Florida Senate - 2014                                    SB 1544
       
       
        
       By Senator Braynon
       
       
       
       
       
       36-01038A-14                                          20141544__
    1                        A bill to be entitled                      
    2         An act relating to involuntary examinations under the
    3         Baker Act; reordering and amending s. 394.455, F.S.;
    4         providing definitions; updating references to the
    5         Department of Children and Families; amending s.
    6         394.463, F.S.; authorizing physician assistants and
    7         advanced registered nurse practitioners to initiate
    8         involuntary examinations under the Baker Act of
    9         persons believed to have mental illness; amending ss.
   10         39.407, 394.495, 394.496, 394.9085, 409.972, and
   11         744.704, F.S.; conforming cross-references; providing
   12         an effective date.
   13          
   14  Be It Enacted by the Legislature of the State of Florida:
   15  
   16         Section 1. Section 394.455, Florida Statutes, is reordered
   17  and amended to read:
   18         394.455 Definitions.—As used in this part, unless the
   19  context clearly requires otherwise, the term:
   20         (1) “Administrator” means the chief administrative officer
   21  of a receiving or treatment facility or his or her designee.
   22         (2) “Advanced registered nurse practitioner” means a
   23  practitioner licensed under part I of chapter 464 who is
   24  authorized to perform the functions listed in s. 464.012(4)(c).
   25         (3)(2) “Clinical psychologist” means a psychologist as
   26  defined in s. 490.003(7) with 3 years of postdoctoral experience
   27  in the practice of clinical psychology, inclusive of the
   28  experience required for licensure, or a psychologist employed by
   29  a facility operated by the United States Department of Veterans
   30  Affairs that qualifies as a receiving or treatment facility
   31  under this part.
   32         (4)(3) “Clinical record” means all parts of the record
   33  required to be maintained and includes all medical records,
   34  progress notes, charts, and admission and discharge data, and
   35  all other information recorded by a facility which pertains to
   36  the patient’s hospitalization or treatment.
   37         (5)(4) “Clinical social worker” means a person licensed as
   38  a clinical social worker under chapter 491.
   39         (6)(5) “Community facility” means any community service
   40  provider contracting with the department to furnish substance
   41  abuse or mental health services under part IV of this chapter.
   42         (7)(6) “Community mental health center or clinic” means a
   43  publicly funded, not-for-profit center which contracts with the
   44  department for the provision of inpatient, outpatient, day
   45  treatment, or emergency services.
   46         (8)(7) “Court,” unless otherwise specified, means the
   47  circuit court.
   48         (9)(8) “Department” means the Department of Children and
   49  Families Family Services.
   50         (11)(9) “Express and informed consent” means consent
   51  voluntarily given in writing, by a competent person, after
   52  sufficient explanation and disclosure of the subject matter
   53  involved to enable the person to make a knowing and willful
   54  decision without any element of force, fraud, deceit, duress, or
   55  other form of constraint or coercion.
   56         (12)(10) “Facility” means any hospital, community facility,
   57  public or private facility, or receiving or treatment facility
   58  providing for the evaluation, diagnosis, care, treatment,
   59  training, or hospitalization of persons who appear to have a
   60  mental illness or have been diagnosed as having a mental
   61  illness. The term “Facility” does not include any program or
   62  entity licensed pursuant to chapter 400 or chapter 429.
   63         (13)(11) “Guardian” means the natural guardian of a minor,
   64  or a person appointed by a court to act on behalf of a ward’s
   65  person if the ward is a minor or has been adjudicated
   66  incapacitated.
   67         (14)(12) “Guardian advocate” means a person appointed by a
   68  court to make decisions regarding mental health treatment on
   69  behalf of a patient who has been found incompetent to consent to
   70  treatment pursuant to this part. The guardian advocate may be
   71  granted specific additional powers by written order of the
   72  court, as provided in this part.
   73         (15)(13) “Hospital” means a facility as defined in s.
   74  395.002 and licensed under chapter 395 and part II of chapter
   75  408.
   76         (16)(14) “Incapacitated” means that a person has been
   77  adjudicated incapacitated pursuant to part V of chapter 744 and
   78  a guardian of the person has been appointed.
   79         (17)(15) “Incompetent to consent to treatment” means that a
   80  person’s judgment is so affected by his or her mental illness
   81  that the person lacks the capacity to make a well-reasoned,
   82  willful, and knowing decision concerning his or her medical or
   83  mental health treatment.
   84         (20)(16) “Law enforcement officer” means a law enforcement
   85  officer as defined in s. 943.10.
   86         (23)(17) “Mental health overlay program” means a mobile
   87  service which provides an independent examination for voluntary
   88  admissions and a range of supplemental onsite services to
   89  persons with a mental illness in a residential setting such as a
   90  nursing home, assisted living facility, adult family-care home,
   91  or nonresidential setting such as an adult day care center.
   92  Independent examinations provided pursuant to this part through
   93  a mental health overlay program must only be provided under
   94  contract with the department for this service or be attached to
   95  a public receiving facility that is also a community mental
   96  health center.
   97         (24)(18) “Mental illness” means an impairment of the mental
   98  or emotional processes that exercise conscious control of one’s
   99  actions or of the ability to perceive or understand reality,
  100  which impairment substantially interferes with the person’s
  101  ability to meet the ordinary demands of living. For the purposes
  102  of this part, the term does not include a developmental
  103  disability as defined in chapter 393, intoxication, or
  104  conditions manifested only by antisocial behavior or substance
  105  abuse impairment.
  106         (25)(19) “Mobile crisis response service” means a
  107  nonresidential crisis service attached to a public receiving
  108  facility and available 24 hours a day, 7 days a week, through
  109  which immediate intensive assessments and interventions,
  110  including screening for admission into a receiving facility,
  111  take place for the purpose of identifying appropriate treatment
  112  services.
  113         (26)(20) “Patient” means any person who is held or accepted
  114  for mental health treatment.
  115         (27)(21) “Physician” means a medical practitioner licensed
  116  under chapter 458 or chapter 459 who has experience in the
  117  diagnosis and treatment of mental and nervous disorders or a
  118  physician employed by a facility operated by the United States
  119  Department of Veterans Affairs which qualifies as a receiving or
  120  treatment facility under this part.
  121         (28) “Physician assistant” means a physician assistant
  122  licensed under chapter 458 or chapter 459 who has experience
  123  regarding the diagnosis and treatment of mental and nervous
  124  disorders and such tasks as are within the supervising
  125  physician’s scope of practice.
  126         (29)(22) “Private facility” means any hospital or facility
  127  operated by a for-profit or not-for-profit corporation or
  128  association that provides mental health services and is not a
  129  public facility.
  130         (30)(23) “Psychiatric nurse” means a registered nurse
  131  licensed under part I of chapter 464 who has a master’s degree
  132  or a doctorate in psychiatric nursing and 2 years of post
  133  master’s clinical experience under the supervision of a
  134  physician.
  135         (31)(24) “Psychiatrist” means a medical practitioner
  136  licensed under chapter 458 or chapter 459 who has primarily
  137  diagnosed and treated mental and nervous disorders for a period
  138  of not less than 3 years, inclusive of psychiatric residency.
  139         (32)(25) “Public facility” means any facility that has
  140  contracted with the department to provide mental health services
  141  to all persons, regardless of their ability to pay, and is
  142  receiving state funds for such purpose.
  143         (33)(26) “Receiving facility” means any public or private
  144  facility designated by the department to receive and hold
  145  involuntary patients under emergency conditions or for
  146  psychiatric evaluation and to provide short-term treatment. The
  147  term does not include a county jail.
  148         (34)(27) “Representative” means a person selected to
  149  receive notice of proceedings during the time a patient is held
  150  in or admitted to a receiving or treatment facility.
  151         (35)(28)(a) “Restraint” means a physical device, method, or
  152  drug used to control behavior. A physical restraint is any
  153  manual method or physical or mechanical device, material, or
  154  equipment attached or adjacent to the individual’s body so that
  155  he or she cannot easily remove the restraint and which restricts
  156  freedom of movement or normal access to one’s body.
  157         (b) A drug used as a restraint is a medication used to
  158  control the person’s behavior or to restrict his or her freedom
  159  of movement and is not part of the standard treatment regimen of
  160  a person with a diagnosed mental illness who is a client of the
  161  department. Physically holding a person during a procedure to
  162  forcibly administer psychotropic medication is a physical
  163  restraint.
  164         (c) Restraint does not include physical devices, such as
  165  orthopedically prescribed appliances, surgical dressings and
  166  bandages, supportive body bands, or other physical holding when
  167  necessary for routine physical examinations and tests; or for
  168  purposes of orthopedic, surgical, or other similar medical
  169  treatment; when used to provide support for the achievement of
  170  functional body position or proper balance; or when used to
  171  protect a person from falling out of bed.
  172         (36)(29) “Seclusion” means the physical segregation of a
  173  person in any fashion or involuntary isolation of a person in a
  174  room or area from which the person is prevented from leaving.
  175  The prevention may be by physical barrier or by a staff member
  176  who is acting in a manner, or who is physically situated, so as
  177  to prevent the person from leaving the room or area. For
  178  purposes of this chapter, the term does not mean isolation due
  179  to a person’s medical condition or symptoms.
  180         (37)(30) “Secretary” means the Secretary of Children and
  181  Families Family Services.
  182         (39)(31) “Transfer evaluation” means the process, as
  183  approved by the appropriate district office of the department,
  184  whereby a person who is being considered for placement in a
  185  state treatment facility is first evaluated for appropriateness
  186  of admission to the facility by a community-based public
  187  receiving facility or by a community mental health center or
  188  clinic if the public receiving facility is not a community
  189  mental health center or clinic.
  190         (40)(32) “Treatment facility” means any state-owned, state
  191  operated, or state-supported hospital, center, or clinic
  192  designated by the department for extended treatment and
  193  hospitalization, beyond that provided for by a receiving
  194  facility, of persons who have a mental illness, including
  195  facilities of the United States Government, and any private
  196  facility designated by the department when rendering such
  197  services to a person pursuant to the provisions of this part.
  198  Patients treated in facilities of the United States Government
  199  shall be solely those whose care is the responsibility of the
  200  United States Department of Veterans Affairs.
  201         (38)(33) “Service provider” means any public or private
  202  receiving facility, an entity under contract with the Department
  203  of Children and Families Family Services to provide mental
  204  health services, a clinical psychologist, a clinical social
  205  worker, a marriage and family therapist, a mental health
  206  counselor, a physician, a psychiatric nurse as defined in
  207  subsection (30) (23), or a community mental health center or
  208  clinic as defined in this part.
  209         (18)(34) “Involuntary examination” means an examination
  210  performed under s. 394.463 to determine if an individual
  211  qualifies for involuntary inpatient treatment under s.
  212  394.467(1) or involuntary outpatient treatment under s.
  213  394.4655(1).
  214         (19)(35) “Involuntary placement” means either involuntary
  215  outpatient treatment pursuant to s. 394.4655 or involuntary
  216  inpatient treatment pursuant to s. 394.467.
  217         (21)(36) “Marriage and family therapist” means a person
  218  licensed as a marriage and family therapist under chapter 491.
  219         (22)(37) “Mental health counselor” means a person licensed
  220  as a mental health counselor under chapter 491.
  221         (10)(38) “Electronic means” means a form of
  222  telecommunication that requires all parties to maintain visual
  223  as well as audio communication.
  224         Section 2. Paragraph (a) of subsection (2) of section
  225  394.463, Florida Statutes, is amended to read:
  226         394.463 Involuntary examination.—
  227         (2) INVOLUNTARY EXAMINATION.—
  228         (a) An involuntary examination may be initiated by any one
  229  of the following means:
  230         1. A court may enter an ex parte order stating that a
  231  person appears to meet the criteria for involuntary examination,
  232  giving the findings on which that conclusion is based. The ex
  233  parte order for involuntary examination must be based on sworn
  234  testimony, written or oral. If other less restrictive means are
  235  not available, such as voluntary appearance for outpatient
  236  evaluation, a law enforcement officer, or other designated agent
  237  of the court, shall take the person into custody and deliver him
  238  or her to the nearest receiving facility for involuntary
  239  examination. The order of the court shall be made a part of the
  240  patient’s clinical record. No fee shall be charged for the
  241  filing of an order under this subsection. Any receiving facility
  242  accepting the patient based on this order must send a copy of
  243  the order to the Agency for Health Care Administration on the
  244  next working day. The order shall be valid only until executed
  245  or, if not executed, for the period specified in the order
  246  itself. If no time limit is specified in the order, the order
  247  shall be valid for 7 days after the date that the order was
  248  signed.
  249         2. A law enforcement officer shall take a person who
  250  appears to meet the criteria for involuntary examination into
  251  custody and deliver the person or have him or her delivered to
  252  the nearest receiving facility for examination. The officer
  253  shall execute a written report detailing the circumstances under
  254  which the person was taken into custody, and the report shall be
  255  made a part of the patient’s clinical record. Any receiving
  256  facility accepting the patient based on this report must send a
  257  copy of the report to the Agency for Health Care Administration
  258  on the next working day.
  259         3. A physician, physician assistant, clinical psychologist,
  260  psychiatric nurse, mental health counselor, marriage and family
  261  therapist, or clinical social worker, or advanced registered
  262  nurse practitioner may execute a certificate stating that he or
  263  she has examined a person within the preceding 48 hours and
  264  finds that the person appears to meet the criteria for
  265  involuntary examination and stating the observations upon which
  266  that conclusion is based. If other less restrictive means are
  267  not available, such as voluntary appearance for outpatient
  268  evaluation, a law enforcement officer shall take the person
  269  named in the certificate into custody and deliver him or her to
  270  the nearest receiving facility for involuntary examination. The
  271  law enforcement officer shall execute a written report detailing
  272  the circumstances under which the person was taken into custody.
  273  The report and certificate shall be made a part of the patient’s
  274  clinical record. Any receiving facility accepting the patient
  275  based on this certificate must send a copy of the certificate to
  276  the Agency for Health Care Administration on the next working
  277  day.
  278         Section 3. Paragraph (a) of subsection (3) of section
  279  39.407, Florida Statutes, is amended to read:
  280         39.407 Medical, psychiatric, and psychological examination
  281  and treatment of child; physical, mental, or substance abuse
  282  examination of person with or requesting child custody.—
  283         (3)(a)1. Except as otherwise provided in subparagraph (b)1.
  284  or paragraph (e), before the department provides psychotropic
  285  medications to a child in its custody, the prescribing physician
  286  shall attempt to obtain express and informed consent, as defined
  287  in s. 394.455 394.455(9) and as described in s. 394.459(3)(a),
  288  from the child’s parent or legal guardian. The department must
  289  take steps necessary to facilitate the inclusion of the parent
  290  in the child’s consultation with the physician. However, if the
  291  parental rights of the parent have been terminated, the parent’s
  292  location or identity is unknown or cannot reasonably be
  293  ascertained, or the parent declines to give express and informed
  294  consent, the department may, after consultation with the
  295  prescribing physician, seek court authorization to provide the
  296  psychotropic medications to the child. Unless parental rights
  297  have been terminated and if it is possible to do so, the
  298  department shall continue to involve the parent in the
  299  decisionmaking process regarding the provision of psychotropic
  300  medications. If, at any time, a parent whose parental rights
  301  have not been terminated provides express and informed consent
  302  to the provision of a psychotropic medication, the requirements
  303  of this section that the department seek court authorization do
  304  not apply to that medication until such time as the parent no
  305  longer consents.
  306         2. Any time the department seeks a medical evaluation to
  307  determine the need to initiate or continue a psychotropic
  308  medication for a child, the department must provide to the
  309  evaluating physician all pertinent medical information known to
  310  the department concerning that child.
  311         Section 4. Paragraphs (a) and (c) of subsection (3) of
  312  section 394.495, Florida Statutes, are amended to read:
  313         394.495 Child and adolescent mental health system of care;
  314  programs and services.—
  315         (3) Assessments must be performed by:
  316         (a) A professional as defined in s. 394.455(3), (5), (27),
  317  (30), or (31) 394.455(2), (4), (21), (23), or (24);
  318         (c) A person who is under the direct supervision of a
  319  professional as defined in s. 394.455(3), (5), (27), (30), or
  320  (31) 394.455(2), (4), (21), (23), or (24) or a professional
  321  licensed under chapter 491.
  322  
  323  The department shall adopt by rule statewide standards for
  324  mental health assessments, which must be based on current
  325  relevant professional and accreditation standards.
  326         Section 5. Subsection (6) of section 394.496, Florida
  327  Statutes, is amended to read:
  328         394.496 Service planning.—
  329         (6) A professional as defined in s. 394.455(3), (5), (27),
  330  (30), or (31) 394.455(2), (4), (21), (23), or (24) or a
  331  professional licensed under chapter 491 must be included among
  332  those persons developing the services plan.
  333         Section 6. Subsection (6) of section 394.9085, Florida
  334  Statutes, is amended to read:
  335         394.9085 Behavioral provider liability.—
  336         (6) For purposes of this section, the terms “receiving
  337  facility,” “addictions receiving facility,” and “detoxification
  338  services,” “addictions receiving facility,” and “receiving
  339  facility” have the same meanings as those provided in ss.
  340  394.455(33), 397.311(18)(a)1., and 397.311(18)(a)4.,
  341  397.311(18)(a)1., and 394.455(26), respectively.
  342         Section 7. Paragraph (b) of subsection (2) of section
  343  409.972, Florida Statutes, is amended to read:
  344         409.972 Mandatory and voluntary enrollment.—
  345         (2) The following Medicaid-eligible persons are exempt from
  346  mandatory managed care enrollment required by s. 409.965, and
  347  may voluntarily choose to participate in the managed medical
  348  assistance program:
  349         (b) Medicaid recipients residing in residential commitment
  350  facilities operated through the Department of Juvenile Justice
  351  or mental health treatment facilities as defined by s.
  352  394.455(40) 394.455(32).
  353         Section 8. Subsection (7) of section 744.704, Florida
  354  Statutes, is amended to read:
  355         744.704 Powers and duties.—
  356         (7) A public guardian shall not commit a ward to a mental
  357  health treatment facility, as defined in s. 394.455(40)
  358  394.455(32), without an involuntary placement proceeding as
  359  provided by law.
  360         Section 9. This act shall take effect July 1, 2014.
  361