House Bill hb1389

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    Florida House of Representatives - 2002                HB 1389

        By Representatives Simmons and Arza






  1                      A bill to be entitled

  2         An act relating to mental health treatment;

  3         amending s. 394.455, F.S.; modifying

  4         definitions; amending s. 394.463, F.S.;

  5         providing additional criteria for involuntary

  6         examination at a mental health receiving

  7         facility; authorizing certain law enforcement

  8         actions to enforce an outpatient treatment

  9         order; providing requirements for recordkeeping

10         and reporting of such orders by the Agency for

11         Health Care Administration; amending s.

12         394.467, F.S.; providing additional criteria

13         for involuntary placement for mental health

14         treatment; providing for inpatient or

15         outpatient treatment; revising provisions

16         relating to the court's treatment order at a

17         hearing on involuntary placement; requiring an

18         order for outpatient treatment to include

19         requirements for the provision of services and

20         procedures in the event of patient

21         noncompliance; providing for waiver of the time

22         periods for the hearing on involuntary

23         placement if a voluntary agreement to treatment

24         is obtained; providing requirements for a

25         court-approved treatment plan under such

26         voluntary treatment agreement; providing

27         procedures for hearings in the event of

28         noncompliance with treatment according to the

29         agreement; clarifying provisions relating to

30         hearings for continued involuntary placement;

31         amending s. 394.499, F.S.; providing additional

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  1         criteria for eligibility to receive children's

  2         crisis stabilization unit/juvenile addictions

  3         receiving facility services; reenacting ss.

  4         394.67(18), 394.674(2), 394.492(5) and (6),

  5         984.19(4), and 985.211(2)(d), F.S., to

  6         incorporate the amendments to ss. 394.463(1)

  7         and 394.67, F.S., in cross-references;

  8         providing an effective date.

  9

10  Be It Enacted by the Legislature of the State of Florida:

11

12         Section 1.  Subsections (3), (26), and (30) of section

13  394.455, Florida Statutes, are amended to read:

14         394.455  Definitions.--As used in this part, unless the

15  context clearly requires otherwise, the term:

16         (3)  "Clinical record" means all parts of the record

17  required to be maintained and includes all medical records,

18  progress notes, charts, and admission and discharge data, and

19  all other information recorded by a facility which pertains to

20  the patient's hospitalization or and treatment.

21         (26)  "Receiving facility" means any public or private

22  facility designated by the department to receive and hold

23  involuntary patients under emergency conditions or for

24  psychiatric evaluation and to provide short-term inpatient or

25  outpatient treatment. The term does not include a county jail.

26         (30)  "Treatment facility" means any state-owned,

27  state-operated, or state-supported hospital, center, or clinic

28  designated by the department for extended inpatient or

29  outpatient treatment and hospitalization, beyond that provided

30  for by a receiving facility, of persons who have a mental

31  illness, including facilities of the United States Government,

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  1  and any private facility designated by the department when

  2  rendering such services to a person pursuant to the provisions

  3  of this part.  Patients treated in facilities of the United

  4  States Government shall be solely those whose care is the

  5  responsibility of the United States Department of Veterans

  6  Affairs.

  7         Section 2.  Subsection (1) and paragraphs (c), (d), and

  8  (e) of subsection (2) of section 394.463, Florida Statutes,

  9  are amended to read:

10         394.463  Involuntary examination.--

11         (1)  CRITERIA.--A person may be taken to a receiving

12  facility for involuntary examination if there is reason to

13  believe that he or she is mentally ill and because of his or

14  her mental illness:

15         (a)1.  The person has refused voluntary examination

16  after conscientious explanation and disclosure of the purpose

17  of the examination; or

18         2.  The person is unable to determine for himself or

19  herself whether examination is necessary; and

20         (b)1.  Without care or treatment, the person's current

21  condition is likely to deteriorate until his or her mental

22  illness significantly impairs his or her judgment, reason,

23  behavior, or capacity to recognize reality and has a

24  substantial probability of causing him or her to suffer severe

25  psychological, emotional, or physical harm;

26         2.1.  Without care or treatment, the person is likely

27  to suffer from neglect or refuse to care for himself or

28  herself; such neglect or refusal poses a real and present

29  threat of substantial harm to his or her well-being; and it is

30  not apparent that such harm may be avoided through the help of

31

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  1  willing family members or friends or the provision of other

  2  services; or

  3         3.2.  There is a substantial likelihood that without

  4  care or treatment the person will cause serious bodily harm to

  5  himself or herself or others in the near future, as evidenced

  6  by recent behavior.

  7         (2)  INVOLUNTARY EXAMINATION.--

  8         (c)  A law enforcement officer acting in accordance

  9  with an ex parte order issued pursuant to this subsection or a

10  treatment order issued pursuant to s. 394.467(6)(b)3. may

11  serve and execute such order on any day of the week, at any

12  time of the day or night.

13         (d)  A law enforcement officer acting in accordance

14  with an ex parte order issued pursuant to this subsection or a

15  treatment order issued pursuant to s. 394.467(6)(b)3. may use

16  such reasonable physical force as is necessary to gain entry

17  to the premises, and any dwellings, buildings, or other

18  structures located on the premises, and to take custody of the

19  person who is the subject of the ex parte order.

20         (e)  The Agency for Health Care Administration shall

21  receive and maintain the copies of ex parte orders, treatment

22  orders issued pursuant to s. 394.467(6)(b)3., professional

23  certificates, and law enforcement officers' reports.  These

24  documents shall be considered part of the clinical record,

25  governed by the provisions of s. 394.4615.  The agency shall

26  prepare annual reports analyzing the data obtained from these

27  documents, without information identifying patients, and shall

28  provide copies of reports to the department, the President of

29  the Senate, the Speaker of the House of Representatives, and

30  the minority leaders of the Senate and the House of

31  Representatives.

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  1         Section 3.  Subsection (1), paragraph (b) of subsection

  2  (6), and paragraphs (b) and (d) of present subsection (7) of

  3  section 394.467, Florida Statutes, are amended, present

  4  subsections (7) and (8) are renumbered as subsections (8) and

  5  (9), respectively, and a new subsection (7) is added to that

  6  section, to read:

  7         394.467  Involuntary placement.--

  8         (1)  CRITERIA.--A person may be involuntarily placed in

  9  inpatient or outpatient for treatment upon a finding of the

10  court, the determination of which shall include consideration

11  of the person's relevant medical history, that by clear and

12  convincing evidence that:

13         (a)  He or she is mentally ill and because of his or

14  her mental illness:

15         1.a.  He or she has refused voluntary placement for

16  treatment after sufficient and conscientious explanation and

17  disclosure of the purpose of placement for treatment; or

18         b.  He or she is unable to determine for himself or

19  herself whether placement is necessary; and

20         2.a.  He or she is manifestly incapable of surviving

21  alone or with the help of willing and responsible family or

22  friends, including available alternative services, and,

23  without treatment, is likely to suffer from neglect or refuse

24  to care for himself or herself, and such neglect or refusal

25  poses a real and present threat of substantial harm to his or

26  her well-being; or

27         b.  There is substantial likelihood that in the near

28  future he or she will inflict serious bodily harm on himself

29  or herself or another person, as evidenced by recent behavior

30  causing, attempting, or threatening such harm; or and

31

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  1         c.  Without treatment, his or her current condition is

  2  likely to deteriorate until his or her mental illness

  3  significantly impairs his or her judgment, reason, behavior,

  4  or capacity to recognize reality and has a substantial

  5  probability of causing him or her to suffer severe

  6  psychological, emotional, or physical harm; and

  7         (b)  All available less restrictive treatment

  8  alternatives which would offer an opportunity for improvement

  9  of his or her condition have been judged to be inappropriate.

10         (6)  HEARING ON INVOLUNTARY PLACEMENT.--

11         (b)1.  If the court concludes that the patient meets

12  the criteria for involuntary placement, it shall order that

13  the patient be transferred to a treatment facility or, if the

14  patient is at a treatment facility, that the patient be

15  retained there or be treated at any other appropriate

16  receiving or treatment facility, or that the patient receive

17  services from a receiving or treatment facility, on an

18  involuntary basis, for a period of up to 6 months. The order

19  shall specify the nature and extent of the patient's mental

20  illness. The facility shall discharge a patient any time the

21  patient no longer meets the criteria for involuntary

22  placement, unless the patient has transferred to voluntary

23  status.

24         2.  The treatment order shall specify the nature and

25  extent of the patient's mental illness and whether treatment

26  shall be on an inpatient or outpatient basis. An order for

27  outpatient treatment must include provisions for case

28  management, intensive case management, assertive community

29  treatment, or a program for assertive community treatment, if

30  those resources are available. The order may also require that

31  the patient make use of, and the Department of Children and

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  1  Family Services or its designees supply, any or all of the

  2  following categories of services to the patient:  medication;

  3  periodic blood tests or urinalysis to determine compliance

  4  with treatment; individual or group therapy; day or partial

  5  day program activities; educational and vocational training or

  6  activities; alcohol or substance abuse treatment and

  7  counseling and periodic tests for the presence of alcohol or

  8  illegal drugs for persons with a history of alcohol or

  9  substance abuse; supervision of living arrangements; and any

10  other services prescribed to treat the person's mental illness

11  and to assist the person in living and functioning in the

12  community or attempt to prevent a relapse or deterioration.

13  The services ordered shall be deemed to be clinically

14  appropriate by a physician, clinical psychologist, psychiatric

15  nurse, or social worker who consults with, or is employed or

16  contracted by, the provider that will have primary

17  responsibility for service provision under the order. Any

18  material modifications of the provisions of the treatment

19  order to which the patient does not agree must be approved by

20  the court.

21         3.  The treatment order shall specify that if the

22  patient fails to comply with the outpatient treatment order,

23  the patient shall be brought to a receiving facility for

24  involuntary examination pursuant to s. 394.463(2)(c)-(i), in

25  order to determine whether the outpatient placement is still

26  the least restrictive treatment alternative which would offer

27  an opportunity for improvement of his or her condition.

28  Failure to comply with an outpatient treatment order shall not

29  be grounds for involuntary civil commitment or a finding of

30  contempt of court.

31         (7)  VOLUNTARY TREATMENT AGREEMENT.--

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  1         (a)  A person, or his or her legal counsel with the

  2  person's consent, may waive the time periods for the hearing

  3  under this section for a period not to exceed 90 days from the

  4  date of the waiver, if the person and the state attorney

  5  designated under paragraph (6)(a) agree at any time after the

  6  commencement of the proceedings that the person shall obtain

  7  treatment under a voluntary treatment agreement. The voluntary

  8  treatment agreement shall be in writing, shall be approved by

  9  the court, and shall include a treatment plan that provides

10  for treatment in the least restrictive manner consistent with

11  the needs of the the patient. Either party may request the

12  court to modify the treatment plan at any time during the

13  90-day period. The court shall designate the Department of

14  Children and Family Services or its designee to monitor the

15  patient's treatment under, and compliance with, the voluntary

16  treatment agreement.

17         (b)1.  If the patient fails to comply with the

18  treatment according to the agreement, the Department of

19  Children and Family Services or its designee shall notify the

20  counsel designated under paragraph (6)(a) and the patient's

21  counsel of the patient's noncompliance. If, within 90 days

22  after the date of the waiver under this subsection, the

23  patient fails to comply with the voluntary treatment agreement

24  approved by the court under this subsection, the counsel

25  designated under paragraph (6)(a) may file with the court a

26  statement of facts which constitute the basis for the belief

27  that the patient is not in compliance. The statement shall be

28  sworn to be true and may be based on the information and

29  belief of the person filing the statement.

30         2.  Upon receipt of the statement of noncompliance, the

31  court may issue an order to detain the patient pending the

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  1  final disposition. If the patient is detained under this

  2  subparagraph, the court shall hold the hearing within a

  3  72-hour period or, if the 72-hour period ends on a weekend or

  4  holiday, no later than the next working day thereafter. The

  5  facts alleged as the basis for involuntary placement prior to

  6  the waiver of the time periods for hearing may be the basis

  7  for a final disposition at a hearing under this subparagraph.

  8         (c)  Upon the motion of the patient, the court shall

  9  hold a hearing on the issue of noncompliance with the

10  voluntary treatment agreement within a 72-hour period or, if

11  the 72-hour period ends on a weekend or holiday, no later than

12  the next working day thereafter, from the time the motion for

13  a hearing under this subparagraph is filed with the court. At

14  a hearing on the issue of noncompliance with the agreement,

15  the written statement of noncompliance submitted under

16  subparagraph (b)2. shall be prima facie evidence that a

17  violation of the conditions has occurred. If the patient

18  denies any of the facts as stated in the statement, he or she

19  has the burden of proving that the facts are false by a

20  preponderance of the evidence.

21         (8)(7)  PROCEDURE FOR CONTINUED INVOLUNTARY

22  PLACEMENT.--

23         (b)  If the patient continues to meet the criteria for

24  involuntary placement, the administrator of the treatment

25  facility shall, prior to the expiration of the period during

26  which treatment is ordered for the treatment facility is

27  authorized to retain the patient, file a petition requesting

28  authorization for continued involuntary placement.  The

29  request shall be accompanied by a statement from the patient's

30  physician or clinical psychologist justifying the request, a

31  brief description of the patient's treatment during the time

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  1  he or she was involuntarily placed, and an individualized plan

  2  of continued treatment.  Notice of the hearing shall be

  3  provided as set forth in s. 394.4599. If at the hearing the

  4  hearing officer finds that attendance at the hearing is not

  5  consistent with the best interests of the patient, the hearing

  6  officer may waive the presence of the patient from all or any

  7  portion of the hearing, unless the patient, through counsel,

  8  objects to the waiver of presence.  The testimony in the

  9  hearing must be under oath, and the proceedings must be

10  recorded.

11         (d)  If at a hearing it is shown that the patient

12  continues to meet the criteria for involuntary placement, the

13  administrative law judge shall sign the order for continued

14  involuntary placement for a period not to exceed 6 months.

15  The same procedure shall be repeated prior to the expiration

16  of each additional period the patient is placed in treatment

17  retained.

18         Section 4.  Paragraph (b) of subsection (2) of section

19  394.499, Florida Statutes, is amended to read:

20         394.499  Integrated children's crisis stabilization

21  unit/juvenile addictions receiving facility services.--

22         (2)  Children eligible to receive integrated children's

23  crisis stabilization unit/juvenile addictions receiving

24  facility services include:

25         (b)  A person under 18 years of age who may be taken to

26  a receiving facility for involuntary examination, if there is

27  reason to believe that he or she is mentally ill and because

28  of his or her mental illness, pursuant to s. 394.463:

29         1.  Has refused voluntary examination after

30  conscientious explanation and disclosure of the purpose of the

31  examination; or

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  1         2.  Is unable to determine for himself or herself

  2  whether examination is necessary; and

  3         a.  Without care or treatment, the person's current

  4  condition is likely to deteriorate until his or her mental

  5  illness significantly impairs his or her judgment, reason,

  6  behavior, or capacity to recognize reality and has a

  7  substantial probability of causing him or her to suffer severe

  8  psychological, emotional, or physical harm;

  9         b.a.  Without care or treatment is likely to suffer

10  from neglect or refuse to care for himself or herself; such

11  neglect or refusal poses a real and present threat of

12  substantial harm to his or her well-being; and it is not

13  apparent that such harm may be avoided through the help of

14  willing family members or friends or the provision of other

15  services; or

16         c.b.  There is a substantial likelihood that without

17  care or treatment he or she will cause serious bodily harm to

18  himself or herself or others in the near future, as evidenced

19  by recent behavior.

20         Section 5.  For the purpose of incorporating the

21  amendments to section 394.463, Florida Statutes, in references

22  thereto, subsection (18) of section 394.67, Florida Statutes,

23  is reenacted to read:

24         394.67  Definitions.--As used in this part, the term:

25         (18)  "Person who is experiencing an acute mental or

26  emotional crisis" means a child, adolescent, or adult who is

27  experiencing a psychotic episode or a high level of mental or

28  emotional distress which may be precipitated by a traumatic

29  event or a perceived life problem for which the individual's

30  typical coping strategies are inadequate. The term includes an

31

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  1  individual who meets the criteria for involuntary examination

  2  specified in s. 394.463(1).

  3         Section 6.  For the purpose of incorporating the

  4  amendments to section 394.463, Florida Statutes, in references

  5  thereto, subsection (2) of section 394.674, Florida Statutes,

  6  is reenacted to read:

  7         394.674  Clinical eligibility for publicly funded

  8  substance abuse and mental health services; fee collection

  9  requirements.--

10         (2)  Crisis services, as defined in s. 394.67, must,

11  within the limitations of available state and local matching

12  resources, be available to each person who is eligible for

13  services under subsection (1), regardless of the person's

14  ability to pay for such services. A person who is experiencing

15  a mental health crisis and who does not meet the criteria for

16  involuntary examination under s. 394.463(1), or a person who

17  is experiencing a substance abuse crisis and who does not meet

18  the involuntary admission criteria in s. 397.675, must

19  contribute to the cost of his or her care and treatment

20  pursuant to the sliding fee scale developed under subsection

21  (4), unless charging a fee is contraindicated because of the

22  crisis situation.

23         Section 7.  For the purpose of incorporating the

24  amendments to section 394.467, Florida Statutes, in references

25  thereto, subsections (5) and (6) of section 394.492, Florida

26  Statutes, are reenacted to read:

27         394.492  Definitions.--As used in ss. 394.490-394.497,

28  the term:

29         (5)  "Child or adolescent who has an emotional

30  disturbance" means a person under 18 years of age who is

31  diagnosed with a mental, emotional, or behavioral disorder of

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  1  sufficient duration to meet one of the diagnostic categories

  2  specified in the most recent edition of the Diagnostic and

  3  Statistical Manual of the American Psychiatric Association,

  4  but who does not exhibit behaviors that substantially

  5  interfere with or limit his or her role or ability to function

  6  in the family, school, or community. The emotional disturbance

  7  must not be considered to be a temporary response to a

  8  stressful situation. The term does not include a child or

  9  adolescent who meets the criteria for involuntary placement

10  under s. 394.467(1).

11         (6)  "Child or adolescent who has a serious emotional

12  disturbance or mental illness" means a person under 18 years

13  of age who:

14         (a)  Is diagnosed as having a mental, emotional, or

15  behavioral disorder that meets one of the diagnostic

16  categories specified in the most recent edition of the

17  Diagnostic and Statistical Manual of Mental Disorders of the

18  American Psychiatric Association; and

19         (b)  Exhibits behaviors that substantially interfere

20  with or limit his or her role or ability to function in the

21  family, school, or community, which behaviors are not

22  considered to be a temporary response to a stressful

23  situation.

24

25  The term includes a child or adolescent who meets the criteria

26  for involuntary placement under s. 394.467(1).

27         Section 8.  For the purpose of incorporating the

28  amendments to sections 394.463 and 394.467, Florida Statutes,

29  in references thereto, subsection (4) of section 984.19,

30  Florida Statutes, is reenacted to read:

31

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  1         984.19  Medical, psychiatric, and psychological

  2  examination and treatment of child; physical or mental

  3  examination of parent, guardian, or person requesting custody

  4  of child.--

  5         (4)  A judge may order that a child alleged to be or

  6  adjudicated a child in need of services be treated by a

  7  licensed health care professional. The judge may also order

  8  such child to receive mental health or retardation services

  9  from a psychiatrist, psychologist, or other appropriate

10  service provider. If it is necessary to place the child in a

11  residential facility for such services, then the procedures

12  and criteria established in s. 394.467 or chapter 393 shall be

13  used, whichever is applicable. A child may be provided mental

14  health or retardation services in emergency situations,

15  pursuant to the procedures and criteria contained in s.

16  394.463(1) or chapter 393, whichever is applicable.

17         Section 9.  For the purpose of incorporating the

18  amendments to section 394.463, Florida Statutes, in references

19  thereto, paragraph (d) of subsection (2) of section 985.211,

20  Florida Statutes, is reenacted to read:

21         985.211  Release or delivery from custody.--

22         (2)  Unless otherwise ordered by the court pursuant to

23  s. 985.215, and unless there is a need to hold the child, a

24  person taking a child into custody shall attempt to release

25  the child as follows:

26         (d)  If the child is believed to be mentally ill as

27  defined in s. 394.463(1), to a law enforcement officer who

28  shall take the child to a designated public receiving facility

29  as defined in s. 394.455 for examination pursuant to the

30  provisions of s. 394.463.

31         Section 10.  This act shall take effect July 1, 2002.

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  1            *****************************************

  2                       LEGISLATIVE SUMMARY

  3    Provides additional criteria for involuntary examination
      at a mental health receiving facility and for involuntary
  4    placement for mental health treatment, under the Baker
      Act. Provides that a court order for involuntary
  5    placement may be for inpatient or outpatient treatment.
      Requires an order for outpatient treatment to include
  6    requirements for the provision of services and procedures
      in the event of patient noncompliance. Provides for
  7    waiver of the time periods for the hearing on involuntary
      placement if a voluntary agreement to treatment is
  8    obtained. Provides requirements for a court-approved
      treatment plan under such voluntary treatment agreement
  9    and provides procedures for hearings in the event of
      noncompliance with treatment according to the agreement.
10    Conforms to the act criteria for eligibility to receive
      children's crisis stabilization unit/juvenile addictions
11    receiving facility services.

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