FL
Florida House Bill H1207

Florida 2022 Regular Session

Florida House Bill H1207 Compare Versions

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1010 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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1414 A bill to be entitled 1
1515 An act relating to supported decisionmaking for adults 2
1616 with disabilities; amending s. 393.063, F.S.; 3
1717 providing definitions; amending s. 393.065, F.S.; 4
1818 revising a requirement that the Agency for Persons 5
1919 with Disabilities provide specified information to 6
2020 certain persons to conform to changes made by the act; 7
2121 amending s. 393.12, F.S.; revising the requirements 8
2222 for petitions to appoint guardian advocates for 9
2323 persons with developmental disabilities to conform to 10
2424 changes made by the act; creating s. 393.121, F.S.; 11
2525 authorizing adults with disabilities to enter into 12
2626 supported decisionmaking agreements under certain 13
2727 circumstances; prohibiting the use of such agreements 14
2828 as evidence of incapacity; providing that such 15
2929 agreements do not preclude a decisionmaker from acting 16
3030 independently; providing criteria for supporters; 17
3131 providing requirements for supported decisionmaking 18
3232 agreements; requiring that a supporter act in good 19
3333 faith; authorizing adults with disabilities who have 20
3434 appointed guardian advocates to enter into supported 21
3535 decisionmaking agreements under certain circumstances; 22
3636 amending ss. 383.141 and 1002.394, F.S.; conforming 23
3737 cross-references; providing an effective date. 24
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4747 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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5151 Be It Enacted by the Legislature of the State of Florida: 26
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5353 Section 1. Subsections (11) through (42), of section 28
5454 393.063, Florida Statutes, are renumbered as subsections (12) 29
5555 through (43), respectively, present subsections (43), (44), 30
5656 (45), and (46) are renumbered as subsections (46), (47), (49), 31
5757 and (50), respectively, and new subsections (11), (44), (45), 32
5858 and (48) are added to that section, to read: 33
5959 393.063 Definitions. —For the purposes of this chapter, the 34
6060 term: 35
6161 (11) "Decisionmaker" means an a dult with a disability who 36
6262 has entered into a supported decisionmaking agreement with at 37
6363 least one supporter. 38
6464 (44) "Supported decisionmaking" means a process of 39
6565 supporting an adult with a disability to assist him or her with 40
6666 understanding the options, re sponsibilities, and consequences of 41
6767 a life decision and enabling him or her to make a life decision 42
6868 without impeding self -determination. 43
6969 (45) "Supported decisionmaking agreement" means a written 44
7070 agreement between a decisionmaker and at least one supporte r for 45
7171 supported decisionmaking. 46
7272 (48) "Supporter" means a qualified adult who has entered 47
7373 into a supported decisionmaking agreement under s. 393.121(1). 48
7474 Section 2. Paragraph (a) of subsection (10) of section 49
7575 393.065, Florida Statutes, is amended, and paragraphs (b) and 50
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8484 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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8888 (c) of that subsection are republished, to read: 51
8989 393.065 Application and eligibility determination. — 52
9090 (10)(a) The agency shall provide the following information 53
9191 to all applicants or their parents, legal guardians, or family 54
9292 members: 55
9393 1. A brief overview of the vocational rehabilitation 56
9494 services offered through the Division of Vocational 57
9595 Rehabilitation of the Department of Education, including a 58
9696 hyperlink or website address that provides access to the 59
9797 application for such services; 60
9898 2. A brief overview of the Florida ABLE program as 61
9999 established under s. 1009.986, including a hyperlink or website 62
100100 address that provides access to the application for establishing 63
101101 an ABLE account as defined in s. 1009.986(2); 64
102102 3. A brief overview of the su pplemental security income 65
103103 benefits and social security disability income benefits 66
104104 available under Title XVI of the Social Security Act, as 67
105105 amended, including a hyperlink or website address that provides 68
106106 access to the application for such benefits; 69
107107 4. A statement indicating that the applicant's local 70
108108 public school district may provide specialized instructional 71
109109 services, including transition programs, for students with 72
110110 special education needs; 73
111111 5. A brief overview of programs and services funded 74
112112 through the Florida Center for Students with Unique Abilities, 75
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121121 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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125125 including contact information for each state -approved Florida 76
126126 Postsecondary Comprehensive Transition Program; 77
127127 6. A brief overview of decisionmaking options for 78
128128 individuals with disabilities, including supported 79
129129 decisionmaking under s. 393.121, guardianship under chapter 744, 80
130130 and alternatives to guardianship as defined in s. 744.334(1), 81
131131 which may include contact information for organizations that the 82
132132 agency believes would be helpful in assisting with su ch 83
133133 decisions; 84
134134 7. A brief overview of the referral tools made available 85
135135 through the agency, including a hyperlink or website address 86
136136 that provides access to such tools; and 87
137137 8. A statement indicating that some waiver providers may 88
138138 serve private-pay individuals. 89
139139 (b) The agency must provide the information required in 90
140140 paragraph (a) in writing to an applicant or his or her parent, 91
141141 legal guardian, or family member along with a written disclosure 92
142142 statement in substantially the following form: 93
143143 DISCLOSURE STATEMENT 94
144144 Each program and service has its own eligibility requirements. 95
145145 By providing the information specified in section 96
146146 393.065(10)(a), Florida Statutes, the agency does not guarantee 97
147147 an applicant's eligibility for or enrollment in any program or 98
148148 service. 99
149149 (c) The agency shall also publish the information required 100
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158158 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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162162 in paragraph (a) and the disclosure statement in paragraph (b) 101
163163 on its website, and shall provide that information and statement 102
164164 annually to each applicant placed on the waiting list or to the 103
165165 parent, legal guardian, or family member of such applicant. 104
166166 Section 3. Paragraphs (d), (e), and (f) of subsection (3) 105
167167 of section 393.12, Florida Statutes, are redesignated as 106
168168 paragraphs (e), (f), and (g), respectively, paragraph (a) of 107
169169 subsection (4) and s ubsection (7) are amended, and a new 108
170170 paragraph (d) is added to subsection (3) of that section, to 109
171171 read: 110
172172 393.12 Capacity; appointment of guardian advocate. — 111
173173 (3) PETITION.—A petition to appoint a guardian advocate 112
174174 for a person with a developmental disabi lity may be executed by 113
175175 an adult person who is a resident of this state. The petition 114
176176 must be verified and must: 115
177177 (d) State any effort to use decisionmaking options before 116
178178 seeking a guardian advocate, including entering into a supported 117
179179 decisionmaking agreement under s. 393.121, a durable power of 118
180180 attorney under chapter 709, or an advance directive under 119
181181 chapter 765. The statement must include all of the following 120
182182 information: 121
183183 1. Each guardianship alternative that was considered or 122
184184 implemented. 123
185185 2. If a guardianship alternative was not considered or 124
186186 implemented, the reason why a guardianship alternative was not 125
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195195 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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199199 considered or implemented. 126
200200 3. Any reason why a guardianship alternative is 127
201201 insufficient to meet the needs of the person with a 128
202202 developmental disability. 129
203203 (4) NOTICE.— 130
204204 (a) Notice of the filing of the petition must be given to 131
205205 the person with a developmental disability, verbally and in 132
206206 writing in the language of the person and in English. Notice 133
207207 must also be given to the next of kin of the perso n with a 134
208208 developmental disability under as defined in chapter 744, a 135
209209 health care surrogate designated under pursuant to an advance 136
210210 directive under chapter 765, an agent under a durable power of 137
211211 attorney, a supporter who has entered into a supported 138
212212 decisionmaking agreement under s. 393.121, and such other 139
213213 persons as the court may direct. A copy of the petition to 140
214214 appoint a guardian advocate must be served with the notice. 141
215215 (7) ADVANCE DIRECTIVES FOR HEALTH CARE , AND DURABLE POWER 142
216216 OF ATTORNEY, AND SUPPORTED DECISIONMAKING AGREEMENTS .—In each 143
217217 proceeding in which a guardian advocate is appointed under this 144
218218 section, the court shall determine whether the person with a 145
219219 developmental disability has executed any valid advance 146
220220 directive under chapter 765 , or a durable power of attorney 147
221221 under chapter 709, or a supported decisionmaking agreement under 148
222222 s. 393.121. 149
223223 (a) If the person with a developmental disability has 150
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232232 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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236236 executed an advance directive , a or durable power of attorney, 151
237237 or a supported decisionmaking agreement , the court must consider 152
238238 and find whether the documents will sufficiently address the 153
239239 needs of the person with a developmental disability for whom the 154
240240 guardian advocate is sought. A guardian advocate may not be 155
241241 appointed if the court finds that the advanc e directive, or 156
242242 durable power of attorney , or supported decisionmaking agreement 157
243243 provides an alternative to the appointment of a guardian 158
244244 advocate which will sufficiently address the needs of the person 159
245245 with a developmental disability. 160
246246 (b) If an interested person seeks to contest an advance 161
247247 directive, a or durable power of attorney , or a supported 162
248248 decisionmaking agreement executed by a person with a 163
249249 developmental disability, the interested person shall file a 164
250250 verified statement. The verified statement sha ll include the 165
251251 factual basis for the belief that the advance directive , or 166
252252 durable power of attorney , or supported decisionmaking agreement 167
253253 is invalid or does not sufficiently address the needs of the 168
254254 person for whom a guardian advocate is sought or that t he person 169
255255 with authority under the advance directive , or durable power of 170
256256 attorney, or supported decisionmaking agreement is abusing his 171
257257 or her power. 172
258258 (c) If an advance directive exists, the court shall 173
259259 specify in its order and letters of guardian advoca cy what 174
260260 authority, if any, the guardian advocate shall exercise over the 175
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269269 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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273273 person's health care surrogate. Pursuant to the grounds listed 176
274274 in s. 765.105, the court, upon its own motion, may, with notice 177
275275 to the health care surrogate and any other appropriate p arties, 178
276276 modify or revoke the authority of the health care surrogate to 179
277277 make health care decisions for the person with a developmental 180
278278 disability. For purposes of this section, the term "health care 181
279279 decision" has the same meaning as in s. 765.101. 182
280280 (d) If any durable power of attorney exists, the court 183
281281 shall specify in its order and letters of guardian advocacy what 184
282282 powers of the agent, if any, are suspended and granted to the 185
283283 guardian advocate. The court, however, may not suspend any 186
284284 powers of the agent un less the court determines the durable 187
285285 power of attorney is invalid or there is an abuse by the agent 188
286286 of the powers granted. 189
287287 (e) If a supported decisionmaking agreement exists, the 190
288288 court shall specify in its order and letters of guardian 191
289289 advocacy the part of the agreement that is suspended. 192
290290 Section 4. Section 393.121, Florida Statutes, is created 193
291291 to read: 194
292292 393.121 Supported decisionmaking. — 195
293293 (1) An adult with a disability may enter into a supported 196
294294 decisionmaking agreement if he or she: 197
295295 (a) Voluntarily enters into the agreement without coercion 198
296296 or undue influence; and 199
297297 (b) Understands the nature and effect of the agreement. 200
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306306 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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310310 (2) The existence of a supported decisionmaking agreement 201
311311 may not be used as evidence of incapacity and does not preclude 202
312312 the decisionmaker from acting independently. 203
313313 (3) A supporter must be an adult and, unless he or she is 204
314314 an immediate family member of the decisionmaker, may not be: 205
315315 (a) An employer or employee of the decisionmaker; 206
316- (b) A decisionmaker's healt h care provider as defined in 207
317-s. 768.381(1); 208
318- (c) A creditor or debtor of the decisionmaker; 209
319- (d) An employee or contractor of a state agency who 210
320-provides services directly to the decisionmaker; 211
321- (e) A person who provides paid support services, excludin g 212
322-decisionmaking assistance, directly to the decisionmaker; 213
323- (f) A landlord or an employee of a landlord of the 214
324-decisionmaker; or 215
316+ (b) A health care provider of the decisionmaker; 207
317+ (c) A creditor or debtor of the decisionmaker; 208
318+ (d) An employee or contractor of a state agency who 209
319+provides services directly to the decisionmaker; 210
320+ (e) A person who provides paid support services, excluding 211
321+decisionmaking assist ance, directly to the decisionmaker; 212
322+ (f) A landlord, nursing home, assisted living facility, or 213
323+an employee of a landlord, nursing home, or assisted living 214
324+facility of the decisionmaker; or 215
325325 (g) A person against whom a protective order or 216
326326 restraining order has been entered by a court at the request of 217
327327 or on behalf of the decisionmaker. 218
328328 (4) An adult with a disability may voluntarily, without 219
329329 undue influence or coercion, enter into a supported 220
330330 decisionmaking agreement that authorizes a supporter to: 221
331331 (a) Assist the decisionmaker in understanding the options, 222
332332 responsibilities, and consequences of life decisions; 223
333333 (b) Assist the decisionmaker in accessing, collecting, and 224
334334 obtaining information and records relevant to a life decision, 225
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343343 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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347347 including, but not li mited to, medical, psychological, 226
348348 financial, educational, or treatment records, to which the 227
349349 decisionmaker is entitled, from any person or entity. Such 228
350350 information and records must include, but need not be limited 229
351351 to, protected health information under the Health Insurance 230
352352 Portability and Accountability Act of 1996, 42 U.S.C. s. 1320d; 231
353353 educational records under the Family Educational Rights and 232
354354 Privacy Act of 1974, 20 U.S.C. s. 1232g; information available 233
355355 under the Individuals with Disabilities Education A ct, 20 U.S.C. 234
356356 ss. 1400, et seq.; or records of the identity, diagnosis, 235
357357 prognosis, or treatment of a patient maintained in connection 236
358358 with the performance of any program or activity relating to 237
359359 substance abuse, education, prevention, training, treatment, 238
360360 rehabilitation, or research which are protected by 42 U.S.C. s. 239
361361 290dd-2 and 42 C.F.R. part II; 240
362362 (c) Assist the decisionmaker in communicating his or her 241
363363 decisions; or 242
364364 (d) Access the decisionmaker's personal information, to 243
365365 the extent authorized by the s upported decisionmaking agreement. 244
366366 (5) A supporter shall act in good faith in all actions 245
367367 taken under the supported decisionmaking agreement. 246
368368 (6) An adult with a disability who has a guardian advocate 247
369369 may enter into a supported decisionmaking agreement if the 248
370370 guardian advocate grants written approval to do so. The adult 249
371371 with a disability does not need approval from the guardian 250
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380380 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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384384 advocate if the supported decisionmaking agreement only affects 251
385385 rights that were not removed by the court. 252
386386 Section 5. Paragraph (b) of subsection (1) of section 253
387387 383.141, Florida Statutes, is amended to read: 254
388388 383.141 Prenatally diagnosed conditions; patient to be 255
389389 provided information; definitions; information clearinghouse; 256
390390 advisory council.— 257
391391 (1) As used in this section, th e term: 258
392392 (b) "Developmental disability" includes Down syndrome and 259
393393 other developmental disabilities defined by s. 393.063 s. 260
394394 393.063(12). 261
395395 Section 6. Paragraph (d) of subsection (2) of section 262
396396 1002.394, Florida Statutes, is amended to read: 263
397397 1002.394 The Family Empowerment Scholarship Program. — 264
398398 (2) DEFINITIONS.—As used in this section, the term: 265
399399 (d) "Disability" means, for a 3 - or 4-year-old child or 266
400400 for a student in kindergarten to grade 12, autism spectrum 267
401401 disorder, as defined in the Diagnostic a nd Statistical Manual of 268
402402 Mental Disorders, Fifth Edition, published by the American 269
403403 Psychiatric Association; cerebral palsy, as defined in s. 270
404404 393.063; Down syndrome, as defined in s. 393.063; an 271
405405 intellectual disability, as defined in s. 393.063; a speech 272
406406 impairment; a language impairment; an orthopedic impairment; an 273
407407 other health impairment; an emotional or a behavioral 274
408408 disability; a specific learning disability, including, but not 275
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417417 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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421421 limited to, dyslexia, dyscalculia, or developmental aphasia; 276
422422 Phelan-McDermid syndrome, as defined in s. 393.063; Prader -Willi 277
423423 syndrome, as defined in s. 393.063; spina bifida, as defined in 278
424424 s. 393.063; being a high -risk child, as defined in s. 279
425425 393.063(24)(a) s. 393.063(23)(a); muscular dystrophy; Williams 280
426426 syndrome; rare diseases w hich affect patient populations of 281
427427 fewer than 200,000 individuals in the United States, as defined 282
428428 by the National Organization for Rare Disorders; anaphylaxis; a 283
429429 hearing impairment, including deafness; a visual impairment, 284
430430 including blindness; traumatic b rain injury; hospital or 285
431431 homebound; or identification as dual sensory impaired, as 286
432432 defined by rules of the State Board of Education and evidenced 287
433433 by reports from local school districts. The term "hospital or 288
434434 homebound" includes a student who has a medicall y diagnosed 289
435435 physical or psychiatric condition or illness, as defined by the 290
436436 state board in rule, and who is confined to the home or hospital 291
437437 for more than 6 months. 292
438438 Section 7. This act shall take effect July 1, 2022. 293