HB 0883

1	A bill to be entitled
2	An act relating to health care services for minors and
3	incapacitated persons; amending s. 39.407, F.S.;
4	specifying requirements for the Department of Children and
5	Family Services with respect to providing psychotropic
6	medication to a child in the custody of the department;
7	requiring that the prescribing physician attempt to obtain
8	express and informed parental consent for providing such
9	medication; authorizing the department to provide
10	psychotropic medication without such consent under certain
11	circumstances; requiring that the child be evaluated by a
12	physician; requiring that the department obtain court
13	authorization for providing such medication within a
14	specified period; providing requirements for a motion by
15	the department seeking court authorization to provide
16	psychotropic medication; specifying circumstances under
17	which medication may be provided in advance of a court
18	order; requiring that a hearing be held on the motion to
19	provide psychotropic medication to a child under certain
20	circumstances; specifying the required burden of proof
21	with respect to evidence presented at the hearing;
22	requiring that the department provide a child's medical
23	records to the court; providing requirements for court
24	review; authorizing the court to order the department to
25	obtain a medical opinion; requiring the department to
26	adopt rules governing the procedures for determining the
27	services needed, obtaining parental consent, and obtaining
28	court authorization for the use of psychotropic
29	medication; conforming a cross reference; amending s.
30	394.459, F.S., relating to the rights of patients under
31	the Florida Mental Health Act; revising provisions
32	requiring that a patient be asked to give express and
33	informed consent before admission or treatment; requiring
34	that additional information be provided with respect to
35	the risks and benefits of treatment, the dosage range of
36	medication, potential side effects, and the monitoring of
37	treatment; clarifying provisions governing the manner in
38	which consent may be revoked; amending s. 743.0645, F.S.;
39	redefining the term "medical care and treatment" for
40	purposes of obtaining consent for the medical treatment of
41	a minor; providing an exception with respect to the
42	consent provided under s. 39.407, F.S.; providing an
43	effective date.
44
45	Be It Enacted by the Legislature of the State of Florida:
46
47	Section 1.  Present subsections (3) through (14) of section
48	39.407, Florida Statutes, are redesignated as subsections (4)
49	through (15), respectively, a new subsection (3) is added to
50	that section, and present subsection (4) of that section is
51	amended, to read:
52	39.407  Medical, psychiatric, and psychological examination
53	and treatment of child; physical or mental examination of parent
54	or person requesting custody of child.--
55	(3)(a)  Except as otherwise provided in subparagraph (b)1.
56	or paragraph (e), before the department provides psychotropic
57	medications to a child in its custody, the prescribing physician
58	shall attempt to obtain express and informed consent, as defined
59	in s. 394.455(9) and as described in s. 394.459(3)(a), from the
60	child's parent or legal guardian. However, if the parental
61	rights of the parent have been terminated, the parent's location
62	or identity is unknown or cannot reasonably be ascertained, or
63	the parent declines to give express and informed consent, the
64	department may, after consultation with the prescribing
65	physician, seek court authorization to provide the psychotropic
66	medications to the child. Unless parental rights have been
67	terminated and if it is possible to do so, the department shall
68	continue to involve the parent in the decisionmaking process
69	regarding the provision of psychotropic medications. If, at any
70	time, a parent whose parental rights have not been terminated
71	provides express and informed consent to the provision of a
72	psychotropic medication, the requirements of this section that
73	the department seek court authorization do not apply to that
74	medication until such time as the parent no longer consents.
75	(b)1.  If a child who is removed from the home under s.
76	39.401 is receiving prescribed psychotropic medication at the
77	time of removal and parental authorization to continue providing
78	the medication cannot be obtained, the department may take
79	possession of the remaining medication and may authorize the
80	continued provision of the medication as prescribed until the
81	shelter hearing if it is determined that the medication is a
82	current prescription for that child and the medication is in its
83	original container.
84	2.  If the department authorizes the continued provision of
85	the psychotropic medication to a child when parental
86	authorization cannot be obtained, the department shall notify
87	the parent or legal guardian as soon as possible that the
88	medication is being provided to the child as provided in
89	subparagraph 1. The child's official departmental record must
90	include the reason parental authorization was not initially
91	obtained and an explanation of why the medication is necessary
92	for the child's well-being.
93	3.  If the department is advised by a physician licensed
94	under chapter 458 or chapter 459 that the child should continue
95	the psychotropic medication and express and informed parental
96	consent has not been obtained, the department shall request
97	court authorization at the shelter hearing to continue to
98	provide the psychotropic medication and shall provide to the
99	court any information in its possession in support of the
100	request. Any authorization granted at the shelter hearing may
101	extend only until the arraignment hearing on the dependency
102	motion or 28 days following the date of removal, whichever
103	occurs sooner.
104	4.  Before filing the dependency petition, the department
105	shall ensure that the child is evaluated by a physician licensed
106	under chapter 458 or chapter 459 to determine whether it is
107	appropriate to continue the psychotropic medication. If, as a
108	result of the evaluation, the department seeks court
109	authorization to continue the psychotropic medication, a motion
110	for such continued authorization shall be filed at the same time
111	as the dependency petition within 21 days after the shelter
112	hearing.
113	(c)  Except as provided in paragraph (b), the department
114	must file a motion seeking the court's authorization to
115	initially provide or continue to provide psychotropic medication
116	to a child in its legal custody. The motion must be supported by
117	a written report prepared by the department which describes the
118	efforts made to enable the prescribing physician to obtain
119	express and informed consent for providing the medication to the
120	child and other treatments considered or recommended for the
121	child. In addition, the motion must be supported by the
122	prescribing physician's signed medical report providing:
123	1.  The name of the child, the name and range of the dosage
124	of the psychotropic medication, and that there is a need to
125	prescribe psychotropic medication to the child based upon a
126	diagnosed condition for which such medication is being
127	prescribed.
128	2.  A statement indicating that the psychotropic
129	medication, at its prescribed dosage, is appropriate for
130	treating the child's diagnosed medical condition as well as the
131	behaviors and symptoms the medication, at its prescribed dosage,
132	is expected to address.
133	3.  An explanation of the nature and purpose of the
134	treatment; the recognized side effects, risks, and
135	contraindications of the medication; drug interaction
136	precautions; the possible effects of stopping the medication;
137	and how the treatment will be monitored, followed by a statement
138	indicating that this explanation was provided to the child, if
139	age appropriate, and to the child's caregiver.
140	4.  Documentation addressing whether the psychotropic
141	medication will replace or supplement any other currently
142	prescribed medications or treatments; the length of time the
143	child is expected to be taking the medication; and any
144	additional medical, mental health, behavioral, counseling, or
145	other services that the prescribing physician recommends.
146	(d)1.  If any party objects to the department's motion
147	under paragraph (c), the court shall hold a hearing before
148	authorizing the department to initially provide or to continue
149	providing psychotropic medication to a child in the legal
150	custody of the department. At such hearing and notwithstanding
151	s. 90.803, the medical report described in paragraph (c) is
152	admissible in evidence. The prescribing physician need not
153	attend the hearing or testify unless the court specifically
154	orders such attendance or testimony. If the court finds that the
155	department's motion and the physician's medical report meet the
156	requirements of this subsection and that it is in the child's
157	best interests, the court may order that the department provide
158	or continue to provide the psychotropic medication to the child
159	without additional testimony or evidence. The court shall
160	further inquire of the department as to whether additional
161	medical, mental health, behavioral, counseling, or other
162	services are being provided to the child by the department which
163	the prescribing physician considers to be necessary or
164	beneficial in treating the child's medical condition and that
165	the physician recommends or expects to provide to the child in
166	concert with the medication. The court may order additional
167	medical consultation, including obtaining a second opinion
168	within 5 working days after such order, based upon
169	considerations of the best interests of the child. The court may
170	not order the discontinuation of prescribed psychotropic
171	medication if such order is contrary to the decision of the
172	prescribing physician unless the court first obtains a second
173	opinion from a licensed psychiatrist, if available, or, if not
174	available, a physician licensed under chapter 458 or chapter
175	459, stating that the psychotropic medication should be
176	discontinued.
177	2.  The burden of proof at any hearing held under this
178	paragraph shall be by a preponderance of the evidence.
179	(e)  If the child's prescribing physician certifies in the
180	signed medical report required in paragraph (c) that delay in
181	providing a prescribed psychotropic medication would more likely
182	than not cause significant harm to the child, the medication may
183	be provided in advance of the issuance of a court order. In such
184	event, the medical report must provide the specific reasons why
185	the child may experience significant harm and the nature and the
186	extent of the potential harm. The department must submit a
187	motion seeking continuation of the medication and the
188	physician's medical report to the court, the child's guardian ad
189	litem, and all other parties within 3 working days after the
190	department commences providing the medication to the child. The
191	department shall seek the order at the next regularly scheduled
192	court hearing required under this chapter, or within 30 days
193	after the date of the prescription, whichever occurs sooner. If
194	any party objects to the department's motion, the court shall
195	hold a hearing within 7 days.
196	(f)1.  The department shall fully inform the court of the
197	child's medical and behavioral status as part of the social
198	services report prepared for each judicial review hearing held
199	for a child for whom psychotropic medication has been prescribed
200	or provided under this subsection. As a part of the information
201	provided to the court, the department shall furnish copies of
202	all pertinent medical records concerning the child which have
203	been generated since the previous hearing. On its own motion or
204	on good cause shown by any party, including any guardian ad
205	litem, attorney, or attorney ad litem who has been appointed to
206	represent the child or the child's interests, the court may
207	review the status more frequently than required in this
208	subsection.
209	2.  The court may, in the best interests of the child,
210	order the department to obtain a medical opinion that the
211	continued use of the medication under the circumstances is safe
212	and medically appropriate.
213	(g)  The department shall adopt rules to ensure that
214	children receive timely access to clinically appropriate
215	psychotropic medications. These rules must describe the process
216	for determining which adjunctive services are needed, the
217	uniform process for facilitating the prescribing physician's
218	ability to obtain the express and informed consent of a child's
219	parent or guardian, the procedures for obtaining court
220	authorization for the provision of a psychotropic medication,
221	and the frequency of medical monitoring and reporting on the
222	status of the child to the court. The rules must also include
223	uniform forms to be used in requesting court authorization for
224	the use of a psychotropic medication and provide for the
225	integration of each child's treatment plan and case plan. The
226	department must begin the formal rulemaking process within 90
227	days after the effective date of this act.
228	(5)(4)  A judge may order a child in an out-of-home
229	placement to be treated by a licensed health care professional
230	based on evidence that the child should receive treatment.  The
231	judge may also order such child to receive mental health or
232	developmental disabilities services from a psychiatrist,
233	psychologist, or other appropriate service provider.  Except as
234	provided in subsection (6) (5), if it is necessary to place the
235	child in a residential facility for such services, the
236	procedures and criteria established in s. 394.467 or chapter 393
237	shall be used, whichever is applicable. A child may be provided
238	developmental disabilities or mental health services in
239	emergency situations, pursuant to the procedures and criteria
240	contained in s. 394.463(1) or chapter 393, whichever is
241	applicable.
242	Section 2.  Paragraph (a) of subsection (3) of section
243	394.459, Florida Statutes, is amended to read:
244	394.459  Rights of patients.--
245	(3)  RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT.--
246	(a)1.  Each patient entering treatment shall be asked to
247	give express and informed consent for admission or and
248	treatment.  If the patient has been adjudicated incapacitated or
249	found to be incompetent to consent to treatment, express and
250	informed consent to treatment shall be sought instead from the
251	patient's guardian or guardian advocate.  If the patient is a
252	minor, express and informed consent for admission or and
253	treatment shall also be requested from the patient's guardian.
254	Express and informed consent for admission or and treatment of a
255	patient under 18 years of age shall be required from the
256	patient's guardian, unless the minor is seeking outpatient
257	crisis intervention services under s. 394.4784.  Express and
258	informed consent for admission or and treatment given by a
259	patient who is under 18 years of age shall not be a condition of
260	admission when the patient's guardian gives express and informed
261	consent for the patient's admission pursuant to s. 394.463 or s.
262	394.467.
263	2.  Before Prior to giving express and informed consent,
264	the following information shall be provided and explained in
265	plain language disclosed to the patient, or to the patient's
266	guardian if the patient is 18 years of age or older and has been
267	adjudicated incapacitated, or to the patient's guardian advocate
268	if the patient has been found to be incompetent to consent to
269	treatment, or to both the patient and the guardian if the
270	patient is a minor: the reason for admission or treatment;, the
271	proposed treatment;, the purpose of the treatment to be
272	provided;, the common risks, benefits, and side effects thereof;
273	the specific dosage range for the medication, when applicable;,
274	alternative treatment modalities;, the approximate length of
275	care; the potential effects of stopping treatment; how treatment
276	will be monitored;, and that any consent given for treatment by
277	a patient may be revoked orally or in writing before prior to or
278	during the treatment period by the patient or by a person who is
279	legally authorized to make health care decisions on behalf of
280	the patient, the guardian advocate, or the guardian.
281	Section 3.  Paragraph (b) of subsection (1) of section
282	743.0645, Florida Statutes, is amended to read:
283	743.0645  Other persons who may consent to medical care or
284	treatment of a minor.--
285	(1)  As used in this section, the term:
286	(b)  "Medical care and treatment" includes ordinary and
287	necessary medical and dental examination and treatment,
288	including blood testing, preventive care including ordinary
289	immunizations, tuberculin testing, and well-child care, but does
290	not include surgery, general anesthesia, provision of
291	psychotropic medications, or other extraordinary procedures for
292	which a separate court order, power of attorney, or informed
293	consent as provided by law is required, except as provided in s.
294	39.407(3).
295	Section 4.  This act shall take effect July 1, 2005.

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