Relevant State Laws, Rules, and Policies
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The Sexual Misconduct Law
Sexual activity between a direct service provider and a person with a developmental disability (to whom he or she is rendering services) is not only unethical but may now also be a crime, regardless of whether or not consent was first obtained from the victim.
Prior to 2004, there had been no statutory provisions specifically addressing sexual misconduct (and the reporting of such misconduct) by direct service providers upon persons with developmental disabilities served by the Agency for Persons with Disabilities. House Bill 1823, signed into law by the Governor in May 2004, addresses this problem via the following provisions:
- Creates a new crime called "sexual misconduct" which is defined as any sexual activity between a service provider and an individual with a developmental disability (to whom that provider renders services)
- Makes the crime of sexual misconduct punishable as a second degree felony
- Makes failure to report known or suspected cases of sexual misconduct a first degree misdemeanor
- Eliminates consent by the consumer as a valid defense against prosecution for this crime
- Expands Level 1 and 2 background screening requirements to include the newly-created crime of sexual misconduct as a disqualifying offense for employment
Below is the actual text of the Sexual Misconduct Law as it currently appears in Florida Statutes:
Section 393.135, Florida Statutes
Sexual misconduct prohibited; reporting required; penalties.
(1) As used in this section, the term:
- "Covered person" includes any employee, paid staff member, volunteer, or intern of the agency; any person under contract with the agency; and any person providing care or support to a client on behalf of the agency or its providers.
- "Sexual activity" means: 1. Fondling the genital area, groin, inner thighs, buttocks, or breasts of a person. 2. The oral, anal, or vaginal penetration by or union with the sexual organ of another or the anal or vaginal penetration of another by any other object. 3. Intentionally touching in a lewd or lascivious manner the breasts, genitals, the genital area, or buttocks, or the clothing covering them, of a person, or forcing or enticing a person to touch the perpetrator. 4. Intentionally masturbating in the presence of another person. 5. Intentionally exposing the genitals in a lewd or lascivious manner in the presence of another person. 6. Intentionally committing any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity in the presence of a victim.
- "Sexual misconduct" means any sexual activity between a covered person and a client to whom a covered person renders services, care, or support on behalf of the agency or its providers, or between a covered person and another client who lives in the same home as the client to whom a covered person is rendering the services, care, or support, regardless of the consent of the client. The term does not include an act done for a bona fide medical purpose or an internal search conducted in the lawful performance of duty by a covered person.
- A covered person who engages in sexual misconduct with an individual with a developmental disability who: (a) Resides in a residential facility, including any comprehensive transitional education program, developmental disabilities institution, foster care facility, group home facility, intermediate care facility for the developmentally disabled, or residential habilitation center; or (b) Is eligible to receive services from the agency under this chapter, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A covered person may be found guilty of violating this subsection without having committed the crime of sexual battery.
- The consent of the client to sexual activity is not a defense to prosecution under this section.
- This section does not apply to a covered person who is legally married to the client.
- A covered person who witnesses sexual misconduct, or who otherwise knows or has reasonable cause to suspect that a person has engaged in sexual misconduct, shall immediately report the incident to the central abuse hotline of the Department of Children and Family Services and to the appropriate local law enforcement agency. The covered person shall also prepare, date, and sign an independent report that specifically describes the nature of the sexual misconduct, the location and time of the incident, and the persons involved. The covered person shall deliver the report to the supervisor or program director, who is responsible for providing copies to the agency's local office and the agency's inspector general.
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Section 393.067(7), Florida Statutes
The agency shall adopt rules establishing minimum standards for facilities and programs licensed under this section, including rules requiring facilities and programs to train staff to detect and prevent sexual abuse of residents and clients, minimum standards of quality and adequacy of client care, incident reporting requirements, and uniform firesafety standards established by the State Fire Marshal which are appropriate to the size of the facility or of the component centers or units of the program.
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Section 393.13(3)(a), Florida Statutes
Persons with developmental disabilities shall have a right to dignity, privacy, and humane care, including the right to be free from sexual abuse in residential facilities.
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Chapter 59G-8.200, Florida Administrative Code
Developmental Disabilities Waiver Services Coverage and Limitations Handbook
June 23, 2005, Page C-5
Zero Tolerance
- Penalties for Sexual Abuse: Confirmed cases of sexual abuse by service providers will result in
immediate termination of the waiver enrollment status of the individual who committed the abuse as well as the imposition of legal penalties. If it is determined that administrators, owners, or operators of a provider agency are considered to be culpable for the abuse through negligence or failure to report the incident(s), their waiver enrollment status will be terminated. Criminal and administrative penalties will be pursued.
- Mandatory Reporting Requirements: A person with knowledge of, or having reasonable cause to suspect that a child is being sexually abused by a parent, legal custodian, caregiver, or other person responsible for the child's welfare, as defined in Section 39.201, F.S., is required to report such knowledge or suspicion to the Department's Central Abuse Hotline at 1-800-96-ABUSE (1-800-962-2873). Pursuant to Section 415.1034, F.S., any service provider with knowledge of, or having reasonable cause to suspect that a vulnerable adult has been or is being abused, neglected or exploited shall immediately report such knowledge or suspicion to the Department's Central Abuse Hotline at 1-800-96-ABUSE (1-800-962-2873). Failure to report known or suspected cases of sexual abuse represents an offense that will be cause for termination of waiver enrollment status. Criminal and administrative penalties will be pursued.
- Client-on-Client Sexual Abuse: Known or suspected sexual abuse between two individuals with developmental disabilities must also be reported immediately to the Central Abuse Hotline at 1-800-96-ABUSE (1-800-962-2873), so that an investigation will occur in order to determine whether or not the sexual abuse was the result of inadequate supervision or neglect on the part of a service provider or caregiver. The incident must also be reported immediately to the District or Regional Developmental Disabilities Program Office to ensure the continued health and safety of the individuals involved.
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Agency Policies and Related Documents
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Caregiver Abuse - Differences in Definition for Children and Adults
Florida law defines a "caregiver" in two different ways. One definition applies to caregivers of adults with developmental disabilities (who are referred to as "vulnerable adults" in Florida Statutes). The other definition of "caregiver" applies to those individuals who are responsible for caring for children.
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Laws Regarding Types of Abuse
Not only does Florida law separate the types of abuse, but it further distinguishes between issues involving the abandonment, abuse, and neglect of children as well as the exploitation, abuse, and neglect of adults with developmental disabilities.
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Child Abandonment
From Chapter 39.01(1):
- "Abandoned" means a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver responsible for the child's welfare, while being able, makes no provision for the child's support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations. If the efforts of such parent or legal custodian, or caregiver primarily responsible for the child's welfare, to support and communicate with the child are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned. The term "abandoned" does not include an abandoned newborn infant as described in s. 383.50, a "child in need of services" as defined in chapter 984, or a "family in need of services" as defined in chapter 984. The incarceration of a parent, legal custodian, or caregiver responsible for a child's welfare may support a finding of abandonment.
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Child Abuse
From 39.01(2):
"Abuse" means any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child's physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions. Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.
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Child Neglect
From 39.01(45):
"Neglect" occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child's physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired. The foregoing circumstances shall not be considered neglect if caused primarily by financial inability unless actual services for relief have been offered to and rejected by such person. A parent or legal custodian legitimately practicing religious beliefs in accordance with a recognized church or religious organization who thereby does not provide specific medical treatment for a child shall not, for that reason alone, be considered a negligent parent or legal custodian; however, such an exception does not preclude a court from ordering the following services to be provided, when the health of the child so requires:
- Medical services from a licensed physician, dentist, optometrist, podiatric physician, or other qualified health care provider; or
- Treatment by a duly accredited practitioner who relies solely on spiritual means for healing in accordance with the tenets and practices of a well-recognized church or religious organization.
Neglect of a child includes acts or omissions.
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Exploitation of an Adult with a Developmental Disability
From F.S. 415.102 (7):
- "Exploitation" means a person who:
- Stands in a position of trust and confidence with a vulnerable adult and knowingly, by deception or intimidation, obtains or uses, or endeavors to obtain or use, a vulnerable adult's funds, assets, or property with the intent to temporarily or permanently deprive a vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult; or
- Knows or should know that the vulnerable adult lacks the capacity to consent, and obtains or uses, or endeavors to obtain or use, the vulnerable adult's funds, assets, or property with the intent to temporarily or permanently deprive the vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult.
- "Exploitation" may include, but is not limited to:
- Breaches of fiduciary relationships, such as the misuse of a power of attorney or the abuse of guardianship duties, resulting in the unauthorized appropriation, sale, or transfer of property;
- Unauthorized taking of personal assets;
- Misappropriation, misuse, or transfer of moneys belonging to a vulnerable adult from a personal or joint account; or
- Intentional or negligent failure to effectively use a vulnerable adult's income and assets for the necessities required for that person's support and maintenance.
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Abuse of an Adult with a Developmental Disability
From 415.102(1)
"Abuse" means any willful act or threatened act by a relative, caregiver, or household member which causes or is likely to cause significant impairment to a vulnerable adult's physical, mental, or emotional health. Abuse includes acts and omissions.
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Neglect of an Adult with a Developmental Disability
From 415.102(15)
"Neglect" means the failure or omission on the part of the caregiver or vulnerable adult to provide the care, supervision, and services necessary to maintain the physical and mental health of the vulnerable adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, which a prudent person would consider essential for the well-being of a vulnerable adult. The term "neglect" also means the failure of a caregiver or vulnerable adult to make a reasonable effort to protect a vulnerable adult from abuse, neglect, or exploitation by others. "Neglect" is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death.
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Self-Neglect
Chapter 415 of Florida Statutes was recently changed to include a category under Neglect called "self-neglect." Besides possibly being neglected by a caregiver, the potential exists for people to neglect themselves because of either their age or disability. The Florida Abuse Hotline receives thousands of calls each year that deal with issues involving self-neglect. Anyone who knows or suspects that an adult with a developmental disability is the victim of self-neglect must report such information. Reporting cases of self-neglect allows the Department of Children and Families to provide voluntary services or petition a court for involuntary non-emergency services and protective supervision when an investigation determines that an adult with a developmental disability is neglecting himself or herself.
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Mandatory Reporting Requirements
Any person who knows, or has reasonable cause to suspect, that a person with a developmental disability is being abused, neglected, or exploited by a relative, caregiver, or household member or, in the case of self-neglect, by themselves, is required to report such knowledge or suspicion to the Florida Abuse Hotline at 1-800-96-ABUSE or 1-800-962-2873.
Failure to report known or suspected cases of abuse, neglect, or exploitation is a criminal offense. Keep in mind that, for service providers, failure to report known or suspected abuse can result in losing your job and/or possible legal action. When in doubt, report it; it is always better to err on the side of caution.
Cut and pasted below are the sections of Florida law pertaining to mandatory reporting requirements:
From 39.201(1)(a):
Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child's welfare, as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2).
From 415.1034(1)(a):
Any person, including, but not limited to, any:
- Physician, osteopathic physician, medical examiner, chiropractic physician, nurse, paramedic, emergency medical technician, or hospital personnel engaged in the admission, examination, care, or treatment of vulnerable adults;
- Health professional or mental health professional other than one listed in subparagraph 1.;
- Practitioner who relies solely on spiritual means for healing;
- Nursing home staff; assisted living facility staff; adult day care center staff; adult family-care home staff; social worker; or other professional adult care, residential, or institutional staff;
- State, county, or municipal criminal justice employee or law enforcement officer;
- An employee of the Department of Business and Professional Regulation conducting inspections of public lodging establishments under s. 509.032;
- Florida advocacy council member or long-term care ombudsman council member; or
- Bank, savings and loan, or credit union officer, trustee, or employee,
who knows, or has reasonable cause to suspect, that a vulnerable adult has been or is being abused, neglected, or exploited shall immediately report such knowledge or suspicion to the central abuse hotline.
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