Florida Senate - 2010 SB 1388
By Senator Haridopolos
1 A bill to be entitled
2 An act relating to intellectual disabilities; amending
3 s. 39.502, F.S.; substituting the Arc of Florida for
4 the Association for Retarded Citizens; amending ss.
5 40.013, 86.041, 92.53, 92.54, and 92.55, F.S.;
6 substituting the term “intellectual disability” for
7 the term “mental retardation”; amending s. 320.10,
8 F.S.; substituting the Arc of Florida for the
9 Association for Retarded Citizens; amending ss.
10 383.14, 393.063, 393.11, and 394.455, F.S.;
11 substituting the term “intellectual disability” for
12 the term “mental retardation”; amending s. 400.960,
13 F.S.; revising definitions relating to intermediate
14 care facilities for the developmentally disabled to
15 delete unused terms; amending s. 408.032, F.S.;
16 conforming a cross-reference; amending ss. 413.20,
17 440.49, and 499.0054, F.S.; substituting the term
18 “intellectual disability” for the term “mental
19 retardation”; amending s. 514.072, F.S.; conforming a
20 cross-reference and deleting obsolete provisions;
21 amending ss. 627.6041, 627.6615, 641.31, 650.05,
22 765.204, 849.04, 914.16, 914.17, 916.105, and 916.106,
23 F.S.; substituting the term “intellectual disability”
24 for the term “mental retardation”; providing a
25 directive to the Division of Statutory Revision;
26 amending ss. 916.301, 916.3012, 916.302, 916.3025,
27 916.303, 916.304, 921.137, 941.38, 944.602, 945.025,
28 945.12, 945.42, 947.185, 984.19, 985.14, 985.145,
29 985.18, 985.19, 985.195, and 985.61, F.S.;
30 substituting the term “intellectual disability” for
31 the term “mental retardation”; providing an effective
34 Be It Enacted by the Legislature of the State of Florida:
36 Section 1. Subsection (15) of section 39.502, Florida
37 Statutes, is amended to read:
38 39.502 Notice, process, and service.—
39 (15) A party who is identified as a person who has a
40 mental illness or with a developmental disability must be
41 informed by the court of the availability of advocacy services
42 through the department, the Arc of Florida Association for
43 Retarded Citizens, or other appropriate mental health or
44 developmental disability advocacy groups and encouraged to seek
45 such services.
46 Section 2. Subsection (9) of section 40.013, Florida
47 Statutes, is amended to read:
48 40.013 Persons disqualified or excused from jury service.—
49 (9) Any person who is responsible for the care of a person
50 who, because of mental illness, intellectual disability mental
51 retardation, senility, or other physical or mental incapacity,
52 is incapable of caring for himself or herself shall be excused
53 from jury service upon request.
54 Section 3. Section 86.041, Florida Statutes, is amended to
56 86.041 Actions by executors, administrators, trustees,
57 etc.—Any person interested as or through an executor,
58 administrator, trustee, guardian, or other fiduciary, creditor,
59 devisee, legatee, heir, next of kin, or cestui que trust, in the
60 administration of a trust, a guardianship, or of the estate of a
61 decedent, an infant, a mental incompetent, or insolvent may have
62 a declaration of rights or equitable or legal relations to in
63 respect thereto:
64 (1) To Ascertain any class of creditors, devisees,
65 legatees, heirs, next of kin, or others; or
66 (2) To Direct the executor, administrator, or trustee to
67 refrain from doing any particular act in his or her fiduciary
68 capacity; or
69 (3) To Determine any question relating to arising in the
70 administration of the guardianship, estate, or trust, including
71 questions of construction of wills and other writings.
73 For the purpose of this section, a “mental incompetent” is one
74 who, because of mental illness, intellectual disability mental
75 retardation, senility, excessive use of drugs or alcohol, or
76 other mental incapacity, is incapable of either managing his or
77 her property or caring for himself or herself , or both.
78 Section 4. Section 92.53, Florida Statutes, is amended to
80 92.53 Videotaping of testimony of a victim or witness under
81 age 16 or who has an intellectual disability person with mental
83 (1) On motion and hearing in camera and a finding that
84 there is a substantial likelihood that a victim or witness who
85 is under the age of 16 or who has an intellectual disability is
86 a person with men tal retardation as defined in s. 393.063 would
87 suffer at least moderate emotional or mental harm due to the
88 presence of the defendant if such victim or witness the child or
89 person with mental retarda tion is required to testify in open
90 court, or that such victim or witness is otherwise unavailable
91 as defined in s. 90.804(1), the trial court may order the
92 videotaping of the testimony of the victim or witness in a case,
93 whether civil or criminal in nature, in which videotaped
94 testimony is to be used utilized at trial in lieu of trial
95 testimony in open court.
96 (2) The motion may be filed by:
97 (a) The victim or witness, or the victim’s or witness’s
98 attorney, parent, legal guardian, or guardian ad litem;
99 (b) A trial judge on his or her own motion;
100 (c) Any party in a civil proceeding; or
101 (d) The prosecuting attorney or the defendant, or the
102 defendant’s counsel.
103 (3) The judge shall preside, or shall appoint a special
104 master to preside, at the videotaping unless the following
105 conditions are met:
106 (a) The child or the person who has the intellectual
107 disability with mental retardation is represented by a guardian
108 ad litem or counsel;
109 (b) The representative of the victim or witness and the
110 counsel for each party stipulate that the requirement for the
111 presence of the judge or special master may be waived; and
112 (c) The court finds at a hearing on the motion that the
113 presence of a judge or special master is not necessary to
114 protect the victim or witness.
115 (4) The defendant and the defendant’s counsel must shall be
116 present at the videotaping, unless the defendant has waived this
117 right. The court may require the defendant to view the testimony
118 from outside the presence of the child or the person who has an
119 intellectual disability with mental retardation by means of a
120 two-way mirror or another similar method that ensures will
121 ensure that the defendant can observe and hear the testimony of
122 the victim or witness in person, but that the victim or witness
123 cannot hear or see the defendant. The defendant and the attorney
124 for the defendant may communicate by any appropriate private
126 (5) Any party, or the court on its own motion, may request
127 the aid of an interpreter, as provided in s. 90.606, to aid the
128 parties in formulating methods of questioning the child or
129 person who has the intellectual disability with ment al
130 retardation and in interpreting the answers of the child or
131 person with mental retardation throughout proceedings conducted
132 under this section.
133 (6) The motion referred to in subsection (1) may be made at
134 any time with reasonable notice to each party to the cause, and
135 videotaping of testimony may be made any time after the court
136 grants the motion. The videotaped testimony is shall be
137 admissible as evidence in the trial of the cause; however, such
138 testimony is shall not be admissible in any trial or proceeding
139 in which such witness testifies by use of closed circuit
140 television pursuant to s. 92.54.
141 (7) The court shall make specific findings of fact, on the
142 record, as to the basis for its ruling under this section.
143 Section 5. Section 92.54, Florida Statutes, is amended to
145 92.54 Use of closed circuit television in proceedings
146 involving a victim or witness victims or witnesses under the age
147 of 16 or who has an intellectual disability persons with mental
149 (1) Upon motion and hearing in camera and upon a finding
150 that there is a substantial likelihood that a victim or witness
151 under the age of 16 or who has an intellectual disability the
152 child or person with mental retardation will suffer at least
153 moderate emotional or mental harm due to the presence of the
154 defendant if such victim or witness the child or person with
155 mental retardation is required to testify in open court, or that
156 such victim or witness is unavailable as defined in s.
157 90.804(1), the trial court may order that the testimony of the a
158 child under the age of 16 or person with mental retardation who
159 is a victim or witness be taken outside of the courtroom and
160 shown by means of closed circuit television.
161 (2) The motion may be filed by the victim or witness; the
162 attorney, parent, legal guardian, or guardian ad litem of the
163 victim or witness; the prosecutor; the defendant or the
164 defendant’s counsel; or the trial judge on his or her own
166 (3) Only the judge, the prosecutor, the defendant, the
167 attorney for the defendant, the operators of the videotape
168 equipment, an interpreter, and some other person who, in the
169 opinion of the court, contributes to the well-being of the child
170 or the person who has an intellectual disability with mental
171 retardation and who will not be a witness in the case may be in
172 the room during the recording of the testimony.
173 (4) During the victim’s or witness’s child’s or person’s
174 with mental retardation testimony by closed circuit television,
175 the court may require the defendant to view the testimony from
176 the courtroom. In such a case, the court shall permit the
177 defendant to observe and hear the testimony of the victim or
178 witness child or person with mental retardation, but must shall
179 ensure that the victim or witness child or person with mental
180 retardation cannot hear or see the defendant. The defendant’s
181 right to assistance of counsel, which includes the right to
182 immediate and direct communication with counsel conducting
183 cross-examination, must be protected and, upon the defendant’s
184 request, such communication shall be provided by any appropriate
185 electronic method.
186 (5) The court shall make specific findings of fact, on the
187 record, as to the basis for its ruling under this section.
188 Section 6. Section 92.55, Florida Statutes, is amended to
190 92.55 Judicial or other proceedings involving a victim or
191 witness under the age of 16 or who has an intellectual
192 disability person with mental retardation; special protections.—
193 (1) Upon motion of any party, upon motion of a parent,
194 guardian, attorney, or guardian ad litem for a victim or witness
195 child under the age of 16 or who has an intellectual disability
196 person with mental retardation, or upon its own motion, the
197 court may enter any order necessary to protect such a child
198 under the age of 16 or person with mental retardation who is a
199 victim or witness in any judicial proceeding or other official
200 proceeding from severe emotional or mental harm due to the
201 presence of the defendant if the victim or witness child or
202 person with mental retardation is required to testify in open
203 court. Such orders must shall relate to the taking of testimony
204 and shall include, but are not be limited to:
205 (a) Interviewing or the taking of depositions as part of a
206 civil or criminal proceeding.
207 (b) Examination and cross-examination for the purpose of
208 qualifying as a witness or testifying in any proceeding.
209 (c) The use of testimony taken outside of the courtroom,
210 including proceedings under ss. 92.53 and 92.54.
211 (2) In ruling upon the motion, the court shall take into
213 (a) The age of the child, the nature of the offense or act,
214 the relationship of the child to the parties in the case or to
215 the defendant in a criminal action, the degree of emotional
216 trauma that will result to the child as a consequence of the
217 defendant’s presence, and any other fact that the court deems
218 relevant; or
219 (b) The age of the person who has an intellectual
220 disability with mental retardation, the functional capacity of
221 such the person with mental retardation, the nature of the
222 offenses or act, the relationship of the person with mental
223 retardation to the parties in the case or to the defendant in a
224 criminal action, the degree of emotional trauma that will result
225 to the person with mental retardation as a consequence of the
226 defendant’s presence, and any other fact that the court deems
228 (3) In addition to such other relief as is provided by law,
229 the court may enter orders limiting the number of times that a
230 child or a person who has an intellectual disability with mental
231 retardation may be interviewed, prohibiting depositions of such
232 a child or person with mental retardation, requiring the
233 submission of questions prior to examination of the a child or
234 person with mental retardation, setting the place and conditions
235 for interviewing the a child or person with mental retardation
236 or for conducting any other proceeding, or permitting or
237 prohibiting the attendance of any person at any proceeding. The
238 court shall enter any order necessary to protect the rights of
239 all parties, including the defendant in any criminal action.
240 Section 7. Subsection (1) of section 320.10, Florida
241 Statutes, is amended to read:
242 320.10 Exemptions.—
243 (1) The provisions of s. 320.08 do not apply to:
244 (a) Any motor vehicle or mobile home owned by, and operated
245 exclusively for the personal use of, any member of the United
246 States Armed Forces who is not a resident of this state and who
247 is stationed in the state while in compliance with military or
248 naval orders;
249 (b) Any motor vehicle owned or operated exclusively by the
250 Federal Government;
251 (c) Any motor vehicle owned and operated exclusively for
252 the benefit of the Boys’ Clubs of America, the National Audubon
253 Society, the National Children’s Cardiac Hospital, any humane
254 society, any nationally chartered veterans’ organization that
255 maintains a state headquarters in this state, the Children’s
256 Bible Mission, the Boy Scouts of America, the Girl Scouts of
257 America, the Salvation Army, the American National Red Cross,
258 the United Service Organization, any local member unit of the
259 National Urban League which provides free services to municipal
260 and county residents who are in need of such services, the Young
261 Men’s Christian Association, the Young Men’s Hebrew Association,
262 the Camp Fire Girls’ Council, the Young Women’s Christian
263 Association, the Young Women’s Hebrew Association, any local
264 member unit of the Arc of Florida Association for Retarded
265 Citizens, the Children’s Home Society of Florida, or the
266 Goodwill Industries. A not-for-profit organization named in this
267 paragraph and its local affiliate organizations is shall be
268 eligible for the exemption if it for so long as each maintains
269 current articles of incorporation on file with the Department of
270 State and qualifies as a not-for-profit organization under s.
272 (d) Any motor vehicle owned and operated by a church,
273 temple, or synagogue for exclusive use as a community service
274 van or to transport passengers without compensation to religious
275 services or for religious education;
276 (e) Any motor vehicle owned and operated by the Civil Air
277 Patrol or the United States Coast Guard Auxiliary;
278 (f) Any mobile blood bank unit when operated as a nonprofit
279 service by an organization;
280 (g) Any mobile X-ray unit or truck or bus used exclusively
281 for public health purposes;
282 (h) Any school bus owned and operated by a nonprofit
283 educational or religious corporation;
284 (i) Any vehicle used by any of the various search and
285 rescue units of the several counties for exclusive use as a
286 search and rescue vehicle; and
287 (j) Any motor vehicle used by a community transportation
288 coordinator or a transportation operator as defined in part I of
289 chapter 427, and which is used exclusively to transport
290 transportation disadvantaged persons.
291 Section 8. Paragraph (d) of subsection (3) of section
292 383.14, Florida Statutes, is amended to read:
293 383.14 Screening for metabolic disorders, other hereditary
294 and congenital disorders, and environmental risk factors.—
295 (3) DEPARTMENT OF HEALTH; POWERS AND DUTIES.—The department
296 shall administer and provide certain services to implement the
297 provisions of this section and shall:
298 (d) Maintain a confidential registry of cases, including
299 information of importance for the purpose of followup services
300 to prevent intellectual disabilities mental retardation, to
301 correct or ameliorate physical disabilities handicaps, and for
302 epidemiologic studies, if indicated. Such registry shall be
303 exempt from the provisions of s. 119.07(1).
305 All provisions of this subsection must be coordinated with the
306 provisions and plans established under this chapter, chapter
307 411, and Pub. L. No. 99-457.
308 Section 9. Subsection (9) and subsections (20) through (31)
309 of section 393.063, Florida Statutes, are reordered and amended
310 to read:
311 393.063 Definitions.—For the purposes of this chapter, the
313 (9) “Developmental disability” means a disorder or syndrome
314 that is attributable to intellectual disability retardation,
315 cerebral palsy, autism, spina bifida, or Prader-Willi syndrome;
316 that manifests before the age of 18; and that constitutes a
317 substantial handicap that can reasonably be expected to continue
319 (21) (20) “Intermediate care facility for the
320 developmentally disabled” or “ICF/DD” means a residential
321 facility licensed and certified under pursuant to part VIII of
322 chapter 400.
323 (22) (21) “Medical/dental services” means medically
324 necessary services that which are provided or ordered for a
325 client by a person licensed under chapter 458, chapter 459, or
326 chapter 466. Such services may include, but are not limited to,
327 prescription drugs, specialized therapies, nursing supervision,
328 hospitalization, dietary services, prosthetic devices, surgery,
329 specialized equipment and supplies, adaptive equipment, and
330 other services as required to prevent or alleviate a medical or
331 dental condition.
332 (23) (22) “Personal care services” means individual
333 assistance with or supervision of essential activities of daily
334 living for self-care, including ambulation, bathing, dressing,
335 eating, grooming, and toileting, and other similar services that
336 are incidental to the care furnished and essential to the
337 health, safety, and welfare of the client if when there is no
338 one else is available to perform those services.
339 (24) (23) “Prader-Willi syndrome” means an inherited
340 condition typified by neonatal hypotonia with failure to thrive,
341 hyperphagia or an excessive drive to eat which leads to obesity
342 usually at 18 to 36 months of age, mild to moderate mental
343 retardation, hypogonadism, short stature, mild facial
344 dysmorphism, and a characteristic neurobehavior.
345 (25) (24) “Relative” means an individual who is connected by
346 affinity or consanguinity to the client and who is 18 years of
347 age or older.
348 (26) (25) “Resident” means a any person who has a with
349 developmental disability and resides disabilit ies residing at a
350 residential facility, whether or not such person is a client of
351 the agency.
352 (27) (26) “Residential facility” means a facility providing
353 room and board and personal care for persons who have with
354 developmental disabilities.
355 (28) (27) “Residential habilitation” means supervision and
356 training with the acquisition, retention, or improvement in
357 skills related to activities of daily living, such as personal
358 hygiene skills, homemaking skills, and the social and adaptive
359 skills necessary to enable the individual to reside in the
361 (29) (28) “Residential habilitation center” means a
362 community residential facility licensed under this chapter which
363 provides habilitation services. The capacity of such a facility
364 may shall not be fewer than nine residents. After October 1,
365 1989, new residential habilitation centers may not be licensed
366 and the licensed capacity for any existing residential
367 habilitation center may not be increased.
368 (30) (29) “Respite service” means appropriate, short-term,
369 temporary care that is provided to a person who has a with
370 developmental disability in order disabilities to meet the
371 planned or emergency needs of the person or the family or other
372 direct service provider.
373 (31) (30) “Restraint” means a physical device, method, or
374 drug used to control dangerous behavior.
375 (a) A physical restraint is any manual method or physical
376 or mechanical device, material, or equipment attached or
377 adjacent to an the individual’s body so that he or she cannot
378 easily remove the restraint and which restricts freedom of
379 movement or normal access to one’s body.
380 (b) A drug used as a restraint is a medication used to
381 control the person’s behavior or to restrict his or her freedom
382 of movement and is not a standard treatment for the person’s
383 medical or psychiatric condition. Physically holding a person
384 during a procedure to forcibly administer psychotropic
385 medication is a physical restraint.
386 (c) Restraint does not include physical devices, such as
387 orthopedically prescribed appliances, surgical dressings and
388 bandages, supportive body bands, or other physical holding when
389 necessary for routine physical examinations and tests; for
390 purposes of orthopedic, surgical, or other similar medical
391 treatment; when used to provide support for the achievement of
392 functional body position or proper balance; or when used to
393 protect a person from falling out of bed.
394 (20) (31) “Intellectual disability” “Retardation” means
395 significantly subaverage general intellectual functioning
396 existing concurrently with deficits in adaptive behavior which
397 that manifests before the age of 18 and can reasonably be
398 expected to continue indefinitely. For the purposes of this
399 definition, the term:
400 (a) “Adaptive behavior” means the effectiveness or degree
401 with which an individual meets the standards of personal
402 independence and social responsibility expected of his or her
403 age, cultural group, and community.
404 (b) “Significantly subaverage general intellectual
405 functioning ,” for the purpose of this definition, means
406 performance that which is two or more standard deviations from
407 the mean score on a standardized intelligence test specified in
408 the rules of the agency. “Adaptive behavior,” for the purpose of
409 this definition, means the effectiveness or degree with which an
410 individual meets the standards of personal independence and
411 social responsibility expected of his or her age, cultural
412 group, and community.
413 Section 10. Subsection (1), paragraphs (c) and (d) of
414 subsection (2), paragraphs (b) through (d) of subsection (3),
415 paragraph (b) of subsection (4), paragraphs (b), (e), (f), and
416 (g) of subsection (5), subsection (6), paragraph (d) of
417 subsection (7), paragraph (b) of subsection (8), subsection
418 (10), and paragraph (b) of subsection (12) of section 393.11,
419 Florida Statutes, are amended to read:
420 393.11 Involuntary admission to residential services.—
421 (1) JURISDICTION.—If When a person has an intellectual
422 disability is mentally retarded and requires involuntary
423 admission to residential services provided by the agency, the
424 circuit court of the county in which the person resides has
425 shall have jurisdiction to conduct a hearing and enter an order
426 involuntarily admitting the person in order for that the person
427 to may receive the care, treatment, habilitation, and
428 rehabilitation that which the person needs. For the purpose of
429 identifying intellectual disability mental retardation,
430 diagnostic capability shall be established by the agency. Except
431 as otherwise specified, the proceedings under this section are
432 shall be governed by the Florida Rules of Civil Procedure.
433 (2) PETITION.—
434 (c) The petition shall be verified and must shall:
435 1. State the name, age, and present address of the
436 commissioners and their relationship to the person who has an
437 intellectual disability with mental retardation or autism;
438 2. State the name, age, county of residence, and present
439 address of the person who has an intellectual disability with
440 mental retardation or autism;
441 3. Allege that the commission believes that the person
442 needs involuntary residential services and specify the factual
443 information on which the belief is based;
444 4. Allege that the person lacks sufficient capacity to give
445 express and informed consent to a voluntary application for
446 services and lacks the basic survival and self-care skills to
447 provide for the person’s well-being or is likely to physically
448 injure others if allowed to remain at liberty; and
449 5. State which residential setting is the least restrictive
450 and most appropriate alternative and specify the factual
451 information on which the belief is based.
452 (d) The petition shall be filed in the circuit court of the
453 county in which the person who has the intellectual disability
454 with mental retardation or autism resides.
455 (3) NOTICE.—
456 (b) If Whenever a motion or petition has been filed
457 pursuant to s. 916.303 to dismiss criminal charges against a
458 defendant who has an intellectual disability with retardation or
459 autism, and a petition is filed to involuntarily admit the
460 defendant to residential services under this section, the notice
461 of the filing of the petition must shall also be given to the
462 defendant’s attorney, the state attorney of the circuit from
463 which the defendant was committed, and the agency.
464 (c) The notice must shall state that a hearing shall be set
465 to inquire into the need of the person who has an intellectual
466 disability with mental retardation or autism for involuntary
467 residential services. The notice must shall also state the date
468 of the hearing on the petition.
469 (d) The notice must shall state that the individual who has
470 an intellectual disability with mental retardation or autism has
471 the right to be represented by counsel of his or her own choice
472 and that, if the person cannot afford an attorney, the court
473 shall appoint one.
474 (4) AGENCY PARTICIPATION.—
475 (b) Following examination, the agency shall file a written
476 report with the court at least not less than 10 working days
477 before the date of the hearing. The report must be served on the
478 petitioner, the person who has the intellectual disability with
479 mental retardation, and the person’s attorney at the time the
480 report is filed with the court.
481 (5) EXAMINING COMMITTEE.—
482 (b) The court shall appoint at least no fewer than three
483 disinterested experts who have demonstrated to the court an
484 expertise in the diagnosis, evaluation, and treatment of persons
485 who have intellectual disabilities with mental retardation. The
486 committee must include at least one licensed and qualified
487 physician, one licensed and qualified psychologist, and one
488 qualified professional who, at with a minimum, has of a masters
489 degree in social work, special education, or vocational
490 rehabilitation counseling, to examine the person and to testify
491 at the hearing on the involuntary admission to residential
493 (e) The committee shall prepare a written report for the
494 court. The report must explicitly document the extent that the
495 person meets the criteria for involuntary admission. The report,
496 and expert testimony, must include, but not be limited to:
497 1. The degree of the person’s intellectual disability
498 mental retardation and whether, using diagnostic capabilities
499 established by the agency, the person is eligible for agency
501 2. Whether, because of the person’s degree of intellectual
502 disability mental retardation, the person:
503 a. Lacks sufficient capacity to give express and informed
504 consent to a voluntary application for services pursuant to s.
506 b. Lacks basic survival and self-care skills to such a
507 degree that close supervision and habilitation in a residential
508 setting is necessary and if not provided would result in a real
509 and present threat of substantial harm to the person’s well
510 being; or
511 c. Is likely to physically injure others if allowed to
512 remain at liberty.
513 3. The purpose to be served by residential care;
514 4. A recommendation on the type of residential placement
515 which would be the most appropriate and least restrictive for
516 the person; and
517 5. The appropriate care, habilitation, and treatment.
518 (f) The committee shall file the report with the court at
519 least not less than 10 working days before the date of the
520 hearing. The report must shall be served on the petitioner, the
521 person who has the intellectual disability with mental
522 retardation, the person’s attorney at the time the report is
523 filed with the court, and the agency.
524 (g) Members of the examining committee shall receive a
525 reasonable fee to be determined by the court. The fees shall are
526 to be paid from the general revenue fund of the county in which
527 the person who has the intellectual disability with mental
528 retardation resided when the petition was filed.
529 (6) COUNSEL; GUARDIAN AD LITEM.—
530 (a) The person who has the intellectual disability must
531 with mental retardation shall be represented by counsel at all
532 stages of the judicial proceeding. If In the event the person is
533 indigent and cannot afford counsel, the court shall appoint a
534 public defender at least not less than 20 working days before
535 the scheduled hearing. The person’s counsel shall have full
536 access to the records of the service provider and the agency. In
537 all cases, the attorney shall represent the rights and legal
538 interests of the person with mental retardation, regardless of
539 who initiates may initiate the proceedings or pays pay the
540 attorney’s fee.
541 (b) If the attorney, during the course of his or her
542 representation, reasonably believes that the person who has the
543 intellectual disability with mental retardation cannot
544 adequately act in his or her own interest, the attorney may seek
545 the appointment of a guardian ad litem. A prior finding of
546 incompetency is not required before a guardian ad litem is
547 appointed pursuant to this section.
548 (7) HEARING.—
549 (d) The person who has the intellectual disability must
550 with mental retardation shall be physically present throughout
551 the entire proceeding. If the person’s attorney believes that
552 the person’s presence at the hearing is not in his or her the
553 person’s best interest, the person’s presence may be waived once
554 the court has seen the person and the hearing has commenced.
555 (8) ORDER.—
556 (b) An order of involuntary admission to residential
557 services may not be entered unless the court finds that:
558 1. The person is intellectually disabled mentally retarded
559 or autistic;
560 2. Placement in a residential setting is the least
561 restrictive and most appropriate alternative to meet the
562 person’s needs; and
563 3. Because of the person’s degree of intellectual
564 disability mental retardation or autism, the person:
565 a. Lacks sufficient capacity to give express and informed
566 consent to a voluntary application for services pursuant to s.
567 393.065 and lacks basic survival and self-care skills to such a
568 degree that close supervision and habilitation in a residential
569 setting is necessary and, if not provided, would result in a
570 real and present threat of substantial harm to the person’s
571 well-being; or
572 b. Is likely to physically injure others if allowed to
573 remain at liberty.
574 (10) COMPETENCY.—
575 (a) The issue of competency is shall be separate and
576 distinct from a determination of the appropriateness of
577 involuntary admission to residential services due to
578 intellectual disability for a condition of mental retardation.
579 (b) The issue of the competency of a person who has an
580 intellectual disability with mental retardation for purposes of
581 assigning guardianship shall be determined in a separate
582 proceeding according to the procedures and requirements of
583 chapter 744. The issue of the competency of a person who has an
584 intellectual disability with mental retardation or autism for
585 purposes of determining whether the person is competent to
586 proceed in a criminal trial shall be determined in accordance
587 with chapter 916.
588 (12) APPEAL.—
589 (b) The filing of an appeal by the person who has an
590 intellectual disability stays with mental retardation shall stay
591 admission of the person into residential care. The stay remains
592 shall remain in effect during the pendency of all review
593 proceedings in Florida courts until a mandate issues.
594 Section 11. Subsection (18) of section 394.455, Florida
595 Statutes, is amended to read:
596 394.455 Definitions.—As used in this part, unless the
597 context clearly requires otherwise, the term:
598 (18) “Mental illness” means an impairment of the mental or
599 emotional processes that exercise conscious control of one’s
600 actions or of the ability to perceive or understand reality,
601 which impairment substantially interferes with the a person’s
602 ability to meet the ordinary demands of living , regardless of
603 etiology. For the purposes of this part, the term does not
604 include a retardation or developmental disability as defined in
605 chapter 393, intoxication, or conditions manifested only by
606 antisocial behavior or substance abuse impairment.
607 Section 12. Subsections (3) through (13) of section
608 400.960, Florida Statutes, are amended to read:
609 400.960 Definitions.—As used in this part, the term:
610 (3) “Autism” has the same meaning as in s. 393.063 .
611 (4) “Cerebral palsy” has the same meaning as in s. 393.063 .
612 (3) (5) “Client” means any person determined by the Agency
613 for Persons with Disabilities to be eligible for developmental
615 (4) (6) “Developmentally disabled” “developmental
616 disability” has the same meaning as “developmental disability”
617 as that term is defined in s. 393.063.
618 (5) (7) “Direct service provider” means a person 18 years of
619 age or older who has direct contact with individuals who have
620 with developmental disabilities and who is unrelated to such the
621 individuals with developmental disabilities.
622 (6) (8) “Intermediate care facility for the developmentally
623 disabled” means a residential facility licensed and certified in
624 accordance with state law, and certified by the Federal
625 Government, pursuant to the Social Security Act, as a provider
626 of Medicaid services to persons who have with developmental
628 (9) “Prader-Willi syndrome” has the same meaning as in s.
629 393.063 .
630 (7) (10 )(a) “Restraint” means a physical device, method, or
631 drug used to control behavior.
632 (a) A physical restraint is any manual method or physical
633 or mechanical device, material, or equipment attached or
634 adjacent to the individual’s body so that he or she cannot
635 easily remove the restraint and which restricts freedom of
636 movement or normal access to one’s body.
637 (b) A drug used as a restraint is a medication used to
638 control the person’s behavior or to restrict his or her freedom
639 of movement. Physically holding a person during a procedure to
640 forcibly administer psychotropic medication is a physical
642 (c) Restraint does not include physical devices, such as
643 orthopedically prescribed appliances, surgical dressings and
644 bandages, supportive body bands, or other physical holding when
645 necessary for routine physical examinations and tests; for
646 purposes of orthopedic, surgical, or other similar medical
647 treatment; when used to provide support for the achievement of
648 functional body position or proper balance; or when used to
649 protect a person from falling out of bed.
650 (11) “Retardation” has the same meaning as in s. 393.063 .
651 (8) (12) “Seclusion” means the physical segregation of a
652 person in any fashion or the involuntary isolation of a person
653 in a room or area from which the person is prevented from
654 leaving. The prevention may be by physical barrier or by a staff
655 member who is acting in a manner, or who is physically situated,
656 so as to prevent the person from leaving the room or area. For
657 purposes of this part, the term does not mean isolation due to a
658 person’s medical condition or symptoms.
659 (13) “Spina bifida” has the same meaning as in s. 393.063 .
660 Section 13. Subsection (12) of section 408.032, Florida
661 Statutes, is amended to read:
662 408.032 Definitions relating to Health Facility and
663 Services Development Act.—As used in ss. 408.031-408.045, the
665 (12) “Intermediate care facility for the developmentally
666 disabled” means a residential facility licensed under part VIII
667 of chapter 400 chapter 393 and certified by the Federal
668 Government pursuant to the Social Security Act as a provider of
669 Medicaid services to persons who are mentally retarded or who
670 have a related condition.
671 Section 14. Subsection (17) of section 413.20, Florida
672 Statutes, is amended to read:
673 413.20 Definitions.—As used in this part, the term:
674 (17) “Person who has a significant disability” means an
675 individual who has a disability that is a severe physical or
676 mental impairment that seriously limits one or more functional
677 capacities, such as mobility, communication, self-care, self
678 direction, interpersonal skills, work tolerance, or work skills,
679 in terms of an employment outcome; whose vocational
680 rehabilitation may be expected to require multiple vocational
681 rehabilitation services over an extended period of time; and who
682 has one or more physical or mental disabilities resulting from
683 amputation, arthritis, autism, blindness, burn injury, cancer,
684 cerebral palsy, cystic fibrosis, deafness, head injury, heart
685 disease, hemiplegia, hemophilia, respiratory or pulmonary
686 dysfunction, intellectual disability mental retardation, mental
687 illness, multiple sclerosis, muscular dystrophy, musculoskeletal
688 disorder, neurological disorder, including stroke and epilepsy,
689 paraplegia, quadriplegia, or other spinal cord condition,
690 sickle-cell anemia, specific learning disability, end-stage
691 renal disease, or another disability or a combination of
692 disabilities which that is determined, after an assessment for
693 determining eligibility and vocational rehabilitation needs, to
694 cause comparable substantial functional limitation.
695 Section 15. Paragraph (a) of subsection (6) of section
696 440.49, Florida Statutes, is amended to read:
697 440.49 Limitation of liability for subsequent injury
698 through Special Disability Trust Fund.—
699 (6) EMPLOYER KNOWLEDGE, EFFECT ON REIMBURSEMENT.—
700 (a) Reimbursement is not allowed under this section unless
701 it is established that the employer knew of the preexisting
702 permanent physical impairment before prior to the occurrence of
703 the subsequent injury or occupational disease, and that the
704 permanent physical impairment is one of the following:
705 1. Epilepsy.
706 2. Diabetes.
707 3. Cardiac disease.
708 4. Amputation of foot, leg, arm, or hand.
709 5. Total loss of sight of one or both eyes or a partial
710 loss of corrected vision of more than 75 percent bilaterally.
711 6. Residual disability from poliomyelitis.
712 7. Cerebral palsy.
713 8. Multiple sclerosis.
714 9. Parkinson’s disease.
715 10. Meniscectomy.
716 11. Patellectomy.
717 12. Ruptured cruciate ligament.
718 13. Hemophilia.
719 14. Chronic osteomyelitis.
720 15. Surgical or spontaneous fusion of a major weight
721 bearing joint.
722 16. Hyperinsulinism.
723 17. Muscular dystrophy.
724 18. Thrombophlebitis.
725 19. Herniated intervertebral disk.
726 20. Surgical removal of an intervertebral disk or spinal
728 21. One or more back injuries or a disease process of the
729 back resulting in disability over a total of 120 or more days,
730 if substantiated by a doctor’s opinion that there was a
731 preexisting impairment to the claimant’s back.
732 22. Total deafness.
733 23. Intellectual disability if Mental retardation, provided
734 the employee’s intelligence quotient is such that she or he
735 falls within the lowest 2 percentile of the general population.
736 However, it shall not be necessary for the employer does not
737 need to know the employee’s actual intelligence quotient or
738 actual relative ranking in relation to the intelligence quotient
739 of the general population.
740 24. Any permanent physical condition that which, before
741 prior to the industrial accident or occupational disease,
742 constitutes a 20 percent 20-percent impairment of a member or of
743 the body as a whole.
744 25. Obesity if , provided the employee is 30 percent or more
745 over the average weight designated for her or his height and age
746 in the Table of Average Weight of Americans by Height and Age
747 prepared by the Society of Actuaries using data from the 1979
748 Build and Blood Pressure Study.
749 26. Any permanent physical impairment as provided defined
750 in s. 440.15(3) which is a result of a prior industrial accident
751 with the same employer or the employer’s parent company,
752 subsidiary, sister company, or affiliate located within the
753 geographical boundaries of this state.
754 Section 16. Paragraph (g) of subsection (1) of section
755 499.0054, Florida Statutes, is amended to read:
756 499.0054 Advertising and labeling of drugs, devices, and
757 cosmetics; exemptions.—
758 (1) It is a violation of the Florida Drug and Cosmetic Act
759 to perform or cause the performance of any of the following
761 (g) The advertising of any drug or device represented to
762 have any effect in any of the following conditions, disorders,
763 diseases, or processes:
764 1. Blood disorders.
765 2. Bone or joint diseases.
766 3. Kidney diseases or disorders.
767 4. Cancer.
768 5. Diabetes.
769 6. Gall bladder diseases or disorders.
770 7. Heart and vascular diseases.
771 8. High blood pressure.
772 9. Diseases or disorders of the ear or auditory apparatus,
773 including hearing loss or deafness.
774 10. Mental disease or intellectual disability mental
776 11. Paralysis.
777 12. Prostate gland disorders.
778 13. Conditions of the scalp affecting hair loss.
779 14. Baldness.
780 15. Endocrine disorders.
781 16. Sexual impotence.
782 17. Tumors.
783 18. Venereal diseases.
784 19. Varicose ulcers.
785 20. Breast enlargement.
786 21. Purifying blood.
787 22. Metabolic disorders.
788 23. Immune system disorders or conditions affecting the
789 immune system.
790 24. Extension of life expectancy.
791 25. Stress and tension.
792 26. Brain stimulation or performance.
793 27. The body’s natural defense mechanisms.
794 28. Blood flow.
795 29. Depression.
796 30. Human immunodeficiency virus or acquired immune
797 deficiency syndrome or related disorders or conditions.
798 Section 17. Section 514.072, Florida Statutes, is amended
799 to read:
800 514.072 Certification of swimming instructors for people
801 who have developmental disabilities required.—Any person working
802 at a swimming pool who holds himself or herself out as a
803 swimming instructor specializing in training people who have
804 developmental disabilities, as defined in s. 393.063 (10), may be
805 certified by the Dan Marino Foundation, Inc., in addition to
806 being certified under s. 514.071. The Dan Marino Foundation,
807 Inc., must develop certification requirements and a training
808 curriculum for swimming instructors for people who have
809 developmental disabilities and must submit the certification
810 requirements to the Department of Health for review by January
811 1, 2007. A person certified under s. 514.071 before July 1,
812 2007, must meet the additional certification requirements of
813 this section before January 1, 2008. A person certified under s.
814 514.071 on or after July 1, 2007, must meet the additional
815 certification requirements of this section within 6 months after
816 receiving certification under s. 514.071.
817 Section 18. Section 627.6041, Florida Statutes, is amended
818 to read:
819 627.6041 Handicapped Children with disabilities;
820 continuation of coverage.—
821 (1) A hospital or medical expense insurance policy or
822 health care services plan contract that is delivered or issued
823 for delivery in this state and that provides that coverage of a
824 dependent child terminates will terminate upon attainment of the
825 limiting age for dependent children specified in the policy or
826 contract must shall also provide in substance that attainment of
827 the limiting age does not terminate the coverage of the child
828 while the child continues to be both:
829 (a) (1) Incapable of self-sustaining employment by reason of
830 an intellectual or mental retardation or physical disability.
831 handicap; and
832 (b) (2) Chiefly dependent upon the policyholder or
833 subscriber for support and maintenance.
834 (2) If a claim is denied under a policy or contract for the
835 stated reason that the child has attained the limiting age for
836 dependent children specified in the policy or contract, the
837 notice of denial must state that the policyholder has the burden
838 of establishing that the child continues to meet the criteria
839 specified in subsection subsections (1) and (2).
840 Section 19. Section 627.6615, Florida Statutes, is amended
841 to read:
842 627.6615 Handicapped Children with disabilities;
843 continuation of coverage under group policy.—
844 (1) A group health insurance policy or health care services
845 plan contract that is delivered or issued for delivery in this
846 state and that provides that coverage of a dependent child of an
847 employee or other member of the covered group terminates will
848 terminate upon attainment of the limiting age for dependent
849 children specified in the policy or contract must shall also
850 provide in substance that attainment of the limiting age does
851 not terminate the coverage of the child while the child
852 continues to be both:
853 (a) (1) Incapable of self-sustaining employment by reason of
854 an intellectual mental retardation or physical disability.
855 handicap; and
856 (b) (2) Chiefly dependent upon the employee or member for
857 support and maintenance.
858 (2) If a claim is denied under a policy or contract for the
859 stated reason that the child has attained the limiting age for
860 dependent children specified in the policy or contract, the
861 notice of denial must state that the certificateholder or
862 subscriber has the burden of establishing that the child
863 continues to meet the criteria specified in subsection
864 subsections (1) and (2).
865 Section 20. Subsection (29) of section 641.31, Florida
866 Statutes, is amended to read:
867 641.31 Health maintenance contracts.—
868 (29) If a health maintenance contract provides that
869 coverage of a dependent child of the subscriber terminates will
870 terminate upon attainment of the limiting age for dependent
871 children which is specified in the contract, the contract must
872 also provide in substance that attainment of the limiting age
873 does not terminate the coverage of the child while the child
874 continues to be both:
875 (a) Incapable of self-sustaining employment by reason of an
876 intellectual mental retardation or physical disability.
877 handicap, and
878 (b) Chiefly dependent upon the employee or member for
879 support and maintenance.
881 If the claim is denied under a contract for the stated reason
882 that the child has attained the limiting age for dependent
883 children specified in the contract, the notice or denial must
884 state that the subscriber has the burden of establishing that
885 the child continues to meet the criteria specified in this
886 subsection paragraphs (a) and (b).
887 Section 21. Subsection (4) of section 650.05, Florida
888 Statutes, is amended to read:
889 650.05 Plans for coverage of employees of political
891 (4) (a) Notwithstanding any other provision of this chapter,
892 effective January 1, 1972, all state political subdivisions
893 receiving financial aid which that provide social security
894 coverage for their employees pursuant to the provisions of this
895 chapter and the provisions of the various retirement systems as
896 authorized by law shall, in addition to other purposes, use
897 utilize all grants-in-aid and other revenue received from the
898 state to pay the employer’s share of social security cost.
899 (b) The grants-in-aid and other revenue referred to in
900 paragraph (a) specifically include, but are not limited to,
901 minimum foundation program grants to public school districts and
902 community colleges; gasoline, motor fuel, cigarette, racing, and
903 insurance premium taxes distributed to political subdivisions;
904 and amounts specifically appropriated as grants-in-aid for
905 mental health, intellectual disabilities mental retardation, and
906 mosquito control programs.
907 Section 22. Subsection (1) of section 765.204, Florida
908 Statutes, is amended to read:
909 765.204 Capacity of principal; procedure.—
910 (1) A principal is presumed to be capable of making health
911 care decisions for herself or himself unless she or he is
912 determined to be incapacitated. Incapacity may not be inferred
913 from the person’s voluntary or involuntary hospitalization for
914 mental illness or from her or his intellectual disability mental
916 Section 23. Section 849.04, Florida Statutes, is amended to
918 849.04 Permitting minors and persons under guardianship to
919 gamble.— Whoever being The proprietor, owner, or keeper of any E.
920 O., keno or pool table, or billiard table, wheel of fortune, or
921 other game of chance , kept for the purpose of betting, who
922 willfully and knowingly allows a any minor or any person who is
923 mentally incompetent or under guardianship to play at such game
924 or to bet on such game of chance; or whoever aids or abets or
925 otherwise encourages such playing or betting of any money or
926 other valuable thing upon the result of such game of chance by a
927 any minor or any person who is mentally incompetent or under
928 guardianship, commits shall be guilty of a felony of the third
929 degree, punishable as provided in s. 775.082, s. 775.083, or s.
930 775.084. For the purpose of this section, the term a “person who
931 is mentally incompetent person” means a person is on e who
932 because of mental illness, intellectual disability mental
933 retardation, senility, excessive use of drugs or alcohol, or
934 other mental incapacity is incapable of either managing his or
935 her property or caring for himself or herself or both.
936 Section 24. Section 914.16, Florida Statutes, is amended to
938 914.16 Child abuse and sexual abuse of victims under age 16
939 or who has an intellectual disability persons with mental
940 retardation; limits on interviews.—The chief judge of each
941 judicial circuit, after consultation with the state attorney and
942 the public defender for the judicial circuit, the appropriate
943 chief law enforcement officer, and any other person deemed
944 appropriate by the chief judge, shall provide by order
945 reasonable limits on the number of interviews which that a
946 victim of a violation of s. 794.011, s. 800.04, s. 827.03, or s.
947 847.0135(5) who is under 16 years of age or a victim of a
948 violation of s. 794.011, s. 800.02, s. 800.03, or s. 825.102 who
949 has an intellectual disability is a person with mental
950 retardation as defined in s. 393.063 must submit to for law
951 enforcement or discovery purposes. The order shall, To the
952 extent possible, the order must protect the victim from the
953 psychological damage of repeated interrogations while preserving
954 the rights of the public, the victim, and the person charged
955 with the violation.
956 Section 25. Section 914.17, Florida Statutes, is amended to
958 914.17 Appointment of advocate for victims or witnesses who
959 are minors or intellectually disabled persons with mental
961 (1) A guardian ad litem or other advocate shall be
962 appointed by the court to represent a minor in any criminal
963 proceeding if the minor is a victim of or witness to child abuse
964 or neglect, or if the minor is a victim of a sexual offense, or
965 a witness to a sexual offense committed against another minor.
966 The court may appoint a guardian ad litem or other advocate in
967 any other criminal proceeding in which a minor is involved as
968 either a victim or a witness. The guardian ad litem or other
969 advocate shall have full access to all evidence and reports
970 introduced during the proceedings, may interview witnesses, may
971 make recommendations to the court, shall be noticed and have the
972 right to appear on behalf of the minor at all proceedings, and
973 may request additional examinations by medical doctors,
974 psychiatrists, or psychologists. It is the duty of The guardian
975 ad litem or other advocate shall to perform the following
977 (a) To Explain, in language understandable to the minor,
978 all legal proceedings in which the minor is shall be involved;
979 (b) To Act, as a friend of the court, to advise the judge,
980 whenever appropriate, of the minor’s ability to understand and
981 cooperate with any court proceeding; and
982 (c) To Assist the minor and the minor’s family in coping
983 with the emotional effects of the crime and subsequent criminal
984 proceedings in which the minor is involved.
985 (2) An advocate shall be appointed by the court to
986 represent a person who has an intellectual disability with
987 mental retardation as defined in s. 393.063 in any criminal
988 proceeding if the person with mental retardation is a victim of
989 or witness to abuse or neglect, or if the person with mental
990 retardation is a victim of a sexual offense, or a witness to a
991 sexual offense committed against a minor or person who has an
992 intellectual disability with mental retardation. The court may
993 appoint an advocate in any other criminal proceeding in which
994 such a person with mental retardation is involved as either a
995 victim or a witness. The advocate shall have full access to all
996 evidence and reports introduced during the proceedings, may
997 interview witnesses, may make recommendations to the court,
998 shall be noticed and have the right to appear on behalf of the
999 person with mental retardation at all proceedings, and may
1000 request additional examinations by medical doctors,
1001 psychiatrists, or psychologists. It is the duty of The advocate
1002 shall to perform the following services:
1003 (a) To Explain, in language understandable to the person
1004 with mental retardation, all legal proceedings in which the
1005 person is shall be involved;
1006 (b) To Act, as a friend of the court, to advise the judge,
1007 whenever appropriate, of the person’s person with mental
1008 retardation’s ability to understand and cooperate with any court
1009 proceedings; and
1010 (c) To assist the person with mental retardation and the
1011 person’s family in coping with the emotional effects of the
1012 crime and subsequent criminal proceedings in which the person
1013 with mental retardation is involved.
1014 (3) Any person participating in a judicial proceeding as a
1015 guardian ad litem or other advocate is shall be presumed prima
1016 facie to be acting in good faith and in so doing is shall be
1017 immune from any liability, civil or criminal, which that
1018 otherwise might be incurred or imposed.
1019 Section 26. Subsections (1), (2), and (3) of section
1020 916.105, Florida Statutes, are amended to read:
1021 916.105 Legislative intent.—
1022 (1) It is the intent of the Legislature that the Department
1023 of Children and Family Services and the Agency for Persons with
1024 Disabilities, as appropriate, establish, locate, and maintain
1025 separate and secure forensic facilities and programs for the
1026 treatment or training of defendants who have been charged with a
1027 felony and who have been found to be incompetent to proceed due
1028 to their mental illness, intellectual disability mental
1029 retardation, or autism, or who have been acquitted of a felony
1030 by reason of insanity, and who, while still under the
1031 jurisdiction of the committing court, are committed to the
1032 department or agency under the provisions of this chapter. Such
1033 facilities must shall be sufficient to accommodate the number of
1034 defendants committed under the conditions noted above. Except
1035 for those defendants found by the department or agency to be
1036 appropriate for treatment or training in a civil facility or
1037 program pursuant to subsection (3), forensic facilities must
1038 shall be designed and administered so that ingress and egress,
1039 together with other requirements of this chapter, may be
1040 strictly controlled by staff responsible for security in order
1041 to protect the defendant, facility personnel, other clients, and
1042 citizens in adjacent communities.
1043 (2) It is the intent of the Legislature that treatment or
1044 training programs for defendants who are found to have mental
1045 illness, intellectual disability mental retardation, or autism
1046 and are involuntarily committed to the department or agency, and
1047 who are still under the jurisdiction of the committing court, be
1048 provided in a manner, subject to security requirements and other
1049 mandates of this chapter, which ensures as to ensure the rights
1050 of the defendants as provided in this chapter.
1051 (3) It is the intent of the Legislature that evaluation and
1052 services to defendants who have mental illness, intellectual
1053 disability mental retardation, or autism be provided in
1054 community settings, in community residential facilities, or in
1055 civil facilities, whenever this is a feasible alternative to
1056 treatment or training in a state forensic facility.
1057 Section 27. Subsections (10) through (17) of section
1058 916.106, Florida Statutes, are reordered and amended to read:
1059 916.106 Definitions.—For the purposes of this chapter, the
1061 (10) “Forensic facility” means a separate and secure
1062 facility established within the department or agency to serve
1063 forensic clients. A separate and secure facility means a
1064 security-grade building for the purpose of separately housing
1065 persons who have mental illness from persons who have
1066 intellectual disabilities with retardation or autism and
1067 separately housing persons who have been involuntarily committed
1068 pursuant to this chapter from nonforensic residents.
1069 (11) “Incompetent to proceed” means unable to proceed at
1070 any material stage of a criminal proceeding, which includes
1071 shall include trial of the case, pretrial hearings involving
1072 questions of fact on which the defendant might be expected to
1073 testify, entry of a plea, proceedings for violation of probation
1074 or violation of community control, sentencing, and hearings on
1075 issues regarding a defendant’s failure to comply with court
1076 orders or conditions or other matters in which the mental
1077 competence of the defendant is necessary for a just resolution
1078 of the issues being considered.
1079 (12) “Institutional security personnel” means the staff of
1080 forensic facilities who meet or exceed the requirements of s.
1081 943.13 and who are responsible for providing security,
1082 protecting clients and personnel, enforcing rules, preventing
1083 and investigating unauthorized activities, and safeguarding the
1084 interests of residents citizens in the surrounding communities.
1085 (14) (13) “Mental illness” means an impairment of the
1086 emotional processes that exercise conscious control of one’s
1087 actions, or of the ability to perceive or understand reality,
1088 which impairment substantially interferes with the a defendant’s
1089 ability to meet the ordinary demands of living. For the purposes
1090 of this chapter, the term does not apply to defendants who have
1091 only an intellectual disability with only mental retardation or
1092 autism and does not include intoxication or conditions
1093 manifested only by antisocial behavior or substance abuse
1095 (15) (14) “Restraint” means a physical device, method, or
1096 drug used to control dangerous behavior.
1097 (a) A physical restraint is any manual method or physical
1098 or mechanical device, material, or equipment attached or
1099 adjacent to a person’s body so that he or she cannot easily
1100 remove the restraint and that restricts freedom of movement or
1101 normal access to one’s body.
1102 (b) A drug used as a restraint is a medication used to
1103 control the person’s behavior or to restrict his or her freedom
1104 of movement and not part of the standard treatment regimen of
1105 the person with a diagnosed mental illness who is a client of
1106 the department. Physically holding a person during a procedure
1107 to forcibly administer psychotropic medication is a physical
1109 (c) Restraint does not include physical devices, such as
1110 orthopedically prescribed appliances, surgical dressings and
1111 bandages, supportive body bands, or other physical holding when
1112 necessary for routine physical examinations and tests; for
1113 purposes of orthopedic, surgical, or other similar medical
1114 treatment; when used to provide support for the achievement of
1115 functional body position or proper balance; or when used to
1116 protect a person from falling out of bed.
1117 (13) (15) “Intellectual disability” “Retardation” has the
1118 same meaning as in s. 393.063.
1119 (16) “Seclusion” means the physical segregation of a person
1120 in any fashion or the involuntary isolation of a person in a
1121 room or area from which the person is prevented from leaving.
1122 The prevention may be by physical barrier or by a staff member
1123 who is acting in a manner, or who is physically situated, so as
1124 to prevent the person from leaving the room or area. For
1125 purposes of this chapter, the term does not mean isolation due
1126 to a person’s medical condition or symptoms, the confinement in
1127 a forensic facility to a bedroom or area during normal hours of
1128 sleep when there is not an active order for seclusion, or during
1129 an emergency such as a riot or hostage situation when clients
1130 may be temporarily placed in their rooms for their own safety.
1131 (17) “Social service professional” means a person whose
1132 minimum qualifications include a bachelor’s degree and at least
1133 2 years of social work, clinical practice, special education,
1134 habilitation, or equivalent experience working directly with
1135 persons who have intellectual disabilities with retardation,
1136 autism, or other developmental disabilities.
1137 Section 28. The Division of Statutory Revision is requested
1138 to rename part III of chapter 916, Florida Statutes, consisting
1139 of ss. 916.301-916.304, as “Forensic Services for Persons who
1140 are Intellectually Disabled or Autistic.”
1141 Section 29. Subsections (1) and (2) of section 916.301,
1142 Florida Statutes, are amended to read:
1143 916.301 Appointment of experts.—
1144 (1) All evaluations ordered by the court under this part
1145 must be conducted by qualified experts who have expertise in
1146 evaluating persons who have an intellectual disability with
1147 retardation or autism. The agency shall maintain and provide the
1148 courts annually with a list of available retardation and autism
1149 professionals who are appropriately licensed and qualified to
1150 perform evaluations of defendants alleged to be incompetent to
1151 proceed due to intellectual disability retardation or autism.
1152 The courts may use professionals from this list when appointing
1153 experts and ordering evaluations under this part.
1154 (2) If a defendant’s suspected mental condition is
1155 intellectual disability retardation or autism, the court shall
1156 appoint the following:
1157 (a) At least one, or at the request of any party, two
1158 experts to evaluate whether the defendant meets the definition
1159 of intellectual disability retardation or autism and, if so,
1160 whether the defendant is competent to proceed; and
1161 (b) A psychologist selected by the agency who is licensed
1162 or authorized by law to practice in this state, with experience
1163 in evaluating persons suspected of having an intellectual
1164 disability retardation or autism, and a social service
1165 professional, with experience in working with persons who have
1166 an intellectual disability with retardation or autism.
1167 1. The psychologist shall evaluate whether the defendant
1168 meets the definition of intellectual disability retardation or
1169 autism and, if so, whether the defendant is incompetent to
1170 proceed due to intellectual disability retardation or autism.
1171 2. The social service professional shall provide a social
1172 and developmental history of the defendant.
1173 Section 30. Subsections (1), (2), and (4) of section
1174 916.3012, Florida Statutes, are amended to read:
1175 916.3012 Mental competence to proceed.—
1176 (1) A defendant whose suspected mental condition is
1177 intellectual disability retardation or autism is incompetent to
1178 proceed within the meaning of this chapter if the defendant does
1179 not have sufficient present ability to consult with the
1180 defendant’s lawyer with a reasonable degree of rational
1181 understanding or if the defendant has no rational, as well as
1182 factual, understanding of the proceedings against the defendant.
1183 (2) Experts in intellectual disability retardation or
1184 autism appointed pursuant to s. 916.301 shall first consider
1185 whether the defendant meets the definition of intellectual
1186 disability retardation or autism and, if so, consider the
1187 factors related to the issue of whether the defendant meets the
1188 criteria for competence to proceed as described in subsection
1190 (4) If the experts should find that the defendant is
1191 incompetent to proceed, the experts shall report on any
1192 recommended training for the defendant to attain competence to
1193 proceed. In considering the issues relating to training, the
1194 examining experts shall specifically report on:
1195 (a) The intellectual disability retardation or autism
1196 causing the incompetence;
1197 (b) The training appropriate for the intellectual
1198 disability retardation or autism of the defendant and an
1199 explanation of each of the possible training alternatives in
1200 order of choices;
1201 (c) The availability of acceptable training and, if
1202 training is available in the community, the expert shall so
1203 state in the report; and
1204 (d) The likelihood of the defendant’s attaining competence
1205 under the training recommended, an assessment of the probable
1206 duration of the training required to restore competence, and the
1207 probability that the defendant will attain competence to proceed
1208 in the foreseeable future.
1209 Section 31. Subsection (1), paragraphs (a) and (b) of
1210 subsection (2), and paragraph (a) of subsection (3) of section
1211 916.302, Florida Statutes, are amended to read:
1212 916.302 Involuntary commitment of defendant determined to
1213 be incompetent to proceed.—
1214 (1) CRITERIA.—Every defendant who is charged with a felony
1215 and who is adjudicated incompetent to proceed due to
1216 intellectual disability retardation or autism may be
1217 involuntarily committed for training upon a finding by the court
1218 of clear and convincing evidence that:
1219 (a) The defendant has an intellectual disability
1220 retardation or autism;
1221 (b) There is a substantial likelihood that in the near
1222 future the defendant will inflict serious bodily harm on himself
1223 or herself or another person, as evidenced by recent behavior
1224 causing, attempting, or threatening such harm;
1225 (c) All available, less restrictive alternatives, including
1226 services provided in community residential facilities or other
1227 community settings, which would offer an opportunity for
1228 improvement of the condition have been judged to be
1229 inappropriate; and
1230 (d) There is a substantial probability that the
1231 intellectual disability retardation or autism causing the
1232 defendant’s incompetence will respond to training and the
1233 defendant will regain competency to proceed in the reasonably
1234 foreseeable future.
1235 (2) ADMISSION TO A FACILITY.—
1236 (a) A defendant who has been charged with a felony and who
1237 is found to be incompetent to proceed due to intellectual
1238 disability retardation or autism, and who meets the criteria for
1239 involuntary commitment to the agency under the provisions of
1240 this chapter, shall be committed to the agency, and the agency
1241 shall retain and provide appropriate training for the defendant.
1242 Within No later than 6 months after the date of admission or at
1243 the end of any period of extended commitment or at any time the
1244 administrator or designee determines shall have determined that
1245 the defendant has regained competency to proceed or no longer
1246 meets the criteria for continued commitment, the administrator
1247 or designee shall file a report with the court pursuant to this
1248 chapter and the applicable Florida Rules of Criminal Procedure.
1249 (b) A defendant determined to be incompetent to proceed due
1250 to intellectual disability retardation or autism may be ordered
1251 by a circuit court into a forensic facility designated by the
1252 agency for defendants who have an intellectual disability mental
1253 retardation or autism.
1254 (3) PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.—
1255 (a) If a defendant has both an intellectual disability
1256 mental retardation or autism and has a mental illness,
1257 evaluations must address which condition is primarily affecting
1258 the defendant’s competency to proceed. Referral of the defendant
1259 should be made to a civil or forensic facility most appropriate
1260 to address the symptoms that are the cause of the defendant’s
1262 Section 32. Subsection (1) of section 916.3025, Florida
1263 Statutes, is amended to read:
1264 916.3025 Jurisdiction of committing court.—
1265 (1) The committing court shall retain jurisdiction in the
1266 case of any defendant found to be incompetent to proceed due to
1267 intellectual disability retardation or autism and ordered into a
1268 forensic facility designated by the agency for defendants who
1269 have intellectual disabilities mental retardation or autism. A
1270 defendant may not be released except by the order of the
1271 committing court. An administrative hearing examiner does not
1272 have jurisdiction to determine issues of continuing commitment
1273 or release of any defendant involuntarily committed pursuant to
1274 this chapter.
1275 Section 33. Section 916.303, Florida Statutes, is amended
1276 to read:
1277 916.303 Determination of incompetency due to retardation or
1278 autism; dismissal of charges.—
1279 (1) The charges against any defendant found to be
1280 incompetent to proceed due to intellectual disability
1281 retardation or autism shall be dismissed without prejudice to
1282 the state if the defendant remains incompetent to proceed within
1283 a reasonable time after such determination, not to exceed 2
1284 years, unless the court in its order specifies its reasons for
1285 believing that the defendant will become competent to proceed
1286 within the foreseeable future and specifies the time within
1287 which the defendant is expected to become competent to proceed.
1288 The charges may be refiled by the state if the defendant is
1289 declared competent to proceed in the future.
1290 (2) If the charges are dismissed and if the defendant is
1291 considered to lack sufficient capacity to give express and
1292 informed consent to a voluntary application for services and
1293 lacks the basic survival and self-care skills to provide for his
1294 or her well-being or is likely to physically injure himself or
1295 herself or others if allowed to remain at liberty, the agency,
1296 the state attorney, or the defendant’s attorney shall apply to
1297 the committing court to involuntarily admit the defendant to
1298 residential services pursuant to s. 393.11.
1299 (3) If the defendant is considered to need involuntary
1300 residential services for reasons described in subsection (2)
1301 and, further, there is a substantial likelihood that the
1302 defendant will injure another person or continues to present a
1303 danger of escape, and all available less restrictive
1304 alternatives, including services in community residential
1305 facilities or other community settings, which would offer an
1306 opportunity for improvement of the condition have been judged to
1307 be inappropriate, the agency, the state attorney, or the
1308 defendant’s counsel may request the committing court to continue
1309 the defendant’s placement in a secure facility pursuant to this
1310 part. Any placement so continued under this subsection must be
1311 reviewed by the court at least annually at a hearing. The annual
1312 review and hearing must shall determine whether the defendant
1313 continues to meet the criteria described in this subsection and,
1314 if so, whether the defendant still requires involuntary
1315 placement in a secure facility and whether the defendant is
1316 receiving adequate care, treatment, habilitation, and
1317 rehabilitation, including psychotropic medication and behavioral
1318 programming. Notice of the annual review and review hearing
1319 shall be given to the state attorney and the defendant’s
1320 attorney. In no instance may A defendant’s placement in a secure
1321 facility may not exceed the maximum sentence for the crime for
1322 which the defendant was charged.
1323 Section 34. Subsection (1) of section 916.304, Florida
1324 Statutes, is amended to read:
1325 916.304 Conditional release.—
1326 (1) Except for an inmate currently serving a prison
1327 sentence, the committing court may order a conditional release
1328 of any defendant who has been found to be incompetent to proceed
1329 due to intellectual disability retardation or autism, based on
1330 an approved plan for providing community-based training. The
1331 committing criminal court may order a conditional release of any
1332 defendant to a civil facility in lieu of an involuntary
1333 commitment to a forensic facility pursuant to s. 916.302. Upon a
1334 recommendation that community-based training for the defendant
1335 is appropriate, a written plan for community-based training,
1336 including recommendations from qualified professionals, may be
1337 filed with the court, with copies to all parties. Such a plan
1338 may also be submitted by the defendant and filed with the court,
1339 with copies to all parties. The plan must include:
1340 (a) Special provisions for residential care and adequate
1341 supervision of the defendant, including recommended location of
1343 (b) Recommendations for auxiliary services such as
1344 vocational training, psychological training, educational
1345 services, leisure services, and special medical care.
1347 In its order of conditional release, the court shall specify the
1348 conditions of release based upon the release plan and shall
1349 direct the appropriate agencies or persons to submit periodic
1350 reports to the courts regarding the defendant’s compliance with
1351 the conditions of the release and progress in training, with
1352 copies to all parties.
1353 Section 35. Section 921.137, Florida Statutes, is amended
1354 to read:
1355 921.137 Imposition of the death sentence upon an
1356 intellectually disabled a defendant with mental retardation
1358 (1) As used in this section, the term:
1359 (a) “Adaptive behavior” means the effectiveness or degree
1360 with which an individual meets the standards of personal
1361 independence and social responsibility expected of his or her
1362 age, cultural group, and community.
1363 (b) “Intellectual disability” or “intellectually disabled”
1364 “mental retardation” means significantly subaverage general
1365 intellectual functioning existing concurrently with deficits in
1366 adaptive behavior and manifested during the period from
1367 conception to age 18. The term
1368 (c) “Significantly subaverage general intellectual
1369 functioning ,” for the purpose of this section, means performance
1370 that is two or more standard deviations from the mean score on a
1371 standardized intelligence test specified in the rules of the
1372 Agency for Persons with Disabilities. The term “adaptive
1373 behavior,” for the purpose of this definition, means the
1374 effectiveness or degree with which an individual meets the
1375 standards of personal independence and social responsibility
1376 expected of his or her age, cultural group, and community. The
1377 Agency for Persons with Disabilities shall ad opt rules to
1378 specify the standardized intelligence tests as provided in this
1380 (2) A sentence of death may not be imposed upon a defendant
1381 convicted of a capital felony if it is determined in accordance
1382 with this section that the defendant is intellectually disabled
1383 has mental retardation.
1384 (3) A defendant charged with a capital felony who intends
1385 to raise intellectual disability mental retardation as a bar to
1386 the death sentence must give notice of such intention in
1387 accordance with the rules of court governing notices of intent
1388 to offer expert testimony regarding mental health mitigation
1389 during the penalty phase of a capital trial.
1390 (4) After a defendant who has given notice of his or her
1391 intention to raise intellectual disability mental retardation as
1392 a bar to the death sentence is convicted of a capital felony and
1393 an advisory jury has returned a recommended sentence of death,
1394 the defendant may file a motion to determine whether the
1395 defendant is intellectually disabled has mental retardation.
1396 Upon receipt of the motion, the court shall appoint two experts
1397 in the field of intellectual disabilities mental retardation who
1398 shall evaluate the defendant and report their findings to the
1399 court and all interested parties before prior to the final
1400 sentencing hearing. Notwithstanding s. 921.141 or s. 921.142,
1401 the final sentencing hearing shall be held without a jury. At
1402 the final sentencing hearing, the court shall consider the
1403 findings of the court-appointed experts and consider the
1404 findings of any other expert which are is offered by the state
1405 or the defense on the issue of whether the defendant has an
1406 intellectual disability has mental retardation. If the court
1407 finds, by clear and convincing evidence, that the defendant is
1408 intellectually disabled has mental retardation as defined in
1409 subsection (1), the court may not impose a sentence of death and
1410 shall enter a written order that sets forth with specificity the
1411 findings in support of the determination.
1412 (5) If a defendant waives his or her right to a recommended
1413 sentence by an advisory jury following a plea of guilt or nolo
1414 contendere to a capital felony and adjudication of guilt by the
1415 court, or following a jury finding of guilt of a capital felony,
1416 upon acceptance of the waiver by the court, a defendant who has
1417 given notice as required in subsection (3) may file a motion for
1418 a determination of intellectual disability mental retardation.
1419 Upon granting the motion, the court shall proceed as provided in
1420 subsection (4).
1421 (6) If, following a recommendation by an advisory jury that
1422 the defendant be sentenced to life imprisonment, the state
1423 intends to request the court to order that the defendant be
1424 sentenced to death, the state must inform the defendant of such
1425 request if the defendant has notified the court of his or her
1426 intent to raise intellectual disability mental retardation as a
1427 bar to the death sentence. After receipt of the notice from the
1428 state, the defendant may file a motion requesting a
1429 determination by the court of whether the defendant is
1430 intellectually disabled has mental retardation. Upon granting
1431 the motion, the court shall proceed as provided in subsection
1433 (7) Pursuant to s. 924.07, the state may appeal , pursuant
1434 to s. 924.07 , a determination of intellectual disability mental
1435 retardation made under subsection (4).
1436 (8) This section does not apply to a defendant who was
1437 sentenced to death before June 12, 2001 prior to the effective
1438 date of this act.
1439 Section 36. Paragraph (b) of subsection (2) of section
1440 941.38, Florida Statutes, is amended to read:
1441 941.38 Extradition of persons alleged to be of unsound
1443 (2) For the purpose of this section:
1444 (b) A “mentally incompetent person” is one who because of
1445 mental illness, intellectual disability mental retardation,
1446 senility, excessive use of drugs or alcohol, or other mental
1447 incapacity is incapable of either managing his or her property
1448 or caring for himself or herself or both.
1449 Section 37. Section 944.602, Florida Statutes, is amended
1450 to read:
1451 944.602 Agency notification before release of
1452 intellectually disabled mentally retarded inmates.—Before the
1453 release by parole, release by reason of gain-time allowances
1454 provided for in s. 944.291, or expiration of sentence of any
1455 inmate who has been diagnosed as having an intellectual
1456 disability mentally retarded as defined in s. 393.063, the
1457 Department of Corrections shall notify the Agency for Persons
1458 with Disabilities in order that sufficient time be allowed to
1459 notify the inmate or the inmate’s representative, in writing, at
1460 least 7 days before prior to the inmate’s release, of available
1461 community services.
1462 Section 38. Subsection (2) of section 945.025, Florida
1463 Statutes, is amended to read:
1464 945.025 Jurisdiction of department.—
1465 (2) In establishing, operating, and using utilizing these
1466 facilities, the department shall attempt, whenever possible, to
1467 avoid the placement of nondangerous offenders who have potential
1468 for rehabilitation with repeat offenders or dangerous offenders.
1469 Medical, mental, and psychological problems must shall be
1470 diagnosed and treated whenever possible. The Department of
1471 Children and Family Services and the Agency for Persons with
1472 Disabilities shall cooperate to ensure the delivery of services
1473 to persons under the custody or supervision of the department.
1474 If When it is the intent of the department intends to transfer a
1475 mentally ill or retarded prisoner who has a mental illness or
1476 intellectual disability to the Department of Children and Family
1477 Services or the Agency for Persons with Disabilities, an
1478 involuntary commitment hearing shall be held in accordance with
1479 according to the provisions of chapter 393 or chapter 394.
1480 Section 39. Subsection (5) of section 945.12, Florida
1481 Statutes, is amended to read:
1482 945.12 Transfers for rehabilitative treatment.—
1483 (5) When the department plans to release a mentally ill or
1484 intellectually disabled retarded offender, an involuntary
1485 commitment hearing shall be held as soon as possible before
1486 prior to his or her release in accordance with , accord ing to the
1487 provisions of chapter 393 or chapter 394.
1488 Section 40. Subsection (9) of section 945.42, Florida
1489 Statutes, is amended to read:
1490 945.42 Definitions; ss. 945.40-945.49.—As used in ss.
1491 945.40-945.49, the following terms shall have the meanings
1492 ascribed to them, unless the context shall clearly indicate
1494 (9) “Mentally ill” means an impairment of the mental or
1495 emotional processes that , of the ability to exercise conscious
1496 control of one’s actions , or of the ability to perceive or
1497 understand reality, which impairment substantially interferes
1498 with the a person’s ability to meet the ordinary demands of
1499 living. However, regardless of etiology, except th at, for the
1500 purposes of transferring transfer of an inmate to a mental
1501 health treatment facility, the term does not include a
1502 retardation or developmental disability as defined in chapter
1503 393, simple intoxication, or conditions manifested only by
1504 antisocial behavior or substance abuse addiction. However, an
1505 individual who is mentally retarded or developmentally disabled
1506 may also have a mental illness.
1507 Section 41. Section 947.185, Florida Statutes, is amended
1508 to read:
1509 947.185 Application for intellectual disability mental
1510 retardation services as condition of parole.—The Parole
1511 Commission may require as a condition of parole that any inmate
1512 who has been diagnosed as having an intellectual disability
1513 mentally retarded as defined in s. 393.063 shall, upon release,
1514 apply for services from the Agency for Persons with
1516 Section 42. Subsection (4) of section 984.19, Florida
1517 Statutes, is amended to read:
1518 984.19 Medical screening and treatment of child;
1519 examination of parent, guardian, or person requesting custody.—
1520 (4) A judge may order that a child alleged to be or
1521 adjudicated a child in need of services be treated by a licensed
1522 health care professional. The judge may also order such child to
1523 receive mental health or intellectual disability retardation
1524 services from a psychiatrist, psychologist, or other appropriate
1525 service provider. If it is necessary to place the child in a
1526 residential facility for such services, then the procedures and
1527 criteria established in s. 394.467 or chapter 393 shall be used,
1528 as whichever is applicable. A child may be provided mental
1529 health or retardation services in emergency situations , pursuant
1530 to the procedures and criteria contained in s. 394.463(1) or
1531 chapter 393, as whichever is applicable.
1532 Section 43. Paragraph (a) of subsection (3) of section
1533 985.14, Florida Statutes, is amended to read:
1534 985.14 Intake and case management system.—
1535 (3) The intake and case management system shall facilitate
1536 consistency in the recommended placement of each child, and in
1537 the assessment, classification, and placement process, with the
1538 following purposes:
1539 (a) An individualized, multidisciplinary assessment process
1540 that identifies the priority needs of each individual child for
1541 rehabilitation and treatment and identifies any needs of the
1542 child’s parents or guardians for services that would enhance
1543 their ability to provide adequate support, guidance, and
1544 supervision for the child. This process begins shall begin with
1545 the detention risk assessment instrument and decision, includes
1546 shall include the intake preliminary screening and comprehensive
1547 assessment for substance abuse treatment services, mental health
1548 services, intellectual disability retardation services, literacy
1549 services, and other educational and treatment services as
1550 components, additional assessment of the child’s treatment
1551 needs, and classification regarding the child’s risks to the
1552 community and, for a serious or habitual delinquent child,
1553 includes shall include the assessment for placement in a serious
1554 or habitual delinquent children program under s. 985.47. The
1555 completed multidisciplinary assessment process must shall result
1556 in the predisposition report.
1557 Section 44. Paragraph (g) of subsection (1) and subsection
1558 (5) of section 985.145, Florida Statutes, is amended to read:
1559 985.145 Responsibilities of juvenile probation officer
1560 during intake; screenings and assessments.—
1561 (1) The juvenile probation officer shall serve as the
1562 primary case manager for the purpose of managing, coordinating,
1563 and monitoring the services provided to the child. Each program
1564 administrator within the Department of Children and Family
1565 Services shall cooperate with the primary case manager in
1566 carrying out the duties and responsibilities described in this
1567 section. In addition to duties specified in other sections and
1568 through departmental rules, the assigned juvenile probation
1569 officer shall be responsible for the following:
1570 (g) Comprehensive assessment.—The juvenile probation
1571 officer, pursuant to uniform procedures established by the
1572 department and upon determining that the report, affidavit, or
1573 complaint is complete, shall:
1574 1. Perform the preliminary screening and make referrals for
1575 a comprehensive assessment regarding the child’s need for
1576 substance abuse treatment services, mental health services,
1577 intellectual disability retardation services, literacy services,
1578 or other educational or treatment services.
1579 2. If When indicated by the preliminary screening, provide
1580 for a comprehensive assessment of the child and family for
1581 substance abuse problems, using community-based licensed
1582 programs with clinical expertise and experience in the
1583 assessment of substance abuse problems.
1584 3. If When indicated by the preliminary screening, provide
1585 for a comprehensive assessment of the child and family for
1586 mental health problems, using community-based psychologists,
1587 psychiatrists, or other licensed mental health professionals who
1588 have clinical expertise and experience in the assessment of
1589 mental health problems.
1590 (5) If the screening and assessment indicate that the
1591 interests of the child and the public will be best served
1592 thereby, the juvenile probation officer, with the approval of
1593 the state attorney, may refer the child for care, diagnostic,
1594 and evaluation services; substance abuse treatment services;
1595 mental health services; intellectual disability retardation
1596 services; a diversionary, arbitration, or mediation program;
1597 community service work; or other programs or treatment services
1598 voluntarily accepted by the child and the child’s parents or
1599 legal guardian. If Whenever a child volunteers to participate in
1600 any work program under this chapter or volunteers to work in a
1601 specified state, county, municipal, or community service
1602 organization supervised work program or to work for the victim,
1603 the child is shall be considered an employee of the state for
1604 the purposes of liability. In determining the child’s average
1605 weekly wage, unless otherwise determined by a specific funding
1606 program, all remuneration received from the employer is
1607 considered a gratuity, and the child is not entitled to any
1608 benefits otherwise payable under s. 440.15 , regardless of
1609 whether the child may be receiving wages and remuneration from
1610 other employment with another employer and regardless of the
1611 child’s future wage-earning capacity.
1612 Section 45. Subsections (2) and (6) of section 985.18,
1613 Florida Statutes, are amended to read:
1614 985.18 Medical, psychiatric, psychological, substance
1615 abuse, and educational examination and treatment.—
1616 (2) If Whenever a child has been found to have committed a
1617 delinquent act, or before such finding with the consent of any
1618 parent or legal custodian of the child, the court may order the
1619 child to be treated by a physician. The court may also order the
1620 child to receive mental health, substance abuse, or intellectual
1621 disability retardation services from a psychiatrist,
1622 psychologist, or other appropriate service provider. If it is
1623 necessary to place the child in a residential facility for such
1624 services, the procedures and criteria established in chapter
1625 393, chapter 394, or chapter 397, as whichever is applicable,
1626 must shall be used. After a child has been adjudicated
1627 delinquent, if an educational needs assessment by the district
1628 school board or the Department of Children and Family Services
1629 has been previously conducted, the court shall order the report
1630 of such needs assessment included in the child’s court record in
1631 lieu of a new assessment. For purposes of this section, an
1632 educational needs assessment includes, but is not limited to,
1633 reports of intelligence and achievement tests, screening for
1634 learning and other disabilities and other handicaps, and
1635 screening for the need for alternative education.
1636 (6) A physician must shall be immediately notified by the
1637 person taking the child into custody or the person having
1638 custody if there are indications of physical injury or illness,
1639 or the child shall be taken to the nearest available hospital
1640 for emergency care. A child may be provided mental health,
1641 substance abuse, or intellectual disability retardation
1642 services , in emergency situations , pursuant to chapter 393,
1643 chapter 394, or chapter 397, as whichever is applicable. After a
1644 hearing, the court may order the custodial parent or parents,
1645 guardian, or other custodian, if found able to do so, to
1646 reimburse the county or state for the expense involved in such
1647 emergency treatment or care.
1648 Section 46. Paragraph (e) of subsection (1), subsections
1649 (2) through (4), and paragraph (a) of subsection (6) of section
1650 985.19, Florida Statutes, are amended to read:
1651 985.19 Incompetency in juvenile delinquency cases.—
1652 (1) If, at any time prior to or during a delinquency case,
1653 the court has reason to believe that the child named in the
1654 petition may be incompetent to proceed with the hearing, the
1655 court on its own motion may, or on the motion of the child’s
1656 attorney or state attorney must, stay all proceedings and order
1657 an evaluation of the child’s mental condition.
1658 (e) For incompetency evaluations related to intellectual
1659 disability mental retardation or autism, the court shall order
1660 the Agency for Persons with Disabilities to examine the child to
1661 determine if the child meets the definition of “intellectual
1662 disability” “retardation” or “autism” in s. 393.063 and, if so,
1663 whether the child is competent to proceed with delinquency
1665 (2) A child who is adjudicated incompetent to proceed, and
1666 who has committed a delinquent act or violation of law, either
1667 of which would be a felony if committed by an adult, must be
1668 committed to the Department of Children and Family Services for
1669 treatment or training. A child who has been adjudicated
1670 incompetent to proceed because of age or immaturity, or for any
1671 reason other than for mental illness, intellectual disability,
1672 or re tardation or autism, must not be committed to the
1673 department or to the Department of Children and Family Services
1674 for restoration-of-competency treatment or training services.
1675 For purposes of this section, a child who has committed a
1676 delinquent act or violation of law, either of which would be a
1677 misdemeanor if committed by an adult, may not be committed to
1678 the department or to the Department of Children and Family
1679 Services for restoration-of-competency treatment or training
1681 (3) If the court finds that a child has mental illness,
1682 intellectual disability mental retardation, or autism and
1683 adjudicates the child incompetent to proceed, the court must
1684 also determine whether the child meets the criteria for secure
1685 placement. A child may be placed in a secure facility or program
1686 if the court makes a finding by clear and convincing evidence
1688 (a) The child has mental illness, intellectual disability
1689 mental retardation, or autism and because of the mental illness,
1690 intellectual disability mental retardation, or autism:
1691 1. The child is manifestly incapable of surviving with the
1692 help of willing and responsible family or friends, including
1693 available alternative services, and without treatment or
1694 training the child is likely to either suffer from neglect or
1695 refuse to care for self, and such neglect or refusal poses a
1696 real and present threat of substantial harm to the child’s well
1697 being; or
1698 2. There is a substantial likelihood that in the near
1699 future the child will inflict serious bodily harm on self or
1700 others, as evidenced by recent behavior causing, attempting, or
1701 threatening such harm; and
1702 (b) All available less restrictive alternatives, including
1703 treatment or training in community residential facilities or
1704 community settings, which would offer an opportunity for
1705 improvement of the child’s condition, are inappropriate.
1706 (4) A child who is determined to have mental illness,
1707 intellectual disability mental retardation, or autism, who has
1708 been adjudicated incompetent to proceed, and who meets the
1709 criteria set forth in subsection (3), must be committed to the
1710 Department of Children and Family Services and receive treatment
1711 or training in a secure facility or program that is the least
1712 restrictive alternative consistent with public safety. Any
1713 placement of a child to a secure residential program must be
1714 separate from adult forensic programs. If the child attains
1715 competency, then custody, case management, and supervision of
1716 the child shall will be transferred to the department in order
1717 to continue delinquency proceedings; however, the court retains
1718 authority to order the Department of Children and Family
1719 Services to provide continued treatment or training to maintain
1721 (a) A child adjudicated incompetent due to intellectual
1722 disability mental retardation or autism may be ordered into a
1723 secure program or facility designated by the Department of
1724 Children and Family Services for children who have intellectual
1725 disabilities with me ntal retardation or autism.
1726 (b) A child adjudicated incompetent due to mental illness
1727 may be ordered into a secure program or facility designated by
1728 the Department of Children and Family Services for children
1729 having mental illnesses.
1730 (c) If Whenever a child is placed in a secure residential
1731 facility, the department shall will provide transportation to
1732 the secure residential facility for admission and from the
1733 secure residential facility upon discharge.
1734 (d) The purpose of the treatment or training is the
1735 restoration of the child’s competency to proceed.
1736 (e) The service provider must file a written report with
1737 the court pursuant to the applicable Florida Rules of Juvenile
1738 Procedure within not later than 6 months after the date of
1739 commitment, or at the end of any period of extended treatment or
1740 training, and at any time the Department of Children and Family
1741 Services, through its service provider, determines the child has
1742 attained competency or no longer meets the criteria for secure
1743 placement, or at such shorter intervals as ordered by the court.
1744 A copy of a written report evaluating the child’s competency
1745 must be filed by the provider with the court and with the state
1746 attorney, the child’s attorney, the department, and the
1747 Department of Children and Family Services.
1748 (6)(a) If a child is determined to have mental illness,
1749 intellectual disability mental retardation, or autism and is
1750 found to be incompetent to proceed but does not meet the
1751 criteria set forth in subsection (3), the court shall commit the
1752 child to the Department of Children and Family Services and
1753 shall order the Department of Children and Family Services to
1754 provide appropriate treatment and training in the community. The
1755 purpose of the treatment or training is the restoration of the
1756 child’s competency to proceed.
1757 Section 47. Section 985.195, Florida Statutes, is amended
1758 to read:
1759 985.195 Transfer to other treatment services.—Any child
1760 committed to the department may be transferred to intellectual
1761 disability retardation, mental health, or substance abuse
1762 treatment facilities for diagnosis and evaluation pursuant to
1763 chapter 393, chapter 394, or chapter 397, as whichever is
1764 applicable, for up to a period not to exceed 90 days.
1765 Section 48. Paragraph (b) of subsection (1) of section
1766 985.61, Florida Statutes, is amended to read:
1767 985.61 Early delinquency intervention program; criteria.—
1768 (1) The Department of Juvenile Justice shall, contingent
1769 upon specific appropriation and with the cooperation of local
1770 law enforcement agencies, the judiciary, district school board
1771 personnel, the office of the state attorney, the office of the
1772 public defender, the Department of Children and Family Services,
1773 and community service agencies that work with children,
1774 establish an early delinquency intervention program, the
1775 components of which shall include, but not be limited to:
1776 (b) Treatment modalities, including substance abuse
1777 treatment services, mental health services, and retardation
1778 services for intellectual disabilities.
1779 Section 49. This act shall take effect July 1, 2010.