Bill Text: FL S0142 | 2013 | Regular Session | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Intellectual Disabilities
Spectrum: Bipartisan Bill
Status: (Passed) 2013-06-17 - Chapter No. 2013-162 [S0142 Detail]
Download: Florida-2013-S0142-Comm_Sub.html
Bill Title: Intellectual Disabilities
Spectrum: Bipartisan Bill
Status: (Passed) 2013-06-17 - Chapter No. 2013-162 [S0142 Detail]
Download: Florida-2013-S0142-Comm_Sub.html
Florida Senate - 2013 CS for SB 142 By the Committee on Criminal Justice; and Senators Altman and Sobel 591-03334-13 2013142c1 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 for purposes of 5 certain proceedings relating to children; amending ss. 6 40.013, 86.041, 92.53, 92.54, and 92.55, F.S.; 7 substituting the term “intellectual disability” for 8 the term “mental retardation”; amending s. 320.10, 9 F.S.; substituting the Arc of Florida for the 10 Association for Retarded Citizens; amending ss. 11 383.14, 393.063, 393.11, and 394.455, F.S.; 12 substituting the term “intellectual disability” for 13 the term “mental retardation”; clarifying in s. 14 393.063, that the meaning of the terms “intellectual 15 disability” or “intellectually disabled” is the same 16 as the meaning of the terms “mental retardation,” 17 “retarded,” and “mentally retarded” for purposes of 18 matters relating to the criminal laws and court rules; 19 amending s. 400.960, F.S.; revising definitions 20 relating to intermediate care facilities for the 21 developmentally disabled to delete unused terms; 22 amending s. 408.032, F.S.; conforming a cross 23 reference; amending s. 409.908, F.S.; substituting the 24 term “intellectually disabled” for the term “mentally 25 retarded”; amending ss. 413.20, 440.49, and 499.0054, 26 F.S.; substituting the term “intellectual disability” 27 for the term “mental retardation”; amending s. 28 514.072, F.S.; conforming a cross-reference and 29 deleting obsolete provisions; amending ss. 627.6041, 30 627.6615, 641.31, 650.05, 765.204, 849.04, 914.16, 31 914.17, 916.105, and 916.106, F.S.; substituting the 32 term “intellectual disability” for the term “mental 33 retardation”; amending s. 916.107, F.S.; substituting 34 the term “intellectual disability” for the term 35 “retardation”; providing a directive to the Division 36 of Law Revision and Information; amending ss. 916.301, 37 916.3012, 916.302, 916.3025, 916.303, 916.304, 918.16, 38 921.137, 941.38, 944.602, 945.025, 945.12, 945.42, 39 947.185, 984.19, 985.14, 985.145, 985.18, 985.19, 40 985.195, and 985.61, F.S.; clarifying in s. 921.137, 41 F.S., that the terms “intellectual disability” or 42 “intellectually disabled” are interchangeable with and 43 have the same meaning as the terms “mental 44 retardation,” or “retardation” and “mentally 45 retarded,” as defined before the effective date of the 46 act; substituting the term “intellectual disability” 47 for the term “mental retardation”; expressing 48 legislative intent; providing an effective date. 49 50 Be It Enacted by the Legislature of the State of Florida: 51 52 Section 1. Subsection (15) of section 39.502, Florida 53 Statutes, is amended to read: 54 39.502 Notice, process, and service.— 55 (15) A party who is identified as a person who has awith56 mental illness orwitha developmental disability must be 57 informed by the court of the availability of advocacy services 58 through the department, the Arc of FloridaAssociation for59Retarded Citizens, or other appropriate mental health or 60 developmental disability advocacy groups and encouraged to seek 61 such services. 62 Section 2. Subsection (9) of section 40.013, Florida 63 Statutes, is amended to read: 64 40.013 Persons disqualified or excused from jury service.— 65 (9) Any person who is responsible for the care of a person 66 who, because of mental illness, intellectual disabilitymental67retardation, senility, or other physical or mental incapacity, 68 is incapable of caring for himself or herself shall be excused 69 from jury service upon request. 70 Section 3. Section 86.041, Florida Statutes, is amended to 71 read: 72 86.041 Actions by executors, administrators, trustees, 73 etc.—Any person interested as or through an executor, 74 administrator, trustee, guardian, or other fiduciary, creditor, 75 devisee, legatee, heir, next of kin, or cestui que trust, in the 76 administration of a trust, a guardianship, orofthe estate of a 77 decedent, an infant, a mental incompetent, or insolvent may have 78 a declaration of rights or equitable or legal relations toin79respect thereto: 80 (1)ToAscertain any class of creditors, devisees, 81 legatees, heirs, next of kin, or others;or82 (2)ToDirect the executor, administrator, or trustee to 83 refrain from doing any particular act in his or her fiduciary 84 capacity; or 85 (3)ToDetermine any question relating toarising inthe 86 administration of the guardianship, estate, or trust, including 87 questions of construction of wills and other writings. 88 89 For the purpose of this section, a “mental incompetent” is one 90 who, because of mental illness, intellectual disabilitymental91retardation, senility, excessive use of drugs or alcohol, or 92 other mental incapacity, is incapable ofeithermanaging his or 93 her property or caring for himself or herself,or both. 94 Section 4. Section 92.53, Florida Statutes, is amended to 95 read: 96 92.53 Videotaping theoftestimony of a victim or witness 97 under age 16 or who has an intellectual disabilityperson with98mental retardation.— 99 (1) On motion and hearing in camera and a finding that 100 there is a substantial likelihood that a victim or witness who 101 is under the age of 16 or who has an intellectual disabilityis102a person with mental retardationas defined in s. 393.063 would 103 suffer at least moderate emotional or mental harm due to the 104 presence of the defendant if such victim or witnessthe child or105person with mental retardationis required to testify in open 106 court, orthat such victim or witnessisotherwiseunavailable 107 as defined in s. 90.804(1), the trial court may order the 108 videotaping of the testimony of the victim or witness in a case, 109 whether civil or criminal in nature, in which videotaped 110 testimony is to be usedutilizedat trial in lieu of trial 111 testimony in open court. 112 (2) The motion may be filed by: 113 (a) The victim or witness, or the victim’s or witness’s 114 attorney, parent, legal guardian, or guardian ad litem; 115 (b) A trial judge on his or her own motion; 116 (c) Any party in a civil proceeding; or 117 (d) The prosecuting attorney or the defendant, or the 118 defendant’s counsel. 119 (3) The judge shall preside, or shall appoint a special 120 master to preside, at the videotaping unlessthe following121conditions are met: 122 (a) The child or the person who has the intellectual 123 disabilitywith mental retardationis represented by a guardian 124 ad litem or counsel; 125 (b) The representative of the victim or witness and the 126 counsel for each party stipulate that the requirement for the 127 presence of the judge or special master may be waived; and 128 (c) The court finds at a hearing on the motion that the 129 presence of a judge or special master is not necessary to 130 protect the victim or witness. 131 (4) The defendant and the defendant’s counsel mustshallbe 132 present at the videotaping,unless the defendant has waived this 133 right. The court may require the defendant to view the testimony 134 from outside the presence of the child or the person who has an 135 intellectual disabilitywith mental retardationby means of a 136 two-way mirror or another similar method that ensureswill137ensurethat the defendant can observe and hear the testimony of 138 the victim or witness in person, butthatthe victim or witness 139 cannot hear or see the defendant. The defendant and the attorney 140 for the defendant may communicate by any appropriate private 141 method. 142 (5) Any party, or the court on its own motion, may request 143 the aid of an interpreter, as provided in s. 90.606, to aid the 144 parties in formulating methods of questioning the child or 145 person who has the intellectual disabilitywith mental146retardationand in interpreting the answers of the child or 147 person duringwith mental retardation throughoutproceedings 148 conducted under this section. 149 (6) The motion referred to in subsection (1) may be made at 150 any time with reasonable notice to each party to the cause, and 151 videotaping of testimony may be made any time after the court 152 grants the motion. The videotaped testimony isshall be153 admissible as evidence in the trial of the cause; however, such 154 testimony isshallnotbeadmissible in any trial or proceeding 155 in which such witness testifies by use of closed circuit 156 television pursuant to s. 92.54. 157 (7) The court shall make specific findings of fact, on the 158 record, as to the basis for its ruling under this section. 159 Section 5. Section 92.54, Florida Statutes, is amended to 160 read: 161 92.54 Use of closed circuit television in proceedings 162 involving a victim or witnessvictims or witnessesunder the age 163 of 16 or who has an intellectual disabilitypersons with mental164retardation.— 165 (1) Upon motion and hearing in camera and upon a finding 166 that there is a substantial likelihood that a victim or witness 167 under the age of 16 or who has an intellectual disabilitythe168child or person with mental retardationwill suffer at least 169 moderate emotional or mental harm due to the presence of the 170 defendant if such victim or witnessthe child or person with171mental retardationis required to testify in open court, orthat172such victim or witnessis unavailable as defined in s. 173 90.804(1), the trial court may order that the testimony of thea174child under the age of 16 or person with mental retardation who175is avictim or witness be taken outside of the courtroom and 176 shown by means of closed circuit television. 177 (2) The motion may be filed by the victim or witness; the 178 attorney, parent, legal guardian, or guardian ad litem of the 179 victim or witness; the prosecutor; the defendant or the 180 defendant’s counsel; or the trial judge on his or her own 181 motion. 182 (3) Only the judge, the prosecutor, the defendant, the 183 attorney for the defendant, the operators of the videotape 184 equipment, an interpreter, and some other person who, in the 185 opinion of the court, contributes to the well-being of the child 186 or the person who has an intellectual disabilitywith mental187retardationand who will not be a witness in the case may be in 188 the room during the recording of the testimony. 189 (4) During the victim’s or witness’schild’s or person’s190with mental retardationtestimony by closed circuit television, 191 the court may require the defendant to view the testimony from 192 the courtroom. In such a case, the court shall permit the 193 defendant to observe and hear the testimony of the victim or 194 witnesschild or person with mental retardation, but mustshall195 ensure that the victim or witnesschild or person with mental196retardationcannot hear or see the defendant. The defendant’s 197 right to assistance of counsel, which includes the right to 198 immediate and direct communication with counsel conducting 199 cross-examination, must be protected and, upon the defendant’s 200 request, such communication mustshallbe provided by any 201 appropriate electronic method. 202 (5) The court shall make specific findings of fact, on the 203 record, as to the basis for its ruling under this section. 204 Section 6. Section 92.55, Florida Statutes, is amended to 205 read: 206 92.55 Judicial or other proceedings involving victim or 207 witness under the age of 16 or person who has an intellectual 208 disabilitywith mental retardation; special protections; use of 209 registered service or therapy animals.— 210 (1) Upon motion of any party, upon motion of a parent, 211 guardian, attorney, or guardian ad litem for a victim or witness 212childunder the age of 16 or person who has an intellectual 213 disabilitywith mental retardation, or upon its own motion, the 214 court may enter any order necessary to protect sucha child215under the age of 16 or person with mental retardation who is a216 victim or witness in any judicial proceeding or other official 217 proceeding from severe emotional or mental harm due to the 218 presence of the defendant if the victim or witnesschild or219person with mental retardationis required to testify in open 220 court. Such orders mustshallrelate to the taking of testimony 221 andshallinclude, but are notbelimited to: 222 (a) Interviewing or the taking of depositions as part of a 223 civil or criminal proceeding. 224 (b) Examination and cross-examination for the purpose of 225 qualifying as a witness or testifying in any proceeding. 226 (c) The use of testimony taken outside of the courtroom, 227 including proceedings under ss. 92.53 and 92.54. 228 (2) In ruling upon the motion, the court shall consider 229take into consideration: 230 (a) The age of the child, the nature of the offense or act, 231 the relationship of the child to the parties in the case or to 232 the defendant in a criminal action, the degree of emotional 233 trauma that will result to the child as a consequence of the 234 defendant’s presence, and any other fact that the court deems 235 relevant; or 236 (b) The age of the person who has an intellectual 237 disabilitywith mental retardation, the functional capacity of 238 suchthepersonwith mental retardation, the nature of the 239 offenses or act, the relationship of the personwith mental240retardationto the parties in the case or to the defendant in a 241 criminal action, the degree of emotional trauma that will result 242 to the personwith mental retardationas a consequence of the 243 defendant’s presence, and any other fact that the court deems 244 relevant. 245 (3) In addition to such other reliefas isprovided by law, 246 the court may enter orders limiting the number of times that a 247 child or a person who has an intellectual disabilitywith mental248retardationmay be interviewed, prohibiting depositions of such 249achild or personwith mental retardation, requiring the 250 submission of questions before theprior toexamination of thea251 child or personwith mental retardation, setting the place and 252 conditions for interviewing theachild or personwith mental253retardationor for conducting any other proceeding, or 254 permitting or prohibiting the attendance of any person at any 255 proceeding. The court shall enter any order necessary to protect 256 the rights of all parties, including the defendant in any 257 criminal action. 258 (4) The court may set any other conditions it finds just 259 and appropriate whenon thetaking theoftestimony ofbya 260 child, including the use of a service or therapy animal that has 261 been evaluated and registered according to national standards, 262 in any proceeding involving a sexual offense. When deciding 263 whether to permit a child to testify with the assistance of a 264 registered service or therapy animal, the court shall consider 265take into considerationthe age of the child, the interests of 266 the child, the rights of the parties to the litigation, and any 267 other relevant factor that would facilitate the testimony by the 268 child. 269 Section 7. Subsection (1) of section 320.10, Florida 270 Statutes, is amended to read: 271 320.10 Exemptions.— 272 (1) The provisions of s. 320.08 do not apply to: 273 (a) Any motor vehicle or mobile home owned by, and operated 274 exclusively for the personal use of, any member of the United 275 States Armed Forces who is not a resident of this state and who 276 is stationed in the state while in compliance with military or 277 naval orders; 278 (b) Any motor vehicle owned or operated exclusively by the 279 Federal Government; 280 (c) Any motor vehicle owned and operated exclusively for 281 the benefit of the Boys’ Clubs of America, the National Audubon 282 Society, the National Children’s Cardiac Hospital, any humane 283 society, any nationally chartered veterans’ organization that 284 maintains a state headquarters in this state, the Children’s 285 Bible Mission, the Boy Scouts of America, the Girl Scouts of 286 America, the Salvation Army, the American National Red Cross, 287 the United Service Organization, any local member unit of the 288 National Urban League which provides free services to municipal 289 and county residents who are in need of such services, the Young 290 Men’s Christian Association, the Young Men’s Hebrew Association, 291 the Camp Fire Girls’ Council, the Young Women’s Christian 292 Association, the Young Women’s Hebrew Association, any local 293 member unit of the Arc of FloridaAssociation for Retarded294Citizens, the Children’s Home Society of Florida, or the 295 Goodwill Industries. A not-for-profit organization named in this 296 paragraph and its local affiliate organizations isshall be297 eligible for the exemption if itfor so long as eachmaintains 298 current articles of incorporation on file with the Department of 299 State and qualifies as a not-for-profit organization under s. 300 212.08; 301 (d) Any motor vehicle owned and operated by a church, 302 temple, or synagogue for exclusive use as a community service 303 van or to transport passengers without compensation to religious 304 services or for religious education; 305 (e) Any motor vehicle owned and operated by the Civil Air 306 Patrol or the United States Coast Guard Auxiliary; 307 (f) Any mobile blood bank unit when operated as a nonprofit 308 service by an organization; 309 (g) Any mobile X-ray unit or truck or bus used exclusively 310 for public health purposes; 311 (h) Any school bus owned and operated by a nonprofit 312 educational or religious corporation; 313 (i) Any vehicle used by any of the various search and 314 rescue units of the several counties for exclusive use as a 315 search and rescue vehicle; orand316 (j) Any motor vehicle used by a community transportation 317 coordinator or a transportation operator as defined in part I of 318 chapter 427, and which is used exclusively to transport 319 transportation disadvantaged persons. 320 Section 8. Paragraph (d) of subsection (3) of section 321 383.14, Florida Statutes, is amended to read: 322 383.14 Screening for metabolic disorders, other hereditary 323 and congenital disorders, and environmental risk factors.— 324 (3) DEPARTMENT OF HEALTH; POWERS AND DUTIES.—The department 325 shall administer and provide certain services to implement the 326 provisions of this section and shall: 327 (d) Maintain a confidential registry of cases, including 328 information of importance for the purpose of followup services 329 to prevent intellectual disabilitiesmental retardation, to 330 correct or ameliorate physical disabilitieshandicaps, and for 331 epidemiologic studies, if indicated. Such registry shall be 332 exempt from the provisions of s. 119.07(1). 333 334 All provisions of this subsection must be coordinated with the 335 provisions and plans established under this chapter, chapter 336 411, and Pub. L. No. 99-457. 337 Section 9. Subsection (9) and subsections (21) through (32) 338 of section 393.063, Florida Statutes, are reordered and amended 339 to read: 340 393.063 Definitions.—For the purposes of this chapter, the 341 term: 342 (9) “Developmental disability” means a disorder or syndrome 343 that is attributable to intellectual disabilityretardation, 344 cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; 345 that manifests before the age of 18; and that constitutes a 346 substantial handicap that can reasonably be expected to continue 347 indefinitely. 348 (22)(21)“Intermediate care facility for the 349 developmentally disabled” or “ICF/DD” means a residential 350 facility licensed and certified underpursuant topart VIII of 351 chapter 400. 352 (23)(22)“Medical/dental services” means medically 353 necessary services thatwhichare provided or ordered for a 354 client by a person licensed under chapter 458, chapter 459, or 355 chapter 466. Such services may include, but are not limited to, 356 prescription drugs, specialized therapies, nursing supervision, 357 hospitalization, dietary services, prosthetic devices, surgery, 358 specialized equipment and supplies, adaptive equipment, and 359 other services as required to prevent or alleviate a medical or 360 dental condition. 361 (24)(23)“Personal care services” means individual 362 assistance with or supervision of essential activities of daily 363 living for self-care, including ambulation, bathing, dressing, 364 eating, grooming, and toileting, and other similar services that 365 are incidental to the care furnished and essential to the 366 health, safety, and welfare of the client ifwhen there isno 367 one else is available to perform those services. 368 (25)(24)“Prader-Willi syndrome” means an inherited 369 condition typified by neonatal hypotonia with failure to thrive, 370 hyperphagia or an excessive drive to eat which leads to obesity 371 usually at 18 to 36 months of age, mild to moderate intellectual 372 disabilitymental retardation, hypogonadism, short stature, mild 373 facial dysmorphism, and a characteristic neurobehavior. 374 (26)(25)“Relative” means an individual who is connected by 375 affinity or consanguinity to the client and who is 18 years of 376 age or older. 377 (27)(26)“Resident” means aanyperson who has awith378 developmental disability and residesdisabilities residingat a 379 residential facility, whether or not such person is a client of 380 the agency. 381 (28)(27)“Residential facility” means a facility providing 382 room and board and personal care for persons who havewith383 developmental disabilities. 384 (29)(28)“Residential habilitation” means supervision and 385 training with the acquisition, retention, or improvement in 386 skills related to activities of daily living, such as personal 387 hygiene skills, homemaking skills, and the social and adaptive 388 skills necessary to enable the individual to reside in the 389 community. 390 (30)(29)“Residential habilitation center” means a 391 community residential facility licensed under this chapter which 392 provides habilitation services. The capacity of such a facility 393 mayshallnot be fewer than nine residents. After October 1, 394 1989, new residential habilitation centers may not be licensed 395 and the licensed capacity for any existing residential 396 habilitation center may not be increased. 397 (31)(30)“Respite service” means appropriate, short-term, 398 temporary care that is provided to a person who has awith399 developmental disability in orderdisabilitiesto meet the 400 planned or emergency needs of the person or the family or other 401 direct service provider. 402 (32)(31)“Restraint” means a physical device, method, or 403 drug used to control dangerous behavior. 404 (a) A physical restraint is any manual method or physical 405 or mechanical device, material, or equipment attached or 406 adjacent to antheindividual’s body so that he or she cannot 407 easily remove the restraint and which restricts freedom of 408 movement or normal access to one’s body. 409 (b) A drug used as a restraint is a medication used to 410 control the person’s behavior or to restrict his or her freedom 411 of movement and is not a standard treatment for the person’s 412 medical or psychiatric condition. Physically holding a person 413 during a procedure to forcibly administer psychotropic 414 medication is a physical restraint. 415 (c) Restraint does not include physical devices, such as 416 orthopedically prescribed appliances, surgical dressings and 417 bandages, supportive body bands, or other physical holdingwhen418 necessary for routine physical examinations and tests; for 419 purposes of orthopedic, surgical, or other similar medical 420 treatment;when usedto provide support for the achievement of 421 functional body position or proper balance; orwhen usedto 422 protect a person from falling out of bed. 423 (21)(32)“Intellectual disability”“Retardation”means 424 significantly subaverage general intellectual functioning 425 existing concurrently with deficits in adaptive behavior which 426thatmanifests before the age of 18 and can reasonably be 427 expected to continue indefinitely. For the purposes of this 428 definition, the term: 429 (a) “Adaptive behavior” means the effectiveness or degree 430 with which an individual meets the standards of personal 431 independence and social responsibility expected of his or her 432 age, cultural group, and community. 433 (b) “Significantly subaverage general intellectual 434 functioning,”for the purpose of this definition,means 435 performance thatwhichis two or more standard deviations from 436 the mean score on a standardized intelligence test specified in 437 the rules of the agency.“Adaptive behavior,” for the purpose of438this definition, means the effectiveness or degree with which an439individual meets the standards of personal independence and440social responsibility expected of his or her age, cultural441group, and community.442 443 For purposes of the application of the criminal laws and 444 procedural rules of this state to matters relating to pretrial, 445 trial, sentencing, and any matters relating to the imposition 446 and execution of the death penalty, the terms “intellectual 447 disability” or “intellectually disabled” are interchangeable 448 with and have the same meaning as the terms “mental retardation” 449 or “retardation” and “mentally retarded” as defined in this 450 section before July 1, 2013. 451 Section 10. Subsection (1), paragraphs (c) and (d) of 452 subsection (2), paragraphs (b) through (d) of subsection (3), 453 paragraph (b) of subsection (4), paragraphs (b), (e), (f), and 454 (g) of subsection (5), subsection (6), paragraph (d) of 455 subsection (7), paragraph (b) of subsection (8), subsection 456 (10), and paragraph (b) of subsection (12) of section 393.11, 457 Florida Statutes, are amended to read: 458 393.11 Involuntary admission to residential services.— 459 (1) JURISDICTION.—IfWhena person has an intellectual 460 disabilityis mentally retardedand requires involuntary 461 admission to residential services provided by the agency, the 462 circuit court of the county in which the person resides has 463shall havejurisdiction to conduct a hearing and enter an order 464 involuntarily admitting the person in order forthatthe person 465 tomayreceive the care, treatment, habilitation, and 466 rehabilitation thatwhichthe person needs. For the purpose of 467 identifying intellectual disabilitymental retardation, 468 diagnostic capability shall be established by the agency. Except 469 as otherwise specified, the proceedings under this section are 470shall begoverned by the Florida Rules of Civil Procedure. 471 (2) PETITION.— 472 (c) The petition shall be verified and mustshall: 473 1. State the name, age, and present address of the 474 commissioners and their relationship to the person who has an 475 intellectual disabilitywith mental retardationor autism; 476 2. State the name, age, county of residence, and present 477 address of the person who has an intellectual disabilitywith478mental retardationor autism; 479 3. Allege that the commission believes that the person 480 needs involuntary residential services and specify the factual 481 information on which the belief is based; 482 4. Allege that the person lacks sufficient capacity to give 483 express and informed consent to a voluntary application for 484 services and lacks the basic survival and self-care skills to 485 provide for the person’s well-being or is likely to physically 486 injure others if allowed to remain at liberty; and 487 5. State which residential setting is the least restrictive 488 and most appropriate alternative and specify the factual 489 information on which the belief is based. 490 (d) The petition mustshallbe filed in the circuit court 491 of the county in which the person who has the intellectual 492 disabilitywith mental retardationor autism resides. 493 (3) NOTICE.— 494 (b) IfWhenevera motion or petition has been filed 495 pursuant to s. 916.303 to dismiss criminal charges against a 496 defendant who has an intellectual disabilitywith retardationor 497 autism, and a petition is filed to involuntarily admit the 498 defendant to residential services under this section, the notice 499 of the filing of the petition mustshallalso be given to the 500 defendant’s attorney, the state attorney of the circuit from 501 which the defendant was committed, and the agency. 502 (c) The notice mustshallstate that a hearing shall be set 503 to inquire into the need of the person who has an intellectual 504 disabilitywith mental retardationor autism for involuntary 505 residential services. The notice mustshallalso state the date 506 of the hearing on the petition. 507 (d) The notice mustshallstate that the individual who has 508 an intellectual disabilitywith mental retardationor autism has 509 the right to be represented by counsel of his or her own choice 510 and that, if the person cannot afford an attorney, the court 511 shall appoint one. 512 (4) AGENCY PARTICIPATION.— 513 (b) Following examination, the agency shall file a written 514 report with the court at leastnot less than10 working days 515 before the date of the hearing. The report must be served on the 516 petitioner, the person who has the intellectual disabilitywith517mental retardation, and the person’s attorney at the time the 518 report is filed with the court. 519 (5) EXAMINING COMMITTEE.— 520 (b) The court shall appoint at leastno fewer thanthree 521 disinterested experts who have demonstrated to the court an 522 expertise in the diagnosis, evaluation, and treatment of persons 523 who have intellectual disabilitieswith mental retardation. The 524 committee must include at least one licensed and qualified 525 physician, one licensed and qualified psychologist, and one 526 qualified professional who, atwitha minimum, hasofa masters 527 degree in social work, special education, or vocational 528 rehabilitation counseling, to examine the person and to testify 529 at the hearing on the involuntary admission to residential 530 services. 531 (e) The committee shall prepare a written report for the 532 court. The report must explicitly document the extent that the 533 person meets the criteria for involuntary admission. The report, 534 and expert testimony, must include, but not be limited to: 535 1. The degree of the person’s intellectual disability 536mental retardationand whether, using diagnostic capabilities 537 established by the agency, the person is eligible for agency 538 services; 539 2. Whether, because of the person’s degree of intellectual 540 disabilitymental retardation, the person: 541 a. Lacks sufficient capacity to give express and informed 542 consent to a voluntary application for services pursuant to s. 543 393.065; 544 b. Lacks basic survival and self-care skills to such a 545 degree that close supervision and habilitation in a residential 546 setting is necessary and if not provided would result in a real 547 and present threat of substantial harm to the person’s well 548 being; or 549 c. Is likely to physically injure others if allowed to 550 remain at liberty. 551 3. The purpose to be served by residential care; 552 4. A recommendation on the type of residential placement 553 which would be the most appropriate and least restrictive for 554 the person; and 555 5. The appropriate care, habilitation, and treatment. 556 (f) The committee shall file the report with the court at 557 leastnot less than10 working days before the date of the 558 hearing. The report mustshallbe served on the petitioner, the 559 person who has the intellectual disabilitywith mental560retardation, the person’s attorney at the time the report is 561 filed with the court, and the agency. 562 (g) Members of the examining committee shall receive a 563 reasonable fee to be determined by the court. The fees shallare564tobe paid from the general revenue fund of the county in which 565 the person who has the intellectual disabilitywith mental566retardationresided when the petition was filed. 567 (6) COUNSEL; GUARDIAN AD LITEM.— 568 (a) The person who has the intellectual disability must 569with mental retardation shallbe represented by counsel at all 570 stages of the judicial proceeding. IfIn the eventthe person is 571 indigent and cannot afford counsel, the court shall appoint a 572 public defender at leastnot less than20 working days before 573 the scheduled hearing. The person’s counsel shall have full 574 access to the records of the service provider and the agency. In 575 all cases, the attorney shall represent the rights and legal 576 interests of the personwith mental retardation, regardless of 577 who initiatesmay initiatethe proceedings or payspaythe 578 attorney’s fee. 579 (b) If the attorney, during the course of his or her 580 representation, reasonably believes that the person who has the 581 intellectual disabilitywith mental retardationcannot 582 adequately act in his or her own interest, the attorney may seek 583 the appointment of a guardian ad litem. A prior finding of 584 incompetency is not required before a guardian ad litem is 585 appointed pursuant to this section. 586 (7) HEARING.— 587 (d) The person who has the intellectual disability must 588with mental retardation shallbe physically present throughout 589 the entire proceeding. If the person’s attorney believes that 590 the person’s presence at the hearing is not in his or herthe591person’sbest interest, the person’s presence may be waived once 592 the court has seen the person and the hearing has commenced. 593 (8) ORDER.— 594 (b) An order of involuntary admission to residential 595 services may not be entered unless the court finds that: 596 1. The person is intellectually disabledmentally retarded597 or autistic; 598 2. Placement in a residential setting is the least 599 restrictive and most appropriate alternative to meet the 600 person’s needs; and 601 3. Because of the person’s degree of intellectual 602 disabilitymental retardationor autism, the person: 603 a. Lacks sufficient capacity to give express and informed 604 consent to a voluntary application for services pursuant to s. 605 393.065 and lacks basic survival and self-care skills to such a 606 degree that close supervision and habilitation in a residential 607 setting is necessary and, if not provided, would result in a 608 real and present threat of substantial harm to the person’s 609 well-being; or 610 b. Is likely to physically injure others if allowed to 611 remain at liberty. 612 (10) COMPETENCY.— 613 (a) The issue of competency isshall beseparate and 614 distinct from a determination of the appropriateness of 615 involuntary admission to residential services due to 616 intellectual disabilityfor a condition of mental retardation. 617 (b) The issue of the competency of a person who has an 618 intellectual disabilitywith mental retardationfor purposes of 619 assigning guardianship shall be determined in a separate 620 proceeding according to the procedures and requirements of 621 chapter 744. The issue of the competency of a person who has an 622 intellectual disabilitywith mental retardationor autism for 623 purposes of determining whether the person is competent to 624 proceed in a criminal trial shall be determined in accordance 625 with chapter 916. 626 (12) APPEAL.— 627 (b) The filing of an appeal by the person who has an 628 intellectual disability stayswith mental retardation shall stay629 admission of the person into residential care. The stay remains 630shall remainin effect during the pendency of all review 631 proceedings in Florida courts until a mandate issues. 632 Section 11. Subsection (18) of section 394.455, Florida 633 Statutes, is amended to read: 634 394.455 Definitions.—As used in this part, unless the 635 context clearly requires otherwise, the term: 636 (18) “Mental illness” means an impairment of the mental or 637 emotional processes that exercise conscious control of one’s 638 actions or of the ability to perceive or understand reality, 639 which impairment substantially interferes with theaperson’s 640 ability to meet the ordinary demands of living, regardless of641etiology. For the purposes of this part, the term does not 642 include aretardation ordevelopmental disability as defined in 643 chapter 393, intoxication, or conditions manifested only by 644 antisocial behavior or substance abuse impairment. 645 Section 12. Subsections (3) through (13) of section 646 400.960, Florida Statutes, are amended to read: 647 400.960 Definitions.—As used in this part, the term: 648(3)“Autism” has the same meaning as in s.393.063.649(4)“Cerebral palsy” has the same meaning as in s.393.063.650 (3)(5)“Client” means any person determined by the Agency 651 for Persons with Disabilities to be eligible for developmental 652 services. 653 (4)(6)“Developmentally disabled”“developmental654disability”has the same meaning as “developmental disability” 655 as that term is defined in s. 393.063. 656 (5)(7)“Direct service provider” means a person 18 years of 657 age or older who has direct contact with individuals who have 658withdevelopmental disabilities and who is unrelated to suchthe659 individualswith developmental disabilities. 660 (6)(8)“Intermediate care facility for the developmentally 661 disabled” means a residential facility licensed and certified in 662 accordance with state law, and certified by the Federal 663 Government, pursuant to the Social Security Act, as a provider 664 of Medicaid services to persons who havewithdevelopmental 665 disabilities. 666(9)“Prader-Willi syndrome” has the same meaning as in s.667393.063.668 (7)(10)(a)“Restraint” means a physical device, method, or 669 drug used to control behavior. 670 (a) A physical restraint is any manual method or physical 671 or mechanical device, material, or equipment attached or 672 adjacent to the individual’s body so that he or she cannot 673 easily remove the restraint and which restricts freedom of 674 movement or normal access to one’s body. 675 (b) A drug used as a restraint is a medication used to 676 control the person’s behavior or to restrict his or her freedom 677 of movement. Physically holding a person during a procedure to 678 forcibly administer psychotropic medication is a physical 679 restraint. 680 (c) Restraint does not include physical devices, such as 681 orthopedically prescribed appliances, surgical dressings and 682 bandages, supportive body bands, or other physical holdingwhen683 necessary for routine physical examinations and tests; for 684 purposes of orthopedic, surgical, or other similar medical 685 treatment;when usedto provide support for the achievement of 686 functional body position or proper balance; orwhen usedto 687 protect a person from falling out of bed. 688(11) “Retardation” has the same meaning as in s.393.063.689 (8)(12)“Seclusion” means the physical segregation of a 690 person in any fashion or the involuntary isolation of a person 691 in a room or area from which the person is prevented from 692 leaving. The prevention may be by physical barrier or by a staff 693 member who is acting in a manner, or who is physically situated, 694 so as to prevent the person from leaving the room or area. For 695 purposes of this part, the term does not mean isolation due to a 696 person’s medical condition or symptoms. 697(13)“Spina bifida” has the same meaning as in s.393.063.698 Section 13. Subsection (12) of section 408.032, Florida 699 Statutes, is amended to read: 700 408.032 Definitions relating to Health Facility and 701 Services Development Act.—As used in ss. 408.031-408.045, the 702 term: 703 (12) “Intermediate care facility for the developmentally 704 disabled” means a residential facility licensed under part VIII 705 of chapter 400chapter 393 and certified by the Federal706Government pursuant to the Social Security Act as a provider of707Medicaid services to persons who are mentally retarded or who708have a related condition. 709 Section 14. Subsection (8) of section 409.908, Florida 710 Statutes, is amended to read: 711 409.908 Reimbursement of Medicaid providers.—Subject to 712 specific appropriations, the agency shall reimburse Medicaid 713 providers, in accordance with state and federal law, according 714 to methodologies set forth in the rules of the agency and in 715 policy manuals and handbooks incorporated by reference therein. 716 These methodologies may include fee schedules, reimbursement 717 methods based on cost reporting, negotiated fees, competitive 718 bidding pursuant to s. 287.057, and other mechanisms the agency 719 considers efficient and effective for purchasing services or 720 goods on behalf of recipients. If a provider is reimbursed based 721 on cost reporting and submits a cost report late and that cost 722 report would have been used to set a lower reimbursement rate 723 for a rate semester, then the provider’s rate for that semester 724 shall be retroactively calculated using the new cost report, and 725 full payment at the recalculated rate shall be effected 726 retroactively. Medicare-granted extensions for filing cost 727 reports, if applicable, shall also apply to Medicaid cost 728 reports. Payment for Medicaid compensable services made on 729 behalf of Medicaid eligible persons is subject to the 730 availability of moneys and any limitations or directions 731 provided for in the General Appropriations Act or chapter 216. 732 Further, nothing in this section shall be construed to prevent 733 or limit the agency from adjusting fees, reimbursement rates, 734 lengths of stay, number of visits, or number of services, or 735 making any other adjustments necessary to comply with the 736 availability of moneys and any limitations or directions 737 provided for in the General Appropriations Act, provided the 738 adjustment is consistent with legislative intent. 739 (8) A provider of home-based or community-based services 740 rendered pursuant to a federally approved waiver shall be 741 reimbursed based on an established or negotiated rate for each 742 service. These rates shall be established according to an 743 analysis of the expenditure history and prospective budget 744 developed by each contract provider participating in the waiver 745 program, or under any other methodology adopted by the agency 746 and approved by the Federal Government in accordance with the 747 waiver. Privately owned and operated community-based residential 748 facilities which meet agency requirements and which formerly 749 received Medicaid reimbursement for the optional intermediate 750 care facility for the intellectually disabledmentally retarded751 service may participate in the developmental services waiver as 752 part of a home-and-community-based continuum of care for 753 Medicaid recipients who receive waiver services. 754 Section 15. Subsection (16) of section 413.20, Florida 755 Statutes, is amended to read: 756 413.20 Definitions.—As used in this part, the term: 757 (16) “Person who has a significant disability” means an 758 individual who has a disability that is a severe physical or 759 mental impairment that seriously limits one or more functional 760 capacities, such as mobility, communication, self-care, self 761 direction, interpersonal skills, work tolerance, or work skills, 762 in terms of an employment outcome; whose vocational 763 rehabilitation may be expected to require multiple vocational 764 rehabilitation services over an extended period of time; and who 765 has one or more physical or mental disabilities resulting from 766 amputation, arthritis, autism, blindness, burn injury, cancer, 767 cerebral palsy, cystic fibrosis, deafness, head injury, heart 768 disease, hemiplegia, hemophilia, respiratory or pulmonary 769 dysfunction, intellectual disabilitymental retardation, mental 770 illness, multiple sclerosis, muscular dystrophy, musculoskeletal 771 disorder, neurological disorder, including stroke and epilepsy, 772 paraplegia, quadriplegia, or other spinal cord condition, 773 sickle-cell anemia, specific learning disability, end-stage 774 renal disease, or another disability or a combination of 775 disabilities that is determined, after an assessment for 776 determining eligibility and vocational rehabilitation needs, to 777 cause comparable substantial functional limitation. 778 Section 16. Paragraph (a) of subsection (6) of section 779 440.49, Florida Statutes, is amended to read: 780 440.49 Limitation of liability for subsequent injury 781 through Special Disability Trust Fund.— 782 (6) EMPLOYER KNOWLEDGE, EFFECT ON REIMBURSEMENT.— 783 (a) Reimbursement is not allowed under this section unless 784 it is established that the employer knew of the preexisting 785 permanent physical impairment prior to the occurrence of the 786 subsequent injury or occupational disease, andthatthe 787 permanent physical impairment is one of the following: 788 1. Epilepsy. 789 2. Diabetes. 790 3. Cardiac disease. 791 4. Amputation of foot, leg, arm, or hand. 792 5. Total loss of sight of one or both eyes or a partial 793 loss of corrected vision of more than 75 percent bilaterally. 794 6. Residual disability from poliomyelitis. 795 7. Cerebral palsy. 796 8. Multiple sclerosis. 797 9. Parkinson’s disease. 798 10. Meniscectomy. 799 11. Patellectomy. 800 12. Ruptured cruciate ligament. 801 13. Hemophilia. 802 14. Chronic osteomyelitis. 803 15. Surgical or spontaneous fusion of a major weight 804 bearing joint. 805 16. Hyperinsulinism. 806 17. Muscular dystrophy. 807 18. Thrombophlebitis. 808 19. Herniated intervertebral disk. 809 20. Surgical removal of an intervertebral disk or spinal 810 fusion. 811 21. One or more back injuries or a disease process of the 812 back resulting in disability over a total of 120 or more days, 813 if substantiated by a doctor’s opinion that there was a 814 preexisting impairment to the claimant’s back. 815 22. Total deafness. 816 23. Intellectual disability ifMental retardation, provided817 the employee’s intelligence quotient is such that she or he 818 falls within the lowest 2 percentile of the general population. 819 However,it shall not be necessary forthe employer does not 820 need to know the employee’s actual intelligence quotient or 821 actual relative ranking in relation to the intelligence quotient 822 of the general population. 823 24. Any permanent physical condition thatwhich, prior to 824 the industrial accident or occupational disease, constitutes a 825 20 percent20-percentimpairment of a member or of the body as a 826 whole. 827 25. Obesity if, providedthe employee is 30 percent or more 828 over the average weight designated for her or his height and age 829 in the Table of Average Weight of Americans by Height and Age 830 prepared by the Society of Actuaries using data from the 1979 831 Build and Blood Pressure Study. 832 26. Any permanent physical impairment as provideddefined833 in s. 440.15(3) which is a result of a prior industrial accident 834 with the same employer or the employer’s parent company, 835 subsidiary, sister company, or affiliate located within the 836 geographical boundaries of this state. 837 Section 17. Paragraph (g) of subsection (1) of section 838 499.0054, Florida Statutes, is amended to read: 839 499.0054 Advertising and labeling of drugs, devices, and 840 cosmetics; exemptions.— 841 (1) It is a violation of the Florida Drug and Cosmetic Act 842 to perform or cause the performance of any of the following 843 acts: 844 (g) The advertising of any drug or device represented to 845 have any effect in any of the following conditions, disorders, 846 diseases, or processes: 847 1. Blood disorders. 848 2. Bone or joint diseases. 849 3. Kidney diseases or disorders. 850 4. Cancer. 851 5. Diabetes. 852 6. Gall bladder diseases or disorders. 853 7. Heart and vascular diseases. 854 8. High blood pressure. 855 9. Diseases or disorders of the ear or auditory apparatus, 856 including hearing loss or deafness. 857 10. Mental disease or intellectual disabilitymental858retardation. 859 11. Paralysis. 860 12. Prostate gland disorders. 861 13. Conditions of the scalp affecting hair loss. 862 14. Baldness. 863 15. Endocrine disorders. 864 16. Sexual impotence. 865 17. Tumors. 866 18. Venereal diseases. 867 19. Varicose ulcers. 868 20. Breast enlargement. 869 21. Purifying blood. 870 22. Metabolic disorders. 871 23. Immune system disorders or conditions affecting the 872 immune system. 873 24. Extension of life expectancy. 874 25. Stress and tension. 875 26. Brain stimulation or performance. 876 27. The body’s natural defense mechanisms. 877 28. Blood flow. 878 29. Depression. 879 30. Human immunodeficiency virus or acquired immune 880 deficiency syndrome or related disorders or conditions. 881 Section 18. Section 514.072, Florida Statutes, is amended 882 to read: 883 514.072 Certification of swimming instructors for people 884 who have developmental disabilitiesrequired.—Any person working 885 at a swimming pool who holds himself or herself out as a 886 swimming instructor specializing in training people who have 887 developmental disabilities, as defined in s. 393.063(9), may be 888 certified by the Dan Marino Foundation, Inc., in addition to 889 being certified under s. 514.071. The Dan Marino Foundation, 890 Inc., must develop certification requirements and a training 891 curriculum for swimming instructors for people who have 892 developmental disabilitiesand must submit the certification893requirements to the Department of Health for review by January8941, 2007.A person certified under s.514.071before July 1,8952007, must meet the additional certification requirements of896this section before January 1, 2008.A person certified under s. 897 514.071on or after July 1, 2007,must meet the additional 898 certification requirements of this section within 6 months after 899 receiving certification under s. 514.071. 900 Section 19. Section 627.6041, Florida Statutes, is amended 901 to read: 902 627.6041HandicappedChildren with disabilities; 903 continuation of coverage.— 904 (1) A hospital or medical expense insurance policy or 905 health care services plan contract that is delivered or issued 906 for delivery in this state and that provides that coverage of a 907 dependent child terminateswill terminateupon attainment of the 908 limiting age for dependent children specified in the policy or 909 contract mustshallalso provide in substance that attainment of 910 the limiting age does not terminate the coverage of the child 911 while the child continues to be both: 912 (a)(1)Incapable of self-sustaining employment by reason of 913 an intellectualmental retardationor physical disability. 914handicap; and915 (b)(2)Chiefly dependent upon the policyholder or 916 subscriber for support and maintenance. 917 (2) If a claim is denied under a policy or contract for the 918 stated reason that the child has attained the limiting age for 919 dependent children specified in the policy or contract, the 920 notice of denial must state that the policyholder has the burden 921 of establishing that the child continues to meet the criteria 922 specified in subsectionsubsections(1)and (2). 923 Section 20. Section 627.6615, Florida Statutes, is amended 924 to read: 925 627.6615HandicappedChildren with disabilities; 926 continuation of coverage under group policy.— 927 (1) A group health insurance policy or health care services 928 plan contract that is delivered or issued for delivery in this 929 state and that provides that coverage of a dependent child of an 930 employee or other member of the covered group terminateswill931terminateupon attainment of the limiting age for dependent 932 children specified in the policy or contract mustshallalso 933 provide in substance that attainment of the limiting age does 934 not terminate the coverage of the child while the child 935 continues to be both: 936 (a)(1)Incapable of self-sustaining employment by reason of 937 an intellectualmental retardationor physical disability. 938handicap; and939 (b)(2)Chiefly dependent upon the employee or member for 940 support and maintenance. 941 (2) If a claim is denied under a policy or contract for the 942 stated reason that the child has attained the limiting age for 943 dependent children specified in the policy or contract, the 944 notice of denial must state that the certificateholder or 945 subscriber has the burden of establishing that the child 946 continues to meet the criteria specified in subsection 947subsections(1)and (2). 948 Section 21. Subsection (29) of section 641.31, Florida 949 Statutes, is amended to read: 950 641.31 Health maintenance contracts.— 951 (29) If a health maintenance contract provides that 952 coverage of a dependent child of the subscriber terminateswill953terminateupon attainment of the limiting age for dependent 954 children which is specified in the contract, the contract must 955 also provide in substance that attainment of the limiting age 956 does not terminate the coverage of the child while the child 957 continues to be both: 958 (a) Incapable of self-sustaining employment by reason of an 959 intellectualmental retardationor physical disability. 960handicap, and961 (b) Chiefly dependent upon the employee or member for 962 support and maintenance. 963 964 If the claim is denied under a contract for the stated reason 965 that the child has attained the limiting age for dependent 966 children specified in the contract, the notice or denial must 967 state that the subscriber has the burden of establishing that 968 the child continues to meet the criteria specified in this 969 subsectionparagraphs (a) and (b). 970 Section 22. Subsection (4) of section 650.05, Florida 971 Statutes, is amended to read: 972 650.05 Plans for coverage of employees of political 973 subdivisions.— 974 (4)(a)Notwithstanding any other provision of this chapter, 975 effective January 1, 1972, all state political subdivisions 976 receiving financial aid whichthatprovide social security 977 coverage for their employees pursuant tothe provisions ofthis 978 chapter and theprovisions of thevarious retirement systems as 979 authorized by law shall, in addition to other purposes, use 980utilizeall grants-in-aid and other revenue received from the 981 state to pay the employer’s share of social security cost. 982(b)The grants-in-aid and other revenuereferred to in983paragraph (a)specifically include, but are not limited to, 984 minimum foundation program grants to public school districts and 985 community colleges; gasoline, motor fuel, cigarette, racing, and 986 insurance premium taxes distributed to political subdivisions; 987 and amounts specifically appropriated as grants-in-aid for 988 mental health, intellectual disabilitiesmental retardation, and 989 mosquito control programs. 990 Section 23. Subsection (1) of section 765.204, Florida 991 Statutes, is amended to read: 992 765.204 Capacity of principal; procedure.— 993 (1) A principal is presumed to be capable of making health 994 care decisions for herself or himself unless she or he is 995 determined to be incapacitated. Incapacity may not be inferred 996 from the person’s voluntary or involuntary hospitalization for 997 mental illness or from her or his intellectual disabilitymental998retardation. 999 Section 24. Section 849.04, Florida Statutes, is amended to 1000 read: 1001 849.04 Permitting minors and persons under guardianship to 1002 gamble.—Whoever beingThe proprietor, owner, or keeper of any E. 1003 O., keno or pool table, or billiard table, wheel of fortune, or 1004 other game of chance,kept for the purpose of betting, who 1005 willfully and knowingly allows aanyminor oranyperson who is 1006 mentally incompetent or under guardianship to play at such game 1007 or to bet on such game of chance; or whoever aids or abets or 1008 otherwise encourages such playing or betting of any money or 1009 other valuable thing upon the result of such game of chance by a 1010anyminor oranyperson who is mentally incompetent or under 1011 guardianship, commitsshall be guilty ofa felony of the third 1012 degree, punishable as provided in s. 775.082, s. 775.083, or s. 1013 775.084. For the purpose of this section, the terma“person who 1014 is mentally incompetentperson” means a personis onewho 1015 because of mental illness, intellectual disabilitymental1016retardation, senility, excessive use of drugs or alcohol, or 1017 other mental incapacity is incapable ofeithermanaging his or 1018 her property or caring for himself or herself or both. 1019 Section 25. Section 914.16, Florida Statutes, is amended to 1020 read: 1021 914.16 Child abuse and sexual abuse of victims under age 16 1022 or who have an intellectual disabilitypersons with mental1023retardation; limits on interviews.—The chief judge of each 1024 judicial circuit, after consultation with the state attorney and 1025 the public defender for the judicial circuit, the appropriate 1026 chief law enforcement officer, and any other person deemed 1027 appropriate by the chief judge, shallprovide byorder 1028 reasonable limits on the number of interviews whichthata 1029 victim of a violation of s. 794.011, s. 800.04, s. 827.03, or s. 1030 847.0135(5) who is under 16 years of age or a victim of a 1031 violation of s. 794.011, s. 800.02, s. 800.03, or s. 825.102 who 1032 has an intellectual disabilityis a person with mental1033retardationas defined in s. 393.063 must submit to for law 1034 enforcement or discovery purposes.The order shall,To the 1035 extent possible, the order must protect the victim from the 1036 psychological damage of repeated interrogations while preserving 1037 the rights of the public, the victim, and the person charged 1038 with the violation. 1039 Section 26. Section 914.17, Florida Statutes, is amended to 1040 read: 1041 914.17 Appointment of advocate for victims or witnesses who 1042 are minors or intellectually disabledpersons with mental1043retardation.— 1044 (1) A guardian ad litem or other advocate shall be 1045 appointed by the court to represent a minor in any criminal 1046 proceeding if the minor is a victim of or witness to child abuse 1047 or neglect,or if the minor isa victim of a sexual offense, or 1048 a witness to a sexual offense committed against another minor. 1049 The court may appoint a guardian ad litem or other advocate in 1050 any other criminal proceeding in which a minor is involved as 1051eithera victim or a witness. The guardian ad litem or other 1052 advocate shall have full access to all evidence and reports 1053 introduced during the proceedings, may interview witnesses, may 1054 make recommendations to the court, shall be noticed and have the 1055 right to appear on behalf of the minor at all proceedings, and 1056 may request additional examinations by medical doctors, 1057 psychiatrists, or psychologists.It is the duty ofThe guardian 1058 ad litem or other advocate shallto perform the following1059services: 1060 (a)ToExplain, in language understandable to the minor, 1061 all legal proceedings in which the minor isshall beinvolved; 1062 (b)ToAct, as a friend of the court, to advise the judge, 1063 whenever appropriate, of the minor’s ability to understand and 1064 cooperate with any court proceeding; and 1065 (c)ToAssist the minor and the minor’s family in coping 1066 with the emotional effects of the crime and subsequent criminal 1067 proceedings in which the minor is involved. 1068 (2) An advocate shall be appointed by the court to 1069 represent a person who has an intellectual disabilitywith1070mental retardationas defined in s. 393.063 in any criminal 1071 proceeding if the personwith mental retardationis a victim of 1072 or witness to abuse or neglect,or if the person with mental1073retardation isa victim of a sexual offense, or a witness to a 1074 sexual offense committed against a minor or person who has an 1075 intellectual disabilitywith mental retardation. The court may 1076 appoint an advocate in any other criminal proceeding in which 1077 suchapersonwith mental retardationis involved aseithera 1078 victim or a witness. The advocate shall have full access to all 1079 evidence and reports introduced during the proceedings, may 1080 interview witnesses, may make recommendations to the court, 1081 shall be noticed and have the right to appear on behalf of the 1082 personwith mental retardationat all proceedings, and may 1083 request additional examinations by medical doctors, 1084 psychiatrists, or psychologists.It is the duty ofThe advocate 1085 shallto perform the following services: 1086 (a)ToExplain, in language understandable to the person 1087with mental retardation, all legal proceedings in which the 1088 person isshall beinvolved; 1089 (b)ToAct, as a friend of the court, to advise the judge, 1090 whenever appropriate, of the person’sperson with mental1091retardation’sability to understand and cooperate with any court 1092 proceedings; and 1093 (c)ToAssist the personwith mental retardationand the 1094 person’s family in coping with the emotional effects of the 1095 crime and subsequent criminal proceedings in which the person 1096with mental retardationis involved. 1097 (3) Any person participating in a judicial proceeding as a 1098 guardian ad litem or other advocate isshall bepresumed prima 1099 facie to be acting in good faith and in so doing isshall be1100 immune from any liability, civil or criminal, whichthat1101otherwisemight be incurred or imposed. 1102 Section 27. Subsections (1), (2), and (3) of section 1103 916.105, Florida Statutes, are amended to read: 1104 916.105 Legislative intent.— 1105 (1) It is the intent of the Legislature that the Department 1106 of Children and Family Services and the Agency for Persons with 1107 Disabilities, as appropriate, establish, locate, and maintain 1108 separate and secure forensic facilities and programs for the 1109 treatment or training of defendants who have been charged with a 1110 felony and who have been found to be incompetent to proceed due 1111 to their mental illness, intellectual disabilitymental1112retardation, or autism, or who have been acquitted of a felony 1113 by reason of insanity, and who, while still under the 1114 jurisdiction of the committing court, are committed to the 1115 department or agency underthe provisions ofthis chapter. Such 1116 facilities mustshallbe sufficient to accommodate the number of 1117 defendants committed under the conditions noted above. Except 1118 for those defendants found by the department or agency to be 1119 appropriate for treatment or training in a civil facility or 1120 program pursuant to subsection (3), forensic facilities must 1121shallbe designed and administered so that ingress and egress, 1122 together with other requirements of this chapter, may be 1123 strictly controlled by staff responsible for security in order 1124 to protect the defendant, facility personnel, other clients, and 1125 citizens in adjacent communities. 1126 (2) It is the intent of the Legislature that treatment or 1127 training programs for defendants who are found to have mental 1128 illness, intellectual disabilitymental retardation, or autism 1129 and are involuntarily committed to the department or agency, and 1130 who are still under the jurisdiction of the committing court, be 1131 provided in a manner, subject to security requirements and other 1132 mandates of this chapter, which ensuresas to ensurethe rights 1133 of the defendants as provided in this chapter. 1134 (3) It is the intent of the Legislature that evaluation and 1135 services to defendants who have mental illness, intellectual 1136 disabilitymental retardation, or autism be provided in 1137 community settings, in community residential facilities, or in 1138 civil facilities, whenever this is a feasible alternative to 1139 treatment or training in a state forensic facility. 1140 Section 28. Subsections (1), (10), (11), (12), and (17) of 1141 section 916.106, Florida Statutes, are amended, and subsections 1142 (13) through (15) of that section are reordered and amended, to 1143 read: 1144 916.106 Definitions.—For the purposes of this chapter, the 1145 term: 1146 (1) “Agency” means the Agency for Persons with 1147 Disabilities. The agency is responsible for training forensic 1148 clients who are developmentally disabled due to intellectual 1149 disabilitymental retardationor autism and have been determined 1150 incompetent to proceed. 1151 (10) “Forensic facility” means a separate and secure 1152 facility established within the department or agency to serve 1153 forensic clients. A separate and secure facility means a 1154 security-grade building for the purpose of separately housing 1155 persons who have mental illness from persons who have 1156 intellectual disabilitieswith retardationor autism and 1157 separately housing persons who have been involuntarily committed 1158 pursuant to this chapter from nonforensic residents. 1159 (11) “Incompetent to proceed” means unable to proceed at 1160 any material stage of a criminal proceeding, which includes the 1161shall includetrial of the case, pretrial hearings involving 1162 questions of fact on which the defendant might be expected to 1163 testify, entry of a plea, proceedings for violation of probation 1164 or violation of community control, sentencing, and hearings on 1165 issues regarding a defendant’s failure to comply with court 1166 orders or conditions or other matters in which the mental 1167 competence of the defendant is necessary for a just resolution 1168 of the issues being considered. 1169 (12) “Institutional security personnel” means the staff of 1170 forensic facilities who meet or exceed the requirements of s. 1171 943.13 and who are responsible for providing security, 1172 protecting clients and personnel, enforcing rules, preventing 1173 and investigating unauthorized activities, and safeguarding the 1174 interests of residentscitizensin the surrounding communities. 1175 (14)(13)“Mental illness” means an impairment of the 1176 emotional processes that exercise conscious control of one’s 1177 actions, or of the ability to perceive or understand reality, 1178 which impairment substantially interferes with theadefendant’s 1179 ability to meet the ordinary demands of living. For the purposes 1180 of this chapter, the term does not apply to defendants who have 1181 only an intellectual disabilitywith only mental retardationor 1182 autism and does not include intoxication or conditions 1183 manifested only by antisocial behavior or substance abuse 1184 impairment. 1185 (15)(14)“Restraint” means a physical device, method, or 1186 drug used to control dangerous behavior. 1187 (a) A physical restraint is any manual method or physical 1188 or mechanical device, material, or equipment attached or 1189 adjacent to a person’s body so that he or she cannot easily 1190 remove the restraint and that restricts freedom of movement or 1191 normal access to one’s body. 1192 (b) A drug used as a restraint is a medication used to 1193 control the person’s behavior or to restrict his or her freedom 1194 of movement and not part of the standard treatment regimen of 1195 the person with a diagnosed mental illness who is a client of 1196 the department. Physically holding a person during a procedure 1197 to forcibly administer psychotropic medication is a physical 1198 restraint. 1199 (c) Restraint does not include physical devices, such as 1200 orthopedically prescribed appliances, surgical dressings and 1201 bandages, supportive body bands, or other physical holdingwhen1202 necessary for routine physical examinations and tests; for 1203 purposes of orthopedic, surgical, or other similar medical 1204 treatment;when usedto provide support for the achievement of 1205 functional body position or proper balance; orwhen usedto 1206 protect a person from falling out of bed. 1207 (13)(15)“Intellectual disability”“Retardation”has the 1208 same meaning as in s. 393.063. 1209 (17) “Social service professional” means a person whose 1210 minimum qualifications include a bachelor’s degree and at least 1211 2 years of social work, clinical practice, special education, 1212 habilitation, or equivalent experience working directly with 1213 persons who have intellectual disabilitieswith retardation, 1214 autism, or other developmental disabilities. 1215 Section 29. Paragraph (a) of subsection (1) and paragraph 1216 (a) of subsection (3) of section 916.107, Florida Statutes, are 1217 amended to read: 1218 916.107 Rights of forensic clients.— 1219 (1) RIGHT TO INDIVIDUAL DIGNITY.— 1220 (a) The policy of the state is that the individual dignity 1221 of the client shall be respected at all times and upon all 1222 occasions, including any occasion when the forensic client is 1223 detained, transported, or treated. Clients with mental illness, 1224 intellectual disabilityretardation, or autism and who are 1225 charged with committing felonies shall receive appropriate 1226 treatment or training. In a criminal case involving a client who 1227 has been adjudicated incompetent to proceed or not guilty by 1228 reason of insanity, a jail may be used as an emergency facility 1229 for up to 15 days following the date the department or agency 1230 receives a completed copy of the court commitment order 1231 containing all documentation required by the applicable Florida 1232 Rules of Criminal Procedure. For a forensic client who is held 1233 in a jail awaiting admission to a facility of the department or 1234 agency, evaluation and treatment or training may be provided in 1235 the jail by the local community mental health provider for 1236 mental health services, by the developmental disabilities 1237 program for persons with intellectual disabilityretardationor 1238 autism, the client’s physician or psychologist, or any other 1239 appropriate program until the client is transferred to a civil 1240 or forensic facility. 1241 (3) RIGHT TO EXPRESS AND INFORMED CONSENT.— 1242 (a) A forensic client shall be asked to give express and 1243 informed written consent for treatment. If a client refuses such 1244 treatment as is deemed necessary and essential by the client’s 1245 multidisciplinary treatment team for the appropriate care of the 1246 client, such treatment may be provided under the following 1247 circumstances: 1248 1. In an emergency situation in which there is immediate 1249 danger to the safety of the client or others, such treatment may 1250 be provided upon the written order of a physician for a period 1251 not to exceed 48 hours, excluding weekends and legal holidays. 1252 If, after the 48-hour period, the client has not given express 1253 and informed consent to the treatment initially refused, the 1254 administrator or designee of the civil or forensic facility 1255 shall, within 48 hours, excluding weekends and legal holidays, 1256 petition the committing court or the circuit court serving the 1257 county in which the facility is located, at the option of the 1258 facility administrator or designee, for an order authorizing the 1259 continued treatment of the client. In the interim, the need for 1260 treatment shall be reviewed every 48 hours and may be continued 1261 without the consent of the client upon the continued written 1262 order of a physician who has determined that the emergency 1263 situation continues to present a danger to the safety of the 1264 client or others. 1265 2. In a situation other than an emergency situation, the 1266 administrator or designee of the facility shall petition the 1267 court for an order authorizing necessary and essential treatment 1268 for the client. The order shall allow such treatment for a 1269 period not to exceed 90 days following the date of the entry of 1270 the order. Unless the court is notified in writing that the 1271 client has provided express and informed consent in writing or 1272 that the client has been discharged by the committing court, the 1273 administrator or designee shall, beforeprior tothe expiration 1274 of the initial 90-day order, petition the court for an order 1275 authorizing the continuation of treatment for another 90-day 1276 period. This procedure shall be repeated until the client 1277 provides consent or is discharged by the committing court. 1278 3. At the hearing on the issue of whether the court should 1279 enter an order authorizing treatment for which a client was 1280 unable to or refused to give express and informed consent, the 1281 court shall determine by clear and convincing evidence that the 1282 client has mental illness, intellectual disabilityretardation, 1283 or autism, that the treatment not consented to is essential to 1284 the care of the client, and that the treatment not consented to 1285 is not experimental and does not present an unreasonable risk of 1286 serious, hazardous, or irreversible side effects. In arriving at 1287 the substitute judgment decision, the court must consider at 1288 least the following factors: 1289 a. The client’s expressed preference regarding treatment; 1290 b. The probability of adverse side effects; 1291 c. The prognosis without treatment; and 1292 d. The prognosis with treatment. 1293 1294 The hearing shall be as convenient to the client as may be 1295 consistent with orderly procedure and shall be conducted in 1296 physical settings not likely to be injurious to the client’s 1297 condition. The court may appoint a general or special magistrate 1298 to preside at the hearing. The client or the client’s guardian, 1299 and the representative, shall be provided with a copy of the 1300 petition and the date, time, and location of the hearing. The 1301 client has the right to have an attorney represent him or her at 1302 the hearing, and, if the client is indigent, the court shall 1303 appoint the office of the public defender to represent the 1304 client at the hearing. The client may testify or not, as he or 1305 she chooses, and has the right to cross-examine witnesses and 1306 may present his or her own witnesses. 1307 Section 30. The Division of Law Revision and Information is 1308 requested to rename part III of chapter 916, Florida Statutes, 1309 consisting of ss. 916.301-916.304, as “Forensic Services for 1310 Persons who are Intellectually Disabled or Autistic.” 1311 Section 31. Subsections (1) and (2) of section 916.301, 1312 Florida Statutes, are amended to read: 1313 916.301 Appointment of experts.— 1314 (1) All evaluations ordered by the court under this part 1315 must be conducted by qualified experts who have expertise in 1316 evaluating persons who have an intellectual disabilitywith1317retardationor autism. The agency shall maintain and provide the 1318 courts annually with a list of availableretardation and autism1319 professionals who are appropriately licensed and qualified to 1320 perform evaluations of defendants alleged to be incompetent to 1321 proceed due to intellectual disabilityretardationor autism. 1322 The courts may use professionals from this list when appointing 1323 experts and ordering evaluations under this part. 1324 (2) If a defendant’s suspected mental condition is 1325 intellectual disabilityretardationor autism, the court shall 1326 appoint the following: 1327 (a) At least one, or at the request of any party, two 1328 experts to evaluate whether the defendant meets the definition 1329 of intellectual disabilityretardationor autism and, if so, 1330 whether the defendant is competent to proceed; and 1331 (b) A psychologist selected by the agency who is licensed 1332 or authorized by law to practice in this state, with experience 1333 in evaluating persons suspected of having an intellectual 1334 disabilityretardationor autism, and a social service 1335 professional, with experience in working with persons who have 1336 an intellectual disabilitywith retardationor autism. 1337 1. The psychologist shall evaluate whether the defendant 1338 meets the definition of intellectual disabilityretardationor 1339 autism and, if so, whether the defendant is incompetent to 1340 proceed due to intellectual disabilityretardationor autism. 1341 2. The social service professional shall provide a social 1342 and developmental history of the defendant. 1343 Section 32. Subsections (1), (2), and (4) of section 1344 916.3012, Florida Statutes, are amended to read: 1345 916.3012 Mental competence to proceed.— 1346 (1) A defendant whose suspected mental condition is 1347 intellectual disabilityretardationor autism is incompetent to 1348 proceed within the meaning of this chapter if the defendant does 1349 not have sufficient present ability to consult with the 1350 defendant’s lawyer with a reasonable degree of rational 1351 understanding or if the defendant has no rational, as well as 1352 factual, understanding of the proceedings against the defendant. 1353 (2) Experts in intellectual disabilityretardationor 1354 autism appointed pursuant to s. 916.301 shall first consider 1355 whether the defendant meets the definition of intellectual 1356 disabilityretardationor autism and, if so, consider the 1357 factors related to the issue of whether the defendant meets the 1358 criteria for competence to proceed as described in subsection 1359 (1). 1360 (4) If the expertsshouldfind that the defendant is 1361 incompetent to proceed, the experts shall report on any 1362 recommended training for the defendant to attain competence to 1363 proceed. In considering the issues relating to training, the 1364 examining experts shall specifically report on: 1365 (a) The intellectual disabilityretardationor autism 1366 causing the incompetence; 1367 (b) The training appropriate for the intellectual 1368 disabilityretardationor autism of the defendant and an 1369 explanation of each of the possible training alternatives in 1370 order of choices; 1371 (c) The availability of acceptable training and, if 1372 training is available in the community, the expert shall so 1373 state in the report; and 1374 (d) The likelihood of the defendant’s attaining competence 1375 under the training recommended, an assessment of the probable 1376 duration of the training required to restore competence, and the 1377 probability that the defendant will attain competence to proceed 1378 in the foreseeable future. 1379 Section 33. Subsection (1), paragraphs (a) and (b) of 1380 subsection (2), and paragraph (a) of subsection (3) of section 1381 916.302, Florida Statutes, are amended to read: 1382 916.302 Involuntary commitment of defendant determined to 1383 be incompetent to proceed.— 1384 (1) CRITERIA.—Every defendant who is charged with a felony 1385 and who is adjudicated incompetent to proceed due to 1386 intellectual disabilityretardationor autism may be 1387 involuntarily committed for training upon a finding by the court 1388 of clear and convincing evidence that: 1389 (a) The defendant has an intellectual disability 1390retardationor autism; 1391 (b) There is a substantial likelihood that in the near 1392 future the defendant will inflict serious bodily harm on himself 1393 or herself or another person, as evidenced by recent behavior 1394 causing, attempting, or threatening such harm; 1395 (c) All available, less restrictive alternatives, including 1396 services provided in community residential facilities or other 1397 community settings, which would offer an opportunity for 1398 improvement of the condition have been judged to be 1399 inappropriate; and 1400 (d) There is a substantial probability that the 1401 intellectual disabilityretardationor autism causing the 1402 defendant’s incompetence will respond to training and the 1403 defendant will regain competency to proceed in the reasonably 1404 foreseeable future. 1405 (2) ADMISSION TO A FACILITY.— 1406 (a) A defendant who has been charged with a felony and who 1407 is found to be incompetent to proceed due to intellectual 1408 disabilityretardationor autism, and who meets the criteria for 1409 involuntary commitment to the agency underthe provisions of1410 this chapter, shall be committed to the agency, and the agency 1411 shall retain and provide appropriate training for the defendant. 1412 WithinNo later than6 months after the date of admission or at 1413 the end of any period of extended commitment or at any time the 1414 administrator or designee determinesshall have determinedthat 1415 the defendant has regained competency to proceed or no longer 1416 meets the criteria for continued commitment, the administrator 1417 or designee shall file a report with the court pursuant to this 1418 chapter and the applicable Florida Rules of Criminal Procedure. 1419 (b) A defendant determined to be incompetent to proceed due 1420 to intellectual disabilityretardationor autism may be ordered 1421 by a circuit court into a forensic facility designated by the 1422 agency for defendants who have an intellectual disabilitymental1423retardationor autism. 1424 (3) PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.— 1425 (a) If a defendant has both an intellectual disability 1426mental retardationor autism andhasa mental illness, 1427 evaluations must address which condition is primarily affecting 1428 the defendant’s competency to proceed. Referral of the defendant 1429 should be made to a civil or forensic facility most appropriate 1430 to address the symptoms that are the cause of the defendant’s 1431 incompetence. 1432 Section 34. Subsection (1) of section 916.3025, Florida 1433 Statutes, is amended to read: 1434 916.3025 Jurisdiction of committing court.— 1435 (1) The committing court shall retain jurisdiction in the 1436 case of any defendant found to be incompetent to proceed due to 1437 intellectual disabilityretardationor autism and ordered into a 1438 forensic facility designated by the agency for defendants who 1439 have intellectual disabilitiesmental retardationor autism. A 1440 defendant may not be released except by the order of the 1441 committing court. An administrative hearing examiner does not 1442 have jurisdiction to determine issues of continuing commitment 1443 or release of any defendant involuntarily committed pursuant to 1444 this chapter. 1445 Section 35. Section 916.303, Florida Statutes, is amended 1446 to read: 1447 916.303 Determination of incompetencydue to retardation or1448autism; dismissal of charges.— 1449 (1) The charges against any defendant found to be 1450 incompetent to proceed due to intellectual disability 1451retardationor autism shall be dismissed without prejudice to 1452 the state if the defendant remains incompetent to proceed within 1453 a reasonable time after such determination, not to exceed 2 1454 years, unless the court in its order specifies its reasons for 1455 believing that the defendant will become competent to proceed 1456 within the foreseeable future and specifies the time within 1457 which the defendant is expected to become competent to proceed. 1458 The charges may be refiled by the state if the defendant is 1459 declared competent to proceed in the future. 1460 (2) If the charges are dismissed and if the defendant is 1461 considered to lack sufficient capacity to give express and 1462 informed consent to a voluntary application for services and 1463 lacks the basic survival and self-care skills to provide for his 1464 or her well-being or is likely to physically injure himself or 1465 herself or others if allowed to remain at liberty, the agency, 1466 the state attorney, or the defendant’s attorney shall apply to 1467 the committing court to involuntarily admit the defendant to 1468 residential services pursuant to s. 393.11. 1469 (3) If the defendant is considered to need involuntary 1470 residential services for reasons described in subsection (2) 1471 and, further, there is a substantial likelihood that the 1472 defendant will injure another person or continues to present a 1473 danger of escape, and all available less restrictive 1474 alternatives, including services in community residential 1475 facilities or other community settings, which would offer an 1476 opportunity for improvement of the condition have been judged to 1477 be inappropriate, the agency, the state attorney, or the 1478 defendant’s counsel may request the committing court to continue 1479 the defendant’s placement in a secure facility pursuant to this 1480 part. Any placement so continuedunder this subsectionmust be 1481 reviewed by the court at least annually at a hearing. The annual 1482 review and hearing mustshalldetermine whether the defendant 1483 continues to meet the criteria described in this subsection and, 1484 if so, whether the defendant still requires involuntary 1485 placement in a secure facility and whether the defendant is 1486 receiving adequate care, treatment, habilitation, and 1487 rehabilitation, including psychotropic medication and behavioral 1488 programming. Notice of the annual review and review hearing 1489 shall be given to the state attorney and the defendant’s 1490 attorney.In no instance mayA defendant’s placement in a secure 1491 facility may not exceed the maximum sentence for the crime for 1492 which the defendant was charged. 1493 Section 36. Subsection (1) of section 916.304, Florida 1494 Statutes, is amended to read: 1495 916.304 Conditional release.— 1496 (1) Except for an inmate currently serving a prison 1497 sentence, the committing court may order a conditional release 1498 of any defendant who has been found to be incompetent to proceed 1499 due to intellectual disabilityretardationor autism, based on 1500 an approved plan for providing community-based training. The 1501 committing criminal court may order a conditional release of any 1502 defendant to a civil facility in lieu of an involuntary 1503 commitment to a forensic facility pursuant to s. 916.302. Upon a 1504 recommendation that community-based training for the defendant 1505 is appropriate, a written plan for community-based training, 1506 including recommendations from qualified professionals, may be 1507 filed with the court, with copies to all parties. Such a plan 1508 may also be submitted by the defendant and filed with the court, 1509 with copies to all parties. The plan must include: 1510 (a) Special provisions for residential care and adequate 1511 supervision of the defendant, including recommended location of 1512 placement. 1513 (b) Recommendations for auxiliary services such as 1514 vocational training, psychological training, educational 1515 services, leisure services, and special medical care. 1516 1517 In its order of conditional release, the court shall specify the 1518 conditions of release based upon the release plan and shall 1519 direct the appropriate agencies or persons to submit periodic 1520 reports to the courts regarding the defendant’s compliance with 1521 the conditions of the release and progress in training, with 1522 copies to all parties. 1523 Section 37. Section 918.16, Florida Statutes, is amended to 1524 read: 1525 918.16 Sex offenses; testimony of person under age 16 or 1526 who has an intellectual disabilityperson with mental1527retardation; testimony of victim; courtroom cleared; 1528 exceptions.— 1529 (1) Except as provided in subsection (2), in the trial of 1530 any case, civil or criminal, ifwhenany person under the age of 1531 16 or any person with an intellectual disabilitymental1532retardationas defined in s. 393.063 is testifying concerning 1533 any sex offense, the court shall clear the courtroom of all 1534 persons except parties to the cause and their immediate families 1535 or guardians, attorneys and their secretaries, officers of the 1536 court, jurors, newspaper reporters or broadcasters, court 1537 reporters, and, at the request of the victim, victim or witness 1538 advocates designated by the state attorney’s office. 1539 (2) IfWhenthe victim of a sex offense is testifying 1540 concerning that offense in any civil or criminal trial, the 1541 court shall clear the courtroom of all persons upon the request 1542 of the victim, regardless of the victim’s age or mental 1543 capacity, except that parties to the cause and their immediate 1544 families or guardians, attorneys and their secretaries, officers 1545 of the court, jurors, newspaper reporters or broadcasters, court 1546 reporters, and, at the request of the victim, victim or witness 1547 advocates designated by the state attorney may remain in the 1548 courtroom. 1549 Section 38. Section 921.137, Florida Statutes, is amended 1550 to read: 1551 921.137 Imposition of the death sentence upon an 1552 intellectually disabledadefendantwith mental retardation1553 prohibited.— 1554 (1) As used in this section, the term “intellectually 1555 disabled” or “intellectual disability”“mental retardation”1556 means significantly subaverage general intellectual functioning 1557 existing concurrently with deficits in adaptive behavior and 1558 manifested during the period from conception to age 18. The term 1559 “significantly subaverage general intellectual functioning,” for 1560 the purpose of this section, means performance that is two or 1561 more standard deviations from the mean score on a standardized 1562 intelligence test specified in the rules of the Agency for 1563 Persons with Disabilities. The term “adaptive behavior,” for the 1564 purpose of this definition, means the effectiveness or degree 1565 with which an individual meets the standards of personal 1566 independence and social responsibility expected of his or her 1567 age, cultural group, and community. The Agency for Persons with 1568 Disabilities shall adopt rules to specify the standardized 1569 intelligence tests as provided in this subsection. 1570 (2) A sentence of death may not be imposed upon a defendant 1571 convicted of a capital felony if it is determined in accordance 1572 with this section that the defendant is intellectually disabled 1573has mental retardation. 1574 (3) A defendant charged with a capital felony who intends 1575 to raise intellectual disabilitymental retardationas a bar to 1576 the death sentence must give notice of such intention in 1577 accordance with the rules of court governing notices of intent 1578 to offer expert testimony regarding mental health mitigation 1579 during the penalty phase of a capital trial. 1580 (4) After a defendant who has given notice of his or her 1581 intention to raise intellectual disabilitymental retardationas 1582 a bar to the death sentence is convicted of a capital felony and 1583 an advisory jury has returned a recommended sentence of death, 1584 the defendant may file a motion to determine whether the 1585 defendant is intellectually disabledhas mental retardation. 1586 Upon receipt of the motion, the court shall appoint two experts 1587 in the field of intellectual disabilitiesmental retardationwho 1588 shall evaluate the defendant and report their findings to the 1589 court and all interested parties prior to the final sentencing 1590 hearing. Notwithstanding s. 921.141 or s. 921.142, the final 1591 sentencing hearing shall be held without a jury. At the final 1592 sentencing hearing, the court shall consider the findings of the 1593 court-appointed experts and consider the findings of any other 1594 expert which is offered by the state or the defense on the issue 1595 of whether the defendant has an intellectual disabilitymental1596retardation. If the court finds, by clear and convincing 1597 evidence, that the defendant has an intellectual disability 1598mental retardationas defined in subsection (1), the court may 1599 not impose a sentence of death and shall enter a written order 1600 that sets forth with specificity the findings in support of the 1601 determination. 1602 (5) If a defendant waives his or her right to a recommended 1603 sentence by an advisory jury following a plea of guilt or nolo 1604 contendere to a capital felony and adjudication of guilt by the 1605 court, or following a jury finding of guilt of a capital felony, 1606 upon acceptance of the waiver by the court, a defendant who has 1607 given notice as required in subsection (3) may file a motion for 1608 a determination of intellectual disabilitymental retardation. 1609 Upon granting the motion, the court shall proceed as provided in 1610 subsection (4). 1611 (6) If, following a recommendation by an advisory jury that 1612 the defendant be sentenced to life imprisonment, the state 1613 intends to request the court to order that the defendant be 1614 sentenced to death, the state must inform the defendant of such 1615 request if the defendant has notified the court of his or her 1616 intent to raise intellectual disabilitymental retardationas a 1617 bar to the death sentence. After receipt of the notice from the 1618 state, the defendant may file a motion requesting a 1619 determination by the court of whether the defendant is 1620 intellectually disabledhas mental retardation. Upon granting 1621 the motion, the court shall proceed as provided in subsection 1622 (4). 1623 (7) Pursuant to s. 924.07, the state may appeal, pursuant1624to s.924.07,a determination of intellectual disabilitymental1625retardationmade under subsection (4). 1626 (8) This section does not apply to a defendant who was 1627 sentenced to death before June 12, 2001prior to the effective1628date of this act. 1629 (9) For purposes of the application of the criminal laws 1630 and procedural rules of this state to any matters relating to 1631 the imposition and execution of the death penalty, the terms 1632 “intellectual disability” or “intellectually disabled” are 1633 interchangeable with and have the same meaning as the terms 1634 “mental retardation” or “retardation” and “mentally retarded” as 1635 those terms were defined before July 1, 2013. 1636 Section 39. Paragraph (b) of subsection (2) of section 1637 941.38, Florida Statutes, is amended to read: 1638 941.38 Extradition of persons alleged to be of unsound 1639 mind.— 1640 (2) For the purpose of this section: 1641 (b) A “mentally incompetent person” is one who because of 1642 mental illness, intellectual disabilitymental retardation, 1643 senility, excessive use of drugs or alcohol, or other mental 1644 incapacity is incapable ofeithermanaging his or her property 1645 or caring for himself or herself or both. 1646 Section 40. Section 944.602, Florida Statutes, is amended 1647 to read: 1648 944.602 Agency notification before release of 1649 intellectually disabledmentally retardedinmates.—Before the 1650 release by parole, release by reason of gain-time allowances 1651 provided for in s. 944.291, or expiration of sentence of any 1652 inmate who has been diagnosed as having an intellectual 1653 disabilitymentally retardedas defined in s. 393.063, the 1654 Department of Corrections shall notify the Agency for Persons 1655 with Disabilities in order that sufficient time be allowed to 1656 notify the inmate or the inmate’s representative, in writing, at 1657 least 7 days beforeprior tothe inmate’s release, of available 1658 community services. 1659 Section 41. Subsection (2) of section 945.025, Florida 1660 Statutes, is amended to read: 1661 945.025 Jurisdiction of department.— 1662 (2) In establishing, operating, and usingutilizingthese 1663 facilities, the department shall attempt, whenever possible, to 1664 avoid the placement of nondangerous offenders who have potential 1665 for rehabilitation with repeat offenders or dangerous offenders. 1666 Medical, mental, and psychological problems mustshallbe 1667 diagnosed and treated whenever possible. The Department of 1668 Children and Family Services and the Agency for Persons with 1669 Disabilities shall cooperate to ensure the delivery of services 1670 to persons under the custody or supervision of the department. 1671 IfWhen it is the intent ofthe department intends to transfer a 1672mentally ill or retardedprisoner who has a mental illness or 1673 intellectual disability to the Department of Children and Family 1674 Services or the Agency for Persons with Disabilities, an 1675 involuntary commitment hearing shall be held in accordance with 1676according to the provisions ofchapter 393 or chapter 394. 1677 Section 42. Subsection (5) of section 945.12, Florida 1678 Statutes, is amended to read: 1679 945.12 Transfers for rehabilitative treatment.— 1680 (5) When the department plans to release an offender who is 1681amentally ill or intellectually disabledretarded offender, an 1682 involuntary commitment hearing shall be held as soon as possible 1683 beforeprior tohis or her release in accordance with, according1684to the provisions ofchapter 393 or chapter 394. 1685 Section 43. Subsection (9) of section 945.42, Florida 1686 Statutes, is amended to read: 1687 945.42 Definitions; ss. 945.40-945.49.—As used in ss. 1688 945.40-945.49, the following terms shall have the meanings 1689 ascribed to them, unless the context shall clearly indicate 1690 otherwise: 1691 (9) “Mentally ill” means an impairment of the mental or 1692 emotional processes that, of the ability toexercise conscious 1693 control of one’s actions,or of the ability to perceive or 1694 understand reality, which impairment substantially interferes 1695 with theaperson’s ability to meet the ordinary demands of 1696 living. However,regardless of etiology, except that,for the 1697 purposes of transferringtransfer ofan inmate to a mental 1698 health treatment facility, the term does not include a 1699retardation ordevelopmental disability as defined in s. 393.063 1700chapter 393, simple intoxication, or conditions manifested only 1701 by antisocial behavior or substance abuse addiction. However, an 1702 individual who ismentally retarded ordevelopmentally disabled 1703 may also have a mental illness. 1704 Section 44. Section 947.185, Florida Statutes, is amended 1705 to read: 1706 947.185 Application for intellectual disabilitymental1707retardationservices as condition of parole.—The Parole 1708 Commission may require as a condition of parole that any inmate 1709 who has been diagnosed as having an intellectual disability 1710mentally retardedas defined in s. 393.063 shall, upon release, 1711 apply for services from the Agency for Persons with 1712 Disabilities. 1713 Section 45. Subsection (4) of section 984.19, Florida 1714 Statutes, is amended to read: 1715 984.19 Medical screening and treatment of child; 1716 examination of parent, guardian, or person requesting custody.— 1717 (4) A judge may order that a child alleged to be or 1718 adjudicated a child in need of services be treated by a licensed 1719 health care professional. The judge may also order such child to 1720 receive mental health or intellectual disabilityretardation1721 services from a psychiatrist, psychologist, or other appropriate 1722 service provider. If it is necessary to place the child in a 1723 residential facility for such services,thenthe procedures and 1724 criteria established in s. 394.467 or chapter 393 shall be used, 1725 aswhichever isapplicable. A child may be providedmental1726health or retardationservices in emergency situations,pursuant 1727 to the procedures and criteria contained in s. 394.463(1) or 1728 chapter 393, aswhichever isapplicable. 1729 Section 46. Paragraph (a) of subsection (3) of section 1730 985.14, Florida Statutes, is amended to read: 1731 985.14 Intake and case management system.— 1732 (3) The intake and case management system shall facilitate 1733 consistency in the recommended placement of each child, and in 1734 the assessment, classification, and placement process, with the 1735 following purposes: 1736 (a) An individualized, multidisciplinary assessment process 1737 that identifies the priority needs of eachindividualchild for 1738 rehabilitation and treatment and identifies any needs of the 1739 child’s parents or guardians for services that would enhance 1740 their ability to provide adequate support, guidance, and 1741 supervision for the child. TheThisprocess beginsshall begin1742 with the detention risk assessment instrument and decision, 1743 includesshall includethe intake preliminary screening and 1744 comprehensive assessment for substance abuse treatment services, 1745 mental health services, intellectual disabilityretardation1746 services, literacy services, and other educational and treatment 1747 services as components, additional assessment of the child’s 1748 treatment needs, and classification regarding the child’s risks 1749 to the community. The completed multidisciplinary assessment 1750 process mustshallresult in the predisposition report. 1751 Section 47. Paragraph (g) of subsection (1) and subsection 1752 (5) of section 985.145, Florida Statutes, are amended to read: 1753 985.145 Responsibilities of juvenile probation officer 1754 during intake; screenings and assessments.— 1755 (1) The juvenile probation officer shall serve as the 1756 primary case manager for the purpose of managing, coordinating, 1757 and monitoring the services provided to the child. Each program 1758 administrator within the Department of Children and Family 1759 Services shall cooperate with the primary case manager in 1760 carrying out the duties and responsibilities described in this 1761 section. In addition to duties specified in other sections and 1762 through departmental rules, the assigned juvenile probation 1763 officer shall be responsible for the following: 1764 (g) Comprehensive assessment.—The juvenile probation 1765 officer, pursuant to uniform procedures established by the 1766 department and upon determining that the report, affidavit, or 1767 complaint is complete, shall: 1768 1. Perform the preliminary screening and make referrals for 1769 a comprehensive assessment regarding the child’s need for 1770 substance abuse treatment services, mental health services, 1771 intellectual disabilityretardationservices, literacy services, 1772 or other educational or treatment services. 1773 2. IfWhenindicated by the preliminary screening, provide 1774 for a comprehensive assessment of the child and family for 1775 substance abuse problems, using community-based licensed 1776 programs with clinical expertise and experience in the 1777 assessment of substance abuse problems. 1778 3. IfWhenindicated by the preliminary screening, provide 1779 for a comprehensive assessment of the child and family for 1780 mental health problems, using community-based psychologists, 1781 psychiatrists, or other licensed mental health professionals who 1782 have clinical expertise and experience in the assessment of 1783 mental health problems. 1784 (5) If the screening and assessment indicate that the 1785 interests of the child and the public will be best served 1786thereby, the juvenile probation officer, with the approval of 1787 the state attorney, may refer the child for care, diagnostic, 1788 and evaluation services; substance abuse treatment services; 1789 mental health services; intellectual disabilityretardation1790 services; a diversionary, arbitration, or mediation program; 1791 community service work; or other programs or treatment services 1792 voluntarily accepted by the child and the child’s parents or 1793 legal guardian. IfWhenevera child volunteers to participate in 1794 any work program under this chapter or volunteers to work in a 1795 specified state, county, municipal, or community service 1796 organization supervised work program or to work for the victim, 1797 the child isshall beconsidered an employee of the state for 1798 the purposes of liability. In determining the child’s average 1799 weekly wage, unless otherwise determined by a specific funding 1800 program, all remuneration received from the employer is 1801 considered a gratuity, and the child is not entitled to any 1802 benefits otherwise payable under s. 440.15,regardless of 1803 whether the child may be receiving wages and remuneration from 1804 other employment with another employer and regardless of the 1805 child’s future wage-earning capacity. 1806 Section 48. Subsections (2) and (6) of section 985.18, 1807 Florida Statutes, are amended to read: 1808 985.18 Medical, psychiatric, psychological, substance 1809 abuse, and educational examination and treatment.— 1810 (2) IfWhenevera child has been found to have committed a 1811 delinquent act, or before such finding with the consent of any 1812 parent or legal custodian of the child, the court may order the 1813 child to be treated by a physician. The court may also order the 1814 child to receive mental health, substance abuse, or intellectual 1815 disabilityretardationservices from a psychiatrist, 1816 psychologist, or other appropriate service provider. If it is 1817 necessary to place the child in a residential facility for such 1818 services, the procedures and criteria established in chapter 1819 393, chapter 394, or chapter 397, aswhichever isapplicable, 1820 mustshallbe used. After a child has been adjudicated 1821 delinquent, if an educational needs assessment by the district 1822 school board or the Department of Children and Family Services 1823 has beenpreviouslyconducted, the court shall order the report 1824of such needs assessmentincluded in the child’s court record in 1825 lieu of a new assessment. For purposes of this section, an 1826 educational needs assessment includes, but is not limited to, 1827 reports of intelligence and achievement tests, screening for 1828 learning and other disabilitiesand other handicaps, and 1829 screening for the need for alternative education. 1830 (6) A physician mustshallbe immediately notified by the 1831 person taking the child into custody or the person having 1832 custody if there are indications of physical injury or illness, 1833 or the child shall be taken to the nearest available hospital 1834 for emergency care. A child may be provided mental health, 1835 substance abuse, or intellectual disabilityretardation1836 services,in emergency situations,pursuant to chapter 393, 1837 chapter 394, or chapter 397, aswhichever isapplicable. After a 1838 hearing, the court may order the custodial parent or parents, 1839 guardian, or other custodian, if found able to do so, to 1840 reimburse the county or state for the expense involved in such 1841 emergency treatment or care. 1842 Section 49. Paragraph (e) of subsection (1), subsections 1843 (2) through (4), and paragraph (a) of subsection (6) of section 1844 985.19, Florida Statutes, are amended to read: 1845 985.19 Incompetency in juvenile delinquency cases.— 1846 (1) If, at any time prior to or during a delinquency case, 1847 the court has reason to believe that the child named in the 1848 petition may be incompetent to proceed with the hearing, the 1849 court on its own motion may, or on the motion of the child’s 1850 attorney or state attorney must, stay all proceedings and order 1851 an evaluation of the child’s mental condition. 1852 (e) For incompetency evaluations related to intellectual 1853 disabilitymental retardationor autism, the court shall order 1854 the Agency for Persons with Disabilities to examine the child to 1855 determine if the child meets the definition of “intellectual 1856 disability”“retardation”or “autism” in s. 393.063 and, if so, 1857 whether the child is competent to proceed with delinquency 1858 proceedings. 1859 (2) A child who is adjudicated incompetent to proceed, and 1860 who has committed a delinquent act or violation of law, either 1861 of which would be a felony if committed by an adult, must be 1862 committed to the Department of Children and Family Services for 1863 treatment or training. A child who has been adjudicated 1864 incompetent to proceed because of age or immaturity, or for any 1865 reason other than for mental illness, intellectual disability, 1866or retardationor autism, must not be committed to the 1867 department or to the Department of Children and Family Services 1868 for restoration-of-competency treatment or training services. 1869 For purposes of this section, a child who has committed a 1870 delinquent act or violation of law, either of which would be a 1871 misdemeanor if committed by an adult, may not be committed to 1872 the department or to the Department of Children and Family 1873 Services for restoration-of-competency treatment or training 1874 services. 1875 (3) If the court finds that a child has mental illness, 1876 intellectual disabilitymental retardation, or autism and 1877 adjudicates the child incompetent to proceed, the court must 1878 also determine whether the child meets the criteria for secure 1879 placement. A child may be placed in a secure facility or program 1880 if the court makes a finding by clear and convincing evidence 1881 that: 1882 (a) The child has mental illness, intellectual disability 1883mental retardation, or autism and because of the mental illness, 1884 intellectual disabilitymental retardation, or autism: 1885 1. The child is manifestly incapable of surviving with the 1886 help of willing and responsible family or friends, including 1887 available alternative services, and without treatment or 1888 training the child is likely toeithersuffer from neglect or 1889 refuse to care for self, and such neglect or refusal poses a 1890 real and present threat of substantial harm to the child’s well 1891 being; or 1892 2. There is a substantial likelihood that in the near 1893 future the child will inflict serious bodily harm on self or 1894 others, as evidenced by recent behavior causing, attempting, or 1895 threatening such harm; and 1896 (b) All available less restrictive alternatives, including 1897 treatment or training in community residential facilities or 1898 community settings which would offer an opportunity for 1899 improvement of the child’s condition, are inappropriate. 1900 (4) A child who is determined to have mental illness, 1901 intellectual disabilitymental retardation, or autism, who has 1902 been adjudicated incompetent to proceed, and who meets the 1903 criteria set forth in subsection (3), must be committed to the 1904 Department of Children and Family Services and receive treatment 1905 or training in a secure facility or program that is the least 1906 restrictive alternative consistent with public safety. Any 1907 placement of a child to a secure residential program must be 1908 separate from adult forensic programs. If the child attains 1909 competency,thencustody, case management, and supervision of 1910 the child shallwillbe transferred to the department in order 1911 to continue delinquency proceedings; however, the court retains 1912 authority to order the Department of Children and Family 1913 Services to provide continued treatment or training to maintain 1914 competency. 1915 (a) A child adjudicated incompetent due to intellectual 1916 disabilitymental retardationor autism may be ordered into a 1917 secure program or facility designated by the Department of 1918 Children and Family Services for children who have intellectual 1919 disabilitieswith mental retardationor autism. 1920 (b) A child adjudicated incompetent due to mental illness 1921 may be ordered into a secure program or facility designated by 1922 the Department of Children and Family Services for children 1923 having mental illnesses. 1924 (c) IfWhenevera child is placed in a secure residential 1925 facility, the department shallwillprovide transportation to 1926 the secure residential facility for admission and from the 1927 secure residential facility upon discharge. 1928 (d) The purpose of the treatment or training is the 1929 restoration of the child’s competency to proceed. 1930 (e) The service provider must file a written report with 1931 the court pursuant to the applicable Florida Rules of Juvenile 1932 Procedure withinnot later than6 months after the date of 1933 commitment, or at the end of any period of extended treatment or 1934 training, and at any time the Department of Children and Family 1935 Services, through its service provider, determines the child has 1936 attained competency or no longer meets the criteria for secure 1937 placement, or at such shorter intervals as ordered by the court. 1938 A copy of a written report evaluating the child’s competency 1939 must be filed by the provider with the court and with the state 1940 attorney, the child’s attorney, the department, and the 1941 Department of Children and Family Services. 1942 (6)(a) If a child is determined to have mental illness, 1943 intellectual disabilitymental retardation, or autism and is 1944 found to be incompetent to proceed but does not meet the 1945 criteria set forth in subsection (3), the court shall commit the 1946 child to the Department of Children and Family Services and 1947shallorder the Department of Children and Family Services to 1948 provide appropriate treatment and training in the community. The 1949 purpose of the treatment or training is the restoration of the 1950 child’s competency to proceed. 1951 Section 50. Section 985.195, Florida Statutes, is amended 1952 to read: 1953 985.195 Transfer to other treatment services.—Any child 1954 committed to the department may be transferred to intellectual 1955 disabilityretardation, mental health, or substance abuse 1956 treatment facilities for diagnosis and evaluation pursuant to 1957 chapter 393, chapter 394, or chapter 397, aswhichever is1958 applicable, for up toa period not to exceed90 days. 1959 Section 51. Paragraph (b) of subsection (1) of section 1960 985.61, Florida Statutes, is amended to read: 1961 985.61 Early delinquency intervention program; criteria.— 1962 (1) The Department of Juvenile Justice shall, contingent 1963 upon specific appropriation and with the cooperation of local 1964 law enforcement agencies, the judiciary, district school board 1965 personnel, the office of the state attorney, the office of the 1966 public defender, the Department of Children and Family Services, 1967 and community service agencies that work with children, 1968 establish an early delinquency intervention program, the 1969 components of which shall include, but not be limited to: 1970 (b) Treatment modalities, including substance abuse 1971 treatment services, mental health services, andretardation1972 services for intellectual disabilities. 1973 Section 52. It is the intent of the Legislature that this 1974 act not expand or contract the scope or application of any 1975 provision of the Florida Statutes. This act may not be construed 1976 to change the application of any provision of Florida Statutes 1977 to any person. 1978 Section 53. This act shall take effect July 1, 2013.