibility for sealing issued by

10  the department pursuant to subsection (2).

11         (b)  The petitioner's sworn statement attesting that

12  the petitioner:

13         1.  Has never, prior to the date on which the petition

14  is filed, been adjudicated guilty of a criminal offense or

15  comparable ordinance violation or adjudicated delinquent for

16  committing a felony or a misdemeanor specified in s.

17  943.051(3)(b).

18         2.  Has not been adjudicated guilty of or adjudicated

19  delinquent for committing any of the acts stemming from the

20  arrest or alleged criminal activity to which the petition to

21  seal pertains.

22         3.  Has never secured a prior sealing or expunction of

23  a criminal history record under this section, former s.

24  893.14, former s. 901.33, former s. 943.058, or from any

25  jurisdiction outside the state.

26         4.  Is eligible for such a sealing to the best of his

27  or her knowledge or belief and does not have any other

28  petition to seal or any petition to expunge pending before any

29  court.

30  

31  

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 1  Any person who knowingly provides false information on such

 2  sworn statement to the court commits a felony of the third

 3  degree, punishable as provided in s. 775.082, s. 775.083, or

 4  s. 775.084.

 5         (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to

 6  petitioning the court to seal a criminal history record, a

 7  person seeking to seal a criminal history record shall apply

 8  to the department for a certificate of eligibility for

 9  sealing. The department shall, by rule adopted pursuant to

10  chapter 120, establish procedures pertaining to the

11  application for and issuance of certificates of eligibility

12  for sealing. The department shall issue a certificate of

13  eligibility for sealing to a person who is the subject of a

14  criminal history record provided that such person:

15         (a)  Has submitted to the department a certified copy

16  of the disposition of the charge to which the petition to seal

17  pertains.

18         (b)  Remits a $75 processing fee to the department for

19  placement in the Department of Law Enforcement Operating Trust

20  Fund, unless such fee is waived by the executive director.

21         (c)  Has never, prior to the date on which the

22  application for a certificate of eligibility is filed, been

23  adjudicated guilty of a criminal offense or comparable

24  ordinance violation or adjudicated delinquent for committing a

25  felony or a misdemeanor specified in s. 943.051(3)(b).

26         (d)  Has not been adjudicated guilty of or adjudicated

27  delinquent for committing any of the acts stemming from the

28  arrest or alleged criminal activity to which the petition to

29  seal pertains.

30  

31  

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 1         (e)  Has never secured a prior sealing or expunction of

 2  a criminal history record under this section, former s.

 3  893.14, former s. 901.33, or former s. 943.058.

 4         (f)  Is no longer under court supervision applicable to

 5  the disposition of the arrest or alleged criminal activity to

 6  which the petition to seal pertains.

 7         (3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--

 8         (a)  In judicial proceedings under this section, a copy

 9  of the completed petition to seal shall be served upon the

10  appropriate state attorney or the statewide prosecutor and

11  upon the arresting agency; however, it is not necessary to

12  make any agency other than the state a party. The appropriate

13  state attorney or the statewide prosecutor and the arresting

14  agency may respond to the court regarding the completed

15  petition to seal.

16         (b)  If relief is granted by the court, the clerk of

17  the court shall certify copies of the order to the appropriate

18  state attorney or the statewide prosecutor and to the

19  arresting agency. The arresting agency is responsible for

20  forwarding the order to any other agency to which the

21  arresting agency disseminated the criminal history record

22  information to which the order pertains. The department shall

23  forward the order to seal to the Federal Bureau of

24  Investigation. The clerk of the court shall certify a copy of

25  the order to any other agency which the records of the court

26  reflect has received the criminal history record from the

27  court.

28         (c)  For an order to seal entered by a court prior to

29  July 1, 1992, the department shall notify the appropriate

30  state attorney or statewide prosecutor of any order to seal

31  which is contrary to law because the person who is the subject

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 1  of the record has previously been convicted of a crime or

 2  comparable ordinance violation or has had a prior criminal

 3  history record sealed or expunged. Upon receipt of such

 4  notice, the appropriate state attorney or statewide prosecutor

 5  shall take action, within 60 days, to correct the record and

 6  petition the court to void the order to seal. The department

 7  shall seal the record until such time as the order is voided

 8  by the court.

 9         (d)  On or after July 1, 1992, the department or any

10  other criminal justice agency is not required to act on an

11  order to seal entered by a court when such order does not

12  comply with the requirements of this section. Upon receipt of

13  such an order, the department must notify the issuing court,

14  the appropriate state attorney or statewide prosecutor, the

15  petitioner or the petitioner's attorney, and the arresting

16  agency of the reason for noncompliance. The appropriate state

17  attorney or statewide prosecutor shall take action within 60

18  days to correct the record and petition the court to void the

19  order. No cause of action, including contempt of court, shall

20  arise against any criminal justice agency for failure to

21  comply with an order to seal when the petitioner for such

22  order failed to obtain the certificate of eligibility as

23  required by this section or when such order does not comply

24  with the requirements of this section.

25         (e)  An order sealing a criminal history record

26  pursuant to this section does not require that such record be

27  surrendered to the court, and such record shall continue to be

28  maintained by the department and other criminal justice

29  agencies.

30         (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

31  criminal history record of a minor or an adult which is

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 1  ordered sealed by a court of competent jurisdiction pursuant

 2  to this section is confidential and exempt from the provisions

 3  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution

 4  and is available only to the person who is the subject of the

 5  record, to the subject's attorney, to criminal justice

 6  agencies for their respective criminal justice purposes, or to

 7  those entities set forth in subparagraphs (a)1., 4., 5., and

 8  6. for their respective licensing and employment purposes.

 9         (a)  The subject of a criminal history record sealed

10  under this section or under other provisions of law, including

11  former s. 893.14, former s. 901.33, and former s. 943.058, may

12  lawfully deny or fail to acknowledge the arrests covered by

13  the sealed record, except when the subject of the record:

14         1.  Is a candidate for employment with a criminal

15  justice agency;

16         2.  Is a defendant in a criminal prosecution;

17         3.  Concurrently or subsequently petitions for relief

18  under this section or s. 943.0585;

19         4.  Is a candidate for admission to The Florida Bar;

20         5.  Is seeking to be employed or licensed by or to

21  contract with the Department of Children and Family Services

22  or the Department of Juvenile Justice or to be employed or

23  used by such contractor or licensee in a sensitive position

24  having direct contact with children, the developmentally

25  disabled, the aged, or the elderly as provided in s.

26  110.1127(3), s. 393.063 s. 393.063(15), s. 394.4572(1), s.

27  397.451, s. 402.302(3), s. 402.313(3), s. 409.175(2)(i), s.

28  415.102(4), s. 415.103, s. 916.106(10) and (13), s. 985.407,

29  or chapter 400; or

30         6.  Is seeking to be employed or licensed by the Office

31  of Teacher Education, Certification, Staff Development, and

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 1  Professional Practices of the Department of Education, any

 2  district school board, or any local governmental entity which

 3  licenses child care facilities.

 4         (b)  Subject to the exceptions in paragraph (a), a

 5  person who has been granted a sealing under this section,

 6  former s. 893.14, former s. 901.33, or former s. 943.058 may

 7  not be held under any provision of law of this state to commit

 8  perjury or to be otherwise liable for giving a false statement

 9  by reason of such person's failure to recite or acknowledge a

10  sealed criminal history record.

11         (c)  Information relating to the existence of a sealed

12  criminal record provided in accordance with the provisions of

13  paragraph (a) is confidential and exempt from the provisions

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

15  Constitution, except that the department shall disclose the

16  sealed criminal history record to the entities set forth in

17  subparagraphs (a)1., 4., 5., and 6. for their respective

18  licensing and employment purposes. It is unlawful for any

19  employee of an entity set forth in subparagraph (a)1.,

20  subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6.

21  to disclose information relating to the existence of a sealed

22  criminal history record of a person seeking employment or

23  licensure with such entity or contractor, except to the person

24  to whom the criminal history record relates or to persons

25  having direct responsibility for employment or licensure

26  decisions. Any person who violates the provisions of this

27  paragraph commits a misdemeanor of the first degree,

28  punishable as provided in s. 775.082 or s. 775.083.

29         (5)  STATUTORY REFERENCES.--Any reference to any other

30  chapter, section, or subdivision of the Florida Statutes in

31  

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 1  this section constitutes a general reference under the

 2  doctrine of incorporation by reference.

 3         Section 51.  (1)  In the Department of Children and

 4  Family Services' Economic Self-Sufficiency Services program,

 5  the department may provide its eligibility determination

 6  functions either with department staff or through contract

 7  with at least two private vendors, or with a combination of at

 8  least one private vendor and department employees with the

 9  following restrictions:

10         (a)  With the exception of information technology, a

11  contract with a private vendor may not be for a geographic

12  area larger than a combined seven districts or combined three

13  zones without the prior approval of the Legislative Budget

14  Commission; and

15         (b)  Department employees must provide the functions in

16  at least one area of the state if their proposed cost is

17  competitive with private vendors.

18         (2)  This section shall take effect upon this act

19  becoming a law.

20         Section 52.  Except as otherwise expressly provided in

21  this act, this act shall take effect July 1, 2004.

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                            CS SB 1280

 3                                 

 4  
    -    Creates the domestic violence program office within the
 5       Department of Children and Family Services.

 6  -    Makes it a crime for an employee of the department, the
         Agency for Persons with Disabilities, or the Agency for
 7       Healthcare Administration to engage in sexual misconduct
         with a client or patient.
 8  
    -    Requires employees to report sexual misconduct. If an
 9       employee fails to make a report, prevents another person
         from doing so, or knowingly submits an inaccurate,
10       incomplete, or untruthful report, the employee will be
         guilty of a first degree misdemeanor. A person who
11       threatens or coerces another person to alter testimony or
         a written report will be guilty of a third degree felony.
12  
    -    A defendant will be prohibited from using consent as a
13       defense for the charge of sexual misconduct.

14  -    Sexual misconduct is added to the list of offenses
         prohibiting employment if identified through a Level 1 or
15       2 background screening. The sealing or the expunction of
         criminal records when sexual misconduct has been
16       committed is prohibited.  Provisions and penalties in
         this bill are in addition to other civil, administrative,
17       or criminal sanctions.

18  -    Authorizes the department to provide eligibility
         determination functions with either department staff or
19       through a contractual agreement with private vendors with
         certain restrictions.
20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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