Senate Bill sb3044
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Florida Senate - 2004 SB 3044
By Senator Campbell
32-570A-04
1 A bill to be entitled
2 An act relating to the care and treatment of
3 dependent children; amending s. 39.407, F.S.;
4 providing that the Department of Children and
5 Family Services may conduct a health screening
6 on any child who is removed from his or her
7 home; providing the elements of the health
8 screening; providing for consent for medical
9 care and treatment under certain circumstances;
10 specifying limitations to consent by the
11 department; providing that a court may order a
12 child to receive a mental or physical
13 examination; providing for the administration
14 of psychotropic drugs to children; describing
15 methods to obtain consent for the dispensing of
16 psychotropic medication to a child in the legal
17 custody of the department; requiring the court
18 to conduct a psychotropic medications review of
19 each child to determine the medical status of
20 the child; directing the court to review the
21 child's resource record and the prescribing
22 physician's psychotropic prescription report;
23 detailing the contents of the prescription
24 report; listing other factors for the court to
25 consider when evaluating the child; requiring
26 the court to use the standard of clear and
27 convincing evidence when determining whether to
28 authorize the department to consent to
29 psychotropic medications; providing that a
30 licensed health care professional be called to
31 treat a child in an out-of-home placement in an
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1 emergency; providing that the act does not
2 eliminate the right of a parent to give, or
3 refuse to give, consent for medical treatment
4 for his or her child; providing that unless the
5 parent's rights have been terminated, the
6 parent is financially responsible for the cost
7 of medical care and treatment given to the
8 child; creating s. 39.4071, F.S.; requiring the
9 department to prepare and maintain a
10 comprehensive, accurate, and updated health and
11 education record, to be known as the "child
12 resource record," for each child who is placed
13 in a shelter home, foster care, or other
14 residential placement, or who is otherwise in
15 the custody or care of the department;
16 specifying the contents of the child resource
17 record; directing that the child resource
18 record follow the child to each residential
19 placement; requiring that the child resource
20 record be open for inspection to certain
21 specified persons; creating s. 39.4072, F.S.;
22 providing that a court may order certain
23 specified persons to submit to a physical or
24 mental examination by a qualified professional;
25 amending s. 409.145, F.S.; conforming
26 provisions to changes made by the act; amending
27 s. 743.0645, F.S.; defining terms relating to
28 persons who can give consent to medical care
29 for a minor; providing procedures to authorize
30 consent for the prescription and administration
31 of psychotropic medication to children in the
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1 custody or care of the Department of Children
2 and Family Services or committed to the
3 Department of Juvenile Justice; requiring a
4 physician prescribing psychotropic medications
5 for a child to file a report with specified
6 organizations; requiring the Department of
7 Children and Family Services, the Department of
8 Juvenile Justice, and the Department of Health
9 to adopt rules to administer the prescription
10 and administration of psychotropic medications
11 to children; creating s. 743.0647, F.S.;
12 requiring a prescribing physician to report to
13 the physician's regulating board any adverse
14 incident or condition involving psychotropic
15 medication to a child within a specified time;
16 requiring the Board of Medicine and the Board
17 of Osteopathic Medicine to create a voluntary
18 peer review board to review reports required
19 and received relating to adverse incidents;
20 providing procedures for the peer review
21 boards; directing the boards to forward
22 quarterly information to the Center for
23 Juvenile Psychotropic Studies at the University
24 of Florida College of Medicine; directing the
25 Board of Medicine and the Board of Osteopathic
26 Medicine to publish an annual summary and trend
27 analysis of all adverse incident and effects
28 reports on their websites; creating the Center
29 for Juvenile Psychotropic Studies within the
30 Department of Psychiatry of the College of
31 Medicine of the University of Florida;
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1 providing the purpose of the center; providing
2 for the appointment of a director; creating an
3 advisory board; providing for board membership;
4 requiring the center to work with the
5 Department of Children and Family Services, the
6 Department of Juvenile Justice, and the Agency
7 for Health Care Administration; requiring
8 certain data relating to dependent minors for
9 whom psychotropic medications have been
10 prescribed to be made available to the center,
11 as legally allowed; requiring the center to
12 report to legislative leaders by a specified
13 date; providing for future repeal; providing an
14 effective date
15
16 Be It Enacted by the Legislature of the State of Florida:
17
18 Section 1. Section 39.407, Florida Statutes, is
19 amended to read:
20 39.407 Medical, psychiatric, and psychological
21 examination and treatment of child; physical or mental
22 examination of parent or person requesting custody of child.--
23 (1) HEALTH SCREENING.--
24 (a) When any child is removed from the home and
25 maintained in an out-of-home placement, the department is
26 authorized to have a health medical screening performed on the
27 child without authorization from the court and without consent
28 from a parent or legal custodian. The health screening shall
29 include medical, vision, hearing, and dental assessments. Such
30 medical screening shall be performed by A licensed health care
31 professional shall perform the health screening and shall be
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1 to examine the child for injury, illness, and communicable
2 diseases, nutritional status, and to determine the need for
3 immunization, laboratory tests, and referrals for dental,
4 optometric, and educational needs. A Medicaid-eligible child
5 shall have the health screening performed in accordance with
6 the Early and Periodic Screening, Diagnosis, and Treatment
7 (EPSDT) Program.
8 (b) The department shall by rule establish the
9 invasiveness of the medical procedures authorized to be
10 performed under this subsection. In no case does This
11 subsection does not authorize the department to consent to
12 medical care or treatment for the such children.
13 (2) CONSENT TO MEDICAL CARE AND TREATMENT.--
14 (a) When the health department has performed the
15 medical screening authorized by subsection (1) is performed,
16 or when it is otherwise determined by a licensed health care
17 professional that a child who is in an out-of-home placement
18 or who has been an adjudicated dependent, but who has not been
19 committed to the department, is in need of medical care and
20 treatment, including the need for immunization, authorization
21 consent for medical care and treatment shall be obtained in
22 the following manner:
23 (a)1. Express and informed consent must to medical
24 treatment shall be obtained from a parent or legal custodian
25 of the child.; or
26 2. If consent under subparagraph 1. cannot be obtained
27 because the parent or legal custodian is unknown or
28 unavailable or the parent or legal custodian is unwilling or
29 refuses to consent, the department or authorized agent must
30 obtain court authorization for medical care and treatment.
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1 3. If the needed medical care and treatment
2 constitutes an emergency situation as set forth in s. 743.064
3 or the need for medical care and treatment is related to
4 suspected abuse, abandonment, or neglect of the child by a
5 parent, caregiver, or legal custodian, the department or its
6 authorized agent may authorize the medical care or treatment
7 without a court order and without the consent of the parent,
8 legal custodian, or guardian. The department's or the
9 authorized agent's authorization for medical care and
10 treatment under this subparagraph is limited to the time
11 reasonably necessary to obtain subsequent court authorization.
12 4. If the parental rights of the child's parents have
13 been terminated and the department has become the child's
14 legal custodian, the department may consent to the child's
15 medical care and treatment as set forth in s. 743.0645. A
16 court order for such treatment shall be obtained.
17 (b) The department or its authorized agent may not
18 consent to sterilization, abortion, psychotropic medications,
19 termination of life support, or other extraordinary procedures
20 for which a separate court order, power of attorney, or
21 informed consent as provided by law is required.
22 (c) The department or its authorized agent shall
23 notify the parent or legal custodian as soon as possible after
24 medical care and treatment has been provided to the child by
25 authority granted in subparagraphs (a)2., 3., or 4. If a
26 parent or legal custodian of the child is unavailable and his
27 or her whereabouts cannot be reasonably ascertained, and it is
28 after normal working hours so that a court order cannot
29 reasonably be obtained, an authorized agent of the department
30 shall have the authority to consent to necessary medical
31 treatment, including immunization, for the child. The
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1 authority of the department to consent to medical treatment in
2 this circumstance shall be limited to the time reasonably
3 necessary to obtain court authorization.
4 (c) If a parent or legal custodian of the child is
5 available but refuses to consent to the necessary treatment,
6 including immunization, a court order shall be required unless
7 the situation meets the definition of an emergency in s.
8 743.064 or the treatment needed is related to suspected abuse,
9 abandonment, or neglect of the child by a parent, caregiver,
10 or legal custodian. In such case, the department shall have
11 the authority to consent to necessary medical treatment. This
12 authority is limited to the time reasonably necessary to
13 obtain court authorization.
14
15 In no case shall the department consent to sterilization,
16 abortion, or termination of life support.
17 (3)(a) MENTAL AND PHYSICAL EXAMINATION, EDUCATIONAL
18 NEEDS ASSESSMENT, AND ADDITIONAL SERVICES.--A judge may order
19 a child in an out-of-home placement or otherwise in the
20 custody of the department:
21 (a) To be examined by a licensed health care
22 professional.
23 (b) To be treated by a licensed health care
24 professional based on evidence that the child should receive
25 treatment.
26 (c)(b) The judge may also order such child To be
27 evaluated by a psychiatrist or a psychologist or, if a
28 developmental disability is suspected or alleged, by the
29 developmental disability diagnostic and evaluation team of the
30 department. If it is necessary to place a child in a
31 residential facility for such evaluation, the criteria and
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1 procedure established in s. 394.463(2) or chapter 393 shall be
2 used, whichever is applicable.
3 (d)(c) The judge may also order such child To be
4 evaluated by a district school board educational needs
5 assessment team. The educational needs assessment provided by
6 the district school board educational needs assessment team
7 shall include, but not be limited to, reports of intelligence
8 and achievement tests, screening for learning disabilities and
9 other handicaps, and screening for the need for alternative
10 education as defined in s. 1001.42.
11 (e) To receive mental health or developmental
12 disabilities services from a psychiatrist, psychologist, or
13 other appropriate service provider. Except as provided in
14 subsection (4), if it is necessary to place the child in a
15 residential facility for these services, the procedures and
16 criteria set forth in s. 394.467 or chapter 393 shall be used,
17 whichever is applicable. A child may be provided developmental
18 disability services or mental health services in emergency
19 situations, using the procedures and criteria set forth in s.
20 394.463(1) or chapter 393, whichever is applicable.
21 (f) To be provided services or treatment by a duly
22 accredited practitioner who relies solely on spiritual means
23 for healing in accordance with the tenets and practices of a
24 church or religious organization, when required by the child's
25 health and when requested by the child.
26 (4) A judge may order a child in an out-of-home
27 placement to be treated by a licensed health care professional
28 based on evidence that the child should receive treatment.
29 The judge may also order such child to receive mental health
30 or developmental disabilities services from a psychiatrist,
31 psychologist, or other appropriate service provider. Except
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1 as provided in subsection (5), if it is necessary to place the
2 child in a residential facility for such services, the
3 procedures and criteria established in s. 394.467 or chapter
4 393 shall be used, whichever is applicable. A child may be
5 provided developmental disabilities or mental health services
6 in emergency situations, pursuant to the procedures and
7 criteria contained in s. 394.463(1) or chapter 393, whichever
8 is applicable.
9 (4)(5) PLACEMENT IN A RESIDENTIAL TREATMENT
10 CENTER.--Children who are in the legal custody of the
11 department may be placed by the department, without prior
12 approval of the court, in a residential treatment center
13 licensed under s. 394.875 or a hospital licensed under chapter
14 395 for residential mental health treatment only under
15 pursuant to this section or may be placed by the court in
16 accordance with an order of involuntary examination or
17 involuntary placement entered under pursuant to s. 394.463 or
18 s. 394.467. All children placed in a residential treatment
19 program under this subsection must have a guardian ad litem
20 appointed.
21 (a) As used in this subsection, the term:
22 1. "Residential treatment" means placement for
23 observation, diagnosis, or treatment of an emotional
24 disturbance in a residential treatment center licensed under
25 s. 394.875 or a hospital licensed under chapter 395.
26 2. "Least restrictive alternative" means the treatment
27 and conditions of treatment that, separately and in
28 combination, are no more intrusive or restrictive of freedom
29 than reasonably necessary to achieve a substantial therapeutic
30 benefit or to protect the child or adolescent or others from
31 physical injury.
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1 3. "Suitable for residential treatment" or
2 "suitability" means a determination concerning a child or
3 adolescent with an emotional disturbance as defined in s.
4 394.492(5) or a serious emotional disturbance as defined in s.
5 394.492(6) that each of the following criteria is met:
6 a. The child requires residential treatment.
7 b. The child is in need of a residential treatment
8 program and is expected to benefit from mental health
9 treatment.
10 c. An appropriate, less restrictive alternative to
11 residential treatment is unavailable.
12 (b) Whenever the department believes that a child in
13 its legal custody is emotionally disturbed and may need
14 residential treatment, an examination and suitability
15 assessment must be conducted by a qualified evaluator who is
16 appointed by the Agency for Health Care Administration. This
17 suitability assessment must be completed before the placement
18 of the child in a residential treatment center for emotionally
19 disturbed children and adolescents or a hospital. The
20 qualified evaluator must be a psychiatrist or a psychologist
21 licensed in Florida who has at least 3 years of experience in
22 the diagnosis and treatment of serious emotional disturbances
23 in children and adolescents and who has no actual or perceived
24 conflict of interest with any inpatient facility or
25 residential treatment center or program.
26 (c) Before a child is admitted under this subsection,
27 the child shall be assessed for suitability for residential
28 treatment by a qualified evaluator who has conducted a
29 personal examination and assessment of the child and has made
30 written findings that:
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1 1. The child appears to have an emotional disturbance
2 serious enough to require residential treatment and is
3 reasonably likely to benefit from the treatment.
4 2. The child has been provided with a clinically
5 appropriate explanation of the nature and purpose of the
6 treatment.
7 3. All available modalities of treatment less
8 restrictive than residential treatment have been considered,
9 and a less restrictive alternative that would offer comparable
10 benefits to the child is unavailable.
11
12 A copy of the written findings of the evaluation and
13 suitability assessment must be provided to the department and
14 to the guardian ad litem, who shall have the opportunity to
15 discuss the findings with the evaluator.
16 (d) Immediately upon placing a child in a residential
17 treatment program under this section, the department must
18 notify the guardian ad litem and the court having jurisdiction
19 over the child and must provide the guardian ad litem and the
20 court with a copy of the assessment by the qualified
21 evaluator.
22 (e) Within 10 days after the admission of a child to a
23 residential treatment program, the director of the residential
24 treatment program or the director's designee must ensure that
25 an individualized plan of treatment has been prepared by the
26 program and has been explained to the child, to the
27 department, and to the guardian ad litem, and submitted to the
28 department. The child must be involved in the preparation of
29 the plan to the maximum feasible extent consistent with his or
30 her ability to understand and participate, and the guardian ad
31 litem and the child's foster parents must be involved to the
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1 maximum extent consistent with the child's treatment needs.
2 The plan must include a preliminary plan for residential
3 treatment and aftercare upon completion of residential
4 treatment. The plan must include specific behavioral and
5 emotional goals against which the success of the residential
6 treatment may be measured. A copy of the plan must be provided
7 to the child, to the guardian ad litem, and to the department.
8 (f) Within 30 days after admission, the residential
9 treatment program must review the appropriateness and
10 suitability of the child's placement in the program. The
11 residential treatment program must determine whether the child
12 is receiving benefit toward the treatment goals and whether
13 the child could be treated in a less restrictive treatment
14 program. The residential treatment program shall prepare a
15 written report of its findings and submit the report to the
16 guardian ad litem and to the department. The department must
17 submit the report to the court. The report must include a
18 discharge plan for the child. The residential treatment
19 program must continue to evaluate the child's treatment
20 progress every 30 days thereafter and must include its
21 findings in a written report submitted to the department. The
22 department may not reimburse a facility until the facility has
23 submitted every written report that is due.
24 (g)1. The department must submit, at the beginning of
25 each month, to the court having jurisdiction over the child, a
26 written report regarding the child's progress toward achieving
27 the goals specified in the individualized plan of treatment.
28 2. The court must conduct a hearing to review the
29 status of the child's residential treatment plan no later than
30 3 months after the child's admission to the residential
31 treatment program. An independent review of the child's
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1 progress toward achieving the goals and objectives of the
2 treatment plan must be completed by a qualified evaluator and
3 submitted to the court before its 3-month review.
4 3. For any child in residential treatment at the time
5 a judicial review is held under pursuant to s. 39.701, the
6 child's continued placement in residential treatment must be a
7 subject of the judicial review.
8 4. If at any time the court determines that the child
9 is not suitable for continued residential treatment, the court
10 shall order the department to place the child in the least
11 restrictive setting that is best suited to meet his or her
12 needs.
13 (h) After the initial 3-month review, the court must
14 conduct a review of the child's residential treatment plan
15 every 90 days.
16 (i) The department must adopt rules for implementing
17 timeframes for the completion of suitability assessments by
18 qualified evaluators and a procedure that includes timeframes
19 for completing the 3-month independent review by the qualified
20 evaluators of the child's progress toward achieving the goals
21 and objectives of the treatment plan which review must be
22 submitted to the court. The Agency for Health Care
23 Administration must adopt rules for the registration of
24 qualified evaluators, the procedure for selecting the
25 evaluators to conduct the reviews required under this section,
26 and a reasonable, cost-efficient fee schedule for qualified
27 evaluators.
28 (5) ADMINISTRATION OF PSYCHOTROPIC MEDICATION.--
29 (a) The department or its authorized agent may not
30 authorize the prescription, administration, or use of
31 psychotropic medication to a child who is in the custody or
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1 care of the department or its authorized agent, including
2 shelter care, foster care, or other residential placement,
3 unless the psychotropic medication has been federally
4 approved. The department or its authorized agent may not
5 authorize psychotropic medication to be given to a child
6 younger than the age of 6 unless the psychotropic medication
7 has been federally approved for pediatric use. The prescribing
8 physician for the administration of the psychotropic
9 medication must be a physician licensed under chapter 458 or
10 chapter 459.
11 (b) The department or its authorized agent may consent
12 to or approve the initiation, continuation, or change in the
13 prescription and administration of psychotropic medications
14 under this chapter if:
15 1. The department or its authorized agent first
16 obtains express and written consent from the parent or legal
17 custodian and from the child, if the child is 12 years of age
18 or older.
19 2. The department or its authorized agent obtains
20 court approval to authorize consent when a child's parent or
21 legal custodian is unknown or unavailable or is unwilling or
22 refuses to give express written and informed consent.
23 3. The department or its authorized agent obtains
24 court approval to authorize consent when the parental rights
25 of the child's parents have been terminated and the department
26 has become the legal custodian of the child.
27 (c) No later than 30 days after the child has been
28 removed from the home, the department or its authorized agent
29 must once again obtain express written and informed consent
30 from the parent or legal custodian or, when applicable, obtain
31
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1 authority to consent from the court relating to the
2 administration of psychotropic medications.
3 (d)1. If a child is in the custody or care of the
4 department or its authorized agent, the court shall conduct a
5 psychotropic medications review to determine the status of the
6 child's prescribed or administered psychotropic medications.
7 The psychotropic medications review must be conducted at least
8 once every 6 months. The court may review the child's progress
9 status more frequently upon the court's own motion or, for
10 good cause shown, upon the motion of any party, including the
11 child, if age-appropriate, or the child's attorney, attorney
12 ad litem, or guardian ad litem. A psychotropic medications
13 review may be conducted during any other timely scheduled
14 hearing or judicial review hearing under s. 39.701.
15 2. The court may order the department to produce
16 supplemental evidence or to obtain a medical opinion to
17 determine if the continued use of the psychotropic medications
18 is safe and medically appropriate.
19 3. A psychotropic medications review requires no
20 hearing if the parent or legal custodian and the child, if 12
21 years of age or older, consents to the prescription and
22 administration of the psychotropic medication.
23 (e)1. During a psychotropic medications review, the
24 court shall consider the child's resource record as provided
25 in s. 39.4075, and the prescribing physician's signed
26 psychotropic prescription report. The department or its
27 authorized agent is responsible for providing the child's
28 resource record and the prescribing physician's signed
29 psychotropic prescription report to the court. The child's
30 resource record and prescribing physician's report are
31 admissible in evidence.
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1 2. The prescribing physician's signed psychotropic
2 prescription report must include:
3 a. The name and range of the dosage of the
4 psychotropic medication and any other medication the child is
5 taking or expected to take.
6 b. The diagnosed mental condition or the intended
7 monitoring or treatment purpose underlying the need to
8 initiate or change the prescription and administration of the
9 psychotropic medication.
10 c. How the proposed medication is expected to help the
11 child, the timeframe in which improvement of the child's
12 symptoms can be expected, and who will be monitoring the child
13 for improvement or side effects.
14 d. The treatment plan, including the length of time
15 the child has taken or is expected to take the psychotropic
16 medication and any other medication, and the need for any
17 supporting and integrated medical, counseling, or other
18 services.
19 e. A description of the side effects, benefits, risks,
20 contraindications, drug interaction precautions, and
21 alternatives to the medication, including, but not limited to,
22 precautions recommended for activities, foods and medications
23 to be avoided, and activities that are prohibited while the
24 child is on medication.
25 f. Whether any laboratory tests, including
26 neurological, cardiac, and blood testing, need to be done
27 before or while the child is being administered the prescribed
28 medication and at what time periods.
29 g. How the psychotropic medication will replace or
30 supplement any other currently prescribed medication or
31 treatment.
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1 h. Whether the prescribing physician consulted with
2 each person whose consent is required as provided by law,
3 including the child, if age-appropriate, and provided an
4 explanation of the nature and purpose of the treatment, the
5 side effects, benefits, risks, contraindications, drug
6 interaction precautions, and alternatives to the medication.
7 i. The reasons or explanation for why the child, if
8 age-appropriate, and the parent or legal custodian consented
9 or refused to consent to the administration of the
10 psychotropic medication, and any written informed consents
11 that are obtained, unattainable, or refused.
12 j. The dosage recommended by the drug's manufacturer
13 or the United States Food and Drug Administration.
14 3. The court shall also consider at least the
15 following:
16 a. The child's expressed treatment preference, if the
17 child is age-appropriate.
18 b. Whether the treatment is essential to the care of
19 the child.
20 c. Whether the treatment is experimental.
21 d. The probability of adverse side effects, including
22 whether the treatment presents an unreasonable risk of
23 serious, hazardous, or irreversible side effects.
24 e. The prognosis and probable risks with and without
25 treatment.
26 f. Whether comparable or alternative therapies are
27 available to diagnose, monitor, or treat the condition of the
28 child.
29 4. The prescribing physician is not required to
30 testify at or attend the hearing unless the court specifically
31 orders the testimony or attendance.
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1 5. The court shall inquire about additional medical,
2 counseling, or other services that the prescribing physician
3 believes are necessary or would be beneficial for the child's
4 medical condition.
5 6. The court may require further medical consultation,
6 including a second opinion, based on considerations of the
7 best interests of the child.
8 7. At the conclusion of a psychotropic medications
9 review hearing, in arriving at a substitute judgment decision,
10 the court shall determine by clear and convincing evidence
11 whether authorization to consent to the prescription and
12 administration of psychotropic medication should be granted.
13 If at any time the court determines that the child's best
14 interests require discontinuation of a prescribed psychotropic
15 medication, the court shall order the medication to be
16 discontinued in compliance with acceptable medical practice as
17 it relates to the termination of the ordered medication.
18 (6) EMERGENCY CARE AND TREATMENT.--Except as otherwise
19 provided in this section, this section does not alter s.
20 743.064 or s. 394.463(2)(f). If a child is in out-of-home
21 placement or otherwise in the custody or care of the
22 department and there are indications of physical injury,
23 illness, or other adverse incidents or conditions, a licensed
24 health care professional shall be called immediately or the
25 child shall be taken to the nearest health care facility for
26 emergency care and treatment. When a child is in an
27 out-of-home placement, a licensed health care professional
28 shall be immediately called if there are indications of
29 physical injury or illness, or the child shall be taken to the
30 nearest available hospital for emergency care.
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1 (7) PARENTAL RIGHT TO CONSENT OR REFUSE TO CONSENT AND
2 FINANCIAL RESPONSIBILITY.--
3 (a) Unless a parent's rights have been terminated and
4 except as otherwise provided herein, this section does not
5 eliminate the right of a parent, legal custodian, or the child
6 to consent or refuse to consent to examination or any medical
7 care or treatment, including extraordinary medical care or
8 treatment for the child. A parent or legal custodian of a
9 child may not be required or coerced through threat of loss of
10 custody or parental rights to consent to any medical care or
11 treatment.
12 (b) The parent or legal custodian of a child who is in
13 an out-of-home placement or who is otherwise in the custody or
14 care of the department or its authorized agent is financially
15 responsible for the cost of medical care and treatment
16 provided to the child, unless a parent's rights have been
17 terminated. The parent or legal custodian is financially
18 responsible regardless of whether the parent or legal
19 custodian consented or refused to consent to the care and
20 treatment. After any hearing, the court may order the parent
21 or legal custodian, if found able to do so, to reimburse the
22 department or the provider of health services for the medical
23 care and treatment given to the child. nothing in this section
24 shall be deemed to eliminate the right of a parent, legal
25 custodian, or the child to consent to examination or treatment
26 for the child.
27 (8) EVALUATIONS AND EXAMINATIONS.--For the purpose of
28 obtaining an evaluation or examination or receiving treatment
29 as authorized under this section, no child alleged to be or
30 found to be dependent shall be placed in a detention home or
31 other program used primarily for the care and custody of
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1 children alleged or found to have committed delinquent acts.
2 Except as otherwise provided herein, nothing in this section
3 shall be deemed to alter the provisions of s. 743.064.
4 (9) A court shall not be precluded from ordering
5 services or treatment to be provided to the child by a duly
6 accredited practitioner who relies solely on spiritual means
7 for healing in accordance with the tenets and practices of a
8 church or religious organization, when required by the child's
9 health and when requested by the child.
10 (10) Nothing in this section shall be construed to
11 authorize the permanent sterilization of the child unless such
12 sterilization is the result of or incidental to medically
13 necessary treatment to protect or preserve the life of the
14 child.
15 (11) For the purpose of obtaining an evaluation or
16 examination, or receiving treatment as authorized pursuant to
17 this section, no child alleged to be or found to be dependent
18 shall be placed in a detention home or other program used
19 primarily for the care and custody of children alleged or
20 found to have committed delinquent acts.
21 (12) The parents or legal custodian of a child in an
22 out-of-home placement remain financially responsible for the
23 cost of medical treatment provided to the child even if either
24 one or both of the parents or if the legal custodian did not
25 consent to the medical treatment. After a hearing, the court
26 may order the parents or legal custodian, if found able to do
27 so, to reimburse the department or other provider of medical
28 services for treatment provided.
29 (13) Nothing in this section alters the authority of
30 the department to consent to medical treatment for a dependent
31
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1 child when the child has been committed to the department and
2 the department has become the legal custodian of the child.
3 (14) At any time after the filing of a shelter
4 petition or petition for dependency, when the mental or
5 physical condition, including the blood group, of a parent,
6 caregiver, legal custodian, or other person requesting custody
7 of a child is in controversy, the court may order the person
8 to submit to a physical or mental examination by a qualified
9 professional. The order may be made only upon good cause
10 shown and pursuant to notice and procedures as set forth by
11 the Florida Rules of Juvenile Procedure.
12 Section 2. Section 39.4071, Florida Statutes, is
13 created to read:
14 39.4071 Child resource record.--
15 (1) In accordance with 42 U.S.C. s. 675, the
16 department shall prepare and maintain a comprehensive,
17 accurate, and updated health and education record on each
18 child who is placed in a shelter home, foster care, or other
19 residential placement, or who is otherwise in the custody or
20 care of the department.
21 (2) The health and education record shall be referred
22 to as the child resource record and shall include: the child's
23 name; family and social history; medical history with the
24 respective dates and purposes of medical care and treatment;
25 the results of all medical, psychiatric, and psychological
26 information, evaluations, exams, and screenings; educational
27 records and needs assessments; medical visits,
28 hospitalizations, and operations and procedures with reasons
29 thereof; dates, locations, and names of treating or
30 administering professionals; names and telephone numbers of
31 all physicians and other health care professionals who have
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1 treated the child; the child's known allergies and negative
2 reactions to medication; all medications previously and
3 currently prescribed, including dates of administration,
4 renewals of prescription and discontinuation, the dosage and
5 frequency, and subsequent renewals of prescription; any
6 written informed consents as required by law and reasons for
7 not obtaining the consents or for the refusals to consent; the
8 name and telephone numbers of the agent of the department who
9 is currently responsible for the child; the name and telephone
10 number of the parent, legal custodian, relative caregiver, or
11 foster care parent, if applicable; and the local after-hour
12 call number of the department for emergencies.
13 (3) The department shall provide written documentation
14 describing why any information required by subsection (2) is
15 not available and accessible in the child resource record and
16 the steps that the department is taking to obtain the
17 information.
18 (4) The child resource record shall follow the child
19 to each residential placement. While the child resides there,
20 the child resource record shall remain in the custody of the
21 parent or legal custodian, shelter, or foster care parent or
22 provider, or other caretaker. The record must accompany the
23 child to every health care appointment in order that the
24 information contained therein may be shared with the provider
25 and updated as appropriate.
26 (5) The child resource record shall be open for
27 inspection by the parent or legal custodian or other person
28 who has the power, as authorized by law, to consent to medical
29 care or treatment.
30 (6) The department shall adopt rules to administer
31 this section.
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1 Section 3. Section 39.4072, Florida Statutes, is
2 created to read:
3 39.4072 Physical or mental examination of parent or
4 person requesting custody of child.--At any time after the
5 filing of a shelter petition or petition for dependency, when
6 the mental or physical condition, including the blood group,
7 of a parent, caregiver, legal custodian, or other person
8 requesting custody of a child is in controversy, the court may
9 order the person to submit to a physical or mental examination
10 by a qualified professional. The order may be made only upon
11 good cause shown and under the notice and procedures set forth
12 in the Florida Rules of Juvenile Procedure.
13 Section 4. Subsections (6) and (7) of section 409.145,
14 Florida Statutes, are amended to read:
15 409.145 Care of children.--
16 (6) Whenever any child is placed under the protection,
17 care, and guidance of the department or a duly licensed public
18 or private agency, or as soon thereafter as is practicable,
19 the department or agency, as the case may be, shall complete a
20 full medical evaluation of the child and shall endeavor to
21 obtain such information concerning the family medical history
22 of the child and the natural parents as is available or
23 readily obtainable. This information shall be kept on file by
24 the department or agency for possible future use as provided
25 in ss. 63.082 and 63.162 or as may be otherwise provided by
26 law.
27 (7) Whenever any child is placed by the department in
28 a shelter home, foster home, or other residential placement,
29 the department shall make available to the operator of the
30 shelter home, foster home, other residential placement, or
31 other caretaker as soon thereafter as is practicable, the
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1 child's child resource record as required by s. 39.4071, to
2 include all relevant information concerning the child's
3 demographic, social, and medical history.
4 Section 5. Section 743.0645, Florida Statutes, is
5 amended to read:
6 743.0645 Other persons who may consent to medical care
7 or treatment of a minor; psychotropic medications.--
8 (1) DEFINITIONS.--As used in this section, the term:
9 (a) "Blood testing" includes Early Periodic Screening,
10 Diagnosis, and Treatment (EPSDT) testing and other blood
11 testing deemed necessary by documented history or
12 symptomatology but excludes HIV testing and controlled
13 substance testing or any other testing for which separate
14 court order or informed consent as provided by law is
15 required.
16 (b) "Child resource record" has the same meaning as in
17 s. 39.4071.
18 (c)(b) "Medical care and treatment" includes ordinary
19 and necessary medical and dental examination and treatment,
20 including blood testing, preventive care including ordinary
21 immunizations, tuberculin testing, and well-child care, but
22 does not include surgery, general anesthesia, provision of
23 psychotropic medications, or other extraordinary procedures
24 for which a separate court order, power of attorney, or
25 informed consent as provided by law is required.
26 (d) "Peer review" means an evaluation by two or more
27 physicians licensed under the same authority and with the same
28 or similar specialty as the physician under review, to assess
29 the medical necessity, appropriateness, quality, and cost of
30 health care and health services provided to a patient, based
31
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1 on recognized health care standards, and to determine whether
2 the documentation in the physician's records is adequate.
3 (e)(c) "Person who has the power to consent as
4 otherwise provided by law" includes a natural or adoptive
5 parent, legal custodian, or legal guardian.
6 (f) "Psychotropic medication" is medication, the
7 prescribed intent of which is to affect or alter thought
8 processes, mood, or behavior, including, but not limited to,
9 antipsychotic, antidepressant, and antianxiolytic medication,
10 behavior medications, mood stabilizers, and medications to
11 treat attentional problems. The classification of a medication
12 depends upon its stated, intended effect when prescribed,
13 because it may have many different effects.
14 (2) CONSENT.--
15 (a) Any of the following persons, in order of priority
16 listed, may authorize consent to the medical care and or
17 treatment of a minor who is not committed to the Department of
18 Children and Family Services or the Department of Juvenile
19 Justice or in their custody under chapter 39, chapter 984, or
20 chapter 985 when, after a reasonable attempt, a person who has
21 the power to consent as otherwise provided by law cannot be
22 contacted by the treatment provider and actual notice to the
23 contrary has not been given to the provider by that person:
24 1.(a) A person who possesses a power of attorney to
25 provide medical consent for the minor. A power of attorney
26 executed after July 1, 2001, to provide medical consent for a
27 minor includes the power to consent to medically necessary
28 surgical and general anesthesia services for the minor unless
29 the such services are excluded by the individual executing the
30 power of attorney.
31 2.(b) The stepparent.
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1 3.(c) The grandparent of the minor.
2 4.(d) An adult brother or sister of the minor.
3 5.(e) An adult aunt or uncle of the minor.
4 (b) Each treatment provider shall document in the
5 minor's records
6
7 There shall be maintained in the treatment provider's records
8 of the minor documentation that a reasonable attempt was made
9 to contact the person who has the power to consent.
10 (3) AUTHORIZATION FOR CONSENT.--
11 (a) Consent or authorization for medical care and
12 treatment for any child in the custody or care of the
13 Department of Children and Family Services or its authorized
14 agent under chapter 39 must be obtained as provided in s.
15 39.407.
16 (b)(3) The Department of Children and Family Services
17 or the Department of Juvenile Justice caseworker, juvenile
18 probation officer, or person primarily responsible for the
19 case management of the child, the administrator of any
20 facility licensed by the department under s. 393.067, s.
21 394.875, or s. 409.175, or the administrator of any
22 state-operated or state-contracted delinquency residential
23 treatment facility may consent to the medical care or
24 treatment of any minor committed to it or in its custody under
25 chapter 39, chapter 984, or chapter 985, when the person who
26 has the power to consent as otherwise provided by law cannot
27 be contacted and the such person has not expressly objected to
28 the such consent. There shall be maintained in the records of
29 the minor documentation that a reasonable attempt was made to
30 contact the person who has the power to consent as otherwise
31 provided by law.
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1 (4) AUTHORIZATION FOR CONSENT TO THE ADMINISTRATION OF
2 PSYCHOTROPIC MEDICATION.--
3 (a) Consent for the prescription and administration of
4 psychotropic medication for any child who is in the custody or
5 care of the Department of Children and Family Services or its
6 authorized agent under chapter 39 must be obtained as provided
7 in s. 39.4075.
8 (b) Consent for the prescription and administration of
9 psychotropic medication for any child who is committed or
10 otherwise in the custody of the Department of Juvenile Justice
11 under chapter 984 or chapter 985 shall be obtained as follows:
12 1. Written informed consent shall be obtained from the
13 parent or legal custodian of a child.
14 2. If the child is 12 years of age or older, written
15 informed consent shall also be obtained from the child.
16 3. If the parent or legal custodian is unwilling or
17 unavailable or refuses to consent, the Department of Juvenile
18 Justice must obtain an order from the court authorizing
19 consent before the prescribing and administering of
20 psychotropic medication.
21 4. If the parental rights of a parent have been
22 terminated, the Department of Juvenile Justice must obtain an
23 order from the court authorizing consent before the
24 prescribing and administering of psychotropic medication.
25 (c) If authority to consent for the prescription and
26 administration of psychotropic medication is obtained under
27 this subsection, the prescribing physician, who must be a
28 physician licensed under chapter 458 or chapter 459, shall
29 submit a copy of the child's resource record and a
30 psychotropic prescription report to the board which has
31
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1 regulatory responsibility over the license of the prescribing
2 physician. The psychotropic prescription report shall contain:
3 1. The name of the prescribed psychotropic medication.
4 2. The prescribed dosage.
5 3. The dosage recommended by the drug's manufacturer
6 or the United States Food and Drug Administration.
7 4. The reason the medication is prescribed.
8 5. The expected benefit of the medication.
9 6. The side effects of the medication.
10
11 A copy of the psychotropic prescription report shall be
12 provided to the department, which the foster parents, and the
13 parents if the parents can be located and their parental
14 rights have not been terminated.
15 (5)(4) NOTICE.--The medical provider shall notify the
16 parent or other person who has the power to consent as
17 otherwise provided by law as soon as possible after the
18 medical care and or treatment is administered by pursuant to
19 consent or approval to authorize care and treatment given
20 under this section. The medical records shall reflect the
21 reason consent as otherwise provided by law was not initially
22 obtained and shall be open for inspection by the parent or
23 other person who has the power to consent as otherwise
24 provided by law.
25 (6)(5) IMMUNITY.--The person who gives consent; a
26 physician, dentist, nurse, or other health care professional
27 licensed to practice in this state; or a hospital or medical
28 facility, including, but not limited to, county health
29 departments, shall not incur civil liability by reason of the
30 giving of consent, examination, or rendering of treatment,
31 provided that the such consent, examination, or treatment was
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1 given or rendered as a reasonable prudent person or similar
2 health care professional would give or render it under the
3 same or similar circumstances.
4 (7)(6) RULES.--The Department of Children and Family
5 Services, the Department of Health, and the Department of
6 Juvenile Justice shall may adopt rules to administer implement
7 this section.
8 (8)(7) STATUTES.--This section does not affect other
9 statutory provisions of this state that relate to medical
10 consent for minors.
11 Section 6. Section 743.0647, Florida Statutes, is
12 created to read:
13 743.0647 REPORTS OF ADVERSE INCIDENT OR CONDITION.--
14 (1) Within 10 days after the occurrence of an adverse
15 incident or condition, as defined in this section, resulting
16 from the dispensation, administration, or use of psychotropic
17 medication to a child under s. 743.0645 or s. 39.407, the
18 parent, legal custodian, or the respective department or its
19 agent with whom the child is committed must immediately notify
20 the prescribing physician. The prescribing physician must
21 promptly report the adverse incident or condition to the
22 respective board under which the prescribing physician is
23 licensed and to the manufacturer of the psychotropic
24 medication. The prescribing physician shall also forward a
25 copy of his or her psychotropic prescription report to the
26 respective board.
27 (2) The Board of Medicine and the Board of Osteopathic
28 Medicine shall each create a voluntary peer review board. Each
29 respective peer review board shall review the reports required
30 and received under this section. Each respective peer review
31 board shall determine whether the psychotropic medication was
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1 prescribed appropriately and whether the conduct of the
2 prescribing physician is potentially subject to disciplinary
3 action. The peer review boards shall also notify the
4 department to which the child is committed or which maintains
5 custody of the child within 24 hours after the determination.
6 Upon notice, the department to which the child is committed
7 and which is responsible for the custody or care of the child
8 shall ensure that the child receives appropriate medical
9 followup and that the medication is discontinued immediately
10 or as soon as practicable under the circumstances.
11 (3) Each respective board shall provide staff support
12 for all meetings of the peer review boards created under this
13 section and shall reimburse the participants for all
14 meeting-related expenses.
15 (4) Each respective board shall forward quarterly
16 information to the Center for Juvenile Psychotropic Studies
17 regarding the number of psychotropic prescription reports
18 received, the number of psychotropic prescription reports
19 determined to be clinically inappropriate, and the number of
20 adverse incidents reported to the respective peer review
21 boards.
22 (5) Each respective board shall publish on its website
23 an annual summary and trend analysis of all adverse incident
24 and effects reports. The published information shall not
25 identify the patient, the reporting person, or the
26 practitioner involved. The purpose of the publication of the
27 summary and trend analysis is to promote the rapid
28 dissemination of information relating to adverse incidents and
29 effects of psychotropic medications on children to assist in
30 avoidance of similar incidents and effects and reduce
31 morbidity and mortality.
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1 (6) The Board of Medicine and the Board of Osteopathic
2 Medicine shall adopt rules to administer the policies and
3 procedures for reporting adverse incidents or conditions
4 resulting from the dispensation, administration, or use of
5 psychotropic medications to children. The policies and
6 procedures must include a verification of corrective action to
7 remediate or minimize incidents or adverse effects and a
8 timeline for reporting the incidents or effects to the
9 respective boards.
10 Section 7. (1) The Center for Juvenile Psychotropic
11 Studies is established within the Department of Psychiatry of
12 the College of Medicine of the University of Florida. The
13 mission of the center is to collect, track, and assess
14 information regarding children who are committed to or
15 otherwise in the custody or care of the Department of Children
16 and Family Services or the Department of Juvenile Justice and
17 who have been or are currently being prescribed psychotropic
18 medications.
19 (2)(a) An advisory board shall be created to
20 periodically and objectively review and advise the center on
21 all actions taken under this section.
22 (b) The membership of the board shall consist of eight
23 experts or practitioners in psychiatric health, a clinical
24 pharmacologist, the executive director of the Statewide
25 Guardian Ad Litem Office, and the secretaries, or their
26 designees, of the Department of Children and Family Services,
27 the Department of Juvenile Justice, and the Agency for
28 Healthcare Administration. The Governor, the President of the
29 Senate, the Speaker of the House of Representatives, and the
30 President of the University of Florida shall each appoint one
31 member. The Florida Psychiatric Society shall appoint the
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1 remaining members of the board. None of the members may be a
2 person who is currently conducting clinical studies involving
3 psychotropic medication.
4 (3) The Dean of the College of Medicine of the
5 University of Florida shall appoint the Director of the
6 Center.
7 (4) The center shall work in conjunction with the
8 Department of Children and Family Services, the Department of
9 Juvenile Justice, and the Department of Health, and to the
10 extent allowed by the privacy requirements of existing federal
11 and state law, those agencies shall work with, and make
12 available to the center, data regarding each child, including,
13 but not limited to:
14 (a) Demographic information such as age, geographic
15 location, and economic status.
16 (b) Family history, including involvement with child
17 welfare or the juvenile justice systems.
18 (c) All information regarding the medications
19 prescribed or administered, including, but not limited to,
20 information contained in the medication administration record.
21 (d) Practice patterns, licensure, and board
22 certification of prescribing physicians.
23 (5) The center shall report its findings to the
24 Governor and the Legislature and make recommendations
25 regarding psychotropic medications as prescribed and
26 administered to children who are committed or otherwise in
27 state custody or care. The report is due annually on January 1
28 beginning in 2005.
29 (6) This section expires July 1, 2009.
30 Section 8. This act shall take effect July 1, 2004.
31
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1 *****************************************
2 SENATE SUMMARY
3 Provides that the Department of Children and Family
Services may conduct a health screening on any child who
4 is removed from his or her home. Provides for consent for
medical care and treatment under certain circumstances.
5 Specifies limitations to consent by the department.
Provides for the administration of psychotropic drugs to
6 children. Describes the methods to obtain consent for the
dispensing of psychotropic medication to a child in the
7 legal custody of the department. Requires the court to
conduct a psychotropic medications review of each child
8 to determine the medical status of the child. Directs the
court to review the child's resource record and the
9 prescribing physician's psychotropic prescription report.
Details the contents of the prescription report. Lists
10 other factors for the court to consider when evaluating
the child. Provides that the act does not eliminate the
11 right of a parent to give, or refuse to give, consent for
medical treatment for his or her child. Provides that
12 unless the parent's rights have been terminated, the
parent is financially responsible for the cost of medical
13 care and treatment given to the child. Requires the
department to prepare and maintain a comprehensive,
14 accurate, and updated health and education record, to be
known as the "child resource record," for each child who
15 is placed in a shelter home, foster care, or other
residential placement, or who is otherwise in the custody
16 or care of the department. Specifies the contents of the
child resource record. Directs that the child resource
17 record follow the child to each residential placement.
Requires the child resource record to be open for
18 inspection to certain specified persons. Provides
procedures to authorize consent for the prescription and
19 administration of psychotropic medication to children in
the custody or care of the Department of Children and
20 Family Services or committed to the Department of
Juvenile Justice. Requires a physician prescribing
21 psychotropic medications for a child to file a report
with specified organizations. Requires a prescribing
22 physician to report to the physician's regulating board
any adverse incident or condition involving psychotropic
23 medication to a child within a specified time period.
Directs the Board of Medicine and the Board of
24 Osteopathic Medicine to create a voluntary peer review
board to review reports required and received relating to
25 adverse incidents. Directs the Board of Medicine and the
Board of Osteopathic Medicine to publish an annual
26 summary and trend analysis of all adverse incident and
effects reports on their websites. Creates the Center for
27 Juvenile Psychotropic Studies within the Department of
Psychiatry of the College of Medicine of the University
28 of Florida. Creates an advisory board and provides for
board membership. Requires the center to work with the
29 Department of Children and Family Services, the
Department of Juvenile Justice, and the Agency for Health
30 Care Administration. Requires the center to report to
legislative leaders by a specified date.
31
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