Senate Bill sb2316

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2005                                  SB 2316

    By Senator Crist





    12-985A-05                                          See HB 909

  1                      A bill to be entitled

  2         An act relating to medical screening of

  3         children; amending s. 39.407, F.S.; revising

  4         provisions relating to medical screenings

  5         performed on children who are removed from the

  6         home and maintained in an out-of-home

  7         placement; specifying certain conditions that

  8         the screening must cover; prohibiting the

  9         Department of Children and Family Services from

10         administering or authorizing psychiatric or

11         psychological tests or psychotropic medications

12         for a child in departmental custody except with

13         the written and informed consent of the child's

14         parent or legal guardian or by court order;

15         requiring the department to ensure that

16         children who are in departmental custody

17         receive appropriate psychotropic medications

18         but have options for alternative treatments;

19         providing for rulemaking; providing that the

20         department may not provide consent for

21         administering psychotropic medications to a

22         child for whom the department is the legal

23         custodian; amending s. 39.601, F.S., relating

24         to case plan requirements; providing that case

25         plans may not require parents to give their

26         children psychotropic medications; prohibiting

27         the department from threatening to terminate

28         parental rights based solely on the parents'

29         refusal to give their child psychotropic

30         medications; amending s. 39.703, F.S.;

31         prohibiting the department from initiating

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    Florida Senate - 2005                                  SB 2316
    12-985A-05                                          See HB 909




 1         proceedings to terminate parental rights based

 2         solely on the parents' refusal to give their

 3         child psychotropic medications; amending s.

 4         39.806, F.S.; providing that the refusal of

 5         parents to give their child psychotropic

 6         medications may not be considered grounds for

 7         termination of parental rights; providing that

 8         the parents' refusal to give their child

 9         psychotropic medications may not be considered

10         abuse or neglect; amending s. 984.19, F.S.;

11         revising provisions relating to medical

12         screenings performed on children who are placed

13         in shelter care; specifying certain conditions

14         that the screening must cover; prohibiting the

15         Department of Juvenile Justice from

16         administering or authorizing psychiatric or

17         psychological tests or psychotropic medications

18         for a child in departmental custody except with

19         the written and informed consent of the child's

20         parent or legal guardian or by court order;

21         requiring the department to ensure that

22         children who are in departmental custody

23         receive appropriate psychotropic medications

24         but have options for alternative treatments;

25         providing for rulemaking; providing that the

26         department may not provide consent for

27         administering psychotropic medications to a

28         child for whom the department is the legal

29         custodian; amending s. 985.224, F.S.; revising

30         provisions relating to medical screenings

31         performed on children who are taken into

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    Florida Senate - 2005                                  SB 2316
    12-985A-05                                          See HB 909




 1         detention; specifying certain conditions that

 2         the screening must cover; prohibiting the

 3         Department of Juvenile Justice from

 4         administering or authorizing psychiatric or

 5         psychological tests or psychotropic medications

 6         for a child in departmental custody except with

 7         the written and informed consent of the child's

 8         parent or legal guardian or by court order;

 9         requiring the Department of Juvenile Justice to

10         ensure that children who are in departmental

11         custody receive appropriate psychotropic

12         medications but have options for alternative

13         treatments; providing for rulemaking; providing

14         an effective date.

15  

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

17  

18         Section 1.  Subsections (1), (2), (4), and (13) of

19  section 39.407, Florida Statutes, are 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)  When any child is removed from the home and

24  maintained in an out-of-home placement, the department is

25  authorized to have a medical screening performed on the child

26  without authorization from the court and without consent from

27  a parent or legal custodian. Such medical screening shall be

28  performed by a competent, nonpsychiatric medical specialist

29  licensed health care professional and shall be to examine the

30  child for injury, illness, and communicable diseases and to

31  determine the need for immunization. The screening must also

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    Florida Senate - 2005                                  SB 2316
    12-985A-05                                          See HB 909




 1  include checking for nutritional deficiencies, heavy-metal

 2  toxicity, hypoglycemia, and illegal drug dependence. The

 3  department shall by rule establish the invasiveness of the

 4  medical procedures authorized to be performed under this

 5  subsection. In no case does this subsection authorize the

 6  department to consent to medical treatment for such children.

 7         (2)  When the department has performed the medical

 8  screening authorized by subsection (1), or when it is

 9  otherwise determined by a licensed health care professional

10  that a child who is in an out-of-home placement, but who has

11  not been committed to the department, is in need of medical

12  treatment, including the need for immunization, consent for

13  medical treatment shall be obtained in the following manner:

14         (a)1.  Consent to medical treatment shall be obtained

15  from a parent or legal custodian of the child; or

16         2.  A court order for such treatment shall be obtained.

17         (b)  If a parent or legal custodian of the child is

18  unavailable and his or her whereabouts cannot be reasonably

19  ascertained, and it is after normal working hours so that a

20  court order cannot reasonably be obtained, an authorized agent

21  of the department shall have the authority to consent to

22  necessary medical treatment, including immunization, for the

23  child. The authority of the department to consent to medical

24  treatment in this circumstance shall be limited to the time

25  reasonably necessary to obtain court authorization.

26         (c)  The department may not administer or authorize

27  psychiatric or psychological tests or psychotropic medications

28  for a child in its custody without the written and informed

29  consent of the child's parent or legal guardian or, if the

30  parent or guardian cannot be located, authorization by the

31  court. The department shall ensure that children under its

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    Florida Senate - 2005                                  SB 2316
    12-985A-05                                          See HB 909




 1  care receive timely access to clinically appropriate

 2  psychotropic medications that have no known contraindications

 3  for use in children, shall provide information on all known

 4  side effects of such medications, and shall provide options

 5  for alternative treatments. The department shall adopt rules

 6  to ensure that children under its care receive appropriate

 7  psychotropic medications or alternative treatments. The rules

 8  shall provide, at a minimum, a uniform process for obtaining

 9  informed consent, procedures for obtaining court

10  authorization, and information that must be provided in

11  writing when requesting authorization for the use of

12  psychotropic medications.

13         (d)(c)  If a parent or legal custodian of the child is

14  available but refuses to consent to the necessary treatment,

15  including immunization, a court order shall be required unless

16  the situation meets the definition of an emergency in s.

17  743.064 or the treatment needed is related to suspected abuse,

18  abandonment, or neglect of the child by a parent, caregiver,

19  or legal custodian. In such case, the department shall have

20  the authority to consent to necessary medical treatment. This

21  authority is limited to the time reasonably necessary to

22  obtain court authorization.

23  

24  In no case shall the department consent to sterilization,

25  abortion, or termination of life support.

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. The

29  judge may also order such child to receive mental health or

30  developmental disabilities services from a psychiatrist,

31  psychologist, or other appropriate service provider. Except as

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    Florida Senate - 2005                                  SB 2316
    12-985A-05                                          See HB 909




 1  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. Before a foster child may be given psychotropic

 9  medication, the child must first have had a comprehensive

10  physical examination by a competent, nonpsychiatric medical

11  specialist, and all possibilities of physical disease or

12  disorder, such as nutritional deficiencies, heavy-metal

13  toxicity, hypoglycemia, and illegal drug dependence, must have

14  been ruled out as causes of the child's behavior or symptoms

15  that are proposed to be addressed with psychotropic

16  medication. Such medications may be prescribed only with the

17  permission of the foster child's parent or, if the parent

18  cannot be located, authorization by the court.

19         (13)  Nothing in This section does not alter alters the

20  authority of the department to consent to medical treatment

21  for a dependent child when the child has been committed to the

22  department and the department has become the legal custodian

23  of the child. However, the department may not provide consent

24  for administering psychotropic medications to the child.

25         Section 2.  Paragraph (g) is added to subsection (1) of

26  section 39.601, Florida Statutes, and subsection (4) of that

27  section is amended, to read:

28         39.601  Case plan requirements.--

29         (1)  The department or agent of the department shall

30  develop a case plan for each child receiving services pursuant

31  to this chapter. A parent of a child may not be required nor

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    Florida Senate - 2005                                  SB 2316
    12-985A-05                                          See HB 909




 1  coerced through threat of loss of custody or parental rights

 2  to admit in the case plan to abusing, neglecting, or

 3  abandoning a child. Where dependency mediation services are

 4  available and appropriate to the best interests of the child,

 5  the court may refer the case to mediation for development of a

 6  case plan. This section does not change the provisions of s.

 7  39.807.

 8         (g)  The case plan may not require a parent to force

 9  his or her child to take psychotropic medications.

10         (4)  If In the event that the parents are unwilling or

11  unable to participate in the development of a case plan, the

12  department shall document that unwillingness or inability to

13  participate. Such documentation must be provided in writing to

14  the parent when available for the court record, and then the

15  department shall prepare a case plan conforming as nearly as

16  possible with the requirements set forth in this section. The

17  unwillingness or inability of the parents to participate in

18  the development of a case plan shall not in itself bar the

19  filing of a petition for dependency or for termination of

20  parental rights. The parents, if available, must be provided a

21  copy of the case plan and be advised that they may, at any

22  time prior to the filing of a petition for termination of

23  parental rights, enter into a case plan and that they may

24  request judicial review of any provision of the case plan with

25  which they disagree at any court review hearing set for the

26  child. The department may not threaten to terminate parental

27  rights based solely on a refusal by the parents to medicate

28  the child with psychotropic medications.

29         Section 3.  Subsection (3) is added to section 39.703,

30  Florida Statutes, to read:

31  

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    Florida Senate - 2005                                  SB 2316
    12-985A-05                                          See HB 909




 1         39.703  Initiation of termination of parental rights

 2  proceedings; judicial review.--

 3         (3)  The department may not initiate proceedings to

 4  terminate parental rights based solely on a refusal by the

 5  parents to medicate the child with psychotropic medications.

 6         Section 4.  Paragraphs (c) and (e) of subsection (1) of

 7  section 39.806, Florida Statutes, are amended to read:

 8         39.806  Grounds for termination of parental rights.--

 9         (1)  The department, the guardian ad litem, or any

10  person who has knowledge of the facts alleged or who is

11  informed of those facts and believes that they are true may

12  petition for the termination of parental rights under any of

13  the following circumstances:

14         (c)  When the parent or parents engaged in conduct

15  toward the child or toward other children that demonstrates

16  that the continuing involvement of the parent or parents in

17  the parent-child relationship threatens the life, safety,

18  well-being, or physical, mental, or emotional health of the

19  child irrespective of the provision of services. Provision of

20  services may be evidenced by proof that services were provided

21  through a previous plan or offered as a case plan from a child

22  welfare agency. The refusal of the parents to medicate the

23  child with psychotropic medications may not be considered

24  grounds for termination of parental rights.

25         (e)  A petition for termination of parental rights may

26  also be filed when a child has been adjudicated dependent, a

27  case plan has been filed with the court, and the child

28  continues to be abused, neglected, or abandoned by the

29  parents. In this case, the failure of the parents to

30  substantially comply for a period of 12 months after an

31  adjudication of the child as a dependent child or the child's

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    Florida Senate - 2005                                  SB 2316
    12-985A-05                                          See HB 909




 1  placement into shelter care, whichever came first, constitutes

 2  evidence of continuing abuse, neglect, or abandonment unless

 3  the failure to substantially comply with the case plan was due

 4  either to the lack of financial resources of the parents or to

 5  the failure of the department to make reasonable efforts to

 6  reunify the parent and child. Such 12-month period may begin

 7  to run only after the child's placement into shelter care or

 8  the entry of a disposition order placing the custody of the

 9  child with the department or a person other than the parent

10  and the approval by the court of a case plan with a goal of

11  reunification with the parent, whichever came first. The

12  refusal of the parents to medicate the child with psychotropic

13  medications may not be considered abuse or neglect.

14         Section 5.  Subsections (1), (2), (4), and (12) of

15  section 984.19, Florida Statutes, are amended to read:

16         984.19  Medical screening and treatment of child;

17  examination of parent, guardian, or person requesting

18  custody.--

19         (1)  When any child is to be placed in shelter care,

20  the department is authorized to have a medical screening

21  performed on the child without authorization from the court

22  and without consent from a parent or guardian. Such medical

23  screening shall be performed by a competent, nonpsychiatric

24  medical specialist licensed health care professional and shall

25  be to examine the child for injury, illness, and communicable

26  diseases. The screening must also include checking for

27  nutritional deficiencies, heavy-metal toxicity, hypoglycemia,

28  and illegal drug dependence. In no case does this subsection

29  authorize the department to consent to medical treatment for

30  such children.

31  

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    Florida Senate - 2005                                  SB 2316
    12-985A-05                                          See HB 909




 1         (2)  When the department has performed the medical

 2  screening authorized by subsection (1) or when it is otherwise

 3  determined by a licensed health care professional that a child

 4  is in need of medical treatment, consent for medical treatment

 5  shall be obtained in the following manner:

 6         (a)1.  Consent to medical treatment shall be obtained

 7  from a parent or guardian of the child; or

 8         2.  A court order for such treatment shall be obtained.

 9         (b)  If a parent or guardian of the child is

10  unavailable and his or her whereabouts cannot be reasonably

11  ascertained and it is after normal working hours so that a

12  court order cannot reasonably be obtained, an authorized agent

13  of the department or its provider has the authority to consent

14  to necessary medical treatment for the child. The authority of

15  the department to consent to medical treatment in this

16  circumstance is limited to the time reasonably necessary to

17  obtain court authorization.

18         (c)  If a parent or guardian of the child is available

19  but refuses to consent to the necessary treatment, a court

20  order is required, unless the situation meets the definition

21  of an emergency in s. 743.064 or the treatment needed is

22  related to suspected abuse or neglect of the child by the

23  parent or guardian. In such case, the department has the

24  authority to consent to necessary medical treatment. This

25  authority is limited to the time reasonably necessary to

26  obtain court authorization.

27         (d)  The department may not administer or authorize

28  psychiatric or psychological tests or psychotropic medications

29  for a child in its custody without the written and informed

30  consent of the child's parent or legal guardian or, if the

31  parent or guardian cannot be located, authorization by the

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    Florida Senate - 2005                                  SB 2316
    12-985A-05                                          See HB 909




 1  court. The department shall ensure that children under its

 2  care receive timely access to clinically appropriate

 3  psychotropic medications that have no known contraindications

 4  for use in children, shall provide information on all known

 5  side effects of such medications, and shall provide options

 6  for alternative treatments. The department shall adopt rules

 7  to ensure that the children under its care receive appropriate

 8  psychotropic medications or alternative treatments. The rules

 9  shall provide, at a minimum, a uniform process for obtaining

10  informed consent, procedures for obtaining court

11  authorization, and information that must be provided in

12  writing when requesting authorization for the use of

13  psychotropic medications.

14  

15  In no case may the department consent to sterilization,

16  abortion, or termination of life support.

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

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

19  licensed health care professional. The judge may also order

20  such child to receive mental health or retardation services

21  from a psychiatrist, psychologist, or other appropriate

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

23  residential facility for such services, then the procedures

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

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

26  health or retardation services in emergency situations,

27  pursuant to the procedures and criteria contained in s.

28  394.463(1) or chapter 393, whichever is applicable. Before a

29  child alleged to be or adjudicated a child in need of services

30  may be given psychotropic medication, the child must first

31  have had a comprehensive physical examination by a competent,

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    Florida Senate - 2005                                  SB 2316
    12-985A-05                                          See HB 909




 1  nonpsychiatric medical specialist and all possibilities of

 2  physical disease or disorder, such as nutritional

 3  deficiencies, heavy-metal toxicity, hypoglycemia, and illegal

 4  drug dependence, must have been ruled out as causes of the

 5  child's behavior or symptoms that are proposed to be addressed

 6  with psychotropic medication. Such medications may be

 7  prescribed only with the permission of the child's parent or,

 8  if the parent cannot be located, authorization by the court.

 9         (12)  Nothing in This section does not alter alters the

10  authority of the department to consent to medical treatment

11  for a child who has been committed to the department pursuant

12  to s. 984.22(3) and (4) and of whom the department has become

13  the legal custodian. However, the department may not provide

14  consent for administering psychotropic medications to the

15  child.

16         Section 6.  Subsections (5) through (8) of section

17  985.224, Florida Statutes, are renumbered as subsections (6)

18  through (9), respectively, subsection (2) is amended, and a

19  new subsection (5) is added to that section, to read:

20         985.224  Medical, psychiatric, psychological, substance

21  abuse, and educational examination and treatment.--

22         (2)  Whenever a child has been found to have committed

23  a delinquent act, or before such finding with the consent of

24  any parent or legal custodian of the child, the court may

25  order the child to be treated by a physician. The court may

26  also order the child to receive mental health, substance

27  abuse, or retardation services from a psychiatrist,

28  psychologist, or other appropriate service provider. If it is

29  necessary to place the child in a residential facility for

30  such services, the procedures and criteria established in

31  chapter 393, chapter 394, or chapter 397, whichever is

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    Florida Senate - 2005                                  SB 2316
    12-985A-05                                          See HB 909




 1  applicable, shall be used. Before a child may be given

 2  psychotropic medication, the child must first have had a

 3  comprehensive physical examination by a competent,

 4  nonpsychiatric medical specialist and all possibilities of

 5  physical disease or disorder, such as nutritional

 6  deficiencies, heavy-metal toxicity, hypoglycemia, and illegal

 7  drug dependence, must have been ruled out as causes of the

 8  child's behavior or symptoms that are proposed to be addressed

 9  with psychotropic medication. Such medications may be

10  prescribed only with the permission of the child's parent or,

11  if the parent cannot be located, authorization by the court.

12  After a child has been adjudicated delinquent, if an

13  educational needs assessment by the district school board or

14  the Department of Children and Family Services has been

15  previously conducted, the court shall order the report of such

16  needs assessment included in the child's court record in lieu

17  of a new assessment. For purposes of this section, an

18  educational needs assessment includes, but is not limited to,

19  reports of intelligence and achievement tests, screening for

20  learning disabilities and other handicaps, and screening for

21  the need for alternative education.

22         (5)  The Department of Juvenile Justice may not

23  administer or authorize psychiatric or psychological tests or

24  psychotropic medications for a child in its custody without

25  the written and informed consent of the child's parent or

26  legal guardian or, if the parent or guardian cannot be

27  located, authorization by the court. The department shall

28  ensure that children under its care receive timely access to

29  clinically appropriate psychotropic medications that have no

30  known contraindications for use in children, shall provide

31  information on all known side effects of such medications, and

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    Florida Senate - 2005                                  SB 2316
    12-985A-05                                          See HB 909




 1  shall provide options for alternative treatments. The

 2  department shall adopt rules to ensure that the children under

 3  its care receive appropriate psychotropic medications or

 4  alternative treatments. The rules shall provide, at a minimum,

 5  a uniform process for obtaining informed consent, procedures

 6  for obtaining court authorization, and information that must

 7  be provided in writing when requesting authorization for the

 8  use of psychotropic medications.

 9         Section 7.  This act shall take effect July 1, 2005.

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