Senate Bill sb1090c1

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    Florida Senate - 2005                           CS for SB 1090

    By the Committee on Children and Families; and Senators
    Campbell and Dawson




    586-1690-05

  1                      A bill to be entitled

  2         An act relating to mental health care services

  3         for minors and incapacitated persons; amending

  4         s. 39.407, F.S.; specifying requirements for

  5         the Department of Children and Family Services

  6         with respect to providing psychotropic

  7         medication to a child in the custody of the

  8         department; requiring that the prescribing

  9         physician attempt to obtain express and

10         informed parental consent for providing such

11         medication; authorizing the department to

12         provide psychotropic medication without such

13         consent under certain circumstances; requiring

14         the department to provide medical information

15         to a physician under certain circumstances;

16         requiring that the child be evaluated by a

17         physician; requiring that the department obtain

18         court authorization for providing such

19         medication within a specified period; providing

20         requirements for a motion by the department

21         seeking court authorization to provide

22         psychotropic medication; specifying

23         circumstances under which medication may be

24         provided in advance of a court order; requiring

25         that a hearing be held on the motion to provide

26         psychotropic medication to a child under

27         certain circumstances; specifying the required

28         burden of proof with respect to evidence

29         presented at the hearing; requiring that the

30         department provide a child's medical records to

31         the court; providing requirements for court

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    Florida Senate - 2005                           CS for SB 1090
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 1         review; authorizing the court to order the

 2         department to obtain a medical opinion;

 3         requiring that the department adopt rules to

 4         ensure that children receive appropriate

 5         psychotropic medications; specifying the

 6         provisions to be included in the rules;

 7         conforming a cross-reference; amending s.

 8         394.459, F.S., relating to the rights of

 9         patients under the Florida Mental Health Act;

10         revising provisions requiring that a patient be

11         asked to give express and informed consent

12         before admission or treatment; requiring that

13         additional information be provided with respect

14         to the risks and benefits of treatment, the

15         dosage range of medication, potential side

16         effects, and the monitoring of treatment;

17         clarifying provisions governing the manner in

18         which consent may be revoked; requiring that

19         facilities develop a system for investigating

20         and responding to certain complaints; amending

21         s. 743.0645, F.S.; redefining the term "medical

22         care and treatment" for purposes of obtaining

23         consent for the medical treatment of a minor;

24         providing an exception with respect to the

25         consent provided under s. 39.407, F.S.;

26         providing an effective date.

27  

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

29  

30         Section 1.  Present subsections (3) through (14) of

31  section 39.407, Florida Statutes, are redesignated as

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    Florida Senate - 2005                           CS for SB 1090
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 1  subsections (4) through (15), respectively, a new subsection

 2  (3) is added to that section, and present subsection (4) of

 3  that section is amended, to read:

 4         39.407  Medical, psychiatric, and psychological

 5  examination and treatment of child; physical or mental

 6  examination of parent or person requesting custody of child.--

 7         (3)(a)1.  Except as otherwise provided in subparagraph

 8  (b)1. or paragraph (e), before the department provides

 9  psychotropic medications to a child in its custody, the

10  prescribing physician shall attempt to obtain express and

11  informed consent, as defined in s. 394.455(9) and as described

12  in s. 394.459(3)(a), from the child's parent or legal

13  guardian. The department must take steps necessary to

14  facilitate the inclusion of the parent in the child's

15  consultation with the physician. However, if the parental

16  rights of the parent have been terminated, the parent's

17  location or identity is unknown or cannot reasonably be

18  ascertained, or the parent declines to give express and

19  informed consent, the department may, after consultation with

20  the prescribing physician, seek court authorization to provide

21  the psychotropic medications to the child. Unless parental

22  rights have been terminated and if it is possible to do so,

23  the department shall continue to involve the parent in the

24  decisionmaking process regarding the provision of psychotropic

25  medications. If, at any time, a parent whose parental rights

26  have not been terminated provides express and informed consent

27  to the provision of a psychotropic medication, the

28  requirements of this section that the department seek court

29  authorization do not apply to that medication until such time

30  as the parent no longer consents.

31  

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    Florida Senate - 2005                           CS for SB 1090
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 1         2.  Any time the department seeks a medical evaluation

 2  to determine the need to initiate or continue a psychotropic

 3  medication for a child, the department must provide to the

 4  evaluating physician all pertinent medical information known

 5  to the department concerning that child.

 6         (b)1.  If a child who is removed from the home under s.

 7  39.401 is receiving prescribed psychotropic medication at the

 8  time of removal and parental authorization to continue

 9  providing the medication cannot be obtained, the department

10  may take possession of the remaining medication and may

11  continue to provide the medication as prescribed until the

12  shelter hearing, if it is determined that the medication is a

13  current prescription for that child and the medication is in

14  its original container.

15         2.  If the department continues to provide the

16  psychotropic medication to a child when parental authorization

17  cannot be obtained, the department shall notify the parent or

18  legal guardian as soon as possible that the medication is

19  being provided to the child as provided in subparagraph 1. The

20  child's official departmental record must include the reason

21  parental authorization was not initially obtained and an

22  explanation of why the medication is necessary for the child's

23  well-being.

24         3.  If the department is advised by a physician

25  licensed under chapter 458 or chapter 459 that the child

26  should continue the psychotropic medication and parental

27  authorization has not been obtained, the department shall

28  request court authorization at the shelter hearing to continue

29  to provide the psychotropic medication and shall provide to

30  the court any information in its possession in support of the

31  request. Any authorization granted at the shelter hearing may

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    Florida Senate - 2005                           CS for SB 1090
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 1  extend only until the arraignment hearing on the petition for

 2  adjudication of dependency or 28 days following the date of

 3  removal, whichever occurs sooner.

 4         4.  Before filing the dependency petition, the

 5  department shall ensure that the child is evaluated by a

 6  physician licensed under chapter 458 or chapter 459 to

 7  determine whether it is appropriate to continue the

 8  psychotropic medication. If, as a result of the evaluation,

 9  the department seeks court authorization to continue the

10  psychotropic medication, a motion for such continued

11  authorization shall be filed at the same time as the

12  dependency petition, within 21 days after the shelter hearing.

13         (c)  Except as provided in paragraphs (b) and (e), the

14  department must file a motion seeking the court's

15  authorization to initially provide or continue to provide

16  psychotropic medication to a child in its legal custody. The

17  motion must be supported by a written report prepared by the

18  department which describes the efforts made to enable the

19  prescribing physician to obtain express and informed consent

20  for providing the medication to the child and other treatments

21  considered or recommended for the child. In addition, the

22  motion must be supported by the prescribing physician's signed

23  medical report providing:

24         1.  The name of the child, the name and range of the

25  dosage of the psychotropic medication, and that there is a

26  need to prescribe psychotropic medication to the child based

27  upon a diagnosed condition for which such medication is being

28  prescribed.

29         2.  A statement indicating that the physician has

30  reviewed all medical information concerning the child which

31  has been provided.

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 1         3.  A statement indicating that the psychotropic

 2  medication, at its prescribed dosage, is appropriate for

 3  treating the child's diagnosed medical condition, as well as

 4  the behaviors and symptoms the medication, at its prescribed

 5  dosage, is expected to address.

 6         4.  An explanation of the nature and purpose of the

 7  treatment; the recognized side effects, risks, and

 8  contraindications of the medication; drug-interaction

 9  precautions; the possible effects of stopping the medication;

10  and how the treatment will be monitored, followed by a

11  statement indicating that this explanation was provided to the

12  child if age appropriate and to the child's caregiver.

13         5.  Documentation addressing whether the psychotropic

14  medication will replace or supplement any other currently

15  prescribed medications or treatments; the length of time the

16  child is expected to be taking the medication; and any

17  additional medical, mental health, behavioral, counseling, or

18  other services that the prescribing physician recommends.

19         (d)1.  If any party objects to the department's motion

20  under paragraph (c), the court shall hold a hearing before

21  authorizing the department to initially provide or to continue

22  providing psychotropic medication to a child in the legal

23  custody of the department. At such hearing and notwithstanding

24  s. 90.803, the medical report described in paragraph (c) is

25  admissible in evidence. The prescribing physician need not

26  attend the hearing or testify unless the court specifically

27  orders such attendance or testimony. If the court finds that

28  the department's motion and the physician's medical report

29  meet the requirements of this subsection and that it is in the

30  child's best interests, the court may order that the

31  department provide or continue to provide the psychotropic

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    Florida Senate - 2005                           CS for SB 1090
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 1  medication to the child without additional testimony or

 2  evidence. The court shall further inquire of the department as

 3  to whether additional medical, mental health, behavioral,

 4  counseling, or other services are being provided to the child

 5  by the department which the prescribing physician considers to

 6  be necessary or beneficial in treating the child's medical

 7  condition and that the physician recommends or expects to

 8  provide to the child in concert with the medication. The court

 9  may order additional medical consultation, including obtaining

10  a second opinion within 5 working days after such order, based

11  upon consideration of the best interests of the child. The

12  court may not order the discontinuation of prescribed

13  psychotropic medication if such order is contrary to the

14  decision of the prescribing physician unless the court first

15  obtains a second opinion from a licensed psychiatrist, if

16  available, or, if not available, a physician licensed under

17  chapter 458 or chapter 459, stating that the psychotropic

18  medication should be discontinued. If, however, the

19  prescribing physician is a child or adolescent psychiatrist,

20  the court may not order the discontinuation of prescribed

21  psychotropic medication unless the second opinion is also from

22  a child or adolescent psychiatrist.

23         2.  The burden of proof at any hearing held under this

24  paragraph shall be by a preponderance of the evidence.

25         (e)1.  If the child's prescribing physician certifies

26  in the signed medical report required in paragraph (c) that

27  delay in providing a prescribed psychotropic medication would

28  more likely than not cause significant harm to the child, the

29  medication may be provided in advance of the issuance of a

30  court order. In such event, the medical report must provide

31  the specific reasons why the child may experience significant

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    Florida Senate - 2005                           CS for SB 1090
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 1  harm and the nature and the extent of the potential harm. The

 2  department must submit a motion seeking continuation of the

 3  medication and the physician's medical report to the court,

 4  the child's guardian ad litem, and all other parties within 3

 5  working days after the department commences providing the

 6  medication to the child. The department shall seek the order

 7  at the next regularly scheduled court hearing required under

 8  this chapter, or within 30 days after the date of the

 9  prescription, whichever occurs sooner. If any party objects to

10  the department's motion, the court shall hold a hearing within

11  7 days.

12         2.  Psychotropic medications may be administered in

13  advance of a court order in hospitals, crisis stabilization

14  units, and in statewide inpatient psychiatric programs. Within

15  3 working days after the medication is begun, the department

16  must seek court authorization as described in paragraph (c).

17         (f)1.  The department shall fully inform the court of

18  the child's medical and behavioral status as part of the

19  social services report prepared for each judicial review

20  hearing held for a child for whom psychotropic medication has

21  been prescribed or provided under this subsection. As a part

22  of the information provided to the court, the department shall

23  furnish copies of all pertinent medical records concerning the

24  child which have been generated since the previous hearing. On

25  its own motion or on good cause shown by any party, including

26  any guardian ad litem, attorney, or attorney ad litem who has

27  been appointed to represent the child or the child's

28  interests, the court may review the status more frequently

29  than required in this subsection.

30         2.  The court may, in the best interests of the child,

31  order the department to obtain a medical opinion addressing

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    Florida Senate - 2005                           CS for SB 1090
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 1  whether the continued use of the medication under the

 2  circumstances is safe and medically appropriate.

 3         (g)  The department shall adopt rules to ensure that

 4  children receive timely access to clinically appropriate

 5  psychotropic medications. These rules must include, but need

 6  not be limited to, the process for determining which

 7  adjunctive services are needed, the uniform process for

 8  facilitating the prescribing physician's ability to obtain the

 9  express and informed consent of a child's parent or guardian,

10  the procedures for obtaining court authorization for the

11  provision of a psychotropic medication, the frequency of

12  medical monitoring and reporting on the status of the child to

13  the court, how the child's parents will be involved in the

14  treatment-planning process if their parental rights have not

15  been terminated, and how caretakers are to be provided

16  information contained in the physician's signed medical

17  report. The rules must also include uniform forms to be used

18  in requesting court authorization for the use of a

19  psychotropic medication and provide for the integration of

20  each child's treatment plan and case plan. The department must

21  begin the formal rulemaking process within 90 days after the

22  effective date of this act.

23         (5)(4)  A judge may order a child in an out-of-home

24  placement to be treated by a licensed health care professional

25  based on evidence that the child should receive treatment.

26  The judge may also order such child to receive mental health

27  or developmental disabilities services from a psychiatrist,

28  psychologist, or other appropriate service provider.  Except

29  as provided in subsection (6) (5), if it is necessary to place

30  the child in a residential facility for such services, the

31  procedures and criteria established in s. 394.467 or chapter

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    Florida Senate - 2005                           CS for SB 1090
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 1  393 shall be used, whichever is applicable. A child may be

 2  provided developmental disabilities or mental health services

 3  in emergency situations, pursuant to the procedures and

 4  criteria contained in s. 394.463(1) or chapter 393, whichever

 5  is applicable.

 6         Section 2.  Paragraph (a) of subsection (3) and

 7  paragraph (b) of subsection (4) of section 394.459, Florida

 8  Statutes, are amended to read:

 9         394.459  Rights of patients.--

10         (3)  RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT.--

11         (a)1.  Each patient entering treatment shall be asked

12  to give express and informed consent for admission or and

13  treatment.  If the patient has been adjudicated incapacitated

14  or found to be incompetent to consent to treatment, express

15  and informed consent to treatment shall be sought instead from

16  the patient's guardian or guardian advocate.  If the patient

17  is a minor, express and informed consent for admission or and

18  treatment shall also be requested from the patient's guardian.

19  Express and informed consent for admission or and treatment of

20  a patient under 18 years of age shall be required from the

21  patient's guardian, unless the minor is seeking outpatient

22  crisis intervention services under s. 394.4784.  Express and

23  informed consent for admission or and treatment given by a

24  patient who is under 18 years of age shall not be a condition

25  of admission when the patient's guardian gives express and

26  informed consent for the patient's admission pursuant to s.

27  394.463 or s. 394.467.

28         2.  Before Prior to giving express and informed

29  consent, the following information shall be provided and

30  explained in plain language disclosed to the patient, or to

31  the patient's guardian if the patient is 18 years of age or

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    Florida Senate - 2005                           CS for SB 1090
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 1  older and has been adjudicated incapacitated, or to the

 2  patient's guardian advocate if the patient has been found to

 3  be incompetent to consent to treatment, or to both the patient

 4  and the guardian if the patient is a minor: the reason for

 5  admission or treatment;, the proposed treatment;, the purpose

 6  of the treatment to be provided;, the common risks, benefits,

 7  and side effects thereof; the specific dosage range for the

 8  medication, when applicable;, alternative treatment

 9  modalities;, the approximate length of care; the potential

10  effects of stopping treatment; how treatment will be

11  monitored;, and that any consent given for treatment by a

12  patient may be revoked orally or in writing before prior to or

13  during the treatment period by the patient or by a person who

14  is legally authorized to make health care decisions on behalf

15  of the patient, the guardian advocate, or the guardian.

16         (4)  QUALITY OF TREATMENT.--

17         (b)  Receiving and treatment Facilities shall develop

18  and maintain, in a form accessible to and readily

19  understandable by patients and consistent with rules adopted

20  by the department, the following:

21         1.  Criteria, procedures, and required staff training

22  for any use of close or elevated levels of supervision, of

23  restraint, seclusion, or isolation, or of emergency treatment

24  orders, and for the use of bodily control and physical

25  management techniques.

26         2.  Procedures for documenting, monitoring, and

27  requiring clinical review of all uses of the procedures

28  described in subparagraph 1. and for documenting and requiring

29  review of any incidents resulting in injury to patients.

30         3.  A system for investigating, tracking, managing, and

31  responding to the review of complaints by persons receiving

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    Florida Senate - 2005                           CS for SB 1090
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 1  services or individuals acting on their behalf patients or

 2  their families or guardians.

 3         Section 3.  Paragraph (b) of subsection (1) of section

 4  743.0645, Florida Statutes, is amended to read:

 5         743.0645  Other persons who may consent to medical care

 6  or treatment of a minor.--

 7         (1)  As used in this section, the term:

 8         (b)  "Medical care and treatment" includes ordinary and

 9  necessary medical and dental examination and treatment,

10  including blood testing, preventive care including ordinary

11  immunizations, tuberculin testing, and well-child care, but

12  does not include surgery, general anesthesia, provision of

13  psychotropic medications, or other extraordinary procedures

14  for which a separate court order, power of attorney, or

15  informed consent as provided by law is required, except as

16  provided in s. 39.407(3).

17         Section 4.  This act shall take effect July 1, 2005.

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    Florida Senate - 2005                           CS for SB 1090
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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 1090

 3                                 

 4  Requires the department to provide known pertinent medical
    information to the evaluating physician when seeking an
 5  evaluation to consider providing psychotropic medications to a
    child in its custody.
 6  
    Requires the signed physician's medical report to include a
 7  statement indicating that the physician has reviewed all
    medical information on the child that has been provided.
 8  
    Prohibits the court from ordering the discontinuation of a
 9  medication being prescribed for the child by a child or
    adolescent psychiatrist unless a second opinion advising the
10  court that medication should be discontinued is also from a
    child or adolescent psychiatrist.
11  
    Authorizes the administration of psychotropic medications in
12  advance of a court order in hospitals, crisis stabilization
    units, and in statewide inpatient psychiatric programs while
13  requiring the department to seek court authorization within
    three working days after the medication is started.
14  
    Requires that rules developed by the department address the
15  process of how the child's parents will be involved in the
    treatment planning process if parental rights have not been
16  terminated and how caretakers are to be provided information
    contained in the physician's report.
17  
    Requires facilities to develop a system that is consistent
18  with rules adopted by the department for investigating,
    tracking, managing, and responding to complaints by persons
19  receiving services or individuals acting on their behalf.

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