House Bill 3247c2

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    Florida House of Representatives - 1998          CS/CS/HB 3247

        By the Committees on Family Law & Children, Elder Affairs
    & Long Term Care and Representative Argenziano





  1                      A bill to be entitled

  2         An act relating to forensic client services;

  3         amending s. 40.29, F.S., relating to estimated

  4         amount of pay for expert witnesses, to conform

  5         a reference; amending s. 393.11, F.S.;

  6         specifying persons or entities that may file

  7         petition for proposed involuntary admission to

  8         residential services arising out of ch. 916,

  9         F.S., relating to forensic services; providing

10         for petitions for defendants with autism;

11         revising required contents of the petition;

12         revising requirements relating to notice of

13         filing of petition or service of copy of order;

14         prohibiting release from order for involuntary

15         admission except by court order; amending and

16         reorganizing ch. 916, F.S., the Forensic Client

17         Services Act; creating pt. I of ch. 916, F.S.;

18         providing general provisions of the chapter;

19         amending s. 916.105, F.S.; revising legislative

20         intent; amending s. 916.106, F.S.; providing or

21         revising definitions with respect to ch. 916,

22         F.S.; redefining "department" to refer to the

23         Department of Children and Family Services in

24         lieu of the Department of Health and

25         Rehabilitative Services; amending s. 916.107,

26         F.S.; revising state policy with respect to the

27         rights of forensic clients, and conforming

28         terminology; amending and renumbering s.

29         916.175, F.S., relating to criminal escape by a

30         client; prohibiting escape or attempted escape

31         from a facility or program by a client under

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  1         specified circumstances, and providing

  2         penalties therefor; amending and renumbering s.

  3         916.178, F.S.; prohibiting the introduction of

  4         certain articles into or upon, or the taking or

  5         attempt to take or send certain articles from,

  6         facility grounds, under specified

  7         circumstances, and providing penalties

  8         therefor; providing for enforcement by

  9         institutional security personnel or law

10         enforcement officers; conforming a reference;

11         amending and renumbering s. 916.19, F.S.;

12         providing for client protection and security;

13         renumbering s. 916.20, F.S., relating to

14         departmental rulemaking; creating pt. II of ch.

15         916, F.S., relating to forensic services for

16         persons who are mentally ill; amending and

17         renumbering s. 916.108, F.S.; providing for

18         evaluation of defendant for competency to

19         proceed or for sanity, under specified

20         circumstances; amending and renumbering s.

21         916.11, F.S.; revising time limits and

22         guidelines relating to appointment of experts;

23         amending s. 916.12, F.S.; providing duties of

24         examining experts and guidelines with respect

25         to reports on defendant's mental competence to

26         proceed and recommended treatment for defendant

27         to attain competence to proceed; amending s.

28         916.13, F.S.; providing criteria for

29         involuntary commitment of defendant adjudicated

30         incompetent to proceed due to mental illness;

31         revising duties of the court or the department

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  1         and guidelines relating to commitment and

  2         placement of defendant and filing of reports;

  3         amending s. 916.14, F.S.; providing for

  4         inapplicability of statute of limitations and

  5         of bar against former jeopardy under specified

  6         circumstances when defendant is incompetent to

  7         proceed; amending s. 916.145, F.S.; revising

  8         time limits and guidelines with respect to

  9         dismissal of charges against a defendant

10         adjudicated incompetent to proceed; providing

11         for dismissal without prejudice under specified

12         circumstances; amending s. 916.15, F.S.,

13         relating to involuntary commitment of defendant

14         adjudicated not guilty by reason of insanity;

15         conforming terminology; providing for mandatory

16         departmental retention and treatment of

17         defendant; reenacting s. 394.467(7)(a), F.S.,

18         relating to procedure for continued involuntary

19         placement, to incorporate said amendment in a

20         reference; amending s. 916.16, F.S.; providing

21         for retention of jurisdiction by committing

22         court over a defendant hospitalized as

23         incompetent to proceed or because of a finding

24         of not guilty by reason of insanity or over a

25         defendant placed on conditional release;

26         prohibiting release except by court order in

27         specified circumstances; amending s. 916.17,

28         F.S.; revising procedures and guidelines

29         relating to conditional release and

30         modification of release conditions, including

31         filing requirements for plans for outpatient

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  1         treatment; creating pt. III of ch. 916, F.S.,

  2         relating to forensic services for persons who

  3         are mentally retarded or autistic; creating s.

  4         916.301, F.S.; providing for appointment of

  5         experts who are mental retardation or autism

  6         professionals, under specified circumstances;

  7         providing for examination of the defendant by

  8         the experts; providing for certain witness fees

  9         and evaluator fees as court costs; providing

10         for reimbursement of certain travel and per

11         diem expenses of state employees; creating s.

12         916.3012, F.S.; providing for determination of

13         incompetence to proceed when the defendant's

14         suspected mental condition is mental

15         retardation or autism; creating s. 916.302,

16         F.S.; providing for involuntary commitment of

17         defendant determined to be incompetent to

18         proceed due to mental retardation or autism;

19         requiring the department to notify the court of

20         transfer of a defendant; creating s. 916.3025,

21         F.S.; providing for retention of jurisdiction

22         over certain defendants found incompetent to

23         proceed and ordered into a secure facility for

24         mentally retarded or autistic defendants;

25         prohibiting release except by court order;

26         creating s. 916.303, F.S.; providing for

27         dismissal of charges without prejudice or

28         involuntary admission to residential services

29         or a training program under specified

30         circumstances when the defendant is found

31         incompetent to proceed due to mental

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  1         retardation or autism; providing for petitions

  2         to continue defendant's placement in a secure

  3         facility or program under specified

  4         circumstances; requiring a review and hearing

  5         to be held at least annually of the

  6         involuntarily admitted defendant's status,

  7         under specified circumstances; requiring the

  8         court to make certain determinations; providing

  9         for notice of the review and hearing; providing

10         that the defendant's placement in a secure

11         facility or program may not exceed in length

12         the maximum sentence for the crime charged;

13         creating s. 916.304, F.S.; providing for

14         conditional release based on an approved plan

15         for providing continuing community-based

16         training of defendant; providing for

17         modification of release conditions or

18         termination of jurisdiction under specified

19         circumstances; providing an effective date.

20

21  Be It Enacted by the Legislature of the State of Florida:

22

23         Section 1.  Subsection (1) of section 40.29, Florida

24  Statutes, is amended to read:

25         40.29  Clerks to estimate amount for pay of jurors and

26  witnesses and make requisition.--

27         (1)  The clerk of the court in and for any county shall

28  make an estimate of the amount necessary during any quarterly

29  fiscal period beginning July 1 and during each succeeding

30  quarterly fiscal period for the payment by the state of:

31         (a)  Jurors in the circuit court and the county court;

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  1         (b)  Witnesses before the grand jury;

  2         (c)  Witnesses summoned to appear for an investigation,

  3  preliminary hearing, or trial in a criminal case when the

  4  witnesses are summoned by a state attorney or on behalf of an

  5  indigent defendant;

  6         (d)  Mental health professionals who are appointed

  7  pursuant to s. 394.473 and required in a court hearing

  8  involving an indigent; and

  9         (e)  Expert witnesses who are appointed pursuant to s.

10  916.115(2) 916.11(3) and required in a court hearing involving

11  an indigent;

12

13  and shall forward each such estimate to the State Courts

14  Administrator no later than the date scheduled by the State

15  Courts Administrator. At the time of any forwarding of such

16  estimate, the clerk of such court shall make a requisition

17  upon the State Courts Administrator for the amount of such

18  estimate; and the State Courts Administrator may reduce the

19  amount if in his or her judgment the requisition is excessive.

20         Section 2.  Subsections (2), (3), (8), and (11) of

21  section 393.11, Florida Statutes, are amended to read:

22         393.11  Involuntary admission to residential

23  services.--

24         (2)  PETITION.--

25         (a)  A petition for involuntary admission to

26  residential services may be executed by a petitioning

27  commission. For proposed involuntary admission to residential

28  services arising out of chapter 916, the petition may be filed

29  by a petitioning commission, the department, the state

30  attorney of the circuit from which the defendant was

31  committed, or the defendant's attorney.

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  1         (b)  The petitioning commission shall consist of three

  2  persons.  One of these persons shall be a physician licensed

  3  and practicing under chapter 458 or chapter 459.

  4         (c)  The petition shall be verified and shall:

  5         1.  State the name, age, and present address of the

  6  commissioners and their relationship to the person with mental

  7  retardation or autism;

  8         2.  State the name, age, county of residence, and

  9  present address of the person with mental retardation or

10  autism;

11         3.  Allege that the commission believes that the person

12  needs involuntary residential services and specify the factual

13  information on which such belief is based;

14         4.  Allege that the person lacks sufficient capacity to

15  give express and informed consent to a voluntary application

16  for services and lacks the basic survival and self-care skills

17  to provide for the person's well-being or is likely to

18  physically injure others if allowed to remain at liberty, and

19  specify the factual basis for such allegation; and

20         5.  State which residential setting is the least

21  restrictive and most appropriate alternative and specify the

22  factual information on which such belief is based.

23         (d)  The petition shall be filed in the circuit court

24  of the county in which the person with mental retardation or

25  autism resides.

26         (3)  NOTICE.--

27         (a)  Notice of the filing of the petition shall be

28  given to the individual and his or her legal guardian parent

29  or parents.  The notice shall be given both verbally and in

30  writing in the language of the client, or in other modes of

31  communication of the client, and in English. Notice shall also

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  1  be given to such other persons as the court may direct.  The

  2  petition for involuntary admission to residential services

  3  shall be served with the notice.

  4         (b)  Whenever a motion or petition has been filed

  5  pursuant to s. 916.303 to dismiss criminal charges against a

  6  defendant with retardation or autism, and a petition is filed

  7  to involuntarily admit the defendant to residential services,

  8  the notice of the filing of the petition shall also be given

  9  to the defendant's attorney, to the defendant's legal

10  guardian, and to the state attorney of the circuit from which

11  the defendant was committed.

12         (c)(b)  The notice shall state that a hearing shall be

13  set to determine whether inquire into the need of the person

14  with mental retardation or autism meets the criteria for

15  involuntary residential services.  The notice shall also state

16  the date of the hearing on the petition.

17         (d)(c)  The notice shall state that the individual with

18  mental retardation or autism has the right to be represented

19  by counsel of his or her own choice and that, if the person

20  cannot afford an attorney, the court shall appoint one.

21         (8)  ORDER.--

22         (a)  In all cases, the court shall issue written

23  findings of fact and conclusions of law to support its

24  decision.  The order shall state the basis for such findings

25  of fact.

26         (b)  An order of involuntary admission to residential

27  services shall not be entered unless the court finds that:

28         1.  The person is mentally retarded or autistic;

29         2.  Placement in a residential setting is the least

30  restrictive and most appropriate alternative to meet the

31  person's needs; and

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  1         3.  Because of the person's degree of mental

  2  retardation or autism, the person:

  3         a.  Lacks sufficient capacity to give express and

  4  informed consent to a voluntary application for services

  5  pursuant to s. 393.065 and lacks basic survival and self-care

  6  skills to such a degree that close supervision and

  7  habilitation in a residential setting is necessary and, if not

  8  provided, would result in a real and present threat of

  9  substantial harm to the person's well-being; or

10         b.  Is likely to physically injure others if allowed to

11  remain at liberty.

12         (c)  If the evidence presented to the court is not

13  sufficient to warrant involuntary admission to residential

14  services, but the court feels that residential services would

15  be beneficial, the court may recommend that the person seek

16  voluntary admission.

17         (d)  If an order of involuntary admission to

18  residential services provided by the developmental services

19  program of the department is entered by the court, a copy of

20  the written order shall be served upon the person, the

21  person's counsel, and the department, and, if a forensic

22  matter pursuant to chapter 916, the state attorney and the

23  person's defense counsel, if applicable.  The order of

24  involuntary admission sent to the department shall also be

25  accompanied by a copy of the examining committee's report and

26  other reports contained in the court file.

27         (e)  Upon receiving the order, the department shall,

28  within 45 days, provide the court with a copy of the person's

29  family or individual support plan and copies of all

30  examinations and evaluations, outlining the treatment and

31  rehabilitative programs. The department shall document that

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  1  the person has been placed in the most appropriate, least

  2  restrictive and cost-beneficial residential facility. A copy

  3  of the family or individual support plan and other

  4  examinations and evaluations shall be served upon the person

  5  and the person's counsel at the same time the documents are

  6  filed with the court.

  7         (11)  CONTINUING JURISDICTION.--The court which issues

  8  the initial order for involuntary admission to residential

  9  services under this section shall have continuing jurisdiction

10  to enter further orders to ensure that the person is receiving

11  adequate care, treatment, habilitation, and rehabilitation,

12  including psychotropic medication and behavioral programming.

13  Upon request, the court may transfer the continuing

14  jurisdiction to the court where a client resides if it is

15  different from where the original involuntary admission order

16  was issued. No person may be released from an order for

17  involuntary admission to residential services except by the

18  order of the court.

19         Section 3.  For the purpose of incorporating the

20  amendment to section 916.15, Florida Statutes, in a reference

21  thereto, paragraph (a) of subsection (7) of section 394.467,

22  Florida Statutes, is reenacted to read:

23         394.467  Involuntary placement.--

24         (7)  PROCEDURE FOR CONTINUED INVOLUNTARY PLACEMENT.--

25         (a)  Hearings on petitions for continued involuntary

26  placement shall be administrative hearings and shall be

27  conducted in accordance with the provisions of s. 120.57(1),

28  except that any order entered by the hearing officer shall be

29  final and subject to judicial review in accordance with s.

30  120.68.  Orders concerning patients committed after

31

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  1  successfully pleading not guilty by reason of insanity shall

  2  be governed by the provisions of s. 916.15.

  3         Section 4.  Part I of chapter 916, Florida Statutes,

  4  consisting of sections 916.10, 916.105, 916.106, 916.107,

  5  916.1081, 916.1085, 916.1091, and 916.1093, is created and

  6  entitled "General Provisions."

  7         Section 5.  Section 916.105, Florida Statutes, is

  8  amended to read:

  9         916.105  Legislative intent.--

10         (1)  It is the intent of the Legislature that the

11  Department of Children and Family Health and Rehabilitative

12  Services establish, locate, and maintain separate and secure

13  facilities and programs for the treatment or training of

14  defendants forensic clients who are charged with a felony and

15  who have been found to be incompetent to proceed due to their

16  mental illness, mental retardation, or autism mentally

17  retarded or mentally ill defendants, or who have been

18  acquitted of felonies crimes by reason of insanity, and who,

19  while still under the jurisdiction of the committing court,

20  are committed to the department for mental retardation or

21  mental health services under the provisions of this chapter.

22  The separate, secure facilities shall be sufficient to

23  accommodate the number of defendants clients committed under

24  the conditions noted above, except those defendants clients

25  found by the department to be appropriate for treatment or

26  training in a civil mental health treatment facility or

27  program. Such secure facilities shall be designed and

28  administered so that ingress and egress, together with other

29  requirements of this chapter, may be strictly controlled by

30  staff responsible for security in order to protect the

31

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  1  defendant client, facility hospital personnel, other clients,

  2  and citizens in adjacent communities.

  3         (2)  It is further the intent of the Legislature that

  4  treatment or training programs for defendants clients who are

  5  found to be mentally retarded or mentally ill, mentally

  6  retarded, or autistic defendants and are involuntarily

  7  committed to the department certain mental retardation or

  8  mental health facilities, and who are still under the

  9  jurisdiction of the committing court, be provided in such a

10  manner, subject to security requirements and other mandates of

11  this chapter, as to ensure the rights of the defendants said

12  clients as provided in this chapter.

13         (3)  It is the intent of the Legislature that

14  evaluation and services to defendants who are treatment of

15  mentally ill, and mentally retarded, or autistic defendants be

16  provided in community inpatient or outpatient settings, in

17  community residential facilities, or in civil, nonforensic

18  facilities, whenever this is a feasible alternative to

19  treatment or training in a state forensic facility.

20         Section 6.  Section 916.106, Florida Statutes, is

21  amended to read:

22         916.106  Definitions.--For the purposes of this

23  chapter:

24         (1)  "Autism" means "autism" as defined in s.

25  393.063(2).

26         (2)(1)  "Chemical weapon" means any shell, cartridge,

27  bomb, gun, or other device capable of emitting

28  chloroacetophenone (CN), chlorobenzalmalononitrile (CS) or any

29  derivatives thereof in any form, or any other agent with

30  lacrimatory properties, and shall include products such as

31  that commonly known as "mace."

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  1         (3)  "Civil facility" means a mental health facility

  2  established within the department to serve individuals

  3  committed pursuant to chapter 394 and those defendants

  4  committed pursuant to this chapter who do not require the

  5  security provided in a forensic facility.

  6         (4)(2)  "Court" means the circuit court.

  7         (5)(3)  "Department" means the Department of Children

  8  and Family Health and Rehabilitative Services.

  9         (6)  "Express and informed consent" or "consent" means

10  consent given voluntarily in writing after a conscientious and

11  sufficient explanation and disclosure of the purpose of the

12  proposed treatment, the common side effects of the treatment,

13  if any, the expected duration of the treatment, and any

14  alternative treatment available.

15         (7)(4)  "Forensic client" or "client" "patient" means

16  any defendant who is mentally ill, mentally retarded, or

17  autistic and mentally ill person who is committed to the

18  department pursuant to this chapter and:

19         (a)  Who has been determined to need treatment for a

20  mental illness or training for mental retardation or autism;

21         (b)  Who has been found incompetent to proceed on a

22  felony offense stand trial or incompetent for sentencing, has

23  been acquitted of a felony criminal offense by reason of

24  insanity;, has criminal charges pending, or has been found

25  guilty of a criminal offense but is not an inmate of the

26  Department of Corrections or any other correctional facility;

27  and

28         (c)  Who has been determined by the department to:

29         1.  Be dangerous to himself or herself or others; or

30         2.  Present a clear and present potential to escape;

31  and

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  1         (d)  Who is an adult or juvenile prosecuted as an

  2  adult.

  3         (8)(5)  "Forensic facility" means a separate and secure

  4  facility established within the department to serve for the

  5  treatment of forensic clients.  Such separate and secure

  6  facilities shall be security-grade buildings located on

  7  grounds distinct in location from other treatment facilities

  8  for persons who are mentally ill. The Florida State Hospital

  9  shall not be required to maintain separate treatment

10  facilities for mentally ill, or mentally retarded, or autistic

11  defendants who are persons found incompetent to proceed for

12  trial or who are acquitted of a criminal offense by reason of

13  insanity.

14         (9)  "Incompetent to proceed" means unable to proceed

15  at any material stage of a criminal proceeding, which shall

16  include trial of the case, pretrial hearings involving

17  questions of fact on which the defendant might be expected to

18  testify, entry of a plea, proceedings for violation of

19  probation or violation of community control, sentencing, and

20  hearings on issues regarding a defendant's failure to comply

21  with court orders or conditions or other matters in which the

22  mental competence of the defendant is necessary for a just

23  resolution of the issues being considered.

24         (10)(6)  "Institutional security personnel" means staff

25  members who meet or exceed the requirements of s. 943.13 and

26  who are responsible for providing security, for protection of

27  clients and personnel, for the enforcement of rules, for

28  prevention and investigation of unauthorized activities, and

29  for safeguarding the interests of citizens in the surrounding

30  communities.

31

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  1         (11)(7)  "Mental illness" "Mentally ill" means having

  2  an impairment of the emotional processes that, of the ability

  3  to exercise conscious control of one's actions, or of the

  4  ability to perceive or understand reality or to understand,

  5  which impairment substantially interferes with a defendant's

  6  person's ability to meet the ordinary demands of living.,

  7  regardless of etiology; except that, For the purposes of this

  8  chapter, the term does not apply to defendants include simple

  9  intoxication, persons who are solely mentally retarded or

10  autistic, and does not include intoxication or conditions

11  manifested only by antisocial behavior or substance abuse

12  impairment drug addiction.

13         (12)(8)  "Mental retardation" means "retardation" as

14  defined in s. 393.063(43). significantly subaverage general

15  intellectual functioning existing concurrently with deficits

16  in adaptive behavior and manifested during the period from

17  conception to age 18. "Significantly subaverage general

18  intellectual functioning," for the purpose of this definition,

19  means performance which is two or more standard deviations

20  from the mean score on a standardized intelligence test

21  specified in the rules of the department.  "Adaptive

22  behavior," for the purpose of this definition, means the

23  effectiveness or degree with which an individual meets the

24  standards of personal independence and social responsibility

25  expected of the individual's age, cultural group, and

26  community.

27         (13)  "Social service professional," for the purposes

28  of part III, means a person whose minimum qualifications

29  include a bachelor's degree and at least 2 years of social

30  work, clinical practice, or equivalent experience working

31  directly with persons with mental retardation, autism or other

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  1  developmental disabilities, special education, or habilitation

  2  programs.

  3         Section 7.  Section 916.107, Florida Statutes, is

  4  amended to read:

  5         916.107  Rights of forensic clients.--

  6         (1)  RIGHT TO INDIVIDUAL DIGNITY.--

  7         (a)  The policy of the state is that the individual

  8  dignity of the client patient shall be respected at all times

  9  and upon all occasions, including any occasion when the

10  forensic client patient is detained, transported, or treated.

11  Defendants Persons who are mentally ill, or mentally retarded,

12  or autistic and who are charged with, or who have been

13  convicted of, committing felonies criminal acts shall receive

14  appropriate treatment or training.  In a criminal case

15  involving a defendant person who has been adjudicated

16  incompetent to proceed stand trial or not guilty by reason of

17  insanity, or who has otherwise been found by the court to meet

18  the criteria for involuntary commitment, a jail may be used as

19  an emergency facility for up to 15 days from the date the

20  department receives a completed copy of the commitment order

21  containing the documentation required by Rules 3.212 and

22  3.217, Florida Rules of Criminal Procedure.  For In every case

23  in which a defendant who is mentally ill, or mentally

24  retarded, or autistic, who person is held in a jail, and who

25  has been adjudicated incompetent to proceed or not guilty by

26  reason of insanity, evaluation and treatment or training shall

27  be provided in the jail by the local public receiving facility

28  for mental health services or by the developmental services

29  program for persons with mental retardation or autism, the

30  client's patient's physician or clinical psychologist, or any

31  other appropriate mental health program available to provide

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  1  such treatment until the client person is transferred to the

  2  custody of the department.

  3         (b)  Mentally ill, or mentally retarded, or autistic

  4  defendants persons who are committed to the department

  5  pursuant to this chapter and who are initially placed in, or

  6  subsequently transferred to, a civil mental health treatment

  7  facility as described in part I of chapter 394 or to a

  8  residential facility as described in chapter 393 shall have

  9  the same rights as other persons committed to these civil

10  facilities for as described in part I of chapter 394, as long

11  as they remain there in a civil facility.

12         (2)  RIGHT TO TREATMENT.--

13         (a)  The policy of the state is that the department

14  shall not deny treatment or training of mental illness or

15  mental retardation to any client and that no services shall be

16  delayed at a forensic mental health treatment facility because

17  the forensic client is unable to pay. However, every

18  reasonable effort to collect appropriate reimbursement for the

19  cost of providing mental health services to clients persons

20  able to pay for the services, including reimbursement from

21  insurance or other third-party payments, shall be made by

22  forensic facilities providing services pursuant to this

23  chapter and in accordance with the provisions of s. 402.33.

24         (b)  Each client who is a patient at a forensic

25  facility shall be given, at the time of admission and at

26  regular intervals thereafter, a physical examination, which

27  shall include screening for communicable disease by a health

28  practitioner authorized by law to give such screenings and

29  examinations.

30         (c)  Every client patient committed pursuant to this

31  act shall be afforded the opportunity to participate in

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  1  activities designed to enhance self-image and the beneficial

  2  effects of other treatments or training, as determined by the

  3  facility.

  4         (d)  Not more than 30 days after admission, each client

  5  patient shall have and receive, in writing, an individualized

  6  treatment or training plan which the client patient has had an

  7  opportunity to assist in preparing.

  8         (3)  RIGHT TO EXPRESS AND INFORMED CONSENT.--

  9         (a)  A client person committed to the department

10  pursuant to this act shall be asked to give express and

11  informed written consent for treatment. "Express and informed

12  consent" or "consent" means consent given voluntarily in

13  writing after a conscientious and sufficient explanation and

14  disclosure of the purpose of the proposed treatment, the

15  common side effects of the treatment, if any, the expected

16  duration of the treatment, and any alternative treatment

17  available.  If a client patient in a forensic facility refuses

18  such treatment as is deemed necessary by the client's

19  patient's multidisciplinary treatment team at the forensic

20  facility for the appropriate care of the client patient and

21  the safety of the client patient or others, such treatment may

22  be provided under the following circumstances:

23         1.  In an emergency situation in which there is

24  immediate danger to the safety of the client patient or

25  others, such treatment may be provided upon the written order

26  of a physician for a period not to exceed 48 hours, excluding

27  weekends and legal holidays.  If, after the 48-hour period,

28  the client patient has not given express and informed consent

29  to the treatment initially refused, the administrator or

30  designee of the forensic facility shall, within 48 hours,

31  excluding weekends and legal holidays, petition the committing

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  1  court or the circuit court serving the county in which the

  2  facility is located, at the option of the facility

  3  administrator or designee, for an order authorizing the

  4  continued treatment of the client patient.  In the interim,

  5  treatment may be continued without the consent of the client

  6  patient upon the continued written order of a physician who

  7  has determined that the emergency situation continues to

  8  present a danger to the safety of the client patient or

  9  others.

10         2.  In a situation other than an emergency situation,

11  the administrator or designee of the forensic facility shall

12  petition the court for an order authorizing the treatment to

13  of the client patient. The order shall allow such treatment

14  for a period not to exceed 90 days from the date of the entry

15  of the order. Unless the court is notified in writing that the

16  client patient has provided express and informed consent in

17  writing or that the client patient has been discharged by the

18  committing court, the administrator or designee shall, prior

19  to the expiration of the initial 90-day order, petition the

20  court for an order authorizing the continuation of treatment

21  for another 90-day period.  This procedure shall be repeated

22  until the client patient provides consent or is discharged by

23  the committing court.

24         3.  At the hearing on the issue of whether the court

25  should enter an order authorizing treatment for which a client

26  patient has refused to give express and informed consent, the

27  court shall determine by clear and convincing evidence that

28  the client patient is mentally ill, or mentally retarded, or

29  autistic as defined in this chapter, that the treatment not

30  consented to is essential to the care of the client patient,

31  and that the treatment not consented to is not experimental

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  1  and does not present an unreasonable risk of serious,

  2  hazardous, or irreversible side effects.  In arriving at the

  3  substitute judgment decision, the court must consider at least

  4  the following factors:

  5         a.  The client's patient's expressed preference

  6  regarding treatment;

  7         b.  The probability of adverse side effects;

  8         c.  The prognosis without treatment; and

  9         d.  The prognosis with treatment.

10

11  The hearing shall be as convenient to the client patient as

12  may be consistent with orderly procedure and shall be

13  conducted in physical settings not likely to be injurious to

14  the client's patient's condition. The court may appoint a

15  master to preside at the hearing. The client patient or the

16  client's patient's guardian, and the his or her

17  representative, shall be provided with a copy of the petition

18  and the date, time, and location of the hearing. The client

19  patient has the right to have an attorney represent him or her

20  at the hearing, and, if the client patient is indigent, the

21  court shall appoint the office of the public defender to

22  represent the client patient at the hearing.  The client

23  patient may testify or not, as he or she chooses, and has the

24  right to cross-examine witnesses testifying on behalf of the

25  facility and may present his or her own witnesses.

26         (b)  In addition to the provisions of paragraph (a), in

27  the case of surgical procedures requiring the use of a general

28  anesthetic or electroconvulsive treatment or nonpsychiatric

29  medical procedures, and prior to performing the procedure,

30  written permission shall be obtained from the client patient,

31  if the client he or she is legally competent, from the parent

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  1  or guardian of a minor client patient, or from the guardian of

  2  an incompetent client patient.  The administrator or designee

  3  of the forensic facility or a his or her designated

  4  representative may, with the concurrence of the client's

  5  patient's attending physician, authorize emergency surgical or

  6  nonpsychiatric medical treatment if such treatment is deemed

  7  lifesaving or for a situation threatening serious bodily harm

  8  to the client patient and permission of the client patient or

  9  the client's patient's guardian cannot be obtained.

10         (4)  QUALITY OF TREATMENT.--Each client patient

11  committed pursuant to this chapter shall receive treatment or

12  training suited to the client's his or her needs, which shall

13  be administered skillfully, safely, and humanely with full

14  respect for the the client's patient's dignity and personal

15  integrity.  Each client patient shall receive such medical,

16  vocational, social, educational, and rehabilitative services

17  as the client's patient's condition requires to bring about a

18  return to court for disposition of charges or a an early

19  return to the his or her community.  In order to achieve this

20  goal, the department is directed to coordinate the services of

21  the Alcohol, Drug Abuse and Mental Health Program Office and

22  the Developmental Services Program Office its forensic mental

23  health and mental retardation programs with all other programs

24  of the department and other appropriate state agencies.

25         (5)  COMMUNICATION, ABUSE REPORTING, AND VISITS.--

26         (a)  Each client patient committed pursuant to the

27  provisions of this chapter has the right to communicate freely

28  and privately with persons outside the facility unless it is

29  determined that such communication is likely to be harmful to

30  the client patient or others. Clients shall have the right to

31

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  1  contact and to receive communication from their attorneys at

  2  any reasonable time.

  3         (b)  Each client patient committed under the provisions

  4  of this chapter shall be allowed to receive, send, and mail

  5  sealed, unopened correspondence; and no client's patient's

  6  incoming or outgoing correspondence shall be opened, delayed,

  7  held, or censored by the facility unless there is reason to

  8  believe that it contains items or substances which may be

  9  harmful to the client patient or others, in which case the

10  administrator or designee may direct reasonable examination of

11  such mail and may regulate the disposition of such items or

12  substances. "Correspondence" shall not include parcels or

13  packages.  Forensic facilities are authorized to promulgate

14  reasonable institutional policies rules to provide for the

15  inspection of parcels or packages and for the removal of

16  contraband items for health or security reasons prior to the

17  contents being given to a client resident.

18         (c)  If a client's patient's right to communicate is

19  restricted by the administrator, written notice of such

20  restriction shall be served on the client patient or his or

21  her legal the patient's guardian or representatives, and such

22  restriction shall be recorded on the client's patient's

23  clinical record with the reasons therefor. The restriction of

24  a client's patient's right to communicate shall be reviewed at

25  least every 7 90 days.

26         (d)  Each forensic facility shall establish reasonable

27  institutional policies rules governing visitors, visiting

28  hours, and the use of telephones by clients patients in the

29  least restrictive possible manner possible.

30         (e)  Each client patient committed pursuant to this

31  chapter shall have ready access to a telephone in order to

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  1  report an alleged abuse.  The facility or program staff shall

  2  orally verbally and in writing inform each client patient of

  3  the procedure for reporting abuse and shall present the

  4  information in a language the client understands.  A written

  5  copy of that procedure, including the telephone number of the

  6  abuse registry and reporting forms, shall be posted in plain

  7  view.

  8         (f)  The department's forensic facilities department

  9  shall develop policies adopt rules providing a procedure for

10  reporting abuse.  Facility staff shall be required, as a

11  condition of employment, to become familiar with the

12  procedures for the reporting of abuse.

13         (6)  CARE AND CUSTODY OF PERSONAL EFFECTS OF CLIENTS

14  PATIENTS.--A client's patient's right to possession of his or

15  her clothing and personal effects shall be respected.  The

16  department by rule, or the administrator of any facility by

17  written institutional policy, may declare certain items to be

18  hazardous to the welfare of clients patients or others or to

19  the operation of the facility.  Such items may be restricted

20  from introduction into the facility or may be restricted from

21  being in a client's patient's possession.  The administrator

22  or designee may take temporary custody of such effects when

23  required for medical and safety reasons.  Custody of such

24  personal effects shall be recorded in the client's patient's

25  clinical record.

26         (7)  VOTING IN PUBLIC ELECTIONS.--A client patient

27  committed pursuant to this chapter who is eligible to vote

28  according to the laws of the state has the right to vote in

29  the primary and general elections.  The department shall

30  establish rules to enable clients patients to obtain voter

31

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  1  registration forms, applications for absentee ballots, and

  2  absentee ballots.

  3         (8)  CLINICAL RECORD; CONFIDENTIALITY.--A clinical

  4  record for each client patient shall be maintained. The record

  5  shall include data pertaining to admission and such other

  6  information as may be required under rules of the department.

  7  Unless waived by express and informed consent of by the client

  8  patient or the client's patient's legal guardian or, if the

  9  client patient is deceased, by the client's patient's personal

10  representative or by that family member who stands next in

11  line of intestate succession or except as otherwise provided

12  in this subsection, the clinical record is confidential and

13  exempt from the provisions of s. 119.07(1) and s. 24(a), Art.

14  I of the State Constitution.

15         (a)  Such clinical record may be released:

16         1.  To such persons and agencies as are designated by

17  the client patient or the client's patient's legal guardian.

18         2.  To persons authorized by order of court and to the

19  defendant's counsel when the records are needed by the counsel

20  for adequate representation.

21         3.  To a qualified researcher, as defined by rule; a

22  staff member of the facility; or an employee of the department

23  when the administrator of the facility or secretary of the

24  department deems it necessary for treatment of the client

25  patient, maintenance of adequate records, compilation of

26  treatment data, or evaluation of programs.

27         4.  For statistical and research purposes if the

28  information is abstracted in such a way as to protect the

29  identity of individuals.

30         5.  If a client patient receiving services pursuant to

31  this chapter has declared an intention to harm other persons.

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  1  When such a declaration has been made, the administrator shall

  2  authorize the release of sufficient information to provide

  3  adequate warning to the person threatened with harm by the

  4  client, and to the committing court, the state attorney, and

  5  the attorney representing the client; however, only the

  6  declaration may be disclosed.

  7         6.  To the parent or next of kin of a mentally ill, or

  8  mentally retarded, or autistic person who is committed to, or

  9  is being served treated by, a forensic mental health facility

10  or program when such information is limited to that person's

11  service treatment plan and current physical and mental

12  condition. Release of such information shall be in accordance

13  with the code of ethics of the profession involved.

14         (b)  Notwithstanding other provisions of this

15  subsection, the department may request or receive from or

16  provide to any of the following entities client information to

17  facilitate treatment, habilitation, rehabilitation, and

18  continuity of care of any forensic client:

19         1.  The Social Security Administration and the United

20  States Department of Veterans Affairs;

21         2.  Law enforcement agencies, state attorneys, defense

22  attorneys public defenders or other attorneys defending the

23  patient, and judges in regard to the client's patient's

24  status;

25         3.  Jail personnel in the jail to which a client may be

26  returned; and

27         4.  Community agencies and others expected to provide

28  followup care to the client patient upon the client's his or

29  her return to the community.

30

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  1         (c)  The department may provide notice to any client's

  2  patient's next of kin or first representative regarding any

  3  serious medical illness or the death of the client patient.

  4         (d)1.  Any law enforcement agency, treatment facility,

  5  or other governmental agency that receives information

  6  pursuant to this subsection shall maintain the confidentiality

  7  of such information except as otherwise provided herein.

  8         2.  Any agency or private practitioner who acts in good

  9  faith in releasing information pursuant to this subsection is

10  not subject to civil or criminal liability for such release.

11         (9)  HABEAS CORPUS.--

12         (a)  At any time, and without notice, a client person

13  detained by a facility, or a relative, friend, guardian,

14  representative, or attorney on behalf of such client person,

15  may petition for a writ of habeas corpus to question the cause

16  and legality of such detention and request that the committing

17  circuit court issue a writ for release.  Each client patient

18  committed pursuant to this chapter shall receive a written

19  notice of the right to petition for a writ of habeas corpus.

20         (b)  A client patient or his or her legal the patient's

21  guardian or representatives or attorney may file a petition in

22  the circuit court in the county where the client patient is

23  committed alleging that the client patient is being unjustly

24  denied a right or privilege granted herein or that a procedure

25  authorized herein is being abused.  Upon the filing of such a

26  petition, the circuit court shall have the authority to

27  conduct a judicial inquiry and to issue any appropriate order

28  to correct an abuse of the provisions of this chapter.

29         (10)  TRANSPORTATION.--

30         (a)  The sheriff shall consult with the governing board

31  of the county as to the most appropriate and cost-effective

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  1  means of transportation for forensic clients committed for

  2  treatment or training.  Such consultation shall include, but

  3  is not limited to, consideration of the cost to the county of

  4  transportation performed by sheriff's department personnel as

  5  opposed to transportation performed by other means and, if

  6  sheriff's department personnel are to be used for

  7  transportation, the effect such use will have, if any, on

  8  service delivery levels of the sheriff's road patrol.  After

  9  such consultation with the governing board of the county, the

10  sheriff shall determine the most appropriate and

11  cost-effective means of transportation for forensic clients

12  committed for treatment or training.

13         (b)  The governing board of each county is authorized

14  to contract with private transport companies for the

15  transportation of such clients patients to and from a forensic

16  facility.

17         (c)  Any company that transports a client patient

18  pursuant to this section is considered an independent

19  contractor and is solely liable for the safe and dignified

20  transportation of the client patient. Any transport company

21  that contracts with the governing board of a county for the

22  transport of clients patients as provided for in this section

23  shall be insured and provide no less than $100,000 in

24  liability insurance with respect to the transportation of the

25  clients patients.

26         (d)  Any company that contracts with a governing board

27  of a county to transport clients patients shall comply with

28  the applicable rules of the department to ensure the safety

29  and dignity of the clients patients.

30         (11)  LIABILITY FOR VIOLATIONS.--Any person who

31  violates or abuses any rights or privileges of a client

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  1  patient provided by this act is liable for damages as

  2  determined by law.  Any person who acts in good faith in

  3  complying with the provisions of this act is immune from civil

  4  or criminal liability for his or her actions in connection

  5  with the admission, diagnosis, treatment, training, or

  6  discharge of a client patient to or from a facility.  However,

  7  this subsection does not relieve any person from liability if

  8  he or she the person is negligent.

  9         Section 8.  Section 916.175, Florida Statutes, is

10  renumbered as section 916.1081, Florida Statutes, and amended

11  to read:

12         916.1081 916.175  Escape from treatment program;

13  penalty.--A defendant client involuntarily committed to the

14  department under the provisions of this chapter who escapes or

15  attempts to escape from a facility or program commits the

16  department is guilty of a felony of the second degree,

17  punishable as provided in s. 775.082, s. 775.083, or s.

18  775.084.

19         Section 9.  Section 916.178, Florida Statutes, is

20  renumbered as section 916.1085, Florida Statutes, and amended

21  to read:

22         916.1085 916.178  Introduction or removal of certain

23  articles unlawful; penalty.--

24         (1)(a)  Except as authorized by law or as specifically

25  authorized by the person in charge of a forensic facility, it

26  is unlawful to introduce into or upon the grounds of any

27  forensic facility under the supervision or control of the

28  department, or to take or attempt to take or send therefrom,

29  any of the following articles, which are hereby declared to be

30  contraband for the purposes of this section:

31

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  1         1.  Any intoxicating beverage or beverage which causes

  2  or may cause an intoxicating effect;

  3         2.  Any controlled substance as defined in chapter 893;

  4         3.  Any firearm or deadly weapon; or

  5         4.  Any other item items as determined by the

  6  department, and as designated by departmental rule or by the

  7  administrator of any facility, and designated by written

  8  institutional policies, to be hazardous to the welfare of

  9  patients or the operation of the facility.

10         (b)  It is unlawful to transmit to, attempt to transmit

11  to, or cause or attempt to cause to be transmitted to or

12  received by any client patient of any facility any article or

13  thing declared by this section to be contraband, at any place

14  which is outside of the grounds of such facility, except as

15  authorized by law or as specifically authorized by the person

16  in charge of such facility.

17         (2)(a)  All individuals or vehicles entering upon the

18  grounds of any forensic facility under the supervision or

19  control of the department may shall be subject to reasonable

20  search and seizure of any contraband materials introduced

21  thereon, for purpose of enforcement of this chapter.

22         (b)  These provisions shall be enforced by

23  institutional security personnel as defined in s.

24  916.106(10)(6) or by a law enforcement officer as defined in

25  s. 943.10.

26         (c)  A person who Whoever violates any provision of

27  subparagraph (1)(a)2. or subparagraph (1)(a)3. commits is

28  guilty of a felony of the third degree, punishable as provided

29  in s. 775.082, s. 775.083, or s. 775.084.

30

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  1         Section 10.  Section 916.19, Florida Statutes, is

  2  renumbered as section 916.1091, Florida Statutes, and amended

  3  to read:

  4         916.1091 916.19  Duties, functions, and powers of

  5  institutional security personnel.--In case of emergency, and

  6  when necessary to provide protection and security to any

  7  client patient, to the personnel, equipment, buildings, or

  8  grounds of a department facility, or to citizens in the

  9  surrounding community, institutional security personnel may,

10  when authorized by the administrator of the facility or her or

11  his designee when the administrator is not present, use a

12  chemical weapon against a patient housed in a forensic

13  facility. However, such weapon shall be used only to the

14  extent necessary to provide such protection and security.

15  Under no circumstances shall any such officer carry a chemical

16  weapon on her or his person except during the period of the

17  emergency for which its use was authorized.  All chemical

18  weapons shall be placed in secure storage when their use is

19  not authorized as provided in this section.

20         Section 11.  Section 916.20, Florida Statutes, is

21  renumbered as section 916.1093, Florida Statutes.

22         Section 12.  Part II of chapter 916, Florida Statutes,

23  consisting of sections 916.111, 916.115, 916.12, 916.13,

24  916.14, 916.145, 916.15, 916.16, and 916.17, is created and

25  entitled "Forensic Services for Persons Who are Mentally Ill."

26         Section 13.  Section 916.108, Florida Statutes, is

27  renumbered as section 916.111, Florida Statutes, and amended

28  to read:

29         916.111 916.108  Training of mental health

30  experts.--The evaluation of defendants for competency to

31  proceed stand trial or for sanity at the time of the

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  1  commission of the offense shall be conducted in such a way as

  2  to ensure uniform application of the criteria enumerated in

  3  Rules 3.210 and 3.216, Florida Rules of Criminal Procedure.

  4  The department shall develop, and may contract with accredited

  5  institutions:

  6         (1)  To provide:

  7         (a)  A plan for training community mental health

  8  professionals to perform forensic evaluations and to

  9  standardize the criteria and procedures to be used in these

10  evaluations;

11         (b)  Clinical protocols and procedures based upon the

12  criteria of Rules 3.210 and 3.216, Florida Rules of Criminal

13  Procedure; and

14         (c)  Training for community mental health professionals

15  in the application of these protocols and procedures in

16  performing forensic evaluations and providing reports to the

17  courts; and

18         (2)  To compile and maintain the necessary information

19  for evaluating the success of this program, including the

20  number of persons trained, the cost of operating the program,

21  and the effect on the quality of forensic evaluations as

22  measured by appropriateness of admissions to state forensic

23  facilities and to community-based care programs.

24         Section 14.  Section 916.11, Florida Statutes, is

25  renumbered as section 916.115, Florida Statutes, and amended

26  to read:

27         916.115 916.11  Appointment of experts.--

28         (1)(a)  Annually Semiannually, the department shall

29  provide the courts with a list of mental health professionals

30  who have completed approved training as experts.

31

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  1         (b)  The court may appoint no more than three nor fewer

  2  than two experts to determine issues of the mental condition

  3  of a defendant in a criminal case, including the issues of

  4  competency to proceed stand trial, insanity, and involuntary

  5  hospitalization or placement.  The panel of experts may

  6  evaluate the defendant in jail or in another appropriate local

  7  facility.

  8         (c)  To the extent possible, at least one of the

  9  appointed experts shall have completed forensic evaluator

10  training approved by the department and be either a

11  state-employed psychiatrist, psychologist, or physician if in

12  the local vicinity; a psychiatrist, psychologist, or physician

13  designated by the district alcohol, drug abuse, and mental

14  health program office; or a community mental health center

15  psychiatrist, psychologist, or physician.

16         (d)  If a defendant's suspected mental condition is

17  mental retardation, the court shall appoint the developmental

18  services program of the Department of Health and

19  Rehabilitative Services to examine the defendant and determine

20  whether she or he meets the definition of "retardation" in s.

21  393.063 and, if so, whether she or he is competent to stand

22  trial.

23         (2)  Expert witnesses appointed by the court to

24  evaluate determine the mental condition of a defendant in a

25  criminal case shall be allowed reasonable fees for services

26  rendered as evaluators of competence or sanity and as

27  witnesses, which shall be paid by the county in which the

28  indictment was found or the information or affidavit was

29  filed. State employees shall be paid expenses pursuant to s.

30  112.061. The fees shall be taxed as costs in the case. In

31  order for the experts to be paid for the services rendered,

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  1  the reports and testimony must explicitly address each of the

  2  factors and follow the procedures set out in this chapter and

  3  in the Florida Rules of Criminal Procedure.

  4         Section 15.  Section 916.12, Florida Statutes, is

  5  amended to read:

  6         916.12  Mental competence to proceed stand trial.--

  7         (1)  A defendant person is incompetent to proceed stand

  8  trial within the meaning of this chapter if the defendant

  9  person does not have sufficient present ability to consult

10  with her or his lawyer with a reasonable degree of rational

11  understanding or if the defendant person has no rational, as

12  well as factual, understanding of the proceedings against her

13  or him.

14         (2)  The experts shall first determine whether the

15  person is mentally ill and, if so, consider the factors

16  related to the issue of whether the defendant meets the

17  criteria for competence to proceed; that is, whether the

18  defendant has sufficient present ability to consult with

19  counsel with a reasonable degree of rational understanding and

20  whether the defendant has a rational, as well as factual,

21  understanding of the pending proceedings.

22         (3)  In considering the issue of competence to proceed,

23  the examining experts shall first consider and specifically

24  include in their report the defendant's capacity to:

25         (a)  Appreciate the charges or allegations against the

26  defendant;

27         (b)  Appreciate the range and nature of possible

28  penalties, if applicable, that may be imposed in the

29  proceedings against the defendant;

30         (c)  Understand the adversarial nature of the legal

31  process;

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  1         (d)  Disclose to counsel facts pertinent to the

  2  proceedings at issue;

  3         (e)  Manifest appropriate courtroom behavior; and

  4         (f)  Testify relevantly;

  5

  6  and include in their report any other factor deemed relevant

  7  by the experts.

  8         (4)  If the experts should find that the defendant is

  9  incompetent to proceed, the experts shall report on any

10  recommended treatment for the defendant to attain competence

11  to proceed. In considering the issues relating to treatment,

12  the examining experts shall specifically report on:

13         (a)  The mental illness causing the incompetence;

14         (b)  The treatment or treatments appropriate for the

15  mental illness of the defendant and an explanation of each of

16  the possible treatment alternatives in order of choices;

17         (c)  The availability of acceptable treatment and, if

18  treatment is available in the community, the expert shall so

19  state in the report; and

20         (d)  The likelihood of the defendant attaining

21  competence under the treatment recommended, an assessment of

22  the probable duration of the treatment required to restore

23  competence, and the probability that the defendant will attain

24  competence to proceed in the foreseeable future.

25         (5)(2)  A defendant who, because of psychotropic

26  medication, is able to understand the nature of proceedings

27  and assist in the defendant's own her or his defense shall not

28  automatically be deemed incompetent to proceed stand trial

29  simply because the defendant's satisfactory mental functioning

30  is dependent upon such medication. As used in this subsection,

31  "psychotropic medication" means any drug or compound used to

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  1  treat mental or emotional disorders affecting the mind,

  2  behavior, intellectual functions, perception, moods, or

  3  emotions and includes antipsychotic, antidepressant,

  4  antimanic, and antianxiety drugs.

  5         Section 16.  Section 916.13, Florida Statutes, is

  6  amended to read:

  7         916.13  Involuntary commitment of defendant adjudicated

  8  incompetent to stand trial or incompetent for sentencing.--

  9         (1)  CRITERIA.--Every defendant who is charged with a

10  felony and who is person adjudicated incompetent to proceed

11  stand trial or incompetent for sentencing, pursuant to the

12  applicable Florida Rules of Criminal Procedure, may be

13  involuntarily committed for treatment upon a finding by the

14  court of clear and convincing evidence that:

15         (a)  The defendant person is mentally ill and because

16  of the her or his mental illness, or that the person is

17  mentally retarded and because of her or his mental

18  retardation:

19         1.  The defendant person is manifestly incapable of

20  surviving alone or with the help of willing and responsible

21  family or friends, including available alternative services,

22  and, without treatment, the defendant person is likely to

23  suffer from neglect or refuse to care for herself or himself

24  and such neglect or refusal poses a real and present threat of

25  substantial harm to the defendant's her or his well-being; and

26  or

27         2.  There is a substantial likelihood that in the near

28  future the defendant person will inflict serious bodily harm

29  on herself or himself or another person, as evidenced by

30  recent behavior causing, attempting, or threatening such harm;

31  and

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  1         (b)  All available, less restrictive treatment

  2  alternatives, including treatment in community residential

  3  facilities or community inpatient or outpatient settings,

  4  which would offer an opportunity for improvement of the

  5  defendant's person's condition have been judged to be

  6  inappropriate; and.

  7         (c)  There is a substantial probability that the mental

  8  illness causing the defendant's incompetence will respond to

  9  treatment and the defendant will regain competency to proceed

10  in the reasonably foreseeable future.

11         (2)  ADMISSION TO A FORENSIC FACILITY.--

12         (a)  A defendant Every person who has been charged with

13  a felony and who has been adjudicated incompetent to proceed

14  stand trial or incompetent for sentencing, and who meets the

15  criteria for commitment to the department under the provisions

16  of this chapter, may shall be committed to the department, and

17  the department shall may retain and treat the defendant.  No

18  later than 6 months after the date of admission commitment or

19  at the end of any period of extended commitment, or at any

20  time the administrator or designee shall have determined that

21  the defendant has regained competency to proceed stand trial

22  or no longer meets the criteria for continued commitment, the

23  administrator or designee shall file a report with the court

24  pursuant to the applicable Florida Rules of Criminal

25  Procedure.

26         (b)  A defendant adjudicated incompetent to stand trial

27  due to her or his mental retardation may be ordered into a

28  secure facility designated by the department for retarded

29  defendants.  The department may not transfer a client from the

30  secure facility to another residential setting without first

31  notifying the court; the department may transfer such

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  1  defendant unless the department receives written objection to

  2  the transfer from the court within 30 days after receipt of

  3  the notice by the court.  No retarded client may be placed in

  4  the designated secure facility except by criminal court order.

  5  However, if criminal charges are subsequently dropped and the

  6  client is involuntarily admitted to retardation residential

  7  services, the placement at the secure facility may be

  8  continued if so ordered by the committing court following a

  9  hearing with the same due process requirements as set out in

10  s. 393.11 for an initial involuntary admission. Such court

11  hearings shall be held at least annually, with notice to the

12  state attorney, and each order of continuing placement shall

13  be based on a finding that the client is likely to physically

14  injure others as specified in s. 393.11(1)(c)2. In no case may

15  a client's placement in a secure facility exceed the maximum

16  sentence for the crime for which she or he was charged.

17         Section 17.  Section 916.14, Florida Statutes, is

18  amended to read:

19         916.14  Statute of limitations; former jeopardy.--The

20  statute of limitations shall not be applicable to criminal

21  charges dismissed because of the incompetency of the defendant

22  to proceed stand trial.  If a defendant is declared

23  incompetent to proceed stand trial during trial and afterwards

24  is declared competent to proceed stand trial, the defendant's

25  other, uncompleted trial shall not constitute former jeopardy.

26         Section 18.  Section 916.145, Florida Statutes, is

27  amended to read:

28         916.145  Adjudication of incompetency due to mental

29  illness retardation; dismissal of charges.--The charges

30  against any defendant adjudicated incompetent to proceed stand

31  trial due to the defendant's his or her mental illness

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  1  retardation shall be dismissed without prejudice to the state

  2  if the defendant remains incompetent to proceed within a

  3  reasonable time after such determination, not to exceed 5

  4  years stand trial 2 years after such adjudication, unless the

  5  court in its order specifies its reasons for believing that

  6  the defendant will become competent to proceed within the

  7  foreseeable future stand trial and specifies the time within

  8  which the defendant is expected to become competent to proceed

  9  stand trial. The charges against the defendant are dismissed

10  without prejudice to the state to refile the charges should

11  the defendant be declared competent to proceed in the future.

12         Section 19.  Section 916.15, Florida Statutes, is

13  amended to read:

14         916.15  Involuntary commitment of defendant adjudicated

15  not guilty by reason of insanity.--

16         (1)  A defendant person who is acquitted of criminal

17  charges because of a finding of not guilty by reason of

18  insanity may be involuntarily committed pursuant to such

19  finding if the defendant person is mentally ill and, because

20  of the person's illness, is manifestly dangerous to himself or

21  herself or others.

22         (2)  Every defendant person acquitted of criminal

23  charges by reason of insanity and found to meet the criteria

24  for involuntary commitment may be committed and treated in

25  accordance with the provisions of this section and the

26  applicable Florida Rules of Criminal Procedure.  The

27  department shall admit a defendant so adjudicated to an

28  appropriate facility or program for treatment and shall may

29  retain and treat such defendant.  No later than 6 months after

30  the date of admission, prior to the end of any period of

31  extended commitment, or at any time the administrator or

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  1  designee shall have determined that the defendant no longer

  2  meets the criteria for continued commitment placement, the

  3  administrator or designee shall file a report with the court

  4  pursuant to the applicable Florida Rules of Criminal

  5  Procedure.

  6         (3)  In all proceedings under this subsection, both the

  7  defendant patient and the state shall have the right to a

  8  hearing before the committing court. Evidence at such hearing

  9  may be presented by the hospital administrator or the

10  administrator's his or her designee as well as by the state

11  and the defendant.  The defendant shall have the right to

12  counsel at any such hearing.  In the event that a defendant

13  cannot afford counsel, the court shall appoint the public

14  defender to represent the defendant.  The parties shall have

15  access to the defendant's records at the treating facilities

16  and may interview or depose personnel who have had contact

17  with the defendant at the treating facilities.

18         Section 20.  Section 916.16, Florida Statutes, is

19  amended to read:

20         916.16  Jurisdiction of committing court.--

21         (1)  The committing court shall retain jurisdiction in

22  the case of any defendant patient hospitalized as incompetent

23  to proceed or because of a finding of not guilty by reason of

24  insanity or, if retarded, admitted to retardation residential

25  services pursuant to this chapter.  No such defendant person

26  may be released except by order of the committing court. The

27  administrative hearing examiner shall have no jurisdiction to

28  determine issues of continuing hospitalization or release of

29  any defendant person admitted pursuant to this chapter.

30         (2)  The committing court shall retain jurisdiction in

31  the case of any defendant placed on conditional release. No

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  1  such defendant may be released from the conditions of release

  2  except by order of the committing court.

  3         Section 21.  Section 916.17, Florida Statutes, is

  4  amended to read:

  5         916.17  Conditional release.--

  6         (1)  The committing court may order a conditional

  7  release of any defendant who has been found to be incompetent

  8  to proceed committed according to a finding of incompetency to

  9  stand trial or an adjudication of not guilty by reason of

10  insanity, based on an approved plan for providing appropriate

11  outpatient care and treatment. The committing court may order

12  a conditional release of any defendant in lieu of an

13  involuntary commitment to a forensic facility pursuant to s.

14  916.13 or s. 916.15. Upon a recommendation that At such time

15  as the administrator shall determine outpatient treatment of

16  the defendant is to be appropriate, she or he may file with

17  the court, with copies to all parties, a written plan for

18  outpatient treatment, including recommendations from qualified

19  professionals, must be filed with the court, with copies to

20  all parties.  Such a plan may also be submitted by the

21  defendant and filed with the court with copies to all parties.

22  The plan shall include:

23         (a)  Special provisions for residential care or

24  adequate supervision of the defendant.

25         (b)  Provisions for outpatient mental health services.

26         (c)  If appropriate, recommendations for auxiliary

27  services such as vocational training, educational services, or

28  special medical care.

29

30  In its order of conditional release, the court shall specify

31  the conditions of release based upon the release plan and

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  1  shall direct the appropriate agencies or persons to submit

  2  periodic reports to the court regarding the defendant's

  3  compliance with the conditions of the release and progress in

  4  treatment, with copies to all parties.

  5         (2)  Upon the filing of an affidavit or statement under

  6  oath by any person If at any time it appears that the

  7  defendant has failed to comply with the conditions of release,

  8  that the defendant's condition has deteriorated to the point

  9  that inpatient care is required, or that the release

10  conditions should be modified, the court shall hold a hearing

11  within 7 days after receipt of the affidavit or statement

12  under oath. After the hearing, the court and may modify the

13  release conditions. The court may also or order that the

14  defendant be returned to the department if it is found, after

15  the appointment and report of experts, that the person meets

16  the criteria for involuntary further treatment.

17         (3)  If at any time it is determined after a hearing

18  that the defendant no longer requires court-supervised

19  followup care, the court shall terminate its jurisdiction in

20  the cause and discharge the defendant.

21         Section 22.  Part III of chapter 916, Florida Statutes,

22  consisting of sections 916.301, 916.3012, 916.302, 916.3025,

23  916.303, and 916.304, is created and entitled "Forensic

24  Services for Persons Who Are Mentally Retarded or Autistic."

25         Section 23.  Section 916.301, Florida Statutes, is

26  created to read:

27         916.301  Appointment of experts.--

28         (1)  The department shall provide the courts quarterly

29  with a list of mental retardation and autism professionals who

30  are qualified to perform evaluations of defendants alleged to

31  be incompetent to proceed due to mental retardation or autism.

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  1  The courts may use professionals from this list when ordering

  2  evaluations for defendants suspected of being retarded or

  3  autistic.

  4         (2)  If a defendant's suspected mental condition is

  5  mental retardation or autism, the court shall appoint two

  6  experts, one of whom must be selected by the developmental

  7  services program of the department, each of whom will evaluate

  8  whether the defendant meets the definition of "mental

  9  retardation" or "autism" and, if so, whether the defendant is

10  competent to proceed.

11         (3)  At the request of any party, the court may appoint

12  one additional expert to evaluate the defendant.  The expert

13  appointed by the court will evaluate whether the defendant

14  meets the definition of "mental retardation" or "autism" and,

15  if so, whether the defendant is competent to proceed.

16         (4)  The developmental services program shall select a

17  psychologist who is licensed or authorized by law to practice

18  in this state, with experience in evaluating persons suspected

19  of having mental retardation or autism, and a social service

20  professional with experience in working with persons with

21  mental retardation or autism to evaluate the defendant.

22         (a)  The psychologist shall evaluate whether the

23  defendant meets the definition of "mental retardation" or

24  "autism" and, if so, whether the defendant is incompetent to

25  proceed due to mental retardation or autism.

26         (b)  The social service professional shall provide a

27  social and developmental history of the defendant.

28         (5)  All evaluations ordered by the court must be from

29  qualified experts with experience in evaluating persons with

30  mental retardation or autism and may include, but are not

31  limited to, those of psychologists, physicians, or

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  1  psychiatrists licensed or authorized by law to practice in

  2  this state.

  3         (6)  The panel of experts may examine the defendant in

  4  jail, in another appropriate local facility, or on an out

  5  patient basis.

  6         (7)  Expert witnesses appointed by the court to

  7  evaluate the mental condition of a defendant in a criminal

  8  case shall be allowed reasonable fees for services rendered as

  9  evaluators and as witnesses, which shall be paid by the county

10  in which the indictment was found or the information or

11  affidavit was filed. State employees shall be paid expenses

12  pursuant to s. 112.061. The fees shall be taxed as costs in

13  the case. In order for the experts to be paid for the services

14  rendered, the reports and testimony must explicitly address

15  each of the factors and follow the procedures set out in this

16  chapter and in the Florida Rules of Criminal Procedure.

17         Section 24.  Section 916.3012, Florida Statutes, is

18  created to read:

19         916.3012  Mental competence to proceed.--

20         (1)  A defendant whose suspected mental condition is

21  mental retardation or autism is incompetent to proceed within

22  the meaning of this chapter if the defendant does not have

23  sufficient present ability to consult with the defendant's

24  lawyer with a reasonable degree of rational understanding or

25  if the defendant has no rational, as well as factual,

26  understanding of the proceedings against the defendant.

27         (2)  The experts shall first consider whether the

28  defendant meets the definition of mental retardation or autism

29  and, if so, consider the factors related to the issue of

30  whether the defendant meets the criteria for competence to

31  proceed; that is, whether the defendant has sufficient present

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  1  ability to consult with counsel with a reasonable degree of

  2  rational understanding and whether the defendant has a

  3  rational, as well as factual, understanding of the pending

  4  proceedings.

  5         (3)  In considering the issue of competence to proceed,

  6  the examining experts shall first consider and specifically

  7  include in their report the defendant's capacity to:

  8         (a)  Appreciate the charges or allegations against the

  9  defendant;

10         (b)  Appreciate the range and nature of possible

11  penalties, if applicable, that may be imposed in the

12  proceedings against the defendant;

13         (c)  Understand the adversarial nature of the legal

14  process;

15         (d)  Disclose to counsel facts pertinent to the

16  proceedings at issue;

17         (e)  Manifest appropriate courtroom behavior; and

18         (f)  Testify relevantly;

19

20  and include in their report any other factor deemed relevant

21  by the experts.

22         (4)  If the experts should find that the defendant is

23  incompetent to proceed, the experts shall report on any

24  recommended training for the defendant to attain competence to

25  proceed. In considering the issues relating to training, the

26  examining experts shall specifically report on:

27         (a)  The mental retardation or autism causing the

28  incompetence;

29         (b)  The training appropriate for the mental

30  retardation or autism of the defendant and an explanation of

31

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  1  each of the possible training alternatives in order of

  2  choices;

  3         (c)  The availability of acceptable training and, if

  4  training is available in the community, the expert shall so

  5  state in the report; and

  6         (d)  The likelihood of the defendant attaining

  7  competence under the training recommended, an assessment of

  8  the probable duration of the training required to restore

  9  competence, and the probability that the defendant will attain

10  competence to proceed in the foreseeable future.

11         Section 25.  Section 916.302, Florida Statutes, is

12  created to read:

13         916.302  Involuntary commitment of defendant determined

14  to be incompetent to proceed due to mental retardation or

15  autism.--

16         (1)  CRITERIA.--Every defendant who is charged with a

17  felony and who is found to be incompetent to proceed, pursuant

18  to this chapter and the applicable Florida Rules of Criminal

19  Procedure, may be involuntarily committed for training upon a

20  finding by the court of clear and convincing evidence that:

21         (a)  The defendant is mentally retarded or autistic;

22         (b)  There is a substantial likelihood that in the near

23  future the defendant will inflict serious bodily harm on

24  himself or herself or another person, as evidenced by recent

25  behavior causing, attempting, or threatening such harm;

26         (c)  All available, less restrictive alternatives,

27  including services provided in community residential

28  facilities or other community settings, which would offer an

29  opportunity for improvement of the condition have been judged

30  to be inappropriate; and

31

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  1         (d)  There is a substantial probability that the mental

  2  retardation or autism causing the defendant's incompetence

  3  will respond to training and the defendant will regain

  4  competency to proceed in the reasonably foreseeable future.

  5         (2)  ADMISSION TO A FACILITY.--

  6         (a)  A defendant who has been charged with a felony and

  7  who is found to be incompetent to proceed, and who meets the

  8  criteria for commitment to the department under the provisions

  9  of this part, shall be committed to the department, and the

10  department shall retain and serve the defendant. No later than

11  6 months after the date of admission or at the end of any

12  period of extended commitment or at any time the administrator

13  or designee shall have determined that the defendant has

14  regained competency to proceed or no longer meets the criteria

15  for continued commitment, the administrator or designee shall

16  file a report with the court pursuant to this chapter and the

17  applicable Florida Rules of Criminal Procedure.

18         (b)  A defendant determined to be incompetent to

19  proceed due to mental retardation or autism may be ordered by

20  a circuit court into a secure facility designated by the

21  department for mentally retarded or autistic defendants.

22         (c)  The department may transfer a defendant from a

23  designated secure facility to another designated secure

24  facility and must notify the court of the transfer within 30

25  days after the transfer is completed.

26         (d)  The department may not transfer a defendant from a

27  designated secure facility to a nonsecure facility without

28  first notifying the court, and all parties, 30 days before the

29  proposed transfer. If the court objects to the proposed

30  transfer to a nonsecure facility, it must send its written

31  objection to the department. The department may transfer the

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  1  defendant unless it receives the written objection from the

  2  court within 30 days after the court's receipt of the notice

  3  of the proposed transfer.

  4         (3)  PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.--

  5         (a)  If a defendant is both retarded or autistic and

  6  mentally ill, evaluations must address which condition is

  7  primarily affecting the defendant's competency to proceed.

  8  Referral of the defendant should be made to the facility or

  9  program most appropriate to address the symptoms which are the

10  cause of the defendant's incompetence.

11         (b)  Transfer from one facility or program to another

12  facility or program may occur when, in the department's

13  judgment, it is in the defendant's best treatment or training

14  interests. Transfer will require an amended order from the

15  committing court.

16         Section 26.  Section 916.3025, Florida Statutes, is

17  created to read:

18         916.3025  Jurisdiction of committing court.--

19         (1)  The committing court shall retain jurisdiction in

20  the case of any defendant found to be incompetent to proceed

21  and ordered into a secure facility designated by the

22  department for mentally retarded or autistic defendants. No

23  defendant may be released except by the order of the

24  committing court.

25         (2)  The committing court shall retain jurisdiction in

26  the case of any defendant placed on conditional release. No

27  such defendant may be released from the conditions of release

28  except by order of the committing court.

29         (3)  The committing court shall consider the petition

30  to involuntarily admit to residential services provided by the

31  department's developmental services program a person whose

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  1  charges have been dismissed, and, when applicable, to continue

  2  secure placement of such person as provided in s. 916.303. The

  3  committing court shall retain jurisdiction over such person so

  4  long as he or she remains in secure placement or is on

  5  conditional release.

  6         Section 27.  Section 916.303, Florida Statutes, is

  7  created to read:

  8         916.303  Determination of incompetency due to mental

  9  retardation or autism; dismissal of charges.--

10         (1)  The charges against any defendant found to be

11  incompetent to proceed due to mental retardation or autism

12  shall be dismissed without prejudice to the state if the

13  defendant remains incompetent to proceed within a reasonable

14  time after such determination, not to exceed 2 years, unless

15  the court in its order specifies its reasons for believing

16  that the defendant will become competent to proceed within the

17  foreseeable future and specifies the time within which the

18  defendant is expected to become competent to proceed. The

19  charges against the defendant are dismissed without prejudice

20  to the state to refile the charges should the defendant be

21  declared competent to proceed in the future.

22         (2)(a)  If the charges are dismissed and if the

23  defendant is considered to lack sufficient capacity to give

24  express and informed consent to a voluntary application for

25  services and lacks the basic survival and self-care skills to

26  provide for his or her well-being or is likely to physically

27  injure himself or herself or others if allowed to remain at

28  liberty, the department, the state attorney or the defendant's

29  attorney may apply to the committing court to involuntarily

30  admit the defendant to residential services pursuant to s.

31  393.11.

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  1         (b)  If the defendant is considered to need involuntary

  2  residential services under s. 393.11 and, further, there is a

  3  substantial likelihood that the defendant will injure another

  4  person or continues to present a danger of escape, and all

  5  available less restrictive alternatives, including services in

  6  community residential facilities or other community settings,

  7  which would offer an opportunity for improvement of the

  8  condition have been judged to be inappropriate, then the

  9  person or entity filing the petition under s. 393.11, the

10  state attorney, the defendant's counsel, the petitioning

11  commission, or the department may also petition the committing

12  court to continue the defendant's placement in a secure

13  facility or program pursuant to this section. Any defendant

14  involuntarily admitted pursuant to this paragraph shall have

15  his or her status reviewed by the court at least annually at a

16  hearing. The annual review and hearing shall be held for the

17  court to determine whether the defendant continues to meet the

18  criteria for involuntary residential services and, if so,

19  whether the defendant still requires placement in a secure

20  facility or program because the court finds that the defendant

21  is likely to physically injure others as specified in s.

22  393.11 and whether the defendant is receiving adequate care,

23  treatment, habilitation, and rehabilitation, including

24  psychotropic medication and behavioral programming.  Notice of

25  the annual review and review hearing shall be given to the

26  state attorney, to the defendant's attorney, and to the

27  defendant's legal guardian.  In no instance may a defendant's

28  placement in a secure facility or program exceed in length the

29  maximum sentence for the crime for which the defendant was

30  charged.

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  1         Section 28.  Section 916.304, Florida Statutes, is

  2  created to read:

  3         916.304  Conditional release.--

  4         (1)  The committing court may order a conditional

  5  release of any defendant who has been found to be incompetent

  6  to proceed, based on an approved plan for providing continuing

  7  community-based training. The committing court may order a

  8  conditional release of any defendant in lieu of an involuntary

  9  commitment to a forensic facility pursuant to s. 916.302. Upon

10  a recommendation that community-based training for the

11  defendant is appropriate, a written plan for community-based

12  training, including recommendations from qualified

13  professionals, may be filed with the court, with copies to all

14  parties.  Such a plan may also be submitted by the defendant

15  and filed with the court, with copies to all parties. The plan

16  shall include:

17         (a)  Special provisions for residential care and

18  adequate supervision of the defendant, including recommended

19  location of placement.

20         (b)  Recommendations for auxiliary services such as

21  vocational training, psychological training, educational

22  services, leisure services, and special medical care.

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24  In its order of conditional release, the court shall specify

25  the conditions of release based upon the release plan and

26  shall direct the appropriate agencies or persons to submit

27  periodic reports to the courts regarding the defendant's

28  compliance with the conditions of the release and progress in

29  training, with copies to all parties.

30         (2)  Upon the filing of an affidavit or statement under

31  oath by any person that the defendant has failed to comply

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  1  with the conditions of release, that the defendant's condition

  2  has deteriorated, or that the release conditions should be

  3  modified, the court shall hold a hearing within 7 days after

  4  receipt of the affidavit or statement under oath. After the

  5  hearing, the court may modify the release conditions. The

  6  court may also order that the defendant be placed into more

  7  appropriate programs for further training or may order the

  8  defendant to be returned to involuntary residential services

  9  of the department if it is found, after the appointment and

10  report of experts, that the defendant meets the criteria for

11  involuntary residential services.

12         (3)  If at any time it is determined after a hearing

13  that the defendant no longer requires court-supervised

14  followup care, the court shall terminate its jurisdiction in

15  the cause and discharge the defendant.

16         Section 29.  This act shall take effect October 1 of

17  the year in which enacted.

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