Bill Text: FL S1388 | 2010 | Regular Session | Comm Sub

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Bill Title: Intellectual Disabilities [SPSC]

Spectrum: Partisan Bill (Republican 2-0)

Status: (Failed) 2010-04-30 - Died in Committee on Health and Human Services Appropriations [S1388 Detail]

Download: Florida-2010-S1388-Comm_Sub.html

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