402.165  Statewide Human Rights Advocacy Committee; confidential records and meetings.--

(1)  There is created within the ¹Department of Health and Rehabilitative Services a Statewide Human Rights Advocacy Committee. The ¹Department of Health and Rehabilitative Services shall provide administrative support and service to the committee to the extent requested by the executive director within available resources. The Statewide Human Rights Advocacy Committee shall not be subject to control, supervision, or direction by the ¹Department of Health and Rehabilitative Services in the performance of its duties. The committee shall consist of 15 citizens, one from each service district of the ¹Department of Health and Rehabilitative Services, who broadly represent the interests of the public and the clients of that department. The members shall be representative of five groups of citizens as follows: one elected public official; two providers who deliver services or programs to clients of the ¹Department of Health and Rehabilitative Services; four nonsalaried representatives of nonprofit agencies or civic groups; four representatives of health and rehabilitative services consumer groups who are currently receiving, or have received, services from the ¹Department of Health and Rehabilitative Services within the past 4 years, at least one of whom must be a consumer; and four residents of the state who do not represent any of the foregoing groups, two of whom represent health-related professions and two of whom represent the legal profession. In appointing the representatives of the health-related professions, the appointing authority shall give priority of consideration to a physician licensed under chapter 458 or chapter 459; and, in appointing the representatives of the legal profession, the appointing authority shall give priority of consideration to a member in good standing of The Florida Bar. Except for the member who is an elected public official, each member of the Statewide Human Rights Advocacy Committee must have served as a member of a district human rights advocacy committee. Persons related to each other by consanguinity or affinity within the third degree may not serve on the Statewide Human Rights Advocacy Committee at the same time.

(2)  Members of the Statewide Human Rights Advocacy Committee shall be appointed to serve terms of 3 years. A member may not serve more than two consecutive terms. The limitation on the number of terms a member may serve applies without regard to whether a term was served before or after October 1, 1989.

(3)  If a member of the Statewide Human Rights Advocacy Committee fails to attend two-thirds of the regular committee meetings during the course of a year, the position held by such member may be deemed vacant by the committee. The Governor shall fill the vacancy pursuant to subsection (4). If a member of the Statewide Human Rights Advocacy Committee is in violation of the provisions of this section or procedures adopted thereto, the committee may recommend to the Governor that such member be removed.

(4)  The Governor shall fill each vacancy on the Statewide Human Rights Advocacy Committee from a list of nominees submitted by the statewide committee. A list of candidates shall be submitted to the statewide committee by the district human rights advocacy committee in the district from which the vacancy occurs. Priority of consideration shall be given to the appointment of an individual whose primary interest, experience, or expertise lies with a major client group of the ¹Department of Health and Rehabilitative Services not represented on the committee at the time of the appointment. If an appointment is not made within 60 days after a vacancy occurs on the committee, the vacancy shall be filled by a majority vote of the statewide committee without further action by the Governor. No person who is employed by the ¹Department of Health and Rehabilitative Services may be appointed to the committee.

(5)(a)  Members of the Statewide Human Rights Advocacy Committee shall receive no compensation, but shall be entitled to be reimbursed for per diem and travel expenses in accordance with s. 112.061.

(b)  The committee shall select an executive director who shall serve at the pleasure of the committee and shall perform the duties delegated to him or her by the committee. The compensation of the executive director shall be established in accordance with the rules of the Selected Exempt Service.

(c)  The committee may apply for, receive, and accept grants, gifts, donations, bequests, and other payments including money or property, real or personal, tangible or intangible, and service from any governmental or other public or private entity or person and make arrangements as to the use of same.

(d)  The Statewide Human Rights Advocacy Committee shall annually prepare a budget request that shall not be subject to change by department staff after it is approved by the committee, but the budget request shall be submitted to the Governor by the department for transmittal to the Legislature. The budget shall include a request for funds to carry out the activities of the Statewide Human Rights Advocacy Committee and the district human rights advocacy committees.

(6)  The members of the Statewide Human Rights Advocacy Committee shall elect a chairperson to a term of 1 year. A person may not serve as chairperson for more than two consecutive terms.

(7)  The responsibilities of the committee include, but are not limited to:

(a)  Serving as an independent third-party mechanism for protecting the constitutional and human rights of any client within a program or facility operated, funded, licensed, or regulated by the ¹Department of Health and Rehabilitative Services.

(b)  Monitoring by site visit and inspection of records, the delivery and use of services, programs, or facilities operated, funded, regulated, or licensed by the ¹Department of Health and Rehabilitative Services for the purpose of preventing abuse or deprivation of the constitutional and human rights of clients. The Statewide Human Rights Advocacy Committee may conduct an unannounced site visit or monitoring visit that involves the inspection of records if such visit is conditioned upon a complaint. A complaint may be generated by the committee itself if information from the ¹Department of Health and Rehabilitative Services or other sources indicates a situation at the program or facility that indicates possible abuse or neglect of clients. The Statewide Human Rights Advocacy Committee shall establish and follow uniform criteria for the review of information and generation of complaints. Routine program monitoring and reviews that do not require an examination of records may be made unannounced.

(c)  Receiving, investigating, and resolving reports of abuse or deprivation of constitutional and human rights referred to the Statewide Human Rights Advocacy Committee by a district human rights advocacy committee. If a matter constitutes a threat to the life, safety, or health of clients or is multidistrict in scope, the Statewide Human Rights Advocacy Committee may exercise such powers without the necessity of a referral from a district committee.

(d)  Reviewing existing programs or services and new or revised programs of the ¹Department of Health and Rehabilitative Services and making recommendations as to how the rights of clients are affected.

(e)  Submitting an annual report to the Legislature, no later than December 30 of each calendar year, concerning activities, recommendations, and complaints reviewed or developed by the committee during the year.

(f)  Conducting meetings at least six times a year at the call of the chairperson and at other times at the call of the Governor or by written request of six members of the committee.

(g)  Developing and adopting uniform procedures to be used to carry out the purpose and responsibilities of the human rights advocacy committees, which procedures shall include, but need not be limited to, the following:

1.  The responsibilities of the committee;

2.  The organization and operation of the statewide committee and district committees, including procedures for replacing a member, formats for maintaining records of committee activities, and criteria for determining what constitutes a conflict of interest for purposes of assigning and conducting investigations and monitoring;

3.  Uniform procedures for the statewide committee and district committees to receive and investigate reports of abuse of constitutional or human rights;

4.  The responsibilities and relationship of the district human rights advocacy committees to the statewide committee;

5.  The relationship of the committee to the ¹Department of Health and Rehabilitative Services, including the way in which reports of findings and recommendations related to reported abuse are given to the ¹Department of Health and Rehabilitative Services;

6.  Provision for cooperation with the State Long-Term Care Ombudsman Council;

7.  Procedures for appeal. An appeal to the state committee is made by a district human rights advocacy committee when a valid complaint is not resolved at the district level. The statewide committee may appeal an unresolved complaint to the Secretary of the ¹Department of Health and Rehabilitative Services. If, after exhausting all remedies, the statewide committee is not satisfied that the complaint can be resolved within the ¹Department of Health and Rehabilitative Services, the appeal may be referred to the Governor or the Legislature;

8.  Uniform procedures for gaining access to and maintaining confidential information; and

9.  Definitions of misfeasance and malfeasance for members of the statewide committee and district committees.

(h)  Monitoring the performance and activities of all district committees and providing technical assistance to members and staff of district committees.

(i)  Providing for the development and presentation of a standardized training program for members of district committees.

(8)(a)  In the performance of its duties, the Statewide Human Rights Advocacy Committee shall have:

1.  Authority to receive, investigate, seek to conciliate, hold hearings on, and act on complaints which allege any abuse or deprivation of constitutional or human rights of clients.

2.  Access to all client records, files, and reports from any program, service, or facility that is operated, funded, licensed, or regulated by the Department of Children and Family Services and any records which are material to its investigation and which are in the custody of any other agency or department of government. The committee's investigation or monitoring shall not impede or obstruct matters under investigation by law enforcement or judicial authorities. Access shall not be granted if a specific procedure or prohibition for reviewing records is required by federal law and regulation which supersedes state law. Access shall not be granted to the records of a private licensed practitioner who is providing services outside agencies and facilities and whose client is competent and refuses disclosure.

3.  Standing to petition the circuit court for access to client records which are confidential as specified by law. The petition shall state the specific reasons for which the committee is seeking access and the intended use of such information. The court may authorize committee access to such records upon a finding that such access is directly related to an investigation regarding the possible deprivation of constitutional or human rights or the abuse of a client. Original client files, records, and reports shall not be removed from the Department of Children and Family Services or agency facilities. Under no circumstance shall the committee have access to confidential adoption records in accordance with the provisions of ss. 39.0132, 63.022, and 63.162. Upon completion of a general investigation of practices and procedures of the Department of Children and Family Services, the committee shall report its findings to that department.

(b)  All information obtained or produced by the committee which is made confidential by law, which relates to the identity of any client or group of clients subject to the protections of this section, or which relates to the identity of an individual who provides information to the committee about abuse or alleged violations of constitutional or human rights, is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

(c)  Portions of meetings of the Statewide Human Rights Advocacy Committee which relate to the identity of any client or group of clients subject to the protections of this section, which relate to the identity of an individual who provides information to the committee about abuse or alleged violations of constitutional or human rights, or wherein testimony is provided relating to records otherwise made confidential by law, are exempt from the provisions of s. 286.011 and s. 24(b), Art. I of the State Constitution.

(d)  All records prepared by members of the committee which reflect a mental impression, investigative strategy, or theory are exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the investigation is completed or until the investigation ceases to be active. For purposes of this section, an investigation is considered "active" while such investigation is being conducted by the committee with a reasonable, good faith belief that it may lead to a finding of abuse or of a violation of human rights. An investigation does not cease to be active so long as the committee is proceeding with reasonable dispatch and there is a good faith belief that action may be initiated by the committee or other administrative or law enforcement agency.

(e)  Any person who knowingly and willfully discloses any such confidential information is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.--ss. 1, 5, ch. 89-215; s. 5, ch. 91-429; s. 14, ch. 92-58; s. 26, ch. 93-177; s. 9, ch. 93-262; s. 806, ch. 95-148; s. 5, ch. 95-407; s. 236, ch. 96-406; s. 144, ch. 98-403.