Senate Bill sb1090c2

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2005                    CS for CS for SB 1090

    By the Committees on Judiciary; Children and Families; and
    Senators Campbell, Dawson and Lynn




    590-1866-05

  1                      A bill to be entitled

  2         An act relating to mental health care services

  3         for minors and incapacitated persons; amending

  4         s. 39.402, F.S.; requiring a child's parent or

  5         legal guardian to provide certain information

  6         to the Department of Children and Family

  7         Services; amending s. 39.407, F.S.; specifying

  8         requirements for the department with respect to

  9         providing psychotropic medication to a child in

10         the custody of the department; requiring that

11         the prescribing physician attempt to obtain

12         express and informed parental consent for

13         providing such medication; authorizing the

14         department to provide psychotropic medication

15         without such consent under certain

16         circumstances; requiring the department to

17         provide medical information to a physician

18         under certain circumstances; requiring that the

19         child be evaluated by a physician; requiring

20         that the department obtain court authorization

21         for providing such medication within a

22         specified period; providing requirements for a

23         motion by the department seeking court

24         authorization to provide psychotropic

25         medication; specifying circumstances under

26         which medication may be provided in advance of

27         a court order; requiring that notice be

28         provided to all parties if the department

29         proposes to provide psychotropic medication to

30         the child; requiring that a hearing be held if

31         any party objects; providing requirements for

                                  1

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






    Florida Senate - 2005                    CS for CS for SB 1090
    590-1866-05




 1         the hearing; authorizing the court to order

 2         additional medical consultation; specifying the

 3         required burden of proof with respect to

 4         evidence presented at the hearing; requiring

 5         that the department provide a child's medical

 6         records to the court; providing requirements

 7         for court review; authorizing the court to

 8         order the department to obtain a medical

 9         opinion; requiring that the department adopt

10         rules to ensure that children receive

11         appropriate psychotropic medications;

12         specifying the provisions to be included in the

13         rules; conforming a cross-reference; amending

14         s. 394.459, F.S., relating to the rights of

15         patients under the Florida Mental Health Act;

16         revising provisions requiring that a patient be

17         asked to give express and informed consent

18         before admission or treatment; requiring that

19         additional information be provided with respect

20         to the risks and benefits of treatment, the

21         dosage range of medication, potential side

22         effects, and the monitoring of treatment;

23         clarifying provisions governing the manner in

24         which consent may be revoked; requiring that

25         facilities develop a system for investigating

26         and responding to certain complaints; amending

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

28         care and treatment" for purposes of obtaining

29         consent for the medical treatment of a minor;

30         providing an exception with respect to the

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

                                  2

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






    Florida Senate - 2005                    CS for CS for SB 1090
    590-1866-05




 1         directing the department to conduct an

 2         assessment; requiring a report; providing an

 3         effective date.

 4  

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

 6  

 7         Section 1.  Subsection (11) of section 39.402, Florida

 8  Statutes, is amended to read:

 9         39.402  Placement in a shelter.--

10         (11)(a)  If a child is placed in a shelter pursuant to

11  a court order following a shelter hearing, the court shall

12  require in the shelter hearing order that the parents of the

13  child, or the guardian of the child's estate, if possessed of

14  assets which under law may be disbursed for the care, support,

15  and maintenance of the child, to pay, to the department or

16  institution having custody of the child, fees as established

17  by the department.  When the order affects the guardianship

18  estate, a certified copy of the order shall be delivered to

19  the judge having jurisdiction of the guardianship estate. The

20  shelter order shall also require the parents to provide to the

21  department and any other state agency or party designated by

22  the court, within 28 days after entry of the shelter order,

23  the financial information necessary to accurately calculate

24  child support pursuant to s. 61.30.

25         (b)  The parent or legal guardian shall provide all

26  known medical information to the department.

27         Section 2.  Present subsections (3) through (14) of

28  section 39.407, Florida Statutes, are redesignated as

29  subsections (4) through (15), respectively, a new subsection

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

31  that section is amended, to read:

                                  3

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






    Florida Senate - 2005                    CS for CS for SB 1090
    590-1866-05




 1         39.407  Medical, psychiatric, and psychological

 2  examination and treatment of child; physical or mental

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

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

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

 6  psychotropic medications to a child in its custody, the

 7  prescribing physician shall attempt to obtain express and

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

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

10  guardian. The department must take steps necessary to

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

12  consultation with the physician. However, if the parental

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

14  location or identity is unknown or cannot reasonably be

15  ascertained, or the parent declines to give express and

16  informed consent, the department may, after consultation with

17  the prescribing physician, seek court authorization to provide

18  the psychotropic medications to the child. Unless parental

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

20  the department shall continue to involve the parent in the

21  decisionmaking process regarding the provision of psychotropic

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

23  have not been terminated provides express and informed consent

24  to the provision of a psychotropic medication, the

25  requirements of this section that the department seek court

26  authorization do not apply to that medication until such time

27  as the parent no longer consents.

28         2.  Any time the department seeks a medical evaluation

29  to determine the need to initiate or continue a psychotropic

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

31  

                                  4

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






    Florida Senate - 2005                    CS for CS for SB 1090
    590-1866-05




 1  evaluating physician all pertinent medical information known

 2  to the department concerning that child.

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

 4  39.401 is receiving prescribed psychotropic medication at the

 5  time of removal and parental authorization to continue

 6  providing the medication cannot be obtained, the department

 7  may take possession of the remaining medication and may

 8  continue to provide the medication as prescribed until the

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

10  current prescription for that child and the medication is in

11  its original container.

12         2.  If the department continues to provide the

13  psychotropic medication to a child when parental authorization

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

15  legal guardian as soon as possible that the medication is

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

17  child's official departmental record must include the reason

18  parental authorization was not initially obtained and an

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

20  well-being.

21         3.  If the department is advised by a physician

22  licensed under chapter 458 or chapter 459 that the child

23  should continue the psychotropic medication and parental

24  authorization has not been obtained, the department shall

25  request court authorization at the shelter hearing to continue

26  to provide the psychotropic medication and shall provide to

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

28  request. Any authorization granted at the shelter hearing may

29  extend only until the arraignment hearing on the petition for

30  adjudication of dependency or 28 days following the date of

31  removal, whichever occurs sooner.

                                  5

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






    Florida Senate - 2005                    CS for CS for SB 1090
    590-1866-05




 1         4.  Before filing the dependency petition, the

 2  department shall ensure that the child is evaluated by a

 3  physician licensed under chapter 458 or chapter 459 to

 4  determine whether it is appropriate to continue the

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

 6  the department seeks court authorization to continue the

 7  psychotropic medication, a motion for such continued

 8  authorization shall be filed at the same time as the

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

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

11  department must file a motion seeking the court's

12  authorization to initially provide or continue to provide

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

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

15  department which describes the efforts made to enable the

16  prescribing physician to obtain express and informed consent

17  for providing the medication to the child and other treatments

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

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

20  medical report providing:

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

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

23  need to prescribe psychotropic medication to the child based

24  upon a diagnosed condition for which such medication is being

25  prescribed.

26         2.  A statement indicating that the physician has

27  reviewed all medical information concerning the child which

28  has been provided.

29         3.  A statement indicating that the psychotropic

30  medication, at its prescribed dosage, is appropriate for

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

                                  6

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






    Florida Senate - 2005                    CS for CS for SB 1090
    590-1866-05




 1  the behaviors and symptoms the medication, at its prescribed

 2  dosage, is expected to address.

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

 4  treatment; the recognized side effects, risks, and

 5  contraindications of the medication; drug-interaction

 6  precautions; the possible effects of stopping the medication;

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

 8  statement indicating that this explanation was provided to the

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

10         5.  Documentation addressing whether the psychotropic

11  medication will replace or supplement any other currently

12  prescribed medications or treatments; the length of time the

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

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

15  other services that the prescribing physician recommends.

16         (d)1.  The department must notify all parties of the

17  proposed action taken under paragraph (c) in writing or by

18  whatever other method best ensures that all parties receive

19  notification of the proposed action within 48 hours after the

20  motion is filed. If any party objects to the department's

21  motion, that party shall file the objection within 2 working

22  days after being notified of the department's motion. If any

23  party files an objection to the authorization of the proposed

24  psychotropic medication, the court shall hold a hearing as

25  soon as possible before authorizing the department to

26  initially provide or to continue providing psychotropic

27  medication to a child in the legal custody of the department.

28  At such hearing and notwithstanding s. 90.803, the medical

29  report described in paragraph (c) is admissible in evidence.

30  The prescribing physician need not attend the hearing or

31  testify unless the court specifically orders such attendance

                                  7

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






    Florida Senate - 2005                    CS for CS for SB 1090
    590-1866-05




 1  or testimony, or a party subpoenas the physician to attend the

 2  hearing or provide testimony. If, after considering any

 3  testimony received, the court finds that the department's

 4  motion and the physician's medical report meet the

 5  requirements of this subsection and that it is in the child's

 6  best interests, the court may order that the department

 7  provide or continue to provide the psychotropic medication to

 8  the child without additional testimony or evidence. At any

 9  hearing held under this paragraph, the court shall further

10  inquire of the department as to whether additional medical,

11  mental health, behavioral, counseling, or other services are

12  being provided to the child by the department which the

13  prescribing physician considers to be necessary or beneficial

14  in treating the child's medical condition and which the

15  physician recommends or expects to provide to the child in

16  concert with the medication. The court may order additional

17  medical consultation, including consultation with the

18  MedConsult line at the University of Florida, if available, or

19  require the department to obtain a second opinion within a

20  reasonable timeframe as established by the court, not to

21  exceed 21 calendar days, after such order based upon

22  consideration of the best interests of the child. The

23  department must make a referral for an appointment for a

24  second opinion with a physician within 1 working day. The

25  court may not order the discontinuation of prescribed

26  psychotropic medication if such order is contrary to the

27  decision of the prescribing physician unless the court first

28  obtains an opinion from a licensed psychiatrist, if available,

29  or, if not available, a physician licensed under chapter 458

30  or chapter 459, stating that more likely than not,

31  discontinuing the medication would not cause significant harm

                                  8

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






    Florida Senate - 2005                    CS for CS for SB 1090
    590-1866-05




 1  to the child. If, however, the prescribing psychiatrist

 2  specializes in mental health care for children and

 3  adolescents, the court may not order the discontinuation of

 4  prescribed psychotropic medication unless the required opinion

 5  is also from a psychiatrist who specializes in mental health

 6  care for children and adolescents. The court may also order

 7  the discontinuation of prescribed psychotropic medication if a

 8  child's treating physician, licensed under chapter 458 or

 9  chapter 459, states that continuing the prescribed

10  psychotropic medication would cause significant harm to the

11  child due to a diagnosed nonpsychiatric medical condition.

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

13  paragraph shall be by a preponderance of the evidence.

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

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

16  delay in providing a prescribed psychotropic medication would

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

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

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

20  the specific reasons why the child may experience significant

21  harm and the nature and the extent of the potential harm. The

22  department must submit a motion seeking continuation of the

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

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

25  working days after the department commences providing the

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

27  at the next regularly scheduled court hearing required under

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

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

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

31  7 days.

                                  9

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






    Florida Senate - 2005                    CS for CS for SB 1090
    590-1866-05




 1         2.  Psychotropic medications may be administered in

 2  advance of a court order in hospitals, crisis stabilization

 3  units, and in statewide inpatient psychiatric programs. Within

 4  3 working days after the medication is begun, the department

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

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

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

 8  social services report prepared for each judicial review

 9  hearing held for a child for whom psychotropic medication has

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

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

12  furnish copies of all pertinent medical records concerning the

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

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

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

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

17  interests, the court may review the status more frequently

18  than required in this subsection.

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

20  order the department to obtain a medical opinion addressing

21  whether the continued use of the medication under the

22  circumstances is safe and medically appropriate.

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

24  children receive timely access to clinically appropriate

25  psychotropic medications. These rules must include, but need

26  not be limited to, the process for determining which

27  adjunctive services are needed, the uniform process for

28  facilitating the prescribing physician's ability to obtain the

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

30  the procedures for obtaining court authorization for the

31  provision of a psychotropic medication, the frequency of

                                  10

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






    Florida Senate - 2005                    CS for CS for SB 1090
    590-1866-05




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

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

 3  treatment-planning process if their parental rights have not

 4  been terminated, and how caretakers are to be provided

 5  information contained in the physician's signed medical

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

 7  in requesting court authorization for the use of a

 8  psychotropic medication and provide for the integration of

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

10  begin the formal rulemaking process within 90 days after the

11  effective date of this act.

12         (5)(4)  A judge may order a child in an out-of-home

13  placement to be treated by a licensed health care professional

14  based on evidence that the child should receive treatment.

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

16  or developmental disabilities services from a psychiatrist,

17  psychologist, or other appropriate service provider.  Except

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

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

20  procedures and criteria established in s. 394.467 or chapter

21  393 shall be used, whichever is applicable. A child may be

22  provided developmental disabilities or mental health services

23  in emergency situations, pursuant to the procedures and

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

25  is applicable.

26         Section 3.  Paragraph (a) of subsection (3) and

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

28  Statutes, are amended to read:

29         394.459  Rights of patients.--

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

31  

                                  11

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






    Florida Senate - 2005                    CS for CS for SB 1090
    590-1866-05




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

 2  to give express and informed consent for admission or and

 3  treatment.  If the patient has been adjudicated incapacitated

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

 5  and informed consent to treatment shall be sought instead from

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

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

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

 9  Express and informed consent for admission or and treatment of

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

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

12  crisis intervention services under s. 394.4784.  Express and

13  informed consent for admission or and treatment given by a

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

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

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

17  394.463 or s. 394.467.

18         2.  Before Prior to giving express and informed

19  consent, the following information shall be provided and

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

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

22  older and has been adjudicated incapacitated, or to the

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

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

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

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

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

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

29  medication, when applicable;, alternative treatment

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

31  effects of stopping treatment; how treatment will be

                                  12

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






    Florida Senate - 2005                    CS for CS for SB 1090
    590-1866-05




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

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

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

 4  is legally authorized to make health care decisions on behalf

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

 6         (4)  QUALITY OF TREATMENT.--

 7         (b)  Receiving and treatment Facilities shall develop

 8  and maintain, in a form accessible to and readily

 9  understandable by patients and consistent with rules adopted

10  by the department, the following:

11         1.  Criteria, procedures, and required staff training

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

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

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

15  management techniques.

16         2.  Procedures for documenting, monitoring, and

17  requiring clinical review of all uses of the procedures

18  described in subparagraph 1. and for documenting and requiring

19  review of any incidents resulting in injury to patients.

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

21  responding to the review of complaints by persons receiving

22  services or individuals acting on their behalf patients or

23  their families or guardians.

24         Section 4.  Paragraph (b) of subsection (1) of section

25  743.0645, Florida Statutes, is amended to read:

26         743.0645  Other persons who may consent to medical care

27  or treatment of a minor.--

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

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

30  necessary medical and dental examination and treatment,

31  including blood testing, preventive care including ordinary

                                  13

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






    Florida Senate - 2005                    CS for CS for SB 1090
    590-1866-05




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

 2  does not include surgery, general anesthesia, provision of

 3  psychotropic medications, or other extraordinary procedures

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

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

 6  provided in s. 39.407(3).

 7         Section 5.  The Department of Children and Family

 8  Services shall assess and document the positive and negative

 9  fiscal impact of the provisions of this act on the department,

10  taking into consideration costs incurred prior to July 1,

11  2005. The department shall submit a report with its findings

12  to the President of the Senate and the Speaker of the House of

13  Representatives by February 1, 2006.

14         Section 6.  This act shall take effect July 1, 2005.

15  

16          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
17                       CS/Senate Bill 1090

18                                 

19  This committee substitute:

20  --   Requires the parents or legal guardian to provide all
         known medical information to the Department of Children
21       and Family Services;

22  --   Requires the department to give written or other notice
         to parties within 48 hours of the filing of the motion to
23       provide or continue to provide psychotropic medication to
         a child;
24  
    --   Provides that where a party properly files an objection,
25       the court must hold a hearing as soon as possible;

26  --   Authorizes the court to order the department to provide,
         continue, or discontinue psychotropic medication upon
27       certain findings;

28  --   Directs the department to assess and document the fiscal
         impact of the act's provisions and submit a report to the
29       Legislature by February 1, 2006.

30  

31  

                                  14

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