EXPERT WITNESSES...solutions in order to improve the processes for appointing experts and containing costs. Administrative Solutions The Workgroup recommended three administrative

EXPERT 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

November 2016

Expert Witnesses in Florida’s Trial Courts: Recommendations of the Joint Due Process Workgroup

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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


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TABLE OF CONTENTS

EXECUTIVE SUMMARY .................................................................... 4

SECTION ONE: HISTORY AND BACKGROUND ................................ 7

SECTION TWO: CHARGE AND GOAL OF THE WORKGROUP ........ 10

SECTION THREE: RESEARCH AND DATA ..................................... 13

SECTION FOUR: ADMINISTRATIVE SOLUTIONS ........................... 16

SECTION FIVE: FISCAL SOLUTIONS ............................................. 18

SECTION SIX: OPERATIONAL AND POLICY SOLUTIONS ............... 21

SECTION SEVEN: STATUTORY SOLUTIONS .................................. 25

SECTION EIGHT: CURRENT STATUS AND NEXT STEPS ................ 28

APPENDICES .................................................................................. 32


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EXECUTIVE 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 2015. 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 2013-14 to FY 2014-15 (an increase of

approximately 16 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 November 2015

through November 2016, 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 2016.

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 2016.

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.


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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 2016.

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 40 percent of the initial evaluation rate and an

hourly rate of $150 for in-court testimony (including wait time and a 2-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.


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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. 916.115, 916.12, and 916.17, F.S.)

Forensic Services for Intellectually Disabled or Autistic Defendants (ss. 916.301-304,

F.S.)

Sentencing Evaluation (ss. 921.09 and 921.12, F.S.)

Death Penalty – Intellectual Disability (s. 921.137, F.S.)

Juvenile Competency – Mental Illness and Intellectual Disability or Autism (s. 985.19,

F.S.)

Developmental Disabilities (s. 393.11, F.S.)

Guardianship Examining Committee (s. 744.331, 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.


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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 2014-15, 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 2015-16

expenditures were closely monitored throughout the year, as shown in Table 1, 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 1. Fiscal Year 2015-16 Due Process Contractual Allotments and Estimated

Expenditures

FY 2015-16

Beginning

Allotment1

FY 2015-16

Estimated

Expenditures2 Difference

Expert Witness $7,713,763 $7,646,742 $67,021

Court Interpreting $2,944,507 $3,246,630 ($302,123)

Court Reporting $7,792,522 $7,688,925 $89,827

Total $18,450,792 $18,612,733 ($161,941) 1 Beginning allotments as of July 1, 2015. Does not include allotments for Remote Interpreting and

OpenCourt. A total of $27,840 (Remote Interpreting) and $175,000 (OpenCourt) were allocated from

Due Process funds for FY 2015-16.

2 FY 2015-16 Estimated Expenditures, as of April 2016, were determined based on applying the FY

2015-16 Estimated Percent of Total Expenditures to the FY 2015-16 July - March Expenditures.

In addition to the changes in fiscal policies, the members of the TCBC’s Executive Committee,

at their April 12, 2015, 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


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addition, Supreme Court Administrative Order AOSC10-1 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

2013-14 to FY 2014-15 (an increase of approximately 16 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 November 5, 2015, 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 2.


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Table 2. Expert Witness Concerns by Circuit and Topic

Circuits Experiencing Concerning Trends in Expert Witnesses Costs

Circuit

Increasing

Costs/Insufficient

Funding

Ambiguity in

Statutes/Rules/Ordinances

Payment

Responsibility

Reimbursement

Practices

1 X X X

2 X X X

3 X

5 X

8 X

9 X X X

10 X

12 X

14 X

16 X

18 X

19 X X

20 X

Note: Documented concerns were not available for Circuits 4, 6, 7, 11, 13, 15, and 17.

Specific concerns noted by the Workgroup include the following:

Increasing Costs and Insufficient Funding (Reported by 13 out of 20 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 3 out of 20 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 3 out of 20 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


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o Jimmy Ryce cases

Office of Public Guardianship’s authority for handling cases.

Reimbursement Practices (1 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 2010-11 ($5,755,339) through FY 2014-15 ($7,961,097). This

represents an increase of 38.3 percent over 5 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 21.3 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 2014, 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 November 2015

through November 2016 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 November 5, 2015, at which they

developed a work plan (see Appendix F). The expert witness element was identified as the

priority issue as FY 2014-15 saw a 16 percent increase in expenditures from the previous year,

with 13 circuits either transferring funds from other due process elements or turning to the due


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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.


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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 2015-16.

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 2017.


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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 2016, OSCA staff distributed a 21-question survey to gather information on current

policies and practices as they relate to expert witness events. Responses were received from all

20 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 625 of the total 17,151 invoices that

were paid during FY 2014-15. The 625 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 95 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 3: 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 340 54.4% 11,564 60.0%

Guardianship Examining Committee 177 28.3% 4,997 25.9%

Juvenile Competency 85 13.6% 2,118 11.0%

Developmental Disabilities N/A N/A 116 0.6%

Developmental Disability Examining Committee 6 1.0% 53 0.3%

Other Examinations 7 1.1% 423 2.2%

Unknown 10 1.6% N/A N/A

Total 625 100.0% 19,271 100.0%


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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 4: Statewide Rate Comparison for Adult Competency Evaluations

C. Comparison of Policies of Other Florida Government Entities and Other 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 $450 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 $150-$200 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 $200 per hour. Other 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 $175 to $600 for similar

services (Appendix I).


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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.

Other 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 $12.50 per day, or $25.00 per day if the

attendance will exceed three hours.

Colorado – Colorado has provisions for payment of hourly rates (shall not exceed $150 per

hour) and for maximum payments for sanity and competency evaluations (maximum of $1,500

without testimony; $2,250 with testimony). Payment for preparation time and in-court testimony

is authorized at 100 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

6 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 $105 per hour in a metro

area and $125 per hour in a rural “outstate” area. If the judge determines testimony is necessary,

the maximum allowable rate is $195 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 $1,000. The court can award a higher amount in extraordinary circumstances.

The state Administrative Office of the Courts issued an administrative order in 1992 setting


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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 $750, 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 November 5,

2015, the Workgroup met on April 11, 2016, and again on May 4, 2016, 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 15, 2016, and June 17, 2016, 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.


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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 2016, and a statewide conference call was

held in May 2016 to gather additional feedback. The updated template was approved by the

TCBC and TCP&A at their meetings on June 17, 2016, and June 15, 2016, respectively. Circuits

were instructed to begin using the new invoice on July 1, 2016, 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


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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 1, 2016,

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 2016.

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 $35,000 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.


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A. Payment Responsibility Matrix

In 2005, and again in 2008, 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

November 2015, 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 2006 and 2007 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?


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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? Note: 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 1 – 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 $150 for in-court testimony

(including wait time) for adult competency examinations ordered by the court.

Option 2 – 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 $150 for in-court testimony (including wait time) for

adult competency examinations ordered by the court.

Option 3 – 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 $150 for in-court testimony (including

wait time) for adult competency examinations ordered by the court.

Option 4 – Other: 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 4 (illustrated in Table 5 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 40 percent of the initial

evaluation rate and an hourly rate of $150 for in-court testimony (including wait time and a 2-

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.


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Table 5. 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)

Maximum

Allowable

No Show

Rate

Maximum

Hourly

Testimony Rate,

Court Ordered

(Including wait

time, 2 hour cap)

Adult Competency $300-$500 $200-$350

40% of

Evaluation

Rate

$150

Juvenile Competency $250-$350 $175-$250

Guardianship Examining

Committee

Ph.D., M.D., or D.O. $250-$350 $175-$250

ARNP, RN, MSW, LPN,

LCSW, Lay Person $75-$250 $50-$175

Developmental

Disability Examining

Committee

Ph.D., M.D., or D.O. $250-$350 $175-$250

ARNP, RN, MSW, LPN,

LCSW, Lay Person $75-$250 $50-$175

*Note: Maximum Allowable Rate for Evaluation recommendation cannot be exceeded unless extraordinary circumstances exists and are approved

according to circuit policy.

SECTION SIX: 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.


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Table 6: 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

Other Circuits

Responding

Number 9 5 1 2 3 20

Percent 45.0% 25.0% 5.0% 10.0% 15.0% 100.0%

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. 916.115, 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 7: 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 Other

Circuits

Responding

Number 9 6 5 20

Percent 45.0% 30.0% 25.0% 100.0%

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


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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 8: Defining Extraordinary Rates

Identifying Extraordinary Rates

How do you define extraordinary rates?

Anything in Excess of

Set Rates

Determined by Case-

Specific Factors

Not

Defined

Circuits

Responding

Number 10 5 5 20

Percent 50.0% 25.0% 25.0% 100.0%

Table 9: Payment of Extraordinary Rates

Extraordinary Rate Payment Procedures

Do you have procedures for extraordinary rates or circumstances?

Judicial Approval

Administrative

Approval/Other No Procedure

Circuits

Responding

Number 10 5 5 20

Percent 50.0% 25.0% 25.0% 100.0%

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, 65 percent of circuits use an administrative order; 25 percent use

another format; and 10 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 10: Written Policies Governing Expert Witnesses

Written Policies on Expert Witnesses

Administrative

Order

Other Written

Policy

No Written

Policy

Circuits

Responding

Number 13 5 2 20

Percent 65.0% 25.0% 10.0% 100.0%

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.


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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 11 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 3.210, 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 3.210, and the issue

should be referred as a judicial education item.

The Workgroup met on November 8, 2016, 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.


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Table 11: 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. 916.115, 916.12, and 916.17, 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

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 916, 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. 916.301-304,

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.



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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. 921.09 and 921.12, 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.


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. 921.137, 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. 985.19,

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.


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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.


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. 393.11, 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 7 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. 744.331, 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 NEXT 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 12 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.


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Table 12: Current Status and Next Steps Summary Chart

Workgroup Recommendations Current Status Next Steps

Administrative Solutions

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

Revised statewide invoice

template have been

implemented as a

requirement July 2016.

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 2016.

UDR training module has

been developed and

distributed to circuit staff

October 2016.

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.

Fiscal Solutions

Update 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 2016.

Rate Structure Changes 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.


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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.


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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.


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.


submit their current list of approved experts, their

qualifications and approved fees to the OSCA, when

requested.

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.

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.


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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 Cost 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 1 and II Conference

Calls

Agenda Item III. TCBC Executive Committee

April 12, 2015

Tallahassee, Florida

Fiscal Year Beginning Reserve Due Process Deficits

FY 09-10 1,129,349 (27,084)

FY 10-11 929,349 (80,000)

FY 11-12 948,749 (55,168)

FY 12-13 1,596,469 0

FY 13-14 449,741 (265,765)

FY 14-15 657,295 (521,403)

Historical Overview of Due Process Reserve and Deficits

S:\Due Process Deficit File\Due Process Reserve Analysis

Appendix A

Page 1 of 64

May 4, 2015

The Honorable Diana L. Moreland

Chair, Commission on Trial Court Performance and Accountability

Manatee County Judicial Center

1051 Manatee Avenue West

Bradenton, Florida 34206

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 2014-15 reserve is now depleted, and the TCBC has activated steps to

replenish the reserve through a transfer of unobligated funds from the circuits.

Members of the TCBC Executive Committee discussed this topic

extensively at their meeting on April 12, addressing expert witness, court

interpreting, and court reporting issues. Among the observations were:

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 10-1 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.

The members of the TCBC Executive Committee believe the provision

of due process services merits thorough study in order to better position the

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

Gregory Parker, 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

Justice James E.C. Perry

Florida State Courts System 500 South Duval Street

Tallahassee, FL 32399-1900 www.flcourts.org

Appendix B

Page 2 of 64


May 4, 2015

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 2016-17 budget development

cycle and the January start to the 2016 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

Appendix B

Page 3 of 64

Appendix C

Page 4 of 64

June 18, 2015 The Honorable Diana L. Moreland Chair, Commission on Trial Court Performance and Accountability Manatee County Judicial Center 1051 Manatee Avenue West Bradenton, Florida 34206 Dear Judge Moreland:

Thank you for your letter on May 13, 2015, 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 7, 2015, 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.

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

Justice James E.C. Perry

Florida State Courts System 500 South Duval Street

Tallahassee, FL 32399-1900 www.flcourts.org

Appendix D

Page 5 of 64


June 18, 2015

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

Appendix D

Page 6 of 64

Circuit FY 2010-11 FY 2011-12 FY 2012-13 FY 2013-14 FY 2014-15

Percent Change from

FY 2013-14 to FY 2014-15 Circuit FY 2010-11 FY 2011-12 FY 2012-13 FY 2013-14 FY 2014-15

Percent Change from FY 2013-14

to FY 2014-15 Circuit

FY 2014-15 Cost per

Event1 201 175 205 257 642 149.8% 1 $103,189 $106,205 $110,388 $142,208 $353,000 148.2% 1 $5502 565 589 592 609 761 25.0% 2 $324,356 $309,890 $329,234 $351,581 $418,266 19.0% 2 $5503 28 40 35 25 33 32.0% 3 $17,176 $21,730 $18,316 $13,744 $20,080 46.1% 3 $6084 222 202 188 317 279 -12.0% 4 $117,443 $109,294 $117,413 $182,539 $153,459 -15.9% 4 $5505 155 201 349 841 1,149 36.6% 5 $82,492 $85,750 $107,061 $107,995 $165,696 53.4% 5 $1446 1,334 1,306 1,393 1,345 1,440 7.1% 6 2 $231,000 $288,339 $374,424 $305,592 $348,779 14.1% 6 $2427 230 257 292 306 299 -2.3% 7 $139,445 $139,980 $157,000 $148,686 $151,500 1.9% 7 $5078 91 85 82 178 257 44.4% 8 $51,679 $56,607 $55,083 $112,147 $151,466 35.1% 8 $5899 920 982 972 1,288 1,517 17.8% 9 $303,978 $351,027 $296,158 $412,751 $584,992 41.7% 9 $386

10 702 699 746 793 977 23.2% 10 $558,359 $589,133 $556,140 $590,629 $683,223 15.7% 10 $69911 4,669 4,401 4,330 4,853 4,267 -12.1% 11 $1,457,010 $1,386,781 $1,376,513 $1,395,249 $1,417,469 1.6% 11 $33212 453 490 509 490 458 -6.5% 12 $234,683 $295,613 $272,285 $311,589 $357,181 14.6% 12 $78013 1,398 1,843 1,849 1,652 1,821 10.2% 13 $511,100 $676,893 $714,925 $625,500 $680,550 8.8% 13 $37414 72 90 107 75 190 153.3% 14 $47,519 $54,144 $66,236 $42,850 $139,280 225.0% 14 $73315 899 1,067 1,172 1,054 1,133 7.5% 15 $420,696 $472,288 $535,542 $469,875 $500,153 6.4% 15 $44116 58 59 49 69 96 39.1% 16 $18,950 $24,204 $17,525 $24,390 $36,670 50.3% 16 $38217 2,694 3,128 3,341 3,196 2,437 -23.7% 17 $648,435 $845,601 $1,011,616 $975,520 $976,690 0.1% 17 $40118 420 454 416 392 462 17.9% 18 $123,845 $147,728 $129,793 $132,901 $151,475 14.0% 18 $32819 144 280 361 337 410 21.7% 19 $79,958 $153,070 $208,214 $188,821 $265,403 40.6% 19 $64720 647 574 604 568 657 15.7% 20 $284,028 $374,463 $352,909 $350,839 $405,767 15.7% 20 $618

Total 15,902 16,922 17,592 18,645 19,285 3.4% Total $5,755,339 $6,488,738 $6,806,773 $6,885,404 $7,961,097 15.6% Total $413Percent Change 6.4% 4.0% 6.0% 3.4% Percent Change 12.7% 4.9% 1.2% 15.6%

2 Expenditures for the Sixth Judicial Circuit include the salary and benefits for 1 FTE expert witness.

Due Process WorkgroupApril 11, 2016, Meeting

Expert Witness

1 Includes Adult Competency, Developmental Disabilitites, Developmental Disabilitites Examining Committee, Guardianship Examining Committee, Juvenile Competency, and Other Evaluations.

Uniform Data ReportingExpert Witness Includes State Total Competency and Other Evaluations1

Contractual Expenditures

Appendix E

Page 7 of 64

Due Process Workgroup A Joint Workgroup of the Trial Court Budget Commission and the Commission on

Trial Court Performance and Accountability

1 | P a g e

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 November 2015

Issues Potentially Affecting Costs

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.

Appendix F

Page 8 of 64



2 | P a g e

Tasks

Phase I – Fact Finding and Analysis

Costs/

Expenditures

Resource

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.

1. 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)

2. 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)

3. Determine services provided (case type, phase/type of evaluation). What is currently

being paid for by the courts? (Action Item: Survey circuits)

4. 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)

5. Determine staffing models. What variations in staffing models exist? Are any changes

needed? (Action Item: FTE Analysis)

6. 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)

Appendix F

Page 9 of 64



3 | P a g e

7. 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

1) Determine need for emergency funding for the trial courts in FY 2015-16. (Ongoing)

2) Inventory current service delivery models, resources, and policies/procedures by circuit.

3) Recommend issues outside the scope of this workgroup to be referred to other

commissions, committees, and workgroups, if needed.

4) Update existing payment obligation matrix and propose changes to current statutes, rules,

or other policies to clearly define responsibility for payment of costs.

5) Determine cost containment strategies.

6) Determine sufficient resources for the trial courts in out years.

7) Determine the equitable distribution of resources through new funding formula.

8) Determine the impact of costs of alternative staffing models, if needed.

9) Determine the impact of costs of proposed operational/procedural structure.

10) Determine appropriate data measurements and method of providing data to circuits.

11) Prepare usage/expenditure reports for TCBC, chief judges, and trial court administrators.

12) Prepare status update reports and final reports.

Appendix F

Page 10 of 64

Survey Question 1

Circuit

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 – 2008 TCBC

Memo ) that offers guidance on expert witness topics?

Some Form

of Written

Policy

No

Written

Policy

Unit

Cost

Uses

TCBC

Memo

Does Not Use or

No Mention of

TCBC Memo

Low Unit Cost

Analysis

High Unit Cost

Analysis

1

Yes. Administrative Order No. 2005-05 and Administrative Order No. 2006-06; both are attached. Yes; we are aware

of Judge Perry's 2008 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.

1

AO $550 X

Has AO, Uses

Memo

Administrative

Order

Other Written

Policy

No Written

Policy

Circuits

Responding

2

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.2

AO $550 X Has AO, No Memo Number 13 5 2 20

3Yes. We have an administrative order, and yes we are aware of the memo from Judge Perry and use it often as a

reference guide.3

AO $692 X

Has AO, Uses

Memo Percent 65.0% 25.0% 10.0% 100.0%

4Yes, attached are the administrative orders for the three counties in our circuit. Yes our circuit is aware of this.

4AO $550 X

Has AO, Uses

Memo

5Yes, the Fifth Judicial Circuit is aware of the memo from Judge Perry and the previous memo from Judge Morris on

expert witnesses5

X $144 X

No Written

Policy, Uses

Memo

6

Administrative Orders 2007-017, 2013-072 and 2015-068 govern the Sixth Judicial Circuit expert witness operations.

Yes, we are familiar with the 2008 TCBC memo and use it as a guideline for our expert appointments. 6

AO $242 X AO, Uses Memo

Familiar

with/uses for

reference

Not

familiar/does

not use

Unconfirmed/O

ther

Total Circuits

Responding

7Yes, we are aware of the 2008 memo and refer to it often. See attached memorandum regarding expert witness

practices. 7Other $507 X

Has Written Policy,

Uses Memo Number 16 1 3 20

8

Yes. The Eighth Judicial Circuit of Florida ADMINISTRATIVE ORDER NO. 7.04 APPOINTMENT OF

EXAMINING COMMITTEE MEMBERS FOR INCAPACITY PROCEEDINGS. Yes. We are aware of the memo

from Judge Belvin Perry regarding payments for expert witnesses.8

AO $589 X

Has AO, Uses

Memo Percent 80.0% 5.0% 15.0% 100.0%

9

No 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 2008 memo.

9

Other $386

Has Written

Policy, Uses

Memo

10Admin order 1-38.1

10AO $699 X Has AO, No Memo

11Yes, please see attached billing manual. Yes, we have reviewed the memo and utilized it for guidance on expert

witness issues. 11Other $340 X

Has Written

Policy, Uses

Memo

12Q1-No. Q2-Yes.

12X $780 X

No Written Policy,

Uses Memo

13

No. 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 13th

’ expert witness list, the evaluation flat fee rates and

deliverables, and the requirements for submission and processing of invoices. Yes, the 13th circuit is well acquainted

with the 2008 TCBC memo and still to this day occasionally refers to the memo for guidance.

13

Other $374 X

Has Written

Policy, Uses

Memo

14

The 14th

Judicial Circuit has an old Administrative Order from 2006 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 14th

Circuit is aware of the

memo from Judge Perry and has used it as a guideline regarding payment responsibility.

14

AO $741 X

Has AO, Uses

Memo

15 Yes, Administrative Orders 2.601, 2.602, and 2.603 and 6.301. 15 AO $441 X

16Yes and Yes—See attached AO

16AO $382 X

Has AO, Uses

Memo

17AO 2010-10-CRIM. Not aware of Judge Perry's memo.

17AO $309 X

Has AO, Not

aware of Memo

Unit Cost Analysis Policy and Procedure Analysis

Written Policies

TCBC Memorandum

Summary: 90% of circuits have some form of written policy that

governs expert witness practices. 65% of circuits have an AO, while

25% have some other form of written policy. Two circuits reported no

formal written policy. Most circuits, 94%, are familiar with either the

2005 or 2008 memorandum from the respective TCBC chairs and use

the memo for guidance in developing their expert witness policies.

Low Unit Cost Analysis: Of the 8 circuits displaying low unit costs,

7 have a written policy in place; 7 use the TCBC memo for guidance.

High Unit Cost Analysis: Of the 12 circuits with high unit costs, 9

have a written policy and use the TCBC memo; 2 have a written policy

but do not use the memo; 1 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.

Due Process Workgroup Summary of Survey of Court Administration on Expert Witnesses Processes (February 2016)Appendix G

Page 11 of 64

Survey Question 1

Circuit

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 – 2008 TCBC

Memo ) that offers guidance on expert witness topics?

Some Form

of Written

Policy

No

Written

Policy

Unit

Cost

Uses

TCBC

Memo

Does Not Use or

No Mention of

TCBC Memo

Low Unit Cost

Analysis

High Unit Cost

Analysis

18

The 18th

Circuit’s local Administrative Order 15-39 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. 18

AO $328 Y

Has AO, Uses

Memo

19Yes, we have Administrative Order 2009-17. Yes, we are aware of Judge Perry’s Memo.

19AO $647 Y

Has AO, Uses

Memo

20The 20th has written materials that communicates the content of Judge Stan Morris’ August 3, 2005 memorandum in a

simplified manner.20

Other $618 Y

Has AO, Uses

Memo

Unit Cost Analysis


Page 12 of 64

Survey Question 2

Circuit

What guidance is followed in your circuit when determining how many experts to appoint for a case?

Please explain.Statute/

Rule

Judicial

DiscretionOther

Unit

Cost

Low Unit Cost

Analysis

High Unit Cost

Anaylsis

1

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.

1

Local Policy $550

Local Agreement

between SA and PDStatute/

Rule

Judicial

DiscretionOther

Circuits

Responding

2

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 3, 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.

2

X $550

Statute

Number 9 6 5 20

3 This varies by judge. 3 X $692 Percent 45.0% 30.0% 25.0% 100.0%

4

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.

4

X $550

5The court appoints how many experts are with each case.

5X $144

Judicial Discretion

6We utilize the 2008 memo for guidance. Judicial discretion is also used on a case-by-case basis where appropriate.

6X $242

Judicial Discretion

7 We try to follow statutes and rules. See attached form orders. 7 X $507 Statute

8The 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. 916.115, Fla. Stat.)8

X $589

Judicial Discretion

9

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 916.115 of the Florida Statutes that states no more than three experts shall be

appointed. Section 916.12(2) 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.

9

Local Policy $386

Policy to appoint 2

experts per case

10

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 1 expert is appointed on a case. This has been done with a flurry of emails and at

monthly judges’ meetings.

10

X $699

Judicial Discretion

11 We use the statutory reference or court rule applicable to appropriate area of law. 11 X $340 Statute

12

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 $325; two at the lower rate

of $250).

12

Local Policy $780

Policy to appoint 2

experts per case

13As 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.13

X $374

Statute

14

The judges of the 14th

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. 916.115 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.

14

X $741

Statute

15When the issue of competency is raised, the standard is to appoint two Experts.

15Local Policy $441

Policy to appoint 2

experts per case


Guidance Followed

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 (9, 12, & 15) appoint

2 experts for a criminal competency evaluation as a

standard practice; one circuit (18) has a policy of

appointing 1 expert for a standard competency evaluation.

Low Unit Cost Analysis: Of the 8 circuits displaying low

unit costs, 4 rely on statute, 2 on judicial discretion, and 2

on local policy for determining how many experts to

appoint. High Unit Cost Analysis: Of the 12 circuits

with high unit costs, 5 rely on statute; 4 on a local policy or

agreement; and 3 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.


Page 13 of 64

Survey Question 2

Circuit

What guidance is followed in your circuit when determining how many experts to appoint for a case?

Please explain.Statute/

Rule

Judicial

DiscretionOther

Unit

Cost

Low Unit Cost

Analysis

High Unit Cost

Anaylsis

16Generally, the Court will appoint one expert and if the exam is inconclusive, an evaluation by another expert will be

ordered. Also rely on FRCP 3.210 and FS 916.115.16

X $382

Statute

17 We follow the statutes and rules of procedure as well as AO 17 X $309 Statute

18

In both Brevard and Seminole Counties, in criminal proceedings, typically one (1) 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.

18

Local Policy $328

Policy to appoint 1

expert per case

19 FL. Statute 916.115 19 X $647 Statute

20

When discretion is allowed by statute/rule, the 20th 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

and fluctuations.

20

X $618

Statute

Unit Cost Analysis


Page 14 of 64

Survey Question 3

Circuit


Registry

Registry

With

Rotation

Attorney

Request

Judge/Attorney

Request Based

on Registry

OtherUnit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

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 within the cirtuis, are willing to perform competency evaluations for the rates established by the Court (AO

1

X $550

Attorney

Request

Registry

Registry

With

Rotation

Attorney

Request

Judge/Attorney

Selection Based

on Registry

OtherCircuits

Responding

2Experts are selected using a rotation wheel, from a list of approved experts.

2X $550

Registry w/

Rotation Number 9 5 1 2 3 20

3

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. 3

X $692 Other Percent 45.0% 25.0% 5.0% 10.0% 15.0% 100.0%

4The 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. 4

X $550 Registry

5The 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.5

X $144

Registry

6

Expert witnesses are under contract and are appointed on a rotational basis.

6

X $242

Registry w/

Rotation

7

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.

7

X $507 Registry

8

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. 8

X $589 Registry

9

The Circuit has 5 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? Not 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.

9

X $386

Other

10Our 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. 10X $699 Registry

11

The expert is selected from a registry/wheel where the next expert is selected (rotating order).

11

X $340

Registry w/

Rotation

12

Yes, we maintain lists for our judges. Generally the attorneys select their experts, if they don’t choose the judge chooses.

12

X $780

Judge/Atty

based on List

13

The selection and appointment of expert witnesses is generally made one of two ways: 1. by the court; 2. the solicitation of

two (2) 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.13

X $374

Other

14The 14

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.14

X $741 Registry

15The Circuit maintains a wheel.

15X $441

Registry w/

Rotation

16

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.16

X $382

Registry w/

Rotation


Methods for Selecting Experts

Summary: The majority of circuits use a list or registry when appointing experts.

Of those that maintain a list or registry, 5 circuits reported using a rotating list and 2

circuits maintain a list that the judge or parties can choose from. Additionally, 5

circuits noted using lists from DCF and/or APD. Low Unit Cost Analysis: Of the 8

circuits displaying low unit costs, 6 utilize a list or rotating list. High Unit Cost

Analysis: Of the 12 circuits with high unit costs, 10 use a list, list with rotation, or

list that judges or attorneys can select from. The remaining 2 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.

Adult Competency: 916.115(1)(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. 916.301(1)

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: 985.19(1)(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. 985.19(1)(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: 744.331(3)(c) requires that the chief

judge prepare a list each year of persons qualified to serve on a guardianship

examining committee. Guardian Advocate: 393.12(10) requires the court appoint

an advocate qualified to act as a guardian under ch. 744.


Page 15 of 64

Survey Question 3

Circuit


Registry

Registry

With

Rotation

Attorney

Request

Judge/Attorney

Request Based

on Registry

OtherUnit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

17

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

17

X $309

Registry

18 Experts are appointed from a list of providers maintained by Court Administration 18 X $328 Registry

19

Parties choose the expert from list provided by DCF or our Guardianship Examining Committee list.

19

X $647

Judge/Atty

based on

Registry

20The 20th maintains a hybrid list of persons qualified to receive appointments, as well as those that have come into pre-

agreement with the 20th‘s fee schedule(s). 20X $618 Registry

Unit Cost Analysis


Page 16 of 64

Survey Question 4

Circuit

The attached draft payment responsibility matrix (Attachment B – Draft Expert Witness Payment

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.

No

Updates

Updates/

Other

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

None that we know of.

1

X

$550 NA

All

Scenarios

Covered

Updates/

Other

Circuits

Responding

2It 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. 2 X $550 Updates Number 14 6 20

3 NA 3 X $692 NA Percent 70.0% 30.0% 100.0%

4The reference to the APD is confusing we need better clarification of whose responsibility it is to pay for the services.

4 X $550 Updates

5 No, there are not any other scenarios in our circuit which are not listed on the matrix. 5 X $144 NA

6 N/A. 6 X $242 NA

7 NA 7 X $507 NA

8 There are no scenarios that we have encountered that are not listed on the matrix. 8 X $589 NA

9

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.

9 X $386 Updates

10 We do not have any additional scenarios 10 X $699 NA

11 Yes, we encounter competency evaluations in the juvenile division to waive Miranda, which the court pays for. 11 X $340 Updates

12 n/a 12 X $780 NA

13Although 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. 985.19(1)(e). 13 X $374 Updates

14 There are no additional scenarios. 14 X $741 NA


Scenarios Not Listed on the Matrix

Summary: 6 circuits encounter scenarios that

are not covered on the current version of the

matrix. Low Unit Cost Analysis: Of the 8

circuits displaying low unit costs, 5 report all

scenarios are covered while 3 noted substantive

updates to the matrix. High Unit Cost Analysis:

Of the 12 circuits with high unit costs, 3

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.


Page 17 of 64

Survey Question 4

Circuit

The attached draft payment responsibility matrix (Attachment B – Draft Expert Witness Payment

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.

No

Updates

Updates/

Other

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

15

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. 15 X $441 Updates

16 N/A 16 X $382 NA

17No other scenarios for guardianships. For criminal, no except many of our Judges do not require a written motion for an

evaluation 17 X $309 NA

18 N/A 18 X $328 NA

19 No 19 X $647 NA

20 All scenarios covered in matrix. 20 X $618 NA

Unit Cost Analysis


Page 18 of 64

Survey Question 5

Circuit

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

case types or types of evaluations (Developmental Disability cases, for example).

Presence of

State

Hospitals

Increase in

Specific

Case Type

Other NoneUnit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

Other than the small amount of experts available and willing to perform conpetency evaulations, we know of no affecting

factors.

1 X $550 Other

Presence of

State

Hospitals

Increase in

Specific

Case Type

Other NoneCircuits

Responding

2

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. 2 X $550 State Hospital Number 3 3 9 5 20

3 No. 3 X $692 None Percent 15.0% 15.0% 45.0% 25.0% 100.0%

4

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. 4 X $550 Case Type

5

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 114,350, which has doubled since 2010. • All the five counties within the

circuit have an above the state-wide average (19%) of residents age sixty-five years or older. Fifth Judicial Circuit’s

Census Population of 65+ years of age: County % 65+ years: Citrus (35.2%), Hernando (27.5%), Lake (26.0%), Marion

(27.9%), Sumter (52.9%)5 X $144 Other

6

According to the 2014 Census, both counties in our circuit have a higher percentage of persons over the age of 65

(Pinellas: 23%; Pasco: 22.5%) than the statewide percentage (19%) or in our neighboring county of Hillsborough

(13.1%). This likely has an impact on our probate/guardianship filings, which have steadily increased over the past few

years (2012: 8,598; 2013: 8,806; 2014: 9,043) 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 $50 per hour in travel time if they have to

evaluate a defendant who is committed to a state hospital. 6 X $242 Other

7 NA 7 X $507 None

8

The existence of the facilities listed below in our circuit increase the number of evaluations needed. Northeast Florida

State Hospital, Macclenny, FL, Tacachale Developmental Disability Center, Gainesville, FL, North Florida Evaluation

and Treatment Center, Gainesville, FL. 8 X $589 State Hospital

9

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. 9 X $386 Other

10 None 10 X $699 None

11 No 11 X $340 None

12

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. 12 X $780 Other


Factors Specific to Circuit

Summary: 15 circuits report having factors specific to their circuit

that affect expert witness usage. 3 cite the presence of state

hospitals, 3 cite increases in evaluation requests for specific types of

cases, and 9 cite a variety of causes such as increase in the aging

population, local practices, tourism, geography of the circuit, etc.

Low Unit Cost Analysis: Of the 8 circuits displaying low unit

costs, 7 cite a unique factor affecting expert witness usage; 1 does

not. High Unit Cost Analysis: Of the 12 circuits with high unit

costs, 8 cite a unique factor affecting expert witness usage; 4 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.


Page 19 of 64

Survey Question 5

Circuit

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

case types or types of evaluations (Developmental Disability cases, for example).

Presence of

State

Hospitals

Increase in

Specific

Case Type

Other NoneUnit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

13

Yes. During FY 2004-05 and again following the issuance of the 2008 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.

985.19(1)(e) to no avail. Relying on the statutory language contained in F.S. 985.19(7), 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 2016, the 13th circuit and APD experts were informed that APD was no longer

going to process invoices for the payment of F.S. 916.301 - 916.304 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. 13 X $374 Other

14

Yes, there are factors specific to the 14th Circuit that impact expert witness usage. First, Florida State Hospital is in the

adjoining circuit (2nd

Circuit) and we have several defendants placed in that facility. In addition, the Sunland Center is

located in the 14th Circuit and houses individuals with intellectual and developmental disabilities.

14 X $741 State Hospital

15

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. 15 X $441 Other

16

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.16 X $382 Other

17

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. 17 X $309 Case Type

18

Brevard County is 72 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

18 X $328 Other

19 No 19 X $647 None

20

The 20th has experienced sustained increases in the number of criminal evaluations (up 320% comparing ’06-’10 and ’11-

’15); surveys conducted indicate that this is due to an increased need for mental health services with the circuit.

20 X $618 Case Type

Unit Cost Analysis


Page 20 of 64

Survey Question 6

Circuit

In 2013, the Statewide Public Guardianship Office expanded to serve all 67 counties.

Has your circuit experienced an increase in Guardianship or Developmental Disability

cases or costs since 2013?

Increase

Since

2013

No

IncreaseOther

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

No

1

X

$550

No Increase Increase

Since

2013

No

IncreaseOther

Circuits

Responding

2 No 2 X $550 No Increase Number 9 7 4 20

3 Yes. 3 X $692 Increase Percent 45.0% 35.0% 20.0% 100.0%

4 We have shown a decrease in our contractual expenditures from 2013-14 through 2014-15. 4 X $550 Other

5

Yes, since the Public Guardianship office and Developmental Disability cases expanded their services

in 2013, there has been a significant impact with Guardianship committee costs (when the ward is

indigent) and with evaluations. Marion County was partially funded before 2013 in our circuit only

with the Statewide Guardianship Office and with developmental disability cases. Since 2013, 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.

5 X $144

Increase

6

Yes, we have experienced an increase, although we only have data for 2014 and 2015, which is: 2014

- 420 cases, 2015 - 444 cases. 6 X $242

Increase

7 No 7 X $507 No Increase

8 Yes, significantly. 8 X $589 Increase

9 Yes. 9 X $386 Increase

10 Filings in Guardianship cases have increased 25% from 2013 to 2014 and 16% from 2014 to 2015. 10 X $699 Increase



13

Yes. From FY 2013-14 to FY 2014-15, the circuit has experienced a 59% increase in Guardianship

Examining Committee evaluation costs. 13 X $374

Increase

14 There has been a slight increase in Guardianship cases/costs since 2013. 14 X $741 Increase

15 Yes. See chart in survey response. 15 X $441 Increase


17

Yes, but not due to the expansion of the Public Guardianship Office. As stated in number 5, 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. 17 X $309

Other

18

The 18th

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 18 X $328

Other


20

Waiting lists for Public Guardian services have remained at their highest levels since 2009, without a

necessary uptick in the 20th since 2013. 20 X $618

Other


Impact of Statewide Public Guardian Office (SPGO)

Expansion

Summary: 45% of circuits have experienced an increase in

Guardianship or Developmental Disability cases since 2013,

while 35% report no increase. 10% (2 circuits) reported an

increase, but attribute it to other causes. Low Unit Cost

Analysis: Of the 8 circuits displaying low unit costs, 4 report

an increase in Guardianship or Developmental Disability cases,

2 report no increase, and 2 report increases but assign other

causes. High Unit Cost Analysis: Of the 12 circuits with high

unit costs, 5 have seen an increase since 2013 but another 5

have not; 1 reported a decrease, and 1 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 guardianship-

related expert witness services.


Page 21 of 64

Survey Question 7

Circuit

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

Event

Three

EventsOther

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

Three events

1X

$550

3 One

Event

Three

EventsOther

Circuits

Responding

2 Three events 2 X $550 3 Number 5 14 0 19

3 One. 3 X $692 1 Percent 26.3% 73.7% 0.0% 95.0%

4 This is submitted as one event. 4 X $550 1

5

Three events confirmed by Todd Tuzzulino on 3/30/16. 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 744.331, Florida Statutes. 5 X $144

3

6 For UDR reporting, we count them as three. 6 X $242 3

7 One event 7 X $507 1

8

Three. The Examining Committee is counted as three events for the Uniform Data Reporting

(UDR) purposes. 8 X $589

3

9 Three events. 9 X $386 3

10 The event is reported as 3 if 3 people are appointed to complete an evaluation 10 X $699 3

11

In a case involving the Guardianship Examining Committee or Developmental Disability

Examining Committee, the event is counted as 3 for the purpose of the UDR. 11 X $340

3

12 If there are 3 experts it’s counted as 3 events. 12 X $780 3

13

For purposes of UDR reporting, the number of events involving Guardianship and Intellectual

Disabilities Examining Committees are counted as three (3) events. 13 X $374

3

14

It would be counted as three events for the UDR, because we receive three separate invoices

from three different individuals. 14 X $741

3

15 Three Events (Confirned with Barbara on 3/30/16) 15 X $441 3

16 One 16 X $382 1

17 17 $309

18 The 18th

Circuit would count this as three (3) events for UDR purposes 18 X $328 3

19 Three 19 X $647 3

20 One event. 20 X $618 1


Uniform Data Reporting for Examining

Committees

Summary: Most circuits (74%) count

examining committees as three events. 5 circuits

count them as one event. Low Unit Cost

Analysis: Of the 8 circuits with a low unit cost,

6 count examining committees as three events, 1

counts them as one event. High Unit Cost

Analysis: Of the 12 circuits with high unit

costs, 8 circuits count them as three events and 4

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 4 circuits

fall into this category (high unit costs counted as

one event). All circuits should be reporting

events using the same method.


Page 22 of 64

Survey Question 8.a.

Circuit

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

Other

No

Increase

in

Requests

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

Yes. In 2005, 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 Notice 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.

1

X

$550

PD

Increased

Requests

from Public

Defender

Increased

Requests

from State

Attorney

OtherNo Increase

in Requests

Circuits

Responding

2

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. 2 X $550

PD

Number 7 1 2 10 20

3

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. 3 X $692

PD

Percent 35.0% 5.0% 10.0% 50.0% 100.0%

4

Our directives to the Judge are if the Court requests, we pay but other entities need to pay if they want the

evaluation. 4 X $550

Other

5

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.

5 X $144

PD

6 No. 6 X $242 No

7 No 7 X $507 No

8

In FY 2013-2014 the number of events increased from 82 to more than double - 178. This increase was a

result of the Public Defender’s office foregoing confidentiality and requesting the court provide the initial

evaluation. 8 X $589

PD

9

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. 9 X $386

10 No change has been noted 10 X $699 No

11 No 11 X $340 No

12 No, usually both the State and defense request their own experts. 12 X $780 No

13

Yes, the circuit is experiencing an increase in the number of appointment requests of the Intellectual

Disabilities Examining Committee (F.S. 393.11) by the Office of the State Attorney. 13 X $374

SA

14

Yes, we were notified by the Public Defender of the 14th

Circuit in spring 2014 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 2014-15. 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 2014 to 14 X $741

PD

15 No Change. 15 X $441 No

16 No 16 X $382 No

17

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 17 X $309

PD


Increase in Evaluation Requests by Outside Entities

Summary: 35% of circuits report that the Public Defender in their circuit

has increased requests for expert witness evaluations to be paid for by the

court. 50% report no increase, however, 3 (circuits 9, 18, and 20) of those

10 circuits report that the local practice has always been to charge

evaluations to the court. Low Unit Cost Analysis: Of the 8 circuits

displaying low unit costs, 3 report an increase in requests for evaluations by

outside entities, 5 report no increase. High Unit Cost Analysis: Of the 12

circuits with high unit costs, 5 report increased evaluation requests from the

Public Defender; 6 report no increase; and 1 (circuit 4) 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.


Page 23 of 64


Circuit

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

Other

No

Increase

in

Requests

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

18 The 18th

Circuit has not noticed a change in the number of appointment requests by outside entities as the 18 X $328 No

19 No 19 X $647 No

20 See above #5; few if any confidential reports requested within the 20th since Rev.7. 20 X $618 No

Unit Cost Analysis


Page 24 of 64

Survey Question 8.b.

Circuit

Have you noticed other changes in the practices of outside entities that are impacting

expert witness usage in your circuit? If yes, please explain. No

Impact

Increase in

Evaluations for

Certain Case Types

OtherUnit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

No.

1

X

$550

No

No

Impact

Increase in

Evaluations for

Certain Case

Types

OtherCircuits

Responding

2

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.

2 X $550

Other

Number 10 6 4 20

3 No. 3 X $692 No Percent 50.0% 30.0% 20.0% 100.0%

4 No. 4 X $550 No

5

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).

5 X $144

Overall

6 No. 6 X $242 No

7

The number of requests for competency exams due to suspected intellectual disability/autism has

increased over the past few years. 7 X $507

APD

8

The Public Guardianship Office in Lake City, FL has been responsible for the increase in Guardianship

and Developmental Disability cases and costs since FY 2014-2015. 8 X $589

SPGO

9

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. 9 X $386

Other

10 No change has been noted 10 X $699 No

11 No 11 X $340 No

12 n/a 12 X $780 No

13

Yes. Since the transition to state funding in 2004, evaluation orders entered by the court pursuant to

F.S. 916.301 - 916.304 (Intellectually Disabled or Autistic) and the payment of expert invoices were

being made by APD. In January 2016, the 13th

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.

13 X $374

APD


Impact of Outside Entities

Summary: 50% of circuits report no additional changes

in evaluation requests attributable to outside entities.

30% note changes related to an overall increase in certain

case types, of those, 3 circuits cite cases related to the

SPGO/APD as causing the increase. Low Unit Cost

Analysis: Of the 8 circuits displaying low unit costs, 4

report no increases attributable to outside entities, 4

report increases related to certain case types or local

practices. High Unit Cost Analysis: Of the 12 circuits

with high unit costs, 6 report no increases, 3 report

increases related to certain case types, and 3 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.


Page 25 of 64


Circuit

Have you noticed other changes in the practices of outside entities that are impacting

expert witness usage in your circuit? If yes, please explain. No

Impact

Increase in

Evaluations for

Certain Case Types

OtherUnit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

14

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.14 X $741

Other

15

With regards to one treatment center, the Public Defender almost always (approximately 80% 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.15 X $441

Other

16

Increase in requests for competency evaluations in Misdemeanor/Municipal Ordinance cases

16 X $382

Case Type

17 No 17 X $309 No

18 No, other changes in the practices of outside entities exist in the 18th

Circuit 18 X $328 No

19 No 19 X $647 No

20

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 20th).

20 X $618

Case Type

Unit Cost Analysis


Page 26 of 64

Survey Question 9

Circuit

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

Contracts Only

When Required

Does Not Use

Contracts

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

No, only those expert witnesses who's bililng for the fiscal year exceed the $35,000 threshold.

1

X

$550

Required Regularly

Uses

Contracts

Contracts

Only When

Required

Does Not

Use

Contracts

Circuits

Responding

2

Yes. Competency: Adult Criminal - $650 per evaluation; $100 for no shows. Competency: Juvenile Criminal -

$650 per evaluation; $300 for updated evaluation; $100 for no shows. Developmental Disabilities - $700 per

luation; $100 for no shows Examining Committee Member (Psychiatrist, Psychologist or Other Medical Physician) -

$600 per evaluation. All other members or lay person - $200 per evaluation Pre-bond screenings - $300 per

screening 2 X $550

Yes

Number 9 8 3 20

3

No 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. 3 X $692

Required

Percent 45.0% 40.0% 15.0% 100.0%

4

We have contracts with deliverables and pay rates for those experts who are paid more then $35,000 per fiscal year.

The rates are $499.50 and the rest of the witness' rates are $500 flat fee per evaluation. 4 X $550

Required

5 The circuit does not currently have contracts with expert witness services. 5 X $144 No

6

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. 6 X $242

Yes

7 Persons performing adult competency exams (mental illness) are contracted (see #3). 7 X $507 Yes

8

The Eighth Judicial Circuit does not have contracts with all expert witnesses. Individual experts in this Circuit have

never exceeded $35,000 per fiscal year. 8 X $589

No

9

No, only 5 main experts are under contract. In those 5 contracts the deliverables and pay rates are documented in the

contract. 9 X $386

Required

10 No, we only have contracts with doctors that may be paid more than $35,000 in a fiscal year 10 X $699 Required

11 Yes. The contract incorporates the billing manual, which establishes the rates for compensation. 11 X $340 Yes

12

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 25 miles, each way. 12 X $780

Yes

13

Not all experts. Deliverables are documented in the contracts. In accordance with State Purchasing Directives, the

13th circuit only contracts with those expert witnesses where the circuit anticipates that payments to the expert

during the fiscal year will exceed the $35,000 minimum threshold. 13 X $374

Yes

14

No, 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. 14 X $741

Required

15

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 2nd

Circuit’s wheel. A special order of payment is drafted to reimburse the Psychologist for his/her

services. 15 X $441

Yes

16 No 16 X $382 No

17 Yes, we have contracts. Rates are documented but not deliverables 17 X $309 Yes

18

The 18th Circuit does not have contracts for all experts utilized as some do not meet the excess rate of $35,000

annually. When contracts are used, deliverables and pay rates are documented in the contracts 18 X $328

Required

19We have contracts with some of our expert witnesses. Administrative Order listing our rates is an attachment of the

contract. 19 X $647Required

20 All under contract; both documented. 20 X $618 Yes


Contracts with All Experts

Summary: 45% 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

(40%) enter into a contract only when the expert will be paid

over $35,000 per fiscal year. 15% of circuits report that they do

not use contracts. Low Unit Cost Analysis: Of the 8 circuits

displaying low unit costs, 4 use contracts for all experts, 2 do

not use contracts, and 2 use contracts only when required.

High Unit Cost Analysis: Of the 12 circuits with high unit

costs, 6 use contracts only when required, 5 use them for all

experts, and 1 does not use contracts. Conclusion: A contract

with all deliverables and pay rates identified may be a useful

tool for circuits to contain costs.


Page 27 of 64

Survey Question 10

Circuit

Does your circuit have set rate caps or ceilings?

Yes NoUnit

Cost

Low Unit

Cost Analysis

High Unit

Cost Anaylsis

1Yes. See AO 2006-26 attached.

1X

$550Set Rates No Set Rates

Circuits

Responding

2 Yes, per the contract. 2 X $550 Number 20 0 20

3 Yes; a $500 cap on any evaluation/travel time/ report 3 X $692 Percent 100.0% 0.0% 100.0%

4 Yes. 4 X $550

5

Yes, our circuit has a flat rate of $650.00 for competency evaluations, for guardianship examining

committees: the flat fees established are $650.00 for psychiatrist or physician, $325.00 for a psychologist,

licensed social worker, or advanced gerontology degree, or $175.00 for lay-person.

5 X $144

6 Yes, unless otherwise ordered because of extraordinary circumstances. 6 X $242

7 Experts appointed for other types of services are paid “not to exceed” rates. 7 X $507

8

Eighth Judicial Circuit Administrative Order No. 7.04 APPOINTMENT OF EXAMINING

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 $400 per case and all other members are paid $300 per case. In Criminal cases the

Order Appointing Expert Witness refers to JAC rates.8 X $589

9 Yes. 9 X $386

10 Yes, per admin order 1.38.1, the cap is $2,000 per case unless court ordered otherwise 10 X $699

11 Yes 11 X $340

12 Set flat rates. 12 X $780

13 Yes, a flat fee rate. 13 X $374

14

Yes, we do have a cap of $1,500 per case. Anything over that must have prior approval by the presiding

judge. 14 X $741

15 Yes. 15 X $441

16 Yes 16 X $382

17 Yes, we have a set rate for an evaluation. 17 X $309

18

The 18th

Circuit has a maximum rate of $350.00 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 $250.00 to $400.00 per member. 18 X $328

19

No Process. We just go by the Administrative Order (AO sets standard rates, confirmed by OSCA staff)

19 X $647

20 Yes. 20 X $618


Set Rates Caps or Ceilings

Summary: All responding circuits use rate caps or

standard rates.


Page 28 of 64


Circuit

How do you define extraordinary rates? Anything in

Excess of

Set Rates

Case-

Specific

Factors

Not

Defined

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

Additional testing recommended by the expert appointed.

1

X

$550

Case-

SpecificAnything in

Excess of

Set Rates

Case-

Specific

Factors

Not

Defined

Circuits

Responding

2 Any amount that exceeds the flat rates specific to the contract. 2 X $550 Excess Number 10 5 5 20

3 Not defined. 3 X $692 No Percent 50.0% 25.0% 25.0% 100.0%

4 When it exceeds $500 we have to get a court order justifying the reason and the cost of the evalutaion. 4 X $550 Excess

5 Extraordinary rates are over the flat fee approved by the Chief Judge with A-2008-41-B. 5 X $144 Excess

6 This is considered by the Chief Judge on a case-by-case basis. 6 X $242 No

7 NA 7 X $507 No

8 Not defined. Evaluated on a case by case basis 8 X $589 No

9 Any rate or fee amount above the set caps and limits. 9 X $386 Excess

10 Anything over the set cap per admin order 1-38.1 10 X $699 Excess

11 Any payment over the set rate caps or ceiling. 11 X $340 Excess

12

Because more research is involved with involuntary hospitalization evaluations, experts earn $750 per evaluation;

therefore, we consider that rate extraordinary. 12 X $780

Case-

Specific

13

The circuit defines extraordinary rates as any evaluation invoice for payment that exceeds the circuit’s established flat

fee rate. 13 X $374

Excess

14 It is determined by the presiding judge. 14 X $741 No

15 Any request for payment outside the set rate caps or ceiling. 15 X $441 Excess

16

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 non-

English speaking defendants. 16 X $382

Case-

Specific

17

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.17 X $309

Case-

Specific

18

Extensive record review and lack of cooperation of the defendant/AIP are common reasons for requesting excess fees

18 X $328

Case-

Specific

19 Administrative Order that defines rates. 19 X $647 Excess

20 Above the uniform rates. 20 X $618 Excess

Summary: Most circuits consider anything over the set

rate outlined in the contract or administrative order to be

extraordinary. Several circuits (5) indicate that certain

factors, such as travel time or extensive record review

associated with evaluations, can lead to extraordinary rates;

5 circuits do not define extraordinary rates. Low Unit Cost


consider anything over the standard rates to be

extraordinary, 3 indicate case-specific factors can lead to

extraordinary rates, and 1 does not define extraordinary

rates but the judge will evaluate each scenario on a case-by-

case basis. High Unit Cost Analysis: Of the 12 circuits

with high unit costs, 6 define anyting over the set rate as

extraordinary, 4 do not define extraordinary rates, and 2

identify specific factors that can lead to extraordinary rates.

Conclusion: Of the 5 circuits that do not define

extraordinary rates, 4 have high unit costs. Having a

written policy on extraordinary rates may help to control

costs.


Extraordinary Rates


Page 29 of 64


Circuit

Do you have procedures for extraordinary rates or circumstances? Please explain the

procedure.Judicial

Approval

Administrative

Approval/Other

No

Procedure

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

The moving party must move the court in a written motion for approval to exceed the caps outlined

in AO 2006-26. 1X

$550

Judicial Judicial

Approval

Administrative

Approval/Other

No

Procedure

Circuits

Responding

2

Yes, the expert must receive approval from the presiding judge to receive payment over the

contracted rates, prior to performing the services. 2 X $550

Judicial

Number 10 5 5 20

3 No. We defer to the judges on these rates and circumstances. 3 X $692 Judicial Percent 50.0% 25.0% 25.0% 100.0%

4 The procedure is attaching the Court Order to the invoice for processing. 4 X $550 Admin

5 The Chief Judge approves or denies all extraordinary rates. 5 X $144 Judicial

6

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. 6 X $242

Judicial

7 No 7 X $507 No

8 See above. (Question 10.a. Answer: Not defined. Evaluated on a case by case basis.) 8 X $589 No

9

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 entered9 X $386

10 NA 10 X $699 No

11

The Administrative Judge for said division must review and approve any order for payment in such

circumstance. 11 X $340

Judicial

12

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. 12 X $780

Admin

13

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.13 X $374

Admin

14 No, we do not have procedures for extraordinary rates or circumstances. 14 X $741 No

15

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. 15 X $441

Judicial

16 Yes, doctor would request approval through judges’ office. 16 X $382 Judicial

17 No. 17 X $309 No

18

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 18 X $328

Judicial

19 Administrative Order that defines rates. 19 X $647 Admin

20

Judicial approval is required for any experts that might exceed the standard rates (under a court’s

own motion by the presiding judge). 20 X $618

Judicial


Extraordinary Rate Procedures

Summary: 50% of circuits require judicial approval for

extraordinary rates, 25% allow for administrative approval, and

25% have no formal approval process for paying extraordinary

rates. Low Unit Cost Analysis: Of the 8 circuits displaying

low unit costs, 5 require judicial approval, 2 require

administrative approval, and 1 does not require approval. High

Unit Cost Analysis: Of the 12 circuits with high unit costs, 5

require judicial approval, 3 require administrative approval, and

4 circuits do not require approval for extraordinary payments.

Conclusion: 3 of the 4 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.


Page 30 of 64

Survey Question 11

Circuit

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

County/Travel

Vary by

Case Type

No

Variation

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

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. 1

X

$550

TravelVary by

County/Travel

Vary by

Case Type

No

Variation

Circuits

Responding

2 No variations. 2 X $550 No Number 5 3 12 20

3

Rates are about the same among those experts we have contracts with and those experts who are familiar with our

circuit and administrative order. 3 X $692

No

Percent 25.0% 15.0% 60.0% 100.0%

4

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.

4 X $550

Case Type

5

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. 5 X $144

Case Type

6

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.6 X $242

Travel

7 No 7 X $507 No

8 Rates do not vary between providers for the same types of services and rates do not vary by county. 8 X $589 No

9 No. No. N/A. 9 X $386

10 No, see admin order 1-38.1 for expert witnesses. There is no fee schedule for guardianship cases. 10 X $699 No

11 No. The 11th circuit is associated with 1 county. 11 X $340 No

12 No to all. 12 X $780 No

13 No/Not applicable 13 X $374 No

14

No, 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.14 X $741

No

15 No 15 X $441 No16 No 16 X $382 No

17Standard Rates. Only variation is with members of a GEC* (*OSCA staff entered from invoice survey)

17 X $309Case Type

18

The rates do not vary between providers for the same type of service. In the 18th

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 18 X $328

Travel

19 Some don’t charge travel and some charge an hourly rate that is less than the flat fee. 19 X $647 Travel

20 Rates are uniform; travel expenses are allowed for services provided beyond headquartered-county. 20 X $618 Travel

Policy and Procedure Analysis

Variation in Rates by Provider/Expert

Summary: Most circuit (60%) offer no variation in rates paid

to experts. 5 circuits allow for variation related to travel time or

comuting to outlying counties; 3 circuits indicate rates may vary

by case type, such as for members of a Guardianship Examining

Committee. Low Unit Cost Analysis: Of the 8 circuits

displaying low unit costs, 4 offer no variation in rates, 2 have

rates that can vary with travel, and 2 have rates that can vary

with case type. High Unit Cost Analysis: Of the 12 circuits

with high unit costs, 8 offer no variation in rates, 3 have rates

that can vary with travel, and 1 has rates that vary by case type.


Page 31 of 64

Survey Question 12

Circuit

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

Rates

ISC with

Increase

Historical

AverageOther

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

The ISC approved and agreed upon the rates for our experts in 2006, as memorialized in AO 2006-26.

1X

$550

ISC ISC

Rates

ISC with

Increase

Historical

AverageOther

Circuits

Responding

2

A survey was completed that looked at the rates paid to expert witnesses across the state. Rates were then determined

by looking at the 1) average rate the state was paying; 2) average of second experts; 3) the value on performance of

services required to produce timely and excellent quality reports. 2 X $550

Historical

Number 10 0 6 4 20

3

We based our current cap on the amounts that we were paying our contracted experts which were all individual

negotiations with those experts. 3 X $692

Historical

Percent 50.0% 0.0% 30.0% 20.0% 100.0%

4

We are using the ISC recommendations. Outlined in their recommendations are the types of evaluations and rates.

See attached memo. 4 X $550

ISC

5

The determination of current rates was based on an average cost of evaluations in fiscal year 2014-15 when we

noticed an increase with evaluations. 5 X $144

Historical

6

See attached document entitled “Source of Rates Provided.” There are several different origins of our rates depending

on the type of service 6 X $242

Other

7

Contract rates are established based upon historical usage. Per service rates have been in place for a number of years.

7 X $507

Historical

8

Our Experts have maintained rates from $400 - $600 for all types of evaluations since the State became responsible

for payment of Expert Witness. (*Question 13 response clarifies they use ISC rates) 8 X $589

ISC

9

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. 9 X $386

10 Admin order 1-38.1 10 X $699 Other

11

We are still using the Indigent Services Committee recommendations. For details, please refer to the attached billing

manual. 11 X $340

ISC

12

In an effort to try and contain the costs we switched from paying an hourly rate with a cap to a flat fee about 8 years

ago. We looked what our average cost was and also looked at the rates across the state to determine our flat fee.

12 X $780

Historical

13

The 13th

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 2004. Rates

for evaluations in guardianship cases involving the appointment of the guardianship examining committee were

increased in FY 2007-08. 13 X $374

ISC

14

In the 14th

Circuit, we are still using the rates established by the Indigent Services Committee in 2006. The rate for

Expert Witnesses to determine competency is $150/hour not to exceed $1,500 per case. For Examining Committee

members the rate has increase a little from the Indigent Services Guidelines from a flat rate of$250 to $400 for

medical doctors or psychologists; and from a flat rate of $100 to $200 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. 14 X $741

ISC

Summary: 10 circuits are still using the rates developed by

the Indigent Services Committee (ISC), 6 circuits base their

rates on historical averages, and 5 use another method. Low

Unit Cost Analysis: Of the 8 circuits displaying low unit

costs, 5 use the ISC rates, 1 uses the historical average for

their circuit, and 2 use another method. High Unit Cost

Analysis: Of the 12 circuits with high unit costs, 5 use ISC

rates, 5 use historical averages, and 2 use another method.

Conclusion: Of the 6 circuits that use a historical average to

determine thier rates, 5 of them have high unit costs.

Circuits may wish to consider using the ISC rates developed

for thier circuit.


Current Rates


Page 32 of 64

Survey Question 12

Circuit

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

Rates

ISC with

Increase

Historical

AverageOther

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

15

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 compensation for neuropsychological reports and evaluations for persons with intellectual disabilities, the

15 X $441

Historical

16

Still using ISC recommendations.

16 X $382

ISC

17 Based on the particular specialty. Originally we used JAC rates but have increased the rates because we were unable

to get experts to accept our rates.

17 X $309 Other

18

In the 18th

Circuit, we still utilize the Indigent Services Committee recommended rates in determining the established

rates

18 X $328

ISC

19 Standing area practice rates. 19 X $647 Other

20

Indigent Services Committee rates govern: EXPERT WITNESS FEES

20th Judicial Circuit – Indigent Services Committee (ISC) Rates Circuit-Wide

For Services Performed On or After October 1, 2004

Investigators $100.00 per hour

General Expert Witness Fee in-court or out-of-court $200.00 per hour

Psychological Exams $300.00 per exam

Psychologist –out-of-court $200.00 per hour

Psychologist –in-court or depo testimony $200.00 per hour

Medical Doctor –out-of-court Not to exceed $300.00 per hour

Medical Doctor –in-court or depo testimony Not to exceed $400.00 per hour 20 X $618

ISC

Unit Cost Analysis


Page 33 of 64

Survey Question 13

Circuit

If your circuit’s rates are based on Indigent Services Committee recommendations,

when were they established and have they been increased since then? Original

Rates

Increased

ISC Rates

Not

Applicable

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

Established 2006. No increases but for Court Reporter fees. See AO 2013-02, attached.

1X

$550

Original ISC

Rates

Increased

ISC RatesOther

Circuits

Responding

2 N/A 2 X $550 NA Number 10 0 10 20

3 Uses Historical Average* (*OSCA staff entered based on Question 12 response) 3 X $692 NA Percent 50.0% 0.0% 50.0% 100.0%

4

We are using the ISC recommendations from June 2008. The rates have not been increased since

2008 and need to be reviewed to determine if they should be increased. 4 X $550

Original

5 This question is not applicable to our circuit. 5 X $144 NA

6

See question 12 and attached document. Most of our rates have not increased since approximately

2004. 6 X $242

NA

7

NA

7 X $507

NA

8

The Eighth Circuit rates are reflective of the Indigent Services Committee recommendations and

have not increased. 8 X $589

NA

9 The rates were established in January of 2007 and have not been increased since then. 9 X $386

10There have been no changes made since our admin order 1-38.1 (May 1, 2006)

10 X $699 NA

11 They were established approximately 10 years ago and have not been increased since then. 11 X $340 Original

12 n/a 12 X $780 NA

13

The circuit’s flat fee evaluation rates were established and adopted by the local ISC in 2004. The

flat fee rates have remained the same, with the exception of the Guardianship Examining

Committee rates which were increased in FY 2007-08. 13 X $374

Original

14

The 14th

Circuit rates for expert witnesses are based on the Indigent Services Committee’s

recommendations which were established June 29, 2006. 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 #12.)14 X $741

Original

15 N/A 15 X $441 NA

16 Have not been increased. 16 X $382 Original

17

Yes, as stated in #12 we based our rates on JAC rates when they established them. They have

increased. 17 X $309

NA

18

The rates were established in 2004 by the Indigent Service Committee for the 18th

Circuit. The

rates have not increased since that time 18 X $328

Original

19 Yes, in 2009 some rates increased marginally. 19 X $647 NA

20 Established on October 1, 2004; last amended on August 14, 2006. 20 X $618 Original


Rates

Summary: Of the 10 circuits that base thier rates on

the ISC rates, all 10 are using the original rates. 10

circuits do not use the ISC rates. Low Unit Cost

Analysis: Of the 8 circuits with low unit costs, 5 use

the original ISC rates, 3 do not. High Unit Cost

Analysis: Of the 12 circuits with high unit costs, 4

circuits use the original ISC rates, 8 do not.

Conclusion: Using the original ISC rates may have

helped circuits contain costs, however, since they were

set in 2006, it may not be reasonable for all circuits to

use those rates at this time.


Page 34 of 64

Survey Question 14

Circuit

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

Region/Availablilty

of Licensed

Professionals

OtherNot

Applicable

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

The First Judicial Circuit has minimal experts willing to perform these competency to proceed

evaluations. Our circuit is spread over 80 miles with 3 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.

1 X $550

Geo

Geographic

Region/Availablilty of

Licensed Professionals

OtherNot

Applicable

Circuits

Responding

2

Availability of licensed professionals, Quality of the detail of the products, Willingness to travel

circuit-wide 2 X $550

Geo

Number 9 5 6 20

3

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 $500 cap. 3 X $692

Geo

Percent 45.0% 25.0% 30.0% 100.0%

4

We strive to keep the rates between $350-$500 as set forth by the ISC. However, the 4th circuit has

many high profile cases in Criminal and Juvenile Court which require complex evlauations and

examinations. 4 X $550

Other

5

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.

5 X $144

Geo

6 We have taken into consideration what neighboring circuits pay when establishing our rates. 6 X $242 Other

7 NA 7 X $507 NA

8

The Eighth Judicial Circuit has adequate availability of licensed professionals who have maintained

the rates charged for services to the Court. 8 X $589

NA

9 NA 9 X $386 NA

10 N/A 10 X $699 NA

11

No other factors outside the ISC recommendations have impacted the level of rates in our circuit.

11 X $340

NA

12 n/a 12 X $780 NA

13

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. 13 X $374

Other

14

The 14th 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. 14 X $741

Geo


Factors Impacting Rates

Summary: 45% of circuits feel the geography of their circuit

and the lack of availability of licensed professionals contribute

to expert witness rates. 30% do not identify any factors that

affect their rates, and 25% indicate other contributing factors.

Low Unit Cost Analysis: Of the 8 circuits displaying low unit

costs, 4 attribute their rates to geography, 2 to other causes, and

2 do ot identify any factors. High Unit Cost Analysis: Of the

12 circuits with high unit costs, 5 attribute their costs to

geography, 3 to other factors, and 4 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.


Page 35 of 64

Survey Question 14

Circuit

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

Region/Availablilty

of Licensed

Professionals

OtherNot

Applicable

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

15 The Circuit’s rates for competency evaluations are acceptable based on the fact that the Circuit has a

pool of Experts who are willing to provide the evaluations at the rate offered. If we increased the 15 X $441 Other

16

Lack of licensed professionals; geography of the Florida Keys

16 X $382

Geo

17

Availability of licensed professionals.

17 X $309

Geo

18

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. 18 X $328

Geo

19

We also looked at the statewide rates and made sure we were within limits of local practice rates

19 X $647

Other

20

Isolated geographical region coupled with high demand for overall medical services in SWFL has

placed an upward pressure on the 20th‘s frozen (ISC) rates. 20 X $618

Geo

Unit Cost Analysis


Page 36 of 64

Survey Question 15

Circuit

Are there any procedures or strategies you have implemented in your circuit

related to containing expert witness costs that may help other circuits? Flat

Rates

Judicial

EducationCombination Other

Not

Applicable

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

We no longer pay associated travel costs, but rather pay the expert witness a flat rate per

evaluation in the outlying counties. 1

X$550

FlatFlat

Rates

Judicial


Not

Applicable

Circuits

Responding

2

The second circuit began contracting with expert witnesses in July 2014 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. 2 X $550

Combo

Number 4 3 4 5 4 20

3 Other than an administrative order to try to cap some of the fees, no. 3 X $692 Other Percent 20.0% 15.0% 20.0% 25.0% 20.0% 100.0%

4

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. 4 X $550

Jud Ed

5

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 email and during meetings) on

evaluations with the Administrative Judges, and other presiding Judges who cover Felony,

Misdemeanor, and Delinquency cases. 5 X $144

Jud Ed

6

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).

6 X $242

Combo

7 See contract referenced in #3. 7 X $507 Flat

8

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. 8 X $589

Flat

9

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. 9 X $386

Combo

10

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 (1-3) with the hope that this awareness will make them sensitive to the amount of

payments the AOC makes to expert witnesses. 10 X $699

Flat


Cost Containment Strategies

Summary: Circuits use a variety of cost containment measures. Low Unit

Cost Analysis: Of the 8 circuits displaying low unit costs, 3 use a

combination of measures, 1 relies on frequent judicial education and

communication, 2 rely on other methods and 2 do not identify any methods for

const containment. High Unit Cost Analysis: Of the 12 circuits with high

unit costs, 4 recommend using flat rates, 3 use other methods, 2 focus on

judicial education, and 2 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 5,6, and 9 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.


Page 37 of 64

Survey Question 15

Circuit

Are there any procedures or strategies you have implemented in your circuit

related to containing expert witness costs that may help other circuits?Flat

Rates

Judicial


Not

Applicable

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

11

The procedure regarding reviewing extraordinary rates, as mentioned in question #10 above,

may assist other circuits in containing expert witness costs. 11 X $340

Other

12 n/a 12 X $780 NA

13

The 13th circuit only authorizes a one (1) time no-show payment of $100.00. The circuit has

a two (2) 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.

13 X $374

Combo

14

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. 14 X $741

Jud Ed

15

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. 15 X $441

Other

16 NA 16 X $382 NA

17 No. 17 X $309 NA

18

18th 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. 18 X $328

Other

19 No 19 X $647 NA

20

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. 20 X $618

Other

Unit Cost Analysis


Page 38 of 64

Survey Question 16

Circuit

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 CorrectionsUnit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

No discrepancies based on data maintained by the First Judicial Circuit.

1X

$550

AccurateAccurate Corrections

Circuits

Responding

2 No issues with the data 2 X $550 Accurate Number 15 5 20

3 Reported updates to OSCA through UDR input portal 3 X $692 Corrections Percent 75.0% 25.0% 100.0%

4

According to our in house UDR, the data present in the Expert Witness is correct with the Committee's figures.

4 X $550

Accurate

5 NA 5 X $144 Accurate

6

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.6 X $242

Accurate


8

The UDR charts reflect the data that was entered. The cost per event is within our rates of $400 - $600 per event.

8 X $589

Accurate

9

GUARDIANSHIP EXAMINING COMMITTEE DATA IS WRONG. INDICATES 0 BUT THE NUMBER

SHOULD BE 321. 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. 9 X $386

Corrections


11

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 0, when

the circuit’s statistics reflect approximately 93. 11 X $340

Corrections


13 No discrepancies. 13 X $374 Accurate

14

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 2014-15 and two more additional

events should be added to the developmental disability examining committee for FY 2014-15. Specifically, three

events for the developmental disability examining committee occurred in November 2014 and three events for

developmental disability examining committee occurred in March 2015. 14 X $741

Corrections



17 Page 1 Competency Evaluations – Circuit Criminal should be 1242; County Criminal should be 398. 17 X $309 Corrections

18 The 18th

Circuit finds no discrepancies in Attachment D – Expert Witness UDR data chart 18 X $328 Accurate

19 Accurate 19 X $647 Accurate


Summary: 75% of circuits confirmed the accuracy

of their UDR data and 25% submitted corrections.

Low Unit Cost Analysis: Of the 8 circuits

displaying low unit costs, 5 confirmed accurate data

so their unit cost calculations should be correct, 3

reported corrections which have been incorporated

into the updated unit cost calculation. High Unit

Cost Analysis: Of the 12 circuits with high unit

costs, 10 confirmed accurate data and 2 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.


Accuracy of UDR Data


Page 39 of 64

Survey Question 17

Circuit

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

Event

Multiple

Events

Invoice

Dependent

Unit

Cost

Low Unit

Cost

Analysis

High Unit

Cost

Anaylsis

1

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. 1 X $550

InvoiceOne

Event

Multiple

Events

Invoice

Dependent

Circuits

Responding

2 All events are recorded as separate events for reporting purposes. 2 X $550 Multiple Number 7 7 6 20

3 Our circuit reports all of the events related to the same expert and case as one event. 3 X $692 One Percent 35.0% 35.0% 30.0% 100.0%

4

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. 4 X $550

Multiple

5 The circuit reports the number of evaluations conducted by the experts each month if they take place on different dates. 5 X $144 Multiple

6

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. 6 X $242

Invoice

7 One event. 7 X $507 One

8

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. 8 X $589

Invoice

9

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 3 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. 9 X $386

Invoice

10

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. 10 X $699

Invoice

11

It could be reported as multiple events depending on the invoice submission in accordance with the billing manual, attached.

11 X $340

Invoice

12 We count it as one event. 12 X $780 One

13

A single event. In the 13th 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.

13 X $374

One

14

The evaluation and report would be counted as one event. If testimony took place, we would count that as a separate event.

14 X $741

Multiple

15 One event 15 X $441 One

16 They would be separate events. 16 X $382 Multiple

17 We count the number of evaluations received – each evaluation is 1 event 17 X $309 Multiple

18

The 18th

Circuit’s reporting practices are to report the evaluation, report and testimony as one (1) event for the purposes of the

UDR data submitted 18 X $328

One

19 They are reported as multiple events. Evaluation and report would be one event. Testimony would be one event. 19 X $647 Multiple

20 One event. 20 X $618 One


Reporting Events for UDR

Summary: Circuits are divided as to how they report the

events related an expert witness evaluation with 7 circuits

counting it as one event, 8 as multiple events, and 5 basing

the count on what appears on the invoice. Low Unit Cost


report each event seperately for UDR purposes, 2 report it

as one event, and 2 report events based on the invoice.

High Unit Cost Analysis: Of the 12 circuits with high

unit costs, 5 report activities as one event, 4 report them as

multiple events, and 3 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.


Page 40 of 64

Circuit Other Comments

1 N/A

2 N/A

3 N/A

4Due process costs continue to increase for our Circuit. Allotments need to be adjusted to ensure Circuits have enough funds to cover these expenses.

5 See survey.

6

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 $25,000 or more annual impact to our due process budget.

7 N/A

8 N/A

9Any uniform guidance you can give on this area will be extremely appreciated.

10 N/A

11 N/A

12 N/A

13 N/A

14

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.

15

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.

16 N/A

17 N/A

18

The 18th

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.

19 N/A

20

See survey for detailed chart. Measuring the period of Jan. 2005 through Dec. 2015 (prior 132 months), the 20th’s increase in overall forensic evaluations spiked upward by 116% when comparing the first

66 months of Jan. 2005 through Jun. 2010 against the most recent 66 month period of Jul. 2010 through Dec. 2015.


Page 41 of 64

Agenda Item II.A.: Rate Structure Options

Small Circuits Medium Circuits Large Circuits X-Large Circuits Total

48 102 115 75 340

Mean $587 $561 $465 $310 $474

Median $513 $564 $400 $300 $400

Mode $350 $500 $400 $300 $300

8 16 34 27 85

Mean $541 $545 $390 $288 $401

Median $563 $535 $375 $300 $350

Mode $650 $600 $350 $300 $300

7 26 71 73 177

Mean $527 $330 $277 $296 $302

Median $438 $300 $300 $300 $300

Mode $250 $650 $300 $300 $300

4 0 2 0 6

Mean $456 N/A $400 N/A $438

Median $513 N/A $400 N/A $450

Mode N/A N/A $400 N/A $400

Travel 47 Invoices $24.92 - $150

Flat 12 Invoices $24.92 - $150

Hourly 35 Invoices $70 - $100

12 invoices $100 - $200

Due Process Workgroup

May 3, 2016, Conference Call

Expert Witness Rate Statistics by Circuit Size and Type of Evaluation

No Show/Loss of Income

Number of Invoices

Developmental Disability

Examining Committee

Guardianship Examining

Committee

Number of Invoices

Number of Invoices

Juvenile Competency

Type of Evaluation

Adult Competency

Number of Invoices

Appendix H

Page 42 of 64

Number of Invoices

Percent of Invoices

Cumulative Percent Circuits within Rate Ranges Total Number of Invoices

Under $300 14 4.8% 4.8% 3, 7, 10, 12, 4, 11, 15, 20 Flat Rates Only 220 75.3% $300 61 21.0% 25.8% 18, 4, 11, 15, 17 Hourly Rates Only 57 19.9% $301 - $400 77 26.5% 52.2% 3, 16, 18, 19, 4, 6, 9, 11, 13 Both 16 4.8% $401 - $500 58 19.9% 72.2% 3, 8, 14, 1, 7, 10, 12, 4, 11, 15 Total 293 100.0%

$501 - $600 23 7.9% 80.1% 3, 8, 14, 1, 5, 10, 19, 11 $601 - $700 32 11.0% 91.1% 2, 1, 5, 19, 20 Small Circuits Red $701 - $800 5 1.7% 92.8% 14, 10, 20 Medium Circuits Blue $801 - $900 5 1.7% 94.5% 14, 10, 20 Large Circuits Green $901 - $1,000 5 1.7% 96.2% 10, 9, 15 $1,001 & Over 11 3.8% 100.0% 8, 14, 10, 20 Total 291 100.0%

Under$300 $300 $301 -

$399 $400 $401 -$499 $500 $501 -

$600$601 -$700

$701 -$800

$801 -$900

$900 -$1,000

$1,001andover

Flat Rates Only 10 58 27 45 3 49 9 18 0 0 1 0Hourly Rates Only 5 3 4 1 6 0 14 3 5 2 3 11Both 1 0 0 0 0 0 0 11 0 4 0 0

0

10

20

30

40

50

60

70

Num

ber o

f Inv

oice

s

Adult Competency - Felony Criminal Rate Comparison

Flat Rates Only Hourly Rates Only Both

Appendix H

Page 43 of 64

Number of Invoices

Percent of Invoices


Under $300 1 2.3% 2.3% 19 Flat Rates Only 37 86.0% $300 6 14.0% 16.3% 18, 11, 17 Hourly Rates Only 5 11.6% $301 - $400 14 32.6% 48.8% 16, 18, 9, 13 Both 1 2.3%

$401 - $500 9 20.9% 69.8% 8, 12, 15, 20 Total 43 100.0%

$501 - $600 5 11.6% 81.4% 8, 1

$601 - $700 7 16.3% 97.7% 1, 5 Small Circuit Red $701 - $800 0 0.0% 97.7% N/A Medium Circuit Blue $801 - $900 0 0.0% 97.7% N/A Large Circuit Green

$901 - $1,000 1 2.3% 100.0% 10

Total 43 100.0%

Under$300 $300 $350 $400 $401 -

$499 $500 $501 -$600

$601 -$700

$701 -$800

$801 -$900

$900 -$1,000

Flat Rates Only 0 6 10 4 1 7 3 6 0 0 0Hourly Rates Only 1 0 0 0 0 0 2 1 0 0 1Both 0 0 0 0 1 0 0 0 0 0 0

0

2

4

6

8

10

12

Num

ber o

f Inv

oice

s

Adult Competency - Misdemeanor Criminal Rate Comparison


Appendix H

Page 44 of 64

Number of Invoices

Percent of Invoices


Under $300 7 8.2% 8.2% 8, 12, 11, 13 Flat Rates Only 70 82.4% $300 24 28.2% 36.5% 18, 11, 17 Hourly Rates Only 13 15.3% $301 - $400 26 30.6% 67.1% 18, 9, 11, 13, 17 Both 2 2.4% $401 - $500 14 16.5% 83.5% 8, 7, 10, 4, 15 Total 85 100.0%

$501 - $600 6 7.1% 90.6% 3, 14, 1, 10, 19, 20

$601 - $700 5 5.9% 96.5% 2, 5, 10 Small Circuit Red $701 - $800 1 1.2% 97.6% 10 Medium Circuit Blue $801 - $900 1 1.2% 98.8% 10 Large Circuit Green $901 - $1,000 0 0.0% 98.8% N/A

$1,001 & Over 1 1.2% 100.0% 10

Total 85 100.0%

Under$300 $300 $301 -

$399 $400 $401 -$499 $500 $501 -

$600$601 -$700

$701 -$800

$801 -$900

$900 -$1,000

$1,001and over


0

5

10

15

20

25

30

Num

ber o

f Inv

oice

s

Juvenile Competency Rate Comparison


Appendix H

Page 45 of 64

Number of Invoices

Percent of Invoices


Under $100 2 1.1% 1.1% 15 Flat Rates Only 167 94.4% $100 - $199 19 10.7% 11.9% 1, 4, 6, 9, 13, 17 Hourly Rates Only 7 4.0% $200 - $299 19 10.7% 22.6% 2, 14, 10, 12, 18, 19, 4, 17 Both 3 1.7% $300 - $399 126 71.2% 93.8% 2, 10, 12, 18, 6, 9, 11, 13, 15, 17, 20 Total 177 100.0%

$400 - $500 5 2.8% 96.6% 8, 5, 18, 6

$501 - $600 1 0.6% 97.2% 8 Small Circuit Red $601 - $700 3 1.7% 98.9% 5 Medium Circuit Blue $701 - $800 0 0.0% 98.9% N/A Large Circuit Green $801 - $900 1 0.6% 99.4% 8 $900 - $1000 1 0.6% 100.0% 8

Total 177 100.0%

Under$100

$100 -$199

$200 -$299 $300 $301 -

$350 $375 $400 -$500

$501 -$600

$601 -$700

$701 -$800

$801 -$900

$900 -$1,000


0

20

40

60

80

100

120

Num

ber o

f Inv

oice

s

Guardianship Examining Committee Rate Comparison


Appendix H

Page 46 of 64

Type of Expert 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

M.D. - $300 - $250

$400 $500 $650

$375 - $425 - $600 $300 $300 - $300 - $350 - - $400 $325

PhD - - - $250$325 - $350

$375 - $425 - - $300 $305 $325 $300 - $300 -

$295 - $325 - $225

D.O. - - - - - - - - - - $325 - - - - - - -ARNP - - - - $500 - - - - - - - - - - - - -RN - - - $175 $225 $175 - - - - - - - - - - - -MSW-LPN - $250 - - - $175 - - - $275 - - - - - - - -

LCSW - - - - $250 - - - - - $200 - - - -$125 - $150

$225 - $250 -

Lay Person - - - - - - - - - - - $150 - $75 - - - $125Unknown $150 - - - - - - - $120 $275 - - $250 - - - - -

Circuit

Guardianship Examining Committee Rates by Type of Expert and Circuit

$300 $300

Appendix H

Page 47 of 64

Number of Invoices Percent of Invoices


$200 - $300 1 16.7% 16.7% 14 Flat Rates 6 $301 - $399 0 0.0% 16.7% N/A Total 6

$400 - $500 3 50.0% 66.7% 14, 13

$501 - $600 2 33.3% 100.0% 8 Small Circuit Red

Total 6 100.0% Medium Circuit Blue

Large Circuit Green

$200 $300 $400 $500 $525 $600Flat Rates 1 0 2 1 1 1

0

1

2

3

Num

ber o

f Inv

oice

s

Developmental Disabilities Examining Committee

Appendix H

Page 48 of 64

Appendix I

Circuit County Rate Unit Rate Unit Rate Unit Rate Unit Rate Unit Rate UnitEscambia $175 per hourSanta Rosa $600 per evaluationOkaloosa $625 per evaluationWalton $625 per evaluation

2 All $150 per hour3 All $175 per hour4 All $750 per case5 All $500 per evaluation $150 per hour $125 per hour $60 per hour $125 per hour $50 per hour6 All $400 per evaluation $125 per hour $125 per hour $60 per hour $125 per hour $50 per hour7 All $500 flat rate - max $150 per hour

$300 flat rate range - min$600 flat rate range - max

$150 per hour range - min$200 per hour range - max

9 All $350 per exam $170 per hour $160 per hour$85 (Court) $75 (depo) per hour $72.50 per hour

All $200 per hour $200 per hour $150 per hour $150 per hour $200 per hour $150 per hour


- $300 flat rate $150 per hour $150 per hour $75 per hour $75 per hour




- $150 flat rate $150 per hour $150 per hour $75 per hour $75 per hour12 All $150 flat rate $150 per hour $150 per hour $150 per hour

Due Process Rates - Expert Witness (Mental Health)Private Court Appointed Counsel / Indigent for Costs

As Reported on Justice Administrative Commission's Website August 2015*

11

Psychological exams

Psychologist

Psychiatrists

Psychologists

Psychological/competency evaluations

Psychological evaluation or psycho diagnostic clinical interview at the State Hospital

Extended psycho diagnostic clinical interview in a Mentally Deviate Sex Offender case

Family psychological evals and evals of a child's ability to testify in dependency or TPR cases - Adult exam

Family psychological evals and evals of a child's ability to testify in dependency or TPR cases - Child exam

1

Evaluation In-CourtOut of Court /

Deposition Time Waiting to TestifyPreparation &

Consultation w/ Atty Travel to Court

All 8

All

10

Page 49 of 64

Appendix I

Circuit County Rate Unit Rate Unit Rate Unit Rate Unit Rate Unit Rate Unit

Due Process Rates - Expert Witness (Mental Health)Private Court Appointed Counsel / Indigent for Costs


1



Consultation w/ Atty Travel to Court

- $400 per evaluation

- $200 per evaluation

- $100 per evaluation14 All $150 per hour $150 flat fee

- $300 per exam $150 per hour $150 per hour

- $200 per hour $200 per hour

- $450 per exam

- $350 per exam

- $250 flat rate $140 per hour $130 per hour $85 per hour

- $400 flat rate $140 per hour $130 per hour $85 per hour

- $150 per hour $140 per hour $130 per hour $85 per hour

All $150 per hour $200 per hour $75 per hour $75 per hour

All $175first hour or less $175

first hour or less $85

first hour or less $72.50

All $170per hour thereafter $145

per hour thereafter $72.50

per hour thereafter

1920 All $300 flat rate $200 per hour $200 per hour

* Established Indigent Services Committee rates as compiled by the Justice Administration Commission

Rates for Mental Health experts are not addressed in circuit's A.O.'s

Psychological Examinations - Competency

Psychological Examinations - Downward Departure

Psychological Examinations - Insanity Evaluations

Psychological/Competency Examinations

Medical Doctors and Psychologists18

17

16

Medical Doctors (Including Psychiatrists)

Psychological Examinsations - Medical Doctor (including Psychiatrist)

Psychological Examinsations - Psychological

13

Competency Evaluations

Mental Health Examinations in Civil Cases - Psychiatrists and Medical Doctors

Mental Health Examinations in Civil Cases - Laypersons

Psychological Examinations

15

Page 50 of 64

Appendix I


All $200 per hour

All $240 per hour $240 per hour $80 per hour $240 per hour $50 per hour


All $75 per hour $75 per hour $50 per hour $75 per hour $50 per hour

All $150 per hour


3 All $175 per hour4 All - - - - - - - - - - - -


All $75 per hour $75 $50 per hour $75 per hour


All $400 flat rate $125 per hour $125 per hour $60 per hour $150 per hour $50 per hour

All $75 per hour $75 per hour $50 per hour $75 perhour $0 per hour$150 per hour range - min$200 per hour range - max



9 All $158 per hour $131.00 per hour$79 (Court)

$65.50 (depo) per hour $65.50 per hour10 All $100 per hour $100 per hour $75 per hour $50 per hour $75 per hour $50 per hour

Private Court Appointed Counsel / Indigent for Costs


8All

All

1



Consultation w/ Atty

Professional Service Fees for Experts

Witness Fees for Experts

Licensed Nurse Practitioners

All other professional service providers

Experts other than Mental Health

Other professional service providers

Professional Experts

Other Experts

Due Process Rates - Expert Witness (Other)

Licensed Nurse Practitioners

Professional service fees for Experts

MSW or other master's level expert, R.N. & L.P.N. and other miscellaneous experts

Expert Witnesses

Other Experts

All

Travel to Court

2

5

6

7 All

Page 51 of 64

Appendix I



1



Consultation w/ Atty

Professional Service Fees for Experts

Due Process Rates - Expert Witness (Other)

Travel to Court

- $150 per hour $150 per hour $150 per hour $75 per hour $100 per hour $75 per hour


- $150 flat rate - $50 per hour

All $175 per hour

$175 (Depo) $100 (Out of

Court) per hour $150 per hour

All

All $325 flat rate

- $2,500 max per case14 All $150 per hour $150 flat fee


16 - - - - - - - - - - - - -




All $158first hour or less $131

first hour or less $79

Per hour (Court) $65.50 per hour

All $40per 1/4 hour thereafter $32.75

per 1/4 hour thereafter N/A

Per hour (Depo)

19 All

All $200 per hour $200 per hour

All Up to $400 per hour Up to $300 per hour* Established Indigent Services Committee rates as compiled by the Justice Administration Commission

Other Experts

Must be appointed by the court. Fees set by the judge, not to exceed $150.00 per hour

Nurses - ARNP & Physician's Assistant - $50 per hour

Other Pre-Trial Experts

Non-Mental Health Experts: $150 per hourGeneral Expert Witness

20Medical Doctors

15Ph.D., Doctorate, MSW & Master's Level Experts

Medical Doctors

Expert Witnesses

18

Other Professional Experts

Other Pre-Trial Experts

Other Lay Experts

Medical Doctors

Other Experts

Chapter 744 Experts

17

13 Other Experts

11

12

Page 52 of 64

Attach Copy of Judge's Order for Payment

Summary of Contractual Services Agreement Attached (Mandatory*)

Travel Voucher Attached (If Applicable)

2 2 2 0 0 0 1 2 7 1 0 5 4 2 0 C K 1 3 1 8 0 0

Category:

Hourly Rate

$0.00

Activity Related to Evaluation

Payment Amount

$0.00Total

$0.00

$0.00

$0.00

$0.00

Name:

Address:

Telephone:

SSN or FEIN #:

Contract No.:

Contract Expiration Date:

County:

Circuit:

Note: Pursuant to s. 916.115, 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.

Service Date Case Number TotalDefendant's NameStart Time End Time

Court DivisionType of Evaluation Total

Number

of Hours

Hourly Rate Flat Rate

Payment

Received By:

I attest the above information is true and correct.

$0.00

$0.00

$0.00

$0.00

Contractor/Vendor Date

Date Goods/Services Received:

Date Invoice Received:

-

Expert Witness Services Provided

Organizational Code EO: Object Code:

$0.00

Date Goods Inspected/Approved:

Inspected/Approved By:

*Unless total amount of services purchased is less than $500 per fiscal year and no contract has been executed.

Trial Court Administrator Date

Pursuant to s. 939.08, F.S., I certify these costs are just, correct, and reasonable,

and contain no unnecessary or illegal items.

This section to be completed by Court Administration

FLAIR #

$0.00

$0.00

Vendor Information

City/State/ZIP:

Uniform Invoice for Expert Witness ServicesInvoice #

Month/Year:

Appendix J

Page 53 of 64

Instructions for Uniform Invoice for Expert Witness Services

Vendor and Circuit Information Section (No 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.

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 12 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.

FLAIR #

Vendor Information

City/State/ZIP:

Uniform Invoice for Expert Witness ServicesInvoice #

Month/Year: Name:

Address:

Telephone:

SSN or FEIN #:

Contract No.:

Contract Expiration Date:

County:

Circuit:

$0.00

$0.00

$0.00


$0.00

$0.00

$0.00

$0.00



Number

of Hours


Payment Hourly Rate

$0.00


$0.00Total

$0.00

$0.00

$0.00

$0.00

Drop Down Menu for Type of Evaluation - Adult Competence (ss. 916.12, 916.17, F.S.) - Adult Competence (ss. 916.301-916.304, F.S.) - Adult Competence – Death Penalty (s. 921.137, F.S.) - Adult Competence – Sentencing (s. 921.09, F.S.) - Adult Competence – Sentencing (s. 921.12, F.S.) - Juvenile Competence – Mental Illness (s. 985.19 (1)(d), F.S.) - Juvenile Competence – Intellectual Disability or Autism (s. 985.19(1)(e), F.S.) - Developmental Disability Examining Committee – M.D./Ph.D. (s. 393.11,

F.S., Involuntary Admission to Residential Services) - Developmental Disability Examining Committee – MSW/MS (s. 393.11, F.S.,

Involuntary Admission to Residential Services) - Guardianship Examining Committee – M.D., Ph.D., D.O. (s. 744.331, F.S.) - Guardianship Examining Committee – ARNP, RN, LPN, LCSW, MSW, Lay

Person (s. 744.331, F.S.) - Other Examination

Appendix J

Page 54 of 64

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.

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 (No Major Changes)

This section includes the vendor signature as well as information to be completed by court administration.

Note: 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.

$0.00

$0.00

$0.00


$0.00

$0.00

$0.00

$0.00



Number

of Hours


Payment Hourly Rate

$0.00


$0.00Total

$0.00

$0.00

$0.00

$0.00

Attach Copy of Judge's Order for Payment

Summary of Contractual Services Agreement Attached (Mandatory*)

Travel Voucher Attached (If Applicable)

2 2 2 0 0 0 1 2 7 1 0 5 4 2 0 C K 1 3 1 8 0 0

Pursuant to s. 939.08, F.S., I certify these costs are just, correct, and reasonable,

and contain no unnecessary or illegal items.

This section to be completed by Court Administration

EO: Object Code:

Date Goods Inspected/Approved:

Inspected/Approved By:

*Unless total amount of services purchased is less than $500 per fiscal year and no contract has been executed.

Trial Court Administrator Date

-

Organizational Code

Received By:

I attest the above information is true and correct.

Contractor/Vendor Date

Date Goods/Services Received:

Date Invoice Received:

Category: Payment Amount

Drop Down Menu for Activity Related to Evaluation

- Evaluation - Follow-Up Evaluation

- No Show/Unable to Evaluate - Travel Time - Testimony

- Other Activity

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)

- Other

Appendix J

Page 55 of 64

New Uniform Data Reporting Screen for Expert Witness Events

Appendix K

Page 56 of 64

PAYMENT RESPONSIBILITY MATRIX EXPERT WITNESS

(August 2016)

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 is determined by whether the expert was appointed to advise the court or whether the expert is retained or requested by a party advocating a particular position. Court expert witnesses are neutral witnesses, and we pay for those. A witness produced to prove insanity, as an example, is brought in by a party to prove a point. Those witnesses are paid by the party, even if the judge ultimately makes the appointment.

Note: This 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 (see italicized comments). 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.

CASE TYPE STATUTORY REFERENCE OR

COURT RULE

BUDGET TO BE CHARGED

Adult Competency (Mentally Deficient and Mentally Disabled Defendants) – Court appointed expert agrees to evaluate defendant under section 916.115, F.S., or the Florida Rules of Criminal Procedure, or any other relevant Florida law for determinations of competence to proceed.

Section 916.115(2), F.S. Section 916.12, F.S.

Rules 3.210 and 3.211, Florida Rules of Criminal Procedure

Court For experts appointed by the court only for the determination of competency. If the expert addresses issues related to sanity as an affirmative defense, the court only pays for that portion of the fees related to competence. Unless an expert testifies regarding competency pursuant to an order from the court, the state courts system does not pay for the expert to testify in court.

Public Defender

For any experts retained by that office or the portion of the costs for an affirmative defense of insanity, if addressed in the same evaluation as the competency.

Regional Counsel For any experts retained by that office or the portion of the costs for an affirmative defense of insanity, if addressed in the same evaluation as the competency.

State Attorney

For any experts retained by that office to testify on behalf of the prosecution and appointed by the court in order to ensure that the expert has access to the defendant.

Appendix L

Page 57 of 64

CASE TYPE

STATUTORY REFERENCE OR

COURT RULE

BUDGET TO BE CHARGED Adult Competency (Mentally Deficient and Mentally Disabled Defendants) – Continued

JAC For any experts retained by an indigent defendant who is represented by a court-appointed private attorney or who is indigent for costs, or the portion of the costs for an affirmative defense of insanity, if addressed in the same evaluation as the competency.

Fees of Physicians Who Determine Sanity at the Time of Sentence

Section 921.09, F.S. County (Current statute says that the fees shall

be paid by the county. In practice, the

courts may pay.)

Fees of Physicians When Pregnancy is Alleged as Cause for Not Pronouncing Sentence

Section 921.12, F.S. County (Current statute says that the fees shall

be paid by the county. In practice, the

courts may pay.)

Adult Competency (Mentally Deficient and Mentally Ill Defendants – Violation of Conditional Release

Section 916.17, F.S. Court, if needed (Current statutes says that the court shall

hold a hearing but is silent to who pays.

In practice, the courts may pay.)

Baker Act Evaluations – Expert agrees to provide independent examinations of patients under section 394.467(6)(a)2., F.S. (patient in a treatment facility).

Section 27.5304, F.S.

Section 29.007(5), F.S.

Section 394.467(6)(a), F.S.

Section 394.473(2), F.S.

The patient pays for the independent evaluation, unless indigent. If indigent, JAC, PD, or Regional Counsel.

The Courts do not pay for the facility employee to testify in court.

Adult Competency (Forensic Services for Persons Who are Intellectually Disabled or Autistic) – Expert agrees to evaluate defendants under sections 916.301-916.304, F.S., the Florida Rules of Criminal Procedure and any other relevant Florida law concerning allegations of incompetence to proceed to trial due to intellectual disabilities or autism.


Court

Adult Competency (Forensic Services for Persons Who are Intellectually Disabled or Autistic) – Violation of Conditional Release

Section 916.304(2), F.S. Court, if needed (Current statutes says that the court shall

hold a hearing but is silent to who pays.

In practice, the courts may pay.)

Appendix L

Page 58 of 64


COURT RULE


Developmental Disabilities Examining Committee – Expert agrees to act as a Developmental Disabilities Committee member to determine intellectual disabilities pursuant to section 393.11, F.S.

Section 393.11(5)(g), F.S. County (In practice, the courts may pay.)

From General Revenue fund of county in which the subject of the exam resided

when the petition was filed. Court determines the reasonableness of

the fees.

Guardianship Examining Committee – Expert agrees to act as Guardianship Examining Committee member in cases filed pursuant to section 744.331, F.S.

Section 744.331(7)(b), F.S.

The fees awarded under paragraph (a) shall be paid by the guardian from the property

of the ward or if the ward is indigent, by the state.

State, if ward’s estate cannot pay (In practice, the courts may pay.)

Petitioner, if the court finds the petition was filed in bad faith, through

cost recovery to the court.

Statewide Public Guardian Office A public guardian will be provided only to those persons who needs cannot be met through less restrictive means of intervention, and may also serve in the capacity of a limited guardian or guardian advocate. 2016 legislation expands the use of public guardians.

Juvenile Competency (Mental Illness) – Expert agrees to evaluate juvenile defendants under section 985.19(1)(b), F.S., Florida Rules of Juvenile Procedure 8.095(c), and any other relevant Florida law for determinations of competency to proceed.

Section 985.19(1)(b), F.S.

All determinations of competency shall be made at a hearing, with findings of fact based on an evaluation of the

child’s mental condition made by not less than two nor more than three experts appointed by the

court.

Rule 8.095(c), Florida Rules of Juvenile Procedure

Court, if needed (Current statute requires the fees to be

taxed as costs in the case but is silent as

to who pays. In practice, the courts may

pay.)

For experts appointed by the court only for the determination of competency. If the expert addresses issues related to sanity as an affirmative defense, the court only pays for that portion of the fees related to competence.

Juvenile Competency (Intellectual Disability or Autism) – Court orders the Agency for Persons with Disabilities to examine the child

Section 985.19(1)(e), F.S.

For incompetency evaluations related to intellectual disability or autism, the court shall order the

Agency for Persons with Disabilities to examine the child to determine if the child meets the definition of “intellectual disability” or “autism” in s.

393.063 and, if so, whether the child is competent to proceed with delinquency proceedings.

Agency for Persons with Disabilities (APD)

(Current statute states that the court

shall order the APD to examine the

child, which may suggests that the APD

should bear the responsibility for

payment. However, the statute states

that the provisions of this section shall

be implemented only subject to specific

appropriations. APD reports that they

do not have staff or appropriation for

these exams. Until resolved, the courts

may pay.)

Appendix L

Page 59 of 64


COURT RULE


Ordinary Witnesses – Including, but not limited to witnesses in civil traffic cases.

Section 40.29(1), F.S. The party calling the witness, if not indigent. If indigent, JAC, SA, PD or Regional Counsel, as provided in

s. 29.005, 29.006, and 29.007 JAC forwards funds to the clerks of court to pay for ordinary witnesses from state funds appropriated for this purpose.

Traffic Court Section 92.143, F.S. Party who secures the attendance of witness.

State Attorney If the witness is required to testify on behalf of the prosecution.

Local Ordinance Violations Section 27.54(2), F.S. County or Municipality Person charged with offense, if entering a plea of guilty or no contest or if found to be in violation or guilty, shall be assessed fees for services of a PD or regional counsel and other costs and fees paid by the county or municipality. Fees recovered shall be forwarded to the applicable county or municipality as reimbursement, for services provided.

Jimmy Ryce Act Cases

Sections 394.910-394.932, F.S. JAC

Intellectual disability as a bar to the death penalty – Defense counsel asserts the limitation on the availability of the death penalty on an intellectually disabled persons.


Court, if needed (Current statute requires the court to

appoint experts but is silent as to who

pays. In practice, the courts may pay.)

Appendix L

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Type of Evaluation

Maximum Allowable Rate for

Evaluation*

Maximum Allowable

Travel Rate (Outside county

of residence or

distance?)

Maximum Allowable Follow-up

Evaluation Rate (With same expert)

Maximum Allowable No Show

Rate (Limit of one?)

Maximum Hourly Testimony Rate, Court Ordered (Including wait

time?)

Adult Competency $500 $350 $100 $150Juvenile Competency $350 $250 $100

Guardianship Examining CommitteePh.D., M.D., or D.O. $350 $250 $100

ARNP, RN, MSW, LPN, LCSW, Lay Person $250 $175 $100 Developmental Disability Examining Committee

Ph.D., M.D., or D.O. $350 $250 $100 ARNP, RN, MSW, LPN, LCSW, Lay Person $250 $175 $100

Type of Evaluation

Maximum Allowable Rate for

Evaluation*

Maximum Allowable


of residence or

distance?)

Maximum Allowable Follow-up

Evaluation Rate (With same expert)




time?)

Adult Competency $450 $50 $325 $100 $150Juvenile Competency $350 $50 $250 $100

Guardianship Examining CommitteePh.D., M.D., or D.O. $300 $50 $200 $100

ARNP, RN, MSW, LPN, LCSW, Lay Person $200 $50 $150 $50 Developmental Disability Examining Committee

Ph.D., M.D., or D.O. $300 $50 $200 $100 ARNP, RN, MSW, LPN, LCSW, Lay Person $200 $50 $150 $50

Type of Evaluation

Range of Allowable Rates for

Evaluation*

Maximum Allowable


of residence or

distance?)

Range of Allowable Follow-up

Evaluation Rates (With same expert)




time?)

Adult Competency $300-$500 $50 $200-$350 $100 $150Juvenile Competency $250-$350 $50 $175-$250 $100

Guardianship Examining CommitteePh.D., M.D., or D.O. $250-$350 $50 $175-$250 $100

ARNP, RN, MSW, LPN, LCSW, Lay Person $125-$250 $50 $75-$175 $50 Developmental Disability Examining Committee

Ph.D., M.D., or D.O. $250-$350 $50 $175-$250 $100 ARNP, RN, MSW, LPN, LCSW, Lay Person $125-$250 $50 $75-$175 $50

Type of Evaluation

Range of Allowable Rates for

Evaluation*

Maximum Allowable

Travel Rate

Range of Allowable Follow-up

Evaluation Rates (With same expert)


Rate

Maximum Hourly Testimony Rate, Court Ordered

(Including wait time,

2 hour cap)

Adult Competency $300-$500 $200-$350 $150Juvenile Competency $250-$350 $175-$250

Guardianship Examining CommitteePh.D., M.D., or D.O. $250-$350 $175-$250

ARNP, RN, MSW, LPN, LCSW, Lay Person $75-$250 $50-$175 Developmental Disability Examining Committee

Ph.D., M.D., or D.O. $250-$350 $175-$250 ARNP, RN, MSW, LPN, LCSW, Lay Person $75-$250 $50-$175

Due Process Workgroup Recommended Expert Witness Rate Structure

40% of Evaluation

Rate

Proposed Expert Witness Rate Structure Option 1 - Cap

Proposed Expert Witness Rate Structure Option 2 - Cap and Travel Time

Proposed Expert Witness Rate Structure Option 3 - Range

*Unless extraordinary circumstances exist and are approved according to circuit policy.

Appendix M

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1

Summary of Expert Witness Committee of Judges Groups I and II Conference Calls

The Due Process 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 workflow reference tool and other recommendations for inclusion in their final report. The advisory judges met by conference call in September 2016 and then divided into two groups which met twice in October 2016 to discuss the Workgroups recommendations and proposed statutory revisions. 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; and Hon. Samantha Ward, Circuit Judge, Thirteenth Judicial Circuit.

Group I Meeting Date: Tuesday, October 4, 2016, via telephone conference Members Present: Hon. Mark Speiser, Hon. Denise Ferrero, Hon. Nushin Sayfie, Hon. Ashley Moody, and Workgroup co-chairs Hon. Diana Moreland and Hon. John Stargel Statutes Assigned: ss. 916.115, 916.12, 916.17, 985.19, F.S. Sections 916.115, 916.12, and 916.17, F.S. A judge raised a question about the ambiguity in current statute s. 916.115 (1), F.S., which states “The court shall appoint no more than three experts…,” noting that the statute does not specify the timeframe covered in appointing three experts. For instance, is it three experts over the life of the case or three experts per motion? Another judge noted that Rule 3.210, Florida Rules of Criminal Procedure, specifies experts could be appointed at “any material stage” of the case and that the statute, if changed, should mirror the rule. However, she noted that she did not feel the statute should be changed as the matter is sufficiently covered in rule. Rule 3.210 also specifies what is needed from the defense attorney in order for the court to appoint an expert. The committee members noted that all judges do not adhere strictly to this requirement and that this should be referred as a judicial education issue. A judge noted, in competence evaluations, she routinely relies on the report of one expert and counsel usually agrees to stipulate to the findings of the expert. Another judge noted that, in their circuit, stipulation to one expert is not common and that if the first evaluation results in a finding of incompetence, the state will usually request a second evaluation. A judge stated that in their circuit they usually appoint two experts to start with and their public defenders will usually ask for a third evaluation as a matter of course. Another judge noted that the relevant case law on this topic supports using only one expert when a person is found competent. For example, in Ross v. State, the Florida Supreme Court ruled that a finding of competency by one expert is sufficient and in Tita v. State, Florida’s Fourth District Court of Appeal ruled that there is no constitutional right to two expert evaluations. However, he further reminded that when two

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conflicting reports have been entered, the court cannot decide which report to side with without having a third expert evaluation or holding a hearing, unless the parties stipulate to the findings of one of the experts. All members concurred that limiting the initial appointment to one expert could prolong the time it takes to make a final determination of competence while the defendant may remain incarcerated, which, they noted, seems to apply to about half of the defendants under evaluation (the other half are released on community control). The committee disagreed as to whether it was necessary for the judge to enter a written order if the defendant is found competent to proceed. Further, committee members discussed the issue of defendants decompensating from being given generic prescription medication while in a jail or medical facility. Section 985.19, F.S. - This section was not addressed by the committee. Group II Meeting Date: Wednesday, October 5, 2016, via conference call Members Present: Hon. Robert Luck, Hon. Samantha Ward, Hon. Olga Levine, and Workgroup co-chair Hon. John Stargel Statutes Assigned: 916.301 – 916.304, 921.09, 921.12, 921.137, 393.11, 744.331, F.S. The members first addressed the general concept of appointing one expert for the initial evaluation. A judge noted a low likelihood of securing agreement based on the evaluation of one expert. Another judge noted that the suggestion of incompetence is typically raised in a simple/unvetted fashion, with something short of a report. A judge also noted that incompetency is an inexact science and that the court often receives differing reports from experts. Another judge expressed a concern that it may be unlikely that parties will agree on one expert’s report, which will lead to delays. Another judge noted that since the suggestion of incompetence usually comes without a fully formed report, a full evaluation is needed to determine adult competence under s. 916.115, F.S. Sections 916.301 – 916.304, F.S. For suspected intellectual disabilities, in addition to the court-appointed experts report, a second report is completed by someone selected by the Agency for Persons with Disabilities (APD). A judge noted the only reason to hold a hearing is if there is not a third evaluation ordered. Another judge expressed concern that an expert associated with APD may be less inclined to find someone in need of services than an independent doctor. A judge added that she regularly hears concerns that the ADP staff do not have time to complete the work and cannot meet established deadlines and was concerned that the first person appointed may not always be a disinterested person. One of the judges asked if perhaps the appointee should be chosen from a court-approved registry. Another judge noted that the registries are maintained by circuit and not required in statute.

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Regarding the role of the social service professional referenced in s. 916.301, F.S., a judge noted that the professional is usually the person who has been giving direct care and that she places a high value on this person’s opinion. This person could be an APD employee or, as was also noted, it could be the employee of the group home who is responsible for the daily care of the defendant.

Section 948.015, F.S. - Pre-sentence Investigation reports (Not within the scope of the Workgroup) A judge expressed concerns about s. 948.015, F.S., which allows, when ordering a pre-sentence investigation, for a full medical history and, as appropriate, a psychological or psychiatric evaluation. She noted there have been disputes about who pays (court, JAC, etc.).

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Documents

EXPERT WITNESSES...solutions in order to improve the processes for appointing experts and containing costs. Administrative Solutions The Workgroup recommended three administrative