EXPERT WITNESSES IN FLORIDA S TRIAL COURTS

Transcription

1 EPERT WITNESSES IN FLORIDA S TRIAL COURTS Recommendations from the Joint Due Process Workgroup of the Trial Court Budget Commission and the Commission on Trial Court Performance and Accountability vember

2 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup DUE PROCESS WORKGROUP MEMBERS The Honorable Robert E. Roundtree, Jr., Chief Judge, Eighth Judicial Circuit, Chair of the Trial Court Budget Commission, and former Chair of the Due Process Workgroup The Honorable Diana L. Moreland, Circuit Court Judge, Twelfth Judicial Circuit, Chair of the Commission on Trial Court Performance and Accountability and Chair of the Due Process Workgroup The Honorable John K. Stargel, Circuit Court Judge, Tenth Judicial Circuit, Chair of the Due Process Workgroup The Honorable Fredrick Lauten, Jr., Chief Judge, Ninth Judicial Circuit The Honorable Margaret Steinbeck, Circuit Court Judge, Twentieth Judicial Circuit The Honorable Terry D. Terrell, Senior Judge, First Judicial Circuit Ms. Barbara Dawicke, Trial Court Administrator, Fifteenth Judicial Circuit Ms. Holly Elomina, Trial Court Administrator, Sixteenth Judicial Circuit Mr. Mark Weinberg, Trial Court Administrator, Seventh Judicial Circuit STAFF SUPPORT Office of the State Courts Administrator Patricia (PK) Jameson, State Courts Administrator Eric Maclure, Deputy State Courts Administrator Blan Teagle, Deputy State Courts Administrator Thomas A. David, General Counsel Kristine Slayden, Manager of Resource Planning Jessie Emrich McMillan, Court Statistics Consultant Lindsay Hafford, Court Statistics Consultant Patty Harris, Senior Court Operations Consultant Maggie Evans Lewis, Court Operations Consultant Page

3 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup TABLE OF CONTENTS EECUTIVE SUMMARY... SECTION ONE: HISTORY AND BACKGROUND... SECTION TWO: CHARGE AND GOAL OF THE WORKGROUP... SECTION THREE: RESEARCH AND DATA... SECTION FOUR: ADMINISTRATIVE SOLUTIONS... SECTION FIVE: FISCAL SOLUTIONS... SECTION SI: OPERATIONAL AND POLICY SOLUTIONS... SECTION SEVEN: STATUTORY SOLUTIONS... SECTION EIGHT: CURRENT STATUS AND NET STEPS... APPENDICES... Page

4 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup EECUTIVE SUMMARY Recognizing a trend over the last few years of increasing due process contractual expenditures, with significant increases in court interpreting and expert witness expenditures, Judge Mark Mahon, then-chair of the Trial Court Budget Commission (TCBC), and Judge Diana Moreland, chair of the Commission on Trial Court Performance and Accountability (TCP&A), established the joint Due Process Workgroup (Workgroup) in the summer of. The Workgroup was tasked with identifying factors affecting the cost of providing court reporting, court interpreting, and expert witness services and developing comprehensive fiscal and operational recommendations for the provision of all services. The Workgroup developed a work plan to examine the delivery of services in relation to the current standards and best practices; review the efficiency and effectiveness of service delivery methods, given current funding levels; develop recommendations for fair allocation of resources and containment of costs; develop recommendations relating to statutory, rule, or other policy changes; and determine an appropriate level of resources. Due to the significant increase in expenditures from FY - to FY - (an increase of approximately percent) and concerns regarding changes in practices by other stakeholders, expert witness was determined as the first element to be addressed. The Workgroup held several meetings, both in-person and telephonically, from vember through vember, in a continual effort to collect data, review administrative policies and procedures, and develop operational and statutory solutions. Findings from the Workgroup s research, analysis of invoices, and survey data are discussed in the following sections of the report. Based on the thorough review of information related to expert witnesses and many discussions on current practices of appointing and managing expert witness resources, the Workgroup developed recommendations for administrative, fiscal, operational, policy, and statutory solutions in order to improve the processes for appointing experts and containing costs. Administrative Solutions The Workgroup recommended three administrative solutions to improve the contracting, payment, and data collection related to expert witnesses. Specifically, the Workgroup recommended: Revising the Statewide Uniform Expert Witness Invoice. This recommendation was approved and implemented as a requirement in July. Revising the Uniform Data Reporting (UDR) System, including updating the web-based reporting system and instructions, and recommending training and data quality audits on the system. This recommendation was approved and implemented in July. Developing a uniform contract for expert witness services. This recommendation was referred to the Office of the State Courts Administrator for implementation. A contract template is under development. Page

5 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup Fiscal Solutions The Workgroup recommended two fiscal solutions to better identify payment responsibility for expert witness services, improve communication across the state for interested parties, and ensure more consistency in the amount of fees paid by the courts to the expert witnesses. Specifically, the Workgroup recommended: Updating the Payment Responsibility Expert Witness matrix. A revised version of the matrix was approved by the TCBC and TCP&A and disseminated to the circuit chief judges in August. Developing a statewide rate structure for the payment of certain expert witness fees. The TCBC and TCP&A concurred with the Workgroup s recommendations for a statewide expert witness rate structure, to establish a range of allowable rates to be used for evaluations and follow-up evaluations by type of evaluation and expert. In addition to the proposed range of rates for evaluations, the rate structure included a maximum allowable flat rate for no show based on percent of the initial evaluation rate and an hourly rate of $ for in-court testimony (including wait time and a -hour cap) for adult competency examinations ordered by the court. This issue is being recommended to the Supreme Court for approval. Operational and Policy Solutions The Workgroup recommended five operational and policy solutions to oversee and manage the deployment of resources in the expert witness element and also to contain costs. Specifically, the Workgroup recommended: Requiring circuits to select experts from a registry maintained by the circuit. Setting a policy which requires the courts to initially appoint one expert for the evaluation in standard adult competency proceeding and standard juvenile competency proceedings. Allowing courts to pay above the set rates for extraordinary circumstances. Requiring circuits to issue a comprehensive written policy to document rates, policies, and procedures relating to expert witnesses, but to allow circuits to choose the form of the written policy. Developing an educational component for circuit court administration staff regarding expert witness policies and practice, and an educational program for judges. This issue was referred to the Office of the State Courts Administrator for further consideration. The Workgroup also created a reference tool in the form of a decision tree for judges to use when appointing experts. The TCBC and TCP&A have concurred with the Workgroup on all proposed operational and policy recommendations. These issues are being recommended to the Supreme Court for approval. Page

6 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup Statutory Solutions The Workgroup recommended changes to the following seven statutory sections to better clarify ambiguities in the statutes, identify payment responsibilities, and to implement policy recommendations of the Workgroup. The Workgroup also acknowledged there may be corresponding rule changes needed if the statutes are revised. Specifically, the Workgroup recommended revising the following statutes as described in the body of the report: Adult Competency (ss..,., and., F.S.) Forensic Services for Intellectually Disabled or Autistic Defendants (ss..-, F.S.) Sentencing Evaluation (ss.. and., F.S.) Death Penalty Intellectual Disability (s.., F.S.) Juvenile Competency Mental Illness and Intellectual Disability or Autism (s.., F.S.) Developmental Disabilities (s.., F.S.) Guardianship Examining Committee (s.., F.S.) The TCBC and TCP&A have concurred with the Workgroup on all proposed statutory changes. These issues are being recommended to the Supreme Court for inclusion in the judicial branch legislative agenda. Page

7 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup SECTION ONE: HISTORY AND BACKGROUND Over the past fiscal years, concerning trends related to the trial courts due process (expert witness, court interpreting, and court reporting) contractual budgets have been identified. In particular, although circuit and county due process-related cases have been declining, some circuits have been experiencing increased contractual expenditures with significant increases in court interpreting and expert witness expenditures. In FY -, multiple circuits with due process deficits sought access to the statewide due process reserve managed by the Trial Court Budget Commission (TCBC) resulting in the depletion of the reserve. The TCBC activated steps to replenish the reserve through a transfer of unobligated funds from the trial courts. Concurrent with the depletion of the due process reserve, at the end of the fiscal year, the judicial branch often reverts due process funds to the state. Appendix A provides a historical overview of the due process reserve and deficits. In order to better strengthen the reserve and manage end-of-year reversions, the TCBC approved revisions to the funding methodologies used to determine circuit contractual allotments and the manner in which contractual funds are distributed to the circuits. Fiscal Year - expenditures were closely monitored throughout the year, as shown in Table, to determine if sufficient funds were available to the circuits, or if additional funding would need to be accessed from the due process reserve, or requested as a legislative budget request. Table. Fiscal Year - Due Process Contractual Allotments and Estimated Expenditures FY - Beginning Allotment FY - Estimated Expenditures Difference Expert Witness $,, $,, $, Court Interpreting $,, $,, ($,) Court Reporting $,, $,, $, Total $,, $,, ($,) Beginning allotments as of July,. Does not include allotments for Remote Interpreting and OpenCourt. A total of $, (Remote Interpreting) and $, (OpenCourt) were allocated from Due Process funds for FY -. FY - Estimated Expenditures, as of April, were determined based on applying the FY - Estimated Percent of Total Expenditures to the FY - July - March Expenditures. In addition to the changes in fiscal policies, the members of the TCBC s Executive Committee, at their April,, meeting, extensively discussed the potential reasons for the increased expenditures and discussed the importance of better managing resources to minimize reversions. Several observations were made including the following: Circuits have different models and practices for delivering court reporting services. For example, some rely more heavily on stenography while others prefer digital technology, and some circuits use a staffing model while others prefer a contractual model. In Page

8 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup addition, Supreme Court Administrative Order AOSC- permits circuit variations in the types of proceedings for which stenography or digital court reporting (DCR) is used. Some circuits have indicated additional reliance on contractual services to meet court interpreting needs amid difficulties in recruiting and retaining qualified court interpreters resulting in increasing contractual expenditures. Some circuits reported they were experiencing a shift in expert witness costs as the Office of the Public Defender will forego confidentiality in favor of having the courts order and pay for the competency evaluations. There are instances in which, under the state s policy of having the Offices of Public Defender and the Offices of State Attorney share costs with the courts, the level of court reporting transcription services provided by the courts to the public defenders and state attorneys does not match the amount of funds transferred to the court system s budget. The Executive Committee concluded the provision of due process services merited thorough study in order to better position the TCBC to make decisions on due process legislative budget requests, the allocation of funds among the circuits, and management of the statewide reserve. Recognizing the provision of these services presents both fiscal and policy considerations, the members recommended creating a joint workgroup, with representatives from both the Commission on Trial Court Performance and Accountability (TCP&A) and the TCBC. In response, the chairs of the TCBC and the TCP&A created the joint Due Process Workgroup (Workgroup) (see Appendices B, C, and D), comprised of four members from the TCBC and four members from the TCP&A. The Workgroup was charged with cataloging due process delivery practices among the circuits; considering the extent to which, absent current statewide standards, due process standards should be employed; identifying drivers affecting expenditures and techniques to manage costs; reviewing circuit practices under the cost-sharing relationship with public defenders and state attorneys; developing ideas for consideration by TCBC s Funding Methodology Committee on ways to approach allocation of resources; and exploring ways to enhance the estimation of due process funding needs for the courts and its justice system partners to the Legislature. In order to provide specific recommendations, the Workgroup plans to address each element individually. Due to the significant increase in expenditures from FY - to FY - (an increase of approximately percent) and immediate concerns regarding changes in practices by other stakeholders, expert witness was determined as the first element to be addressed. The Workgroup held an in-person meeting in Orlando, Florida, on vember,, to initiate discussion of expenditure trends, budget and operational issues, and to determine the scope of the work. Research into previously documented concerns submitted by various circuits revealed common factors among the circuits as shown below in Table. Page

9 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup Table. Expert Witness Concerns by Circuit and Topic Circuit Circuits Experiencing Concerning Trends in Expert Witnesses s Increasing s/insufficient Funding Ambiguity in Statutes/Rules/Ordinances Payment Responsibility te: Documented concerns were not available for Circuits,,,,,, and. Specific concerns noted by the Workgroup include the following: Reimbursement Practices Increasing s and Insufficient Funding (Reported by out of Judicial Circuits) Procedural changes for requesting competency evaluations some defense parties choose not to retain their own experts, foregoing confidentiality of the findings. Increases in the number and complexity of competency exams. Circuits exceeding budget allotments, with many transferring funds from other elements or turning to the due process reserve. Ambiguity in Statutes, Rules and Ordinances (Reported by out of Judicial Circuits) Authority for appointment and payment of expert witnesses when there is no express grant of statutory authority. Appointment of expert for determination of need for specialized treatment at sentencing. Testimony of competency experts at hearings and trials. Payment Responsibility (Reported by out of Judicial Circuits) Court s responsibility to pay for expert witness services versus the responsibility of other parties. Specific case types or types of evaluations that may be the court s responsibility for payment: o County Ordinances o Baker and Marchman Act o Evaluations of Insanity Page

10 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup o Jimmy Ryce cases Office of Public Guardianship s authority for handling cases. Reimbursement Practices ( Circuit) Wide variations in allowable rates and reimbursable activities across circuits. Flat fees versus hourly rates. Reimbursement of travel, testimony (in-court or in a deposition), waiting to testify, preparation and consultation with attorneys. One of the prominent areas of concern discussed by the Workgroup was the increasing costs in expert witness expenditures. Contractual expenditures for expert witnesses have steadily increased beginning in FY - ($,,) through FY - ($,,). This represents an increase of. percent over fiscal years (see Appendix E). In conjunction with the steady increase in costs, the number of expert witness evaluations, as represented through the OSCA Uniform Data Reporting (UDR) database, have also increased by. percent over the same timeframe, indicating increased demand for expert witness services provided by the trial courts. Although the TCBC determines the yearly circuit allotments of contractual funds using standard funding formulas for calculating circuit need, the circuits determine how expert witness services, that are the responsibility of the courts, are obtained and paid. It is the belief of the trial courts that local circuits can best determine the provision of services based on the local environment. As a result, wide variations in allowable rates and reimbursable activities exist across circuits. This variation can be demonstrated in the range of costs-per-event compared across circuits (see Appendix E). The Workgroup also considered previous work conducted by the TCP&A in evaluating the provision of expert witness services in the trial courts. In June, the TCP&A developed Recommendations for the Provision of Court Appointed Expert Witness Services in Florida s Trial Courts. The report is currently pending submission to the Supreme Court for approval. Recommendations by the Workgroup are intended to build upon and complement the TCP&A s report. The Workgroup held several meetings, both in-person and telephonically, from vember through vember in a continual effort to collect data, review administrative policies and procedures, and develop operational and statutory solutions. Results of the Workgroup s research, analysis of invoice and survey data, and recommended solutions are discussed further in the following sections. The recommended operational changes and proposed solutions have been approved by both the TCBC and the TCP&A. SECTION TWO: CHARGE AND GOAL OF THE WORKGROUP The Due Process Workgroup held their first meeting on vember,, at which they developed a work plan (see Appendix F). The expert witness element was identified as the priority issue as FY - saw a percent increase in expenditures from the previous year, with circuits either transferring funds from other due process elements or turning to the due Page

11 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup process reserve. Once the expert witness element has been addressed, the Workgroup will focus on the court interpreting and court reporting elements, respectively. Included in the work plan are concerns affecting all due process elements as well as issues specific to the expert witness element. The general objectives for all due process elements is to identify factors affecting the cost of providing court reporting, court interpreting, and expert witness services and to develop comprehensive fiscal and operational recommendations for the provision of all services. The Workgroup elected to examine the delivery of services in relation to the current standards and best practices; review the efficiency and effectiveness of service delivery methods, given current funding levels; develop recommendations for fair allocation of resources and containment of costs; develop recommendations relating to statutory, rule, or other policy changes; and determine an appropriate level of resources. The Workgroup identified the most pressing issues affecting expert witness expenses and service delivery, such as: Services paid for by the court vary across the state by case type, case phase, type of evaluation, etc. Rates paid vary widely for the same services and include flat fees and hourly rates and compensation policies for time spent on testimony, depositions, travel, and preparation. Service delivery models vary in the use of contracted workers versus full time equivalent (FTE) positions. The number of experts consulted per evaluation and the use of examining committees differ by circuit and individual judge. Changes in statutory requirements have affected service delivery and costs to varying degrees. Variations exists in actual practices, compared to proposed standards and best practices and there may be a need for standardization and education. Changes in practices by stakeholders may have resulted in an increase in requests for court-ordered evaluations. To address these concerns, the Workgroup identified the following tasks and questions: Catalogue due process delivery practices among the circuits to determine the extent to which, where there are not currently statewide due process standards, standards should be considered. Identify drivers affecting expenditures and techniques to optimize services. Identify TCBC policies and decisions that affect services and rates. Identify the potential impact of the pending TCP&A report, Recommendations for the Provision of Court Appointed Expert Witness Services in Florida s Trial Courts, on services provided and rates used. Determine services provided (case type, phase or type of evaluation) and determine what is currently being paid for by the courts. Page

12 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup Determine rates. Determine what types of evaluations have set rates and if they are hourly or flat rates. Do circuits pay for travel time or per diem, time to testify in court or via telephone? What instrument sets the rates? Are there economies of scale related to urban versus rural areas, circuit size, or regional practices? Are standard, statewide rates a feasible option? Determine staffing models. What variations in staffing models exist? Are any changes needed? Determine statutory requirements. What recent changes have affected the cost of providing expert witnesses? Are changes needed in statutory language? Determine demands of external stakeholders. How have practices of the public defenders and state attorneys affected the courts costs in providing expert witnesses? What is the impact of public guardianship offices and use of guardian advocates and guardianship examining committees? The following deliverables were determined by the Workgroup: Determine if sufficient funding of due process elements for the trial courts exists. Update existing payment obligation matrix to clearly define responsibility for payment and consider proposing changes to current statutes, rules, or other policies. Create an inventory of current service delivery models, resources, policies, and procedures by circuit. Determine the impact of costs of alternative staffing models, if needed. Determine costs related to operational and procedural structure. For example, a unit cost analysis has been created. Consider new funding formulas or alternative staffing models and determine the equitable distribution of resources through new funding formulas. Develop proposed statutory changes. Determine cost containment strategies. Determine sufficient resources for the trial courts in out years. Determine appropriate data measurements and methods of providing data to circuits. Prepare usage and expenditure reports for the TCBC, chief judges, and trial court administrators. Determine the need for emergency funding for the trial courts in FY -. Recommend issues outside the scope of this workgroup to be referred to other commissions, committees, and workgroups, if needed. Prepare status update reports and final report. In order to implement these fiscal, policy, and operational changes, the Workgroup determined that recommendations for a legislative budget request or any associated statutory changes would be considered for the legislative session of. Page

13 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup SECTION THREE: RESEARCH AND DATA To accomplish the general objectives, the Workgroup directed staff of the Office of the State Courts Administrator (OSCA) to gather information through a variety of methods. A. Survey of Court Administration Operations In February, OSCA staff distributed a -question survey to gather information on current policies and practices as they relate to expert witness events. Responses were received from all judicial circuits, which provided insight into rules on appointing experts, establishing pay rates, and overall circuit operations (Appendix G). An analysis of survey responses indicated most circuits have a formal written policy that governs use of expert witnesses in the circuit. In addition, most circuits follow statutes and rules in determining how many experts to appoint, but interpretation of the statutes and rules may be different and may lead to inconsistencies in appointment practices across circuits. Many circuits report having factors unique to their circuit which contribute to increased expert witness expenditures, and several circuits reported changes in the practices of outside entities have affected their expenditures. The survey was a valuable tool for identifying the differences in the trial courts which formed the basis for the solutions recommended by the Workgroup discussed later in this report. B. Expert Witness Invoice Review Results The Workgroup also directed staff to review a sample of expert witness invoices to determine what types of services were being performed within the circuits and what rates are paid for those services. Staff reviewed a representative random sample of of the total, invoices that were paid during FY -. The invoices were selected using a statistical random sampling technique to ensure that every invoice had an equal chance of being selected. The methodology ensured a representative sample of the total population of invoices was reviewed with a percent confidence level. The table below provides a summary of the number of invoices reviewed by area of expertise as well as a comparison to corresponding Uniform Data Reporting (UDR) event data. Table : Summary of Invoice and Event Data Type of Invoice Reviewed Number of Invoices Percent of Total Number of UDR Events Percent of Total Adult Competency.%,.% Guardianship Examining Committee.%,.% Juvenile Competency.%,.% Developmental Disabilities N/A N/A.% Developmental Disability Examining Committee.%.% Examinations.%.% Unknown.% N/A N/A Total.%,.% Page

14 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup From the information gathered in the study, staff compiled a summary analysis by type of evaluation as illustrated in the table below. The analysis shows the type of rates paid (flat, hourly, or both) based on either ranges or the specific amount of the payment. The number of invoices are also presented by circuit within rate ranges. Additionally, for informational purposes, circuit-specific summaries have been provided in Appendix H. Table : Statewide Rate Comparison for Adult Competency Evaluations C. Comparison of Policies of Florida Government Entities and State Courts Staff of OSCA collected information on the policies and practices of other Florida government entities as well as other state courts. The information collected in summarized below. Florida Government Entities Florida Department of Children and Families The Department of Children and Families noted they do not pay for adult forensic evaluations but that they contract with Twin Oaks Juvenile Development, Inc., (with offices statewide) to perform some of their juvenile competence examinations at the rate of $ per evaluation. They also noted there have been times, due to staff shortages, when they have contracted with independent experts to perform competency evaluations for residents of the state hospital at the rate of $-$ per hour. Florida Public Schools School districts employ school psychologists to assist with evaluations for the purpose of developing an appropriate educational plan. The parent or guardian of the student can also submit reports from independent experts they have retained at their own expense. Judicial Administrative Commission The General Appropriations Act establishes rates for expert witnesses in Jimmy Ryce proceedings at $ per hour. rates for court-appointed counsel and indigent for costs defendants are set by the circuit s Indigent Services Committee and those rates vary widely, with both hourly and flat rates ranging from $ to $ for similar services (Appendix I). Page

15 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup Social Security Administration The Social Security Administration relies on court determinations of competency or capacity and employs evaluators to make decisions on granting and continuing to pay benefits. Their evaluators are employees of the SSA and are not licensed medical professionals. State Courts Alaska Expert witness fees, including travel, expenses, and per diem, shall be paid by the judiciary only for witnesses called or appointed by the court. In all other cases, they shall be paid by the parties. The Rules of Administration also authorize witness fees to be paid for attending court to testify. The standard attendance fee is $. per day, or $. per day if the attendance will exceed three hours. Colorado Colorado has provisions for payment of hourly rates (shall not exceed $ per hour) and for maximum payments for sanity and competency evaluations (maximum of $, without testimony; $, with testimony). Payment for preparation time and in-court testimony is authorized at percent of the authorized hourly rate; payment for travel time and/or time spent waiting to testify is authorized at percent of the authorized hourly rate and may not exceed hours. Expenses for food and lodging shall not be compensated or reimbursed. Requests to exceed the hourly rate must come in the form of a motion prior to services being rendered. Connecticut The court shall determine a reasonable fee to be paid to the practitioner which will then be taxed as costs in lieu of all other witness fees and paid to the practitioner. Experts called to testify in court can be compensated for appearance fees and travel in accordance with state travel and reimbursement rules. Michigan Expert witness fees, including fees to testify, are determined by the judge assigned to the case. Determinations of criminal responsibility are handled by the state s Center for Forensic Psychiatry and determinations of competency are handled by the Center for Forensic Psychiatry or other facility certified by the state department of mental health. Minnesota The State Courts Administrator establishes a maximum allowable rate and then each judicial district establishes a rate within that limit. The rates are $ per hour in a metro area and $ per hour in a rural outstate area. If the judge determines testimony is necessary, the maximum allowable rate is $ per hour. The court is permitted to enter into contracts for hourly or flat rates, but they must not exceed the maximum allowable rates. New Jersey The court does not appoint expert witnesses to perform competency evaluations for criminal proceedings or uncontested guardianship petitions; instead, each party is responsible for retaining their own experts and submitting reports to the court. In contested guardianship actions, the court may appoint an expert whose fees will be charged back to one of the parties in the final judgement. Evaluations for residents of the state forensic hospital are performed by staff psychologists. New York Expert witness rates are set by the individual court or county of jurisdiction, with a statutory cap of $,. The court can award a higher amount in extraordinary circumstances. The state Administrative Office of the Courts issued an administrative order in setting Page

16 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup hourly rates for court-appointed psychiatrists and other non-lawyer professionals, and those rates are still in effect. Texas Texas has no set statewide rate for expert witness fees, instead each district sets their own rates and policies. The Texas Indigent Defense Commission s attorney fee schedule includes information on allowable expert witness fees for each jurisdiction. A small sample includes Dallas County, which allows counsel to be reimbursed for expert witness fees at the expert s actual hourly rate, not to exceed a maximum of $, and Travis County (Austin) simply specifies that all reimbursements require prior written authorization. D. Development of Solutions Following adoption of the work plan and development of the research goals on vember,, the Workgroup met on April,, and again on May,, to review updated expenditure and event data, discuss specific research performed by OSCA staff on expert witness costs and operations, and determine potential process improvements and cost containment mechanisms. Each issue discussed by the Workgroup was considered for the type of approval that will be required for implementation and the type of recommendation that will be made. Type of Approval Required for Implementation Trial Court Budget Commission and Commission on Trial Court Performance and Accountability approval only. Supreme Court approval, in addition to above approval. Legislative approval, in addition to above approval. Referral of issue to another entity. Type of Recommendation Standard Best Practice In addition, analysis of the data gathered in the research projects discussed above resulted in the development of recommended solutions the Workgroup classified as either administrative, fiscal, operational, or statutory. The recommendations were approved by the TCP&A and the TCBC at their June,, and June,, meetings and are discussed in detail in the sections below. SECTION FOUR: ADMINISTRATIVE SOLUTIONS The administrative solutions discussed below primarily affect circuit court administration and are designed to improve the process of expert witness payment, contracts, and data collection. These solutions required approval by the TCBC and TCP&A and implementation by OSCA and the circuits. Page

17 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup A. Revisions to the Statewide Expert Witness Invoice Template Requiring the use of the Uniform Invoice for Expert Witness Services The Office of Finance and Accounting within OSCA maintains a Uniform Invoice for Expert Witness Services and provides it to the circuits for their use in submitting requests for payment. The form is not mandatory, and not all circuits use it; however, during the invoice review exercise, it was noted that information reported on the uniform invoice was more consistent than if the expert used an alternate invoice system. To ensure requests for payment from expert witnesses are submitted with consistent data elements such as the date of service, case number, division of court, defendant s name, and type of evaluation performed, the Workgroup recommended requiring the use, exclusively, of the Uniform Invoice for Expert Witness Services as a standard. Updating the Uniform Invoice for Expert Witness Services The uniform invoice template was revised to include data elements that will more closely align the invoice with the web-based Uniform Data Reporting (UDR) data collection system, which will enhance the quality of information reported and improve consistency in budgeting and payment for expert witness services. Updates to the template include changes designed to assist in better determining the type of evaluation performed, the division of court in which the case is being heard, and the specific activity related to the expert s evaluation. In addition, the new template provides a way to document payments for both flat and hourly rates and allows vendors to use the same form for work associated with multiple cases by requiring the case number and defendant name for each reported event (see Appendix J). To gain input from circuit staff, the draft invoice was presented and discussed at the statewide Administrative Services Division Training in April, and a statewide conference call was held in May to gather additional feedback. The updated template was approved by the TCBC and TCP&A at their meetings on June,, and June,, respectively. Circuits were instructed to begin using the new invoice on July,, to coincide with the start of the new fiscal year. B. Revisions to the Uniform Data Reporting system Updating the Uniform Data Reporting (UDR) System and Instructions The Uniform Data Reporting, or UDR, system allows the court system to count events related to due process services (court reporting, court interpreting, and expert witness) as well as mediation and child support cases. The system consists of an online data input portal as well as instructions for counting each element. Circuit staff submit their monthly data through the portal and the information is collected and compiled for use in to developing legislative budget requests and determination of resource allocations. The Workgroup determined the data elements collected in the UDR system should be updated to more accurately reflect the types of expert witness events occurring in the trial courts and be more consistent with the updated uniform invoice and that and modifications to the portal should make reporting events easier for circuits and will improve data quality. In addition, each element Page

18 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup reported in the UDR system has associated instructions which were updated to reflect changes to the reporting categories. The TCBC and TCP&A approved the recommended updates to the UDR system reflected in Appendix K and the associated instructions and referred implementation of the changes to the OSCA. The changes were implemented on July,, and circuits began reporting data in the new format to coincide with the start of the new fiscal year. Training on Uniform Data Reporting Results from the circuit survey and discussions with circuit staff revealed a need for training in UDR event counting and reporting to improve data quality. The TCBC and TCP&A approved the Workgroup s recommendation to develop a UDR training program for circuit staff. In response, OSCA staff developed an electronic training module and disseminated it to circuit staff in October. Data Quality Another issue recognized by the Workgroup was the lack of a formal process for auditing UDR data. Each circuit reports data to OSCA, and the data is published online, but staff and workload constraints have precluded a formal audit to date. To improve data quality and reliability, the Workgroup recommended implementation of a routine audit process for UDR data. The TCBC and TCP&A approved the recommendation and referred implementation to OSCA and a formal audit process is currently under development. C. Contracts The General Services unit within OSCA maintains standard contractual agreement forms, available to circuits for use, but does not have a contract form that specifically addresses expert witnesses. Additionally, not all circuits use contracts for expert witness services, and the current state policy requires a contract only when the service provider will be paid over $, per fiscal year. Processes for expert witness payments may be enhanced by developing a uniform contract template to be used statewide. The Workgroup recommended development of a uniform expert witness contract template and noted circuits should consider its use as a best practice. Following approval by the TCBC and TCP&A, implementation of this issue was referred to OSCA and a contract template is currently under development. SECTION FIVE: FISCAL SOLUTIONS The Workgroup developed fiscal policy solutions designed to assist circuits with identifying the responsible party for payment for different types of evaluations or portions of the same evaluation and to establish reasonable rates of pay based on comparable services throughout the state. These recommended solutions require a combination of approval for adoption and implementation. Page

19 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup A. Payment Responsibility Matrix In, and again in, the then-chairs of the TCBC sent memorandums to the chief judges and trial court administrators advising them on issues related to the payment of expert witness fees, including statutory language changes and a matrix detailing the appropriate budget to be charged for certain case types. Court administration staff have referenced the matrix over the years and have posed questions when they encounter scenarios that are not addressed. In vember, the Workgroup directed staff, including OSCA s Office of the General Counsel, to update the matrix. The revised Payment Responsibility Matrix - Expert Witness (Appendix L) represents current law. The guiding principle to determine the court s responsibility to pay is whether the appointment is made pursuant to an express grant of statutory authority. When there is no express grant of statutory authority, the question of payment is determined by whether the expert was appointed to advise the court or whether the expert was retained or requested by a party advocating a particular position. Court expert witnesses are neutral witnesses, and the court pays for their services. A witness produced to prove insanity, as an example, is brought in by a party to advocate that party s position. Those witnesses are paid by the party even if the judge ultimately makes the appointment. The updated document reflects current statutory and corresponding rule provisions. However, there are statutory provisions that are ambiguous, need to be corrected due to errors, or may need to be amended to improve the process. As the Workgroup continued to explore process improvements to expert witness services, they developed recommended statutory revisions that, if approved, will necessitate updates to the matrix. Further, this document does not represent the universe of payment responsibilities that exist, and within the identified case types there may be factual, legal, or other unique circumstances that affect the decision on payment responsibility. Thus, the document is designed to be a guide but not necessarily definitive. The updated matrix was approved by the TCBC and the TCP&A, acknowledging as policy decisions are codified and potential statutory changes made, the document may again need to be updated. The matrix was sent to the chief judges of the circuits with a request they share the document with their judges and staff. Additionally, the Workgroup recommended sharing this document with the Offices of the State Attorney, the Offices of the Public Defender, the Justice Administrative Commission, the Agency for Persons with Disabilities, and the Department of Children and Families, to facilitate common understanding on payment responsibility. B. Proposed Rate Structure for Expert Witness Services The Workgroup discussed development of a statewide rate structure for expert witness services as a tool to guide circuits on reasonable fees and to serve as a cost containment mechanism. The Workgroup reviewed the findings of the and Florida Due Process Rate studies and researched other government entities expert witness policies and fees. They also evaluated information provided in the expert witness invoice review identified several factors that warrant careful consideration in developing a proposed statewide rate structure. Such considerations included the following: Establish statewide rates for different types of expert witness examinations? Page

20 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup Establish a single flat rate, range of rates, or a maximum allowable rate? Allow compensation for time spent travelling as part of the recommended rate or require that it be billed separately? If billed separately, should minimum requirements be established in order to receive travel compensation? For example, should compensation be paid when the expert travels outside of the county of residence or over a set number of miles? te: Vendors may still claim statewide allowable mileage, meal, hotel costs, and per diem costs. Establish a no show/loss of income rate? Should the expert only be allowed one no show/loss of income payment per evaluation? Establish a follow-up evaluation rate when the same expert is used for a follow-up evaluation? Establish an hourly rate for in-court testimony, ordered by the court? Does the rate include wait time or should a different hourly rate be established? The Workgroup discussed the following options in developing their rate structure recommendations (for additional detail, see Appendix M): Option Funding Cap: Establish a maximum allowable rate for evaluations by type. Does not include a separate rate for travel time as it is included in the rate for evaluations. Various maximum allowable rates are established for follow-up evaluations and a maximum allowable no show/loss of income. Allows for a maximum hourly rate of $ for in-court testimony (including wait time) for adult competency examinations ordered by the court. Option Funding Cap and Travel Time: Establish a maximum allowable rate for evaluations by type. Allows for an additional maximum allowable flat rate for travel time. Various maximum allowable rates are established for follow-up evaluations and no show/loss of income scenarios. Allows for an hourly rate of $ for in-court testimony (including wait time) for adult competency examinations ordered by the court. Option Range of Rates: Establish a range of allowable rates to be used for evaluations and follow-up evaluations by type of evaluation. Establish a maximum allowable flat rates for no show/loss of income and travel time, and an hourly rate of $ for in-court testimony (including wait time) for adult competency examinations ordered by the court. Option : Establish a rate structure based on components of the options above or develop other options. The Workgroup considered these four options for a proposed statewide expert witness rate structure and recommended Option (illustrated in Table below), to establish a range of allowable rates to be used for evaluations and follow-up evaluations by type of evaluation and expert. The rates recommended by the Workgroup reflect the average rates that are currently being paid around the state as determined through the review of invoices discussed previously (see Appendix H). In addition to the proposed range of rates for evaluations, the Workgroup recommended a maximum allowable flat rate for no show based on percent of the initial evaluation rate and an hourly rate of $ for in-court testimony (including wait time and a - hour cap) for adult competency examinations ordered by the court. The TCBC and TCP&A concurred with the Workgroup s recommendations for approval by the Supreme Court. Page

21 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup Table. Due Process Workgroup Recommended Expert Witness Rate Structure Type of Evaluation Range of Allowable Rates for Evaluation* Maximum Allowable Travel Rate Range of Allowable Follow-up Evaluation Rates (With same expert) Adult Competency $-$ $-$ Juvenile Competency $-$ $-$ Guardianship Examining Committee Ph.D., M.D., or D.O. $-$ $-$ ARNP, RN, MSW, LPN, LCSW, Lay Person $-$ $-$ Developmental Disability Examining Committee Ph.D., M.D., or D.O. $-$ $-$ ARNP, RN, MSW, LPN, LCSW, Lay Person $-$ $-$ Maximum Allowable Show Rate % of Evaluation Rate Maximum Hourly Testimony Rate, Court Ordered (Including wait time, hour cap) $ *te: Maximum Allowable Rate for Evaluation recommendation cannot be exceeded unless extraordinary circumstances exists and are approved according to circuit policy. SECTION SI: OPERATIONAL AND POLICY SOLUTIONS The Workgroup identified potential considerations regarding policy and operational changes that emerged from discussions, information gathered from results of a survey to circuits, and additional concerns expressed by circuits. Each issue discussed by the Workgroup was considered for the type of recommendation made: either a proposed standard, which is mandatory, or a proposed best practice, which is a suggested improvement. The TCBC and TCP&A approved the Workgroup s recommendations for all operational/policy changes discussed below. These recommended solutions require a combination of approval for adoption and implementation. A. Selection of Experts Survey responses received from circuits indicated that, when selecting experts for appointment, most circuits consult a registry maintained by their Office of Court Administration. Several circuits use a rotating wheel, selecting the next available expert on the registry; others allow the presiding judge to select any expert from the registry. Of the circuits that use a registry, most have lower average costs-per-event and have stated the registry has been a useful tool in containing costs. Some circuits reported their standard practice is for the judge to select the expert by consulting the attorneys or that selection practices vary by judge or other factors. The table below shows current circuit practices when selecting experts to appoint. Page

22 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup Table : Selection of Expert Witnesses Methods for Selecting Experts How is the expert selected? Do you maintain a list of experts or a wheel for your circuit? Registry Registry with Rotation/Wheel Attorney Request Judge/Attorney Selection Based on Registry Circuits Responding Number Percent.%.%.%.%.%.% The circuits that do not use a registry of experts and do not follow a standard selection practice have higher average costs-per-event than those that do use a registry. The Workgroup recommended, as a standard, requiring circuits to select experts from a registry maintained by the circuit. B. Number of Experts to Appoint Many circuits reported relying on statute or rule for determining how many experts to appoint in each case. However, there are different interpretations of how many experts to appoint for initial competency evaluations. For example, statutory language authorizes one expert to be appointed for standard adult competency evaluations in certain circumstances (s.., F.S.), but several circuits reported having local policies to appoint two experts at the first request for an evaluation. The table below shows the different circuit practices followed when determining how many experts to appoint at the outset. Table : Determining How Many Experts to Appoint Guidance Followed When Selecting Experts What guidance is followed in your circuit when determining how many experts to appoint for a case? Statute/Rule Judge Decides Circuits Responding Number Percent.%.%.%.% The Workgroup recommended, as a standard, a policy requiring courts to initially appoint one expert for the evaluation in standard adult competency proceeding and acknowledged that clarification of the statutes may be helpful to distinguish requirements related to commitment from requirements related to non-commitment decisions. The Workgroup further recommended, as a standard, a policy that courts initially appoint one expert for the evaluation in standard juvenile competency proceedings. This would require a change to statute and rule. C. Payments in Extraordinary Circumstances Most circuits set limits for expert witness payments either through specific language in their administrative order or simply by using flat rates for each evaluation. Some circuits do not have a procedure in place for identifying unusual rates or an approval process for authorizing payment of these rates. Several circuits indicate having a policy that identifies maximum rates and a procedure for authorizing payments in extraordinary circumstances as an effective cost Page

23 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup containment measure. Some circuits require judicial approval of extraordinary rates in advance of the service being rendered and some require administrative approval. The tables below are excerpts from the circuit survey regarding extraordinary payments. Table : Defining Extraordinary Rates Identifying Extraordinary Rates How do you define extraordinary rates? Anything in Excess of Set Rates Determined by Case- Specific Factors t Defined Circuits Responding Number Percent.%.%.%.% Table : Payment of Extraordinary Rates Extraordinary Rate Payment Procedures Do you have procedures for extraordinary rates or circumstances? Administrative Judicial Approval Procedure Approval/ Circuits Responding Number Percent.%.%.%.% The Workgroup acknowledged that circumstances will arise that require payments that exceed those prescribed in the recommended rate structure and recommended, as a standard, allowing courts to pay above the set rates for extraordinary circumstances. D. Circuit Administrative Order Most circuits already employ some form of written policy that governs expert witness practices. As displayed in the table below, percent of circuits use an administrative order; percent use another format; and percent have no formal written policy. The Workgroup discussed recommending each circuit adopt a comprehensive administrative order that details their policies on use and payment of expert witnesses. The order may include pay rates, policies on loss of income ( no shows ), procedures for addressing extraordinary rates or circumstances, policies on payment for travel and per diem expenses, policies and procedures for submission of invoices, and guidance on the evaluations for which the court is responsible for payment. Table : Written Policies Governing Expert Witnesses Written Policies on Expert Witnesses Administrative Order Written Policy Written Policy Circuits Responding Number Percent.%.%.%.% The Workgroup recommended, as a standard, requiring circuits to issue a comprehensive written policy to document rates, policies, and procedures relating to expert witnesses, but to allow circuits to choose the form of the written policy. Page

24 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup E. Education and Training The survey responses from circuits and the invoice review exercise highlighted the differences in circuit practices as they relate to appointment of experts, use of administrative orders and contracts, billing and invoicing, and uniform data reporting. The Workgroup determined that developing an educational component for circuit court administration staff regarding expert witness policies and practices would be beneficial. They also discussed developing an educational program for judges and referred the development of an educational component to the Office of the State Courts Administrator for further consideration. The Workgroup also created a reference tool in the form of a decision tree for judges to use when appointing experts. The decision tree illustrated in Table is designed to reflect the key policy recommendations of the Workgroup, most notably the concept of appointing one expert initially for all adult competency evaluations. Further, the decision tree addresses factors that lead to the appointment of more than one expert. The decision tree does not attempt to capture every conceivable variation in how competency issues may be raised or challenged in cases. Rather, it serves as a general reference guide for appointment decisions if the Workgroup s policy recommendations are adopted. The Workgroup convened a committee of advisory judges from around the state with experience and expertise in the process of appointing expert witnesses to offer feedback that assisted the Workgroup in finalizing the decision tree and other recommendations for inclusion in this report. Members of the committee included: Hon. Denise Ferrero, County Judge, Eighth Judicial Circuit; Hon. Olga Levine, County Judge, Seventeenth Judicial Circuit; Hon. Robert Luck, Circuit Judge, Eleventh Judicial Circuit; Hon. Ashley Moody, Circuit Judge, Thirteenth Judicial Circuit; Hon. Nushin Sayfie, Circuit Judge, Eleventh Judicial Circuit; Hon. Mark Speiser, Circuit Judge, Seventeenth Judicial Circuit; Hon. Samantha Ward, Circuit Judge, Thirteenth Judicial Circuit. The advisory judges met by conference call three times in October. They had discussions about the Workgroup s recommendations (see summary in Appendix N). One issue identified by the committee related to Rule., Florida Rules of Criminal Procedure. It specifies what is needed from the defense attorney in order for the court to appoint an expert. It was noted that some judges may not adhere strictly to the requirements specified in Rule., and the issue should be referred as a judicial education item. The Workgroup met on vember,, by conference call, to discuss the summary of comments from the committee of judges, as the Workgroup reviewed and finalized their recommendations and report. Of significance, the Workgroup made revisions to the following decision tree chart, based on the comments of the committee. Page

25 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup Table : Decision Tree for Appointing Expert Witnesses for Adult Competency Evaluations Based on Workgroup Recommendations SECTION SEVEN: STATUTORY SOLUTIONS The Workgroup considered a number of statutory issues related to expert witnesses and recommended the following revisions. Some of the recommended revisions are technical in nature (e.g., correcting apparent errors or clarifying ambiguities in the statutes), while others represent policy decisions. The Workgroup also acknowledged there may be corresponding rule changes needed if the statutes are revised. The TCBC and TCP&A approved the recommended concepts proposed by the Workgroup A. Adult Competency (ss..,., and., F.S.) The statutes require the court to appoint no more than three experts to determine the mental condition of a defendant. Further, the statutes specify the court shall pay for any expert that it appoints by court order. If the defendant retains an expert and waives confidentiality of the expert s report, the court may pay for no more than two additional experts. Distinct from the evaluations, the statutes do not specify who pays costs related to testimony by these experts. Page

26 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup Despite the apparent intent to afford the court discretion to appoint between one and three experts, the statutes specify a defendant must be evaluated by no fewer than two experts before the court can commit the defendant or take other action authorized by chapter, F.S., which includes action less than commitment (e.g., community treatment). However, if one expert finds the defendant is incompetent to proceed and the parties stipulate to that finding, the court may commit the defendant or take action less than commitment without further evaluation. Thus, the statutes require evaluation by at least two experts to take action less than commitment when the parties do not stipulate to one expert s determination of incompetence. Further, when determining whether a defendant who fails to comply with the conditions of release now meets the criteria for involuntary commitment, the court shall hold a hearing. However, the statutes do not specify who pays for expert evaluations or testimony related to that hearing. The Workgroup recommended revising the statutes to: Specify unless an expert testifies regarding competency pursuant to an order from the court, the court does not pay for the expert to testify in court. Clarify the court initially only has to appoint one expert and may refrain from appointing additional experts until the findings of that evaluation are known and the parties decide whether to stipulate to them. Authorize the court to take action less than commitment based on the determination by one expert that the defendant is incompetent to proceed regardless of whether the parties stipulate to that determination. Specify the court shall pay for evaluations and testimony related to hearings on whether a defendant who fails to comply with the conditions of release now meets the criteria for involuntary commitment. B. Forensic Services for Intellectually Disabled or Autistic Defendants (ss..-, F.S.) The statutes require the court to appoint: One or two (if a party so requests) experts to evaluate whether the defendant meets the relevant definitions and is incompetent to proceed; A psychologist to evaluate whether the defendant meets the relevant definitions and is incompetent to proceed; and A social services professional to provide a social and developmental history. The Workgroup discussed whether appointment of some of these individuals should be discretionary. Further when determining whether a defendant who fails to comply with the conditions of release now meets the criteria for involuntary commitment, the court shall hold a hearing. However, the statutes do not specify who pays for expert evaluations or testimony related to that hearing. The Workgroup recommended revising the statutes to: Page

27 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup Make appointment of the psychologist and the social services professional mandatory and appointment of additional experts discretionary, paid for by the party who requests the additional expert. Parallel the adult competency statutes to provide for a stipulation process. Specify the court shall pay for evaluations and testimony related to hearings on whether a defendant who fails to comply with the conditions of release now meets the criteria for involuntary commitment. C. Sentencing Evaluation (ss.. and., F.S.) These statutes relate to appointment by the court of a physician to determine the mental condition of a defendant who alleges insanity as a cause for not pronouncing sentence or to examine a defendant for whom pregnancy is alleged as a cause for not pronouncing sentence. Both statutes specify the county shall pay the fees. The Workgroup discussed whether the defendant should be responsible for payment. The Workgroup recommended revising the statutes to: Provide the physician is retained by the defendant (rather than appointed by the court). Specify the defendant shall pay the fees. D. Death Penalty Intellectual Disability (s.., F.S.) This statute requires the court to appoint two experts to determine whether a defendant convicted of a capital felony and facing a sentence of death is intellectually disabled. The statute is silent as to payment responsibility. The Workgroup recommended revising the statutes to specify the court shall pay for the first two experts, regardless of indigence status. E. Juvenile Competency Mental Illness and Intellectual Disability or Autism (s.., F.S.) The statute requires determinations of competency to be based on findings by not less than two nor more than three experts appointed by the court. In contrast, the adult competency statute authorizes action based on evaluation by one expert when the expert finds the defendant is incompetent and the parties stipulate to that finding. In cases involving mental illness, the statute requires the Department of Children and Family to provide to the court a list of mental health professionals qualified to perform the evaluations. In cases involving intellectual disability or autism, the statute requires the court to order the Agency for Persons with Disabilities to examine the child, which may result in confusion on who should pay and is not consistent with the structure of comparable evaluation statutes that provide for the Agency to select the expert. Page

28 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup Additionally, the statute provides fees shall be taxed as costs in the case but does not specify payment responsibility prior to costs being recovered. Lastly, the statute specifies implementation is subject to specific appropriation, which contributes to payment uncertainty between the court and the Agency. The Workgroup recommended revising the statutes to: Parallel the adult competency statutes to provide for a stipulation process as an alternative to not less than two experts. Mirror the proposed revisions to the adult competency statutes to specify the court may take action less than secure placement based on one expert s determination that the juvenile is incompetent to proceed regardless of whether the parties stipulate to that determination. Clarify, in cases involving intellectual disability or autism, the Agency shall select the expert to examine the child, rather than examine the child itself. Specify the court s payment responsibility and remove or narrow the existing statutory language making implementation subject to specific appropriation. F. Developmental Disabilities (s.., F.S.) The statute specifies examining committee fees shall be paid from the general revenue of the county, which appears to be a lingering reference overlooked during implementation of Revision to Article V of the State Constitution. The Workgroup recommended revising the statutes to match current practice and specify the fees shall be paid by the court. G. Guardianship Examining Committee (s.., F.S.) The statute provides if the ward is indigent, fees for the examining committee will be paid by the state. The Workgroup recommended revising the statute to match current practice and specify the fees shall be paid by the court, if the ward is indigent. SECTION EIGHT: CURRENT STATUS AND NET STEPS As noted previously, the proposed recommendations of the Workgroup require varying levels of approval prior to implementation. Those recommendations that tend to be administrative in nature may be implemented based on the approval of the TCBC and TCP&A, while solutions related to statewide fiscal changes and operational and/or policy changes are being submitted to the Supreme Court for approval. Recommended statutory changes require both Supreme Court and legislative approval. Table provides a summary of the recommendations that have been implemented, those that have been referred to OSCA for development and implementation, and recommendations that are pending final approval from the Supreme Court. Page

29 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup Table : Current Status and Next Steps Summary Chart Workgroup Recommendations Current Status Next Steps Revisions to the Statewide Expert Witness Invoice Template Requiring the use of the Uniform Invoice for Expert Witness Services Updating the Uniform Invoice for Expert Witness Services Administrative Solutions Revised statewide invoice template have been implemented as a requirement July. Revisions to the Uniform Data Reporting system Updating the Uniform Data Reporting (UDR) System and Instructions Training on Uniform Data Reporting Data Quality Revised UDR system have been implemented July. UDR training module has been developed and distributed to circuit staff October. Implementation of a routine audit process for UDR data was referred to OSCA. An audit process is currently under development. Contracts Sample contractual agreement forms for expert witness services Recommendation for a uniform contract was referred to OSCA for implementation. A contract template is currently under development. Update Payment Responsibility Expert Witness Matrix Rate Structure Changes Fiscal Solutions A revised version of the matrix was approved by the TCBC and TCP&A and disseminated to the circuit chief judges in August. TCBC and TCP&A concurred with Workgroup s recommendations for a statewide expert witness rate structure. Implementation of a statewide expert witness rate structure is recommended to the Supreme Court. If recommendations are approved by the Supreme Court, provide sufficient time for the circuits to implement rate changes. Page

30 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup Workgroup Recommendations Current Status Next Steps Operational and Policy Solutions Selection of Experts Number of Experts to Appoint Payments in Extraordinary Circumstances Comprehensive Written Policy Governing Expert Witnesses Education and Training The TCBC and TCP&A have concurred with all proposed operational and policy changes. Implementation of operational and policy changes is recommended to the Supreme Court. Development and implementation of an educational component to be referred to OSCA. Statutory Solutions Adult Competency Forensic Services for Intellectually Disabled or Autistic Defendants Sentencing Evaluation Death Penalty Intellectual Disability Juvenile Competency Mental Illness and Intellectual Disability or Autism Developmental Disabilities Guardianship Examining Committee The TCBC and TCP&A have concurred with all proposed statutory changes. All proposed statutory changes are recommended to the Supreme Court for inclusion in the judicial branch legislative agenda. If accepted by the Court, proposed statutory language will be developed and submitted for legislative approval. Page

31 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup Commission on Trial Court Performance and Accountability (TCP&A) Pending Expert Witness Report The Workgroup acknowledged similar issues being addressed in the TCP&A s pending report on expert witnesses. In reconciling the recommendations of the two reports, it was evident that the majority of the issues considered by the two entities are consistent or complementary. However, the recommendations diverge in a few areas. Listed below is a comparison of the notable differences: TCP&A: Recommendations for the Provision of Court Appointed Expert Witness Services in Florida s Trial Courts Recommendations from the Joint Due Process Workgroup of the TCBC and TCP&A: Expert Witnesses in Florida s Trial Courts Registry and Selection of Expert Witnesses Proposed Standard of Operation Circuits shall develop a fair mechanism for the selection of court appointed expert witnesses. Proposed Standard of Operation Circuits shall develop an application and vetting process for selection of court appointed expert witnesses. Proposed Standard of Operation The OSCA shall develop and maintain an online registry of expert witnesses, by field of expertise, based on lists submitted by the circuits. The registry should indicate whether each expert is willing to travel to provide services in other circuits. Proposed Standard of Operation Require circuits to select experts from a registry maintained by the circuit. The Workgroup did not make recommendations as to how expert witnesses are selected, but rather left the selection to the discretion of the judge. Proposed Standard of Operation Circuits shall submit their current list of approved experts, their qualifications and approved fees to the OSCA, when requested. Funding/Payment Proposed Best Practice Circuits should set, by administrative order or standard contract, and standardized rates for expert witness services for each of the most commonly needed expert witness examinations. Proposed Standard of Operations Recommendations for a statewide expert witness rate structure. Circuits shall issue a comprehensive written policy to document rates, policies, and procedures relating to expert witnesses. Circuit may choose the form of the written policy. Page

32 Expert Witnesses in Florida s Trial Courts: Recommendations of the Joint Due Process Workgroup APPENDICES Appendix A Historical Overview of Due Process Reserve and Deficits Appendix B Letter from Judge Mahon to Judge Moreland Initiating the Due Process Workgroup Appendix C Letter from Judge Moreland to Judge Mahon Appointing Workgroup Members from the Commission on Trial Court Performance and Accountability Appendix D Letter from Judge Mahon to Judge Moreland Appointing Workgroup Members from the Trial Court Budget Commission Appendix E Events, Expenditures and per Event Chart Appendix F Due Process Workgroup Work Plan Appendix G Court Administration Expert Witness Survey Summary of Results Appendix H Analysis of Current Expert Witness Rates Appendix I Justice Administrative Commission Rates Appendix J Updated Uniform Invoice for Expert Witness Services and Associated Instructions Appendix K Updated Uniform Data Reporting Web-Based Input Screen Appendix L Expert Witness Payment Responsibility Matrix Appendix M Statewide Rate Structure Options Considered by the Workgroup Appendix N Summary of Expert Witness Committee of Judges Group and II Conference Calls Page

33 Appendix A TCBC Executive Committee April, Tallahassee, Florida Agenda Item III. Historical Overview of Due Process Reserve and Deficits Fiscal Year Beginning Reserve Due Process Deficits FY -,, (,) FY - FY -,, (,) (,) FY -,, FY -, (,) FY -, (,) S:\Due Process Deficit File\Due Process Reserve Analysis Page of

34 Appendix B May, Members The Honorable Mark Mahon Chair The Honorable Robert Roundtree, Jr. Vice-Chair Catherine Brunson, Circuit Judge Ronald Ficarrotta, Circuit Judge Frederick Lauten, Circuit Judge J. Thomas McGrady, Circuit Judge Wayne Miller, County Judge Debra Nelson, Circuit Judge The Honorable Diana L. Moreland Chair, Commission on Trial Court Performance and Accountability Manatee County Judicial Center Manatee Avenue West Bradenton, Florida Dear Judge Moreland: The Trial Court Budget Commission (TCBC) has identified some concerning trends relating to the due process budgets of the trial courts. In particular, although circuit and county due process-related filings have been declining, some circuits are experiencing increased expenditures. Most recently, multiple circuits with due process deficits sought access to the statewide due process reserve that the TCBC manages. As a result, the fiscal year - reserve is now depleted, and the TCBC has activated steps to replenish the reserve through a transfer of unobligated funds from the circuits. Gregory Parker, Circuit Judge Elijah Smiley, Circuit Judge Bertila Soto, Circuit Judge John Stargel, Circuit Judge Margaret Steinbeck, Circuit Judge Patricia Thomas, Circuit Judge Members of the TCBC Executive Committee discussed this topic extensively at their meeting on April, addressing expert witness, court interpreting, and court reporting issues. Among the observations were: Tom Genung, Court Administrator Sandra Lonergan, Court Administrator Kathleen Pugh, Court Administrator Grant Slayden, Court Administrator Walt Smith, Court Administrator Mark Weinberg, Court Administrator Robin Wright, Court Administrator Ex-Officio Members The Honorable Jeffrey Colbath Florida Conf. of Circuit Court Judges The Honorable Robert Hilliard Florida Conf. of County Court Judges The Honorable Diana Moreland Commission on Trial Court Performance and Accountability The Honorable Susan Schaeffer Chair Emeritus Supreme Court Liaison Some circuits report that they are experiencing a shift in expert witness costs as public defenders forego confidentiality in favor of having courts pay for the evaluations. Circuits have different models and practices for delivering court reporting services. For example, some rely more heavily on stenography while others prefer digital technology, and some circuits use a staffing model while others prefer a contractual model. In addition, Supreme Court Administrative Order - provides for variations in the types of proceedings for which stenography or digital court reporting is used based on best practices rather than standards. There are instances in which, under the state s policy of having the public defenders and state attorneys share costs with the courts, the level of court reporting transcription services provided by the courts to the public defenders and state attorneys does not match the amount of funds transferred to the court system s budget from them. The areas of concern in order of priority appear to be: o Expert witnesses; o Court interpreting; and o Court reporting. Justice James E.C. Perry Florida State Courts System South Duval Street Tallahassee, FL - The members of the TCBC Executive Committee believe the provision of due process services merits thorough study in order to better position the Page of

35 Appendix B The Honorable Diana L. Moreland May, Page Two TCBC to make decisions on due process legislative budget requests, the allocation of funds among the circuits, and management of the statewide reserve. However, recognizing that the provision of these services presents both fiscal and policy considerations, the members recommend a joint workgroup with representatives from the Commission on Trial Court Performance and Accountability (TCP&A) and the TCBC. The members are respectful, for example, of the extensive work of TCP&A on development of best practices and standards for due process services. I am writing to ask if you would be interested in creating a joint workgroup, perhaps comprised of four members from TCBC and, depending upon your preference and the commission s existing workload, up to four members from TCP&A. The scope of the workgroup could include: cataloging due process delivery practices among the circuits; considering the extent to which, where there are not currently statewide standards, due process standards should be employed; identifying drivers affecting expenditures and techniques to manage costs; reviewing circuit practices under the cost-sharing relationship with public defenders and state attorneys; developing ideas for consideration by TCBC s Funding Methodology Committee on ways to approach allocation of resources; and exploring ways to enhance the estimation of due process funding needs for the courts and its justice system partners to the Legislature. In light of the breadth of due process issues, the TCBC Executive Committee recommends that this workgroup focus first on expert witnesses, to be followed in order by court interpreting and court reporting. It is critical that one of the workgroup s initial steps should be to identify discrete deliverables and deadlines so that work coincides, as necessary, with the fiscal year - budget development cycle and the January start to the legislative session. I have asked staff of the Office of the State Courts Administrator to recommend a detailed work plan for the workgroup s consideration. Finally, I would like to offer the services of Chief Judge Robert E. Roundtree, Jr., the vice chair of TCBC, who would be willing to chair the workgroup or, if you prefer co-chairs, could serve as the co-chair from TCBC. I would appreciate the opportunity to talk with you about creation of this workgroup. My hope is that, if you agree, we could designate members as soon as possible. Thank you for your consideration of this idea and for TCP&A s ongoing partnership with TCBC on matters critical to the trial courts. Sincerely, Mark H. Mahon MHM:ewm cc: The Honorable Jorge Labarga The Honorable James E.C. Perry The Honorable Robert E. Roundtree, Jr. Patricia (PK) Jameson Blan Teagle Page of

36 Appendix C Page of

37 Appendix D June, Members The Honorable Mark Mahon Chair The Honorable Robert Roundtree, Jr. Vice-Chair Catherine Brunson, Circuit Judge Ronald Ficarrotta, Circuit Judge Frederick Lauten, Circuit Judge Wayne Miller, County Judge Debra Nelson, Circuit Judge Gregory Parker, Circuit Judge Anthony Rondolino, Circuit Judge Elijah Smiley, Circuit Judge Bertila Soto, Circuit Judge John Stargel, Circuit Judge Margaret Steinbeck, Circuit Judge Patricia Thomas, Circuit Judge Tom Genung, Court Administrator Sandra Lonergan, Court Administrator Kathleen Pugh, Court Administrator Grant Slayden, Court Administrator Walt Smith, Court Administrator Mark Weinberg, Court Administrator Robin Wright, Court Administrator Ex-Officio Members The Honorable Jeffrey Colbath Florida Conf. of Circuit Court Judges The Honorable Robert Hilliard Florida Conf. of County Court Judges The Honorable Diana Moreland Commission on Trial Court Performance and Accountability The Honorable Susan Schaeffer Chair Emeritus Supreme Court Liaison The Honorable Diana L. Moreland Chair, Commission on Trial Court Performance and Accountability Manatee County Judicial Center Manatee Avenue West Bradenton, Florida Dear Judge Moreland: Thank you for your letter on May,, agreeing to create a joint due process workgroup (workgroup) between the Trial Court Budget Commission (TCBC) and the Commission on Trial Court Performance and Accountability (TCP&A). I appreciate your willingness to co-chair the workgroup with Judge Robert E. Roundtree, Jr. (Chief Judge, Eighth Judicial Circuit), and your appointment of Judge Terry D. Terrell (Chief Judge, First Judicial Circuit), Barbara Dawicke (Trial Court Administrator, Fifteenth Judicial Circuit), and Holly Elomina (Trial Court Administrator, Sixteenth Judicial Circuit) to serve on the workgroup. At a June,, conference call meeting of the TCBC Executive Committee, I appointed Judge Margaret O. Steinbeck (Circuit Judge, Twentieth Judicial Circuit), Judge John K. Stargel (Circuit Judge, Tenth Judicial Circuit), and Mark Weinberg (Trial Court Administrator, Seventh Judicial Circuit). These members, along with Judge Roundtree, have agreed to serve on the workgroup. As mentioned previously, the TCBC Executive Committee recommends that the members of the workgroup address expert witness issues as their first element for review. Additionally, I believe that the cost sharing arrangement on court reporting with the offices of the Public Defender and the State Attorney and the Justice Administrative Commission warrants prompt discussion as well. Staff from the Office of the State Courts Administrator are preparing a proposed timeline and detailed work plan for the workgroup s consideration. As a first step, it may be helpful for Judge Roundtree and you to schedule a conference call with staff to review the draft documents and discuss how to proceed with the full workgroup. Eric Maclure, the Deputy State Courts Administrator, will contact you to facilitate scheduling the conference call. Justice James E.C. Perry Florida State Courts System South Duval Street Tallahassee, FL - Page of

38 Appendix D The Honorable Diana L. Moreland June, Page Two Once again, I truly appreciate your willingness to address these due process issues and look forward to receiving recommendations from the workgroup. Sincerely, Mark H. Mahon MM:ks cc: The Honorable Robert E. Roundtree, Jr. The Honorable John K. Stargel The Honorable Margaret O. Steinbeck The Honorable Terry D. Terrell Barbara Dawicke Holly Elomina Mark Weinberg Patricia (PK) Jameson Eric Maclure Blan Teagle Page of

39 Appendix E Due Process Workgroup April,, Meeting Expert Witness Uniform Data Reporting Expert Witness Includes State Total Competency and Evaluations Circuit FY - FY - FY - FY - FY -,,,,, Total, Percent Change,,,,,,.%,,,,,,.%,,,,,,,.% Contractual Expenditures Percent Change from FY - to FY -,,,,,,,.%.%.%.% -.%.%.% -.%.%.%.% -.% -.%.%.%.%.% -.%.%.%.%.% Circuit FY - FY - FY - FY - $, $, $, $, $, $, $, $, $, $, $, $, $, $, $, $, $, $, $, $, $, $, $, $, $, $,, $, $, $, $, $, $, $, $, $, Total $,, Percent Change $, $, $, $, $, $,, $, $, $, $, $, $, $, $, $, $,,.% $, $, $, $, $, $,, $, $, $, $, $, $,, $, $, $, $,,.% $, $, $, $, $, $,, $, $, $, $, $, $, $, $, $, $,,.% Includes Adult Competency, Developmental Disabilitites, Developmental Disabilitites Examining Committee, Guardianship Examining Committee, Juvenile Competency, and Evaluations. Expenditures for the Sixth Judicial Circuit include the salary and benefits for FTE expert witness. Page of Percent Change from FY - to FY - FY - $, $, $, $, $,.%.%.% -.%.% FY - per Event Circuit $ $ $ $ $ $, $, $, $, $, $,, $, $, $, $, $, $, $, $, $, $,,.%.%.%.%.%.%.%.%.%.%.%.%.%.%.%.%.% Total $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $

40 Appendix F Due Process Workgroup A Joint Workgroup of the Trial Court Budget Commission and the Commission on Trial Court Performance and Accountability General Objectives All Due Process Elements Identify factors affecting the cost of providing court reporting, court interpreting, and expert witness services. Develop comprehensive fiscal and operational recommendations for the provision of due process services. Scope of Project All Due Process Elements Analyze current due process policies, practices, and costs. Examine the actual delivery of services in relation to the current standards and best practices. Review the efficiency and effectiveness of service delivery methods, given current funding levels. Develop recommendations for fair allocation of resources and containment of costs. Develop recommendations relating to statutory, rule, or other policy changes. Determine appropriate level of resources. Work Plan for Court Experts vember Issues Potentially Affecting s Variation in types of services paid for by the court case type, case phase, type of evaluation, etc. Variation in rates paid for services rates of pay vary widely for the same services, flat fee v. hourly rate, compensation for testimony, depositions, travel, wait time, preparation. Variation in service delivery model contractual versus FTE model, number of experts consulted, use of guardianship panels, etc. Changes in statutory requirements have/will changes in statutes impacted service delivery or costs. Variation in practices compared to proposed standards/best practices need for standardized education. Variation in practices by stakeholders increase in requests for court-ordered evaluations. Page Page of

41 Appendix F Due Process Workgroup A Joint Workgroup of the Trial Court Budget Commission and the Commission on Trial Court Performance and Accountability Tasks Phase I Fact Finding and Analysis s/ Resource Expenditures Demands/Drivers Legal Parameters Statute, Rule, AO Delivery Methods and Practices Catalogue due process delivery practices among the circuits to determine, by circuit, the extent to which, where there are not currently statewide due process standards, standards should be considered. Identify drivers affecting expenditures and techniques to optimize services.. Identify Trial Court Budget Commission policies/decisions that impact services and rates. (Action Item: Compare policies established in memos from Judge Morris and Judge Perry to Workgroup potential recommendations). Identify the potential impact of the pending Commission on Trial Court Performance and Accountability report, Recommendations for the Provision of Court Appointed Expert Witness Services in Florida s Trial Courts, on services provided and rates used. (Action Item: Compare TCP&A report to Workgroup potential recommendations). Determine services provided (case type, phase/type of evaluation). What is currently being paid for by the courts? (Action Item: Survey circuits). Determine set rates. What type of evaluations have set rates? Are they hourly or flat rates? Do they pay for travel time or per diem, time to testify in court or via telephone? What instrument sets the rates? Are there economies of scale related to urban/rural areas, circuit size, or regional practices? Are standard, statewide rates a feasible option? (Action Item: Survey circuits; research invoices). Determine staffing models. What variations in staffing models exist? Are any changes needed? (Action Item: FTE Analysis). Determine statutory requirements. What recent changes have affected the cost of providing expert witnesses? Are there changes needed in statutory language (e.g. Baker Act versus Marchman Act)? (Action Item: OSCA General Counsel perform research; work with Baker-Marchman Act Workgroup) Page Page of

42 Appendix F Due Process Workgroup A Joint Workgroup of the Trial Court Budget Commission and the Commission on Trial Court Performance and Accountability. Determine demands of external stakeholders how have practices of the public defenders and state attorneys impacted the courts costs in providing expert witnesses? What is the impact of public guardianship offices and use of guardian advocates and guardianship examining committees? (Action Item: Survey circuits and possibly meet with external stakeholders) Deliverables Phase II Recommendations Best Practice/ Standard Changes Internal Actions/ Authority External Factors and Resource Needs ) Determine need for emergency funding for the trial courts in FY -. (Ongoing) ) Inventory current service delivery models, resources, and policies/procedures by circuit. ) Recommend issues outside the scope of this workgroup to be referred to other commissions, committees, and workgroups, if needed. ) Update existing payment obligation matrix and propose changes to current statutes, rules, or other policies to clearly define responsibility for payment of costs. ) Determine cost containment strategies. ) Determine sufficient resources for the trial courts in out years. ) Determine the equitable distribution of resources through new funding formula. ) Determine the impact of costs of alternative staffing models, if needed. ) Determine the impact of costs of proposed operational/procedural structure. ) Determine appropriate data measurements and method of providing data to circuits. ) Prepare usage/expenditure reports for TCBC, chief judges, and trial court administrators. ) Prepare status update reports and final reports. Page Page of

43 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Survey Question Does your circuit have written policies that govern expert witness practices, such as an Administrative Order? Are you aware of the memo from Judge Perry (Attachment A TCBC Circuit Memo ) that offers guidance on expert witness topics? Yes. Administrative Order. - and Administrative Order. -; both are attached. Yes; we are aware of Judge Perry's TCBC Memo. We have relied heavily over the years upon Judge Morris' matrix of payment advice. In recent years, we have been relying upon a draft of an updated matrix provided by OSCA. We believe the matrix of payment advice is critical to all members of the judiciary and staff who are faced with who pays for what" situations. Yes, we have standard contract language for each expert witness that we contract with for services. In addition, we do have an Administrative Order that is currently being revised to include additional policies relating to the selection and vetting process. Yes. We have an administrative order, and yes we are aware of the memo from Judge Perry and use it often as a reference guide. Yes, attached are the administrative orders for the three counties in our circuit. Yes our circuit is aware of this. Yes, the Fifth Judicial Circuit is aware of the memo from Judge Perry and the previous memo from Judge Morris on expert witnesses Administrative Orders -, - and - govern the Sixth Judicial Circuit expert witness operations. Yes, we are familiar with the TCBC memo and use it as a guideline for our expert appointments. Some Form Unit of Written Written Policy Policy Administrative Orders are in place but one or two memoranda have gone out to the Judges, experts, and others over the years. General Counsel is working on an updated memorandum but it is not completed. Once completed, it will update the Judges, the experts, the Assistant State Attorneys, Assistant Public Defenders, appointed counsel, etc. as to the Court s policies concerning expert witnesses. It is a work in progress. Yes they are aware of the memo. Q-. Q-Yes.. However, the circuit does have written policies, practices and procedures which are submitted to the experts, addressing how an expert can request to get on the th expert witness list, the evaluation flat fee rates and deliverables, and the requirements for submission and processing of invoices. Yes, the th circuit is well acquainted with the TCBC memo and still to this day occasionally refers to the memo for guidance. High Unit Analysis AO --CRIM. t aware of Judge Perry's memo. Administrative Order Written Policy Written Policy Circuits Responding $ AO $ Number AO $ Percent.%.%.%.% AO $ $ Has AO, Uses Memo Written Policy, Uses Memo Has AO, Memo Has AO, Uses Memo Has AO, Uses Memo TCBC Memorandum Familiar with/uses for reference $ $ Has Written Policy, Uses Memo Number Has AO, Uses Memo Percent.%.%.%.% AO AO, Uses Memo $ Has Written Policy, Uses Memo $ AO $ $ $ $ Has Written Policy, Uses Memo Has AO, Memo Written Policy, Uses Memo Has Written Policy, Uses Memo t Unconfirmed/O Total Circuits familiar/does ther Responding not use AO th The Judicial Circuit has an old Administrative Order from adopting the guidelines of the Indigent Services Committee that includes information relating to the payment of expert witnesses, including examining committee members. (The rates for the examining committee members have since changed.) The th Circuit is aware of the memo from Judge Perry and has used it as a guideline regarding payment responsibility. Yes, Administrative Orders.,., and. and.. Yes and Yes See attached AO Written Policies Yes. The Eighth Judicial Circuit of Florida ADMINISTRATIVE ORDER NO.. APPOINTMENT OF EAMINING COMMITTEE MEMBERS FOR INCAPACITY PROCEEDINGS. Yes. We are aware of the memo from Judge Belvin Perry regarding payments for expert witnesses. Yes, please see attached billing manual. Yes, we have reviewed the memo and utilized it for guidance on expert witness issues. AO Admin order -. Low Unit Analysis Yes, we are aware of the memo and refer to it often. See attached memorandum regarding expert witness practices. Does t Use or Mention of TCBC Memo Uses TCBC Memo Policy and Procedure Analysis AO AO $ $ AO $ AO $ Page of Has AO, Uses Memo Has AO, Uses Memo Has AO, t aware of Memo Summary: % of circuits have some form of written policy that governs expert witness practices. % of circuits have an AO, while % have some other form of written policy. Two circuits reported no formal written policy. Most circuits, %, are familiar with either the or memorandum from the respective TCBC chairs and use the memo for guidance in developing their expert witness policies. Low Unit Analysis: Of the circuits displaying low unit costs, have a written policy in place; use the TCBC memo for guidance. High Unit Analysis: Of the circuits with high unit costs, have a written policy and use the TCBC memo; have a written policy but do not use the memo; has no written policy but uses the memo. Conclusion: Presence of a formal written policy and use of the TCBC memo for guidance may not solve expert witness cost concerns but could serve as a useful tool to codify circuit expert witness policies in one governing document.

44 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Survey Question Does your circuit have written policies that govern expert witness practices, such as an Administrative Order? Are you aware of the memo from Judge Perry (Attachment A TCBC Circuit Memo ) that offers guidance on expert witness topics? The th Circuit s local Administrative Order - governs payment of expert witness fees/costs (attached hereto for reference). Yes, we are aware of Attachment A, memo from Judge Perry offering guidance on this topic. Yes, we have Administrative Order -. Yes, we are aware of Judge Perry s Memo. The th has written materials that communicates the content of Judge Stan Morris August, memorandum in a simplified manner. Some Form Unit of Written Written Policy Policy Uses TCBC Memo AO $ Y AO $ Y $ Y Page of Does t Use or Mention of TCBC Memo Low Unit Analysis High Unit Analysis Has AO, Uses Memo Has AO, Uses Memo Has AO, Uses Memo

45 Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Appendix G Circuit Unit Analysis Survey Question What guidance is followed in your circuit when determining how many experts to appoint for a case? Please explain. A long-standing agreement between the SA and the PD continues to this day. The agreement established an understanding the court will appoint ONE expert. At such time as one of the parites feel the need for a second, a second expert is appointed. If there comes a need for a "tie breaker," a third expert is appointed. Adults The rotation wheel is used for these types of cases when an expert is appointed to a case. The court provides one expert, up to the maximum of, per statute. Juvenile Two experts are appointed to these cases, but sometimes will need to appoint a third, depending on the results of the initial two appointed. Six month evaluations are completed, as necessary, where the court attempts to use the initial expert to assist in containing costs of having to do any initial evaluations again. This varies by judge. The AO for each county outlines the procedures for appointing experts to a case for Guardianship and indigent persons. The judge is the one who decides whether a person needs an evaluation, either through his own determination or a motion from the PD, SA, or private lawyer. The court appoints how many experts are with each case. We utilize the memo for guidance. Judicial discretion is also used on a case-by-case basis where appropriate. We try to follow statutes and rules. See attached form orders. The court determines the number of experts needed on a case by case basis within the framework of the limits set by statute or rule. (Ex. s.., Fla. Stat.) The Judges may appoint up to three experts. Initially, it was thought that possibly only one expert could be appointed pursuant to the amended section of. of the Florida Statutes that states no more than three experts shall be appointed. Section.() of the Florida Statutes, however, requires that a defendant must be evaluated by no fewer than two experts before the court commits the defendant unless the parties stipulate to a finding by a single expert who finds the defendant incompetent to proceed. Again, this is something that will be addressed in the memo to the Judges once completed. Many Judges will appoint two experts and then if there is no consensus on the evaluation, will appoint a third expert. The AOC and the Chief Judge have been very active in emphasizing to judges the high cost of paying expert witnesses, especially if more than expert is appointed on a case. This has been done with a flurry of s and at monthly judges meetings. We use the statutory reference or court rule applicable to appropriate area of law. Our judges appoint two for criminal competency evaluations except in unusual circumstances where a third one is necessary. In Guardianship evaluations, we appoint three experts (one at the higher rate of $; two at the lower rate of $). As it relates to the appointment of experts in a particular case, the circuit s judicial officers appoint the requisite number of expert witnesses in accordance with applicable Florida Statute or Florida Rule. Statute/ Judicial Rule Discretion Unit Local Policy Guidance Followed Statute/ Judicial Rule Discretion $ Circuits Responding Statute $ $ $ $ Number Percent.%.%.%.% Judicial Discretion Judicial Discretion $ $ Statute Judicial Discretion $ Policy to appoint experts per case Local Policy $ Judicial Discretion $ $ Statute Policy to appoint experts per case Local Policy $ Statute $ Statute When the issue of competency is raised, the standard is to appoint two Experts. High Unit Anaylsis Local Agreement between SA and PD th The judges of the Circuit primarily rely on the relevant statute, nature of the cases and issues presented, and input from counsel of record for determining how many experts to appoint in a given case. F.S.. provides guidance for how many experts may be appointed to determine the mental condition of defendants in criminal cases. One expert is appointed in the vast majority of these cases. Three individuals are appointed to each examining committee. Low Unit Analysis Policy and Procedure Analysis $ Local Policy Page of $ Policy to appoint experts per case Summary: Many circuits reported relying on statute or rule for detmining how many experts to appoint in each case, while acknowledging that judicial discretion is the final determing factor. However, there are different interpretations of how many experts need to be appointed for initial evaluations. Three circuits (,, & ) appoint experts for a criminal competency evaluation as a standard practice; one circuit () has a policy of appointing expert for a standard competency evaluation. Low Unit Analysis: Of the circuits displaying low unit costs, rely on statute, on judicial discretion, and on local policy for determining how many experts to appoint. High Unit Analysis: Of the circuits with high unit costs, rely on statute; on a local policy or agreement; and on judicial discretion. Conclusion: Local policies to appoint more experts than are required by statute likely contribute to cost increases. A combination of adherance to statute and rule with the element of informed judicial discretion is recommended.

46 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Survey Question What guidance is followed in your circuit when determining how many experts to appoint for a case? Please explain. Statute/ Rule Judicial Discretion Unit Analysis Circuit Generally, the Court will appoint one expert and if the exam is inconclusive, an evaluation by another expert will be Statute ordered. Also rely on FRCP. and FS.. $ We follow the statutes and rules of procedure as well as AO $ Statute In both Brevard and Seminole Counties, in criminal proceedings, typically one () expert is appointed by the Court to conduct the initial competency evaluation. If the Court and the parties agree the initial report is acceptable, no further evaluation is conducted. If the Court and the parties do not agree the initial report is acceptable, additional evaluations are ordered by the Court. The Court will order additional evaluations based on the testimony provided during the proceedings. Local Policy $ Unit Low Unit Analysis Policy to appoint expert per case FL. Statute. $ Statute When discretion is allowed by statute/rule, the th has provided guidance to judges regarding what is minimally required by statute/rule, what is permitted under judicial discretion, and the on-going state of budgetary projections Statute and fluctuations. $ High Unit Anaylsis Page of

47 Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Appendix G Unit Analysis Survey Question How is the expert selected? Do you maintain a list of experts or a wheel for your circuit? Registry Judge/Attorney Attorney Registry With Request Based Request Rotation on Registry Circuit The moving party is called upon to name the expert they wish appointed in response to that party's motion for appointment of an expert for purposes of a competency evaluation. The First Judicial Circuit has minimal experts available. While we do not maintain a formal listing of experts, we have contracts established with experts whom, based upon common knowledge theusing cirtuis, are willing to perform competency evaluations Experts are within selected a rotation wheel, from a list of approved experts. for the rates established by the Court (AO This also varies by judge. We maintain a list of contracted experts as well as experts we have frequently used in the past who are familiar with our circuit and administrative order. Sometimes we are asked for the information and sometimes the court appoints whoever is requested. The judges in our circuit appoint an expert from a list of experts/competency evaluators. We maintain a list of experts in our Court Administration office and can present them to the Courts to be used in cases. The court appoints the expert based on the Fifth Judicial Circuit s Expert Registries. In order for a provider to be on the registry a court application is required. Expert witnesses are under contract and are appointed on a rotational basis. Policy and Procedure Analysis Low Unit Unit Analysis Number $ Percent.%.% Depending on the type of case, the list of qualified individuals maintained by the Department is used, or a list maintained by the court is used. For example, our court maintains a list of qualified individuals for examining committees needed in guardianship matters. The Circuit has main experts on contract but the Judges can select almost anyone they want. Currently, the experts are sometimes suggested by the parties. Do you maintain a list of experts or a wheel for your circuit? t at this time because of limited staff. Would be highly interested to know who in court administration handles the wheel in other circuits that use that system and how that system specifically works. Our circuit does not have a rotating list. We maintain a list of doctors that we have contracts with or that we have used during the fiscal year. We also have the forensic list provided by DCF. Registry w/ Rotation $ $ $ Registry Registry Registry $ Registry w/ Rotation $ Selected by wheel, however, we are limited in the number of experts in our circuit. Additionally, two of the psychologists on our wheel also work contractually with the local jail, therefore they cannot handle the bulk of the evaluations due to conflicts. Judge/Atty based on List $ The Circuit maintains a wheel. $.%.%.%.% Registry Registry w/ Rotation $ $ Registry w/ Rotation $ Page of Summary: The majority of circuits use a list or registry when appointing experts. Of those that maintain a list or registry, circuits reported using a rotating list and circuits maintain a list that the judge or parties can choose from. Additionally, circuits noted using lists from DCF and/or APD. Low Unit Analysis: Of the circuits displaying low unit costs, utilize a list or rotating list. High Unit Analysis: Of the circuits with high unit costs, use a list, list with rotation, or list that judges or attorneys can select from. The remaining circuits rely on attorney request and judicial discretion. Conclusion: Using a list or registry with or without rotation may be an effective tool for cost containment. The circuits that allow attorneys to select the expert have higher unit costs than others. $ Yes, we maintain lists for our judges. Generally the attorneys select their experts, if they don t choose the judge chooses. $ The th Circuit does maintain a list of experts under contract with the circuit; however, judges occasionally appoint experts that are not under contract with the circuit, particularly with developmental disability examining committees. Registry The expert is selected from a registry/wheel where the next expert is selected (rotating order). Registry $ The selection and appointment of expert witnesses is generally made one of two ways:. by the court;. the solicitation of two () expert witness names by the court from representative counsel. An exception to the general process above involves appointment of the Agency for Persons with Disabilities (APD). In those cases, the court appoints the APD Team and APD selects the expert witness off of the APD expert witness list. Yes, the circuit does maintain a list of experts. Registry Judge/Attorney Attorney Circuits With Selection Based Request Responding Rotation on Registry Experts appointed to conduct adult competency exams (mental illness) are contracted. See attached sample contract. Experts appointed to conduct juvenile competency exams (mental illness) are obtained from a list supplied by DCF. Experts appointed to conduct adult and juvenile competency exams (intellectual disability/autism) are obtained from lists supplied by APD. Registry $ Methods for Selecting Experts Attorney Request Registry w/ Rotation $ High Unit Anaylsis Adult Competency:.()(b) requires that the Department of Children and Families (DCF) provide the courts annually with a list of available mental health professionals who have completed the approved training as experts..() requires that the Agency for Persons with Disabilities (APD) provide the courts annually with a list of available professionals who are appropriately licensed and qualified to perform evaluations of defendants alleged to be incompetent to proceed due to intellectual disability or autism. Juvenile Competency:.()(d) requires that for incompetency evaluations related to mental illness, DCF shall provide the courts annually with a list of available mental health professionals who have completed training..()(e) requires that for incompetency evaluations related to intellectual disability or autism, the court shall order APD to evaluate the child to determine competency. Guardianship:.()(c) requires that the chief judge prepare a list each year of persons qualified to serve on a guardianship examining committee. Guardian Advocate:.() requires the court appoint an advocate qualified to act as a guardian under ch..

48 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Registry Judge/Attorney Attorney Registry With Request Based Request Rotation on Registry Survey Question How is the expert selected? Do you maintain a list of experts or a wheel for your circuit? Circuit We have a list. Our court projects will generate the list three names provide to the Judge who will select the expert. For guardianships we have a list for examining committee members which includes psychiatrists, medical doctors and social workers on a rotation basis Experts are appointed from a list of providers maintained by Court Administration Unit Registry $ $ Registry $ Judge/Atty based on Registry $ Registry The th maintains a hybrid list of persons qualified to receive appointments, as well as those that have come into preagreement with the th s fee schedule(s). High Unit Anaylsis Parties choose the expert from list provided by DCF or our Guardianship Examining Committee list. Low Unit Analysis Page of

49 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Low Unit High Unit Updates/ Unit Updates Analysis Anaylsis Survey Question The attached draft payment responsibility matrix (Attachment B Draft Expert Witness Payment Circuit Responsibility Matrix ) is in the process of being updated by this Workgroup. If there are any scenarios you encounter in your circuit that are not listed on the matrix, please list them here. Policy and Procedure Analysis Scenarios t Listed on the Matrix All Updates/ Scenarios Covered ne that we know of. $ NA $ $ Updates NA $ $ NA $ NA $ $ Updates It is suggested to update everywhere the word retard, retarded or retardation is to be replaced with intellectually disabled. Also, suggest adding Sanity Evaluations, to clarify which entity is responsible for payment. NA The reference to the APD is confusing we need better clarification of whose responsibility it is to pay for the services., there are not any other scenarios in our circuit which are not listed on the matrix. N/A. NA There are no scenarios that we have encountered that are not listed on the matrix. One situation occurred here where a Judge ordered the Court to pay for competency restoration services. The Judge was informed the Court could not pay for that service and was not authorized to do so. It would be helpful to have that on the matrix to actually show the Judge. We have also had several instances where the Judge will order a defendant to be evaluated after a finding of guilty to help them determine placement. That would be helpful to have on the matrix as to whether the Court pays for that or shouldn t pay for that. It is our understanding that pretty much any expert appointed for mental health services that is clearly not some other agency s or party s responsibility is to be paid by the Court because the Judge ordered it. Would also be helpful to have some sort of guidelines as to payment amounts. We are trying to encourage the Judges to put caps on the number of hours an expert can work on a case when it is not a straight competency examination paid by a flat fee. Also some sort of system needs to be in place to determine if a ward in a guardianship is indigent- some sort of guidance or statutory system. A new Judge recently took over the probate division and we have noticed a large increase in the Court s guardianship examining committee costs. We are working with the Judge to deal with these costs but it is difficult due to limited manpower and specific guidance as to indigency. We do not have any additional scenarios Yes, we encounter competency evaluations in the juvenile division to waive Miranda, which the court pays for. n/a Although addressed by the matrix, the scenario that may need to be addressed statewide is the APD refusal to pay for court ordered evaluations in cases involving the appointment of experts pursuant to F.S..()(e). There are no additional scenarios. Page of.%.%.% NA NA Summary: circuits encounter scenarios that are not covered on the current version of the matrix. Low Unit Analysis: Of the circuits displaying low unit costs, report all scenarios are covered while noted substantive updates to the matrix. High Unit Analysis: Of the circuits with high unit costs, identified scenarios that need to be added or clarified on the matrix. Conclusion: The matrix should have no correlation to unit costs, but ensuring all scenarios are covered on the matrix could assist circuits in making critical "who pays" determinations. $ Updates $ NA $ Updates $ NA $ Updates $ Number Percent Circuits Responding NA

50 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Low Unit High Unit Updates/ Unit Updates Analysis Anaylsis Survey Question The attached draft payment responsibility matrix (Attachment B Draft Expert Witness Payment Circuit Responsibility Matrix ) is in the process of being updated by this Workgroup. If there are any scenarios you encounter in your circuit that are not listed on the matrix, please list them here. Incompetent defendant or not guilty by reason of insanity defendant, out on conditional release, where an evaluation is needed to determine if the defendant now meets the criteria for commitment to a forensic hospital. Evaluation of an incapacitated ward where the ward now states they have regained capacity. N/A other scenarios for guardianships. For criminal, no except many of our Judges do not require a written motion for an evaluation N/A All scenarios covered in matrix. Page of $ $ NA $ NA $ NA $ $ Updates NA NA

51 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Survey Question Are there factors specific to your circuit that you believe impact expert witness usage (state hospital, unique demographics in your area, etc.)? Please explain and indicate if these factors only impact certain Circuit case types or types of evaluations (Developmental Disability cases, for example). Presence of Increase in Unit State Specific ne Hospitals Case Type Policy and Procedure Analysis Low Unit Analysis High Unit Anaylsis Factors Specific to Circuit than the small amount of experts available and willing to perform conpetency evaulations, we know of no affecting factors. Yes, the second circuit has two state hospitals which seem to have an impact on expert witness usage, due to the developmental disability cases. Additionally, those under civil commitments occasionally commit crimes in the facility or community resulting in new competency evaluations in the criminal divisions.. We have seen an increase in the number of Juvenile competency evaluations. We don t have enough data to support as to why this is happening. Expert witness evaluations are more common with Veterans with PTSD and persons with mental illness, disabilities, homelessness issues, and substance abuse issues than in previous years. Expert witness evaluations are also associated with reoffenders within Lowell (Marion County), Sumter, and Lake Correctional Institutions Mental Outpatient and Inpatient Facilities. They are more frequently requested than in prior years. Guardianship examining committees usage has increased, likely associated with the following factors: Increase in funding with State-wide Guardianship providers (within the circuit). Increase of new assisted living facilities within the circuit. The Villages Expansion Florida s largest retirement community with population,, which has doubled since. All the five counties within the circuit have an above the state-wide average (%) of residents age sixty-five years or older. Fifth Judicial Circuit s Census Population of + years of age: County % + years: Citrus (.%), Hernando (.%), Lake (.%), Marion (.%), Sumter (.%) According to the Census, both counties in our circuit have a higher percentage of persons over the age of (Pinellas: %; Pasco:.%) than the statewide percentage (%) or in our neighboring county of Hillsborough (.%). This likely has an impact on our probate/guardianship filings, which have steadily increased over the past few years (:,; :,; :,) even though filings in other divisions have been decreasing. As our population continues to age, this upward trend in filings is expected to continue. Additionally, in adult competency cases, since our circuit is not close to a state hospital, we pay our expert witnesses $ per hour in travel time if they have to evaluate a defendant who is committed to a state hospital. NA The existence of the facilities listed below in our circuit increase the number of evaluations needed. rtheast Florida State Hospital, Macclenny, FL, Tacachale Developmental Disability Center, Gainesville, FL, rth Florida Evaluation and Treatment Center, Gainesville, FL. The Circuit has many visitors who are arrested and sometimes experts are appointed from where the visitor resides to save travel costs. However, these experts sometimes will not agree to the Circuit s fees for competency examinations. ne It is a local practice that in two experts are appointed in all competency evaluations, and when the two experts disagree the court appoints a third expert. Page of $ $ State Hospital ne $ Case Type Number Percent.%.% ne.%.% Circuits Responding.% Summary: circuits report having factors specific to their circuit that affect expert witness usage. cite the presence of state hospitals, cite increases in evaluation requests for specific types of cases, and cite a variety of causes such as increase in the aging population, local practices, tourism, geography of the circuit, etc. Low Unit Analysis: Of the circuits displaying low unit costs, cite a unique factor affecting expert witness usage; does not. High Unit Analysis: Of the circuits with high unit costs, cite a unique factor affecting expert witness usage; cite no specific factors. Conclusion: Presence of state hospitals/facilities likely contribute to an increased number of evaluations. Increases in evaluations for specific case types are likely due to the population of the circuit and practices of outside entities. $ $ Presence of Increase in State Specific Hospitals Case Type $ $ ne $ State Hospital $ $ $ ne ne $

52 Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Appendix G Unit Analysis Survey Question Are there factors specific to your circuit that you believe impact expert witness usage (state hospital, unique demographics in your area, etc.)? Please explain and indicate if these factors only impact certain Circuit case types or types of evaluations (Developmental Disability cases, for example). Yes. During FY - and again following the issuance of the TCBC Memo and payment matrix, the circuit attempted to hold the APD responsible for the payment of expert witness invoices for evaluations ordered pursuant to F.S..()(e) to no avail. Relying on the statutory language contained in F.S..(), the APD asserts that they are not responsible for payment due to lack of a specific appropriation by the legislature to the agency. This has certainly impacted expert costs. Also, in January, the th circuit and APD experts were informed that APD was no longer going to process invoices for the payment of F.S.. -. court ordered evaluations (Intellectually Disabled or Autistic) and that payment for these evaluations is the circuit s obligation. Accordingly, this will certainly impact the circuit s existing and future expert usage and costs. Presence of Increase in Unit State Specific ne Hospitals Case Type Low Unit Analysis High Unit Anaylsis $ th Yes, there are factors specific to the Circuit that impact expert witness usage. First, Florida State Hospital is in the nd adjoining circuit ( Circuit) and we have several defendants placed in that facility. In addition, the Sunland Center is located in the th Circuit and houses individuals with intellectual and developmental disabilities. Selecting Experts for defendants housed in Belle Glade presents challenges due to the limited pool of Experts who are willing to travel across the County to Belle Glade. In Developmental Disability cases, the Circuit has been able to locate only three APD certified Psychologists. $ State Hospital $ We have a very large homeless population, including many who are dually-diagnosed. This leads to a very large number of evaluations in Misdemeanor and County/Municipal Ordinance cases. $ In guardianship, there has been an increase in case because the elderly population is increasing and there also is an increase in the number of minors in dependency who are transitioning through probate and need a guardian. $ Case Type Brevard County is miles long. In criminal cases, if the defendant is not incarcerated, transportation can be a problem. In guardianship cases, when experts are often expected to travel to the alleged incapacitated person (AIP), the geographic distance of the county poses a significant hardship and added expense for the examining committee members The th has experienced sustained increases in the number of criminal evaluations (up % comparing - and ); surveys conducted indicate that this is due to an increased need for mental health services with the circuit. Page of $ $ ne $ Case Type

53 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Survey Question In, the Statewide Public Guardianship Office expanded to serve all counties. Has your circuit experienced an increase in Guardianship or Developmental Disability Circuit cases or costs since? Unit Analysis Policy and Procedure Analysis Increase Low Unit High Unit Unit Since Increase Analysis Anaylsis Impact of Statewide Public Guardian Office (SPGO) Expansion Increase Yes. We have shown a decrease in our contractual expenditures from - through -. Yes, since the Public Guardianship office and Developmental Disability cases expanded their services in, there has been a significant impact with Guardianship committee costs (when the ward is indigent) and with evaluations. Marion County was partially funded before in our circuit only with the Statewide Guardianship Office and with developmental disability cases. Since, Citrus, Hernando, Lake, Marion, and Sumter counties are now fully funded and have expanded their services with the Statewide Public Guardianship office and with developmental disability cases. Yes, we have experienced an increase, although we only have data for and, which is: - cases, - cases. $ $ Filings in Guardianship cases have increased % from to and % from to. Increase $ $ $ Increase $ Increase Waiting lists for Public Guardian services have remained at their highest levels since, without a necessary uptick in the th since. Increase $ Increase $ Increase Increase $ $ Increase $ Increase $ Increase $ th The Circuit has experienced an increase in costs for these types of cases. However, there is no real determination as to whether or not the expansion of the office is the determining factor for the increase Increase Increase Increase Yes. Yes. From FY - to FY -, the circuit has experienced a % increase in Guardianship Examining Committee evaluation costs. There has been a slight increase in Guardianship cases/costs since. Yes. See chart in survey response. Yes, but not due to the expansion of the Public Guardianship Office. As stated in number, we have an increase in the elderly population and aging out. The Broward Public Guardian s office cannot handle all of the indigent cases we have. $ $ $ $ Number Percent.% Circuits Responding.% Increase Yes, significantly. Increase Since Increase.%.% Page of $ $ $ Increase Summary: % of circuits have experienced an increase in Guardianship or Developmental Disability cases since, while % report no increase. % ( circuits) reported an increase, but attribute it to other causes. Low Unit Analysis: Of the circuits displaying low unit costs, report an increase in Guardianship or Developmental Disability cases, report no increase, and report increases but assign other causes. High Unit Analysis: Of the circuits with high unit costs, have seen an increase since but another have not; reported a decrease, and reported an increased demand for SPGO services but no increase in these case types. Conclusion: The expansion in SPGO services may have led to an increase in these case types. The expansion of SPGO services in conjunction with the increase in Florida's aging population could result in increased need for guardianshiprelated expert witness services.

54 Appendix G Circuit Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Survey Question In a case involving a Guardianship Examining Committee or Developmental Disability Examining Committee, would the event be counted as one event or three events for Uniform Data Reporting (UDR) purposes? One Three Event Events Unit Low Unit High Unit Analysis Anaylsis Three events Three events One. This is submitted as one event. Three events confirmed by Todd Tuzzulino on //. The circuit reports the number of evaluations conducted by the experts for cases in which the wards of an estate cannot pay pursuant to section., Florida Statutes. For UDR reporting, we count them as three. One event Three. The Examining Committee is counted as three events for the Uniform Data Reporting (UDR) purposes. Three events. The event is reported as if people are appointed to complete an evaluation In a case involving the Guardianship Examining Committee or Developmental Disability Examining Committee, the event is counted as for the purpose of the UDR. If there are experts it s counted as events. For purposes of UDR reporting, the number of events involving Guardianship and Intellectual Disabilities Examining Committees are counted as three () events. It would be counted as three events for the UDR, because we receive three separate invoices from three different individuals. Three Events (Confirned with Barbara on //) One The th Circuit would count this as three () events for UDR purposes Three One event. Policy and Procedure Analysis Uniform Data Reporting for Examining Committees $ $ $ $ One Event Three Events Circuits Responding Number Percent Summary: Most circuits (%) count examining committees as three events. circuits count them as one event. Low Unit Analysis: Of the circuits with a low unit cost, count examining committees as three events, counts them as one event. High Unit Analysis: Of the circuits with high unit costs, circuits count them as three events and count them as one event. Conclusion: For the circuits with high unit costs that report their activities as a single event, this could be falsely inflating their unit costs, although only circuits fall into this category (high unit costs counted as one event). All circuits should be reporting events using the same method..%.%.%.% $ $ $ $ $ $ $ $ $ $ $ $ $ Page of $ $ $

55 Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Appendix G Unit Analysis Survey Question.a. Have you noticed a change in the number of appointment requests by outside entities (PD, SA, registry of conflict counsel attorneys, private counsel, etc.)? If yes, please explain Increased Increased Requests Requests Increase from Public from State in Defender Attorney Requests Circuit Yes. In, the PD (now retired) and SA agreed to a procedure whereby the PD would retain an expert for purposes of a confidential evaluation. The PD paid from their allotted budget for the confidential evaluations. The PD would then file a tice of Incompetency. If the SA was willing to stipulate to the findings of that evaluation, the case proceeded under that report. If the SA objected to the findings, the SA would retain an expert for purposes of a second evaluation. The SA paid from their allotted budget. Should this second evaluation present a tie in the findings, the court would APPOINT an expert for purposes of the third evaluation. The Court paid from its allotted budget for the third evaluation. Withing the last two years, the current PD ceased retention of any expert for purposes of competency evaluation and began waiving confidentiality and moving the court for the appointment of the first, second, and third evalations. The SA has come along for this ride. The PD nor the SA pay for competence to proceed evaluations; the bearing of these mounting costs all fall upon the Court. Our directives to the Judge are if the Court requests, we pay but other entities need to pay if they want the evaluation. Yes, the Public Defender and conflict counsel both seem to forgo confidential experts and request the court to provide the initial evaluation before the public defender pays for their own expert witness.. In FY - the number of events increased from to more than double -. This increase was a result of the Public Defender s office foregoing confidentiality and requesting the court provide the initial evaluation. In this Circuit, it is rare the public defender s office obtains a private examination. Here, they seem to immediately request the appointment of experts by the Court. change has been noted, usually both the State and defense request their own experts. Yes, the circuit is experiencing an increase in the number of appointment requests of the Intellectual Disabilities Examining Committee (F.S..) by the Office of the State Attorney. Low Unit High Unit Analysis Anaylsis Increased Increased Requests Requests from Public from State Defender Attorney Yes, the PD is requesting appointments because they know that almost always the Judge is willing to grant. This causes a significant increase in the number of appointments Increase Circuits in Requests Responding $ PD $ Number PD $ Percent.%.%.%.%.% $ PD PD $ $ $ $ $ $ $ $ SA $ th Yes, we were notified by the Public Defender of the Circuit in spring that they had been claiming confidentiality and had been paying expert witness fees in the past, and they were going to forgo confidentiality starting with FY -. They allowed us to research and analyze their expert witness payments for the previous year, and we determined that once the payment responsibility shifted, it would double the amount we spend on expert witness fees. We notified the OSCA Budget Office in July to Change. Increase in Evaluation Requests by Outside Entities PD Yes, the circuit has seen a large increase in costs as a result of outside entities forgoing confidentiality, with the largest number of appointments from the Public Defender. Yes, we have had an increase in the number of PD requests, but I believe that we may just not have been receiving the invoices in the past. Unit Policy and Procedure Analysis PD Page of $ $ $ PD $ Summary: % of circuits report that the Public Defender in their circuit has increased requests for expert witness evaluations to be paid for by the court. % report no increase, however, (circuits,, and ) of those circuits report that the local practice has always been to charge evaluations to the court. Low Unit Analysis: Of the circuits displaying low unit costs, report an increase in requests for evaluations by outside entities, report no increase. High Unit Analysis: Of the circuits with high unit costs, report increased evaluation requests from the Public Defender; report no increase; and (circuit ) has no data on this issue. Conclusion: Public Defender requests should be monitored at the circuit level to ensure the court is paying only for those evaluations, or portions of evaluations, it is responsible for, however, the practice does not appear to effect every circuit at this time.

56 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Circuit Survey Question.a. Have you noticed a change in the number of appointment requests by outside entities (PD, SA, registry of conflict counsel attorneys, private counsel, etc.)? If yes, please explain Increased Requests from Public Defender Increased Requests from State Attorney Unit Analysis Increase in Requests Unit Low Unit Analysis The th Circuit has not noticed a change in the number of appointment requests by outside entities as the $ $ See above #; few if any confidential reports requested within the th since Rev.. $ High Unit Anaylsis Page of

57 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Survey Question.b. Have you noticed other changes in the practices of outside entities that are impacting expert witness usage in your circuit? If yes, please explain. Impact Circuit Increase in Evaluations for Certain Case Types Unit Policy and Procedure Analysis Low Unit High Unit Analysis Anaylsis. Impact of Outside Entities Increase in Evaluations for Circuits Impact Certain Case Responding Types $ If court appointed conflict counsel do not take appropriate steps for the JAC to pay for experts, then the court potentially is the party that ends up paying. For example: if court appointed conflict counsel do not have the presiding judge find the defendant indigent for cost and submits an order that is signed by the judge, that states the court shall pay or court administration shall be invoiced, then the Court is left paying for the evaluations when it should have been the JAC... Outside entities seem to request competency to proceed evaluations, which are paid by the court, more frequently than ever before. Requests are associated with almost every case (is the current practice).. The number of requests for competency exams due to suspected intellectual disability/autism has increased over the past few years. The Public Guardianship Office in Lake City, FL has been responsible for the increase in Guardianship and Developmental Disability cases and costs since FY -. Many of the public defenders and other defense attorneys seem to think the process is that the defense picks an expert and the State picks an expert. We are trying to correct this misconception by the memoranda that is in progress. The Judges will be informed of the correct process and a slightly edited version will go to all attorneys involved in the criminal process. change has been noted n/a Yes. Since the transition to state funding in, evaluation orders entered by the court pursuant to F.S.. -. (Intellectually Disabled or Autistic) and the payment of expert invoices were being made by APD. In January, the th circuit and APD experts were informed that APD was no longer going to process invoices for payment of court ordered evaluations in these types of cases, and that payment for the evaluations was the circuit s obligation. Accordingly, the circuit is anticipating an increase in expert witness usage and costs for the remainder of the current fiscal year, as well as subsequent fiscal years which needs to be taken into account as it relates to statewide due process allocations for expert witness evaluation services. $ $ $ Number Percent.%.%.%.% Overall $ $ APD $ $ SPGO Page of $ $ $ $ APD $ Summary: % of circuits report no additional changes in evaluation requests attributable to outside entities. % note changes related to an overall increase in certain case types, of those, circuits cite cases related to the SPGO/APD as causing the increase. Low Unit Analysis: Of the circuits displaying low unit costs, report no increases attributable to outside entities, report increases related to certain case types or local practices. High Unit Analysis: Of the circuits with high unit costs, report no increases, report increases related to certain case types, and report increases related to other unique circumstances. Conclusion: Circuits should monitor local practices to ensure the courts are paying for only those evaluations, or portions of evlauations, for which they are responsible.

58 Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Appendix G Unit Analysis Survey Question.b. Have you noticed other changes in the practices of outside entities that are impacting expert witness usage in your circuit? If yes, please explain. Impact Circuit Another issue we noticed, not necessarily a change, is the attorneys will try to slip in the order determination of sanity at the time of offense along with the determination of competency to stand trial. We have educated our judges to look out for this wording before they sign an order. The number of instances has been greatly reduced, but still a few get through. With regards to one treatment center, the Public Defender almost always (approximately % of the time) challenges the hospital s finding of competency. Consequentially, the Circuit is required to pay for the cost of sending an Expert to the facility to conduct an evaluation. Increase in Evaluations for Certain Case Types th, other changes in the practices of outside entities exist in the Circuit We understand that organic increases in mental health service needs is a chief cause; however, several re-evaluations were required due to the appellate court decisions made vis-a-vis the over-aging of competency evaluations (this proved a be a transient phenomenon within the th). Low Unit High Unit Analysis Anaylsis $ Increase in requests for competency evaluations in Misdemeanor/Municipal Ordinance cases Unit $ Case Type $ $ $ $ Page of $ Case Type

59 Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Appendix G Unit Analysis Survey Question Do you have contracts with all expert witnesses used in your circuit? If so, are the deliverables and pay rates documented in the contract? Regularly uses Contracts Circuit Contracts Only When Required Does t Use Contracts Policy and Procedure Analysis Unit Low Unit High Unit Analysis Anaylsis, only those expert witnesses who's bililng for the fiscal year exceed the $, threshold. Contracts with All Experts Required Regularly Contracts Does t Circuits Uses Only When Use Responding Contracts Required Contracts Yes. Competency: Adult Criminal - $ per evaluation; $ for no shows. Competency: Juvenile Criminal $ per evaluation; $ for updated evaluation; $ for no shows. Developmental Disabilities - $ per luation; $ for no shows Examining Committee Member (Psychiatrist, Psychologist or Medical Physician) $ per evaluation. All other members or lay person - $ per evaluation Pre-bond screenings - $ per screening we do not have contracts with all of the experts used in our circuit. For the contracts we do have, the deliverables and pay rates are documented in the contract. We have contracts with deliverables and pay rates for those experts who are paid more then $, per fiscal year. The rates are $. and the rest of the witness' rates are $ flat fee per evaluation. The circuit does not currently have contracts with expert witness services. Yes, we place each expert witness under contract. The contract does not set the rate. The Administrative Order(s) establish the rate; the contract refers to the AO. Persons performing adult competency exams (mental illness) are contracted (see #). The Eighth Judicial Circuit does not have contracts with all expert witnesses. Individual experts in this Circuit have never exceeded $, per fiscal year., only main experts are under contract. In those contracts the deliverables and pay rates are documented in the contract., we only have contracts with doctors that may be paid more than $, in a fiscal year Yes. The contract incorporates the billing manual, which establishes the rates for compensation. Yes. Yes, we have contracts with all of our experts which document the fees to be paid. Yes, deliverables are clearly delineated in each of the contracts, i.e., compensation rate (flat fee), no show fees, involuntary hospitalization compensation rate (flat fee), travel time allowable only if greater than miles, each way. t all experts. Deliverables are documented in the contracts. In accordance with State Purchasing Directives, the th circuit only contracts with those expert witnesses where the circuit anticipates that payments to the expert during the fiscal year will exceed the $, minimum threshold., we do not have contracts with all of the expert witnesses used in our circuit. For those who do have a contract, the deliverables and pay rates are documented in the contract. The Circuit contracts with all Experts located within our Circuit and the deliverables and pay rates are documented in the contract. If the Court requires an examination of a defendant housed in Chattahoochee, the Circuit utilizes Experts on the nd Circuit s wheel. A special order of payment is drafted to reimburse the Psychologist for his/her services. Yes, we have contracts. Rates are documented but not deliverables $ Yes $ Number Percent.%.%.%.% Required $ Required $ $ Yes $ $ Yes $ Required $ $ $ Yes Required Yes $ Yes $ Required $ Yes th $ $ $ Yes Required The Circuit does not have contracts for all experts utilized as some do not meet the excess rate of $, annually. When contracts are used, deliverables and pay rates are documented in the contracts $ We have contracts with some of our expert witnesses. Administrative Order listing our rates is an attachment of the contract. All under contract; both documented. $ $ Required Page of Yes Summary: % of circuits have contracts with all expert witnesses used in their circuit and most of the contracts include the pay rates and deliverables agreed upon. Some circuits (%) enter into a contract only when the expert will be paid over $, per fiscal year. % of circuits report that they do not use contracts. Low Unit Analysis: Of the circuits displaying low unit costs, use contracts for all experts, do not use contracts, and use contracts only when required. High Unit Analysis: Of the circuits with high unit costs, use contracts only when required, use them for all experts, and does not use contracts. Conclusion: A contract with all deliverables and pay rates identified may be a useful tool for circuits to contain costs.

60 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Survey Question Does your circuit have set rate caps or ceilings? Yes Circuit Yes. See AO - attached. Yes, per the contract. Yes; a $ cap on any evaluation/travel time/ report Yes. Yes, our circuit has a flat rate of $. for competency evaluations, for guardianship examining committees: the flat fees established are $. for psychiatrist or physician, $. for a psychologist, licensed social worker, or advanced gerontology degree, or $. for lay-person. Yes, unless otherwise ordered because of extraordinary circumstances. Experts appointed for other types of services are paid not to exceed rates. Eighth Judicial Circuit Administrative Order.. APPOINTMENT OF EAMINING COMMITTEE MEMBERS FOR INCAPACITY PROCEEDINGS maintains a list of qualified examining committee members who are willing to accept a flat rate of compensation. A Florida licensed physician or psychiatrist is paid $ per case and all other members are paid $ per case. In Criminal cases the Order Appointing Expert Witness refers to JAC rates. Yes. Yes, per admin order.., the cap is $, per case unless court ordered otherwise Yes Set flat rates. Yes, a flat fee rate. Yes, we do have a cap of $, per case. Anything over that must have prior approval by the presiding judge. Yes. Yes Yes, we have a set rate for an evaluation. The th Circuit has a maximum rate of $. for a competency evaluation in criminal matters unless the expert moves the court for excess fees. For Guardianship Examining Committee Member appointments, the rates range from $. to $. per member. Process. We just go by the Administrative Order (AO sets standard rates, confirmed by OSCA staff) Yes. Unit Low Unit High Unit Analysis Anaylsis $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ Page of Policy and Procedure Analysis Set Rates Caps or Ceilings Set Rates Number Percent.% Circuits Responding.%.% Set Rates Summary: All responding circuits use rate caps or standard rates.

61 Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Appendix G Unit Analysis Survey Question.a. How do you define extraordinary rates? Anything in Caset Excess of Specific Defined Set Rates Factors Circuit Unit Policy and Procedure Analysis Low Unit High Unit Analysis Anaylsis Additional testing recommended by the expert appointed. CaseSpecific Any amount that exceeds the flat rates specific to the contract. t defined. When it exceeds $ we have to get a court order justifying the reason and the cost of the evalutaion. Extraordinary rates are over the flat fee approved by the Chief Judge with A---B. This is considered by the Chief Judge on a case-by-case basis. $ $ $ $ $ $ $ Any rate or fee amount above the set caps and limits. $ Anything over the set cap per admin order -. $ Any payment over the set rate caps or ceiling. $ Because more research is involved with involuntary hospitalization evaluations, experts earn $ per evaluation; therefore, we consider that rate extraordinary. In guardianships the evaluation is more complex or a different issue than determining capacity very rare. We have one Judge who orders more extensive evaluations by court appointed experts because of a belief that they are not satisfying the Daubert standard. Administrative Order that defines rates. Above the uniform rates. Summary: Most circuits consider anything over the set rate outlined in the contract or administrative order to be extraordinary. Several circuits () indicate that certain factors, such as travel time or extensive record review associated with evaluations, can lead to extraordinary rates; circuits do not define extraordinary rates. Low Unit Analysis: Of the circuits displaying low unit costs, consider anything over the standard rates to be extraordinary, indicate case-specific factors can lead to extraordinary rates, and does not define extraordinary rates but the judge will evaluate each scenario on a case-bycase basis. High Unit Analysis: Of the circuits with high unit costs, define anyting over the set rate as extraordinary, do not define extraordinary rates, and identify specific factors that can lead to extraordinary rates. Conclusion: Of the circuits that do not define extraordinary rates, have high unit costs. Having a written policy on extraordinary rates may help to control costs. Excess Excess Excess CaseSpecific Excess $ CaseSpecific $ Page of $ $ $.%.%.%.% $ $ $ Extensive record review and lack of cooperation of the defendant/aip are common reasons for requesting excess fees Circuits Responding Number Percent CaseSpecific t Defined Excess $ CaseSpecific Factors Excess Excess Excess Anything in Excess of Set Rates $ NA t defined. Evaluated on a case by case basis The circuit defines extraordinary rates as any evaluation invoice for payment that exceeds the circuit s established flat fee rate. It is determined by the presiding judge. Any request for payment outside the set rate caps or ceiling. Judge would approve costs over the minimum on a case-by-case basis, but factors would include travel time (if an expert was appointed outside of Monroe County) and the length of evaluation. Periodically we see these with nonenglish speaking defendants. Extraordinary Rates CaseSpecific Excess Excess

62 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Survey Question.b. Do you have procedures for extraordinary rates or circumstances? Please explain the procedure. Judicial Administrative Unit Approval Approval/ Procedure Circuit The moving party must move the court in a written motion for approval to exceed the caps outlined in AO -. Yes, the expert must receive approval from the presiding judge to receive payment over the contracted rates, prior to performing the services.. We defer to the judges on these rates and circumstances. The procedure is attaching the Court Order to the invoice for processing. The Chief Judge approves or denies all extraordinary rates. Yes. The Chief Judge presides over a weekly calendar to consider any requests for rates above and beyond our flat rates, hourly rates, or caps. See above. (Question.a. Answer: t defined. Evaluated on a case by case basis.) When an Order is entered with an unusual rate, an inquiry is made from the Judge whether that was the intended rate. Most times, it was not and an amended order is entered NA The Administrative Judge for said division must review and approve any order for payment in such circumstance. Yes. When the expert is requested to travel outside of the circuit to perform the evaluation they generally call our office for approval before they begin the evaluation. Also, experts in death penalty cases are approved by court order. The TCA must approve the expert s rates beforehand (this may include mileage, travel time, etc.) and the judge will list the exact dollar to be paid in the judge's order. Yes. In the rare instance where the court enters an Order of Evaluation and the expert s payment invoice for the evaluation exceeds the circuit s established flat fee rate, the AOC contacts the court who issued the Order requesting and requiring the court to prepare and enter an Order to Pay. It is not until the AOC receives the Order to Pay, does the AOC approve and submit the invoice to OSCA for processing and payment submission., we do not have procedures for extraordinary rates or circumstances. If an Expert must make an extensive review of collateral information, the Expert may make a written request to the presiding Judge for additional compensation. The amount of the additional compensation is on a case-by-case basis. Yes, doctor would request approval through judges office.. A Motion to the court for payment in excess of the cap rate is filed. If the court agrees the case was labor intensive, we often are able to simplify this process for the expert. The judge may state on the record that excess fees are granted and lists the reason. The use of CMO for billing purposes is then utilized Administrative Order that defines rates. Judicial approval is required for any experts that might exceed the standard rates (under a court s own motion by the presiding judge). Policy and Procedure Analysis Low Unit Analysis High Unit Anaylsis Extraordinary Rate Procedures Judicial Judicial Administrative Approval Approval/ Procedure $ Circuits Responding Judicial $ $ $ $ Judicial Judicial $ $ $ $ $ Judicial Admin $ Admin $ Admin $ $ Judicial $ $ Judicial $ Judicial $ $ $ Page of.%.%.%.% Judicial Number Percent Admin Judicial Summary: % of circuits require judicial approval for extraordinary rates, % allow for administrative approval, and % have no formal approval process for paying extraordinary rates. Low Unit Analysis: Of the circuits displaying low unit costs, require judicial approval, require administrative approval, and does not require approval. High Unit Analysis: Of the circuits with high unit costs, require judicial approval, require administrative approval, and circuits do not require approval for extraordinary payments. Conclusion: of the circuits that do not require approval of extraordinary payments have high unit costs. All circuits should consider policies that identify extraordinary rates and procedures for approving payments of these rates.

63 Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Appendix G Policy and Procedure Analysis Survey Question Do rates vary between different providers for the same types of services? Do rates vary by county? What factors contribute to this variation? Vary by Vary by Unit County/Travel Case Type Variation Circuit Rates do vary between counties to accommodate the distance an expert must travel. Most of our experts hold business addresses in Escambia. The rates in Okaloosa and Walton are a small percentage higher to accommodate the travel since travel time and travel expenses are not reimbursed to the experts. variations. Rates are about the same among those experts we have contracts with and those experts who are familiar with our circuit and administrative order. The range of fees varies slightly due to the complexity of the case and the time needed for the evaluation. The evaluator set the flat fee for the service and if the case is more complex, he will increase the fee as appropriate. Flat Rates for evaluations do not vary by provider. Flat rates with guardianship examining committees vary by education level associated with the requirements with the statute. Rates do not vary between different providers for the same types of services. Rates may vary by county based on geography. For example, we pay our Developmental Disability and Guardianship examining committees a slightly higher rate to accept cases in East Pasco, since it is the rural and less populated section of Pasco County and it is challenging to find experts to take cases there at the lower rates. Rates do not vary between providers for the same types of services and rates do not vary by county... N/A., see admin order -. for expert witnesses. There is no fee schedule for guardianship cases.. The th circuit is associated with county. to all. /t applicable, just the time it takes to perform the evaluation and write the report varies. The hourly rate remains the same, but the number of hours varies. Usually, if an expert witness is appointed that is headquartered out of circuit, their charge is more than those who are headquartered in the circuit. Some claim they are dictating the report as they drive back to their headquarters and count the time spent traveling. Standard Rates. Only variation is with members of a GEC* (*OSCA staff entered from invoice survey) Some don t charge travel and some charge an hourly rate that is less than the flat fee. Rates are uniform; travel expenses are allowed for services provided beyond headquartered-county. Variation in Rates by Provider/Expert Travel $ $ $ Number Percent Vary by County/Travel Vary by Case Type Variation Circuits Responding.%.%.%.% Case Type $ $ Case Type Travel $ $ $ $ $ $ $ $ $ $ $ $ Case Type th The rates do not vary between providers for the same type of service. In the Circuit, the rates do however vary by county. This variation is contributed to the geographic size of Brevard County and the expense of time and travel within the county Low Unit High Unit Analysis Anaylsis Travel $ $ $ Page of Travel Travel Summary: Most circuit (%) offer no variation in rates paid to experts. circuits allow for variation related to travel time or comuting to outlying counties; circuits indicate rates may vary by case type, such as for members of a Guardianship Examining Committee. Low Unit Analysis: Of the circuits displaying low unit costs, offer no variation in rates, have rates that can vary with travel, and have rates that can vary with case type. High Unit Analysis: Of the circuits with high unit costs, offer no variation in rates, have rates that can vary with travel, and has rates that vary by case type.

64 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Survey Question How did you determine your current rates (still using Indigent Services Committee recommendations, type of evaluation/service provided determines rates, individual negotiations with Circuit vendors, etc.)? Please provide detail for all types of evaluations. ISC ISC with Historical Unit Rates Increase Average The ISC approved and agreed upon the rates for our experts in, as memorialized in AO -. A survey was completed that looked at the rates paid to expert witnesses across the state. Rates were then determined by looking at the ) average rate the state was paying; ) average of second experts; ) the value on performance of services required to produce timely and excellent quality reports. We based our current cap on the amounts that we were paying our contracted experts which were all individual negotiations with those experts. We are using the ISC recommendations. Outlined in their recommendations are the types of evaluations and rates. See attached memo. The determination of current rates was based on an average cost of evaluations in fiscal year - when we noticed an increase with evaluations. See attached document entitled Source of Rates Provided. There are several different origins of our rates depending on the type of service Contract rates are established based upon historical usage. Per service rates have been in place for a number of years. Still using Indigent Services Committee recommendations for all except for guardianship examining committee. The rates were changed for the guardianship examining committee after a vendor requested an increase in the rates as the rates hadn t been changed in many years. The Circuit surveyed the other circuits and the Chief Judge set a new rate based on that survey. Admin order -. We are still using the Indigent Services Committee recommendations. For details, please refer to the attached billing manual. In an effort to try and contain the costs we switched from paying an hourly rate with a cap to a flat fee about years ago. We looked what our average cost was and also looked at the rates across the state to determine our flat fee. $ $ Historical Average Circuits Responding Number.%.%.% Historical Percent.%.% ISC $ Historical $ $ Historical $ ISC $ $ $ ISC $ Historical $ ISC $ th ISC ISC with Rates Increase Historical In the Circuit, we are still using the rates established by the Indigent Services Committee in. The rate for Expert Witnesses to determine competency is $/hour not to exceed $, per case. For Examining Committee members the rate has increase a little from the Indigent Services Guidelines from a flat rate of$ to $ for medical doctors or psychologists; and from a flat rate of $ to $ for the remaining two examining committee members. However, we receive invoices from medical professionals that are not under contract with us that far exceed those amounts. Current Rates $ th The circuit is utilizing the same flat fee competency evaluation rates in circuit/county criminal and juvenile delinquency cases which were established and adopted by the local Indigent Service Committee (ISC) in. Rates for evaluations in guardianship cases involving the appointment of the guardianship examining committee were increased in FY -. Low Unit High Unit Analysis Anaylsis ISC Our Experts have maintained rates from $ - $ for all types of evaluations since the State became responsible for payment of Expert Witness. (*Question response clarifies they use ISC rates) Policy and Procedure Analysis ISC Page of $ Summary: circuits are still using the rates developed by the Indigent Services Committee (ISC), circuits base their rates on historical averages, and use another method. Low Unit Analysis: Of the circuits displaying low unit costs, use the ISC rates, uses the historical average for their circuit, and use another method. High Unit Analysis: Of the circuits with high unit costs, use ISC rates, use historical averages, and use another method. Conclusion: Of the circuits that use a historical average to determine thier rates, of them have high unit costs. Circuits may wish to consider using the ISC rates developed for thier circuit.

65 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Survey Question How did you determine your current rates (still using Indigent Services Committee recommendations, type of evaluation/service provided determines rates, individual negotiations with vendors, etc.)? Please provide detail for all types of evaluations. ISC ISC with Historical Unit Rates Increase Average Circuit For competency evaluation rates, Circuit staff surveyed other circuits and used that information as the basis for establishing the Circuit s basic flat rate. However, after some lobbying by the Psychologists who were seeking additional for neuropsychological reports and evaluations for persons with intellectual disabilities, the Still using compensation ISC recommendations. Based on the particular specialty. Originally we used JAC rates but have increased the rates because we were unable th to to accept ourutilize rates. the Indigent Services Committee recommended rates in determining the established In get the experts Circuit, we still Low Unit High Unit Analysis Anaylsis Historical $ ISC $ $ ISC rates Standing area practice rates. Indigent Services Committee rates govern: EPERT WITNESS FEES th Judicial Circuit Indigent Services Committee (ISC) Rates Circuit-Wide For Services Performed On or After October, Investigators $. per hour General Expert Witness Fee in-court or out-of-court $. per hour Psychological Exams $. per exam Psychologist out-of-court $. per hour Psychologist in-court or depo testimony $. per hour Medical Doctor out-of-court t to exceed $. per hour Medical Doctor in-court or depo testimony t to exceed $. per hour Page of $ $ $ ISC

66 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Survey Question If your circuit s rates are based on Indigent Services Committee recommendations, when were they established and have they been increased since then? Original Increased t Rates ISC Rates Applicable Circuit Established. increases but for Court Reporter fees. See AO -, attached. N/A Uses Historical Average* (*OSCA staff entered based on Question response) We are using the ISC recommendations from June. The rates have not been increased since and need to be reviewed to determine if they should be increased. This question is not applicable to our circuit. See question and attached document. Most of our rates have not increased since approximately. NA $ $ $ $ $ $ $ There have been no changes made since our admin order -. (May, ) They were established approximately years ago and have not been increased since then. n/a The circuit s flat fee evaluation rates were established and adopted by the local ISC in. The flat fee rates have remained the same, with the exception of the Guardianship Examining Committee rates which were increased in FY -. NA NA Original.%.%.% Circuits Responding.% NA $ NA $ Original NA $ Original $ Original $ $ $ NA Original NA $ th Original The rates were established in by the Indigent Service Committee for the Circuit. The rates have not increased since that time Yes, in some rates increased marginally. Established on October, ; last amended on August,. Number Percent Increased ISC Rates NA NA th N/A Have not been increased. Yes, as stated in # we based our rates on JAC rates when they established them. They have increased. ISC Rates $ Rates NA The Circuit rates for expert witnesses are based on the Indigent Services Committee s recommendations which were established June,. The rates for expert witnesses for competency cases have remained the same. The rates for the examining committee members have increased since then. (See answer to #.) High Unit Anaylsis $ The Eighth Circuit rates are reflective of the Indigent Services Committee recommendations and have not increased. The rates were established in January of and have not been increased since then. Low Unit Analysis Original Unit Policy and Procedure Analysis $ Page of $ NA $ Original Summary: Of the circuits that base thier rates on the ISC rates, all are using the original rates. circuits do not use the ISC rates. Low Unit Analysis: Of the circuits with low unit costs, use the original ISC rates, do not. High Unit Analysis: Of the circuits with high unit costs, circuits use the original ISC rates, do not. Conclusion: Using the original ISC rates may have helped circuits contain costs, however, since they were set in, it may not be reasonable for all circuits to use those rates at this time.

67 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Survey Question What other factors do you believe may have impacted the level of the rates set in your circuit (geographic region, availability of licensed professionals, etc.)? Please provide as many examples as you would like. Circuit Unit Analysis Policy and Procedure Analysis Geographic Low Unit High Unit Region/Availablilty t Unit of Licensed Applicable Analysis Anaylsis Professionals Factors Impacting Rates The First Judicial Circuit has minimal experts willing to perform these competency to proceed evaluations. Our circuit is spread over miles with of our counties being smaller, rural communities. This affects our available experts. To encourage experts to participate, our rates appear higher than in larger, cosmopolitan, metropolis areas of the state; but this is necessary due to the distance travel, the availability of willing experts, and the amount of work to be performed. Availability of licensed professionals, Quality of the detail of the products, Willingness to travel circuit-wide Because of our rural area, we are very limited in the number of experts who are close enough to provide services and must often reach out to experts living outside of the circuit. Consequently, we are also limited in the number of experts who are willing to travel without being compensated at a higher rate than our current $ cap. We strive to keep the rates between $-$ as set forth by the ISC. However, the th circuit has many high profile cases in Criminal and Juvenile Court which require complex evlauations and examinations. Geo Geographic t Circuits Region/Availablilty of Applicable Responding Licensed Professionals $ $ Geo $ NA The Eighth Judicial Circuit has adequate availability of licensed professionals who have maintained the rates charged for services to the Court. NA N/A other factors outside the ISC recommendations have impacted the level of rates in our circuit. n/a From our circuit s perspective, the circuit s historical expert budget allocation coupled with the number of evaluations ordered by the courts has greatly factored into the circuit s ability to maintain its longstanding flat fee evaluation rate. th The Circuit is spread out geographically across six counties, mostly rural. We only have a few expert witnesses who reside in the circuit, and often use expert witnesses who have to travel to our circuit. Also, expert witnesses, including examining committee members, who are appointed and are not under contract tend to charge more. Percent.%.%.%.% $ Geo We have taken into consideration what neighboring circuits pay when establishing our rates. The geographic region of the five county-circuit, and availability of licensed professionals trained to provide this specialized service are factors considered in setting the rate for evaluations. Number Geo $ $ $ NA NA $ $ NA $ NA $ $ NA NA $ Geo $ Page of Summary: % of circuits feel the geography of their circuit and the lack of availability of licensed professionals contribute to expert witness rates. % do not identify any factors that affect their rates, and % indicate other contributing factors. Low Unit Analysis: Of the circuits displaying low unit costs, attribute their rates to geography, to other causes, and do ot identify any factors. High Unit Analysis: Of the circuits with high unit costs, attribute their costs to geography, to other factors, and do not identify any factors that affect rates. Conclusion: The geographic location and size of the circuit likely contribute to availability of licensed professionals and impact rates.

68 Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Appendix G Survey Question Unit Analysis What other factors do you believe may have impacted the level of the rates set in your circuit (geographic region, availability of licensed professionals, etc.)? Please provide as many examples as you would like. Geographic Low Unit High Unit Region/Availablilty t Unit of Licensed Applicable Analysis Anaylsis Professionals Circuit The Circuit s rates for competency evaluations are acceptable based on the fact that the Circuit has a pool of are willinggeography to provide of thethe evaluations at the rate offered. If we increased the Lack ofexperts licensedwho professionals; Florida Keys Geo $ Availability of licensed professionals. Geo The primary factors that impact the rate are funding allocations, statistical data as well as the number of available professionals available to accept cases at a discounted rate of compensation. We also looked at the statewide rates and made sure we were within limits of local practice rates $ Geo $ Isolated geographical region coupled with high demand for overall medical services in SWFL has placed an upward pressure on the th s frozen (ISC) rates. $ $ Geo $ Page of

69 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Survey Question Are there any procedures or strategies you have implemented in your circuit related to containing expert witness costs that may help other circuits? Flat Judicial t Unit Combination Rates Education Applicable Circuit We no longer pay associated travel costs, but rather pay the expert witness a flat rate per evaluation in the outlying counties. than an administrative order to try to cap some of the fees, no. The registry as a cost containment measure and the Chief Judge s active involvement with communication with line-judges has helped tremendously. The Chief Judge provides continuous education and internal communication (via and during meetings) on evaluations with the Administrative Judges, and other presiding Judges who cover Felony, Misdemeanor, and Delinquency cases. The recent change from hourly rates to a flat rate for examining committee members in incapacity proceedings has helped to contains costs in this area. One person with experience on what is to paid processes all invoices. Additionally, General Counsel investigates any invoices that are out of the ordinary or if there are other issues. General Counsel is also working on a comprehensive memo to the Judges and all involved parties outlining what will be paid by the Court and what is required. It is a work in progress. Judges are told periodically at judges meetings how much we have spent on expert witness fees; they are also informed of our ranking in the use of expert witness fees compared to other circuits and they are informed of how many expert witnesses are appointed on each case (-) with the hope that this awareness will make them sensitive to the amount of payments the AOC makes to expert witnesses. Judicial Education Combination t Applicable Circuits Responding Number Percent.% Combo $ $.%.%.%.%.% Jud Ed $ Jud Ed $ Combo See contract referenced in #. Flat Rates $ Our Chief Judge considers, at a formal hearing, any exception to our established rates. This helps with consistency and cost containment. We also use a flat rate in many categories which assists in mitigating the volatility of the costs. Also, by keeping our rates similar to neighboring circuits, we are helping to contain costs. Additionally, we utilize a state-funded staff psychologist for most of our adult competency exams and county-funded psychologists for most of our juvenile competency examinations. If we did not have these resources, our need for expert witness funds would increase sharply. Finally, in guardianship cases, we recover the costs of the examining committee evaluations in appropriate cases (where the ward is determined to be solvent). Containment Strategies Flat Low Unit High Unit Analysis Anaylsis The second circuit began contracting with expert witnesses in July which has been extremely helpful in the containing costs due to the flat rates for services. In addition, the circuit provides judicial education through lunch and learns as well as database monitoring to ensure the number of evaluations is not exceeding the amount set in statute. Finally, the circuit attempts to always use the same expert to do updated evaluations to try and keep costs down. Educating our judges to make sure that they only order an expert witness when the Court deems it necessary. This precludes the Court from paying for expert witnesses that the SA or PD should be paying for. Policy and Procedure Analysis $ Flat $ Flat $ Combo $ Flat $ Page of Summary: Circuits use a variety of cost containment measures. Low Unit Analysis: Of the circuits displaying low unit costs, use a combination of measures, relies on frequent judicial education and communication, rely on other methods and do not identify any methods for const containment. High Unit Analysis: Of the circuits with high unit costs, recommend using flat rates, use other methods, focus on judicial education, and do not identify any specific cost containment measures. Conclusion: Circuits that employ a combination of judicial education and internal controls seem to have the lowest unit costs in the state (Circuits,, and are examples). All circuits should consider an internal review system as it pertains to payment of expert witness invoices in addition to educating judges and staff on the content of the orders as well as the courts responsibility for payment. The updated payment responsibility matrix could be a useful tool in judicial and staff education.

70 Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Appendix G Unit Analysis Survey Question Are there any procedures or strategies you have implemented in your circuit related to containing expert witness costs that may help other circuits? Flat Judicial t Unit Combination Rates Education Applicable Circuit The procedure regarding reviewing extraordinary rates, as mentioned in question # above, may assist other circuits in containing expert witness costs. n/a $ $ th Educating our judges to read the orders thoroughly appointing the expert witness to make sure it doesn t include determination of sanity at the time of offense has been one practice we have implemented that has helped. The Circuit employs a Mental Health Case Manager [MHCM] to document the appointment of Experts and ensure that the procedures are followed. Upon the receipt of the Expert invoices, should the Finance Department question the cost, the MHCM is also responsible for verifying that the services were actually provided. NA. $ Jud Ed $ $ $ NA $ NA th Circuit makes every attempt to research the legitimacy of a second or third evaluation. However, due to ambiguous legislation, curbing costs is very difficult, especially in cases where autism or developmental disabilities are suspected. Sequential appointment of experts (as may prove necessary); responsive relationships with vendors to aid invoicing submissions and any other challenges with Florida s vendor payment systems. NA Combo The circuit only authorizes a one () time no-show payment of $.. The circuit has a two () step review and approval process in place on all evaluation Orders to ensure the circuit is responsible for and authorized to submit the invoice for final payment. The circuit also uses this process to ensure that costs of evaluation orders containing competency and sanity are spilt proportionately among the responsible payors. Low Unit High Unit Analysis Anaylsis Page of $ $ $ NA

71 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Survey Question In order to ensure the accuracy of the calculation, please review the attached UDR charts (Attachment D Expert Witness UDR data ) and indicate any discrepancies. Accurate Corrections Circuit discrepancies based on data maintained by the First Judicial Circuit. issues with the data Reported updates to OSCA through UDR input portal According to our in house UDR, the data present in the Expert Witness is correct with the Committee's figures. NA We report our UDR data by the number of orders instead of the number of invoices. The expenditure column reflects payments of invoices. We are not comparing apples to apples. Moving forward, we will be reporting by number of invoices for our UDR data. This way it will align more accurately with the expenditure column. NA The UDR charts reflect the data that was entered. The cost per event is within our rates of $ - $ per event. GUARDIANSHIP EAMINING COMMITTEE DATA IS WRONG. INDICATES BUT THE NUMBER SHOULD BE. Also, I know there were some cases involving developmental disabilities but no independent data was kept for these case. For the future, we will count these as separate cases. NA See response below. A review of Attachment D indicates a discrepancy in the amount of competency evaluations performed for Intellectual Disability and Autism (Developmental Disability) in this circuit. The UDR states, when the circuit s statistics reflect approximately. NA discrepancies. There were some events counted as guardianship examining committees that should have been counted as developmental disability examining committee events. Four of the guardianship examining committee events should have been counted as developmental disability examining committee events for FY - and two more additional events should be added to the developmental disability examining committee for FY -. Specifically, three events for the developmental disability examining committee occurred in vember and three events for developmental disability examining committee occurred in March. discrepancies. NA Page Competency Evaluations Circuit Criminal should be ; County Criminal should be. th The Circuit finds no discrepancies in Attachment D Expert Witness UDR data chart Accurate discrepancies. Unit Policy and Procedure Analysis Low Unit High Unit Analysis Anaylsis Accurate Accurate $ $ $ Accurate Corrections Accurate $ $ Accurate Accurate $ $ $ Accurate Accurate Corrections $ $ Accurate Corrections $ $ $ Accurate Accurate Corrections Page of Accuracy of UDR Data $ $ Accurate $ Accurate $ Corrections $ Accurate $ $ Accurate Accurate Number Percent.% Circuits Responding.%.% Corrections Summary: % of circuits confirmed the accuracy of their UDR data and % submitted corrections. Low Unit Analysis: Of the circuits displaying low unit costs, confirmed accurate data so their unit cost calculations should be correct, reported corrections which have been incorporated into the updated unit cost calculation. High Unit Analysis: Of the circuits with high unit costs, confirmed accurate data and reported corrections. Conclusion: Uniform and accurate reporting of event data by all circuits is critical if UDR data is to be used in allocation or funding formulas.

72 Appendix G Circuit Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Unit Analysis Survey Question For purposes of reporting UDR, are all events related to the same expert and case reported as one event or would they be reported as multiple events if they take place at different times? For example, would the evaluation, report, and testimony be counted as one event or three events? One Multiple Invoice Unit Event Events Dependent It depends on how they are invoiced. Most of the time the evaluation and report are invoiced as one event and subsequently reported as such. However, if the report or testimony is ordered seperately and then invoiced seperately, they would be reported as seperate events. All events are recorded as separate events for reporting purposes. Our circuit reports all of the events related to the same expert and case as one event. The evaluation and report is counted as one event and if they are called to testify, this is considered another event. The evaluator is paid seperately for his testimony, separate from his report and evaluation. The circuit reports the number of evaluations conducted by the experts each month if they take place on different dates. It depends on how the expert submits the invoice. If he or she submits a separate invoice for each event, the events would be reported separately. One event. If there are multiple events, which are not on the same invoice they are counted separately (evaluation testimony). If all events are listed on the same invoice it would be reported as one event. First, it is my understanding the Court does not pay for testimony. We were informed of that last year or the year before by OSCA, I believe. Second, each invoice is counted as one event so for example there are three members of the guardianship committee so that would be counted as for each case. As to criminal cases, each expert is counted as one and could be counted more than once if the expert evaluates the defendant multiple times. Each time the expert submits an invoice that is processed for payment that is what is counted. The events are counted per invoice. For example, the doctor may invoice for the exam, testing and report writing all on one invoice. This is counted as one event. If the doctor then testifies a month later and invoices us again, the second invoice is counted as another event. It could be reported as multiple events depending on the invoice submission in accordance with the billing manual, attached. We count it as one event. A single event. In the th circuit, all evaluation events related to the same expert is counted as a single event and paid a flat fee rate. The flat rate includes review of criminal and medical records, pleadings, travel to and performance of the evaluation examination, prep time and drafting of the evaluation report, and testimony, including travel time to and wait time to testify. Low Unit High Unit Analysis Anaylsis $ Multiple One $ $ $ $ Multiple Invoice $ $ One event. Number Percent.% Multiple Events.% Invoice Circuits Dependent Responding.%.% One Invoice $ Invoice $ Invoice $ Invoice $ $ One One $ Multiple th The Circuit s reporting practices are to report the evaluation, report and testimony as one () event for the purposes of the UDR data submitted They are reported as multiple events. Evaluation and report would be one event. Testimony would be one event. One Event Multiple One event They would be separate events. We count the number of evaluations received each evaluation is event Reporting Events for UDR Invoice The evaluation and report would be counted as one event. If testimony took place, we would count that as a separate event. Policy and Procedure Analysis Page of One $ $ $ $ Multiple $ Multiple One $ $ Multiple One Summary: Circuits are divided as to how they report the events related an expert witness evaluation with circuits counting it as one event, as multiple events, and basing the count on what appears on the invoice. Low Unit Analysis: Of the circuits displaying low unit costs, report each event seperately for UDR purposes, report it as one event, and report events based on the invoice. High Unit Analysis: Of the circuits with high unit costs, report activities as one event, report them as multiple events, and rely on the invoice to determine how many events to report. Conclusion: For the circuits with high unit costs that report their activities as a single event, this could be falsely inflating their unit costs. All circuits should be reporting events using the same method.

73 Appendix G Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February ) Comments Circuit N/A N/A N/A Due process costs continue to increase for our Circuit. Allotments need to be adjusted to ensure Circuits have enough funds to cover these expenses. See survey. In completing this survey we have noticed some issues with our UDR data that we are addressing. For example, in some cases where another stakeholder prepares the order, we are not sure those cases are being captured in our reporting. We also noticed a discrepancy with our Disability Examining Committee reporting. We are researching these issues and addressing them for future UDR reporting. It also recently came to our attention that the Agency for Persons with Disabilities (APD) was selecting and paying for experts in adult competency cases. We have worked with APD to remedy this. This will likely have a $, or more annual impact to our due process budget. N/A N/A Any uniform guidance you can give on this area will be extremely appreciated. N/A N/A N/A N/A One area of concern is that often times the expert witnesses, particularly guardianship and developmental disability examining committee members who are not under contract, will submit invoices up to a year after the actual event. This impacts our budget as well as our UDR numbers. The Circuit must increase the number of medical doctors on the examining committee but we are limited by our available funds. The Circuit is challenged by the Public Defender requesting additional evaluations when a specific hospital has deemed a defendant competent. The Circuit faces challenges with guardians of wards, who, ordered to pay the examining committee do not do so in a timely manner. The delay in payment has caused the Circuit to lose members of the examining committee. N/A N/A The th Circuit feels the remedy is for the requestor to pay for Competency Evaluations. Having the requestor pay will add discipline to the spending. Currently, everyone knows the courts will pay for at least the first evaluation. It s easy for someone to spend the Court s funding. If the requestor is required to pay, there will be more soul searching before asking the court to order the evaluation. The only time the courts should pay is when no one except the judge wants the evaluation. N/A See survey for detailed chart. Measuring the period of Jan. through Dec. (prior months), the th s increase in overall forensic evaluations spiked upward by % when comparing the first months of Jan. through Jun. against the most recent month period of Jul. through Dec.. Page of

74 Appendix H Agenda Item II.A.: Rate Structure Options Due Process Workgroup May,, Conference Call Expert Witness Rate Statistics by Circuit Size and Type of Evaluation Adult Competency Juvenile Competency Type of Evaluation Number of Invoices Number of Invoices Number of Invoices Guardianship Examining Committee Number of Invoices Developmental Disability Examining Committee Small Circuits Medium Circuits Large Circuits -Large Circuits Total Mean $ $ $ $ $ Median $ $ $ $ $ Mode $ $ $ $ $ Mean $ $ $ $ $ Median $ $ $ $ $ Mode $ $ $ $ $ Mean $ $ $ $ $ Median $ $ $ $ $ Mode $ $ $ $ $ Mean $ N/A $ N/A $ Median $ N/A $ N/A $ Mode N/A N/A $ N/A $ Travel Invoices $. - $ Flat Invoices $. - $ Hourly Invoices $ - $ Show/Loss of Income invoices $ - $ Page of

75 Appendix H Adult Competency - Felony Criminal Rate Comparison Number of Invoices Flat Rates Only Hourly Rates Only Both Under $ $ $ - $ $ - $ $ - $ $ - $ $ - $ $ - $ $ - $, $, & Over Total Under $ Number of Invoices $ $ $ Percent of Invoices.%.%.%.%.%.%.%.%.%.%.% $ $ $ $ $ $ $ $ $ $ $ $ $ $, Flat Rates Only Hourly Rates Only Cumulative Percent.%.%.%.%.%.%.%.%.%.% Circuits within Rate Ranges,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, Page of $, and over Both Total Number of Invoices Flat Rates Only.% Hourly Rates Only.% Both.% Total.% Small Circuits Medium Circuits Large Circuits Red Blue Green

76 Appendix H Adult Competency - Misdemeanor Criminal Rate Comparison Number of Invoices Flat Rates Only Hourly Rates Only Both Under $ $ $ $ $ $ Flat Rates Only $ Hourly Rates Only $ $ $ $ $ $ $ $ $ $, Both Number of Invoices Percent of Invoices Cumulative Percent Under $.%.% Flat Rates Only.% $.%.%,, Hourly Rates Only.% $ - $.%.%,,, Both.% $ - $.%.%,,, Total.% $ - $.%.%, $ - $.%.%, Small Circuit Red $ - $.%.% N/A Medium Circuit Blue $ - $.%.% N/A Large Circuit Green $ - $,.%.% Total.% Circuits within Rate Ranges Page of Total Number of Invoices

77 Appendix H Juvenile Competency Rate Comparison Number of Invoices Flat Rates Only Hourly Rates Only Both Under $ $ $ $ $ Flat Rates Only Under $ $ $ - $ $ - $ $ - $ $ - $ $ - $ $ - $ $ - $, $, & Over Total Number of Invoices Percent of Invoices.%.%.%.% Cumulative Percent.%.%.%.%.%.%.%.%.%.%.%.%.%.%.%.%.% $ $ $ $ $ Hourly Rates Only Circuits within Rate Ranges,,,,,,,,,,,,,,,,,,,, N/A Page of $ $ $ $ $ $ $ - $, $, and over Both Total Number of Invoices Flat Rates Only.% Hourly Rates Only.% Both.% Total Small Circuit Medium Circuit Large Circuit Red Blue Green.%

78 Appendix H Guardianship Examining Committee Rate Comparison Number of Invoices Under $ Flat Rates Only Hourly Rates Only Both $ $ $ $ $ $ $ Flat Rates Only Under $ $ - $ $ - $ $ - $ $ - $ $ - $ $ - $ $ - $ $ - $ $ - $ Total Number of Invoices Percent of Invoices.%.%.%.%.%.%.%.%.%.%.% Cumulative Percent.%.%.%.%.%.%.%.%.%.% $ $ $ Hourly Rates Only Circuits within Rate Ranges,,,,,,,,,,,,,,,,,,,,,,,,, N/A Page of $ $ $ $ $ $ $ $ $ $, Both Total Number of Invoices Flat Rates Only.% Hourly Rates Only.% Both.% Total.% Small Circuit Medium Circuit Large Circuit Red Blue Green

79 Appendix H Guardianship Examining Committee Rates by Type of Expert and Circuit Circuit Type of Expert $ $ $ - M.D. - $ - $ $ $ - $ $ $ - $ - $ - - $ $ $ - $ - $ - PhD $ $ $ - - $ $ $ $ - $ - $ - $ D.O $ ARNP $ $ $ RN $ $ $ MSW-LPN - $ $ $ $ - $ - LCSW $ $ $ $ - Lay Person $ - $ $ Unknown $ $ $ - - $ Page of

80 Appendix H Developmental Disabilities Examining Committee Number of Invoices Flat Rates $ $ $ $ - $ $ - $ Number of Invoices Percent of Invoices.%.% Cumulative Percent.%.% $ - $.%.%, $ - $.%.% Total.% $ Circuits within Rate Ranges N/A Page of $ $ Total Number of Invoices Flat Rates Total Small Circuit Red Medium Circuit Blue Large Circuit Green

81 Appendix I Private Court Appointed Counsel / Indigent for s Due Process Rates - Expert Witness (Mental Health) As Reported on Justice Administrative Commission's Website August * Out of Court / Preparation & Evaluation In-Court Deposition Time Waiting to Testify Consultation w/ Atty Travel to Court Circuit County Rate Unit Rate Unit Rate Unit Rate Unit Rate Unit Rate Unit Escambia $ per hour Santa Rosa $ per evaluation Okaloosa $ per evaluation Walton $ per evaluation All $ per hour All $ per hour All $ per case All $ per evaluation $ per hour $ per hour $ per hour $ per hour $ per hour All $ per evaluation $ per hour $ per hour $ per hour $ per hour $ per hour All $ flat rate - max $ per hour Psychological exams $ flat rate range - min All $ flat rate range - max Psychologist All $ per hour range - min $ per hour range - max $ (Court) All $ per exam $ per hour $ per hour $ (depo) per hour $. per hour Psychiatrists All $ per hour $ per hour $ per hour $ per hour $ per hour $ per hour Psychologists All $ per hour $ per hour $ per hour $ per hour $ per hour $ per hour Psychological/competency evaluations - $ flat rate $ per hour $ per hour $ per hour $ per hour Psychological evaluation or psycho diagnostic clinical interview at the State Hospital - $ flat rate $ per hour $ per hour $ per hour $ per hour Extended psycho diagnostic clinical interview in a Mentally Deviate Sex Offender case - $ flat rate $ per hour $ per hour $ per hour $ per hour Family psychological evals and evals of a child's ability to testify in dependency or TPR cases - Adult exam - $ flat rate $ per hour $ per hour $ per hour $ per hour Family psychological evals and evals of a child's ability to testify in dependency or TPR cases - Child exam - $ flat rate $ per hour $ per hour $ per hour $ per hour All $ flat rate $ per hour $ per hour $ per hour Page of

82 Appendix I Private Court Appointed Counsel / Indigent for s Due Process Rates - Expert Witness (Mental Health) As Reported on Justice Administrative Commission's Website August * Out of Court / Preparation & Evaluation In-Court Deposition Time Waiting to Testify Consultation w/ Atty Travel to Court Circuit County Rate Unit Rate Unit Rate Unit Rate Unit Rate Unit Rate Unit Competency Evaluations - $ per evaluation Mental Health Examinations in Civil Cases - Psychiatrists and Medical Doctors - $ per evaluation Mental Health Examinations in Civil Cases - Laypersons - $ per evaluation All $ per hour $ flat fee Psychological Examinations - $ per exam $ per hour $ per hour Medical Doctors (Including Psychiatrists) - $ per hour $ per hour Psychological Examinsations - Medical Doctor (including Psychiatrist) - $ per exam Psychological Examinsations - Psychological - $ per exam Psychological Examinations - Competency - $ flat rate $ per hour $ per hour $ per hour Psychological Examinations - Downward Departure - $ flat rate $ per hour $ per hour $ per hour Psychological Examinations - Insanity Evaluations - $ per hour $ per hour $ per hour $ per hour Psychological/Competency Examinations All $ per hour $ per hour $ per hour $ per hour Medical Doctors and Psychologists first hour or first hour first hour All $ less $ or less $ or less $. per hour per hour per hour All $ thereafter $ thereafter $. thereafter Rates for Mental Health experts are not addressed in circuit's A.O.'s All $ flat rate $ per hour $ per hour * Established Indigent Services Committee rates as compiled by the Justice Administration Commission Page of

83 Appendix I Private Court Appointed Counsel / Indigent for s Due Process Rates - Expert Witness () As Reported on Justice Administrative Commission's Website August * Out of Court / Preparation & Evaluation In-Court Deposition Time Waiting to Testify Consultation w/ Atty Travel to Court Circuit County Rate Unit Rate Unit Rate Unit Rate Unit Rate Unit Rate Unit Professional Service Fees for Experts All $ per hour Witness Fees for Experts All $ per hour $ per hour $ per hour $ per hour $ per hour Licensed Nurse Practitioners All $ per hour $ per hour $ per hour $ per hour All other professional service providers All $ per hour $ per hour $ per hour $ per hour $ per hour Experts other than Mental Health All $ per hour professional service providers $ per hour range - min All $ per hour range - max All $ per hour All Professional Experts All $ per hour $ per hour $ per hour $ per hour $ per hour $ per hour Experts All $ per hour $ $ per hour $ per hour Licensed Nurse Practitioners All $ per hour $ per hour $ per hour $ per hour Professional service fees for Experts All $ flat rate $ per hour $ per hour $ per hour $ per hour $ per hour MSW or other master's level expert, R.N. & L.P.N. and other miscellaneous experts All $ per hour $ per hour $ per hour $ perhour $ per hour All $ per hour range - min $ per hour range - max Expert Witnesses $ per hour range - min All $ per hour range - max Experts All $ per hour range - min $ per hour range - max All $ per hour $. per hour $ (Court) $. (depo) per hour $. per hour All $ per hour $ per hour $ per hour $ per hour $ per hour $ per hour Page of

84 Appendix I Due Process Rates - Expert Witness () As Reported on Justice Administrative Commission's Website August * Out of Court / Preparation & Evaluation In-Court Deposition Time Waiting to Testify Consultation w/ Atty Travel to Court Circuit County Rate Unit Rate Unit Rate Unit Rate Unit Rate Unit Rate Unit - $ per hour $ per hour $ per hour $ per hour $ per hour $ per hour Pre-Trial Experts - $ per hour $ per hour $ per hour $ per hour Lay Experts - $ flat rate - $ per hour Medical Doctors $ (Depo) $ (Out of All $ per hour Court) per hour $ per hour Experts All Must be appointed by the court. Fees set by the judge, not to exceed $. per hour Chapter Experts All $ flat rate - $, max per case Professional Experts Experts All $ per hour $ flat fee Ph.D., Doctorate, MSW & Master's Level Experts - $ per hour $ per hour Nurses - ARNP & Physician's Assistant - $ per hour Medical Doctors - $ per hour $ per hour Expert Witnesses - $ per hour $ per hour $ per hour $ per hour Pre-Trial Experts - $ per hour $ per hour Experts first hour or first hour or Per hour All $ less $ less $ (Court) $. per hour All $ per / hour thereafter $. per / hour thereafter N/A Per hour (Depo) All n-mental Health Experts: $ per hour General Expert Witness All $ per hour $ per hour Medical Doctors All Up to $ per hour Up to $ per hour * Established Indigent Services Committee rates as compiled by the Justice Administration Commission Page of

85 Appendix J Uniform Invoice for Expert Witness Services Vendor Information Invoice # FLAIR # Name: Address: City/State/ZIP: Telephone: SSN or FEIN #: Month/Year: Circuit: County: Contract.: Contract Expiration Date: te: Pursuant to s.., F.S., payments related to determinations of sanity at the time of the offense are not the responsibility of the court and should not be reported on this invoice. Expert Witness Services Provided Hourly Rate Service Date Case Number Defendant's Name Type of Evaluation Court Division Activity Related to Evaluation Flat Rate Total Payment Start Time End Time Number Hourly Rate Total of Hours $. $. $. $. $. $. $. $. $. $. $. Total $. $. Attach Copy of Judge's Order for Payment I attest the above information is true and correct. Summary of Contractual Services Agreement Attached (Mandatory*) Travel Voucher Attached (If Applicable) *Unless total amount of services purchased is less than $ per fiscal year and no contract has been executed. This section to be completed by Court Administration Date Invoice Received: Date Goods/Services Received: Received By: Date Goods Inspected/Approved: Inspected/Approved By: Contractor/Vendor Trial Court Administrator Date Pursuant to s.., F.S., I certify these costs are just, correct, and reasonable, and contain no unnecessary or illegal items. Date Organizational Code Category: EO: Object Code: C K Payment Amount - Page of

86 Appendix J Instructions for Uniform Invoice for Expert Witness Services Vendor and Circuit Information Section ( Major Changes) Information on the vendor, information related to the circuit and county in which the work was performed, as well as the invoice, FLAIR, and contract numbers are captured in the introductory section of the invoice, as illustrated in the example below. Invoice # Uniform Invoice for Expert Witness Services FLAIR # Vendor Information Name: Month/Year: Address: Circuit: City/State/ZIP: County: Telephone: Contract.: SSN or FEIN #: Contract Expiration Date: Expert Witness Services Provided Section (Major Changes) This section is designed to be completed by the expert and captures information related to the date of service, case number, defendant s name, type of evaluation, division of court, activity related to the evaluation, and rates of pay for each event performed by the expert. Experts may use the same form to report up to evaluations or activities. The Type of Evaluation, Court Division, and Activity Related to Evaluation columns use drop-down menus from which the appropriate selection should be made. The drop-down menu for Type of Evaluation requires that the user select the evaluation type based on the contract or court order. This is designed to ensure that the evaluation is being performed and counted pursuant to specific statutory authority, as indicated in the example below. Expert Witness Services Provided Hourly Rate Service Date Case Number Defendant's Name Type of Evaluation Court Division Activity Related to Evaluation Flat Rate Payment Total Start Time End Time Number Hourly Rate of Hours Total $. $. $. $. Drop Down Menu for Type of Evaluation - Adult Competence (ss..,., F.S.) - Adult Competence (ss..-., F.S.) - Adult Competence Death Penalty (s.., F.S.) - Adult Competence Sentencing (s.., F.S.) - Adult Competence Sentencing (s.., F.S.) - Juvenile Competence Mental Illness (s.. ()(d), F.S.) - Juvenile Competence Intellectual Disability or Autism (s..()(e), F.S.) - Developmental Disability Examining Committee M.D./Ph.D. (s.., F.S., Involuntary Admission to Residential Services) - Developmental Disability Examining Committee MSW/MS (s.., F.S., Involuntary Admission to Residential Services) - Guardianship Examining Committee M.D., Ph.D., D.O. (s.., F.S.) - Guardianship Examining Committee ARNP, RN, LPN, LCSW, MSW, Lay Person (s.., F.S.) - Examination Page of $. $. $. $. $. $. $. $. Total $.

87 Appendix J The user should select the appropriate option in the Court Division and Activity Related to Evaluation columns for which he or she is performing the work, as indicated in the example below. Drop Down Menu for Court Division - Circuit Criminal (CF) - County Criminal (MM) - Circuit Civil (CA) - Family Court - Dependency (DP) - Family Court - Delinquency (CJ) - Probate/Guardianship (CP) - Expert Witness Services Provided Hourly Rate Service Date Case Number Defendant's Name Type of Evaluation Court Division Activity Related to Evaluation Flat Rate Payment Total Start Time End Time Number Hourly Rate of Hours Total $. $. Drop Down Menu for Activity Related to Evaluation - Evaluation - Follow-Up Evaluation - Show/Unable to Evaluate - Travel Time - Testimony - Activity $. $. $. $. $. $. $. $. $. $. Total $. Payment Information Section (Major Changes) The invoice uses separate columns to capture flat rates and hourly rates. Users should fill in the appropriate payment information based on their agreement with the circuit. If claiming a flat rate for services rendered, the user should enter the rate in the Flat Rate Payment column. If claiming an hourly rate, the user must complete the start time, end time, total number of hours, and hourly rate for the work performed. Each activity related to the evaluation must be reported on a separate line. For example, if the expert performs an evaluation and receives a flat rate for that service, it will be reported on one line and any travel time or ancillary activities related to the evaluation when the expert is paid an hourly rate will be reported on a separate line. All time should be reported in quarter-hour increments or pursuant to the contract. Administrative Information Section ( Major Changes) This section includes the vendor signature as well as information to be completed by court administration. I attest the above information is true and correct. Attach Copy of Judge's Order for Payment Summary of Contractual Services Agreement Attached (Mandatory*) Travel Voucher Attached (If Applicable) Contractor/Vendor *Unless total amount of services purchased is less than $ per fiscal year and no contract has been executed. This section to be completed by Court Administration Date Pursuant to s.., F.S., I certify these costs are just, correct, and reasonable, and contain no unnecessary or illegal items. Date Invoice Received: Date Goods/Services Received: Received By: Trial Court Administrator Date Goods Inspected/Approved: Date Inspected/Approved By: Organizational Code Category: EO: CK Object Code: Payment Amount - te: Amending an Invoice Any changes made by circuit staff to the information reported on the invoice by the vendor, must be clearly marked as such and initialed by the person making the change. Page of

88 Appendix K New Uniform Data Reporting Screen for Expert Witness Events Page of