November 24, 2020
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       Florida Senate - 2010                      CS for CS for SB 1388
       
       
       
       By the Committees on Criminal Justice; and Children, Families,
       and Elder Affairs; and Senator Haridopolos
       
       
       
       591-04779-10                                          20101388c2
    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”; clarifying in s.
   13         393.063, that the meaning of the terms “intellectual
   14         disability” or “intellectually disabled” is the same
   15         as the meaning of the terms “mental retardation,”
   16         “retarded,” and “mentally retarded” for purposes of
   17         matters relating to the criminal laws and court rules;
   18         amending s. 400.960, F.S.; revising definitions
   19         relating to intermediate care facilities for the
   20         developmentally disabled to delete unused terms;
   21         amending s. 408.032, F.S.; conforming a cross
   22         reference; amending s. 409.908, F.S.; substituting the
   23         term “intellectually disabled” for the term “mentally
   24         retarded”; amending ss. 413.20, 440.49, and 499.0054,
   25         F.S.; substituting the term “intellectual disability”
   26         for the term “mental retardation”; amending s.
   27         514.072, F.S.; conforming a cross-reference and
   28         deleting obsolete provisions; amending ss. 627.6041,
   29         627.6615, 641.31, 650.05, 765.204, 849.04, 914.16,
   30         914.17, 916.105, and 916.106, F.S.; substituting the
   31         term “intellectual disability” for the term “mental
   32         retardation”; amending s. 916.107, F.S.; substituting
   33         the term “intellectual disability” for the term
   34         “retardation”; providing a directive to the Division
   35         of Statutory Revision; amending ss. 916.301, 916.3012,
   36         916.302, 916.3025, 916.303, 916.304, 918.16, 921.137,
   37         941.38, 944.602, 945.025, 945.12, 945.42, 947.185,
   38         984.19, 985.14, 985.145, 985.18, 985.19, 985.195, and
   39         985.61, F.S.; clarifying in s. 921.137 that the terms
   40         “intellectual disability” or “intellectually disabled”
   41         are interchangeable with and have the same meaning as
   42         the terms “mental retardation,” or “retardation” and
   43         “mentally retarded,” as defined prior to the effective
   44         date of the act; substituting the term “intellectual
   45         disability” for the term “mental retardation”;
   46         expressing legislative intent; providing an effective
   47         date.
   48  
   49  Be It Enacted by the Legislature of the State of Florida:
   50  
   51         Section 1. Subsection (15) of section 39.502, Florida
   52  Statutes, is amended to read:
   53         39.502 Notice, process, and service.—
   54         (15) A party who is identified as a person who has a with
   55  mental illness or with a developmental disability must be
   56  informed by the court of the availability of advocacy services
   57  through the department, the Arc of Florida Association for
   58  Retarded Citizens, or other appropriate mental health or
   59  developmental disability advocacy groups and encouraged to seek
   60  such services.
   61         Section 2. Subsection (9) of section 40.013, Florida
   62  Statutes, is amended to read:
   63         40.013 Persons disqualified or excused from jury service.—
   64         (9) Any person who is responsible for the care of a person
   65  who, because of mental illness, intellectual disability mental
   66  retardation, senility, or other physical or mental incapacity,
   67  is incapable of caring for himself or herself shall be excused
   68  from jury service upon request.
   69         Section 3. Section 86.041, Florida Statutes, is amended to
   70  read:
   71         86.041 Actions by executors, administrators, trustees,
   72  etc.—Any person interested as or through an executor,
   73  administrator, trustee, guardian, or other fiduciary, creditor,
   74  devisee, legatee, heir, next of kin, or cestui que trust, in the
   75  administration of a trust, a guardianship, or of the estate of a
   76  decedent, an infant, a mental incompetent, or insolvent may have
   77  a declaration of rights or equitable or legal relations to in
   78  respect thereto:
   79         (1) To Ascertain any class of creditors, devisees,
   80  legatees, heirs, next of kin, or others; or
   81         (2) To Direct the executor, administrator, or trustee to
   82  refrain from doing any particular act in his or her fiduciary
   83  capacity; or
   84         (3) To Determine any question relating to arising in the
   85  administration of the guardianship, estate, or trust, including
   86  questions of construction of wills and other writings.
   87  
   88  For the purpose of this section, a “mental incompetent” is one
   89  who, because of mental illness, intellectual disability mental
   90  retardation, senility, excessive use of drugs or alcohol, or
   91  other mental incapacity, is incapable of either managing his or
   92  her property or caring for himself or herself, or both.
   93         Section 4. Section 92.53, Florida Statutes, is amended to
   94  read:
   95         92.53 Videotaping of testimony of a victim or witness under
   96  age 16 or who has an intellectual disability person with mental
   97  retardation.—
   98         (1) On motion and hearing in camera and a finding that
   99  there is a substantial likelihood that a victim or witness who
  100  is under the age of 16 or who has an intellectual disability is
  101  a person with mental retardation as defined in s. 393.063 would
  102  suffer at least moderate emotional or mental harm due to the
  103  presence of the defendant if such victim or witness the child or
  104  person with mental retardation is required to testify in open
  105  court, or that such victim or witness is otherwise unavailable
  106  as defined in s. 90.804(1), the trial court may order the
  107  videotaping of the testimony of the victim or witness in a case,
  108  whether civil or criminal in nature, in which videotaped
  109  testimony is to be used utilized at trial in lieu of trial
  110  testimony in open court.
  111         (2) The motion may be filed by:
  112         (a) The victim or witness, or the victim’s or witness’s
  113  attorney, parent, legal guardian, or guardian ad litem;
  114         (b) A trial judge on his or her own motion;
  115         (c) Any party in a civil proceeding; or
  116         (d) The prosecuting attorney or the defendant, or the
  117  defendant’s counsel.
  118         (3) The judge shall preside, or shall appoint a special
  119  master to preside, at the videotaping unless the following
  120  conditions are met:
  121         (a) The child or the person who has the intellectual
  122  disability with mental retardation is represented by a guardian
  123  ad litem or counsel;
  124         (b) The representative of the victim or witness and the
  125  counsel for each party stipulate that the requirement for the
  126  presence of the judge or special master may be waived; and
  127         (c) The court finds at a hearing on the motion that the
  128  presence of a judge or special master is not necessary to
  129  protect the victim or witness.
  130         (4) The defendant and the defendant’s counsel must shall be
  131  present at the videotaping, unless the defendant has waived this
  132  right. The court may require the defendant to view the testimony
  133  from outside the presence of the child or the person who has an
  134  intellectual disability with mental retardation by means of a
  135  two-way mirror or another similar method that ensures will
  136  ensure that the defendant can observe and hear the testimony of
  137  the victim or witness in person, but that the victim or witness
  138  cannot hear or see the defendant. The defendant and the attorney
  139  for the defendant may communicate by any appropriate private
  140  method.
  141         (5) Any party, or the court on its own motion, may request
  142  the aid of an interpreter, as provided in s. 90.606, to aid the
  143  parties in formulating methods of questioning the child or
  144  person who has the intellectual disability with mental
  145  retardation and in interpreting the answers of the child or
  146  person with mental retardation throughout proceedings conducted
  147  under this section.
  148         (6) The motion referred to in subsection (1) may be made at
  149  any time with reasonable notice to each party to the cause, and
  150  videotaping of testimony may be made any time after the court
  151  grants the motion. The videotaped testimony is shall be
  152  admissible as evidence in the trial of the cause; however, such
  153  testimony is shall not be admissible in any trial or proceeding
  154  in which such witness testifies by use of closed circuit
  155  television pursuant to s. 92.54.
  156         (7) The court shall make specific findings of fact, on the
  157  record, as to the basis for its ruling under this section.
  158         Section 5. Section 92.54, Florida Statutes, is amended to
  159  read:
  160         92.54 Use of closed circuit television in proceedings
  161  involving a victim or witness victims or witnesses under the age
  162  of 16 or who has an intellectual disability persons with mental
  163  retardation.—
  164         (1) Upon motion and hearing in camera and upon a finding
  165  that there is a substantial likelihood that a victim or witness
  166  under the age of 16 or who has an intellectual disability the
  167  child or person with mental retardation will suffer at least
  168  moderate emotional or mental harm due to the presence of the
  169  defendant if such victim or witness the child or person with
  170  mental retardation is required to testify in open court, or that
  171  such victim or witness is unavailable as defined in s.
  172  90.804(1), the trial court may order that the testimony of the a
  173  child under the age of 16 or person with mental retardation who
  174  is a victim or witness be taken outside of the courtroom and
  175  shown by means of closed circuit television.
  176         (2) The motion may be filed by the victim or witness; the
  177  attorney, parent, legal guardian, or guardian ad litem of the
  178  victim or witness; the prosecutor; the defendant or the
  179  defendant’s counsel; or the trial judge on his or her own
  180  motion.
  181         (3) Only the judge, the prosecutor, the defendant, the
  182  attorney for the defendant, the operators of the videotape
  183  equipment, an interpreter, and some other person who, in the
  184  opinion of the court, contributes to the well-being of the child
  185  or the person who has an intellectual disability with mental
  186  retardation and who will not be a witness in the case may be in
  187  the room during the recording of the testimony.
  188         (4) During the victim’s or witness’s child’s or person’s
  189  with mental retardation testimony by closed circuit television,
  190  the court may require the defendant to view the testimony from
  191  the courtroom. In such a case, the court shall permit the
  192  defendant to observe and hear the testimony of the victim or
  193  witness child or person with mental retardation, but must shall
  194  ensure that the victim or witness child or person with mental
  195  retardation cannot hear or see the defendant. The defendant’s
  196  right to assistance of counsel, which includes the right to
  197  immediate and direct communication with counsel conducting
  198  cross-examination, must be protected and, upon the defendant’s
  199  request, such communication shall be provided by any appropriate
  200  electronic method.
  201         (5) The court shall make specific findings of fact, on the
  202  record, as to the basis for its ruling under this section.
  203         Section 6. Section 92.55, Florida Statutes, is amended to
  204  read:
  205         92.55 Judicial or other proceedings involving a victim or
  206  witness under the age of 16 or who has an intellectual
  207  disability person with mental retardation; special protections.—
  208         (1) Upon motion of any party, upon motion of a parent,
  209  guardian, attorney, or guardian ad litem for a victim or witness
  210  child under the age of 16 or who has an intellectual disability
  211  person with mental retardation, or upon its own motion, the
  212  court may enter any order necessary to protect such a child
  213  under the age of 16 or person with mental retardation who is a
  214  victim or witness in any judicial proceeding or other official
  215  proceeding from severe emotional or mental harm due to the
  216  presence of the defendant if the victim or witness child or
  217  person with mental retardation is required to testify in open
  218  court. Such orders must shall relate to the taking of testimony
  219  and shall include, but are not be limited to:
  220         (a) Interviewing or the taking of depositions as part of a
  221  civil or criminal proceeding.
  222         (b) Examination and cross-examination for the purpose of
  223  qualifying as a witness or testifying in any proceeding.
  224         (c) The use of testimony taken outside of the courtroom,
  225  including proceedings under ss. 92.53 and 92.54.
  226         (2) In ruling upon the motion, the court shall take into
  227  consideration:
  228         (a) The age of the child, the nature of the offense or act,
  229  the relationship of the child to the parties in the case or to
  230  the defendant in a criminal action, the degree of emotional
  231  trauma that will result to the child as a consequence of the
  232  defendant’s presence, and any other fact that the court deems
  233  relevant; or
  234         (b) The age of the person who has an intellectual
  235  disability with mental retardation, the functional capacity of
  236  such the person with mental retardation, the nature of the
  237  offenses or act, the relationship of the person with mental
  238  retardation to the parties in the case or to the defendant in a
  239  criminal action, the degree of emotional trauma that will result
  240  to the person with mental retardation as a consequence of the
  241  defendant’s presence, and any other fact that the court deems
  242  relevant.
  243         (3) In addition to such other relief as is provided by law,
  244  the court may enter orders limiting the number of times that a
  245  child or a person who has an intellectual disability with mental
  246  retardation may be interviewed, prohibiting depositions of such
  247  a child or person with mental retardation, requiring the
  248  submission of questions prior to examination of the a child or
  249  person with mental retardation, setting the place and conditions
  250  for interviewing the a child or person with mental retardation
  251  or for conducting any other proceeding, or permitting or
  252  prohibiting the attendance of any person at any proceeding. The
  253  court shall enter any order necessary to protect the rights of
  254  all parties, including the defendant in any criminal action.
  255         Section 7. Subsection (1) of section 320.10, Florida
  256  Statutes, is amended to read:
  257         320.10 Exemptions.—
  258         (1) The provisions of s. 320.08 do not apply to:
  259         (a) Any motor vehicle or mobile home owned by, and operated
  260  exclusively for the personal use of, any member of the United
  261  States Armed Forces who is not a resident of this state and who
  262  is stationed in the state while in compliance with military or
  263  naval orders;
  264         (b) Any motor vehicle owned or operated exclusively by the
  265  Federal Government;
  266         (c) Any motor vehicle owned and operated exclusively for
  267  the benefit of the Boys’ Clubs of America, the National Audubon
  268  Society, the National Children’s Cardiac Hospital, any humane
  269  society, any nationally chartered veterans’ organization that
  270  maintains a state headquarters in this state, the Children’s
  271  Bible Mission, the Boy Scouts of America, the Girl Scouts of
  272  America, the Salvation Army, the American National Red Cross,
  273  the United Service Organization, any local member unit of the
  274  National Urban League which provides free services to municipal
  275  and county residents who are in need of such services, the Young
  276  Men’s Christian Association, the Young Men’s Hebrew Association,
  277  the Camp Fire Girls’ Council, the Young Women’s Christian
  278  Association, the Young Women’s Hebrew Association, any local
  279  member unit of the Arc of Florida Association for Retarded
  280  Citizens, the Children’s Home Society of Florida, or the
  281  Goodwill Industries. A not-for-profit organization named in this
  282  paragraph and its local affiliate organizations is shall be
  283  eligible for the exemption if it for so long as each maintains
  284  current articles of incorporation on file with the Department of
  285  State and qualifies as a not-for-profit organization under s.
  286  212.08;
  287         (d) Any motor vehicle owned and operated by a church,
  288  temple, or synagogue for exclusive use as a community service
  289  van or to transport passengers without compensation to religious
  290  services or for religious education;
  291         (e) Any motor vehicle owned and operated by the Civil Air
  292  Patrol or the United States Coast Guard Auxiliary;
  293         (f) Any mobile blood bank unit when operated as a nonprofit
  294  service by an organization;
  295         (g) Any mobile X-ray unit or truck or bus used exclusively
  296  for public health purposes;
  297         (h) Any school bus owned and operated by a nonprofit
  298  educational or religious corporation;
  299         (i) Any vehicle used by any of the various search and
  300  rescue units of the several counties for exclusive use as a
  301  search and rescue vehicle; and
  302         (j) Any motor vehicle used by a community transportation
  303  coordinator or a transportation operator as defined in part I of
  304  chapter 427, and which is used exclusively to transport
  305  transportation disadvantaged persons.
  306         Section 8. Paragraph (d) of subsection (3) of section
  307  383.14, Florida Statutes, is amended to read:
  308         383.14 Screening for metabolic disorders, other hereditary
  309  and congenital disorders, and environmental risk factors.—
  310         (3) DEPARTMENT OF HEALTH; POWERS AND DUTIES.—The department
  311  shall administer and provide certain services to implement the
  312  provisions of this section and shall:
  313         (d) Maintain a confidential registry of cases, including
  314  information of importance for the purpose of followup services
  315  to prevent intellectual disabilities mental retardation, to
  316  correct or ameliorate physical disabilities handicaps, and for
  317  epidemiologic studies, if indicated. Such registry shall be
  318  exempt from the provisions of s. 119.07(1).
  319  
  320  All provisions of this subsection must be coordinated with the
  321  provisions and plans established under this chapter, chapter
  322  411, and Pub. L. No. 99-457.
  323         Section 9. Subsection (9) and subsections (20) through (31)
  324  of section 393.063, Florida Statutes, are reordered and amended
  325  to read:
  326         393.063 Definitions.—For the purposes of this chapter, the
  327  term:
  328         (9) “Developmental disability” means a disorder or syndrome
  329  that is attributable to intellectual disability retardation,
  330  cerebral palsy, autism, spina bifida, or Prader-Willi syndrome;
  331  that manifests before the age of 18; and that constitutes a
  332  substantial handicap that can reasonably be expected to continue
  333  indefinitely.
  334         (21)(20) “Intermediate care facility for the
  335  developmentally disabled” or “ICF/DD” means a residential
  336  facility licensed and certified under pursuant to part VIII of
  337  chapter 400.
  338         (22)(21) “Medical/dental services” means medically
  339  necessary services that which are provided or ordered for a
  340  client by a person licensed under chapter 458, chapter 459, or
  341  chapter 466. Such services may include, but are not limited to,
  342  prescription drugs, specialized therapies, nursing supervision,
  343  hospitalization, dietary services, prosthetic devices, surgery,
  344  specialized equipment and supplies, adaptive equipment, and
  345  other services as required to prevent or alleviate a medical or
  346  dental condition.
  347         (23)(22) “Personal care services” means individual
  348  assistance with or supervision of essential activities of daily
  349  living for self-care, including ambulation, bathing, dressing,
  350  eating, grooming, and toileting, and other similar services that
  351  are incidental to the care furnished and essential to the
  352  health, safety, and welfare of the client if when there is no
  353  one else is available to perform those services.
  354         (24)(23) “Prader-Willi syndrome” means an inherited
  355  condition typified by neonatal hypotonia with failure to thrive,
  356  hyperphagia or an excessive drive to eat which leads to obesity
  357  usually at 18 to 36 months of age, mild to moderate mental
  358  retardation, hypogonadism, short stature, mild facial
  359  dysmorphism, and a characteristic neurobehavior.
  360         (25)(24) “Relative” means an individual who is connected by
  361  affinity or consanguinity to the client and who is 18 years of
  362  age or older.
  363         (26)(25) “Resident” means a any person who has a with
  364  developmental disability and resides disabilities residing at a
  365  residential facility, whether or not such person is a client of
  366  the agency.
  367         (27)(26) “Residential facility” means a facility providing
  368  room and board and personal care for persons who have with
  369  developmental disabilities.
  370         (28)(27) “Residential habilitation” means supervision and
  371  training with the acquisition, retention, or improvement in
  372  skills related to activities of daily living, such as personal
  373  hygiene skills, homemaking skills, and the social and adaptive
  374  skills necessary to enable the individual to reside in the
  375  community.
  376         (29)(28) “Residential habilitation center” means a
  377  community residential facility licensed under this chapter which
  378  provides habilitation services. The capacity of such a facility
  379  may shall not be fewer than nine residents. After October 1,
  380  1989, new residential habilitation centers may not be licensed
  381  and the licensed capacity for any existing residential
  382  habilitation center may not be increased.
  383         (30)(29) “Respite service” means appropriate, short-term,
  384  temporary care that is provided to a person who has a with
  385  developmental disability in order disabilities to meet the
  386  planned or emergency needs of the person or the family or other
  387  direct service provider.
  388         (31)(30) “Restraint” means a physical device, method, or
  389  drug used to control dangerous behavior.
  390         (a) A physical restraint is any manual method or physical
  391  or mechanical device, material, or equipment attached or
  392  adjacent to an the individual’s body so that he or she cannot
  393  easily remove the restraint and which restricts freedom of
  394  movement or normal access to one’s body.
  395         (b) A drug used as a restraint is a medication used to
  396  control the person’s behavior or to restrict his or her freedom
  397  of movement and is not a standard treatment for the person’s
  398  medical or psychiatric condition. Physically holding a person
  399  during a procedure to forcibly administer psychotropic
  400  medication is a physical restraint.
  401         (c) Restraint does not include physical devices, such as
  402  orthopedically prescribed appliances, surgical dressings and
  403  bandages, supportive body bands, or other physical holding when
  404  necessary for routine physical examinations and tests; for
  405  purposes of orthopedic, surgical, or other similar medical
  406  treatment; when used to provide support for the achievement of
  407  functional body position or proper balance; or when used to
  408  protect a person from falling out of bed.
  409         (20)(31)Intellectual disability” “Retardation” means
  410  significantly subaverage general intellectual functioning
  411  existing concurrently with deficits in adaptive behavior which
  412  that manifests before the age of 18 and can reasonably be
  413  expected to continue indefinitely. For the purposes of this
  414  definition, the term:
  415         (a) “Adaptive behavior” means the effectiveness or degree
  416  with which an individual meets the standards of personal
  417  independence and social responsibility expected of his or her
  418  age, cultural group, and community.
  419         (b) “Significantly subaverage general intellectual
  420  functioning,for the purpose of this definition, means
  421  performance that which is two or more standard deviations from
  422  the mean score on a standardized intelligence test specified in
  423  the rules of the agency. “Adaptive behavior,” for the purpose of
  424  this definition, means the effectiveness or degree with which an
  425  individual meets the standards of personal independence and
  426  social responsibility expected of his or her age, cultural
  427  group, and community.
  428  
  429  For purposes of the application of the criminal laws and
  430  procedural rules of this state to matters relating to pretrial,
  431  trial, sentencing, and any matters relating to the imposition
  432  and execution of the death penalty, the terms “intellectual
  433  disability” or “intellectually disabled” are interchangeable
  434  with and have the same meaning as the terms “mental
  435  retardation,” or “retardation” and “mentally retarded” as
  436  defined in s. 393.063 prior to July 1, 2010.
  437         Section 10. Subsection (1), paragraphs (c) and (d) of
  438  subsection (2), paragraphs (b) through (d) of subsection (3),
  439  paragraph (b) of subsection (4), paragraphs (b), (e), (f), and
  440  (g) of subsection (5), subsection (6), paragraph (d) of
  441  subsection (7), paragraph (b) of subsection (8), subsection
  442  (10), and paragraph (b) of subsection (12) of section 393.11,
  443  Florida Statutes, are amended to read:
  444         393.11 Involuntary admission to residential services.—
  445         (1) JURISDICTION.—If When a person has an intellectual
  446  disability is mentally retarded and requires involuntary
  447  admission to residential services provided by the agency, the
  448  circuit court of the county in which the person resides has
  449  shall have jurisdiction to conduct a hearing and enter an order
  450  involuntarily admitting the person in order for that the person
  451  to may receive the care, treatment, habilitation, and
  452  rehabilitation that which the person needs. For the purpose of
  453  identifying intellectual disability mental retardation,
  454  diagnostic capability shall be established by the agency. Except
  455  as otherwise specified, the proceedings under this section are
  456  shall be governed by the Florida Rules of Civil Procedure.
  457         (2) PETITION.—
  458         (c) The petition shall be verified and must shall:
  459         1. State the name, age, and present address of the
  460  commissioners and their relationship to the person who has an
  461  intellectual disability with mental retardation or autism;
  462         2. State the name, age, county of residence, and present
  463  address of the person who has an intellectual disability with
  464  mental retardation or autism;
  465         3. Allege that the commission believes that the person
  466  needs involuntary residential services and specify the factual
  467  information on which the belief is based;
  468         4. Allege that the person lacks sufficient capacity to give
  469  express and informed consent to a voluntary application for
  470  services and lacks the basic survival and self-care skills to
  471  provide for the person’s well-being or is likely to physically
  472  injure others if allowed to remain at liberty; and
  473         5. State which residential setting is the least restrictive
  474  and most appropriate alternative and specify the factual
  475  information on which the belief is based.
  476         (d) The petition shall be filed in the circuit court of the
  477  county in which the person who has the intellectual disability
  478  with mental retardation or autism resides.
  479         (3) NOTICE.—
  480         (b) If Whenever a motion or petition has been filed
  481  pursuant to s. 916.303 to dismiss criminal charges against a
  482  defendant who has an intellectual disability with retardation or
  483  autism, and a petition is filed to involuntarily admit the
  484  defendant to residential services under this section, the notice
  485  of the filing of the petition must shall also be given to the
  486  defendant’s attorney, the state attorney of the circuit from
  487  which the defendant was committed, and the agency.
  488         (c) The notice must shall state that a hearing shall be set
  489  to inquire into the need of the person who has an intellectual
  490  disability with mental retardation or autism for involuntary
  491  residential services. The notice must shall also state the date
  492  of the hearing on the petition.
  493         (d) The notice must shall state that the individual who has
  494  an intellectual disability with mental retardation or autism has
  495  the right to be represented by counsel of his or her own choice
  496  and that, if the person cannot afford an attorney, the court
  497  shall appoint one.
  498         (4) AGENCY PARTICIPATION.—
  499         (b) Following examination, the agency shall file a written
  500  report with the court at least not less than 10 working days
  501  before the date of the hearing. The report must be served on the
  502  petitioner, the person who has the intellectual disability with
  503  mental retardation, and the person’s attorney at the time the
  504  report is filed with the court.
  505         (5) EXAMINING COMMITTEE.—
  506         (b) The court shall appoint at least no fewer than three
  507  disinterested experts who have demonstrated to the court an
  508  expertise in the diagnosis, evaluation, and treatment of persons
  509  who have intellectual disabilities with mental retardation. The
  510  committee must include at least one licensed and qualified
  511  physician, one licensed and qualified psychologist, and one
  512  qualified professional who, at with a minimum, has of a masters
  513  degree in social work, special education, or vocational
  514  rehabilitation counseling, to examine the person and to testify
  515  at the hearing on the involuntary admission to residential
  516  services.
  517         (e) The committee shall prepare a written report for the
  518  court. The report must explicitly document the extent that the
  519  person meets the criteria for involuntary admission. The report,
  520  and expert testimony, must include, but not be limited to:
  521         1. The degree of the person’s intellectual disability
  522  mental retardation and whether, using diagnostic capabilities
  523  established by the agency, the person is eligible for agency
  524  services;
  525         2. Whether, because of the person’s degree of intellectual
  526  disability mental retardation, the person:
  527         a. Lacks sufficient capacity to give express and informed
  528  consent to a voluntary application for services pursuant to s.
  529  393.065;
  530         b. Lacks basic survival and self-care skills to such a
  531  degree that close supervision and habilitation in a residential
  532  setting is necessary and if not provided would result in a real
  533  and present threat of substantial harm to the person’s well
  534  being; or
  535         c. Is likely to physically injure others if allowed to
  536  remain at liberty.
  537         3. The purpose to be served by residential care;
  538         4. A recommendation on the type of residential placement
  539  which would be the most appropriate and least restrictive for
  540  the person; and
  541         5. The appropriate care, habilitation, and treatment.
  542         (f) The committee shall file the report with the court at
  543  least not less than 10 working days before the date of the
  544  hearing. The report must shall be served on the petitioner, the
  545  person who has the intellectual disability with mental
  546  retardation, the person’s attorney at the time the report is
  547  filed with the court, and the agency.
  548         (g) Members of the examining committee shall receive a
  549  reasonable fee to be determined by the court. The fees shall are
  550  to be paid from the general revenue fund of the county in which
  551  the person who has the intellectual disability with mental
  552  retardation resided when the petition was filed.
  553         (6) COUNSEL; GUARDIAN AD LITEM.—
  554         (a) The person who has the intellectual disability must
  555  with mental retardation shall be represented by counsel at all
  556  stages of the judicial proceeding. If In the event the person is
  557  indigent and cannot afford counsel, the court shall appoint a
  558  public defender at least not less than 20 working days before
  559  the scheduled hearing. The person’s counsel shall have full
  560  access to the records of the service provider and the agency. In
  561  all cases, the attorney shall represent the rights and legal
  562  interests of the person with mental retardation, regardless of
  563  who initiates may initiate the proceedings or pays pay the
  564  attorney’s fee.
  565         (b) If the attorney, during the course of his or her
  566  representation, reasonably believes that the person who has the
  567  intellectual disability with mental retardation cannot
  568  adequately act in his or her own interest, the attorney may seek
  569  the appointment of a guardian ad litem. A prior finding of
  570  incompetency is not required before a guardian ad litem is
  571  appointed pursuant to this section.
  572         (7) HEARING.—
  573         (d) The person who has the intellectual disability must
  574  with mental retardation shall be physically present throughout
  575  the entire proceeding. If the person’s attorney believes that
  576  the person’s presence at the hearing is not in his or her the
  577  person’s best interest, the person’s presence may be waived once
  578  the court has seen the person and the hearing has commenced.
  579         (8) ORDER.—
  580         (b) An order of involuntary admission to residential
  581  services may not be entered unless the court finds that:
  582         1. The person is intellectually disabled mentally retarded
  583  or autistic;
  584         2. Placement in a residential setting is the least
  585  restrictive and most appropriate alternative to meet the
  586  person’s needs; and
  587         3. Because of the person’s degree of intellectual
  588  disability mental retardation or autism, the person:
  589         a. Lacks sufficient capacity to give express and informed
  590  consent to a voluntary application for services pursuant to s.
  591  393.065 and lacks basic survival and self-care skills to such a
  592  degree that close supervision and habilitation in a residential
  593  setting is necessary and, if not provided, would result in a
  594  real and present threat of substantial harm to the person’s
  595  well-being; or
  596         b. Is likely to physically injure others if allowed to
  597  remain at liberty.
  598         (10) COMPETENCY.—
  599         (a) The issue of competency is shall be separate and
  600  distinct from a determination of the appropriateness of
  601  involuntary admission to residential services due to
  602  intellectual disability for a condition of mental retardation.
  603         (b) The issue of the competency of a person who has an
  604  intellectual disability with mental retardation for purposes of
  605  assigning guardianship shall be determined in a separate
  606  proceeding according to the procedures and requirements of
  607  chapter 744. The issue of the competency of a person who has an
  608  intellectual disability with mental retardation or autism for
  609  purposes of determining whether the person is competent to
  610  proceed in a criminal trial shall be determined in accordance
  611  with chapter 916.
  612         (12) APPEAL.—
  613         (b) The filing of an appeal by the person who has an
  614  intellectual disability stays with mental retardation shall stay
  615  admission of the person into residential care. The stay remains
  616  shall remain in effect during the pendency of all review
  617  proceedings in Florida courts until a mandate issues.
  618         Section 11. Subsection (18) of section 394.455, Florida
  619  Statutes, is amended to read:
  620         394.455 Definitions.—As used in this part, unless the
  621  context clearly requires otherwise, the term:
  622         (18) “Mental illness” means an impairment of the mental or
  623  emotional processes that exercise conscious control of one’s
  624  actions or of the ability to perceive or understand reality,
  625  which impairment substantially interferes with the a person’s
  626  ability to meet the ordinary demands of living, regardless of
  627  etiology. For the purposes of this part, the term does not
  628  include a retardation or developmental disability as defined in
  629  chapter 393, intoxication, or conditions manifested only by
  630  antisocial behavior or substance abuse impairment.
  631         Section 12. Subsections (3) through (13) of section
  632  400.960, Florida Statutes, are amended to read:
  633         400.960 Definitions.—As used in this part, the term:
  634         (3)“Autism” has the same meaning as in s. 393.063.
  635         (4)“Cerebral palsy” has the same meaning as in s. 393.063.
  636         (3)(5) “Client” means any person determined by the Agency
  637  for Persons with Disabilities to be eligible for developmental
  638  services.
  639         (4)(6)Developmentally disabled” “developmental
  640  disability” has the same meaning as “developmental disability”
  641  as that term is defined in s. 393.063.
  642         (5)(7) “Direct service provider” means a person 18 years of
  643  age or older who has direct contact with individuals who have
  644  with developmental disabilities and who is unrelated to such the
  645  individuals with developmental disabilities.
  646         (6)(8) “Intermediate care facility for the developmentally
  647  disabled” means a residential facility licensed and certified in
  648  accordance with state law, and certified by the Federal
  649  Government, pursuant to the Social Security Act, as a provider
  650  of Medicaid services to persons who have with developmental
  651  disabilities.
  652         (9)“Prader-Willi syndrome” has the same meaning as in s.
  653  393.063.
  654         (7)(10)(a) “Restraint” means a physical device, method, or
  655  drug used to control behavior.
  656         (a) A physical restraint is any manual method or physical
  657  or mechanical device, material, or equipment attached or
  658  adjacent to the individual’s body so that he or she cannot
  659  easily remove the restraint and which restricts freedom of
  660  movement or normal access to one’s body.
  661         (b) A drug used as a restraint is a medication used to
  662  control the person’s behavior or to restrict his or her freedom
  663  of movement. Physically holding a person during a procedure to
  664  forcibly administer psychotropic medication is a physical
  665  restraint.
  666         (c) Restraint does not include physical devices, such as
  667  orthopedically prescribed appliances, surgical dressings and
  668  bandages, supportive body bands, or other physical holding when
  669  necessary for routine physical examinations and tests; for
  670  purposes of orthopedic, surgical, or other similar medical
  671  treatment; when used to provide support for the achievement of
  672  functional body position or proper balance; or when used to
  673  protect a person from falling out of bed.
  674         (11) “Retardation” has the same meaning as in s. 393.063.
  675         (8)(12) “Seclusion” means the physical segregation of a
  676  person in any fashion or the involuntary isolation of a person
  677  in a room or area from which the person is prevented from
  678  leaving. The prevention may be by physical barrier or by a staff
  679  member who is acting in a manner, or who is physically situated,
  680  so as to prevent the person from leaving the room or area. For
  681  purposes of this part, the term does not mean isolation due to a
  682  person’s medical condition or symptoms.
  683         (13)“Spina bifida” has the same meaning as in s. 393.063.
  684         Section 13. Subsection (12) of section 408.032, Florida
  685  Statutes, is amended to read:
  686         408.032 Definitions relating to Health Facility and
  687  Services Development Act.—As used in ss. 408.031-408.045, the
  688  term:
  689         (12) “Intermediate care facility for the developmentally
  690  disabled” means a residential facility licensed under part VIII
  691  of chapter 400 chapter 393 and certified by the Federal
  692  Government pursuant to the Social Security Act as a provider of
  693  Medicaid services to persons who are mentally retarded or who
  694  have a related condition.
  695         Section 14. Subsection (8) of section 409.908, Florida
  696  Statutes, is amended to read
  697         (8) A provider of home-based or community-based services
  698  rendered pursuant to a federally approved waiver shall be
  699  reimbursed based on an established or negotiated rate for each
  700  service. These rates shall be established according to an
  701  analysis of the expenditure history and prospective budget
  702  developed by each contract provider participating in the waiver
  703  program, or under any other methodology adopted by the agency
  704  and approved by the Federal Government in accordance with the
  705  waiver. Privately owned and operated community-based residential
  706  facilities which meet agency requirements and which formerly
  707  received Medicaid reimbursement for the optional intermediate
  708  care facility for the intellectually disabled mentally retarded
  709  service may participate in the developmental services waiver as
  710  part of a home-and-community-based continuum of care for
  711  Medicaid recipients who receive waiver services.
  712         Section 15. Subsection (17) of section 413.20, Florida
  713  Statutes, is amended to read:
  714         413.20 Definitions.—As used in this part, the term:
  715         (17) “Person who has a significant disability” means an
  716  individual who has a disability that is a severe physical or
  717  mental impairment that seriously limits one or more functional
  718  capacities, such as mobility, communication, self-care, self
  719  direction, interpersonal skills, work tolerance, or work skills,
  720  in terms of an employment outcome; whose vocational
  721  rehabilitation may be expected to require multiple vocational
  722  rehabilitation services over an extended period of time; and who
  723  has one or more physical or mental disabilities resulting from
  724  amputation, arthritis, autism, blindness, burn injury, cancer,
  725  cerebral palsy, cystic fibrosis, deafness, head injury, heart
  726  disease, hemiplegia, hemophilia, respiratory or pulmonary
  727  dysfunction, intellectual disability mental retardation, mental
  728  illness, multiple sclerosis, muscular dystrophy, musculoskeletal
  729  disorder, neurological disorder, including stroke and epilepsy,
  730  paraplegia, quadriplegia, or other spinal cord condition,
  731  sickle-cell anemia, specific learning disability, end-stage
  732  renal disease, or another disability or a combination of
  733  disabilities which that is determined, after an assessment for
  734  determining eligibility and vocational rehabilitation needs, to
  735  cause comparable substantial functional limitation.
  736         Section 16. Paragraph (a) of subsection (6) of section
  737  440.49, Florida Statutes, is amended to read:
  738         440.49 Limitation of liability for subsequent injury
  739  through Special Disability Trust Fund.—
  740         (6) EMPLOYER KNOWLEDGE, EFFECT ON REIMBURSEMENT.—
  741         (a) Reimbursement is not allowed under this section unless
  742  it is established that the employer knew of the preexisting
  743  permanent physical impairment before prior to the occurrence of
  744  the subsequent injury or occupational disease, and that the
  745  permanent physical impairment is one of the following:
  746         1. Epilepsy.
  747         2. Diabetes.
  748         3. Cardiac disease.
  749         4. Amputation of foot, leg, arm, or hand.
  750         5. Total loss of sight of one or both eyes or a partial
  751  loss of corrected vision of more than 75 percent bilaterally.
  752         6. Residual disability from poliomyelitis.
  753         7. Cerebral palsy.
  754         8. Multiple sclerosis.
  755         9. Parkinson’s disease.
  756         10. Meniscectomy.
  757         11. Patellectomy.
  758         12. Ruptured cruciate ligament.
  759         13. Hemophilia.
  760         14. Chronic osteomyelitis.
  761         15. Surgical or spontaneous fusion of a major weight
  762  bearing joint.
  763         16. Hyperinsulinism.
  764         17. Muscular dystrophy.
  765         18. Thrombophlebitis.
  766         19. Herniated intervertebral disk.
  767         20. Surgical removal of an intervertebral disk or spinal
  768  fusion.
  769         21. One or more back injuries or a disease process of the
  770  back resulting in disability over a total of 120 or more days,
  771  if substantiated by a doctor’s opinion that there was a
  772  preexisting impairment to the claimant’s back.
  773         22. Total deafness.
  774         23. Intellectual disability if Mental retardation, provided
  775  the employee’s intelligence quotient is such that she or he
  776  falls within the lowest 2 percentile of the general population.
  777  However, it shall not be necessary for the employer does not
  778  need to know the employee’s actual intelligence quotient or
  779  actual relative ranking in relation to the intelligence quotient
  780  of the general population.
  781         24. Any permanent physical condition that which, before
  782  prior to the industrial accident or occupational disease,
  783  constitutes a 20 percent 20-percent impairment of a member or of
  784  the body as a whole.
  785         25. Obesity if, provided the employee is 30 percent or more
  786  over the average weight designated for her or his height and age
  787  in the Table of Average Weight of Americans by Height and Age
  788  prepared by the Society of Actuaries using data from the 1979
  789  Build and Blood Pressure Study.
  790         26. Any permanent physical impairment as provided defined
  791  in s. 440.15(3) which is a result of a prior industrial accident
  792  with the same employer or the employer’s parent company,
  793  subsidiary, sister company, or affiliate located within the
  794  geographical boundaries of this state.
  795         Section 17. Paragraph (g) of subsection (1) of section
  796  499.0054, Florida Statutes, is amended to read:
  797         499.0054 Advertising and labeling of drugs, devices, and
  798  cosmetics; exemptions.—
  799         (1) It is a violation of the Florida Drug and Cosmetic Act
  800  to perform or cause the performance of any of the following
  801  acts:
  802         (g) The advertising of any drug or device represented to
  803  have any effect in any of the following conditions, disorders,
  804  diseases, or processes:
  805         1. Blood disorders.
  806         2. Bone or joint diseases.
  807         3. Kidney diseases or disorders.
  808         4. Cancer.
  809         5. Diabetes.
  810         6. Gall bladder diseases or disorders.
  811         7. Heart and vascular diseases.
  812         8. High blood pressure.
  813         9. Diseases or disorders of the ear or auditory apparatus,
  814  including hearing loss or deafness.
  815         10. Mental disease or intellectual disability mental
  816  retardation.
  817         11. Paralysis.
  818         12. Prostate gland disorders.
  819         13. Conditions of the scalp affecting hair loss.
  820         14. Baldness.
  821         15. Endocrine disorders.
  822         16. Sexual impotence.
  823         17. Tumors.
  824         18. Venereal diseases.
  825         19. Varicose ulcers.
  826         20. Breast enlargement.
  827         21. Purifying blood.
  828         22. Metabolic disorders.
  829         23. Immune system disorders or conditions affecting the
  830  immune system.
  831         24. Extension of life expectancy.
  832         25. Stress and tension.
  833         26. Brain stimulation or performance.
  834         27. The body’s natural defense mechanisms.
  835         28. Blood flow.
  836         29. Depression.
  837         30. Human immunodeficiency virus or acquired immune
  838  deficiency syndrome or related disorders or conditions.
  839         Section 18. Section 514.072, Florida Statutes, is amended
  840  to read:
  841         514.072 Certification of swimming instructors for people
  842  who have developmental disabilities required.—Any person working
  843  at a swimming pool who holds himself or herself out as a
  844  swimming instructor specializing in training people who have
  845  developmental disabilities, as defined in s. 393.063(10), may be
  846  certified by the Dan Marino Foundation, Inc., in addition to
  847  being certified under s. 514.071. The Dan Marino Foundation,
  848  Inc., must develop certification requirements and a training
  849  curriculum for swimming instructors for people who have
  850  developmental disabilities and must submit the certification
  851  requirements to the Department of Health for review by January
  852  1, 2007. A person certified under s. 514.071 before July 1,
  853  2007, must meet the additional certification requirements of
  854  this section before January 1, 2008. A person certified under s.
  855  514.071 on or after July 1, 2007, must meet the additional
  856  certification requirements of this section within 6 months after
  857  receiving certification under s. 514.071.
  858         Section 19. Section 627.6041, Florida Statutes, is amended
  859  to read:
  860         627.6041 Handicapped Children with disabilities;
  861  continuation of coverage.—
  862         (1) A hospital or medical expense insurance policy or
  863  health care services plan contract that is delivered or issued
  864  for delivery in this state and that provides that coverage of a
  865  dependent child terminates will terminate upon attainment of the
  866  limiting age for dependent children specified in the policy or
  867  contract must shall also provide in substance that attainment of
  868  the limiting age does not terminate the coverage of the child
  869  while the child continues to be both:
  870         (a)(1) Incapable of self-sustaining employment by reason of
  871  an intellectual or mental retardation or physical disability.
  872  handicap; and
  873         (b)(2) Chiefly dependent upon the policyholder or
  874  subscriber for support and maintenance.
  875         (2) If a claim is denied under a policy or contract for the
  876  stated reason that the child has attained the limiting age for
  877  dependent children specified in the policy or contract, the
  878  notice of denial must state that the policyholder has the burden
  879  of establishing that the child continues to meet the criteria
  880  specified in subsection subsections (1) and (2).
  881         Section 20. Section 627.6615, Florida Statutes, is amended
  882  to read:
  883         627.6615 Handicapped Children with disabilities;
  884  continuation of coverage under group policy.—
  885         (1) A group health insurance policy or health care services
  886  plan contract that is delivered or issued for delivery in this
  887  state and that provides that coverage of a dependent child of an
  888  employee or other member of the covered group terminates will
  889  terminate upon attainment of the limiting age for dependent
  890  children specified in the policy or contract must shall also
  891  provide in substance that attainment of the limiting age does
  892  not terminate the coverage of the child while the child
  893  continues to be both:
  894         (a)(1) Incapable of self-sustaining employment by reason of
  895  an intellectual mental retardation or physical disability.
  896  handicap; and
  897         (b)(2) Chiefly dependent upon the employee or member for
  898  support and maintenance.
  899         (2) If a claim is denied under a policy or contract for the
  900  stated reason that the child has attained the limiting age for
  901  dependent children specified in the policy or contract, the
  902  notice of denial must state that the certificateholder or
  903  subscriber has the burden of establishing that the child
  904  continues to meet the criteria specified in subsection
  905  subsections (1) and (2).
  906         Section 21. Subsection (29) of section 641.31, Florida
  907  Statutes, is amended to read:
  908         641.31 Health maintenance contracts.—
  909         (29) If a health maintenance contract provides that
  910  coverage of a dependent child of the subscriber terminates will
  911  terminate upon attainment of the limiting age for dependent
  912  children which is specified in the contract, the contract must
  913  also provide in substance that attainment of the limiting age
  914  does not terminate the coverage of the child while the child
  915  continues to be both:
  916         (a) Incapable of self-sustaining employment by reason of an
  917  intellectual mental retardation or physical disability.
  918  handicap, and
  919         (b) Chiefly dependent upon the employee or member for
  920  support and maintenance.
  921  
  922  If the claim is denied under a contract for the stated reason
  923  that the child has attained the limiting age for dependent
  924  children specified in the contract, the notice or denial must
  925  state that the subscriber has the burden of establishing that
  926  the child continues to meet the criteria specified in this
  927  subsection paragraphs (a) and (b).
  928         Section 22. Subsection (4) of section 650.05, Florida
  929  Statutes, is amended to read:
  930         650.05 Plans for coverage of employees of political
  931  subdivisions.—
  932         (4)(a) Notwithstanding any other provision of this chapter,
  933  effective January 1, 1972, all state political subdivisions
  934  receiving financial aid which that provide social security
  935  coverage for their employees pursuant to the provisions of this
  936  chapter and the provisions of the various retirement systems as
  937  authorized by law shall, in addition to other purposes, use
  938  utilize all grants-in-aid and other revenue received from the
  939  state to pay the employer’s share of social security cost.
  940         (b) The grants-in-aid and other revenue referred to in
  941  paragraph (a) specifically include, but are not limited to,
  942  minimum foundation program grants to public school districts and
  943  community colleges; gasoline, motor fuel, cigarette, racing, and
  944  insurance premium taxes distributed to political subdivisions;
  945  and amounts specifically appropriated as grants-in-aid for
  946  mental health, intellectual disabilities mental retardation, and
  947  mosquito control programs.
  948         Section 23. Subsection (1) of section 765.204, Florida
  949  Statutes, is amended to read:
  950         765.204 Capacity of principal; procedure.—
  951         (1) A principal is presumed to be capable of making health
  952  care decisions for herself or himself unless she or he is
  953  determined to be incapacitated. Incapacity may not be inferred
  954  from the person’s voluntary or involuntary hospitalization for
  955  mental illness or from her or his intellectual disability mental
  956  retardation.
  957         Section 24. Section 849.04, Florida Statutes, is amended to
  958  read:
  959         849.04 Permitting minors and persons under guardianship to
  960  gamble.—Whoever being The proprietor, owner, or keeper of any E.
  961  O., keno or pool table, or billiard table, wheel of fortune, or
  962  other game of chance, kept for the purpose of betting, who
  963  willfully and knowingly allows a any minor or any person who is
  964  mentally incompetent or under guardianship to play at such game
  965  or to bet on such game of chance; or whoever aids or abets or
  966  otherwise encourages such playing or betting of any money or
  967  other valuable thing upon the result of such game of chance by a
  968  any minor or any person who is mentally incompetent or under
  969  guardianship, commits shall be guilty of a felony of the third
  970  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  971  775.084. For the purpose of this section, the term aperson who
  972  is mentally incompetent personmeans a person is one who
  973  because of mental illness, intellectual disability mental
  974  retardation, senility, excessive use of drugs or alcohol, or
  975  other mental incapacity is incapable of either managing his or
  976  her property or caring for himself or herself or both.
  977         Section 25. Section 914.16, Florida Statutes, is amended to
  978  read:
  979         914.16 Child abuse and sexual abuse of victims under age 16
  980  or who has an intellectual disability persons with mental
  981  retardation; limits on interviews.—The chief judge of each
  982  judicial circuit, after consultation with the state attorney and
  983  the public defender for the judicial circuit, the appropriate
  984  chief law enforcement officer, and any other person deemed
  985  appropriate by the chief judge, shall provide by order
  986  reasonable limits on the number of interviews which that a
  987  victim of a violation of s. 794.011, s. 800.04, s. 827.03, or s.
  988  847.0135(5) who is under 16 years of age or a victim of a
  989  violation of s. 794.011, s. 800.02, s. 800.03, or s. 825.102 who
  990  has an intellectual disability is a person with mental
  991  retardation as defined in s. 393.063 must submit to for law
  992  enforcement or discovery purposes. The order shall, To the
  993  extent possible, the order must protect the victim from the
  994  psychological damage of repeated interrogations while preserving
  995  the rights of the public, the victim, and the person charged
  996  with the violation.
  997         Section 26. Section 914.17, Florida Statutes, is amended to
  998  read:
  999         914.17 Appointment of advocate for victims or witnesses who
 1000  are minors or intellectually disabled persons with mental
 1001  retardation.—
 1002         (1) A guardian ad litem or other advocate shall be
 1003  appointed by the court to represent a minor in any criminal
 1004  proceeding if the minor is a victim of or witness to child abuse
 1005  or neglect, or if the minor is a victim of a sexual offense, or
 1006  a witness to a sexual offense committed against another minor.
 1007  The court may appoint a guardian ad litem or other advocate in
 1008  any other criminal proceeding in which a minor is involved as
 1009  either a victim or a witness. The guardian ad litem or other
 1010  advocate shall have full access to all evidence and reports
 1011  introduced during the proceedings, may interview witnesses, may
 1012  make recommendations to the court, shall be noticed and have the
 1013  right to appear on behalf of the minor at all proceedings, and
 1014  may request additional examinations by medical doctors,
 1015  psychiatrists, or psychologists. It is the duty of The guardian
 1016  ad litem or other advocate shall to perform the following
 1017  services:
 1018         (a) To Explain, in language understandable to the minor,
 1019  all legal proceedings in which the minor is shall be involved;
 1020         (b) To Act, as a friend of the court, to advise the judge,
 1021  whenever appropriate, of the minor’s ability to understand and
 1022  cooperate with any court proceeding; and
 1023         (c) To Assist the minor and the minor’s family in coping
 1024  with the emotional effects of the crime and subsequent criminal
 1025  proceedings in which the minor is involved.
 1026         (2) An advocate shall be appointed by the court to
 1027  represent a person who has an intellectual disability with
 1028  mental retardation as defined in s. 393.063 in any criminal
 1029  proceeding if the person with mental retardation is a victim of
 1030  or witness to abuse or neglect, or if the person with mental
 1031  retardation is a victim of a sexual offense, or a witness to a
 1032  sexual offense committed against a minor or person who has an
 1033  intellectual disability with mental retardation. The court may
 1034  appoint an advocate in any other criminal proceeding in which
 1035  such a person with mental retardation is involved as either a
 1036  victim or a witness. The advocate shall have full access to all
 1037  evidence and reports introduced during the proceedings, may
 1038  interview witnesses, may make recommendations to the court,
 1039  shall be noticed and have the right to appear on behalf of the
 1040  person with mental retardation at all proceedings, and may
 1041  request additional examinations by medical doctors,
 1042  psychiatrists, or psychologists. It is the duty of The advocate
 1043  shall to perform the following services:
 1044         (a) To Explain, in language understandable to the person
 1045  with mental retardation, all legal proceedings in which the
 1046  person is shall be involved;
 1047         (b) To Act, as a friend of the court, to advise the judge,
 1048  whenever appropriate, of the person’s person with mental
 1049  retardation’s ability to understand and cooperate with any court
 1050  proceedings; and
 1051         (c) To assist the person with mental retardation and the
 1052  person’s family in coping with the emotional effects of the
 1053  crime and subsequent criminal proceedings in which the person
 1054  with mental retardation is involved.
 1055         (3) Any person participating in a judicial proceeding as a
 1056  guardian ad litem or other advocate is shall be presumed prima
 1057  facie to be acting in good faith and in so doing is shall be
 1058  immune from any liability, civil or criminal, which that
 1059  otherwise might be incurred or imposed.
 1060         Section 27. Subsections (1), (2), and (3) of section
 1061  916.105, Florida Statutes, are amended to read:
 1062         916.105 Legislative intent.—
 1063         (1) It is the intent of the Legislature that the Department
 1064  of Children and Family Services and the Agency for Persons with
 1065  Disabilities, as appropriate, establish, locate, and maintain
 1066  separate and secure forensic facilities and programs for the
 1067  treatment or training of defendants who have been charged with a
 1068  felony and who have been found to be incompetent to proceed due
 1069  to their mental illness, intellectual disability mental
 1070  retardation, or autism, or who have been acquitted of a felony
 1071  by reason of insanity, and who, while still under the
 1072  jurisdiction of the committing court, are committed to the
 1073  department or agency under the provisions of this chapter. Such
 1074  facilities must shall be sufficient to accommodate the number of
 1075  defendants committed under the conditions noted above. Except
 1076  for those defendants found by the department or agency to be
 1077  appropriate for treatment or training in a civil facility or
 1078  program pursuant to subsection (3), forensic facilities must
 1079  shall be designed and administered so that ingress and egress,
 1080  together with other requirements of this chapter, may be
 1081  strictly controlled by staff responsible for security in order
 1082  to protect the defendant, facility personnel, other clients, and
 1083  citizens in adjacent communities.
 1084         (2) It is the intent of the Legislature that treatment or
 1085  training programs for defendants who are found to have mental
 1086  illness, intellectual disability mental retardation, or autism
 1087  and are involuntarily committed to the department or agency, and
 1088  who are still under the jurisdiction of the committing court, be
 1089  provided in a manner, subject to security requirements and other
 1090  mandates of this chapter, which ensures as to ensure the rights
 1091  of the defendants as provided in this chapter.
 1092         (3) It is the intent of the Legislature that evaluation and
 1093  services to defendants who have mental illness, intellectual
 1094  disability mental retardation, or autism be provided in
 1095  community settings, in community residential facilities, or in
 1096  civil facilities, whenever this is a feasible alternative to
 1097  treatment or training in a state forensic facility.
 1098         Section 28. Subsections (10) through (17) of section
 1099  916.106, Florida Statutes, are reordered and amended to read:
 1100         916.106 Definitions.—For the purposes of this chapter, the
 1101  term:
 1102         (10) “Forensic facility” means a separate and secure
 1103  facility established within the department or agency to serve
 1104  forensic clients. A separate and secure facility means a
 1105  security-grade building for the purpose of separately housing
 1106  persons who have mental illness from persons who have
 1107  intellectual disabilities with retardation or autism and
 1108  separately housing persons who have been involuntarily committed
 1109  pursuant to this chapter from nonforensic residents.
 1110         (11) “Incompetent to proceed” means unable to proceed at
 1111  any material stage of a criminal proceeding, which includes
 1112  shall include trial of the case, pretrial hearings involving
 1113  questions of fact on which the defendant might be expected to
 1114  testify, entry of a plea, proceedings for violation of probation
 1115  or violation of community control, sentencing, and hearings on
 1116  issues regarding a defendant’s failure to comply with court
 1117  orders or conditions or other matters in which the mental
 1118  competence of the defendant is necessary for a just resolution
 1119  of the issues being considered.
 1120         (12) “Institutional security personnel” means the staff of
 1121  forensic facilities who meet or exceed the requirements of s.
 1122  943.13 and who are responsible for providing security,
 1123  protecting clients and personnel, enforcing rules, preventing
 1124  and investigating unauthorized activities, and safeguarding the
 1125  interests of residents citizens in the surrounding communities.
 1126         (14)(13) “Mental illness” means an impairment of the
 1127  emotional processes that exercise conscious control of one’s
 1128  actions, or of the ability to perceive or understand reality,
 1129  which impairment substantially interferes with the a defendant’s
 1130  ability to meet the ordinary demands of living. For the purposes
 1131  of this chapter, the term does not apply to defendants who have
 1132  only an intellectual disability with only mental retardation or
 1133  autism and does not include intoxication or conditions
 1134  manifested only by antisocial behavior or substance abuse
 1135  impairment.
 1136         (15)(14) “Restraint” means a physical device, method, or
 1137  drug used to control dangerous behavior.
 1138         (a) A physical restraint is any manual method or physical
 1139  or mechanical device, material, or equipment attached or
 1140  adjacent to a person’s body so that he or she cannot easily
 1141  remove the restraint and that restricts freedom of movement or
 1142  normal access to one’s body.
 1143         (b) A drug used as a restraint is a medication used to
 1144  control the person’s behavior or to restrict his or her freedom
 1145  of movement and not part of the standard treatment regimen of
 1146  the person with a diagnosed mental illness who is a client of
 1147  the department. Physically holding a person during a procedure
 1148  to forcibly administer psychotropic medication is a physical
 1149  restraint.
 1150         (c) Restraint does not include physical devices, such as
 1151  orthopedically prescribed appliances, surgical dressings and
 1152  bandages, supportive body bands, or other physical holding when
 1153  necessary for routine physical examinations and tests; for
 1154  purposes of orthopedic, surgical, or other similar medical
 1155  treatment; when used to provide support for the achievement of
 1156  functional body position or proper balance; or when used to
 1157  protect a person from falling out of bed.
 1158         (13)(15)“Intellectual disability” “Retardation” has the
 1159  same meaning as in s. 393.063.
 1160         (16) “Seclusion” means the physical segregation of a person
 1161  in any fashion or the involuntary isolation of a person in a
 1162  room or area from which the person is prevented from leaving.
 1163  The prevention may be by physical barrier or by a staff member
 1164  who is acting in a manner, or who is physically situated, so as
 1165  to prevent the person from leaving the room or area. For
 1166  purposes of this chapter, the term does not mean isolation due
 1167  to a person’s medical condition or symptoms, the confinement in
 1168  a forensic facility to a bedroom or area during normal hours of
 1169  sleep when there is not an active order for seclusion, or during
 1170  an emergency such as a riot or hostage situation when clients
 1171  may be temporarily placed in their rooms for their own safety.
 1172         (17) “Social service professional” means a person whose
 1173  minimum qualifications include a bachelor’s degree and at least
 1174  2 years of social work, clinical practice, special education,
 1175  habilitation, or equivalent experience working directly with
 1176  persons who have intellectual disabilities with retardation,
 1177  autism, or other developmental disabilities.
 1178         Section 29. Paragraph (a) of subsection (1) and paragraph
 1179  (a) of subsection (3) of section 916.107, Florida Statutes, are
 1180  amended to read:
 1181         916.107 Rights of forensic clients.—
 1182         (1) RIGHT TO INDIVIDUAL DIGNITY.—
 1183         (a) The policy of the state is that the individual dignity
 1184  of the client shall be respected at all times and upon all
 1185  occasions, including any occasion when the forensic client is
 1186  detained, transported, or treated. Clients with mental illness,
 1187  intellectual disability retardation, or autism and who are
 1188  charged with committing felonies shall receive appropriate
 1189  treatment or training. In a criminal case involving a client who
 1190  has been adjudicated incompetent to proceed or not guilty by
 1191  reason of insanity, a jail may be used as an emergency facility
 1192  for up to 15 days following the date the department or agency
 1193  receives a completed copy of the court commitment order
 1194  containing all documentation required by the applicable Florida
 1195  Rules of Criminal Procedure. For a forensic client who is held
 1196  in a jail awaiting admission to a facility of the department or
 1197  agency, evaluation and treatment or training may be provided in
 1198  the jail by the local community mental health provider for
 1199  mental health services, by the developmental disabilities
 1200  program for persons with intellectual disability retardation or
 1201  autism, the client’s physician or psychologist, or any other
 1202  appropriate program until the client is transferred to a civil
 1203  or forensic facility.
 1204         (3) RIGHT TO EXPRESS AND INFORMED CONSENT.—
 1205         (a) A forensic client shall be asked to give express and
 1206  informed written consent for treatment. If a client refuses such
 1207  treatment as is deemed necessary and essential by the client’s
 1208  multidisciplinary treatment team for the appropriate care of the
 1209  client, such treatment may be provided under the following
 1210  circumstances:
 1211         1. In an emergency situation in which there is immediate
 1212  danger to the safety of the client or others, such treatment may
 1213  be provided upon the written order of a physician for a period
 1214  not to exceed 48 hours, excluding weekends and legal holidays.
 1215  If, after the 48-hour period, the client has not given express
 1216  and informed consent to the treatment initially refused, the
 1217  administrator or designee of the civil or forensic facility
 1218  shall, within 48 hours, excluding weekends and legal holidays,
 1219  petition the committing court or the circuit court serving the
 1220  county in which the facility is located, at the option of the
 1221  facility administrator or designee, for an order authorizing the
 1222  continued treatment of the client. In the interim, the need for
 1223  treatment shall be reviewed every 48 hours and may be continued
 1224  without the consent of the client upon the continued written
 1225  order of a physician who has determined that the emergency
 1226  situation continues to present a danger to the safety of the
 1227  client or others.
 1228         2. In a situation other than an emergency situation, the
 1229  administrator or designee of the facility shall petition the
 1230  court for an order authorizing necessary and essential treatment
 1231  for the client. The order shall allow such treatment for a
 1232  period not to exceed 90 days following the date of the entry of
 1233  the order. Unless the court is notified in writing that the
 1234  client has provided express and informed consent in writing or
 1235  that the client has been discharged by the committing court, the
 1236  administrator or designee shall, prior to the expiration of the
 1237  initial 90-day order, petition the court for an order
 1238  authorizing the continuation of treatment for another 90-day
 1239  period. This procedure shall be repeated until the client
 1240  provides consent or is discharged by the committing court.
 1241         3. At the hearing on the issue of whether the court should
 1242  enter an order authorizing treatment for which a client was
 1243  unable to or refused to give express and informed consent, the
 1244  court shall determine by clear and convincing evidence that the
 1245  client has mental illness, intellectual disability retardation,
 1246  or autism, that the treatment not consented to is essential to
 1247  the care of the client, and that the treatment not consented to
 1248  is not experimental and does not present an unreasonable risk of
 1249  serious, hazardous, or irreversible side effects. In arriving at
 1250  the substitute judgment decision, the court must consider at
 1251  least the following factors:
 1252         a. The client’s expressed preference regarding treatment;
 1253         b. The probability of adverse side effects;
 1254         c. The prognosis without treatment; and
 1255         d. The prognosis with treatment.
 1256  
 1257  The hearing shall be as convenient to the client as may be
 1258  consistent with orderly procedure and shall be conducted in
 1259  physical settings not likely to be injurious to the client’s
 1260  condition. The court may appoint a general or special magistrate
 1261  to preside at the hearing. The client or the client’s guardian,
 1262  and the representative, shall be provided with a copy of the
 1263  petition and the date, time, and location of the hearing. The
 1264  client has the right to have an attorney represent him or her at
 1265  the hearing, and, if the client is indigent, the court shall
 1266  appoint the office of the public defender to represent the
 1267  client at the hearing. The client may testify or not, as he or
 1268  she chooses, and has the right to cross-examine witnesses and
 1269  may present his or her own witnesses.
 1270         Section 30. The Division of Statutory Revision is requested
 1271  to rename part III of chapter 916, Florida Statutes, consisting
 1272  of ss. 916.301-916.304, as “Forensic Services for Persons who
 1273  are Intellectually Disabled or Autistic.”
 1274         Section 31. Subsections (1) and (2) of section 916.301,
 1275  Florida Statutes, are amended to read:
 1276         916.301 Appointment of experts.—
 1277         (1) All evaluations ordered by the court under this part
 1278  must be conducted by qualified experts who have expertise in
 1279  evaluating persons who have an intellectual disability with
 1280  retardation or autism. The agency shall maintain and provide the
 1281  courts annually with a list of available retardation and autism
 1282  professionals who are appropriately licensed and qualified to
 1283  perform evaluations of defendants alleged to be incompetent to
 1284  proceed due to intellectual disability retardation or autism.
 1285  The courts may use professionals from this list when appointing
 1286  experts and ordering evaluations under this part.
 1287         (2) If a defendant’s suspected mental condition is
 1288  intellectual disability retardation or autism, the court shall
 1289  appoint the following:
 1290         (a) At least one, or at the request of any party, two
 1291  experts to evaluate whether the defendant meets the definition
 1292  of intellectual disability retardation or autism and, if so,
 1293  whether the defendant is competent to proceed; and
 1294         (b) A psychologist selected by the agency who is licensed
 1295  or authorized by law to practice in this state, with experience
 1296  in evaluating persons suspected of having an intellectual
 1297  disability retardation or autism, and a social service
 1298  professional, with experience in working with persons who have
 1299  an intellectual disability with retardation or autism.
 1300         1. The psychologist shall evaluate whether the defendant
 1301  meets the definition of intellectual disability retardation or
 1302  autism and, if so, whether the defendant is incompetent to
 1303  proceed due to intellectual disability retardation or autism.
 1304         2. The social service professional shall provide a social
 1305  and developmental history of the defendant.
 1306         Section 32. Subsections (1), (2), and (4) of section
 1307  916.3012, Florida Statutes, are amended to read:
 1308         916.3012 Mental competence to proceed.—
 1309         (1) A defendant whose suspected mental condition is
 1310  intellectual disability retardation or autism is incompetent to
 1311  proceed within the meaning of this chapter if the defendant does
 1312  not have sufficient present ability to consult with the
 1313  defendant’s lawyer with a reasonable degree of rational
 1314  understanding or if the defendant has no rational, as well as
 1315  factual, understanding of the proceedings against the defendant.
 1316         (2) Experts in intellectual disability retardation or
 1317  autism appointed pursuant to s. 916.301 shall first consider
 1318  whether the defendant meets the definition of intellectual
 1319  disability retardation or autism and, if so, consider the
 1320  factors related to the issue of whether the defendant meets the
 1321  criteria for competence to proceed as described in subsection
 1322  (1).
 1323         (4) If the experts should find that the defendant is
 1324  incompetent to proceed, the experts shall report on any
 1325  recommended training for the defendant to attain competence to
 1326  proceed. In considering the issues relating to training, the
 1327  examining experts shall specifically report on:
 1328         (a) The intellectual disability retardation or autism
 1329  causing the incompetence;
 1330         (b) The training appropriate for the intellectual
 1331  disability retardation or autism of the defendant and an
 1332  explanation of each of the possible training alternatives in
 1333  order of choices;
 1334         (c) The availability of acceptable training and, if
 1335  training is available in the community, the expert shall so
 1336  state in the report; and
 1337         (d) The likelihood of the defendant’s attaining competence
 1338  under the training recommended, an assessment of the probable
 1339  duration of the training required to restore competence, and the
 1340  probability that the defendant will attain competence to proceed
 1341  in the foreseeable future.
 1342         Section 33. Subsection (1), paragraphs (a) and (b) of
 1343  subsection (2), and paragraph (a) of subsection (3) of section
 1344  916.302, Florida Statutes, are amended to read:
 1345         916.302 Involuntary commitment of defendant determined to
 1346  be incompetent to proceed.—
 1347         (1) CRITERIA.—Every defendant who is charged with a felony
 1348  and who is adjudicated incompetent to proceed due to
 1349  intellectual disability retardation or autism may be
 1350  involuntarily committed for training upon a finding by the court
 1351  of clear and convincing evidence that:
 1352         (a) The defendant has an intellectual disability
 1353  retardation or autism;
 1354         (b) There is a substantial likelihood that in the near
 1355  future the defendant will inflict serious bodily harm on himself
 1356  or herself or another person, as evidenced by recent behavior
 1357  causing, attempting, or threatening such harm;
 1358         (c) All available, less restrictive alternatives, including
 1359  services provided in community residential facilities or other
 1360  community settings, which would offer an opportunity for
 1361  improvement of the condition have been judged to be
 1362  inappropriate; and
 1363         (d) There is a substantial probability that the
 1364  intellectual disability retardation or autism causing the
 1365  defendant’s incompetence will respond to training and the
 1366  defendant will regain competency to proceed in the reasonably
 1367  foreseeable future.
 1368         (2) ADMISSION TO A FACILITY.—
 1369         (a) A defendant who has been charged with a felony and who
 1370  is found to be incompetent to proceed due to intellectual
 1371  disability retardation or autism, and who meets the criteria for
 1372  involuntary commitment to the agency under the provisions of
 1373  this chapter, shall be committed to the agency, and the agency
 1374  shall retain and provide appropriate training for the defendant.
 1375  Within No later than 6 months after the date of admission or at
 1376  the end of any period of extended commitment or at any time the
 1377  administrator or designee determines shall have determined that
 1378  the defendant has regained competency to proceed or no longer
 1379  meets the criteria for continued commitment, the administrator
 1380  or designee shall file a report with the court pursuant to this
 1381  chapter and the applicable Florida Rules of Criminal Procedure.
 1382         (b) A defendant determined to be incompetent to proceed due
 1383  to intellectual disability retardation or autism may be ordered
 1384  by a circuit court into a forensic facility designated by the
 1385  agency for defendants who have an intellectual disability mental
 1386  retardation or autism.
 1387         (3) PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.—
 1388         (a) If a defendant has both an intellectual disability
 1389  mental retardation or autism and has a mental illness,
 1390  evaluations must address which condition is primarily affecting
 1391  the defendant’s competency to proceed. Referral of the defendant
 1392  should be made to a civil or forensic facility most appropriate
 1393  to address the symptoms that are the cause of the defendant’s
 1394  incompetence.
 1395         Section 34. Subsection (1) of section 916.3025, Florida
 1396  Statutes, is amended to read:
 1397         916.3025 Jurisdiction of committing court.—
 1398         (1) The committing court shall retain jurisdiction in the
 1399  case of any defendant found to be incompetent to proceed due to
 1400  intellectual disability retardation or autism and ordered into a
 1401  forensic facility designated by the agency for defendants who
 1402  have intellectual disabilities mental retardation or autism. A
 1403  defendant may not be released except by the order of the
 1404  committing court. An administrative hearing examiner does not
 1405  have jurisdiction to determine issues of continuing commitment
 1406  or release of any defendant involuntarily committed pursuant to
 1407  this chapter.
 1408         Section 35. Section 916.303, Florida Statutes, is amended
 1409  to read:
 1410         916.303 Determination of incompetency due to retardation or
 1411  autism; dismissal of charges.—
 1412         (1) The charges against any defendant found to be
 1413  incompetent to proceed due to intellectual disability
 1414  retardation or autism shall be dismissed without prejudice to
 1415  the state if the defendant remains incompetent to proceed within
 1416  a reasonable time after such determination, not to exceed 2
 1417  years, unless the court in its order specifies its reasons for
 1418  believing that the defendant will become competent to proceed
 1419  within the foreseeable future and specifies the time within
 1420  which the defendant is expected to become competent to proceed.
 1421  The charges may be refiled by the state if the defendant is
 1422  declared competent to proceed in the future.
 1423         (2) If the charges are dismissed and if the defendant is
 1424  considered to lack sufficient capacity to give express and
 1425  informed consent to a voluntary application for services and
 1426  lacks the basic survival and self-care skills to provide for his
 1427  or her well-being or is likely to physically injure himself or
 1428  herself or others if allowed to remain at liberty, the agency,
 1429  the state attorney, or the defendant’s attorney shall apply to
 1430  the committing court to involuntarily admit the defendant to
 1431  residential services pursuant to s. 393.11.
 1432         (3) If the defendant is considered to need involuntary
 1433  residential services for reasons described in subsection (2)
 1434  and, further, there is a substantial likelihood that the
 1435  defendant will injure another person or continues to present a
 1436  danger of escape, and all available less restrictive
 1437  alternatives, including services in community residential
 1438  facilities or other community settings, which would offer an
 1439  opportunity for improvement of the condition have been judged to
 1440  be inappropriate, the agency, the state attorney, or the
 1441  defendant’s counsel may request the committing court to continue
 1442  the defendant’s placement in a secure facility pursuant to this
 1443  part. Any placement so continued under this subsection must be
 1444  reviewed by the court at least annually at a hearing. The annual
 1445  review and hearing must shall determine whether the defendant
 1446  continues to meet the criteria described in this subsection and,
 1447  if so, whether the defendant still requires involuntary
 1448  placement in a secure facility and whether the defendant is
 1449  receiving adequate care, treatment, habilitation, and
 1450  rehabilitation, including psychotropic medication and behavioral
 1451  programming. Notice of the annual review and review hearing
 1452  shall be given to the state attorney and the defendant’s
 1453  attorney. In no instance may A defendant’s placement in a secure
 1454  facility may not exceed the maximum sentence for the crime for
 1455  which the defendant was charged.
 1456         Section 36. Subsection (1) of section 916.304, Florida
 1457  Statutes, is amended to read:
 1458         916.304 Conditional release.—
 1459         (1) Except for an inmate currently serving a prison
 1460  sentence, the committing court may order a conditional release
 1461  of any defendant who has been found to be incompetent to proceed
 1462  due to intellectual disability retardation or autism, based on
 1463  an approved plan for providing community-based training. The
 1464  committing criminal court may order a conditional release of any
 1465  defendant to a civil facility in lieu of an involuntary
 1466  commitment to a forensic facility pursuant to s. 916.302. Upon a
 1467  recommendation that community-based training for the defendant
 1468  is appropriate, a written plan for community-based training,
 1469  including recommendations from qualified professionals, may be
 1470  filed with the court, with copies to all parties. Such a plan
 1471  may also be submitted by the defendant and filed with the court,
 1472  with copies to all parties. The plan must include:
 1473         (a) Special provisions for residential care and adequate
 1474  supervision of the defendant, including recommended location of
 1475  placement.
 1476         (b) Recommendations for auxiliary services such as
 1477  vocational training, psychological training, educational
 1478  services, leisure services, and special medical care.
 1479  
 1480  In its order of conditional release, the court shall specify the
 1481  conditions of release based upon the release plan and shall
 1482  direct the appropriate agencies or persons to submit periodic
 1483  reports to the courts regarding the defendant’s compliance with
 1484  the conditions of the release and progress in training, with
 1485  copies to all parties.
 1486         Section 37. Subsection (1) of section 918.16, Florida
 1487  Statutes, is amended to read:
 1488         918.16 Sex offenses; testimony of person under age 16 or
 1489  person with mental retardation; testimony of victim; courtroom
 1490  cleared; exceptions.—
 1491         (1) Except as provided in subsection (2), in the trial of
 1492  any case, civil or criminal, when any person under the age of 16
 1493  or any person with intellectual disability mental retardation as
 1494  defined in s. 393.063 is testifying concerning any sex offense,
 1495  the court shall clear the courtroom of all persons except
 1496  parties to the cause and their immediate families or guardians,
 1497  attorneys and their secretaries, officers of the court, jurors,
 1498  newspaper reporters or broadcasters, court reporters, and, at
 1499  the request of the victim, victim or witness advocates
 1500  designated by the state attorney’s office.
 1501         Section 38. Section 921.137, Florida Statutes, is amended
 1502  to read:
 1503         921.137 Imposition of the death sentence upon an
 1504  intellectually disabled a defendant with mental retardation
 1505  prohibited.—
 1506         (1) As used in this section, the term “intellectually
 1507  disabled” or “intellectual disability” “mental retardation”
 1508  means significantly subaverage general intellectual functioning
 1509  existing concurrently with deficits in adaptive behavior and
 1510  manifested during the period from conception to age 18. The term
 1511  “significantly subaverage general intellectual functioning,” for
 1512  the purpose of this section, means performance that is two or
 1513  more standard deviations from the mean score on a standardized
 1514  intelligence test specified in the rules of the Agency for
 1515  Persons with Disabilities. The term “adaptive behavior,” for the
 1516  purpose of this definition, means the effectiveness or degree
 1517  with which an individual meets the standards of personal
 1518  independence and social responsibility expected of his or her
 1519  age, cultural group, and community. The Agency for Persons with
 1520  Disabilities shall adopt rules to specify the standardized
 1521  intelligence tests as provided in this subsection.
 1522         (2) A sentence of death may not be imposed upon a defendant
 1523  convicted of a capital felony if it is determined in accordance
 1524  with this section that the defendant is intellectually disabled
 1525  has mental retardation.
 1526         (3) A defendant charged with a capital felony who intends
 1527  to raise intellectual disability mental retardation as a bar to
 1528  the death sentence must give notice of such intention in
 1529  accordance with the rules of court governing notices of intent
 1530  to offer expert testimony regarding mental health mitigation
 1531  during the penalty phase of a capital trial.
 1532         (4) After a defendant who has given notice of his or her
 1533  intention to raise intellectual disability mental retardation as
 1534  a bar to the death sentence is convicted of a capital felony and
 1535  an advisory jury has returned a recommended sentence of death,
 1536  the defendant may file a motion to determine whether the
 1537  defendant is intellectually disabled has mental retardation.
 1538  Upon receipt of the motion, the court shall appoint two experts
 1539  in the field of intellectual disabilities mental retardation who
 1540  shall evaluate the defendant and report their findings to the
 1541  court and all interested parties prior to the final sentencing
 1542  hearing. Notwithstanding s. 921.141 or s. 921.142, the final
 1543  sentencing hearing shall be held without a jury. At the final
 1544  sentencing hearing, the court shall consider the findings of the
 1545  court-appointed experts and consider the findings of any other
 1546  expert which is offered by the state or the defense on the issue
 1547  of whether the defendant has an intellectual disability mental
 1548  retardation. If the court finds, by clear and convincing
 1549  evidence, that the defendant has an intellectual disability
 1550  mental retardation as defined in subsection (1), the court may
 1551  not impose a sentence of death and shall enter a written order
 1552  that sets forth with specificity the findings in support of the
 1553  determination.
 1554         (5) If a defendant waives his or her right to a recommended
 1555  sentence by an advisory jury following a plea of guilt or nolo
 1556  contendere to a capital felony and adjudication of guilt by the
 1557  court, or following a jury finding of guilt of a capital felony,
 1558  upon acceptance of the waiver by the court, a defendant who has
 1559  given notice as required in subsection (3) may file a motion for
 1560  a determination of intellectual disability mental retardation.
 1561  Upon granting the motion, the court shall proceed as provided in
 1562  subsection (4).
 1563         (6) If, following a recommendation by an advisory jury that
 1564  the defendant be sentenced to life imprisonment, the state
 1565  intends to request the court to order that the defendant be
 1566  sentenced to death, the state must inform the defendant of such
 1567  request if the defendant has notified the court of his or her
 1568  intent to raise intellectual disability mental retardation as a
 1569  bar to the death sentence. After receipt of the notice from the
 1570  state, the defendant may file a motion requesting a
 1571  determination by the court of whether the defendant is
 1572  intellectually disabled has mental retardation. Upon granting
 1573  the motion, the court shall proceed as provided in subsection
 1574  (4).
 1575         (7) Pursuant to s. 924.07, the state may appeal, pursuant
 1576  to s. 924.07, a determination of intellectual disability mental
 1577  retardation made under subsection (4).
 1578         (8) This section does not apply to a defendant who was
 1579  sentenced to death before June 12, 2001 prior to the effective
 1580  date of this act.
 1581         (9)For purposes of the application of the criminal laws
 1582  and procedural rules of this state to any matters relating to
 1583  the imposition and execution of the death penalty, the terms
 1584  “intellectual disability” or “intellectually disabled” are
 1585  interchangeable with and have the same meaning as the terms
 1586  “mental retardation,” or “retardation” and “mentally retarded”
 1587  as defined prior to July 1, 2010.
 1588         Section 39. Paragraph (b) of subsection (2) of section
 1589  941.38, Florida Statutes, is amended to read:
 1590         941.38 Extradition of persons alleged to be of unsound
 1591  mind.—
 1592         (2) For the purpose of this section:
 1593         (b) A “mentally incompetent person” is one who because of
 1594  mental illness, intellectual disability mental retardation,
 1595  senility, excessive use of drugs or alcohol, or other mental
 1596  incapacity is incapable of either managing his or her property
 1597  or caring for himself or herself or both.
 1598         Section 40. Section 944.602, Florida Statutes, is amended
 1599  to read:
 1600         944.602 Agency notification before release of
 1601  intellectually disabled mentally retarded inmates.—Before the
 1602  release by parole, release by reason of gain-time allowances
 1603  provided for in s. 944.291, or expiration of sentence of any
 1604  inmate who has been diagnosed as having an intellectual
 1605  disability mentally retarded as defined in s. 393.063, the
 1606  Department of Corrections shall notify the Agency for Persons
 1607  with Disabilities in order that sufficient time be allowed to
 1608  notify the inmate or the inmate’s representative, in writing, at
 1609  least 7 days before prior to the inmate’s release, of available
 1610  community services.
 1611         Section 41. Subsection (2) of section 945.025, Florida
 1612  Statutes, is amended to read:
 1613         945.025 Jurisdiction of department.—
 1614         (2) In establishing, operating, and using utilizing these
 1615  facilities, the department shall attempt, whenever possible, to
 1616  avoid the placement of nondangerous offenders who have potential
 1617  for rehabilitation with repeat offenders or dangerous offenders.
 1618  Medical, mental, and psychological problems must shall be
 1619  diagnosed and treated whenever possible. The Department of
 1620  Children and Family Services and the Agency for Persons with
 1621  Disabilities shall cooperate to ensure the delivery of services
 1622  to persons under the custody or supervision of the department.
 1623  If When it is the intent of the department intends to transfer a
 1624  mentally ill or retarded prisoner who has a mental illness or
 1625  intellectual disability to the Department of Children and Family
 1626  Services or the Agency for Persons with Disabilities, an
 1627  involuntary commitment hearing shall be held in accordance with
 1628  according to the provisions of chapter 393 or chapter 394.
 1629         Section 42. Subsection (5) of section 945.12, Florida
 1630  Statutes, is amended to read:
 1631         945.12 Transfers for rehabilitative treatment.—
 1632         (5) When the department plans to release a mentally ill or
 1633  intellectually disabled retarded offender, an involuntary
 1634  commitment hearing shall be held as soon as possible before
 1635  prior to his or her release in accordance with, according to the
 1636  provisions of chapter 393 or chapter 394.
 1637         Section 43. Subsection (9) of section 945.42, Florida
 1638  Statutes, is amended to read:
 1639         945.42 Definitions; ss. 945.40-945.49.—As used in ss.
 1640  945.40-945.49, the following terms shall have the meanings
 1641  ascribed to them, unless the context shall clearly indicate
 1642  otherwise:
 1643         (9) “Mentally ill” means an impairment of the mental or
 1644  emotional processes that, of the ability to exercise conscious
 1645  control of one’s actions, or of the ability to perceive or
 1646  understand reality, which impairment substantially interferes
 1647  with the a person’s ability to meet the ordinary demands of
 1648  living. However, regardless of etiology, except that, for the
 1649  purposes of transferring transfer of an inmate to a mental
 1650  health treatment facility, the term does not include a
 1651  retardation or developmental disability as defined in chapter
 1652  393, simple intoxication, or conditions manifested only by
 1653  antisocial behavior or substance abuse addiction. However, an
 1654  individual who is mentally retarded or developmentally disabled
 1655  may also have a mental illness.
 1656         Section 44. Section 947.185, Florida Statutes, is amended
 1657  to read:
 1658         947.185 Application for intellectual disability mental
 1659  retardation services as condition of parole.—The Parole
 1660  Commission may require as a condition of parole that any inmate
 1661  who has been diagnosed as having an intellectual disability
 1662  mentally retarded as defined in s. 393.063 shall, upon release,
 1663  apply for services from the Agency for Persons with
 1664  Disabilities.
 1665         Section 45. Subsection (4) of section 984.19, Florida
 1666  Statutes, is amended to read:
 1667         984.19 Medical screening and treatment of child;
 1668  examination of parent, guardian, or person requesting custody.—
 1669         (4) A judge may order that a child alleged to be or
 1670  adjudicated a child in need of services be treated by a licensed
 1671  health care professional. The judge may also order such child to
 1672  receive mental health or intellectual disability retardation
 1673  services from a psychiatrist, psychologist, or other appropriate
 1674  service provider. If it is necessary to place the child in a
 1675  residential facility for such services, then the procedures and
 1676  criteria established in s. 394.467 or chapter 393 shall be used,
 1677  as whichever is applicable. A child may be provided mental
 1678  health or retardation services in emergency situations, pursuant
 1679  to the procedures and criteria contained in s. 394.463(1) or
 1680  chapter 393, as whichever is applicable.
 1681         Section 46. Paragraph (a) of subsection (3) of section
 1682  985.14, Florida Statutes, is amended to read:
 1683         985.14 Intake and case management system.—
 1684         (3) The intake and case management system shall facilitate
 1685  consistency in the recommended placement of each child, and in
 1686  the assessment, classification, and placement process, with the
 1687  following purposes:
 1688         (a) An individualized, multidisciplinary assessment process
 1689  that identifies the priority needs of each individual child for
 1690  rehabilitation and treatment and identifies any needs of the
 1691  child’s parents or guardians for services that would enhance
 1692  their ability to provide adequate support, guidance, and
 1693  supervision for the child. This process begins shall begin with
 1694  the detention risk assessment instrument and decision, includes
 1695  shall include the intake preliminary screening and comprehensive
 1696  assessment for substance abuse treatment services, mental health
 1697  services, intellectual disability retardation services, literacy
 1698  services, and other educational and treatment services as
 1699  components, additional assessment of the child’s treatment
 1700  needs, and classification regarding the child’s risks to the
 1701  community and, for a serious or habitual delinquent child,
 1702  includes shall include the assessment for placement in a serious
 1703  or habitual delinquent children program under s. 985.47. The
 1704  completed multidisciplinary assessment process must shall result
 1705  in the predisposition report.
 1706         Section 47. Paragraph (g) of subsection (1) and subsection
 1707  (5) of section 985.145, Florida Statutes, are amended to read:
 1708         985.145 Responsibilities of juvenile probation officer
 1709  during intake; screenings and assessments.—
 1710         (1) The juvenile probation officer shall serve as the
 1711  primary case manager for the purpose of managing, coordinating,
 1712  and monitoring the services provided to the child. Each program
 1713  administrator within the Department of Children and Family
 1714  Services shall cooperate with the primary case manager in
 1715  carrying out the duties and responsibilities described in this
 1716  section. In addition to duties specified in other sections and
 1717  through departmental rules, the assigned juvenile probation
 1718  officer shall be responsible for the following:
 1719         (g) Comprehensive assessment.—The juvenile probation
 1720  officer, pursuant to uniform procedures established by the
 1721  department and upon determining that the report, affidavit, or
 1722  complaint is complete, shall:
 1723         1. Perform the preliminary screening and make referrals for
 1724  a comprehensive assessment regarding the child’s need for
 1725  substance abuse treatment services, mental health services,
 1726  intellectual disability retardation services, literacy services,
 1727  or other educational or treatment services.
 1728         2. If When indicated by the preliminary screening, provide
 1729  for a comprehensive assessment of the child and family for
 1730  substance abuse problems, using community-based licensed
 1731  programs with clinical expertise and experience in the
 1732  assessment of substance abuse problems.
 1733         3. If When indicated by the preliminary screening, provide
 1734  for a comprehensive assessment of the child and family for
 1735  mental health problems, using community-based psychologists,
 1736  psychiatrists, or other licensed mental health professionals who
 1737  have clinical expertise and experience in the assessment of
 1738  mental health problems.
 1739         (5) If the screening and assessment indicate that the
 1740  interests of the child and the public will be best served
 1741  thereby, the juvenile probation officer, with the approval of
 1742  the state attorney, may refer the child for care, diagnostic,
 1743  and evaluation services; substance abuse treatment services;
 1744  mental health services; intellectual disability retardation
 1745  services; a diversionary, arbitration, or mediation program;
 1746  community service work; or other programs or treatment services
 1747  voluntarily accepted by the child and the child’s parents or
 1748  legal guardian. If Whenever a child volunteers to participate in
 1749  any work program under this chapter or volunteers to work in a
 1750  specified state, county, municipal, or community service
 1751  organization supervised work program or to work for the victim,
 1752  the child is shall be considered an employee of the state for
 1753  the purposes of liability. In determining the child’s average
 1754  weekly wage, unless otherwise determined by a specific funding
 1755  program, all remuneration received from the employer is
 1756  considered a gratuity, and the child is not entitled to any
 1757  benefits otherwise payable under s. 440.15, regardless of
 1758  whether the child may be receiving wages and remuneration from
 1759  other employment with another employer and regardless of the
 1760  child’s future wage-earning capacity.
 1761         Section 48. Subsections (2) and (6) of section 985.18,
 1762  Florida Statutes, are amended to read:
 1763         985.18 Medical, psychiatric, psychological, substance
 1764  abuse, and educational examination and treatment.—
 1765         (2) If Whenever a child has been found to have committed a
 1766  delinquent act, or before such finding with the consent of any
 1767  parent or legal custodian of the child, the court may order the
 1768  child to be treated by a physician. The court may also order the
 1769  child to receive mental health, substance abuse, or intellectual
 1770  disability retardation services from a psychiatrist,
 1771  psychologist, or other appropriate service provider. If it is
 1772  necessary to place the child in a residential facility for such
 1773  services, the procedures and criteria established in chapter
 1774  393, chapter 394, or chapter 397, as whichever is applicable,
 1775  must shall be used. After a child has been adjudicated
 1776  delinquent, if an educational needs assessment by the district
 1777  school board or the Department of Children and Family Services
 1778  has been previously conducted, the court shall order the report
 1779  of such needs assessment included in the child’s court record in
 1780  lieu of a new assessment. For purposes of this section, an
 1781  educational needs assessment includes, but is not limited to,
 1782  reports of intelligence and achievement tests, screening for
 1783  learning and other disabilities and other handicaps, and
 1784  screening for the need for alternative education.
 1785         (6) A physician must shall be immediately notified by the
 1786  person taking the child into custody or the person having
 1787  custody if there are indications of physical injury or illness,
 1788  or the child shall be taken to the nearest available hospital
 1789  for emergency care. A child may be provided mental health,
 1790  substance abuse, or intellectual disability retardation
 1791  services, in emergency situations, pursuant to chapter 393,
 1792  chapter 394, or chapter 397, as whichever is applicable. After a
 1793  hearing, the court may order the custodial parent or parents,
 1794  guardian, or other custodian, if found able to do so, to
 1795  reimburse the county or state for the expense involved in such
 1796  emergency treatment or care.
 1797         Section 49. Paragraph (e) of subsection (1), subsections
 1798  (2) through (4), and paragraph (a) of subsection (6) of section
 1799  985.19, Florida Statutes, are amended to read:
 1800         985.19 Incompetency in juvenile delinquency cases.—
 1801         (1) If, at any time prior to or during a delinquency case,
 1802  the court has reason to believe that the child named in the
 1803  petition may be incompetent to proceed with the hearing, the
 1804  court on its own motion may, or on the motion of the child’s
 1805  attorney or state attorney must, stay all proceedings and order
 1806  an evaluation of the child’s mental condition.
 1807         (e) For incompetency evaluations related to intellectual
 1808  disability mental retardation or autism, the court shall order
 1809  the Agency for Persons with Disabilities to examine the child to
 1810  determine if the child meets the definition of “intellectual
 1811  disability” “retardation” or “autism” in s. 393.063 and, if so,
 1812  whether the child is competent to proceed with delinquency
 1813  proceedings.
 1814         (2) A child who is adjudicated incompetent to proceed, and
 1815  who has committed a delinquent act or violation of law, either
 1816  of which would be a felony if committed by an adult, must be
 1817  committed to the Department of Children and Family Services for
 1818  treatment or training. A child who has been adjudicated
 1819  incompetent to proceed because of age or immaturity, or for any
 1820  reason other than for mental illness, intellectual disability,
 1821  or retardation or autism, must not be committed to the
 1822  department or to the Department of Children and Family Services
 1823  for restoration-of-competency treatment or training services.
 1824  For purposes of this section, a child who has committed a
 1825  delinquent act or violation of law, either of which would be a
 1826  misdemeanor if committed by an adult, may not be committed to
 1827  the department or to the Department of Children and Family
 1828  Services for restoration-of-competency treatment or training
 1829  services.
 1830         (3) If the court finds that a child has mental illness,
 1831  intellectual disability mental retardation, or autism and
 1832  adjudicates the child incompetent to proceed, the court must
 1833  also determine whether the child meets the criteria for secure
 1834  placement. A child may be placed in a secure facility or program
 1835  if the court makes a finding by clear and convincing evidence
 1836  that:
 1837         (a) The child has mental illness, intellectual disability
 1838  mental retardation, or autism and because of the mental illness,
 1839  intellectual disability mental retardation, or autism:
 1840         1. The child is manifestly incapable of surviving with the
 1841  help of willing and responsible family or friends, including
 1842  available alternative services, and without treatment or
 1843  training the child is likely to either suffer from neglect or
 1844  refuse to care for self, and such neglect or refusal poses a
 1845  real and present threat of substantial harm to the child’s well
 1846  being; or
 1847         2. There is a substantial likelihood that in the near
 1848  future the child will inflict serious bodily harm on self or
 1849  others, as evidenced by recent behavior causing, attempting, or
 1850  threatening such harm; and
 1851         (b) All available less restrictive alternatives, including
 1852  treatment or training in community residential facilities or
 1853  community settings, which would offer an opportunity for
 1854  improvement of the child’s condition, are inappropriate.
 1855         (4) A child who is determined to have mental illness,
 1856  intellectual disability mental retardation, or autism, who has
 1857  been adjudicated incompetent to proceed, and who meets the
 1858  criteria set forth in subsection (3), must be committed to the
 1859  Department of Children and Family Services and receive treatment
 1860  or training in a secure facility or program that is the least
 1861  restrictive alternative consistent with public safety. Any
 1862  placement of a child to a secure residential program must be
 1863  separate from adult forensic programs. If the child attains
 1864  competency, then custody, case management, and supervision of
 1865  the child shall will be transferred to the department in order
 1866  to continue delinquency proceedings; however, the court retains
 1867  authority to order the Department of Children and Family
 1868  Services to provide continued treatment or training to maintain
 1869  competency.
 1870         (a) A child adjudicated incompetent due to intellectual
 1871  disability mental retardation or autism may be ordered into a
 1872  secure program or facility designated by the Department of
 1873  Children and Family Services for children who have intellectual
 1874  disabilities with mental retardation or autism.
 1875         (b) A child adjudicated incompetent due to mental illness
 1876  may be ordered into a secure program or facility designated by
 1877  the Department of Children and Family Services for children
 1878  having mental illnesses.
 1879         (c) If Whenever a child is placed in a secure residential
 1880  facility, the department shall will provide transportation to
 1881  the secure residential facility for admission and from the
 1882  secure residential facility upon discharge.
 1883         (d) The purpose of the treatment or training is the
 1884  restoration of the child’s competency to proceed.
 1885         (e) The service provider must file a written report with
 1886  the court pursuant to the applicable Florida Rules of Juvenile
 1887  Procedure within not later than 6 months after the date of
 1888  commitment, or at the end of any period of extended treatment or
 1889  training, and at any time the Department of Children and Family
 1890  Services, through its service provider, determines the child has
 1891  attained competency or no longer meets the criteria for secure
 1892  placement, or at such shorter intervals as ordered by the court.
 1893  A copy of a written report evaluating the child’s competency
 1894  must be filed by the provider with the court and with the state
 1895  attorney, the child’s attorney, the department, and the
 1896  Department of Children and Family Services.
 1897         (6)(a) If a child is determined to have mental illness,
 1898  intellectual disability mental retardation, or autism and is
 1899  found to be incompetent to proceed but does not meet the
 1900  criteria set forth in subsection (3), the court shall commit the
 1901  child to the Department of Children and Family Services and
 1902  shall order the Department of Children and Family Services to
 1903  provide appropriate treatment and training in the community. The
 1904  purpose of the treatment or training is the restoration of the
 1905  child’s competency to proceed.
 1906         Section 50. Section 985.195, Florida Statutes, is amended
 1907  to read:
 1908         985.195 Transfer to other treatment services.—Any child
 1909  committed to the department may be transferred to intellectual
 1910  disability retardation, mental health, or substance abuse
 1911  treatment facilities for diagnosis and evaluation pursuant to
 1912  chapter 393, chapter 394, or chapter 397, as whichever is
 1913  applicable, for up to a period not to exceed 90 days.
 1914         Section 51. Paragraph (b) of subsection (1) of section
 1915  985.61, Florida Statutes, is amended to read:
 1916         985.61 Early delinquency intervention program; criteria.—
 1917         (1) The Department of Juvenile Justice shall, contingent
 1918  upon specific appropriation and with the cooperation of local
 1919  law enforcement agencies, the judiciary, district school board
 1920  personnel, the office of the state attorney, the office of the
 1921  public defender, the Department of Children and Family Services,
 1922  and community service agencies that work with children,
 1923  establish an early delinquency intervention program, the
 1924  components of which shall include, but not be limited to:
 1925         (b) Treatment modalities, including substance abuse
 1926  treatment services, mental health services, and retardation
 1927  services for intellectual disabilities.
 1928         Section 52. It is the intent of the Legislature that this
 1929  act is not intended to expand or contract the scope or
 1930  application of any provisions of the Florida Statutes. Nothing
 1931  in this act may be construed to change the application of any
 1932  provisions of the Florida Statutes to any person.
 1933         Section 53. This act shall take effect July 1, 2010.

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