Senate Bill 0678
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Florida Senate - 2000 SB 678
By Senator Forman
32-320-00
1 A bill to be entitled
2 An act relating to human rights; amending s.
3 402.165, F.S.; redesignating the Statewide
4 Human Rights Advocacy Committee as the
5 Statewide Human Rights Advocacy Council;
6 revising membership of the statewide council;
7 increasing the term of appointment to the
8 statewide council; eliminating a process of
9 appeal to the Legislature; amending s. 402.166,
10 F.S.; redesignating the district human rights
11 advocacy committees as the local human rights
12 advocacy councils; providing for additional
13 local councils to be established; increasing
14 the term of appointment to a local council;
15 providing for appointing a vice chairperson to
16 each local council; providing for local
17 councils to monitor the activities of, and
18 investigate complaints against, the Department
19 of Children and Family Services; amending s.
20 402.167, F.S.; revising provisions to reflect
21 the redesignation of the human rights advocacy
22 committees as human rights advocacy councils;
23 amending ss. 39.001, 39.202, 39.302, 393.13,
24 394.459, 394.4595, 394.4597, 394.4598,
25 394.4599, 394.4615, 400.0067, 400.0089,
26 400.419, 400.428, 415.1034, 415.104, 415.1055,
27 415.106, 415.107, F.S.; conforming terminology
28 to changes made by the act; providing an
29 effective date.
30
31 Be It Enacted by the Legislature of the State of Florida:
1
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1 Section 1. Section 402.165, Florida Statutes, is
2 amended to read:
3 402.165 Statewide Human Rights Advocacy Committee;
4 confidential records and meetings.--
5 (1) There is created within the Department of Children
6 and Family Services a Statewide Human Rights Advocacy Council
7 Committee. Members of the council shall represent the
8 interests of clients who are served by the department. The
9 Department of Children and Family Services shall provide
10 administrative support and service to the statewide council
11 committee to the extent requested by the executive director
12 within available resources. The statewide council is Human
13 Rights Advocacy Committee shall not be subject to control,
14 supervision, or direction by the Department of Children and
15 Family Services in the performance of its duties. The council
16 committee shall consist of 15 citizens, one from each service
17 district of the Department of Children and Family Services,
18 who broadly represent the interests of the public and the
19 clients of that department. The members shall be
20 representative of four five groups of citizens as follows:
21 one provider elected public official; two providers who
22 delivers deliver services or programs to clients of the
23 Department of Children and Family Services; two four
24 nonsalaried representatives of nonprofit agencies or civic
25 groups; four representatives of health and rehabilitative
26 services consumer groups who are currently receiving, or have
27 received, services from the Department of Children and Family
28 Services within the past 4 years, at least one of whom must be
29 a consumer; and two four residents of the state who do not
30 represent any of the foregoing groups, one two of whom
31 represents represent health-related professions and one two of
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1 whom represents represent the legal profession. In appointing
2 the representative representatives of the health-related
3 professions, the appointing authority shall give priority of
4 consideration to a physician licensed under chapter 458 or
5 chapter 459; and, in appointing the representative
6 representatives of the legal profession, the appointing
7 authority shall give priority of consideration to a member in
8 good standing of The Florida Bar. Of the remaining members,
9 no more than one shall be an elected official; no more than
10 one shall be a health professional; no more than one shall be
11 a legal professional; no more than one shall be a provider; no
12 more than two shall be nonsalaried representatives of
13 nonprofit agencies or civic groups; and no more than one shall
14 be an individual whose primary area of interest, experience,
15 or expertise is a major client group of the Department of
16 Children and Family Services which is not represented on the
17 council at the time of appointment. Except for the member who
18 is an elected public official, each member of the statewide
19 council Human Rights Advocacy Committee must have served as a
20 member of a local district human rights advocacy council, with
21 priority consideration given to an applicant who has served a
22 full term on a local council committee. Persons related to
23 each other by consanguinity or affinity within the third
24 degree may not serve on the statewide council Human Rights
25 Advocacy Committee at the same time.
26 (2) Members of the statewide council Human Rights
27 Advocacy Committee shall be appointed to serve terms of 4 3
28 years, retroactive to the members in office on July 1, 2000.
29 A member may not serve more than two full consecutive terms.
30 The limitation on the number of terms a member may serve
31
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1 applies without regard to whether a term was served before or
2 after October 1, 1989.
3 (3) If a member of the statewide council Human Rights
4 Advocacy Committee fails to attend two-thirds of the regular
5 council committee meetings during the course of a year, the
6 position held by the such member may be declared deemed vacant
7 by the committee. The Governor shall fill the vacancy
8 pursuant to subsection (4). If a member of the statewide
9 council violates Human Rights Advocacy Committee is in
10 violation of the provisions of this section or procedures
11 adopted under this section thereto, the committee may
12 recommend to the Governor that the such member be removed.
13 (4) The Governor shall fill each vacancy on the
14 statewide council Human Rights Advocacy Committee from a list
15 of nominees submitted by the statewide committee. A list of
16 candidates shall be submitted to the statewide council
17 committee by the local council district human rights advocacy
18 committee in the district from which the vacancy occurs.
19 Priority of consideration shall be given to the appointment of
20 an individual whose primary interest, experience, or expertise
21 lies with a major client group of the Department of Children
22 and Family Services which is not represented on the council
23 committee at the time of the appointment. If an appointment
24 is not made within 60 days after a vacancy occurs on the
25 council committee, the vacancy shall be filled by a majority
26 vote of the statewide council committee without further action
27 by the Governor. A No person who is employed by the Department
28 of Children and Family Services may not be appointed to the
29 council committee.
30 (5)(a) Members of the statewide council Human Rights
31 Advocacy Committee shall receive no compensation, but are
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1 shall be entitled to be reimbursed for per diem and travel
2 expenses in accordance with s. 112.061.
3 (b) The council committee shall select an executive
4 director who shall serve at the pleasure of the council
5 committee and shall perform the duties delegated to him or her
6 by the council committee. The compensation of the executive
7 director shall be established in accordance with the rules of
8 the Selected Exempt Service.
9 (c) The council committee may apply for, receive, and
10 accept grants, gifts, donations, bequests, and other payments
11 including money or property, real or personal, tangible or
12 intangible, and service from any governmental or other public
13 or private entity or person and make arrangements as to the
14 use of same.
15 (d) The statewide council Human Rights Advocacy
16 Committee shall annually prepare a budget request that is
17 shall not be subject to change by department staff after it is
18 approved by the council committee, but the budget request
19 shall be submitted to the Governor by the department for
20 transmittal to the Legislature. The budget must shall include
21 a request for funds to carry out the activities of the
22 statewide council Human Rights Advocacy Committee and the
23 local councils district human rights advocacy committees.
24 (6) The members of the statewide council Human Rights
25 Advocacy Committee shall elect a chairperson and a vice
26 chairperson to terms a term of 1 year. A person may not serve
27 as chairperson or vice chairperson for more than two full
28 consecutive terms.
29 (7) The responsibilities of the council committee
30 include, but are not limited to:
31
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1 (a) Serving as an independent third-party mechanism
2 for protecting the constitutional and human rights of any
3 client within a program or facility operated, funded,
4 licensed, or regulated by the Department of Children and
5 Family Services.
6 (b) Monitoring by site visit and inspection of
7 records, the delivery and use of services, programs, or
8 facilities operated, funded, regulated, or licensed by the
9 Department of Children and Family Services for the purpose of
10 preventing abuse or deprivation of the constitutional and
11 human rights of clients. The statewide council Human Rights
12 Advocacy Committee may conduct an unannounced site visit or
13 monitoring visit that involves the inspection of records if
14 such visit is conditioned upon a complaint. A complaint may
15 be generated by the council committee itself if information
16 from the Department of Children and Family Services or other
17 sources indicates a situation at the program or facility which
18 that indicates possible abuse or neglect of clients. The
19 statewide council Human Rights Advocacy Committee shall
20 establish and follow uniform criteria for the review of
21 information and generation of complaints. Routine program
22 monitoring and reviews that do not require an examination of
23 records may be made unannounced.
24 (c) Receiving, investigating, and resolving reports of
25 abuse or deprivation of constitutional and human rights
26 referred to the statewide council Human Rights Advocacy
27 Committee by a local council district human rights advocacy
28 committee. If a matter constitutes a threat to the life,
29 safety, or health of clients or is multidistrict in scope, the
30 statewide council Human Rights Advocacy Committee may exercise
31
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1 such powers without the necessity of a referral from a local
2 council district committee.
3 (d) Reviewing existing programs or services and new or
4 revised programs of the Department of Children and Family
5 Services and making recommendations as to how the rights of
6 clients are affected.
7 (e) Submitting an annual report to the Legislature, no
8 later than December 30 of each calendar year, concerning
9 activities, recommendations, and complaints reviewed or
10 developed by the council committee during the year.
11 (f) Conducting meetings at least six times a year at
12 the call of the chairperson and at other times at the call of
13 the Governor or by written request of six members of the
14 council committee.
15 (g) Developing and adopting uniform procedures to be
16 used to carry out the purpose and responsibilities of the
17 statewide council and the local councils human rights advocacy
18 committees, which procedures must shall include, but need not
19 be limited to, the following:
20 1. The responsibilities of the statewide council and
21 the local councils committee;
22 2. The organization and operation of the statewide
23 council committee and the local councils district committees,
24 including procedures for replacing a member, formats for
25 maintaining records of council committee activities, and
26 criteria for determining what constitutes a conflict of
27 interest for purposes of assigning and conducting
28 investigations and monitoring;
29 3. Uniform procedures by which for the statewide
30 council committee and the local councils shall district
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1 committees to receive and investigate reports of abuse of
2 constitutional or human rights;
3 4. The responsibilities and relationship of the local
4 councils district human rights advocacy committees to the
5 statewide council committee;
6 5. The relationship of the statewide council committee
7 to the Department of Children and Family Services, including
8 the way in which reports of findings and recommendations
9 related to reported abuse are given to the Department of
10 Children and Family Services;
11 6. Provision for cooperation with the State Long-Term
12 Care Ombudsman Council;
13 7. Procedures for appeal. An appeal to the statewide
14 council state committee is made by a local council district
15 human rights advocacy committee when a valid complaint is not
16 resolved at the local district level. The statewide council
17 committee may appeal an unresolved complaint to the secretary
18 of the Department of Children and Family Services. If, after
19 exhausting all remedies, the statewide council committee is
20 not satisfied that the complaint can be resolved within the
21 Department of Children and Family Services, the appeal may be
22 referred to the Governor or the Legislature;
23 8. Uniform procedures for gaining access to and
24 maintaining confidential information; and
25 9. Definitions of misfeasance and malfeasance for
26 members of the statewide council committee and local councils
27 district committees.
28 (h) Monitoring the performance and activities of all
29 local councils district committees and providing technical
30 assistance to members and staff of local councils district
31 committees.
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1 (i) Providing for the development and presentation of
2 a standardized training program for members of local councils
3 district committees.
4 (8)(a) In the performance of its duties, the statewide
5 council Human Rights Advocacy Committee shall have:
6 1. Authority to receive, investigate, seek to
7 conciliate, hold hearings on, and act on complaints that which
8 allege any abuse or deprivation of constitutional or human
9 rights of clients.
10 2. Access to all client records, files, and reports
11 from any program, service, or facility that is operated,
12 funded, licensed, or regulated by the Department of Children
13 and Family Services and any records that which are material to
14 its investigation and that which are in the custody of any
15 other agency or department of government. The council's
16 committee's investigation or monitoring may shall not impede
17 or obstruct matters under investigation by law enforcement
18 agencies or judicial authorities. Access may shall not be
19 granted if a specific procedure or prohibition for reviewing
20 records is required by federal law and regulation that which
21 supersedes state law. Access may shall not be granted to the
22 records of a private licensed practitioner who is providing
23 services outside state agencies and facilities and whose
24 client is competent and refuses disclosure.
25 3. Standing to petition the circuit court for access
26 to client records that which are confidential as specified by
27 law. The petition must shall state the specific reasons for
28 which the council committee is seeking access and the intended
29 use of such information. The court may authorize committee
30 access to such records upon a finding that such access is
31 directly related to an investigation regarding the possible
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1 deprivation of constitutional or human rights or the abuse of
2 a client. Original client files, records, and reports shall
3 not be removed from the Department of Children and Family
4 Services or agency facilities. The statewide council may not
5 Under no circumstance shall the committee have access to
6 confidential adoption records in accordance with the
7 provisions of ss. 39.0132, 63.022, and 63.162. Upon
8 completion of a general investigation of practices and
9 procedures of the Department of Children and Family Services,
10 the statewide council committee shall report its findings to
11 that department.
12 (b) All information obtained or produced by the
13 statewide council committee which is made confidential by law,
14 which relates to the identity of any client or group of
15 clients subject to the protections of this section, or which
16 relates to the identity of an individual who provides
17 information to the council committee about abuse or alleged
18 violations of constitutional or human rights, is confidential
19 and exempt from the provisions of s. 119.07(1) and s. 24(a),
20 Art. I of the State Constitution.
21 (c) Portions of meetings of the statewide council
22 Human Rights Advocacy Committee which relate to the identity
23 of any client or group of clients subject to the protections
24 of this section, which relate to the identity of an individual
25 who provides information to the council committee about abuse
26 or alleged violations of constitutional or human rights, or
27 wherein testimony is provided relating to records otherwise
28 made confidential by law, are exempt from the provisions of s.
29 286.011 and s. 24(b), Art. I of the State Constitution.
30 (d) All records prepared by members of the statewide
31 council committee which reflect a mental impression,
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1 investigative strategy, or theory are exempt from the
2 provisions of s. 119.07(1) and s. 24(a), Art. I of the State
3 Constitution until the investigation is completed or until the
4 investigation ceases to be active. For purposes of this
5 section, an investigation is considered "active" while such
6 investigation is being conducted by the statewide council
7 committee with a reasonable, good-faith good faith belief that
8 it may lead to a finding of abuse or of a violation of human
9 rights. An investigation does not cease to be active so long
10 as the statewide council committee is proceeding with
11 reasonable dispatch and there is a good-faith good faith
12 belief that action may be initiated by the council committee
13 or other administrative or law enforcement agency.
14 (e) Any person who knowingly and willfully discloses
15 any such confidential information is guilty of a misdemeanor
16 of the second degree, punishable as provided in s. 775.082 or
17 s. 775.083.
18 Section 2. Section 402.166, Florida Statutes, is
19 amended to read:
20 402.166 Local District human rights advocacy councils
21 committees; confidential records and meetings.--
22 (1) At least one local district human rights advocacy
23 council committee is created in each service district of the
24 Department of Children and Family Services. The local
25 district human rights advocacy councils committees shall be
26 subject to direction from and the supervision of the Statewide
27 Human Rights Advocacy Council Committee. The district
28 administrator shall assign staff to provide administrative
29 support to the local councils committees, and staff assigned
30 to these positions shall perform the functions required by the
31 local councils committee without interference from the
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1 department. The local councils district committees shall
2 direct the activities of staff assigned to them to the extent
3 necessary for the councils committees to carry out their
4 duties. The number and areas of responsibility of the local
5 councils district human rights advocacy committees, not to
6 exceed three in any district, shall be determined by the
7 majority vote of local council district committee members.
8 However, district II may have four councils, and any district
9 that has a developmental services institution as defined in s.
10 393.063 or a state mental health hospital may, by a majority
11 vote of the local council members, petition the statewide
12 council to establish a separate council to serve this
13 population committees. Local councils District Committees
14 shall meet at facilities under their jurisdiction whenever
15 possible.
16 (2) Each local council district human rights advocacy
17 committee shall have no fewer than 7 members and no more than
18 15 members, 25 percent of whom are or have been clients of the
19 Department of Children and Family Services within the last 4
20 years, except that one member of this group may be an
21 immediate relative or legal representative of a current or
22 former client; two providers, who deliver services or programs
23 to clients of the Department of Children and Family Services;
24 and two representatives of professional organizations, one of
25 whom represents health-related professions and one of whom
26 represents the legal profession. Priority of consideration
27 shall be given to the appointment of at least one medical or
28 osteopathic physician, as defined in chapters 458 and 459, and
29 one member in good standing of The Florida Bar. Priority of
30 consideration shall also be given to the appointment of an
31 individual whose primary interest, experience, or expertise
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1 lies with a major client group of the Department of Children
2 and Family Services not represented on the council committee
3 at the time of the appointment. In no case shall A person who
4 is employed by the Department of Children and Family Services
5 may not be selected as a member of a council committee. At no
6 time shall Individuals who are providing contracted services
7 to the Department of Children and Family Services may not
8 constitute more than 25 percent of the membership of a local
9 council district committee. Persons related to each other by
10 consanguinity or affinity within the third degree may shall
11 not serve on the same local council district human rights
12 advocacy committee at the same time. All members of local
13 councils district human rights advocacy committees must
14 successfully complete a standardized training course for
15 council committee members within 3 months after their
16 appointment to a council committee. A member may not be
17 assigned an investigation that which requires access to
18 confidential information prior to the completion of the
19 training course. After he or she completes the required
20 training course, a member of a council may committee shall not
21 be prevented from participating in any activity of that
22 council committee, including investigations and monitoring,
23 except due to a conflict of interest as described in the
24 procedures established by the Statewide Human Rights Advocacy
25 Council Committee pursuant to subsection (7).
26 (3)(a) With respect to existing councils committees,
27 each member shall serve a term of 4 years. Upon expiration of
28 a term and in the case of any other vacancy, the local council
29 district committee shall appoint a replacement by majority
30 vote of the council committee, subject to the approval of the
31
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1 Governor. A member may serve no more than two full
2 consecutive terms.
3 (b)1. The Governor shall appoint the first 4 members
4 of any newly created council, committee; and those 4 members
5 shall select the remaining 11 members, subject to approval of
6 the Governor. If any of the first four members are not
7 appointed within 60 days after of a request is being submitted
8 to the Governor, those members shall be appointed by a
9 majority vote of the local council district committee without
10 further action by the Governor.
11 2. Members shall serve for no more than two full
12 consecutive terms of 4 3 years, except that at the time of
13 initial appointment, terms shall be staggered so that the
14 first six members appointed serve for terms of 2 years and the
15 remaining five members serve for terms of 3 years. Vacancies
16 shall be filled as provided in subparagraph 1.
17 (c) If no action is taken by the Governor to approve
18 or disapprove a replacement of a member pursuant to this
19 paragraph within 30 days after the local council district
20 committee has notified the Governor of the appointment, then
21 the appointment of the replacement shall be considered
22 approved.
23 (d) The limitation on the number of terms a member may
24 serve applies without regard to whether a term was served
25 before or after October 1, 1989.
26 (4) Each council committee shall elect a chairperson
27 and a vice chairperson for a term of 1 year. A person may not
28 serve as chairperson or vice chairperson for more than two
29 consecutive terms. The chairperson's and vice chairperson's
30 terms expire term expires on the anniversary of their the
31 chairperson's election.
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1 (5) If In the event that a council committee member
2 fails to attend two-thirds of the regular council committee
3 meetings during the course of a year, the council it shall be
4 the responsibility of the committee to replace such member.
5 If a local council district committee member violates is in
6 violation of the provisions of this section subsection or
7 procedures adopted under this section thereto, a local council
8 district committee may recommend to the Governor that such
9 member be removed.
10 (6) A member of a local council district committee
11 shall receive no compensation but is shall receive per diem
12 and shall be entitled to be reimbursed for per diem and travel
13 expenses as provided in s. 112.061. Members may be provided
14 reimbursement for long-distance telephone calls if such calls
15 were necessary to an investigation of an abuse or deprivation
16 of human rights.
17 (7) A local council district human rights advocacy
18 committee shall first seek to resolve a complaint with the
19 appropriate local administration, agency, or program.; Any
20 matter not resolved by the local council district committee
21 shall be referred to the statewide council Human Rights
22 Advocacy Committee. A local council district human rights
23 advocacy committee shall comply with appeal procedures
24 established by the statewide council Human Rights Advocacy
25 Committee. The duties, actions, and procedures of both new
26 and existing local councils district human rights advocacy
27 committees shall conform to ss. 402.164-402.167 the provisions
28 of this act. The duties of each local council district human
29 rights advocacy committee shall include, but are not limited
30 to:
31
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1 (a) Serving as an independent third-party mechanism
2 for protecting the constitutional and human rights of any
3 client within a program or facility operated, funded,
4 licensed, or regulated by the Department of Children and
5 Family Services.
6 (b) Monitoring by site visit and inspection of
7 records, the delivery and use of services, programs or
8 facilities operated, funded, regulated or licensed by the
9 Department of Children and Family Services for the purpose of
10 preventing abuse or deprivation of the constitutional and
11 human rights of clients. A local council district human
12 rights advocacy committee may conduct an unannounced site
13 visit or monitoring visit that involves the inspection of
14 records if such visit is conditioned upon a complaint. A
15 complaint may be generated by the council committee itself if
16 information from the Department of Children and Family
17 Services or other sources indicates a situation at the program
18 or facility that indicates possible abuse or neglect of
19 clients. The local council district human rights advocacy
20 committees shall follow uniform criteria established by the
21 statewide council Human Rights Advocacy Committee for the
22 review of information and generation of complaints. Routine
23 program monitoring and reviews that do not require an
24 examination of records may be made unannounced.
25 (c) Receiving, investigating, and resolving reports of
26 abuse or deprivation of constitutional and human rights.
27 (d) Reviewing and making recommendations
28 recommendation with respect to the involvement by clients of
29 the Department of Children and Family Services as subjects for
30 research projects, prior to implementation, insofar as their
31 human rights are affected.
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1 (e) Reviewing existing programs or services and new or
2 revised programs of the Department of Children and Family
3 Services and making recommendations as to how the rights of
4 clients are affected.
5 (f) Appealing to the statewide council state committee
6 any complaint unresolved at the local district level. Any
7 matter that constitutes a threat to the life, safety, or
8 health of a client or is multidistrict in scope shall
9 automatically be referred to the statewide council Human
10 Rights Advocacy Committee.
11 (g) Submitting an annual report by September 30 to the
12 statewide council Human Rights Advocacy Committee concerning
13 activities, recommendations, and complaints reviewed or
14 developed by the council committee during the year.
15 (h) Conducting meetings at least six times a year at
16 the call of the chairperson and at other times at the call of
17 the Governor, at the call of the statewide council Human
18 Rights Advocacy Committee, or by written request of a majority
19 of the members of the council committee.
20 (8)(a) In the performance of its duties, a local
21 council district human rights advocacy committee shall have:
22 1. Access to all client records, files, and reports
23 from any program, service, or facility that is operated,
24 funded, licensed, or regulated by the Department of Children
25 and Family Services and any records that which are material to
26 its investigation and which are in the custody of any other
27 agency or department of government. The council's committee's
28 investigation or monitoring may shall not impede or obstruct
29 matters under investigation by law enforcement agencies or
30 judicial authorities. Access may shall not be granted if a
31 specific procedure or prohibition for reviewing records is
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1 required by federal law and regulation that which supersedes
2 state law. Access may shall not be granted to the records of
3 a private licensed practitioner who is providing services
4 outside state agencies and facilities and whose client is
5 competent and refuses disclosure.
6 2. Standing to petition the circuit court for access
7 to client records that which are confidential as specified by
8 law. The petition must shall state the specific reasons for
9 which the council committee is seeking access and the intended
10 use of such information. The court may authorize committee
11 access to such records upon a finding that such access is
12 directly related to an investigation regarding the possible
13 deprivation of constitutional or human rights or the abuse of
14 a client. Original client files, records, and reports shall
15 not be removed from Department of Children and Family Services
16 or agency facilities. The local council may not Upon no
17 circumstances shall the committee have access to confidential
18 adoption records in accordance with the provisions of ss.
19 39.0132, 63.022, and 63.162. Upon completion of a general
20 investigation of practices and procedures of the Department of
21 Children and Family Services, the council committee shall
22 report its findings to that department.
23 (b) All information obtained or produced by a local
24 council the committee which is made confidential by law, which
25 relates to the identity of any client or group of clients
26 subject to the protection of this section, or which relates to
27 the identity of an individual who provides information to the
28 council committee about abuse or alleged violations of
29 constitutional or human rights, is confidential and exempt
30 from the provisions of s. 119.07(1) and s. 24(a), Art. I of
31 the State Constitution.
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1 (c) Portions of meetings of a local council district
2 human rights advocacy committee which relate to the identity
3 of any client or group of clients subject to the protections
4 of this section, which relate to the identity of an individual
5 who provides information to the council committee about abuse
6 or alleged violations of constitutional or human rights, or
7 wherein testimony is provided relating to records otherwise
8 made confidential by law, are exempt from the provisions of s.
9 286.011 and s. 24(b), Art. I of the State Constitution.
10 (d) All records prepared by members of a local council
11 the committee which reflect a mental impression, investigative
12 strategy, or theory are exempt from the provisions of s.
13 119.07(1) and s. 24(a), Art. I of the State Constitution until
14 the investigation is completed or until the investigation
15 ceases to be active. For purposes of this section, an
16 investigation is considered "active" while such investigation
17 is being conducted by a local council the committee with a
18 reasonable, good-faith good faith belief that it may lead to a
19 finding of abuse or of a violation of human rights. An
20 investigation does not cease to be active so long as the
21 council committee is proceeding with reasonable dispatch and
22 there is a good-faith good faith belief that action may be
23 initiated by the council committee or other administrative or
24 law enforcement agency.
25 (e) Any person who knowingly and willfully discloses
26 any such confidential information is guilty of a misdemeanor
27 of the second degree, punishable as provided in s. 775.082 or
28 s. 775.083.
29 Section 3. Section 402.167, Florida Statutes, is
30 amended to read:
31
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1 402.167 Department duties relating to the Statewide
2 Human Rights Advocacy Council Committee and the local District
3 human rights advocacy councils Committees.--
4 (1) The Department of Children and Family Services
5 shall adopt rules that which are consistent with law, amended
6 to reflect any statutory changes, and that which rules address
7 at least the following:
8 (a) Procedures by which Department of Children and
9 Family Services district staff refer reports of abuse to local
10 councils district human rights advocacy committees.
11 (b) Procedures by which client information is made
12 available to members of the statewide council Human Rights
13 Advocacy Committee and the local councils district human
14 rights advocacy committees.
15 (c) Procedures by which recommendations made by the
16 councils human rights advocacy committees will be incorporated
17 into Department of Children and Family Services policies and
18 procedures.
19 (d) Procedures by which council committee members are
20 reimbursed for authorized expenditures.
21 (2) The Department of Children and Family Services
22 shall provide for the location of local councils district
23 human rights advocacy committees in district headquarters
24 offices and shall provide necessary equipment and office
25 supplies, including, but not limited to, clerical and word
26 processing services, photocopiers, telephone services, and
27 stationery and other necessary supplies.
28 (3) The secretary shall ensure the full cooperation
29 and assistance of employees of the Department of Children and
30 Family Services with members and staff of the human rights
31 advocacy councils committees. Further, the secretary shall
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1 ensure that to the extent possible, staff assigned to the
2 Statewide Human Rights Advocacy Council Committees and local
3 District human rights advocacy councils Committees are free of
4 interference from or control by the department in performing
5 their duties relative to those councils committees.
6 Section 4. Paragraph (k) of subsection (2) of section
7 39.202, Florida Statutes, is amended to read:
8 39.202 Confidentiality of reports and records in cases
9 of child abuse or neglect.--
10 (2) Access to such records, excluding the name of the
11 reporter which shall be released only as provided in
12 subsection (4), shall be granted only to the following
13 persons, officials, and agencies:
14 (k) Any appropriate official of the human rights
15 advocacy council committee investigating a report of known or
16 suspected child abuse, abandonment, or neglect, the Auditor
17 General for the purpose of conducting preliminary or
18 compliance reviews pursuant to s. 11.45, or the guardian ad
19 litem for the child.
20 Section 5. Paragraph (a) of subsection (7) of section
21 39.001, Florida Statutes, is amended to read:
22 39.001 Purposes and intent; personnel standards and
23 screening.--
24 (7) PLAN FOR COMPREHENSIVE APPROACH.--
25 (a) The department shall develop a state plan for the
26 prevention of abuse, abandonment, and neglect of children and
27 shall submit the plan to the Speaker of the House of
28 Representatives, the President of the Senate, and the Governor
29 no later than January 1, 1983. The Department of Education and
30 the Division of Children's Medical Services of the Department
31 of Health shall participate and fully cooperate in the
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1 development of the state plan at both the state and local
2 levels. Furthermore, appropriate local agencies and
3 organizations shall be provided an opportunity to participate
4 in the development of the state plan at the local level.
5 Appropriate local groups and organizations shall include, but
6 not be limited to, community mental health centers; guardian
7 ad litem programs for children under the circuit court; the
8 school boards of the local school districts; the local
9 district human rights advocacy councils committees; private or
10 public organizations or programs with recognized expertise in
11 working with children who are sexually abused, physically
12 abused, emotionally abused, abandoned, or neglected and with
13 expertise in working with the families of such children;
14 private or public programs or organizations with expertise in
15 maternal and infant health care; multidisciplinary child
16 protection teams; child day care centers; law enforcement
17 agencies, and the circuit courts, when guardian ad litem
18 programs are not available in the local area. The state plan
19 to be provided to the Legislature and the Governor shall
20 include, as a minimum, the information required of the various
21 groups in paragraph (b).
22 Section 6. Subsection (4) of section 39.302, Florida
23 Statutes, is amended to read:
24 39.302 Protective investigations of institutional
25 child abuse, abandonment, or neglect.--
26 (4) The department shall notify the human rights
27 advocacy council committee in the appropriate district of the
28 department as to every report of institutional child abuse,
29 abandonment, or neglect in the district in which a client of
30 the department is alleged or shown to have been abused,
31 abandoned, or neglected, which notification shall be made
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1 within 48 hours after the department commences its
2 investigation.
3 Section 7. Paragraphs (g) and (i) of subsection (4)
4 and subsection (7) of section 393.13, Florida Statutes, are
5 amended to read:
6 393.13 Personal treatment of persons who are
7 developmentally disabled.--
8 (4) CLIENT RIGHTS.--For purposes of this subsection,
9 the term "client," as defined in s. 393.063, shall also
10 include any person served in a facility licensed pursuant to
11 s. 393.067.
12 (g) No client shall be subjected to a treatment
13 program to eliminate bizarre or unusual behaviors without
14 first being examined by a physician who in his or her best
15 judgment determines that such behaviors are not organically
16 caused.
17 1. Treatment programs involving the use of noxious or
18 painful stimuli shall be prohibited.
19 2. All alleged violations of this paragraph shall be
20 reported immediately to the chief administrative officer of
21 the facility or the district administrator, the department
22 head, and the local district human rights advocacy council
23 committee. A thorough investigation of each incident shall be
24 conducted and a written report of the finding and results of
25 such investigation shall be submitted to the chief
26 administrative officer of the facility or the district
27 administrator and to the department head within 24 hours of
28 the occurrence or discovery of the incident.
29 3. The department shall promulgate by rule a system
30 for the oversight of behavioral programs. Such system shall
31 establish guidelines and procedures governing the design,
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1 approval, implementation, and monitoring of all behavioral
2 programs involving clients. The system shall ensure statewide
3 and local review by committees of professionals certified as
4 behavior analysts pursuant to s. 393.17. No behavioral
5 program shall be implemented unless reviewed according to the
6 rules established by the department under this section.
7 Nothing stated in this section shall prohibit the review of
8 programs by the local district human rights advocacy council
9 committee.
10 (i) Clients shall have the right to be free from
11 unnecessary physical, chemical, or mechanical restraint.
12 Restraints shall be employed only in emergencies or to protect
13 the client from imminent injury to himself or herself or
14 others. Restraints shall not be employed as punishment, for
15 the convenience of staff, or as a substitute for a
16 habilitative plan. Restraints shall impose the least possible
17 restrictions consistent with their purpose and shall be
18 removed when the emergency ends. Restraints shall not cause
19 physical injury to the client and shall be designed to allow
20 the greatest possible comfort.
21 1. Mechanical supports used in normative situations to
22 achieve proper body position and balance shall not be
23 considered restraints, but shall be prescriptively designed
24 and applied under the supervision of a qualified professional
25 with concern for principles of good body alignment,
26 circulation, and allowance for change of position.
27 2. Totally enclosed cribs and barred enclosures shall
28 be considered restraints.
29 3. Daily reports on the employment of physical,
30 chemical, or mechanical restraints by those specialists
31 authorized in the use of such restraints shall be made to the
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1 appropriate chief administrator of the facility, and a monthly
2 summary of such reports shall be relayed to the district
3 administrator and the local district human rights advocacy
4 council committee. The reports shall summarize all such cases
5 of restraints, the type used, the duration of usage, and the
6 reasons therefor. Districts shall submit districtwide
7 quarterly reports of these summaries to the state
8 Developmental Services Program Office.
9 4. The department shall post a copy of the rules
10 promulgated under this section in each living unit of
11 residential facilities. A copy of the rules promulgated under
12 this section shall be given to all staff members of licensed
13 facilities and made a part of all preservice and inservice
14 training programs.
15 (7) RESIDENT GOVERNMENT.--Each residential facility
16 providing services to clients who are desirous and capable of
17 participating shall initiate and develop a program of resident
18 government to hear the views and represent the interests of
19 all clients served by the facility. The resident government
20 shall be composed of residents elected by other residents,
21 staff advisers skilled in the administration of community
22 organizations, and a representative of the local district
23 human rights advocacy council committee. The resident
24 government shall work closely with the local district human
25 rights advocacy council committee and the district
26 administrator to promote the interests and welfare of all
27 residents in the facility.
28 Section 8. Paragraph (c) of subsection (5) and
29 subsection (12) of section 394.459, Florida Statutes, are
30 amended to read:
31 394.459 Rights of patients.--
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1 (5) COMMUNICATION, ABUSE REPORTING, AND VISITS.--
2 (c) Each facility must permit immediate access to any
3 patient, subject to the patient's right to deny or withdraw
4 consent at any time, by the patient's family members,
5 guardian, guardian advocate, representative, human rights
6 advocacy council committee, or attorney, unless such access
7 would be detrimental to the patient. If a patient's right to
8 communicate or to receive visitors is restricted by the
9 facility, written notice of such restriction and the reasons
10 for the restriction shall be served on the patient, the
11 patient's attorney, and the patient's guardian, guardian
12 advocate, or representative; and such restriction shall be
13 recorded on the patient's clinical record with the reasons
14 therefor. The restriction of a patient's right to communicate
15 or to receive visitors shall be reviewed at least every 7
16 days. The right to communicate or receive visitors shall not
17 be restricted as a means of punishment. Nothing in this
18 paragraph shall be construed to limit the provisions of
19 paragraph (d).
20 (12) POSTING OF NOTICE OF RIGHTS OF PATIENTS.--Each
21 facility shall post a notice listing and describing, in the
22 language and terminology that the persons to whom the notice
23 is addressed can understand, the rights provided in this
24 section. This notice shall include a statement that
25 provisions of the federal Americans with Disabilities Act
26 apply and the name and telephone number of a person to contact
27 for further information. This notice shall be posted in a
28 place readily accessible to patients and in a format easily
29 seen by patients. This notice shall include the telephone
30 numbers of the local human rights advocacy council committee
31 and Advocacy Center for Persons with Disabilities, Inc.
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1 Section 9. Section 394.4595, Florida Statutes, is
2 amended to read:
3 394.4595 Human Rights Advocacy Council Committee
4 access to patients and records.--Any facility designated by
5 the department as a receiving or treatment facility must allow
6 access to any patient and the clinical and legal records of
7 any patient admitted pursuant to the provisions of this act by
8 members of the Human Rights Advocacy Council Committee.
9 Section 10. Paragraph (d) of subsection (2) of section
10 394.4597, Florida Statutes, is amended to read:
11 394.4597 Persons to be notified; patient's
12 representative.--
13 (2) INVOLUNTARY PATIENTS.--
14 (d) When the receiving or treatment facility selects a
15 representative, first preference shall be given to a health
16 care surrogate, if one has been previously selected by the
17 patient. If the patient has not previously selected a health
18 care surrogate, the selection, except for good cause
19 documented in the patient's clinical record, shall be made
20 from the following list in the order of listing:
21 1. The patient's spouse.
22 2. An adult child of the patient.
23 3. A parent of the patient.
24 4. The adult next of kin of the patient.
25 5. An adult friend of the patient.
26 6. The appropriate human rights advocacy council
27 committee as provided in s. 402.166.
28 Section 11. Subsection (1) of section 394.4598,
29 Florida Statutes, is amended to read:
30 394.4598 Guardian advocate.--
31
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1 (1) The administrator may petition the court for the
2 appointment of a guardian advocate based upon the opinion of a
3 psychiatrist that the patient is incompetent to consent to
4 treatment. If the court finds that a patient is incompetent to
5 consent to treatment and has not been adjudicated
6 incapacitated and a guardian with the authority to consent to
7 mental health treatment appointed, it shall appoint a guardian
8 advocate. The patient has the right to have an attorney
9 represent him or her at the hearing. If the person is
10 indigent, the court shall appoint the office of the public
11 defender to represent him or her at the hearing. The patient
12 has the right to testify, cross-examine witnesses, and present
13 witnesses. The proceeding shall be recorded either
14 electronically or stenographically, and testimony shall be
15 provided under oath. One of the professionals authorized to
16 give an opinion in support of a petition for involuntary
17 placement, as described in s. 394.467(2), must testify. A
18 guardian advocate must meet the qualifications of a guardian
19 contained in part IV of chapter 744, except that a
20 professional referred to in this part, an employee of the
21 facility providing direct services to the patient under this
22 part, a departmental employee, a facility administrator, or
23 member of the local district human rights advocacy council may
24 committee shall not be appointed. A person who is appointed as
25 a guardian advocate must agree to the appointment.
26 Section 12. Paragraph (b) of subsection (2) of section
27 394.4599, Florida Statutes, is amended to read:
28 394.4599 Notice.--
29 (2) INVOLUNTARY PATIENTS.--
30 (b) A receiving facility shall give prompt notice of
31 the whereabouts of a patient who is being involuntarily held
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1 for examination, by telephone or in person within 24 hours
2 after the patient's arrival at the facility, unless the
3 patient requests that no notification be made. Contact
4 attempts shall be documented in the patient's clinical record
5 and shall begin as soon as reasonably possible after the
6 patient's arrival. Notice that a patient is being admitted as
7 an involuntary patient shall be given to the local human
8 rights advocacy council committee no later than the next
9 working day after the patient is admitted.
10 Section 13. Subsection (5) of section 394.4615,
11 Florida Statutes, is amended to read:
12 394.4615 Clinical records; confidentiality.--
13 (5) Information from clinical records may be used by
14 the Agency for Health Care Administration, the department, and
15 the human rights advocacy councils committees for the purpose
16 of monitoring facility activity and complaints concerning
17 facilities.
18 Section 14. Paragraph (g) of subsection (2) of section
19 400.0067, Florida Statutes, is amended to read:
20 400.0067 Establishment of State Long-Term Care
21 Ombudsman Council; duties; membership.--
22 (2) The State Long-Term Care Ombudsman Council shall:
23 (g) Enter into a cooperative agreement with the
24 statewide and local district human rights advocacy councils
25 committees for the purpose of coordinating advocacy services
26 provided to residents of long-term care facilities.
27 Section 15. Section 400.0089, Florida Statutes, is
28 amended to read:
29 400.0089 Agency reports.--The State Long-Term Care
30 Ombudsman Council, shall, in cooperation with the Department
31 of Elderly Affairs, maintain a statewide uniform reporting
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1 system to collect and analyze data relating to complaints and
2 conditions in long-term care facilities and to residents, for
3 the purpose of identifying and resolving significant problems.
4 The council shall submit such data as part of its annual
5 report required pursuant to s. 400.0067(2)(h) to the Agency
6 for Health Care Administration, the Department of Health and
7 Rehabilitative Services, the Statewide Human Rights Advocacy
8 Council Committee, the Advocacy Center for Persons with
9 Disabilities, the Commissioner for the United States
10 Administration on Aging, the National Ombudsman Resource
11 Center, and any other state or federal entities that the
12 ombudsman determines appropriate.
13 Section 16. Subsection (13) of section 400.419,
14 Florida Statutes, is amended to read:
15 400.419 Violations; administrative fines.--
16 (13) The agency shall develop and disseminate an
17 annual list of all facilities sanctioned or fined $5,000 or
18 more for violations of state standards, the number and class
19 of violations involved, the penalties imposed, and the current
20 status of cases. The list shall be disseminated, at no charge,
21 to the Department of Elderly Affairs, the Department of
22 Health, the Department of Children and Family Services, the
23 area agencies on aging, the Statewide Human Rights Advocacy
24 Council Committee, and the state and district nursing home
25 ombudsman councils. The Department of Children and Family
26 Services shall disseminate the list to service providers under
27 contract to the department who are responsible for referring
28 persons to a facility for residency. The agency may charge a
29 fee commensurate with the cost of printing and postage to
30 other interested parties requesting a copy of this list.
31
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1 Section 17. Subsection (2) of section 400.428, Florida
2 Statutes, is amended to read:
3 400.428 Resident bill of rights.--
4 (2) The administrator of a facility shall ensure that
5 a written notice of the rights, obligations, and prohibitions
6 set forth in this part is posted in a prominent place in each
7 facility and read or explained to residents who cannot read.
8 This notice shall include the name, address, and telephone
9 numbers of the district ombudsman council and adult abuse
10 registry and, when applicable, the Advocacy Center for Persons
11 with Disabilities, Inc., and the local district human rights
12 advocacy council committee, where complaints may be lodged.
13 The facility must ensure a resident's access to a telephone to
14 call the district ombudsman council, adult abuse registry,
15 Advocacy Center for Persons with Disabilities, Inc., and local
16 district human rights advocacy council committee.
17 Section 18. Paragraph (a) of subsection (1) of section
18 415.1034, Florida Statutes, is amended to read:
19 415.1034 Mandatory reporting of abuse, neglect, or
20 exploitation of disabled adults or elderly persons; mandatory
21 reports of death.--
22 (1) MANDATORY REPORTING.--
23 (a) Any person, including, but not limited to, any:
24 1. Physician, osteopathic physician, medical examiner,
25 chiropractic physician, nurse, or hospital personnel engaged
26 in the admission, examination, care, or treatment of disabled
27 adults or elderly persons;
28 2. Health professional or mental health professional
29 other than one listed in subparagraph 1.;
30 3. Practitioner who relies solely on spiritual means
31 for healing;
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1 4. Nursing home staff; assisted living facility staff;
2 adult day care center staff; adult family-care home staff;
3 social worker; or other professional adult care, residential,
4 or institutional staff;
5 5. State, county, or municipal criminal justice
6 employee or law enforcement officer;
7 6. Human rights advocacy council member committee or
8 long-term care ombudsman council member; or
9 7. Bank, savings and loan, or credit union officer,
10 trustee, or employee,
11
12 who knows, or has reasonable cause to suspect, that a disabled
13 adult or an elderly person has been or is being abused,
14 neglected, or exploited shall immediately report such
15 knowledge or suspicion to the central abuse registry and
16 tracking system on the single statewide toll-free telephone
17 number.
18 Section 19. Subsection (1) of section 415.104, Florida
19 Statutes, is amended to read:
20 415.104 Protective services investigations of cases of
21 abuse, neglect, or exploitation of aged persons or disabled
22 adults; transmittal of records to state attorney.--
23 (1) The department shall, upon receipt of a report
24 alleging abuse, neglect, or exploitation of an aged person or
25 disabled adult, commence, or cause to be commenced within 24
26 hours, a protective services investigation of the facts
27 alleged therein. If, upon arrival of the protective
28 investigator at the scene of the incident, a caregiver refuses
29 to allow the department to begin a protective services
30 investigation or interferes with the department's ability to
31 conduct such an investigation, the appropriate law enforcement
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1 agency shall be contacted to assist the department in
2 commencing the protective services investigation. If, during
3 the course of the investigation, the department has reason to
4 believe that the abuse, neglect, or exploitation is
5 perpetrated by a second party, the appropriate criminal
6 justice agency and state attorney shall be orally notified in
7 order that such agencies may begin a criminal investigation
8 concurrent with the protective services investigation of the
9 department. In an institutional investigation, the alleged
10 perpetrator may be represented by an attorney, at his or her
11 own expense, or accompanied by another person, if the person
12 or the attorney executes an affidavit of understanding with
13 the department and agrees to comply with the confidentiality
14 provisions of s. 415.107. The absence of an attorney or other
15 person does not prevent the department from proceeding with
16 other aspects of the investigation, including interviews with
17 other persons. The department shall make a preliminary
18 written report to the criminal justice agencies within 5
19 working days after the oral report. The department shall,
20 within 24 hours after receipt of the report, notify the
21 appropriate human rights advocacy council committee, or
22 long-term care ombudsman council, when appropriate, that an
23 alleged abuse, neglect, or exploitation perpetrated by a
24 second party has occurred. Notice to the human rights
25 advocacy council committee or long-term care ombudsman council
26 may be accomplished orally or in writing and shall include the
27 name and location of the aged person or disabled adult alleged
28 to have been abused, neglected, or exploited and the nature of
29 the report. For each report it receives, the department shall
30 perform an onsite investigation to:
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1 (a) Determine that the person is an aged person or
2 disabled adult as defined in s. 415.102.
3 (b) Determine the composition of the family or
4 household, including the name, address, date of birth, social
5 security number, sex, and race of each aged person or disabled
6 adult named in the report; any others in the household or in
7 the care of the caregiver, or any other persons responsible
8 for the aged person's or disabled adult's welfare; and any
9 other adults in the same household.
10 (c) Determine whether there is an indication that any
11 aged person or disabled adult is abused, neglected, or
12 exploited, including a determination of harm or threatened
13 harm to any aged person or disabled adult; the nature and
14 extent of present or prior injuries, abuse, or neglect, and
15 any evidence thereof; and a determination as to the person or
16 persons apparently responsible for the abuse, neglect, or
17 exploitation, including the name, address, date of birth,
18 social security number, sex, and race of each person to be
19 classified as an alleged perpetrator in a proposed confirmed
20 report. An alleged perpetrator named in a proposed confirmed
21 report of abuse, neglect, or exploitation shall cooperate in
22 the provision of the required data for the central abuse
23 registry and tracking system to the fullest extent possible.
24 (d) Determine the immediate and long-term risk to each
25 aged person or disabled adult through utilization of
26 standardized risk assessment instruments.
27 (e) Determine the protective, treatment, and
28 ameliorative services necessary to safeguard and ensure the
29 aged person's or disabled adult's well-being and cause the
30 delivery of those services through the early intervention of
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1 the departmental worker responsible for service provision and
2 management of identified services.
3 Section 20. Paragraphs (a) and (i) of subsection (1)
4 of section 415.1055, Florida Statutes, are amended to read:
5 415.1055 Notification to administrative entities,
6 subjects, and reporters; notification to law enforcement and
7 state attorneys.--
8 (1) NOTIFICATION TO ADMINISTRATIVE ENTITIES.--
9 (a) The department shall, within 24 hours after
10 receipt of a report of abuse, neglect, or exploitation of a
11 disabled adult or an elderly person within a facility,
12 excluding Saturdays, Sundays, and legal holidays, notify the
13 appropriate human rights advocacy council committee and the
14 long-term care ombudsman council, in writing, that the
15 department has reasonable cause to believe that a disabled
16 adult or an elderly person has been abused, neglected, or
17 exploited at the facility.
18 (i) At the conclusion of a protective investigation at
19 a facility, the department shall notify either the human
20 rights advocacy council committee or long-term care ombudsman
21 council of the results of the investigation. This
22 notification must be in writing.
23 Section 21. Subsection (2) of section 415.106, Florida
24 Statutes, is amended to read:
25 415.106 Cooperation by the department and criminal
26 justice and other agencies.--
27 (2) To ensure coordination, communication, and
28 cooperation with the investigation of abuse, neglect, or
29 exploitation of disabled adults or elderly persons, the
30 department shall develop and maintain interprogram agreements
31 or operational procedures among appropriate departmental
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1 programs and the State Long-Term Care Ombudsman Council, the
2 Statewide Human Rights Advocacy Council Committee, and other
3 agencies that provide services to disabled adults or elderly
4 persons. These agreements or procedures must cover such
5 subjects as the appropriate roles and responsibilities of the
6 department in identifying and responding to reports of abuse,
7 neglect, or exploitation of disabled adults or elderly
8 persons; the provision of services; and related coordinated
9 activities.
10 Section 22. Paragraph (g) of subsection (2) of section
11 415.107, Florida Statutes, is amended to read:
12 415.107 Confidentiality of reports and records.--
13 (2) Access to all records, excluding the name of the
14 reporter which shall be released only as provided in
15 subsection (6), shall be granted only to the following
16 persons, officials, and agencies:
17 (g) Any appropriate official of the human rights
18 advocacy council committee or long-term care ombudsman council
19 investigating a report of known or suspected abuse, neglect,
20 or exploitation of a disabled adult or an elderly person.
21 Section 23. This act shall take effect July 1, 2000.
22
23 *****************************************
24 SENATE SUMMARY
25 Renames the Statewide Human Rights Advocacy Committee and
the district human rights advocacy committees as the
26 Statewide Human Rights Advocacy Council and the local
human rights advocacy councils, respectively. Provides
27 for the statewide council and local councils to monitor
and investigate allegations of abuse of human or
28 constitutional rights by the Department of Children and
Family Services. Revises the membership of the statewide
29 council. Provides for the establishment of additional
local human rights advocacy councils.
30
31
36