HB 1623

1	A bill to be entitled
2	An act relating to the care and treatment of children;
3	amending s. 39.407, F.S.; authorizing the Department of
4	Children and Family Services to have a health screening
5	performed on certain children; providing components of a
6	health screening; providing requirements and procedures
7	for obtaining authorization for medical care and
8	treatment; providing for mental and physical examinations,
9	educational assessments, and additional services;
10	providing requirements for authorization to prescribe or
11	administer psychotropic medication; providing parental
12	right to consent or refuse to consent to medical care and
13	treatment; providing financial responsibility for the cost
14	of care and treatment; creating s. 39.4073, F.S.;
15	requiring the department to prepare and maintain a child
16	resource record and providing contents thereof; providing
17	for the sharing of certain information and for inspection
18	of a child resource record by certain persons; providing
19	for confidentiality of records in accordance with ch. 39,
20	F.S., and specified federal provisions; requiring
21	rulemaking; providing for application; creating s.
22	39.4077, F.S.; authorizing physical or mental examination
23	of a parent or person requesting custody of a child under
24	certain circumstances; amending s. 409.145, F.S.;
25	requiring the department to complete a medical evaluation
26	of certain children; providing an effective date.
27
28	Be It Enacted by the Legislature of the State of Florida:
29
30	Section 1.  Section 39.407, Florida Statutes, is amended to
31	read:
32	39.407  Medical, psychiatric, and psychological examination
33	and treatment of child; physical or mental examination of parent
34	or person requesting custody of child.--
35	(1)  HEALTH SCREENING.--
36	(a)  When any child is removed from the home and maintained
37	in an out-of-home placement, the department is authorized to
38	have a health medical screening performed on the child without
39	authorization from the court and without consent from a parent
40	or legal custodian. The health screening shall include medical,
41	behavioral, vision, hearing, and dental assessments. Such
42	medical screening shall be performed by A licensed health care
43	professional and shall perform the health screening be to
44	examine the child for injury, illness, and communicable
45	diseases, and nutritional status and to determine the need for
46	immunization, laboratory tests, and referrals for dental,
47	optometric, and educational needs. Any child who is Medicaid
48	eligible shall have the health screening performed in accordance
49	with the Early Periodic Screening, Diagnosis, and Treatment
50	(EPSDT) program.
51	(b)  The department shall by rule establish the
52	invasiveness of the medical procedures authorized to be
53	performed under this subsection. In no case does This subsection
54	does not authorize the department to consent to medical care and
55	treatment for such children.
56	(2)  AUTHORIZATION FOR MEDICAL CARE AND TREATMENT.--When
57	the health department has performed the medical screening
58	authorized by subsection (1) is performed, or when it is
59	otherwise determined by a licensed health care professional that
60	a child who is in an out-of-home placement or who has been
61	adjudicated dependent, but who has not been committed to the
62	department, is in need of medical care and treatment, including
63	the need for immunization, authorization consent for medical
64	care and treatment as defined in s. 743.0645(1) for the child
65	shall be obtained in the following manner:
66	(a)1.  Express and informed consent must to medical
67	treatment shall be obtained from a parent or legal custodian of
68	the child; or
69	2.  A court order for such treatment shall be obtained.
70	(b)  If consent under paragraph (a) cannot be obtained
71	because the parent or legal custodian is unknown, unavailable,
72	or unwilling to or refuses to consent, the department must
73	obtain court authorization for medical care and treatment; or If
74	a parent or legal custodian of the child is unavailable and his
75	or her whereabouts cannot be reasonably ascertained, and it is
76	after normal working hours so that a court order cannot
77	reasonably be obtained, an authorized agent of the department
78	shall have the authority to consent to necessary medical
79	treatment, including immunization, for the child. The authority
80	of the department to consent to medical treatment in this
81	circumstance shall be limited to the time reasonably necessary
82	to obtain court authorization.
83	(c)  If the need for medical care and treatment constitutes
84	an emergency situation as set forth in s. 743.064 or is related
85	to suspected abuse, abandonment, or neglect of the child by a
86	parent, caregiver, or legal custodian, the department may
87	authorize the medical care and treatment without a court order
88	and without the consent of the parent, legal custodian, or
89	guardian. The department's authorization for medical care and
90	treatment under this paragraph is limited to the time reasonably
91	necessary to obtain subsequent court authorization. If a parent
92	or legal custodian of the child is available but refuses to
93	consent to the necessary treatment, including immunization, a
94	court order shall be required unless the situation meets the
95	definition of an emergency in s. 743.064 or the treatment needed
96	is related to suspected abuse, abandonment, or neglect of the
97	child by a parent, caregiver, or legal custodian. In such case,
98	the department shall have the authority to consent to necessary
99	medical treatment. This authority is limited to the time
100	reasonably necessary to obtain court authorization.
101
102	In no case shall the department consent to sterilization,
103	abortion, or termination of life support.
104	(3)(a)  MENTAL AND PHYSICAL EXAMINATION, EDUCATIONAL NEEDS
105	ASSESSMENT, AND ADDITIONAL SERVICES.--A judge may order a child
106	in an out-of-home placement to:
107	(a)  Be examined by a licensed health care professional.
108	(b)  Be treated by a licensed health care professional
109	based on evidence that the child should receive treatment.
110	(c)(b)  The judge may also order such child to Be evaluated
111	by a psychiatrist or a psychologist or, if a developmental
112	disability is suspected or alleged, by the developmental
113	disability diagnostic and evaluation team of the department. If
114	it is necessary to place a child in a residential facility for
115	such evaluation, the criteria and procedure established in s.
116	394.463(2) or chapter 393 shall be used, whichever is
117	applicable.
118	(d)(c)  The judge may also order such child to Be evaluated
119	by a district school board educational needs assessment team.
120	The educational needs assessment provided by the district school
121	board educational needs assessment team shall include, but not
122	be limited to, reports of intelligence and achievement tests,
123	screening for learning disabilities and other handicaps, and
124	screening for the need for alternative education as defined in
125	s. 1001.42.
126	(e)(4)  A judge may order a child in an out-of-home
127	placement to be treated by a licensed health care professional
128	based on evidence that the child should receive treatment. The
129	judge may also order such child to Receive mental health or
130	developmental disabilities services from a psychiatrist,
131	psychologist, or other appropriate service provider. Except as
132	provided in subsection (4)(5), if it is necessary to place the
133	child in a residential facility for such services, the
134	procedures and criteria established in s. 394.467 or chapter 393
135	shall be used, whichever is applicable. A child may be provided
136	developmental disabilities or mental health services in
137	emergency situations, pursuant to the procedures and criteria
138	contained in s. 394.463(1) or chapter 393, whichever is
139	applicable.
140	(f)  Be provided services or treatment by a duly accredited
141	practitioner who relies solely on spiritual means for healing in
142	accordance with the tenets and practices of a church or
143	religious organization when required by the child's health and
144	when requested by a child who is at least 12 years of age.
145	(4)(5)  PLACEMENT IN A RESIDENTIAL TREATMENT
146	CENTER.--Children who are in the legal custody of the department
147	may be placed by the department, without prior approval of the
148	court, in a residential treatment center licensed under s.
149	394.875 or a hospital licensed under chapter 395 for residential
150	mental health treatment only pursuant to this section or may be
151	placed by the court in accordance with an order of involuntary
152	examination or involuntary placement entered pursuant to s.
153	394.463 or s. 394.467. All children placed in a residential
154	treatment program under this subsection must have a guardian ad
155	litem appointed.
156	(a)  As used in this subsection, the term:
157	1.  "Residential treatment" means placement for
158	observation, diagnosis, or treatment of an emotional disturbance
159	in a residential treatment center licensed under s. 394.875 or a
160	hospital licensed under chapter 395.
161	2.  "Least restrictive alternative" means the treatment and
162	conditions of treatment that, separately and in combination, are
163	no more intrusive or restrictive of freedom than reasonably
164	necessary to achieve a substantial therapeutic benefit or to
165	protect the child or adolescent or others from physical injury.
166	3.  "Suitable for residential treatment" or "suitability"
167	means a determination concerning a child or adolescent with an
168	emotional disturbance as defined in s. 394.492(5) or a serious
169	emotional disturbance as defined in s. 394.492(6) that each of
170	the following criteria is met:
171	a.  The child requires residential treatment.
172	b.  The child is in need of a residential treatment program
173	and is expected to benefit from mental health treatment.
174	c.  An appropriate, less restrictive alternative to
175	residential treatment is unavailable.
176	(b)  Whenever the department believes that a child in its
177	legal custody is emotionally disturbed and may need residential
178	treatment, an examination and suitability assessment must be
179	conducted by a qualified evaluator who is appointed by the
180	Agency for Health Care Administration. This suitability
181	assessment must be completed before the placement of the child
182	in a residential treatment center for emotionally disturbed
183	children and adolescents or a hospital. The qualified evaluator
184	must be a psychiatrist or a psychologist licensed in Florida who
185	has at least 3 years of experience in the diagnosis and
186	treatment of serious emotional disturbances in children and
187	adolescents and who has no actual or perceived conflict of
188	interest with any inpatient facility or residential treatment
189	center or program.
190	(c)  Before a child is admitted under this subsection, the
191	child shall be assessed for suitability for residential
192	treatment by a qualified evaluator who has conducted a personal
193	examination and assessment of the child and has made written
194	findings that:
195	1.  The child appears to have an emotional disturbance
196	serious enough to require residential treatment and is
197	reasonably likely to benefit from the treatment.
198	2.  The child has been provided with a clinically
199	appropriate explanation of the nature and purpose of the
200	treatment.
201	3.  All available modalities of treatment less restrictive
202	than residential treatment have been considered, and a less
203	restrictive alternative that would offer comparable benefits to
204	the child is unavailable.
205
206	A copy of the written findings of the evaluation and suitability
207	assessment must be provided to the department and to the
208	guardian ad litem, who shall have the opportunity to discuss the
209	findings with the evaluator.
210	(d)  Immediately upon placing a child in a residential
211	treatment program under this section, the department must notify
212	the guardian ad litem and the court having jurisdiction over the
213	child and must provide the guardian ad litem and the court with
214	a copy of the assessment by the qualified evaluator.
215	(e)  Within 10 days after the admission of a child to a
216	residential treatment program, the director of the residential
217	treatment program or the director's designee must ensure that an
218	individualized plan of treatment has been prepared by the
219	program and has been explained to the child, to the department,
220	and to the guardian ad litem, and submitted to the department.
221	The child must be involved in the preparation of the plan to the
222	maximum feasible extent consistent with his or her ability to
223	understand and participate, and the guardian ad litem and the
224	child's foster parents must be involved to the maximum extent
225	consistent with the child's treatment needs. The plan must
226	include a preliminary plan for residential treatment and
227	aftercare upon completion of residential treatment. The plan
228	must include specific behavioral and emotional goals against
229	which the success of the residential treatment may be measured.
230	A copy of the plan must be provided to the child, to the
231	guardian ad litem, and to the department.
232	(f)  Within 30 days after admission, the residential
233	treatment program must review the appropriateness and
234	suitability of the child's placement in the program. The
235	residential treatment program must determine whether the child
236	is receiving benefit toward the treatment goals and whether the
237	child could be treated in a less restrictive treatment program.
238	The residential treatment program shall prepare a written report
239	of its findings and submit the report to the guardian ad litem
240	and to the department. The department must submit the report to
241	the court. The report must include a discharge plan for the
242	child. The residential treatment program must continue to
243	evaluate the child's treatment progress every 30 days thereafter
244	and must include its findings in a written report submitted to
245	the department. The department may not reimburse a facility
246	until the facility has submitted every written report that is
247	due.
248	(g)1.  The department must submit, at the beginning of each
249	month, to the court having jurisdiction over the child, a
250	written report regarding the child's progress toward achieving
251	the goals specified in the individualized plan of treatment.
252	2.  The court must conduct a hearing to review the status
253	of the child's residential treatment plan no later than 3 months
254	after the child's admission to the residential treatment
255	program. An independent review of the child's progress toward
256	achieving the goals and objectives of the treatment plan must be
257	completed by a qualified evaluator and submitted to the court
258	before its 3-month review.
259	3.  For any child in residential treatment at the time a
260	judicial review is held pursuant to s. 39.701, the child's
261	continued placement in residential treatment must be a subject
262	of the judicial review.
263	4.  If at any time the court determines that the child is
264	not suitable for continued residential treatment, the court
265	shall order the department to place the child in the least
266	restrictive setting that is best suited to meet his or her
267	needs.
268	(h)  After the initial 3-month review, the court must
269	conduct a review of the child's residential treatment plan every
270	90 days.
271	(i)  The department must adopt rules for implementing
272	timeframes for the completion of suitability assessments by
273	qualified evaluators and a procedure that includes timeframes
274	for completing the 3-month independent review by the qualified
275	evaluators of the child's progress toward achieving the goals
276	and objectives of the treatment plan which review must be
277	submitted to the court. The Agency for Health Care
278	Administration must adopt rules for the registration of
279	qualified evaluators, the procedure for selecting the evaluators
280	to conduct the reviews required under this section, and a
281	reasonable, cost-efficient fee schedule for qualified
282	evaluators.
283	(5)  PRESCRIPTION OR ADMINISTRATION OF PSYCHOTROPIC
284	MEDICATION.--
285	(a)  Authorization for the initiation or continuation of,
286	or change in, the prescription or administration of psychotropic
287	medication under this chapter shall be obtained in the following
288	manner:
289	1.  The department must obtain express consent from the
290	parent or legal custodian of the child;
291	2.  If a parent or legal custodian is unknown, unavailable,
292	or unwilling to or refuses to provide express consent, the
293	department must obtain court approval for the authorization; or
294	3.  If the rights of the parents have been terminated and
295	the department has become the legal custodian of the child, the
296	department must obtain court approval for authorization.
297	(b)  The department must obtain subsequent express written
298	and informed consent from the parent or legal custodian, or
299	authority from the court, within 30 days after the child is
300	removed from the home to determine the appropriateness and the
301	need to continue the medication if the authority for the
302	prescription or administration of the psychotropic medication
303	was obtained under subparagraph (a)2. or subparagraph (a)3.
304	(c)1.  At any hearing or review on the issue of whether the
305	court should enter an order approving authorization for the
306	prescription or administration of psychotropic medication, the
307	court shall review the judicial review social services report.
308	The party seeking authorization shall advise the court of the
309	following factors:
310	a.  The child?s expressed preference regarding treatment,
311	if the child is age appropriate.
312	b.  Whether the treatment is essential to the care of the
313	child.
314	c.  Whether the treatment is experimental.
315	d.  Based on accepted clinical medical studies, the
316	probability of adverse side effects, including whether the
317	treatment presents an unreasonable risk of serious, hazardous,
318	or irreversible side effects upon children in similar age
319	groups.
320	e.  The prognosis and probable risks with and without
321	treatment.
322	f.  Whether comparable or alternative therapies are
323	available to diagnose, monitor, or treat the condition of the
324	child.
325	2.  The prescribing physician is not required to testify at
326	or attend the hearing or the review unless the court
327	specifically orders such testimony or attendance.
328	3.  The court shall inquire about additional medical,
329	counseling, or other services that the prescribing physician
330	believes are necessary or would be beneficial for the child?s
331	medical condition. The court may require further medical
332	consultation, including obtaining a second opinion within 5
333	working days after an order, based upon considerations of the
334	best interests of the child, and the court may not order the
335	discontinuation of prescribed psychotropic medication contrary
336	to the decision of the prescribing physician without first
337	obtaining a second opinion from a licensed psychiatrist, if
338	available, or, if not available, a physician licensed under
339	chapter 458 or chapter 459 that the psychotropic medication
340	should be discontinued.
341	4.  The prescribing physician?s report is admissible in
342	evidence.
343	(6)  EMERGENCY CARE.--When a child is in an out-of-home
344	placement, a licensed health care professional shall be
345	immediately called if there are indications of physical injury
346	or illness, or the child shall be taken to the nearest available
347	hospital for emergency care.
348	(7)  PARENTAL RIGHT TO CONSENT OR REFUSE TO CONSENT;
349	FINANCIAL RESPONSIBILITY.--
350	(a)  Unless a parent's rights have been terminated and
351	except as otherwise provided herein, nothing in this section
352	shall be deemed to eliminate the right of a parent, legal
353	custodian, or the child to consent or refuse to consent to
354	examination or any medical care and treatment, including
355	extraordinary medical care and treatment, for the child. A
356	parent or legal custodian of a child may not be required or
357	coerced through threat of loss of custody or parental rights to
358	consent to any medical care or treatment.
359	(b)  Unless a parent's rights have been terminated, a
360	parent or legal custodian of a child who is in the custody or
361	care of the department is financially responsible for the cost
362	of medical care and treatment provided to the child regardless
363	of the parent's or legal custodian's consent or refusal to
364	consent to such care and treatment. After a hearing, the court
365	may order the parent or legal custodian, if found able to do so,
366	to reimburse the department or other provider of health services
367	for medical care and treatment provided.
368	(8)  Except as otherwise provided herein, nothing in this
369	section shall be deemed to alter the provisions of s. 743.064.
370	(9)  A court shall not be precluded from ordering services
371	or treatment to be provided to the child by a duly accredited
372	practitioner who relies solely on spiritual means for healing in
373	accordance with the tenets and practices of a church or
374	religious organization, when required by the child's health and
375	when requested by the child.
376	(10)  Nothing in this section shall be construed to
377	authorize the permanent sterilization of the child unless such
378	sterilization is the result of or incidental to medically
379	necessary treatment to protect or preserve the life of the
380	child.
381	(8)(11)  RESTRICTION.--For the purpose of obtaining an
382	evaluation or examination, or receiving treatment as authorized
383	pursuant to this section, no child alleged to be or found to be
384	dependent shall be placed in a detention home or other program
385	used primarily for the care and custody of children alleged or
386	found to have committed delinquent acts.
387	(12)  The parents or legal custodian of a child in an out-
388	of-home placement remain financially responsible for the cost of
389	medical treatment provided to the child even if either one or
390	both of the parents or if the legal custodian did not consent to
391	the medical treatment. After a hearing, the court may order the
392	parents or legal custodian, if found able to do so, to reimburse
393	the department or other provider of medical services for
394	treatment provided.
395	(13)  Nothing in this section alters the authority of the
396	department to consent to medical treatment for a dependent child
397	when the child has been committed to the department and the
398	department has become the legal custodian of the child.
399	(14)  At any time after the filing of a shelter petition or
400	petition for dependency, when the mental or physical condition,
401	including the blood group, of a parent, caregiver, legal
402	custodian, or other person requesting custody of a child is in
403	controversy, the court may order the person to submit to a
404	physical or mental examination by a qualified professional. The
405	order may be made only upon good cause shown and pursuant to
406	notice and procedures as set forth by the Florida Rules of
407	Juvenile Procedure.
408	Section 2.  Section 39.4073, Florida Statutes, is created
409	to read:
410	39.4073  Child resource record.--
411	(1)  In accordance with 42 U.S.C. s. 675, the department
412	shall prepare and maintain a comprehensive, accurate, and
413	updated health and education record for each child who is placed
414	in a shelter home, foster care, or other residential placement
415	or who is otherwise in the custody or care of the department.
416	(2)  The health and education record shall be referred to
417	as the child resource record, shall be part of the official
418	state record as contained in the automated information system,
419	and shall include: the child?s name; family and social history;
420	medical history with the respective dates and purposes of
421	medical care and treatment; results of and information regarding
422	all medical, psychiatric, and psychological evaluations,
423	examinations, and screenings; educational records and needs
424	assessments; visits, hospitalizations, operations, and
425	procedures with reasons therefor; dates and locations of
426	treatment; names and telephone numbers of all physicians and
427	other health care professionals who have treated the child; the
428	child?s known allergies and negative reactions to medication;
429	all medications previously and currently prescribed, including
430	dates of administration, represcription, and discontinuation,
431	the dosage and frequency, and subsequent represcription; any
432	written informed consents as required by law and reasons for not
433	obtaining the consents or for refusals to consent; name and
434	phone number of a department agent who is currently responsible
435	for the child; name and phone number of the parent, legal
436	custodian, relative caregiver, or foster parent, if applicable;
437	and the local after-hours telephone number for the department
438	for emergencies.
439	(3)  The department shall provide written documentation as
440	to the reasons any of the information required in subsection (2)
441	is not available and accessible in the child resource record and
442	the steps the department is taking to obtain the information.
443	(4)  Portions of the child resource record that relate to
444	securing appropriate medical and educational services shall
445	follow the child to each placement, where it shall remain in the
446	care of the parent or legal custodian, shelter, foster parent,
447	foster care provider, or other caretaker. Such portions of a
448	child resource record must accompany the child to every health
449	care encounter in order that the information is shared with the
450	provider and updated as appropriate.
451	(5)  A child resource record shall be open for inspection
452	by the parent or legal custodian or other person who has the
453	power to consent as authorized by law.
454	(6)  In accordance with the confidentiality or privacy
455	provisions set forth in this chapter and in the Health Insurance
456	Portability and Accountability Act of 1996, records governed by
457	this section are confidential and may only be used or disclosed
458	in accordance with s. 39.202.
459	(7)  The department shall adopt rules pursuant to ss.
460	120.536(1) and 120.54 to implement this section.
461	(8)  This section shall apply only to cases initiated on or
462	after July 1, 2004.
463	Section 3.  Section 39.4077, Florida Statutes, is created
464	to read:
465	39.4077  Physical or mental examination of parent or person
466	requesting custody of child.--At any time after the filing of a
467	shelter petition or petition for dependency, when the mental or
468	physical condition, including the blood group, of a parent,
469	caregiver, legal custodian, or other person requesting custody
470	of a child is in controversy, the court may order the person to
471	submit to a physical or mental examination by a qualified
472	professional. The order may be made only upon good cause shown
473	and pursuant to notice and procedures as set forth by the
474	Florida Rules of Juvenile Procedure.
475	Section 4.  Subsection (6) of section 409.145, Florida
476	Statutes, is amended to read:
477	409.145  Care of children.--
478	(6)  Whenever any child is placed under the protection,
479	care, and guidance of the department or a duly licensed public
480	or private agency, or as soon thereafter as is practicable, the
481	department or agency, as the case may be, shall complete a full
482	medical evaluation of the child and shall endeavor to obtain
483	such information concerning the family medical history of the
484	child and the natural parents as is available or readily
485	obtainable. This information shall be kept on file by the
486	department or agency for possible future use as provided in ss.
487	63.082 and 63.162 or as may be otherwise provided by law.
488	Section 5.  This act shall take effect July 1, 2004.

CODING: Words stricken are deletions; words underlined are additions.