Bill Text: FL H0091 | 2010 | Regular Session | Comm Sub

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Bill Title: Adult Protective Services [SPSC]

Spectrum: Partisan Bill (Republican 15-0)

Status: (Passed) 2010-05-07 - Approved by Governor; Chapter No. 2010-31; companion bill(s) passed, see CS/SB 962 (Ch. 2010-207) [H0091 Detail]

Download: Florida-2010-H0091-Comm_Sub.html

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CS/HB 91

1	A bill to be entitled
2	An act relating to adult protective services; amending s.
3	415.101, F.S.; revising legislative intent with respect to
4	adult protective services; providing for care and
5	protection of all vulnerable adults; amending s. 415.102,
6	F.S.; defining the term "activities of daily living";
7	revising the definition of the term "vulnerable adult";
8	conforming a cross-reference; amending s. 415.103, F.S.;
9	providing for certain suspected abuse cases to be
10	transferred to the local county sheriff's office; amending
11	s. 415.1051, F.S.; providing for the Department of
12	Children and Family Services to file a petition to
13	determine incapacity and guardianship under certain
14	circumstances; amending s. 322.142, F.S.; authorizing the
15	Department of Highway Safety and Motor Vehicles to provide
16	copies of drivers' license files to the Department of
17	Children and Family Services to conduct protective
18	investigations; amending ss. 435.04, 943.0585, and
19	943.059, F.S.; conforming cross-references; providing an
20	effective date.
21
22	Be It Enacted by the Legislature of the State of Florida:
23
24	Section 1. Subsection (2) of section 415.101, Florida
25	Statutes, is amended to read:
26	415.101 Adult Protective Services Act; legislative
27	intent.-
28	(2) The Legislature recognizes that there are many persons
29	in this state who, because of age or disability, are in need of
30	protective services. Such services should allow such an
31	individual the same rights as other citizens and, at the same
32	time, protect the individual from abuse, neglect, and
33	exploitation. It is the intent of the Legislature to provide for
34	the detection and correction of abuse, neglect, and exploitation
35	through social services and criminal investigations and to
36	establish a program of protective services for all vulnerable
37	disabled adults or elderly persons in need of them. It is
38	intended that the mandatory reporting of such cases will cause
39	the protective services of the state to be brought to bear in an
40	effort to prevent further abuse, neglect, and exploitation of
41	vulnerable disabled adults or elderly persons. In taking this
42	action, the Legislature intends to place the fewest possible
43	restrictions on personal liberty and the exercise of
44	constitutional rights, consistent with due process and
45	protection from abuse, neglect, and exploitation. Further, the
46	Legislature intends to encourage the constructive involvement of
47	families in the care and protection of vulnerable disabled
48	adults or elderly persons.
49	Section 2. Subsections (2) through (27) of section
50	415.102, Florida Statutes, are renumbered as subsections (3)
51	through (28), respectively, current subsections (4) and (26) are
52	amended, and a new subsection (2) is added to that section, to
53	read:
54	415.102 Definitions of terms used in ss. 415.101-415.113.-
55	As used in ss. 415.101-415.113, the term:
56	(2) "Activities of daily living" means functions and tasks
57	for self-care, including ambulation, bathing, dressing, eating,
58	grooming, toileting, and other similar tasks.
59	(5)(4) "Caregiver" means a person who has been entrusted
60	with or has assumed the responsibility for frequent and regular
61	care of or services to a vulnerable adult on a temporary or
62	permanent basis and who has a commitment, agreement, or
63	understanding with that person or that person's guardian that a
64	caregiver role exists. "Caregiver" includes, but is not limited
65	to, relatives, household members, guardians, neighbors, and
66	employees and volunteers of facilities as defined in subsection
67	(9) (8). For the purpose of departmental investigative
68	jurisdiction, the term "caregiver" does not include law
69	enforcement officers or employees of municipal or county
70	detention facilities or the Department of Corrections while
71	acting in an official capacity.
72	(27)(26) "Vulnerable adult" means a person 18 years of age
73	or older whose ability to perform the normal activities of daily
74	living or to provide for his or her own care or protection is
75	impaired due to a mental, emotional, sensory, long-term
76	physical, or developmental disability or dysfunction
77	dysfunctioning, or brain damage, or the infirmities of aging.
78	Section 3. Subsection (2) of section 415.103, Florida
79	Statutes, is amended to read:
80	415.103 Central abuse hotline.-
81	(2) Upon receiving an oral or written report of known or
82	suspected abuse, neglect, or exploitation of a vulnerable adult,
83	the central abuse hotline must determine if the report requires
84	an immediate onsite protective investigation. For reports
85	requiring an immediate onsite protective investigation, the
86	central abuse hotline must immediately notify the department's
87	designated protective investigative district staff responsible
88	for protective investigations to ensure prompt initiation of an
89	onsite investigation. For reports not requiring an immediate
90	onsite protective investigation, the central abuse hotline must
91	notify the department's designated protective investigative
92	district staff responsible for protective investigations in
93	sufficient time to allow for an investigation to be commenced
94	within 24 hours. At the time of notification of district staff
95	with respect to the report, the central abuse hotline must also
96	provide any known information on any previous report concerning
97	a subject of the present report or any pertinent information
98	relative to the present report or any noted earlier reports. If
99	the report is of known or suspected abuse of a vulnerable adult
100	by someone other than a relative, caregiver, or household
101	member, the report shall be immediately transferred to the
102	appropriate county sheriff's office.
103	Section 4. Paragraph (e) of subsection (1) and paragraph
104	(g) of subsection (2) of section 415.1051, Florida Statutes, are
105	amended to read:
106	415.1051 Protective services interventions when capacity
107	to consent is lacking; nonemergencies; emergencies; orders;
108	limitations.-
109	(1) NONEMERGENCY PROTECTIVE SERVICES INTERVENTIONS.-If the
110	department has reasonable cause to believe that a vulnerable
111	adult or a vulnerable adult in need of services is being abused,
112	neglected, or exploited and is in need of protective services
113	but lacks the capacity to consent to protective services, the
114	department shall petition the court for an order authorizing the
115	provision of protective services.
116	(e) Continued protective services.-
117	1. No more than 60 days after the date of the order
118	authorizing the provision of protective services, the department
119	shall petition the court to determine whether:
120	a. Protective services will be continued with the consent
121	of the vulnerable adult pursuant to this subsection;
122	b. Protective services will be continued for the
123	vulnerable adult who lacks capacity;
124	c. Protective services will be discontinued; or
125	d. A petition for guardianship should be filed pursuant to
126	chapter 744.
127	2. If the court determines that a petition for
128	guardianship should be filed pursuant to chapter 744, the court,
129	for good cause shown, may order continued protective services
130	until it makes a determination regarding capacity.
131	3. If the department has a good faith belief that the
132	vulnerable adult lacks the capacity to consent to protective
133	services, the petition to determine incapacity under s. 744.3201
134	may be filed by the department. Once the petition is filed, the
135	department may not be appointed guardian and may not provide
136	legal counsel for the guardian.
137	(2) EMERGENCY PROTECTIVE SERVICES INTERVENTION.-If the
138	department has reasonable cause to believe that a vulnerable
139	adult is suffering from abuse or neglect that presents a risk of
140	death or serious physical injury to the vulnerable adult and
141	that the vulnerable adult lacks the capacity to consent to
142	emergency protective services, the department may take action
143	under this subsection. If the vulnerable adult has the capacity
144	to consent and refuses consent to emergency protective services,
145	emergency protective services may not be provided.
146	(g) Continued emergency protective services.-
147	1. Not more than 60 days after the date of the order
148	authorizing the provision of emergency protective services, the
149	department shall petition the court to determine whether:
150	a. Emergency protective services will be continued with
151	the consent of the vulnerable adult;
152	b. Emergency protective services will be continued for the
153	vulnerable adult who lacks capacity;
154	c. Emergency protective services will be discontinued; or
155	d. A petition should be filed under chapter 744.
156	2. If it is decided to file a petition under chapter 744,
157	for good cause shown, the court may order continued emergency
158	protective services until a determination is made by the court.
159	3. If the department has a good faith belief that the
160	vulnerable adult lacks the capacity to consent to protective
161	services, the petition to determine incapacity under s. 744.3201
162	may be filed by the department. Once the petition is filed, the
163	department may not be appointed guardian and may not provide
164	legal counsel for the guardian.
165	Section 5. Subsection (4) of section 322.142, Florida
166	Statutes, is amended to read:
167	322.142 Color photographic or digital imaged licenses.-
168	(4) The department may maintain a film negative or print
169	file. The department shall maintain a record of the digital
170	image and signature of the licensees, together with other data
171	required by the department for identification and retrieval.
172	Reproductions from the file or digital record are exempt from
173	the provisions of s. 119.07(1) and shall be made and issued only
174	for departmental administrative purposes; for the issuance of
175	duplicate licenses; in response to law enforcement agency
176	requests; to the Department of State pursuant to an interagency
177	agreement to facilitate determinations of eligibility of voter
178	registration applicants and registered voters in accordance with
179	ss. 98.045 and 98.075; to the Department of Revenue pursuant to
180	an interagency agreement for use in establishing paternity and
181	establishing, modifying, or enforcing support obligations in
182	Title IV-D cases; to the Department of Children and Family
183	Services pursuant to an interagency agreement to conduct
184	protective investigations under part III of chapter 39 and
185	chapter 415; or to the Department of Financial Services pursuant
186	to an interagency agreement to facilitate the location of owners
187	of unclaimed property, the validation of unclaimed property
188	claims, and the identification of fraudulent or false claims.
189	Section 6. Paragraph (a) of subsection (4) of section
190	435.04, Florida Statutes, is amended to read:
191	435.04 Level 2 screening standards.-
192	(4) Standards must also ensure that the person:
193	(a) For employees or employers licensed or registered
194	pursuant to chapter 400 or chapter 429, does not have a
195	confirmed report of abuse, neglect, or exploitation as defined
196	in s. 415.102(6), which has been uncontested or upheld under s.
197	415.103.
198	Section 7. Paragraph (a) of subsection (4) of section
199	943.0585, Florida Statutes, is amended to read:
200	943.0585 Court-ordered expunction of criminal history
201	records.-The courts of this state have jurisdiction over their
202	own procedures, including the maintenance, expunction, and
203	correction of judicial records containing criminal history
204	information to the extent such procedures are not inconsistent
205	with the conditions, responsibilities, and duties established by
206	this section. Any court of competent jurisdiction may order a
207	criminal justice agency to expunge the criminal history record
208	of a minor or an adult who complies with the requirements of
209	this section. The court shall not order a criminal justice
210	agency to expunge a criminal history record until the person
211	seeking to expunge a criminal history record has applied for and
212	received a certificate of eligibility for expunction pursuant to
213	subsection (2). A criminal history record that relates to a
214	violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
215	s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
216	827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
217	893.135, s. 916.1075, a violation enumerated in s. 907.041, or
218	any violation specified as a predicate offense for registration
219	as a sexual predator pursuant to s. 775.21, without regard to
220	whether that offense alone is sufficient to require such
221	registration, or for registration as a sexual offender pursuant
222	to s. 943.0435, may not be expunged, without regard to whether
223	adjudication was withheld, if the defendant was found guilty of
224	or pled guilty or nolo contendere to the offense, or if the
225	defendant, as a minor, was found to have committed, or pled
226	guilty or nolo contendere to committing, the offense as a
227	delinquent act. The court may only order expunction of a
228	criminal history record pertaining to one arrest or one incident
229	of alleged criminal activity, except as provided in this
230	section. The court may, at its sole discretion, order the
231	expunction of a criminal history record pertaining to more than
232	one arrest if the additional arrests directly relate to the
233	original arrest. If the court intends to order the expunction of
234	records pertaining to such additional arrests, such intent must
235	be specified in the order. A criminal justice agency may not
236	expunge any record pertaining to such additional arrests if the
237	order to expunge does not articulate the intention of the court
238	to expunge a record pertaining to more than one arrest. This
239	section does not prevent the court from ordering the expunction
240	of only a portion of a criminal history record pertaining to one
241	arrest or one incident of alleged criminal activity.
242	Notwithstanding any law to the contrary, a criminal justice
243	agency may comply with laws, court orders, and official requests
244	of other jurisdictions relating to expunction, correction, or
245	confidential handling of criminal history records or information
246	derived therefrom. This section does not confer any right to the
247	expunction of any criminal history record, and any request for
248	expunction of a criminal history record may be denied at the
249	sole discretion of the court.
250	(4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.-Any
251	criminal history record of a minor or an adult which is ordered
252	expunged by a court of competent jurisdiction pursuant to this
253	section must be physically destroyed or obliterated by any
254	criminal justice agency having custody of such record; except
255	that any criminal history record in the custody of the
256	department must be retained in all cases. A criminal history
257	record ordered expunged that is retained by the department is
258	confidential and exempt from the provisions of s. 119.07(1) and
259	s. 24(a), Art. I of the State Constitution and not available to
260	any person or entity except upon order of a court of competent
261	jurisdiction. A criminal justice agency may retain a notation
262	indicating compliance with an order to expunge.
263	(a) The person who is the subject of a criminal history
264	record that is expunged under this section or under other
265	provisions of law, including former s. 893.14, former s. 901.33,
266	and former s. 943.058, may lawfully deny or fail to acknowledge
267	the arrests covered by the expunged record, except when the
268	subject of the record:
269	1. Is a candidate for employment with a criminal justice
270	agency;
271	2. Is a defendant in a criminal prosecution;
272	3. Concurrently or subsequently petitions for relief under
273	this section or s. 943.059;
274	4. Is a candidate for admission to The Florida Bar;
275	5. Is seeking to be employed or licensed by or to contract
276	with the Department of Children and Family Services, the Agency
277	for Health Care Administration, the Agency for Persons with
278	Disabilities, or the Department of Juvenile Justice or to be
279	employed or used by such contractor or licensee in a sensitive
280	position having direct contact with children, the
281	developmentally disabled, the aged, or the elderly as provided
282	in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
283	402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5)(4),
284	chapter 916, s. 985.644, chapter 400, or chapter 429;
285	6. Is seeking to be employed or licensed by the Department
286	of Education, any district school board, any university
287	laboratory school, any charter school, any private or parochial
288	school, or any local governmental entity that licenses child
289	care facilities; or
290	7. Is seeking authorization from a seaport listed in s.
291	311.09 for employment within or access to one or more of such
292	seaports pursuant to s. 311.12.
293	Section 8. Paragraph (a) of subsection (4) of section
294	943.059, Florida Statutes, is amended to read:
295	943.059 Court-ordered sealing of criminal history
296	records.-The courts of this state shall continue to have
297	jurisdiction over their own procedures, including the
298	maintenance, sealing, and correction of judicial records
299	containing criminal history information to the extent such
300	procedures are not inconsistent with the conditions,
301	responsibilities, and duties established by this section. Any
302	court of competent jurisdiction may order a criminal justice
303	agency to seal the criminal history record of a minor or an
304	adult who complies with the requirements of this section. The
305	court shall not order a criminal justice agency to seal a
306	criminal history record until the person seeking to seal a
307	criminal history record has applied for and received a
308	certificate of eligibility for sealing pursuant to subsection
309	(2). A criminal history record that relates to a violation of s.
310	393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
311	800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
312	839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
313	916.1075, a violation enumerated in s. 907.041, or any violation
314	specified as a predicate offense for registration as a sexual
315	predator pursuant to s. 775.21, without regard to whether that
316	offense alone is sufficient to require such registration, or for
317	registration as a sexual offender pursuant to s. 943.0435, may
318	not be sealed, without regard to whether adjudication was
319	withheld, if the defendant was found guilty of or pled guilty or
320	nolo contendere to the offense, or if the defendant, as a minor,
321	was found to have committed or pled guilty or nolo contendere to
322	committing the offense as a delinquent act. The court may only
323	order sealing of a criminal history record pertaining to one
324	arrest or one incident of alleged criminal activity, except as
325	provided in this section. The court may, at its sole discretion,
326	order the sealing of a criminal history record pertaining to
327	more than one arrest if the additional arrests directly relate
328	to the original arrest. If the court intends to order the
329	sealing of records pertaining to such additional arrests, such
330	intent must be specified in the order. A criminal justice agency
331	may not seal any record pertaining to such additional arrests if
332	the order to seal does not articulate the intention of the court
333	to seal records pertaining to more than one arrest. This section
334	does not prevent the court from ordering the sealing of only a
335	portion of a criminal history record pertaining to one arrest or
336	one incident of alleged criminal activity. Notwithstanding any
337	law to the contrary, a criminal justice agency may comply with
338	laws, court orders, and official requests of other jurisdictions
339	relating to sealing, correction, or confidential handling of
340	criminal history records or information derived therefrom. This
341	section does not confer any right to the sealing of any criminal
342	history record, and any request for sealing a criminal history
343	record may be denied at the sole discretion of the court.
344	(4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.-A criminal
345	history record of a minor or an adult which is ordered sealed by
346	a court of competent jurisdiction pursuant to this section is
347	confidential and exempt from the provisions of s. 119.07(1) and
348	s. 24(a), Art. I of the State Constitution and is available only
349	to the person who is the subject of the record, to the subject's
350	attorney, to criminal justice agencies for their respective
351	criminal justice purposes, which include conducting a criminal
352	history background check for approval of firearms purchases or
353	transfers as authorized by state or federal law, to judges in
354	the state courts system for the purpose of assisting them in
355	their case-related decisionmaking responsibilities, as set forth
356	in s. 943.053(5), or to those entities set forth in
357	subparagraphs (a)1., 4., 5., 6., and 8. for their respective
358	licensing, access authorization, and employment purposes.
359	(a) The subject of a criminal history record sealed under
360	this section or under other provisions of law, including former
361	s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
362	deny or fail to acknowledge the arrests covered by the sealed
363	record, except when the subject of the record:
364	1. Is a candidate for employment with a criminal justice
365	agency;
366	2. Is a defendant in a criminal prosecution;
367	3. Concurrently or subsequently petitions for relief under
368	this section or s. 943.0585;
369	4. Is a candidate for admission to The Florida Bar;
370	5. Is seeking to be employed or licensed by or to contract
371	with the Department of Children and Family Services, the Agency
372	for Health Care Administration, the Agency for Persons with
373	Disabilities, or the Department of Juvenile Justice or to be
374	employed or used by such contractor or licensee in a sensitive
375	position having direct contact with children, the
376	developmentally disabled, the aged, or the elderly as provided
377	in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
378	402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5)(4),
379	s. 415.103, chapter 916, s. 985.644, chapter 400, or chapter
380	429;
381	6. Is seeking to be employed or licensed by the Department
382	of Education, any district school board, any university
383	laboratory school, any charter school, any private or parochial
384	school, or any local governmental entity that licenses child
385	care facilities;
386	7. Is attempting to purchase a firearm from a licensed
387	importer, licensed manufacturer, or licensed dealer and is
388	subject to a criminal history check under state or federal law;
389	or
390	8. Is seeking authorization from a Florida seaport
391	identified in s. 311.09 for employment within or access to one
392	or more of such seaports pursuant to s. 311.12.
393	Section 9. This act shall take effect July 1, 2010.

CODING: Words stricken are deletions; words underlined are additions.