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       Florida Senate - 2010                             CS for SB 1388
       
       
       
       By the Committee on Children, Families, and Elder Affairs; and
       Senator Haridopolos
       
       
       
       586-03770-10                                          20101388c1
    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 s. 409.908,
   17         F.S.; substituting the term “intellectually disabled”
   18         for the term “mentally retarded”; amending ss. 413.20,
   19         440.49, and 499.0054, F.S.; substituting the term
   20         “intellectual disability” for the term “mental
   21         retardation”; amending s. 514.072, F.S.; conforming a
   22         cross-reference and deleting obsolete provisions;
   23         amending ss. 627.6041, 627.6615, 641.31, 650.05,
   24         765.204, 849.04, 914.16, 914.17, 916.105, and 916.106,
   25         F.S.; substituting the term “intellectual disability”
   26         for the term “mental retardation”; amending s.
   27         916.107, F.S.; substituting the term “intellectual
   28         disability” for the term “retardation”; providing a
   29         directive to the Division of Statutory Revision;
   30         amending ss. 916.301, 916.3012, 916.302, 916.3025,
   31         916.303, 916.304, 918.16, 921.137, 941.38, 944.602,
   32         945.025, 945.12, 945.42, 947.185, 984.19, 985.14,
   33         985.145, 985.18, 985.19, 985.195, and 985.61, F.S.;
   34         substituting the term “intellectual disability” for
   35         the term “mental retardation”; expressing legislative
   36         intent; providing an effective date.
   37  
   38  Be It Enacted by the Legislature of the State of Florida:
   39  
   40         Section 1. Subsection (15) of section 39.502, Florida
   41  Statutes, is amended to read:
   42         39.502 Notice, process, and service.—
   43         (15) A party who is identified as a person who has a with
   44  mental illness or with a developmental disability must be
   45  informed by the court of the availability of advocacy services
   46  through the department, the Arc of Florida Association for
   47  Retarded Citizens, or other appropriate mental health or
   48  developmental disability advocacy groups and encouraged to seek
   49  such services.
   50         Section 2. Subsection (9) of section 40.013, Florida
   51  Statutes, is amended to read:
   52         40.013 Persons disqualified or excused from jury service.—
   53         (9) Any person who is responsible for the care of a person
   54  who, because of mental illness, intellectual disability mental
   55  retardation, senility, or other physical or mental incapacity,
   56  is incapable of caring for himself or herself shall be excused
   57  from jury service upon request.
   58         Section 3. Section 86.041, Florida Statutes, is amended to
   59  read:
   60         86.041 Actions by executors, administrators, trustees,
   61  etc.—Any person interested as or through an executor,
   62  administrator, trustee, guardian, or other fiduciary, creditor,
   63  devisee, legatee, heir, next of kin, or cestui que trust, in the
   64  administration of a trust, a guardianship, or of the estate of a
   65  decedent, an infant, a mental incompetent, or insolvent may have
   66  a declaration of rights or equitable or legal relations to in
   67  respect thereto:
   68         (1) To Ascertain any class of creditors, devisees,
   69  legatees, heirs, next of kin, or others; or
   70         (2) To Direct the executor, administrator, or trustee to
   71  refrain from doing any particular act in his or her fiduciary
   72  capacity; or
   73         (3) To Determine any question relating to arising in the
   74  administration of the guardianship, estate, or trust, including
   75  questions of construction of wills and other writings.
   76  
   77  For the purpose of this section, a “mental incompetent” is one
   78  who, because of mental illness, intellectual disability mental
   79  retardation, senility, excessive use of drugs or alcohol, or
   80  other mental incapacity, is incapable of either managing his or
   81  her property or caring for himself or herself, or both.
   82         Section 4. Section 92.53, Florida Statutes, is amended to
   83  read:
   84         92.53 Videotaping of testimony of a victim or witness under
   85  age 16 or who has an intellectual disability person with mental
   86  retardation.—
   87         (1) On motion and hearing in camera and a finding that
   88  there is a substantial likelihood that a victim or witness who
   89  is under the age of 16 or who has an intellectual disability is
   90  a person with mental retardation as defined in s. 393.063 would
   91  suffer at least moderate emotional or mental harm due to the
   92  presence of the defendant if such victim or witness the child or
   93  person with mental retardation is required to testify in open
   94  court, or that such victim or witness is otherwise unavailable
   95  as defined in s. 90.804(1), the trial court may order the
   96  videotaping of the testimony of the victim or witness in a case,
   97  whether civil or criminal in nature, in which videotaped
   98  testimony is to be used utilized at trial in lieu of trial
   99  testimony in open court.
  100         (2) The motion may be filed by:
  101         (a) The victim or witness, or the victim’s or witness’s
  102  attorney, parent, legal guardian, or guardian ad litem;
  103         (b) A trial judge on his or her own motion;
  104         (c) Any party in a civil proceeding; or
  105         (d) The prosecuting attorney or the defendant, or the
  106  defendant’s counsel.
  107         (3) The judge shall preside, or shall appoint a special
  108  master to preside, at the videotaping unless the following
  109  conditions are met:
  110         (a) The child or the person who has the intellectual
  111  disability with mental retardation is represented by a guardian
  112  ad litem or counsel;
  113         (b) The representative of the victim or witness and the
  114  counsel for each party stipulate that the requirement for the
  115  presence of the judge or special master may be waived; and
  116         (c) The court finds at a hearing on the motion that the
  117  presence of a judge or special master is not necessary to
  118  protect the victim or witness.
  119         (4) The defendant and the defendant’s counsel must shall be
  120  present at the videotaping, unless the defendant has waived this
  121  right. The court may require the defendant to view the testimony
  122  from outside the presence of the child or the person who has an
  123  intellectual disability with mental retardation by means of a
  124  two-way mirror or another similar method that ensures will
  125  ensure that the defendant can observe and hear the testimony of
  126  the victim or witness in person, but that the victim or witness
  127  cannot hear or see the defendant. The defendant and the attorney
  128  for the defendant may communicate by any appropriate private
  129  method.
  130         (5) Any party, or the court on its own motion, may request
  131  the aid of an interpreter, as provided in s. 90.606, to aid the
  132  parties in formulating methods of questioning the child or
  133  person who has the intellectual disability with mental
  134  retardation and in interpreting the answers of the child or
  135  person with mental retardation throughout proceedings conducted
  136  under this section.
  137         (6) The motion referred to in subsection (1) may be made at
  138  any time with reasonable notice to each party to the cause, and
  139  videotaping of testimony may be made any time after the court
  140  grants the motion. The videotaped testimony is shall be
  141  admissible as evidence in the trial of the cause; however, such
  142  testimony is shall not be admissible in any trial or proceeding
  143  in which such witness testifies by use of closed circuit
  144  television pursuant to s. 92.54.
  145         (7) The court shall make specific findings of fact, on the
  146  record, as to the basis for its ruling under this section.
  147         Section 5. Section 92.54, Florida Statutes, is amended to
  148  read:
  149         92.54 Use of closed circuit television in proceedings
  150  involving a victim or witness victims or witnesses under the age
  151  of 16 or who has an intellectual disability persons with mental
  152  retardation.—
  153         (1) Upon motion and hearing in camera and upon a finding
  154  that there is a substantial likelihood that a victim or witness
  155  under the age of 16 or who has an intellectual disability the
  156  child or person with mental retardation will suffer at least
  157  moderate emotional or mental harm due to the presence of the
  158  defendant if such victim or witness the child or person with
  159  mental retardation is required to testify in open court, or that
  160  such victim or witness is unavailable as defined in s.
  161  90.804(1), the trial court may order that the testimony of the a
  162  child under the age of 16 or person with mental retardation who
  163  is a victim or witness be taken outside of the courtroom and
  164  shown by means of closed circuit television.
  165         (2) The motion may be filed by the victim or witness; the
  166  attorney, parent, legal guardian, or guardian ad litem of the
  167  victim or witness; the prosecutor; the defendant or the
  168  defendant’s counsel; or the trial judge on his or her own
  169  motion.
  170         (3) Only the judge, the prosecutor, the defendant, the
  171  attorney for the defendant, the operators of the videotape
  172  equipment, an interpreter, and some other person who, in the
  173  opinion of the court, contributes to the well-being of the child
  174  or the person who has an intellectual disability with mental
  175  retardation and who will not be a witness in the case may be in
  176  the room during the recording of the testimony.
  177         (4) During the victim’s or witness’s child’s or person’s
  178  with mental retardation testimony by closed circuit television,
  179  the court may require the defendant to view the testimony from
  180  the courtroom. In such a case, the court shall permit the
  181  defendant to observe and hear the testimony of the victim or
  182  witness child or person with mental retardation, but must shall
  183  ensure that the victim or witness child or person with mental
  184  retardation cannot hear or see the defendant. The defendant’s
  185  right to assistance of counsel, which includes the right to
  186  immediate and direct communication with counsel conducting
  187  cross-examination, must be protected and, upon the defendant’s
  188  request, such communication shall be provided by any appropriate
  189  electronic method.
  190         (5) The court shall make specific findings of fact, on the
  191  record, as to the basis for its ruling under this section.
  192         Section 6. Section 92.55, Florida Statutes, is amended to
  193  read:
  194         92.55 Judicial or other proceedings involving a victim or
  195  witness under the age of 16 or who has an intellectual
  196  disability person with mental retardation; special protections.—
  197         (1) Upon motion of any party, upon motion of a parent,
  198  guardian, attorney, or guardian ad litem for a victim or witness
  199  child under the age of 16 or who has an intellectual disability
  200  person with mental retardation, or upon its own motion, the
  201  court may enter any order necessary to protect such a child
  202  under the age of 16 or person with mental retardation who is a
  203  victim or witness in any judicial proceeding or other official
  204  proceeding from severe emotional or mental harm due to the
  205  presence of the defendant if the victim or witness child or
  206  person with mental retardation is required to testify in open
  207  court. Such orders must shall relate to the taking of testimony
  208  and shall include, but are not be limited to:
  209         (a) Interviewing or the taking of depositions as part of a
  210  civil or criminal proceeding.
  211         (b) Examination and cross-examination for the purpose of
  212  qualifying as a witness or testifying in any proceeding.
  213         (c) The use of testimony taken outside of the courtroom,
  214  including proceedings under ss. 92.53 and 92.54.
  215         (2) In ruling upon the motion, the court shall take into
  216  consideration:
  217         (a) The age of the child, the nature of the offense or act,
  218  the relationship of the child to the parties in the case or to
  219  the defendant in a criminal action, the degree of emotional
  220  trauma that will result to the child as a consequence of the
  221  defendant’s presence, and any other fact that the court deems
  222  relevant; or
  223         (b) The age of the person who has an intellectual
  224  disability with mental retardation, the functional capacity of
  225  such the person with mental retardation, the nature of the
  226  offenses or act, the relationship of the person with mental
  227  retardation to the parties in the case or to the defendant in a
  228  criminal action, the degree of emotional trauma that will result
  229  to the person with mental retardation as a consequence of the
  230  defendant’s presence, and any other fact that the court deems
  231  relevant.
  232         (3) In addition to such other relief as is provided by law,
  233  the court may enter orders limiting the number of times that a
  234  child or a person who has an intellectual disability with mental
  235  retardation may be interviewed, prohibiting depositions of such
  236  a child or person with mental retardation, requiring the
  237  submission of questions prior to examination of the a child or
  238  person with mental retardation, setting the place and conditions
  239  for interviewing the a child or person with mental retardation
  240  or for conducting any other proceeding, or permitting or
  241  prohibiting the attendance of any person at any proceeding. The
  242  court shall enter any order necessary to protect the rights of
  243  all parties, including the defendant in any criminal action.
  244         Section 7. Subsection (1) of section 320.10, Florida
  245  Statutes, is amended to read:
  246         320.10 Exemptions.—
  247         (1) The provisions of s. 320.08 do not apply to:
  248         (a) Any motor vehicle or mobile home owned by, and operated
  249  exclusively for the personal use of, any member of the United
  250  States Armed Forces who is not a resident of this state and who
  251  is stationed in the state while in compliance with military or
  252  naval orders;
  253         (b) Any motor vehicle owned or operated exclusively by the
  254  Federal Government;
  255         (c) Any motor vehicle owned and operated exclusively for
  256  the benefit of the Boys’ Clubs of America, the National Audubon
  257  Society, the National Children’s Cardiac Hospital, any humane
  258  society, any nationally chartered veterans’ organization that
  259  maintains a state headquarters in this state, the Children’s
  260  Bible Mission, the Boy Scouts of America, the Girl Scouts of
  261  America, the Salvation Army, the American National Red Cross,
  262  the United Service Organization, any local member unit of the
  263  National Urban League which provides free services to municipal
  264  and county residents who are in need of such services, the Young
  265  Men’s Christian Association, the Young Men’s Hebrew Association,
  266  the Camp Fire Girls’ Council, the Young Women’s Christian
  267  Association, the Young Women’s Hebrew Association, any local
  268  member unit of the Arc of Florida Association for Retarded
  269  Citizens, the Children’s Home Society of Florida, or the
  270  Goodwill Industries. A not-for-profit organization named in this
  271  paragraph and its local affiliate organizations is shall be
  272  eligible for the exemption if it for so long as each maintains
  273  current articles of incorporation on file with the Department of
  274  State and qualifies as a not-for-profit organization under s.
  275  212.08;
  276         (d) Any motor vehicle owned and operated by a church,
  277  temple, or synagogue for exclusive use as a community service
  278  van or to transport passengers without compensation to religious
  279  services or for religious education;
  280         (e) Any motor vehicle owned and operated by the Civil Air
  281  Patrol or the United States Coast Guard Auxiliary;
  282         (f) Any mobile blood bank unit when operated as a nonprofit
  283  service by an organization;
  284         (g) Any mobile X-ray unit or truck or bus used exclusively
  285  for public health purposes;
  286         (h) Any school bus owned and operated by a nonprofit
  287  educational or religious corporation;
  288         (i) Any vehicle used by any of the various search and
  289  rescue units of the several counties for exclusive use as a
  290  search and rescue vehicle; and
  291         (j) Any motor vehicle used by a community transportation
  292  coordinator or a transportation operator as defined in part I of
  293  chapter 427, and which is used exclusively to transport
  294  transportation disadvantaged persons.
  295         Section 8. Paragraph (d) of subsection (3) of section
  296  383.14, Florida Statutes, is amended to read:
  297         383.14 Screening for metabolic disorders, other hereditary
  298  and congenital disorders, and environmental risk factors.—
  299         (3) DEPARTMENT OF HEALTH; POWERS AND DUTIES.—The department
  300  shall administer and provide certain services to implement the
  301  provisions of this section and shall:
  302         (d) Maintain a confidential registry of cases, including
  303  information of importance for the purpose of followup services
  304  to prevent intellectual disabilities mental retardation, to
  305  correct or ameliorate physical disabilities handicaps, and for
  306  epidemiologic studies, if indicated. Such registry shall be
  307  exempt from the provisions of s. 119.07(1).
  308  
  309  All provisions of this subsection must be coordinated with the
  310  provisions and plans established under this chapter, chapter
  311  411, and Pub. L. No. 99-457.
  312         Section 9. Subsection (9) and subsections (20) through (31)
  313  of section 393.063, Florida Statutes, are reordered and amended
  314  to read:
  315         393.063 Definitions.—For the purposes of this chapter, the
  316  term:
  317         (9) “Developmental disability” means a disorder or syndrome
  318  that is attributable to intellectual disability retardation,
  319  cerebral palsy, autism, spina bifida, or Prader-Willi syndrome;
  320  that manifests before the age of 18; and that constitutes a
  321  substantial handicap that can reasonably be expected to continue
  322  indefinitely.
  323         (21)(20) “Intermediate care facility for the
  324  developmentally disabled” or “ICF/DD” means a residential
  325  facility licensed and certified under pursuant to part VIII of
  326  chapter 400.
  327         (22)(21) “Medical/dental services” means medically
  328  necessary services that which are provided or ordered for a
  329  client by a person licensed under chapter 458, chapter 459, or
  330  chapter 466. Such services may include, but are not limited to,
  331  prescription drugs, specialized therapies, nursing supervision,
  332  hospitalization, dietary services, prosthetic devices, surgery,
  333  specialized equipment and supplies, adaptive equipment, and
  334  other services as required to prevent or alleviate a medical or
  335  dental condition.
  336         (23)(22) “Personal care services” means individual
  337  assistance with or supervision of essential activities of daily
  338  living for self-care, including ambulation, bathing, dressing,
  339  eating, grooming, and toileting, and other similar services that
  340  are incidental to the care furnished and essential to the
  341  health, safety, and welfare of the client if when there is no
  342  one else is available to perform those services.
  343         (24)(23) “Prader-Willi syndrome” means an inherited
  344  condition typified by neonatal hypotonia with failure to thrive,
  345  hyperphagia or an excessive drive to eat which leads to obesity
  346  usually at 18 to 36 months of age, mild to moderate mental
  347  retardation, hypogonadism, short stature, mild facial
  348  dysmorphism, and a characteristic neurobehavior.
  349         (25)(24) “Relative” means an individual who is connected by
  350  affinity or consanguinity to the client and who is 18 years of
  351  age or older.
  352         (26)(25) “Resident” means a any person who has a with
  353  developmental disability and resides disabilities residing at a
  354  residential facility, whether or not such person is a client of
  355  the agency.
  356         (27)(26) “Residential facility” means a facility providing
  357  room and board and personal care for persons who have with
  358  developmental disabilities.
  359         (28)(27) “Residential habilitation” means supervision and
  360  training with the acquisition, retention, or improvement in
  361  skills related to activities of daily living, such as personal
  362  hygiene skills, homemaking skills, and the social and adaptive
  363  skills necessary to enable the individual to reside in the
  364  community.
  365         (29)(28) “Residential habilitation center” means a
  366  community residential facility licensed under this chapter which
  367  provides habilitation services. The capacity of such a facility
  368  may shall not be fewer than nine residents. After October 1,
  369  1989, new residential habilitation centers may not be licensed
  370  and the licensed capacity for any existing residential
  371  habilitation center may not be increased.
  372         (30)(29) “Respite service” means appropriate, short-term,
  373  temporary care that is provided to a person who has a with
  374  developmental disability in order disabilities to meet the
  375  planned or emergency needs of the person or the family or other
  376  direct service provider.
  377         (31)(30) “Restraint” means a physical device, method, or
  378  drug used to control dangerous behavior.
  379         (a) A physical restraint is any manual method or physical
  380  or mechanical device, material, or equipment attached or
  381  adjacent to an the individual’s body so that he or she cannot
  382  easily remove the restraint and which restricts freedom of
  383  movement or normal access to one’s body.
  384         (b) A drug used as a restraint is a medication used to
  385  control the person’s behavior or to restrict his or her freedom
  386  of movement and is not a standard treatment for the person’s
  387  medical or psychiatric condition. Physically holding a person
  388  during a procedure to forcibly administer psychotropic
  389  medication is a physical restraint.
  390         (c) Restraint does not include physical devices, such as
  391  orthopedically prescribed appliances, surgical dressings and
  392  bandages, supportive body bands, or other physical holding when
  393  necessary for routine physical examinations and tests; for
  394  purposes of orthopedic, surgical, or other similar medical
  395  treatment; when used to provide support for the achievement of
  396  functional body position or proper balance; or when used to
  397  protect a person from falling out of bed.
  398         (20)(31)Intellectual disability” “Retardation” means
  399  significantly subaverage general intellectual functioning
  400  existing concurrently with deficits in adaptive behavior which
  401  that manifests before the age of 18 and can reasonably be
  402  expected to continue indefinitely. For the purposes of this
  403  definition, the term:
  404         (a) “Adaptive behavior” means the effectiveness or degree
  405  with which an individual meets the standards of personal
  406  independence and social responsibility expected of his or her
  407  age, cultural group, and community.
  408         (b) “Significantly subaverage general intellectual
  409  functioning,for the purpose of this definition, means
  410  performance that which is two or more standard deviations from
  411  the mean score on a standardized intelligence test specified in
  412  the rules of the agency. “Adaptive behavior,” for the purpose of
  413  this definition, means the effectiveness or degree with which an
  414  individual meets the standards of personal independence and
  415  social responsibility expected of his or her age, cultural
  416  group, and community.
  417         Section 10. Subsection (1), paragraphs (c) and (d) of
  418  subsection (2), paragraphs (b) through (d) of subsection (3),
  419  paragraph (b) of subsection (4), paragraphs (b), (e), (f), and
  420  (g) of subsection (5), subsection (6), paragraph (d) of
  421  subsection (7), paragraph (b) of subsection (8), subsection
  422  (10), and paragraph (b) of subsection (12) of section 393.11,
  423  Florida Statutes, are amended to read:
  424         393.11 Involuntary admission to residential services.—
  425         (1) JURISDICTION.—If When a person has an intellectual
  426  disability is mentally retarded and requires involuntary
  427  admission to residential services provided by the agency, the
  428  circuit court of the county in which the person resides has
  429  shall have jurisdiction to conduct a hearing and enter an order
  430  involuntarily admitting the person in order for that the person
  431  to may receive the care, treatment, habilitation, and
  432  rehabilitation that which the person needs. For the purpose of
  433  identifying intellectual disability mental retardation,
  434  diagnostic capability shall be established by the agency. Except
  435  as otherwise specified, the proceedings under this section are
  436  shall be governed by the Florida Rules of Civil Procedure.
  437         (2) PETITION.—
  438         (c) The petition shall be verified and must shall:
  439         1. State the name, age, and present address of the
  440  commissioners and their relationship to the person who has an
  441  intellectual disability with mental retardation or autism;
  442         2. State the name, age, county of residence, and present
  443  address of the person who has an intellectual disability with
  444  mental retardation or autism;
  445         3. Allege that the commission believes that the person
  446  needs involuntary residential services and specify the factual
  447  information on which the belief is based;
  448         4. Allege that the person lacks sufficient capacity to give
  449  express and informed consent to a voluntary application for
  450  services and lacks the basic survival and self-care skills to
  451  provide for the person’s well-being or is likely to physically
  452  injure others if allowed to remain at liberty; and
  453         5. State which residential setting is the least restrictive
  454  and most appropriate alternative and specify the factual
  455  information on which the belief is based.
  456         (d) The petition shall be filed in the circuit court of the
  457  county in which the person who has the intellectual disability
  458  with mental retardation or autism resides.
  459         (3) NOTICE.—
  460         (b) If Whenever a motion or petition has been filed
  461  pursuant to s. 916.303 to dismiss criminal charges against a
  462  defendant who has an intellectual disability with retardation or
  463  autism, and a petition is filed to involuntarily admit the
  464  defendant to residential services under this section, the notice
  465  of the filing of the petition must shall also be given to the
  466  defendant’s attorney, the state attorney of the circuit from
  467  which the defendant was committed, and the agency.
  468         (c) The notice must shall state that a hearing shall be set
  469  to inquire into the need of the person who has an intellectual
  470  disability with mental retardation or autism for involuntary
  471  residential services. The notice must shall also state the date
  472  of the hearing on the petition.
  473         (d) The notice must shall state that the individual who has
  474  an intellectual disability with mental retardation or autism has
  475  the right to be represented by counsel of his or her own choice
  476  and that, if the person cannot afford an attorney, the court
  477  shall appoint one.
  478         (4) AGENCY PARTICIPATION.—
  479         (b) Following examination, the agency shall file a written
  480  report with the court at least not less than 10 working days
  481  before the date of the hearing. The report must be served on the
  482  petitioner, the person who has the intellectual disability with
  483  mental retardation, and the person’s attorney at the time the
  484  report is filed with the court.
  485         (5) EXAMINING COMMITTEE.—
  486         (b) The court shall appoint at least no fewer than three
  487  disinterested experts who have demonstrated to the court an
  488  expertise in the diagnosis, evaluation, and treatment of persons
  489  who have intellectual disabilities with mental retardation. The
  490  committee must include at least one licensed and qualified
  491  physician, one licensed and qualified psychologist, and one
  492  qualified professional who, at with a minimum, has of a masters
  493  degree in social work, special education, or vocational
  494  rehabilitation counseling, to examine the person and to testify
  495  at the hearing on the involuntary admission to residential
  496  services.
  497         (e) The committee shall prepare a written report for the
  498  court. The report must explicitly document the extent that the
  499  person meets the criteria for involuntary admission. The report,
  500  and expert testimony, must include, but not be limited to:
  501         1. The degree of the person’s intellectual disability
  502  mental retardation and whether, using diagnostic capabilities
  503  established by the agency, the person is eligible for agency
  504  services;
  505         2. Whether, because of the person’s degree of intellectual
  506  disability mental retardation, the person:
  507         a. Lacks sufficient capacity to give express and informed
  508  consent to a voluntary application for services pursuant to s.
  509  393.065;
  510         b. Lacks basic survival and self-care skills to such a
  511  degree that close supervision and habilitation in a residential
  512  setting is necessary and if not provided would result in a real
  513  and present threat of substantial harm to the person’s well
  514  being; or
  515         c. Is likely to physically injure others if allowed to
  516  remain at liberty.
  517         3. The purpose to be served by residential care;
  518         4. A recommendation on the type of residential placement
  519  which would be the most appropriate and least restrictive for
  520  the person; and
  521         5. The appropriate care, habilitation, and treatment.
  522         (f) The committee shall file the report with the court at
  523  least not less than 10 working days before the date of the
  524  hearing. The report must shall be served on the petitioner, the
  525  person who has the intellectual disability with mental
  526  retardation, the person’s attorney at the time the report is
  527  filed with the court, and the agency.
  528         (g) Members of the examining committee shall receive a
  529  reasonable fee to be determined by the court. The fees shall are
  530  to be paid from the general revenue fund of the county in which
  531  the person who has the intellectual disability with mental
  532  retardation resided when the petition was filed.
  533         (6) COUNSEL; GUARDIAN AD LITEM.—
  534         (a) The person who has the intellectual disability must
  535  with mental retardation shall be represented by counsel at all
  536  stages of the judicial proceeding. If In the event the person is
  537  indigent and cannot afford counsel, the court shall appoint a
  538  public defender at least not less than 20 working days before
  539  the scheduled hearing. The person’s counsel shall have full
  540  access to the records of the service provider and the agency. In
  541  all cases, the attorney shall represent the rights and legal
  542  interests of the person with mental retardation, regardless of
  543  who initiates may initiate the proceedings or pays pay the
  544  attorney’s fee.
  545         (b) If the attorney, during the course of his or her
  546  representation, reasonably believes that the person who has the
  547  intellectual disability with mental retardation cannot
  548  adequately act in his or her own interest, the attorney may seek
  549  the appointment of a guardian ad litem. A prior finding of
  550  incompetency is not required before a guardian ad litem is
  551  appointed pursuant to this section.
  552         (7) HEARING.—
  553         (d) The person who has the intellectual disability must
  554  with mental retardation shall be physically present throughout
  555  the entire proceeding. If the person’s attorney believes that
  556  the person’s presence at the hearing is not in his or her the
  557  person’s best interest, the person’s presence may be waived once
  558  the court has seen the person and the hearing has commenced.
  559         (8) ORDER.—
  560         (b) An order of involuntary admission to residential
  561  services may not be entered unless the court finds that:
  562         1. The person is intellectually disabled mentally retarded
  563  or autistic;
  564         2. Placement in a residential setting is the least
  565  restrictive and most appropriate alternative to meet the
  566  person’s needs; and
  567         3. Because of the person’s degree of intellectual
  568  disability mental retardation or autism, the person:
  569         a. Lacks sufficient capacity to give express and informed
  570  consent to a voluntary application for services pursuant to s.
  571  393.065 and lacks basic survival and self-care skills to such a
  572  degree that close supervision and habilitation in a residential
  573  setting is necessary and, if not provided, would result in a
  574  real and present threat of substantial harm to the person’s
  575  well-being; or
  576         b. Is likely to physically injure others if allowed to
  577  remain at liberty.
  578         (10) COMPETENCY.—
  579         (a) The issue of competency is shall be separate and
  580  distinct from a determination of the appropriateness of
  581  involuntary admission to residential services due to
  582  intellectual disability for a condition of mental retardation.
  583         (b) The issue of the competency of a person who has an
  584  intellectual disability with mental retardation for purposes of
  585  assigning guardianship shall be determined in a separate
  586  proceeding according to the procedures and requirements of
  587  chapter 744. The issue of the competency of a person who has an
  588  intellectual disability with mental retardation or autism for
  589  purposes of determining whether the person is competent to
  590  proceed in a criminal trial shall be determined in accordance
  591  with chapter 916.
  592         (12) APPEAL.—
  593         (b) The filing of an appeal by the person who has an
  594  intellectual disability stays with mental retardation shall stay
  595  admission of the person into residential care. The stay remains
  596  shall remain in effect during the pendency of all review
  597  proceedings in Florida courts until a mandate issues.
  598         Section 11. Subsection (18) of section 394.455, Florida
  599  Statutes, is amended to read:
  600         394.455 Definitions.—As used in this part, unless the
  601  context clearly requires otherwise, the term:
  602         (18) “Mental illness” means an impairment of the mental or
  603  emotional processes that exercise conscious control of one’s
  604  actions or of the ability to perceive or understand reality,
  605  which impairment substantially interferes with the a person’s
  606  ability to meet the ordinary demands of living, regardless of
  607  etiology. For the purposes of this part, the term does not
  608  include a retardation or developmental disability as defined in
  609  chapter 393, intoxication, or conditions manifested only by
  610  antisocial behavior or substance abuse impairment.
  611         Section 12. Subsections (3) through (13) of section
  612  400.960, Florida Statutes, are amended to read:
  613         400.960 Definitions.—As used in this part, the term:
  614         (3)“Autism” has the same meaning as in s. 393.063.
  615         (4)“Cerebral palsy” has the same meaning as in s. 393.063.
  616         (3)(5) “Client” means any person determined by the Agency
  617  for Persons with Disabilities to be eligible for developmental
  618  services.
  619         (4)(6)Developmentally disabled” “developmental
  620  disability” has the same meaning as “developmental disability”
  621  as that term is defined in s. 393.063.
  622         (5)(7) “Direct service provider” means a person 18 years of
  623  age or older who has direct contact with individuals who have
  624  with developmental disabilities and who is unrelated to such the
  625  individuals with developmental disabilities.
  626         (6)(8) “Intermediate care facility for the developmentally
  627  disabled” means a residential facility licensed and certified in
  628  accordance with state law, and certified by the Federal
  629  Government, pursuant to the Social Security Act, as a provider
  630  of Medicaid services to persons who have with developmental
  631  disabilities.
  632         (9)“Prader-Willi syndrome” has the same meaning as in s.
  633  393.063.
  634         (7)(10)(a) “Restraint” means a physical device, method, or
  635  drug used to control behavior.
  636         (a) A physical restraint is any manual method or physical
  637  or mechanical device, material, or equipment attached or
  638  adjacent to the individual’s body so that he or she cannot
  639  easily remove the restraint and which restricts freedom of
  640  movement or normal access to one’s body.
  641         (b) A drug used as a restraint is a medication used to
  642  control the person’s behavior or to restrict his or her freedom
  643  of movement. Physically holding a person during a procedure to
  644  forcibly administer psychotropic medication is a physical
  645  restraint.
  646         (c) Restraint does not include physical devices, such as
  647  orthopedically prescribed appliances, surgical dressings and
  648  bandages, supportive body bands, or other physical holding when
  649  necessary for routine physical examinations and tests; for
  650  purposes of orthopedic, surgical, or other similar medical
  651  treatment; when used to provide support for the achievement of
  652  functional body position or proper balance; or when used to
  653  protect a person from falling out of bed.
  654         (11) “Retardation” has the same meaning as in s. 393.063.
  655         (8)(12) “Seclusion” means the physical segregation of a
  656  person in any fashion or the involuntary isolation of a person
  657  in a room or area from which the person is prevented from
  658  leaving. The prevention may be by physical barrier or by a staff
  659  member who is acting in a manner, or who is physically situated,
  660  so as to prevent the person from leaving the room or area. For
  661  purposes of this part, the term does not mean isolation due to a
  662  person’s medical condition or symptoms.
  663         (13)“Spina bifida” has the same meaning as in s. 393.063.
  664         Section 13. Subsection (12) of section 408.032, Florida
  665  Statutes, is amended to read:
  666         408.032 Definitions relating to Health Facility and
  667  Services Development Act.—As used in ss. 408.031-408.045, the
  668  term:
  669         (12) “Intermediate care facility for the developmentally
  670  disabled” means a residential facility licensed under part VIII
  671  of chapter 400 chapter 393 and certified by the Federal
  672  Government pursuant to the Social Security Act as a provider of
  673  Medicaid services to persons who are mentally retarded or who
  674  have a related condition.
  675         Section 14. Subsection (8) of section 409.908, Florida
  676  Statutes, is amended to read
  677         (8) A provider of home-based or community-based services
  678  rendered pursuant to a federally approved waiver shall be
  679  reimbursed based on an established or negotiated rate for each
  680  service. These rates shall be established according to an
  681  analysis of the expenditure history and prospective budget
  682  developed by each contract provider participating in the waiver
  683  program, or under any other methodology adopted by the agency
  684  and approved by the Federal Government in accordance with the
  685  waiver. Privately owned and operated community-based residential
  686  facilities which meet agency requirements and which formerly
  687  received Medicaid reimbursement for the optional intermediate
  688  care facility for the intellectually disabled mentally retarded
  689  service may participate in the developmental services waiver as
  690  part of a home-and-community-based continuum of care for
  691  Medicaid recipients who receive waiver services.
  692         Section 15. Subsection (17) of section 413.20, Florida
  693  Statutes, is amended to read:
  694         413.20 Definitions.—As used in this part, the term:
  695         (17) “Person who has a significant disability” means an
  696  individual who has a disability that is a severe physical or
  697  mental impairment that seriously limits one or more functional
  698  capacities, such as mobility, communication, self-care, self
  699  direction, interpersonal skills, work tolerance, or work skills,
  700  in terms of an employment outcome; whose vocational
  701  rehabilitation may be expected to require multiple vocational
  702  rehabilitation services over an extended period of time; and who
  703  has one or more physical or mental disabilities resulting from
  704  amputation, arthritis, autism, blindness, burn injury, cancer,
  705  cerebral palsy, cystic fibrosis, deafness, head injury, heart
  706  disease, hemiplegia, hemophilia, respiratory or pulmonary
  707  dysfunction, intellectual disability mental retardation, mental
  708  illness, multiple sclerosis, muscular dystrophy, musculoskeletal
  709  disorder, neurological disorder, including stroke and epilepsy,
  710  paraplegia, quadriplegia, or other spinal cord condition,
  711  sickle-cell anemia, specific learning disability, end-stage
  712  renal disease, or another disability or a combination of
  713  disabilities which that is determined, after an assessment for
  714  determining eligibility and vocational rehabilitation needs, to
  715  cause comparable substantial functional limitation.
  716         Section 16. Paragraph (a) of subsection (6) of section
  717  440.49, Florida Statutes, is amended to read:
  718         440.49 Limitation of liability for subsequent injury
  719  through Special Disability Trust Fund.—
  720         (6) EMPLOYER KNOWLEDGE, EFFECT ON REIMBURSEMENT.—
  721         (a) Reimbursement is not allowed under this section unless
  722  it is established that the employer knew of the preexisting
  723  permanent physical impairment before prior to the occurrence of
  724  the subsequent injury or occupational disease, and that the
  725  permanent physical impairment is one of the following:
  726         1. Epilepsy.
  727         2. Diabetes.
  728         3. Cardiac disease.
  729         4. Amputation of foot, leg, arm, or hand.
  730         5. Total loss of sight of one or both eyes or a partial
  731  loss of corrected vision of more than 75 percent bilaterally.
  732         6. Residual disability from poliomyelitis.
  733         7. Cerebral palsy.
  734         8. Multiple sclerosis.
  735         9. Parkinson’s disease.
  736         10. Meniscectomy.
  737         11. Patellectomy.
  738         12. Ruptured cruciate ligament.
  739         13. Hemophilia.
  740         14. Chronic osteomyelitis.
  741         15. Surgical or spontaneous fusion of a major weight
  742  bearing joint.
  743         16. Hyperinsulinism.
  744         17. Muscular dystrophy.
  745         18. Thrombophlebitis.
  746         19. Herniated intervertebral disk.
  747         20. Surgical removal of an intervertebral disk or spinal
  748  fusion.
  749         21. One or more back injuries or a disease process of the
  750  back resulting in disability over a total of 120 or more days,
  751  if substantiated by a doctor’s opinion that there was a
  752  preexisting impairment to the claimant’s back.
  753         22. Total deafness.
  754         23. Intellectual disability if Mental retardation, provided
  755  the employee’s intelligence quotient is such that she or he
  756  falls within the lowest 2 percentile of the general population.
  757  However, it shall not be necessary for the employer does not
  758  need to know the employee’s actual intelligence quotient or
  759  actual relative ranking in relation to the intelligence quotient
  760  of the general population.
  761         24. Any permanent physical condition that which, before
  762  prior to the industrial accident or occupational disease,
  763  constitutes a 20 percent 20-percent impairment of a member or of
  764  the body as a whole.
  765         25. Obesity if, provided the employee is 30 percent or more
  766  over the average weight designated for her or his height and age
  767  in the Table of Average Weight of Americans by Height and Age
  768  prepared by the Society of Actuaries using data from the 1979
  769  Build and Blood Pressure Study.
  770         26. Any permanent physical impairment as provided defined
  771  in s. 440.15(3) which is a result of a prior industrial accident
  772  with the same employer or the employer’s parent company,
  773  subsidiary, sister company, or affiliate located within the
  774  geographical boundaries of this state.
  775         Section 17. Paragraph (g) of subsection (1) of section
  776  499.0054, Florida Statutes, is amended to read:
  777         499.0054 Advertising and labeling of drugs, devices, and
  778  cosmetics; exemptions.—
  779         (1) It is a violation of the Florida Drug and Cosmetic Act
  780  to perform or cause the performance of any of the following
  781  acts:
  782         (g) The advertising of any drug or device represented to
  783  have any effect in any of the following conditions, disorders,
  784  diseases, or processes:
  785         1. Blood disorders.
  786         2. Bone or joint diseases.
  787         3. Kidney diseases or disorders.
  788         4. Cancer.
  789         5. Diabetes.
  790         6. Gall bladder diseases or disorders.
  791         7. Heart and vascular diseases.
  792         8. High blood pressure.
  793         9. Diseases or disorders of the ear or auditory apparatus,
  794  including hearing loss or deafness.
  795         10. Mental disease or intellectual disability mental
  796  retardation.
  797         11. Paralysis.
  798         12. Prostate gland disorders.
  799         13. Conditions of the scalp affecting hair loss.
  800         14. Baldness.
  801         15. Endocrine disorders.
  802         16. Sexual impotence.
  803         17. Tumors.
  804         18. Venereal diseases.
  805         19. Varicose ulcers.
  806         20. Breast enlargement.
  807         21. Purifying blood.
  808         22. Metabolic disorders.
  809         23. Immune system disorders or conditions affecting the
  810  immune system.
  811         24. Extension of life expectancy.
  812         25. Stress and tension.
  813         26. Brain stimulation or performance.
  814         27. The body’s natural defense mechanisms.
  815         28. Blood flow.
  816         29. Depression.
  817         30. Human immunodeficiency virus or acquired immune
  818  deficiency syndrome or related disorders or conditions.
  819         Section 18. Section 514.072, Florida Statutes, is amended
  820  to read:
  821         514.072 Certification of swimming instructors for people
  822  who have developmental disabilities required.—Any person working
  823  at a swimming pool who holds himself or herself out as a
  824  swimming instructor specializing in training people who have
  825  developmental disabilities, as defined in s. 393.063(10), may be
  826  certified by the Dan Marino Foundation, Inc., in addition to
  827  being certified under s. 514.071. The Dan Marino Foundation,
  828  Inc., must develop certification requirements and a training
  829  curriculum for swimming instructors for people who have
  830  developmental disabilities and must submit the certification
  831  requirements to the Department of Health for review by January
  832  1, 2007. A person certified under s. 514.071 before July 1,
  833  2007, must meet the additional certification requirements of
  834  this section before January 1, 2008. A person certified under s.
  835  514.071 on or after July 1, 2007, must meet the additional
  836  certification requirements of this section within 6 months after
  837  receiving certification under s. 514.071.
  838         Section 19. Section 627.6041, Florida Statutes, is amended
  839  to read:
  840         627.6041 Handicapped Children with disabilities;
  841  continuation of coverage.—
  842         (1) A hospital or medical expense insurance policy or
  843  health care services plan contract that is delivered or issued
  844  for delivery in this state and that provides that coverage of a
  845  dependent child terminates will terminate upon attainment of the
  846  limiting age for dependent children specified in the policy or
  847  contract must shall also provide in substance that attainment of
  848  the limiting age does not terminate the coverage of the child
  849  while the child continues to be both:
  850         (a)(1) Incapable of self-sustaining employment by reason of
  851  an intellectual or mental retardation or physical disability.
  852  handicap; and
  853         (b)(2) Chiefly dependent upon the policyholder or
  854  subscriber for support and maintenance.
  855         (2) If a claim is denied under a policy or contract for the
  856  stated reason that the child has attained the limiting age for
  857  dependent children specified in the policy or contract, the
  858  notice of denial must state that the policyholder has the burden
  859  of establishing that the child continues to meet the criteria
  860  specified in subsection subsections (1) and (2).
  861         Section 20. Section 627.6615, Florida Statutes, is amended
  862  to read:
  863         627.6615 Handicapped Children with disabilities;
  864  continuation of coverage under group policy.—
  865         (1) A group health insurance policy or health care services
  866  plan contract that is delivered or issued for delivery in this
  867  state and that provides that coverage of a dependent child of an
  868  employee or other member of the covered group terminates will
  869  terminate upon attainment of the limiting age for dependent
  870  children specified in the policy or contract must shall also
  871  provide in substance that attainment of the limiting age does
  872  not terminate the coverage of the child while the child
  873  continues to be both:
  874         (a)(1) Incapable of self-sustaining employment by reason of
  875  an intellectual mental retardation or physical disability.
  876  handicap; and
  877         (b)(2) Chiefly dependent upon the employee or member for
  878  support and maintenance.
  879         (2) If a claim is denied under a policy or contract for the
  880  stated reason that the child has attained the limiting age for
  881  dependent children specified in the policy or contract, the
  882  notice of denial must state that the certificateholder or
  883  subscriber has the burden of establishing that the child
  884  continues to meet the criteria specified in subsection
  885  subsections (1) and (2).
  886         Section 21. Subsection (29) of section 641.31, Florida
  887  Statutes, is amended to read:
  888         641.31 Health maintenance contracts.—
  889         (29) If a health maintenance contract provides that
  890  coverage of a dependent child of the subscriber terminates will
  891  terminate upon attainment of the limiting age for dependent
  892  children which is specified in the contract, the contract must
  893  also provide in substance that attainment of the limiting age
  894  does not terminate the coverage of the child while the child
  895  continues to be both:
  896         (a) Incapable of self-sustaining employment by reason of an
  897  intellectual mental retardation or physical disability.
  898  handicap, and
  899         (b) Chiefly dependent upon the employee or member for
  900  support and maintenance.
  901  
  902  If the claim is denied under a contract for the stated reason
  903  that the child has attained the limiting age for dependent
  904  children specified in the contract, the notice or denial must
  905  state that the subscriber has the burden of establishing that
  906  the child continues to meet the criteria specified in this
  907  subsection paragraphs (a) and (b).
  908         Section 22. Subsection (4) of section 650.05, Florida
  909  Statutes, is amended to read:
  910         650.05 Plans for coverage of employees of political
  911  subdivisions.—
  912         (4)(a) Notwithstanding any other provision of this chapter,
  913  effective January 1, 1972, all state political subdivisions
  914  receiving financial aid which that provide social security
  915  coverage for their employees pursuant to the provisions of this
  916  chapter and the provisions of the various retirement systems as
  917  authorized by law shall, in addition to other purposes, use
  918  utilize all grants-in-aid and other revenue received from the
  919  state to pay the employer’s share of social security cost.
  920         (b) The grants-in-aid and other revenue referred to in
  921  paragraph (a) specifically include, but are not limited to,
  922  minimum foundation program grants to public school districts and
  923  community colleges; gasoline, motor fuel, cigarette, racing, and
  924  insurance premium taxes distributed to political subdivisions;
  925  and amounts specifically appropriated as grants-in-aid for
  926  mental health, intellectual disabilities mental retardation, and
  927  mosquito control programs.
  928         Section 23. Subsection (1) of section 765.204, Florida
  929  Statutes, is amended to read:
  930         765.204 Capacity of principal; procedure.—
  931         (1) A principal is presumed to be capable of making health
  932  care decisions for herself or himself unless she or he is
  933  determined to be incapacitated. Incapacity may not be inferred
  934  from the person’s voluntary or involuntary hospitalization for
  935  mental illness or from her or his intellectual disability mental
  936  retardation.
  937         Section 24. Section 849.04, Florida Statutes, is amended to
  938  read:
  939         849.04 Permitting minors and persons under guardianship to
  940  gamble.—Whoever being The proprietor, owner, or keeper of any E.
  941  O., keno or pool table, or billiard table, wheel of fortune, or
  942  other game of chance, kept for the purpose of betting, who
  943  willfully and knowingly allows a any minor or any person who is
  944  mentally incompetent or under guardianship to play at such game
  945  or to bet on such game of chance; or whoever aids or abets or
  946  otherwise encourages such playing or betting of any money or
  947  other valuable thing upon the result of such game of chance by a
  948  any minor or any person who is mentally incompetent or under
  949  guardianship, commits shall be guilty of a felony of the third
  950  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  951  775.084. For the purpose of this section, the term aperson who
  952  is mentally incompetent personmeans a person is one who
  953  because of mental illness, intellectual disability mental
  954  retardation, senility, excessive use of drugs or alcohol, or
  955  other mental incapacity is incapable of either managing his or
  956  her property or caring for himself or herself or both.
  957         Section 25. Section 914.16, Florida Statutes, is amended to
  958  read:
  959         914.16 Child abuse and sexual abuse of victims under age 16
  960  or who has an intellectual disability persons with mental
  961  retardation; limits on interviews.—The chief judge of each
  962  judicial circuit, after consultation with the state attorney and
  963  the public defender for the judicial circuit, the appropriate
  964  chief law enforcement officer, and any other person deemed
  965  appropriate by the chief judge, shall provide by order
  966  reasonable limits on the number of interviews which that a
  967  victim of a violation of s. 794.011, s. 800.04, s. 827.03, or s.
  968  847.0135(5) who is under 16 years of age or a victim of a
  969  violation of s. 794.011, s. 800.02, s. 800.03, or s. 825.102 who
  970  has an intellectual disability is a person with mental
  971  retardation as defined in s. 393.063 must submit to for law
  972  enforcement or discovery purposes. The order shall, To the
  973  extent possible, the order must protect the victim from the
  974  psychological damage of repeated interrogations while preserving
  975  the rights of the public, the victim, and the person charged
  976  with the violation.
  977         Section 26. Section 914.17, Florida Statutes, is amended to
  978  read:
  979         914.17 Appointment of advocate for victims or witnesses who
  980  are minors or intellectually disabled persons with mental
  981  retardation.—
  982         (1) A guardian ad litem or other advocate shall be
  983  appointed by the court to represent a minor in any criminal
  984  proceeding if the minor is a victim of or witness to child abuse
  985  or neglect, or if the minor is a victim of a sexual offense, or
  986  a witness to a sexual offense committed against another minor.
  987  The court may appoint a guardian ad litem or other advocate in
  988  any other criminal proceeding in which a minor is involved as
  989  either a victim or a witness. The guardian ad litem or other
  990  advocate shall have full access to all evidence and reports
  991  introduced during the proceedings, may interview witnesses, may
  992  make recommendations to the court, shall be noticed and have the
  993  right to appear on behalf of the minor at all proceedings, and
  994  may request additional examinations by medical doctors,
  995  psychiatrists, or psychologists. It is the duty of The guardian
  996  ad litem or other advocate shall to perform the following
  997  services:
  998         (a) To Explain, in language understandable to the minor,
  999  all legal proceedings in which the minor is shall be involved;
 1000         (b) To Act, as a friend of the court, to advise the judge,
 1001  whenever appropriate, of the minor’s ability to understand and
 1002  cooperate with any court proceeding; and
 1003         (c) To Assist the minor and the minor’s family in coping
 1004  with the emotional effects of the crime and subsequent criminal
 1005  proceedings in which the minor is involved.
 1006         (2) An advocate shall be appointed by the court to
 1007  represent a person who has an intellectual disability with
 1008  mental retardation as defined in s. 393.063 in any criminal
 1009  proceeding if the person with mental retardation is a victim of
 1010  or witness to abuse or neglect, or if the person with mental
 1011  retardation is a victim of a sexual offense, or a witness to a
 1012  sexual offense committed against a minor or person who has an
 1013  intellectual disability with mental retardation. The court may
 1014  appoint an advocate in any other criminal proceeding in which
 1015  such a person with mental retardation is involved as either a
 1016  victim or a witness. The advocate shall have full access to all
 1017  evidence and reports introduced during the proceedings, may
 1018  interview witnesses, may make recommendations to the court,
 1019  shall be noticed and have the right to appear on behalf of the
 1020  person with mental retardation at all proceedings, and may
 1021  request additional examinations by medical doctors,
 1022  psychiatrists, or psychologists. It is the duty of The advocate
 1023  shall to perform the following services:
 1024         (a) To Explain, in language understandable to the person
 1025  with mental retardation, all legal proceedings in which the
 1026  person is shall be involved;
 1027         (b) To Act, as a friend of the court, to advise the judge,
 1028  whenever appropriate, of the person’s person with mental
 1029  retardation’s ability to understand and cooperate with any court
 1030  proceedings; and
 1031         (c) To assist the person with mental retardation and the
 1032  person’s family in coping with the emotional effects of the
 1033  crime and subsequent criminal proceedings in which the person
 1034  with mental retardation is involved.
 1035         (3) Any person participating in a judicial proceeding as a
 1036  guardian ad litem or other advocate is shall be presumed prima
 1037  facie to be acting in good faith and in so doing is shall be
 1038  immune from any liability, civil or criminal, which that
 1039  otherwise might be incurred or imposed.
 1040         Section 27. Subsections (1), (2), and (3) of section
 1041  916.105, Florida Statutes, are amended to read:
 1042         916.105 Legislative intent.—
 1043         (1) It is the intent of the Legislature that the Department
 1044  of Children and Family Services and the Agency for Persons with
 1045  Disabilities, as appropriate, establish, locate, and maintain
 1046  separate and secure forensic facilities and programs for the
 1047  treatment or training of defendants who have been charged with a
 1048  felony and who have been found to be incompetent to proceed due
 1049  to their mental illness, intellectual disability mental
 1050  retardation, or autism, or who have been acquitted of a felony
 1051  by reason of insanity, and who, while still under the
 1052  jurisdiction of the committing court, are committed to the
 1053  department or agency under the provisions of this chapter. Such
 1054  facilities must shall be sufficient to accommodate the number of
 1055  defendants committed under the conditions noted above. Except
 1056  for those defendants found by the department or agency to be
 1057  appropriate for treatment or training in a civil facility or
 1058  program pursuant to subsection (3), forensic facilities must
 1059  shall be designed and administered so that ingress and egress,
 1060  together with other requirements of this chapter, may be
 1061  strictly controlled by staff responsible for security in order
 1062  to protect the defendant, facility personnel, other clients, and
 1063  citizens in adjacent communities.
 1064         (2) It is the intent of the Legislature that treatment or
 1065  training programs for defendants who are found to have mental
 1066  illness, intellectual disability mental retardation, or autism
 1067  and are involuntarily committed to the department or agency, and
 1068  who are still under the jurisdiction of the committing court, be
 1069  provided in a manner, subject to security requirements and other
 1070  mandates of this chapter, which ensures as to ensure the rights
 1071  of the defendants as provided in this chapter.
 1072         (3) It is the intent of the Legislature that evaluation and
 1073  services to defendants who have mental illness, intellectual
 1074  disability mental retardation, or autism be provided in
 1075  community settings, in community residential facilities, or in
 1076  civil facilities, whenever this is a feasible alternative to
 1077  treatment or training in a state forensic facility.
 1078         Section 28. Subsections (10) through (17) of section
 1079  916.106, Florida Statutes, are reordered and amended to read:
 1080         916.106 Definitions.—For the purposes of this chapter, the
 1081  term:
 1082         (10) “Forensic facility” means a separate and secure
 1083  facility established within the department or agency to serve
 1084  forensic clients. A separate and secure facility means a
 1085  security-grade building for the purpose of separately housing
 1086  persons who have mental illness from persons who have
 1087  intellectual disabilities with retardation or autism and
 1088  separately housing persons who have been involuntarily committed
 1089  pursuant to this chapter from nonforensic residents.
 1090         (11) “Incompetent to proceed” means unable to proceed at
 1091  any material stage of a criminal proceeding, which includes
 1092  shall include trial of the case, pretrial hearings involving
 1093  questions of fact on which the defendant might be expected to
 1094  testify, entry of a plea, proceedings for violation of probation
 1095  or violation of community control, sentencing, and hearings on
 1096  issues regarding a defendant’s failure to comply with court
 1097  orders or conditions or other matters in which the mental
 1098  competence of the defendant is necessary for a just resolution
 1099  of the issues being considered.
 1100         (12) “Institutional security personnel” means the staff of
 1101  forensic facilities who meet or exceed the requirements of s.
 1102  943.13 and who are responsible for providing security,
 1103  protecting clients and personnel, enforcing rules, preventing
 1104  and investigating unauthorized activities, and safeguarding the
 1105  interests of residents citizens in the surrounding communities.
 1106         (14)(13) “Mental illness” means an impairment of the
 1107  emotional processes that exercise conscious control of one’s
 1108  actions, or of the ability to perceive or understand reality,
 1109  which impairment substantially interferes with the a defendant’s
 1110  ability to meet the ordinary demands of living. For the purposes
 1111  of this chapter, the term does not apply to defendants who have
 1112  only an intellectual disability with only mental retardation or
 1113  autism and does not include intoxication or conditions
 1114  manifested only by antisocial behavior or substance abuse
 1115  impairment.
 1116         (15)(14) “Restraint” means a physical device, method, or
 1117  drug used to control dangerous behavior.
 1118         (a) A physical restraint is any manual method or physical
 1119  or mechanical device, material, or equipment attached or
 1120  adjacent to a person’s body so that he or she cannot easily
 1121  remove the restraint and that restricts freedom of movement or
 1122  normal access to one’s body.
 1123         (b) A drug used as a restraint is a medication used to
 1124  control the person’s behavior or to restrict his or her freedom
 1125  of movement and not part of the standard treatment regimen of
 1126  the person with a diagnosed mental illness who is a client of
 1127  the department. Physically holding a person during a procedure
 1128  to forcibly administer psychotropic medication is a physical
 1129  restraint.
 1130         (c) Restraint does not include physical devices, such as
 1131  orthopedically prescribed appliances, surgical dressings and
 1132  bandages, supportive body bands, or other physical holding when
 1133  necessary for routine physical examinations and tests; for
 1134  purposes of orthopedic, surgical, or other similar medical
 1135  treatment; when used to provide support for the achievement of
 1136  functional body position or proper balance; or when used to
 1137  protect a person from falling out of bed.
 1138         (13)(15)“Intellectual disability” “Retardation” has the
 1139  same meaning as in s. 393.063.
 1140         (16) “Seclusion” means the physical segregation of a person
 1141  in any fashion or the involuntary isolation of a person in a
 1142  room or area from which the person is prevented from leaving.
 1143  The prevention may be by physical barrier or by a staff member
 1144  who is acting in a manner, or who is physically situated, so as
 1145  to prevent the person from leaving the room or area. For
 1146  purposes of this chapter, the term does not mean isolation due
 1147  to a person’s medical condition or symptoms, the confinement in
 1148  a forensic facility to a bedroom or area during normal hours of
 1149  sleep when there is not an active order for seclusion, or during
 1150  an emergency such as a riot or hostage situation when clients
 1151  may be temporarily placed in their rooms for their own safety.
 1152         (17) “Social service professional” means a person whose
 1153  minimum qualifications include a bachelor’s degree and at least
 1154  2 years of social work, clinical practice, special education,
 1155  habilitation, or equivalent experience working directly with
 1156  persons who have intellectual disabilities with retardation,
 1157  autism, or other developmental disabilities.
 1158         Section 29. Paragraph (a) of subsection (1) and paragraph
 1159  (a) of subsection (3) of section 916.107, Florida Statutes, are
 1160  amended to read:
 1161         916.107 Rights of forensic clients.—
 1162         (1) RIGHT TO INDIVIDUAL DIGNITY.—
 1163         (a) The policy of the state is that the individual dignity
 1164  of the client shall be respected at all times and upon all
 1165  occasions, including any occasion when the forensic client is
 1166  detained, transported, or treated. Clients with mental illness,
 1167  intellectual disability retardation, or autism and who are
 1168  charged with committing felonies shall receive appropriate
 1169  treatment or training. In a criminal case involving a client who
 1170  has been adjudicated incompetent to proceed or not guilty by
 1171  reason of insanity, a jail may be used as an emergency facility
 1172  for up to 15 days following the date the department or agency
 1173  receives a completed copy of the court commitment order
 1174  containing all documentation required by the applicable Florida
 1175  Rules of Criminal Procedure. For a forensic client who is held
 1176  in a jail awaiting admission to a facility of the department or
 1177  agency, evaluation and treatment or training may be provided in
 1178  the jail by the local community mental health provider for
 1179  mental health services, by the developmental disabilities
 1180  program for persons with intellectual disability retardation or
 1181  autism, the client’s physician or psychologist, or any other
 1182  appropriate program until the client is transferred to a civil
 1183  or forensic facility.
 1184         (3) RIGHT TO EXPRESS AND INFORMED CONSENT.—
 1185         (a) A forensic client shall be asked to give express and
 1186  informed written consent for treatment. If a client refuses such
 1187  treatment as is deemed necessary and essential by the client’s
 1188  multidisciplinary treatment team for the appropriate care of the
 1189  client, such treatment may be provided under the following
 1190  circumstances:
 1191         1. In an emergency situation in which there is immediate
 1192  danger to the safety of the client or others, such treatment may
 1193  be provided upon the written order of a physician for a period
 1194  not to exceed 48 hours, excluding weekends and legal holidays.
 1195  If, after the 48-hour period, the client has not given express
 1196  and informed consent to the treatment initially refused, the
 1197  administrator or designee of the civil or forensic facility
 1198  shall, within 48 hours, excluding weekends and legal holidays,
 1199  petition the committing court or the circuit court serving the
 1200  county in which the facility is located, at the option of the
 1201  facility administrator or designee, for an order authorizing the
 1202  continued treatment of the client. In the interim, the need for
 1203  treatment shall be reviewed every 48 hours and may be continued
 1204  without the consent of the client upon the continued written
 1205  order of a physician who has determined that the emergency
 1206  situation continues to present a danger to the safety of the
 1207  client or others.
 1208         2. In a situation other than an emergency situation, the
 1209  administrator or designee of the facility shall petition the
 1210  court for an order authorizing necessary and essential treatment
 1211  for the client. The order shall allow such treatment for a
 1212  period not to exceed 90 days following the date of the entry of
 1213  the order. Unless the court is notified in writing that the
 1214  client has provided express and informed consent in writing or
 1215  that the client has been discharged by the committing court, the
 1216  administrator or designee shall, prior to the expiration of the
 1217  initial 90-day order, petition the court for an order
 1218  authorizing the continuation of treatment for another 90-day
 1219  period. This procedure shall be repeated until the client
 1220  provides consent or is discharged by the committing court.
 1221         3. At the hearing on the issue of whether the court should
 1222  enter an order authorizing treatment for which a client was
 1223  unable to or refused to give express and informed consent, the
 1224  court shall determine by clear and convincing evidence that the
 1225  client has mental illness, intellectual disability retardation,
 1226  or autism, that the treatment not consented to is essential to
 1227  the care of the client, and that the treatment not consented to
 1228  is not experimental and does not present an unreasonable risk of
 1229  serious, hazardous, or irreversible side effects. In arriving at
 1230  the substitute judgment decision, the court must consider at
 1231  least the following factors:
 1232         a. The client’s expressed preference regarding treatment;
 1233         b. The probability of adverse side effects;
 1234         c. The prognosis without treatment; and
 1235         d. The prognosis with treatment.
 1236  
 1237  The hearing shall be as convenient to the client as may be
 1238  consistent with orderly procedure and shall be conducted in
 1239  physical settings not likely to be injurious to the client’s
 1240  condition. The court may appoint a general or special magistrate
 1241  to preside at the hearing. The client or the client’s guardian,
 1242  and the representative, shall be provided with a copy of the
 1243  petition and the date, time, and location of the hearing. The
 1244  client has the right to have an attorney represent him or her at
 1245  the hearing, and, if the client is indigent, the court shall
 1246  appoint the office of the public defender to represent the
 1247  client at the hearing. The client may testify or not, as he or
 1248  she chooses, and has the right to cross-examine witnesses and
 1249  may present his or her own witnesses.
 1250         Section 30. The Division of Statutory Revision is requested
 1251  to rename part III of chapter 916, Florida Statutes, consisting
 1252  of ss. 916.301-916.304, as “Forensic Services for Persons who
 1253  are Intellectually Disabled or Autistic.”
 1254         Section 31. Subsections (1) and (2) of section 916.301,
 1255  Florida Statutes, are amended to read:
 1256         916.301 Appointment of experts.—
 1257         (1) All evaluations ordered by the court under this part
 1258  must be conducted by qualified experts who have expertise in
 1259  evaluating persons who have an intellectual disability with
 1260  retardation or autism. The agency shall maintain and provide the
 1261  courts annually with a list of available retardation and autism
 1262  professionals who are appropriately licensed and qualified to
 1263  perform evaluations of defendants alleged to be incompetent to
 1264  proceed due to intellectual disability retardation or autism.
 1265  The courts may use professionals from this list when appointing
 1266  experts and ordering evaluations under this part.
 1267         (2) If a defendant’s suspected mental condition is
 1268  intellectual disability retardation or autism, the court shall
 1269  appoint the following:
 1270         (a) At least one, or at the request of any party, two
 1271  experts to evaluate whether the defendant meets the definition
 1272  of intellectual disability retardation or autism and, if so,
 1273  whether the defendant is competent to proceed; and
 1274         (b) A psychologist selected by the agency who is licensed
 1275  or authorized by law to practice in this state, with experience
 1276  in evaluating persons suspected of having an intellectual
 1277  disability retardation or autism, and a social service
 1278  professional, with experience in working with persons who have
 1279  an intellectual disability with retardation or autism.
 1280         1. The psychologist shall evaluate whether the defendant
 1281  meets the definition of intellectual disability retardation or
 1282  autism and, if so, whether the defendant is incompetent to
 1283  proceed due to intellectual disability retardation or autism.
 1284         2. The social service professional shall provide a social
 1285  and developmental history of the defendant.
 1286         Section 32. Subsections (1), (2), and (4) of section
 1287  916.3012, Florida Statutes, are amended to read:
 1288         916.3012 Mental competence to proceed.—
 1289         (1) A defendant whose suspected mental condition is
 1290  intellectual disability retardation or autism is incompetent to
 1291  proceed within the meaning of this chapter if the defendant does
 1292  not have sufficient present ability to consult with the
 1293  defendant’s lawyer with a reasonable degree of rational
 1294  understanding or if the defendant has no rational, as well as
 1295  factual, understanding of the proceedings against the defendant.
 1296         (2) Experts in intellectual disability retardation or
 1297  autism appointed pursuant to s. 916.301 shall first consider
 1298  whether the defendant meets the definition of intellectual
 1299  disability retardation or autism and, if so, consider the
 1300  factors related to the issue of whether the defendant meets the
 1301  criteria for competence to proceed as described in subsection
 1302  (1).
 1303         (4) If the experts should find that the defendant is
 1304  incompetent to proceed, the experts shall report on any
 1305  recommended training for the defendant to attain competence to
 1306  proceed. In considering the issues relating to training, the
 1307  examining experts shall specifically report on:
 1308         (a) The intellectual disability retardation or autism
 1309  causing the incompetence;
 1310         (b) The training appropriate for the intellectual
 1311  disability retardation or autism of the defendant and an
 1312  explanation of each of the possible training alternatives in
 1313  order of choices;
 1314         (c) The availability of acceptable training and, if
 1315  training is available in the community, the expert shall so
 1316  state in the report; and
 1317         (d) The likelihood of the defendant’s attaining competence
 1318  under the training recommended, an assessment of the probable
 1319  duration of the training required to restore competence, and the
 1320  probability that the defendant will attain competence to proceed
 1321  in the foreseeable future.
 1322         Section 33. Subsection (1), paragraphs (a) and (b) of
 1323  subsection (2), and paragraph (a) of subsection (3) of section
 1324  916.302, Florida Statutes, are amended to read:
 1325         916.302 Involuntary commitment of defendant determined to
 1326  be incompetent to proceed.—
 1327         (1) CRITERIA.—Every defendant who is charged with a felony
 1328  and who is adjudicated incompetent to proceed due to
 1329  intellectual disability retardation or autism may be
 1330  involuntarily committed for training upon a finding by the court
 1331  of clear and convincing evidence that:
 1332         (a) The defendant has an intellectual disability
 1333  retardation or autism;
 1334         (b) There is a substantial likelihood that in the near
 1335  future the defendant will inflict serious bodily harm on himself
 1336  or herself or another person, as evidenced by recent behavior
 1337  causing, attempting, or threatening such harm;
 1338         (c) All available, less restrictive alternatives, including
 1339  services provided in community residential facilities or other
 1340  community settings, which would offer an opportunity for
 1341  improvement of the condition have been judged to be
 1342  inappropriate; and
 1343         (d) There is a substantial probability that the
 1344  intellectual disability retardation or autism causing the
 1345  defendant’s incompetence will respond to training and the
 1346  defendant will regain competency to proceed in the reasonably
 1347  foreseeable future.
 1348         (2) ADMISSION TO A FACILITY.—
 1349         (a) A defendant who has been charged with a felony and who
 1350  is found to be incompetent to proceed due to intellectual
 1351  disability retardation or autism, and who meets the criteria for
 1352  involuntary commitment to the agency under the provisions of
 1353  this chapter, shall be committed to the agency, and the agency
 1354  shall retain and provide appropriate training for the defendant.
 1355  Within No later than 6 months after the date of admission or at
 1356  the end of any period of extended commitment or at any time the
 1357  administrator or designee determines shall have determined that
 1358  the defendant has regained competency to proceed or no longer
 1359  meets the criteria for continued commitment, the administrator
 1360  or designee shall file a report with the court pursuant to this
 1361  chapter and the applicable Florida Rules of Criminal Procedure.
 1362         (b) A defendant determined to be incompetent to proceed due
 1363  to intellectual disability retardation or autism may be ordered
 1364  by a circuit court into a forensic facility designated by the
 1365  agency for defendants who have an intellectual disability mental
 1366  retardation or autism.
 1367         (3) PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.—
 1368         (a) If a defendant has both an intellectual disability
 1369  mental retardation or autism and has a mental illness,
 1370  evaluations must address which condition is primarily affecting
 1371  the defendant’s competency to proceed. Referral of the defendant
 1372  should be made to a civil or forensic facility most appropriate
 1373  to address the symptoms that are the cause of the defendant’s
 1374  incompetence.
 1375         Section 34. Subsection (1) of section 916.3025, Florida
 1376  Statutes, is amended to read:
 1377         916.3025 Jurisdiction of committing court.—
 1378         (1) The committing court shall retain jurisdiction in the
 1379  case of any defendant found to be incompetent to proceed due to
 1380  intellectual disability retardation or autism and ordered into a
 1381  forensic facility designated by the agency for defendants who
 1382  have intellectual disabilities mental retardation or autism. A
 1383  defendant may not be released except by the order of the
 1384  committing court. An administrative hearing examiner does not
 1385  have jurisdiction to determine issues of continuing commitment
 1386  or release of any defendant involuntarily committed pursuant to
 1387  this chapter.
 1388         Section 35. Section 916.303, Florida Statutes, is amended
 1389  to read:
 1390         916.303 Determination of incompetency due to retardation or
 1391  autism; dismissal of charges.—
 1392         (1) The charges against any defendant found to be
 1393  incompetent to proceed due to intellectual disability
 1394  retardation or autism shall be dismissed without prejudice to
 1395  the state if the defendant remains incompetent to proceed within
 1396  a reasonable time after such determination, not to exceed 2
 1397  years, unless the court in its order specifies its reasons for
 1398  believing that the defendant will become competent to proceed
 1399  within the foreseeable future and specifies the time within
 1400  which the defendant is expected to become competent to proceed.
 1401  The charges may be refiled by the state if the defendant is
 1402  declared competent to proceed in the future.
 1403         (2) If the charges are dismissed and if the defendant is
 1404  considered to lack sufficient capacity to give express and
 1405  informed consent to a voluntary application for services and
 1406  lacks the basic survival and self-care skills to provide for his
 1407  or her well-being or is likely to physically injure himself or
 1408  herself or others if allowed to remain at liberty, the agency,
 1409  the state attorney, or the defendant’s attorney shall apply to
 1410  the committing court to involuntarily admit the defendant to
 1411  residential services pursuant to s. 393.11.
 1412         (3) If the defendant is considered to need involuntary
 1413  residential services for reasons described in subsection (2)
 1414  and, further, there is a substantial likelihood that the
 1415  defendant will injure another person or continues to present a
 1416  danger of escape, and all available less restrictive
 1417  alternatives, including services in community residential
 1418  facilities or other community settings, which would offer an
 1419  opportunity for improvement of the condition have been judged to
 1420  be inappropriate, the agency, the state attorney, or the
 1421  defendant’s counsel may request the committing court to continue
 1422  the defendant’s placement in a secure facility pursuant to this
 1423  part. Any placement so continued under this subsection must be
 1424  reviewed by the court at least annually at a hearing. The annual
 1425  review and hearing must shall determine whether the defendant
 1426  continues to meet the criteria described in this subsection and,
 1427  if so, whether the defendant still requires involuntary
 1428  placement in a secure facility and whether the defendant is
 1429  receiving adequate care, treatment, habilitation, and
 1430  rehabilitation, including psychotropic medication and behavioral
 1431  programming. Notice of the annual review and review hearing
 1432  shall be given to the state attorney and the defendant’s
 1433  attorney. In no instance may A defendant’s placement in a secure
 1434  facility may not exceed the maximum sentence for the crime for
 1435  which the defendant was charged.
 1436         Section 36. Subsection (1) of section 916.304, Florida
 1437  Statutes, is amended to read:
 1438         916.304 Conditional release.—
 1439         (1) Except for an inmate currently serving a prison
 1440  sentence, the committing court may order a conditional release
 1441  of any defendant who has been found to be incompetent to proceed
 1442  due to intellectual disability retardation or autism, based on
 1443  an approved plan for providing community-based training. The
 1444  committing criminal court may order a conditional release of any
 1445  defendant to a civil facility in lieu of an involuntary
 1446  commitment to a forensic facility pursuant to s. 916.302. Upon a
 1447  recommendation that community-based training for the defendant
 1448  is appropriate, a written plan for community-based training,
 1449  including recommendations from qualified professionals, may be
 1450  filed with the court, with copies to all parties. Such a plan
 1451  may also be submitted by the defendant and filed with the court,
 1452  with copies to all parties. The plan must include:
 1453         (a) Special provisions for residential care and adequate
 1454  supervision of the defendant, including recommended location of
 1455  placement.
 1456         (b) Recommendations for auxiliary services such as
 1457  vocational training, psychological training, educational
 1458  services, leisure services, and special medical care.
 1459  
 1460  In its order of conditional release, the court shall specify the
 1461  conditions of release based upon the release plan and shall
 1462  direct the appropriate agencies or persons to submit periodic
 1463  reports to the courts regarding the defendant’s compliance with
 1464  the conditions of the release and progress in training, with
 1465  copies to all parties.
 1466         Section 37. Subsection (1) of section 918.16, Florida
 1467  Statutes, is amended to read:
 1468         918.16 Sex offenses; testimony of person under age 16 or
 1469  person with mental retardation; testimony of victim; courtroom
 1470  cleared; exceptions.—
 1471         (1) Except as provided in subsection (2), in the trial of
 1472  any case, civil or criminal, when any person under the age of 16
 1473  or any person with intellectual disability mental retardation as
 1474  defined in s. 393.063 is testifying concerning any sex offense,
 1475  the court shall clear the courtroom of all persons except
 1476  parties to the cause and their immediate families or guardians,
 1477  attorneys and their secretaries, officers of the court, jurors,
 1478  newspaper reporters or broadcasters, court reporters, and, at
 1479  the request of the victim, victim or witness advocates
 1480  designated by the state attorney’s office.
 1481         Section 38. Section 921.137, Florida Statutes, is amended
 1482  to read:
 1483         921.137 Imposition of the death sentence upon an
 1484  intellectually disabled a defendant with mental retardation
 1485  prohibited.—
 1486         (1) As used in this section, the term:
 1487         (a) “Adaptive behavior” means the effectiveness or degree
 1488  with which an individual meets the standards of personal
 1489  independence and social responsibility expected of his or her
 1490  age, cultural group, and community.
 1491         (b) “Intellectual disability” or “intellectually disabled”
 1492  “mental retardation” means significantly subaverage general
 1493  intellectual functioning existing concurrently with deficits in
 1494  adaptive behavior and manifested during the period from
 1495  conception to age 18. The term
 1496         (c) “Significantly subaverage general intellectual
 1497  functioning,for the purpose of this section, means performance
 1498  that is two or more standard deviations from the mean score on a
 1499  standardized intelligence test specified in the rules of the
 1500  Agency for Persons with Disabilities. The term “adaptive
 1501  behavior,” for the purpose of this definition, means the
 1502  effectiveness or degree with which an individual meets the
 1503  standards of personal independence and social responsibility
 1504  expected of his or her age, cultural group, and community. The
 1505  Agency for Persons with Disabilities shall adopt rules to
 1506  specify the standardized intelligence tests as provided in this
 1507  subsection.
 1508         (2) A sentence of death may not be imposed upon a defendant
 1509  convicted of a capital felony if it is determined in accordance
 1510  with this section that the defendant is intellectually disabled
 1511  has mental retardation.
 1512         (3) A defendant charged with a capital felony who intends
 1513  to raise intellectual disability mental retardation as a bar to
 1514  the death sentence must give notice of such intention in
 1515  accordance with the rules of court governing notices of intent
 1516  to offer expert testimony regarding mental health mitigation
 1517  during the penalty phase of a capital trial.
 1518         (4) After a defendant who has given notice of his or her
 1519  intention to raise intellectual disability mental retardation as
 1520  a bar to the death sentence is convicted of a capital felony and
 1521  an advisory jury has returned a recommended sentence of death,
 1522  the defendant may file a motion to determine whether the
 1523  defendant is intellectually disabled has mental retardation.
 1524  Upon receipt of the motion, the court shall appoint two experts
 1525  in the field of intellectual disabilities mental retardation who
 1526  shall evaluate the defendant and report their findings to the
 1527  court and all interested parties before prior to the final
 1528  sentencing hearing. Notwithstanding s. 921.141 or s. 921.142,
 1529  the final sentencing hearing shall be held without a jury. At
 1530  the final sentencing hearing, the court shall consider the
 1531  findings of the court-appointed experts and consider the
 1532  findings of any other expert which are is offered by the state
 1533  or the defense on the issue of whether the defendant has an
 1534  intellectual disability has mental retardation. If the court
 1535  finds, by clear and convincing evidence, that the defendant is
 1536  intellectually disabled has mental retardation as defined in
 1537  subsection (1), the court may not impose a sentence of death and
 1538  shall enter a written order that sets forth with specificity the
 1539  findings in support of the determination.
 1540         (5) If a defendant waives his or her right to a recommended
 1541  sentence by an advisory jury following a plea of guilt or nolo
 1542  contendere to a capital felony and adjudication of guilt by the
 1543  court, or following a jury finding of guilt of a capital felony,
 1544  upon acceptance of the waiver by the court, a defendant who has
 1545  given notice as required in subsection (3) may file a motion for
 1546  a determination of intellectual disability mental retardation.
 1547  Upon granting the motion, the court shall proceed as provided in
 1548  subsection (4).
 1549         (6) If, following a recommendation by an advisory jury that
 1550  the defendant be sentenced to life imprisonment, the state
 1551  intends to request the court to order that the defendant be
 1552  sentenced to death, the state must inform the defendant of such
 1553  request if the defendant has notified the court of his or her
 1554  intent to raise intellectual disability mental retardation as a
 1555  bar to the death sentence. After receipt of the notice from the
 1556  state, the defendant may file a motion requesting a
 1557  determination by the court of whether the defendant is
 1558  intellectually disabled has mental retardation. Upon granting
 1559  the motion, the court shall proceed as provided in subsection
 1560  (4).
 1561         (7) Pursuant to s. 924.07, the state may appeal, pursuant
 1562  to s. 924.07, a determination of intellectual disability mental
 1563  retardation made under subsection (4).
 1564         (8) This section does not apply to a defendant who was
 1565  sentenced to death before June 12, 2001 prior to the effective
 1566  date of this act.
 1567         Section 39. Paragraph (b) of subsection (2) of section
 1568  941.38, Florida Statutes, is amended to read:
 1569         941.38 Extradition of persons alleged to be of unsound
 1570  mind.—
 1571         (2) For the purpose of this section:
 1572         (b) A “mentally incompetent person” is one who because of
 1573  mental illness, intellectual disability mental retardation,
 1574  senility, excessive use of drugs or alcohol, or other mental
 1575  incapacity is incapable of either managing his or her property
 1576  or caring for himself or herself or both.
 1577         Section 40. Section 944.602, Florida Statutes, is amended
 1578  to read:
 1579         944.602 Agency notification before release of
 1580  intellectually disabled mentally retarded inmates.—Before the
 1581  release by parole, release by reason of gain-time allowances
 1582  provided for in s. 944.291, or expiration of sentence of any
 1583  inmate who has been diagnosed as having an intellectual
 1584  disability mentally retarded as defined in s. 393.063, the
 1585  Department of Corrections shall notify the Agency for Persons
 1586  with Disabilities in order that sufficient time be allowed to
 1587  notify the inmate or the inmate’s representative, in writing, at
 1588  least 7 days before prior to the inmate’s release, of available
 1589  community services.
 1590         Section 41. Subsection (2) of section 945.025, Florida
 1591  Statutes, is amended to read:
 1592         945.025 Jurisdiction of department.—
 1593         (2) In establishing, operating, and using utilizing these
 1594  facilities, the department shall attempt, whenever possible, to
 1595  avoid the placement of nondangerous offenders who have potential
 1596  for rehabilitation with repeat offenders or dangerous offenders.
 1597  Medical, mental, and psychological problems must shall be
 1598  diagnosed and treated whenever possible. The Department of
 1599  Children and Family Services and the Agency for Persons with
 1600  Disabilities shall cooperate to ensure the delivery of services
 1601  to persons under the custody or supervision of the department.
 1602  If When it is the intent of the department intends to transfer a
 1603  mentally ill or retarded prisoner who has a mental illness or
 1604  intellectual disability to the Department of Children and Family
 1605  Services or the Agency for Persons with Disabilities, an
 1606  involuntary commitment hearing shall be held in accordance with
 1607  according to the provisions of chapter 393 or chapter 394.
 1608         Section 42. Subsection (5) of section 945.12, Florida
 1609  Statutes, is amended to read:
 1610         945.12 Transfers for rehabilitative treatment.—
 1611         (5) When the department plans to release a mentally ill or
 1612  intellectually disabled retarded offender, an involuntary
 1613  commitment hearing shall be held as soon as possible before
 1614  prior to his or her release in accordance with, according to the
 1615  provisions of chapter 393 or chapter 394.
 1616         Section 43. Subsection (9) of section 945.42, Florida
 1617  Statutes, is amended to read:
 1618         945.42 Definitions; ss. 945.40-945.49.—As used in ss.
 1619  945.40-945.49, the following terms shall have the meanings
 1620  ascribed to them, unless the context shall clearly indicate
 1621  otherwise:
 1622         (9) “Mentally ill” means an impairment of the mental or
 1623  emotional processes that, of the ability to exercise conscious
 1624  control of one’s actions, or of the ability to perceive or
 1625  understand reality, which impairment substantially interferes
 1626  with the a person’s ability to meet the ordinary demands of
 1627  living. However, regardless of etiology, except that, for the
 1628  purposes of transferring transfer of an inmate to a mental
 1629  health treatment facility, the term does not include a
 1630  retardation or developmental disability as defined in chapter
 1631  393, simple intoxication, or conditions manifested only by
 1632  antisocial behavior or substance abuse addiction. However, an
 1633  individual who is mentally retarded or developmentally disabled
 1634  may also have a mental illness.
 1635         Section 44. Section 947.185, Florida Statutes, is amended
 1636  to read:
 1637         947.185 Application for intellectual disability mental
 1638  retardation services as condition of parole.—The Parole
 1639  Commission may require as a condition of parole that any inmate
 1640  who has been diagnosed as having an intellectual disability
 1641  mentally retarded as defined in s. 393.063 shall, upon release,
 1642  apply for services from the Agency for Persons with
 1643  Disabilities.
 1644         Section 45. Subsection (4) of section 984.19, Florida
 1645  Statutes, is amended to read:
 1646         984.19 Medical screening and treatment of child;
 1647  examination of parent, guardian, or person requesting custody.—
 1648         (4) A judge may order that a child alleged to be or
 1649  adjudicated a child in need of services be treated by a licensed
 1650  health care professional. The judge may also order such child to
 1651  receive mental health or intellectual disability retardation
 1652  services from a psychiatrist, psychologist, or other appropriate
 1653  service provider. If it is necessary to place the child in a
 1654  residential facility for such services, then the procedures and
 1655  criteria established in s. 394.467 or chapter 393 shall be used,
 1656  as whichever is applicable. A child may be provided mental
 1657  health or retardation services in emergency situations, pursuant
 1658  to the procedures and criteria contained in s. 394.463(1) or
 1659  chapter 393, as whichever is applicable.
 1660         Section 46. Paragraph (a) of subsection (3) of section
 1661  985.14, Florida Statutes, is amended to read:
 1662         985.14 Intake and case management system.—
 1663         (3) The intake and case management system shall facilitate
 1664  consistency in the recommended placement of each child, and in
 1665  the assessment, classification, and placement process, with the
 1666  following purposes:
 1667         (a) An individualized, multidisciplinary assessment process
 1668  that identifies the priority needs of each individual child for
 1669  rehabilitation and treatment and identifies any needs of the
 1670  child’s parents or guardians for services that would enhance
 1671  their ability to provide adequate support, guidance, and
 1672  supervision for the child. This process begins shall begin with
 1673  the detention risk assessment instrument and decision, includes
 1674  shall include the intake preliminary screening and comprehensive
 1675  assessment for substance abuse treatment services, mental health
 1676  services, intellectual disability retardation services, literacy
 1677  services, and other educational and treatment services as
 1678  components, additional assessment of the child’s treatment
 1679  needs, and classification regarding the child’s risks to the
 1680  community and, for a serious or habitual delinquent child,
 1681  includes shall include the assessment for placement in a serious
 1682  or habitual delinquent children program under s. 985.47. The
 1683  completed multidisciplinary assessment process must shall result
 1684  in the predisposition report.
 1685         Section 47. Paragraph (g) of subsection (1) and subsection
 1686  (5) of section 985.145, Florida Statutes, is amended to read:
 1687         985.145 Responsibilities of juvenile probation officer
 1688  during intake; screenings and assessments.—
 1689         (1) The juvenile probation officer shall serve as the
 1690  primary case manager for the purpose of managing, coordinating,
 1691  and monitoring the services provided to the child. Each program
 1692  administrator within the Department of Children and Family
 1693  Services shall cooperate with the primary case manager in
 1694  carrying out the duties and responsibilities described in this
 1695  section. In addition to duties specified in other sections and
 1696  through departmental rules, the assigned juvenile probation
 1697  officer shall be responsible for the following:
 1698         (g) Comprehensive assessment.—The juvenile probation
 1699  officer, pursuant to uniform procedures established by the
 1700  department and upon determining that the report, affidavit, or
 1701  complaint is complete, shall:
 1702         1. Perform the preliminary screening and make referrals for
 1703  a comprehensive assessment regarding the child’s need for
 1704  substance abuse treatment services, mental health services,
 1705  intellectual disability retardation services, literacy services,
 1706  or other educational or treatment services.
 1707         2. If When indicated by the preliminary screening, provide
 1708  for a comprehensive assessment of the child and family for
 1709  substance abuse problems, using community-based licensed
 1710  programs with clinical expertise and experience in the
 1711  assessment of substance abuse problems.
 1712         3. If When indicated by the preliminary screening, provide
 1713  for a comprehensive assessment of the child and family for
 1714  mental health problems, using community-based psychologists,
 1715  psychiatrists, or other licensed mental health professionals who
 1716  have clinical expertise and experience in the assessment of
 1717  mental health problems.
 1718         (5) If the screening and assessment indicate that the
 1719  interests of the child and the public will be best served
 1720  thereby, the juvenile probation officer, with the approval of
 1721  the state attorney, may refer the child for care, diagnostic,
 1722  and evaluation services; substance abuse treatment services;
 1723  mental health services; intellectual disability retardation
 1724  services; a diversionary, arbitration, or mediation program;
 1725  community service work; or other programs or treatment services
 1726  voluntarily accepted by the child and the child’s parents or
 1727  legal guardian. If Whenever a child volunteers to participate in
 1728  any work program under this chapter or volunteers to work in a
 1729  specified state, county, municipal, or community service
 1730  organization supervised work program or to work for the victim,
 1731  the child is shall be considered an employee of the state for
 1732  the purposes of liability. In determining the child’s average
 1733  weekly wage, unless otherwise determined by a specific funding
 1734  program, all remuneration received from the employer is
 1735  considered a gratuity, and the child is not entitled to any
 1736  benefits otherwise payable under s. 440.15, regardless of
 1737  whether the child may be receiving wages and remuneration from
 1738  other employment with another employer and regardless of the
 1739  child’s future wage-earning capacity.
 1740         Section 48. Subsections (2) and (6) of section 985.18,
 1741  Florida Statutes, are amended to read:
 1742         985.18 Medical, psychiatric, psychological, substance
 1743  abuse, and educational examination and treatment.—
 1744         (2) If Whenever a child has been found to have committed a
 1745  delinquent act, or before such finding with the consent of any
 1746  parent or legal custodian of the child, the court may order the
 1747  child to be treated by a physician. The court may also order the
 1748  child to receive mental health, substance abuse, or intellectual
 1749  disability retardation services from a psychiatrist,
 1750  psychologist, or other appropriate service provider. If it is
 1751  necessary to place the child in a residential facility for such
 1752  services, the procedures and criteria established in chapter
 1753  393, chapter 394, or chapter 397, as whichever is applicable,
 1754  must shall be used. After a child has been adjudicated
 1755  delinquent, if an educational needs assessment by the district
 1756  school board or the Department of Children and Family Services
 1757  has been previously conducted, the court shall order the report
 1758  of such needs assessment included in the child’s court record in
 1759  lieu of a new assessment. For purposes of this section, an
 1760  educational needs assessment includes, but is not limited to,
 1761  reports of intelligence and achievement tests, screening for
 1762  learning and other disabilities and other handicaps, and
 1763  screening for the need for alternative education.
 1764         (6) A physician must shall be immediately notified by the
 1765  person taking the child into custody or the person having
 1766  custody if there are indications of physical injury or illness,
 1767  or the child shall be taken to the nearest available hospital
 1768  for emergency care. A child may be provided mental health,
 1769  substance abuse, or intellectual disability retardation
 1770  services, in emergency situations, pursuant to chapter 393,
 1771  chapter 394, or chapter 397, as whichever is applicable. After a
 1772  hearing, the court may order the custodial parent or parents,
 1773  guardian, or other custodian, if found able to do so, to
 1774  reimburse the county or state for the expense involved in such
 1775  emergency treatment or care.
 1776         Section 49. Paragraph (e) of subsection (1), subsections
 1777  (2) through (4), and paragraph (a) of subsection (6) of section
 1778  985.19, Florida Statutes, are amended to read:
 1779         985.19 Incompetency in juvenile delinquency cases.—
 1780         (1) If, at any time prior to or during a delinquency case,
 1781  the court has reason to believe that the child named in the
 1782  petition may be incompetent to proceed with the hearing, the
 1783  court on its own motion may, or on the motion of the child’s
 1784  attorney or state attorney must, stay all proceedings and order
 1785  an evaluation of the child’s mental condition.
 1786         (e) For incompetency evaluations related to intellectual
 1787  disability mental retardation or autism, the court shall order
 1788  the Agency for Persons with Disabilities to examine the child to
 1789  determine if the child meets the definition of “intellectual
 1790  disability” “retardation” or “autism” in s. 393.063 and, if so,
 1791  whether the child is competent to proceed with delinquency
 1792  proceedings.
 1793         (2) A child who is adjudicated incompetent to proceed, and
 1794  who has committed a delinquent act or violation of law, either
 1795  of which would be a felony if committed by an adult, must be
 1796  committed to the Department of Children and Family Services for
 1797  treatment or training. A child who has been adjudicated
 1798  incompetent to proceed because of age or immaturity, or for any
 1799  reason other than for mental illness, intellectual disability,
 1800  or retardation or autism, must not be committed to the
 1801  department or to the Department of Children and Family Services
 1802  for restoration-of-competency treatment or training services.
 1803  For purposes of this section, a child who has committed a
 1804  delinquent act or violation of law, either of which would be a
 1805  misdemeanor if committed by an adult, may not be committed to
 1806  the department or to the Department of Children and Family
 1807  Services for restoration-of-competency treatment or training
 1808  services.
 1809         (3) If the court finds that a child has mental illness,
 1810  intellectual disability mental retardation, or autism and
 1811  adjudicates the child incompetent to proceed, the court must
 1812  also determine whether the child meets the criteria for secure
 1813  placement. A child may be placed in a secure facility or program
 1814  if the court makes a finding by clear and convincing evidence
 1815  that:
 1816         (a) The child has mental illness, intellectual disability
 1817  mental retardation, or autism and because of the mental illness,
 1818  intellectual disability mental retardation, or autism:
 1819         1. The child is manifestly incapable of surviving with the
 1820  help of willing and responsible family or friends, including
 1821  available alternative services, and without treatment or
 1822  training the child is likely to either suffer from neglect or
 1823  refuse to care for self, and such neglect or refusal poses a
 1824  real and present threat of substantial harm to the child’s well
 1825  being; or
 1826         2. There is a substantial likelihood that in the near
 1827  future the child will inflict serious bodily harm on self or
 1828  others, as evidenced by recent behavior causing, attempting, or
 1829  threatening such harm; and
 1830         (b) All available less restrictive alternatives, including
 1831  treatment or training in community residential facilities or
 1832  community settings, which would offer an opportunity for
 1833  improvement of the child’s condition, are inappropriate.
 1834         (4) A child who is determined to have mental illness,
 1835  intellectual disability mental retardation, or autism, who has
 1836  been adjudicated incompetent to proceed, and who meets the
 1837  criteria set forth in subsection (3), must be committed to the
 1838  Department of Children and Family Services and receive treatment
 1839  or training in a secure facility or program that is the least
 1840  restrictive alternative consistent with public safety. Any
 1841  placement of a child to a secure residential program must be
 1842  separate from adult forensic programs. If the child attains
 1843  competency, then custody, case management, and supervision of
 1844  the child shall will be transferred to the department in order
 1845  to continue delinquency proceedings; however, the court retains
 1846  authority to order the Department of Children and Family
 1847  Services to provide continued treatment or training to maintain
 1848  competency.
 1849         (a) A child adjudicated incompetent due to intellectual
 1850  disability mental retardation or autism may be ordered into a
 1851  secure program or facility designated by the Department of
 1852  Children and Family Services for children who have intellectual
 1853  disabilities with mental retardation or autism.
 1854         (b) A child adjudicated incompetent due to mental illness
 1855  may be ordered into a secure program or facility designated by
 1856  the Department of Children and Family Services for children
 1857  having mental illnesses.
 1858         (c) If Whenever a child is placed in a secure residential
 1859  facility, the department shall will provide transportation to
 1860  the secure residential facility for admission and from the
 1861  secure residential facility upon discharge.
 1862         (d) The purpose of the treatment or training is the
 1863  restoration of the child’s competency to proceed.
 1864         (e) The service provider must file a written report with
 1865  the court pursuant to the applicable Florida Rules of Juvenile
 1866  Procedure within not later than 6 months after the date of
 1867  commitment, or at the end of any period of extended treatment or
 1868  training, and at any time the Department of Children and Family
 1869  Services, through its service provider, determines the child has
 1870  attained competency or no longer meets the criteria for secure
 1871  placement, or at such shorter intervals as ordered by the court.
 1872  A copy of a written report evaluating the child’s competency
 1873  must be filed by the provider with the court and with the state
 1874  attorney, the child’s attorney, the department, and the
 1875  Department of Children and Family Services.
 1876         (6)(a) If a child is determined to have mental illness,
 1877  intellectual disability mental retardation, or autism and is
 1878  found to be incompetent to proceed but does not meet the
 1879  criteria set forth in subsection (3), the court shall commit the
 1880  child to the Department of Children and Family Services and
 1881  shall order the Department of Children and Family Services to
 1882  provide appropriate treatment and training in the community. The
 1883  purpose of the treatment or training is the restoration of the
 1884  child’s competency to proceed.
 1885         Section 50. Section 985.195, Florida Statutes, is amended
 1886  to read:
 1887         985.195 Transfer to other treatment services.—Any child
 1888  committed to the department may be transferred to intellectual
 1889  disability retardation, mental health, or substance abuse
 1890  treatment facilities for diagnosis and evaluation pursuant to
 1891  chapter 393, chapter 394, or chapter 397, as whichever is
 1892  applicable, for up to a period not to exceed 90 days.
 1893         Section 51. Paragraph (b) of subsection (1) of section
 1894  985.61, Florida Statutes, is amended to read:
 1895         985.61 Early delinquency intervention program; criteria.—
 1896         (1) The Department of Juvenile Justice shall, contingent
 1897  upon specific appropriation and with the cooperation of local
 1898  law enforcement agencies, the judiciary, district school board
 1899  personnel, the office of the state attorney, the office of the
 1900  public defender, the Department of Children and Family Services,
 1901  and community service agencies that work with children,
 1902  establish an early delinquency intervention program, the
 1903  components of which shall include, but not be limited to:
 1904         (b) Treatment modalities, including substance abuse
 1905  treatment services, mental health services, and retardation
 1906  services for intellectual disabilities.
 1907         Section 52. It is the intent of the legislature that this
 1908  act is not intended to expand or contract the scope or
 1909  application of any provisions of the Florida Statutes. Nothing
 1910  in this act may be construed to change the application of any
 1911  provisions of the Florida Statutes to any person.
 1912         Section 53. This act shall take effect July 1, 2010.

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