HB 0883

CS

CHAMBER ACTION

1	The Civil Justice Committee recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5	A bill to be entitled
6	An act relating to mental health care services for minors
7	and incapacitated persons; amending s. 39.402, F.S.;
8	requiring a child's parent or legal guardian to provide
9	certain information to the department; amending s. 39.407,
10	F.S.; specifying requirements for the Department of
11	Children and Family Services with respect to providing
12	psychotropic medication to a child in the custody of the
13	department; requiring that the prescribing physician
14	attempt to obtain express and informed parental consent
15	for providing such medication; authorizing the department
16	to provide psychotropic medication without such consent
17	under certain circumstances; requiring the department to
18	provide medical information to a physician under certain
19	circumstances; requiring that the child be evaluated by a
20	physician; requiring that the department obtain court
21	authorization for providing such medication within a
22	specified period; providing requirements for a motion by
23	the department seeking court authorization to provide
24	psychotropic medication; specifying circumstances under
25	which medication may be provided in advance of a court
26	order; requiring that notice be provided to all parties if
27	the department proposes to provide psychotropic medication
28	to the child; requiring that a hearing be held if any
29	party objects; providing requirements for the hearing;
30	authorizing the court to order additional medical
31	consultation; specifying the required burden of proof with
32	respect to evidence presented at the hearing; requiring
33	that the department provide a child's medical records to
34	the court; providing requirements for court review;
35	authorizing the court to order the department to obtain a
36	medical opinion; requiring that the department adopt rules
37	to ensure that children receive appropriate psychotropic
38	medications; specifying the provisions to be included in
39	the rules; conforming a cross reference; amending s.
40	394.459, F.S., relating to the rights of patients under
41	the Florida Mental Health Act; revising provisions
42	requiring that a patient be asked to give express and
43	informed consent before admission or treatment; requiring
44	that additional information be provided with respect to
45	the risks and benefits of treatment, the dosage range of
46	medication, potential side effects, and the monitoring of
47	treatment; clarifying provisions governing the manner in
48	which consent may be revoked; requiring that facilities
49	develop a system for investigating and responding to
50	certain complaints; amending s. 743.0645, F.S.; redefining
51	the term "medical care and treatment" for purposes of
52	obtaining consent for the medical treatment of a minor;
53	providing an exception with respect to the consent
54	provided under s. 39.407, F.S.; directing the department
55	to conduct an assessment; requiring a report; providing an
56	effective date.
57
58	Be It Enacted by the Legislature of the State of Florida:
59
60	Section 1.  Subsection (11) of section 39.402, Florida
61	Statutes, is amended to read:
62	39.402  Placement in a shelter.--
63	(11)(a)  If a child is placed in a shelter pursuant to a
64	court order following a shelter hearing, the court shall require
65	in the shelter hearing order that the parents of the child, or
66	the guardian of the child's estate, if possessed of assets which
67	under law may be disbursed for the care, support, and
68	maintenance of the child, to pay, to the department or
69	institution having custody of the child, fees as established by
70	the department. When the order affects the guardianship estate,
71	a certified copy of the order shall be delivered to the judge
72	having jurisdiction of the guardianship estate. The shelter
73	order shall also require the parents to provide to the
74	department and any other state agency or party designated by the
75	court, within 28 days after entry of the shelter order, the
76	financial information necessary to accurately calculate child
77	support pursuant to s. 61.30.
78	(b)  The parent or legal guardian shall provide all known
79	medical information to the department.
80	Section 2.  Present subsections (3) through (14) of section
81	39.407, Florida Statutes, are redesignated as subsections (4)
82	through (15), respectively, a new subsection (3) is added to
83	that section, and present subsection (4) of that section is
84	amended, to read:
85	39.407  Medical, psychiatric, and psychological examination
86	and treatment of child; physical or mental examination of parent
87	or person requesting custody of child.--
88	(3)(a)1.  Except as otherwise provided in subparagraph
89	(b)1. or paragraph (e), before the department provides
90	psychotropic medications to a child in its custody, the
91	prescribing physician shall attempt to obtain express and
92	informed consent, as defined in s. 394.455(9) and as described
93	in s. 394.459(3)(a), from the child's parent or legal guardian.
94	The department must take steps necessary to facilitate the
95	inclusion of the parent in the child's consultation with the
96	physician. However, if the parental rights of the parent have
97	been terminated, the parent's location or identity is unknown or
98	cannot reasonably be ascertained, or the parent declines to give
99	express and informed consent, the department may, after
100	consultation with the prescribing physician, seek court
101	authorization to provide the psychotropic medications to the
102	child. Unless parental rights have been terminated and if it is
103	possible to do so, the department shall continue to involve the
104	parent in the decisionmaking process regarding the provision of
105	psychotropic medications. If, at any time, a parent whose
106	parental rights have not been terminated provides express and
107	informed consent to the provision of a psychotropic medication,
108	the requirements of this section that the department seek court
109	authorization do not apply to that medication until such time as
110	the parent no longer consents.
111	2.  Any time the department seeks a medical evaluation to
112	determine the need to initiate or continue a psychotropic
113	medication for a child, the department must provide to the
114	evaluating physician all pertinent medical information known to
115	the department concerning that child.
116	(b)1.  If a child who is removed from the home under s.
117	39.401 is receiving prescribed psychotropic medication at the
118	time of removal and parental authorization to continue providing
119	the medication cannot be obtained, the department may take
120	possession of the remaining medication and may continue to
121	provide the medication as prescribed until the shelter hearing,
122	if it is determined that the medication is a current
123	prescription for that child and the medication is in its
124	original container.
125	2.  If the department continues to provide the psychotropic
126	medication to a child when parental authorization cannot be
127	obtained, the department shall notify the parent or legal
128	guardian as soon as possible that the medication is being
129	provided to the child as provided in subparagraph 1. The child's
130	official departmental record must include the reason parental
131	authorization was not initially obtained and an explanation of
132	why the medication is necessary for the child's well-being.
133	3.  If the department is advised by a physician licensed
134	under chapter 458 or chapter 459 that the child should continue
135	the psychotropic medication and parental authorization has not
136	been obtained, the department shall request court authorization
137	at the shelter hearing to continue to provide the psychotropic
138	medication and shall provide to the court any information in its
139	possession in support of the request. Any authorization granted
140	at the shelter hearing may extend only until the arraignment
141	hearing on the petition for adjudication of dependency or 28
142	days following the date of removal, whichever occurs sooner.
143	4.  Before filing the dependency petition, the department
144	shall ensure that the child is evaluated by a physician licensed
145	under chapter 458 or chapter 459 to determine whether it is
146	appropriate to continue the psychotropic medication. If, as a
147	result of the evaluation, the department seeks court
148	authorization to continue the psychotropic medication, a motion
149	for such continued authorization shall be filed at the same time
150	as the dependency petition, within 21 days after the shelter
151	hearing.
152	(c)  Except as provided in paragraphs (b) and (e), the
153	department must file a motion seeking the court's authorization
154	to initially provide or continue to provide psychotropic
155	medication to a child in its legal custody. The motion must be
156	supported by a written report prepared by the department which
157	describes the efforts made to enable the prescribing physician
158	to obtain express and informed consent for providing the
159	medication to the child and other treatments considered or
160	recommended for the child. In addition, the motion must be
161	supported by the prescribing physician's signed medical report
162	providing:
163	1.  The name of the child, the name and range of the dosage
164	of the psychotropic medication, and that there is a need to
165	prescribe psychotropic medication to the child based upon a
166	diagnosed condition for which such medication is being
167	prescribed.
168	2.  A statement indicating that the physician has reviewed
169	all medical information concerning the child which has been
170	provided.
171	3.  A statement indicating that the psychotropic
172	medication, at its prescribed dosage, is appropriate for
173	treating the child's diagnosed medical condition, as well as the
174	behaviors and symptoms the medication, at its prescribed dosage,
175	is expected to address.
176	4.  An explanation of the nature and purpose of the
177	treatment; the recognized side effects, risks, and
178	contraindications of the medication; drug-interaction
179	precautions; the possible effects of stopping the medication;
180	and how the treatment will be monitored, followed by a statement
181	indicating that this explanation was provided to the child if
182	age appropriate and to the child's caregiver.
183	5.  Documentation addressing whether the psychotropic
184	medication will replace or supplement any other currently
185	prescribed medications or treatments; the length of time the
186	child is expected to be taking the medication; and any
187	additional medical, mental health, behavioral, counseling, or
188	other services that the prescribing physician recommends.
189	(d)1.  The department must notify all parties of the
190	proposed action taken under paragraph (c) in writing or by
191	whatever other method best ensures that all parties receive
192	notification of the proposed action within 48 hours after the
193	motion is filed. If any party objects to the department's
194	motion, that party shall file the objection within 2 working
195	days after being notified of the department's motion. If any
196	party files an objection to the authorization of the proposed
197	psychotropic medication, the court shall hold a hearing as soon
198	as possible before authorizing the department to initially
199	provide or to continue providing psychotropic medication to a
200	child in the legal custody of the department. At such hearing
201	and notwithstanding s. 90.803, the medical report described in
202	paragraph (c) is admissible in evidence. The prescribing
203	physician need not attend the hearing or testify unless the
204	court specifically orders such attendance or testimony or a
205	party subpoenas the physician to attend the hearing or provide
206	testimony. If, after considering any testimony received, the
207	court finds that the department's motion and the physician's
208	medical report meet the requirements of this subsection and that
209	it is in the child's best interests, the court may order that
210	the department provide or continue to provide the psychotropic
211	medication to the child without additional testimony or
212	evidence. At any hearing held under this paragraph, the court
213	shall further inquire of the department as to whether additional
214	medical, mental health, behavioral, counseling, or other
215	services are being provided to the child by the department which
216	the prescribing physician considers to be necessary or
217	beneficial in treating the child's medical condition and which
218	the physician recommends or expects to provide to the child in
219	concert with the medication. The court may order additional
220	medical consultation, including consultation with the MedConsult
221	line at the University of Florida, if available, or require the
222	department to obtain a second opinion within a reasonable
223	timeframe as established by the court, not to exceed 21 calendar
224	days, after such order based upon consideration of the best
225	interests of the child. The department must make a referral for
226	an appointment for a second opinion with a physician within 1
227	working day based on consideration of the best interests of the
228	child. The court may not order the discontinuation of prescribed
229	psychotropic medication if such order is contrary to the
230	decision of the prescribing physician unless the court first
231	obtains an opinion from a licensed psychiatrist, if available,
232	or, if not available, a physician licensed under chapter 458 or
233	chapter 459, stating that more likely than not, discontinuing
234	the medication would not cause significant harm to the child.
235	If, however, the prescribing psychiatrist specializes in mental
236	health care for children and adolescents, the court may not
237	order the discontinuation of prescribed psychotropic medication
238	unless the required opinion is also from a psychiatrist who
239	specializes in mental health care for children and adolescents.
240	The court may also order the discontinuation of prescribed
241	psychotropic medication if a child's treating physician,
242	licensed under chapter 458 or chapter 459, states that
243	continuing the prescribed psychotropic medication would cause
244	significant harm to the child due to a diagnosed nonpsychiatric
245	medical condition.
246	2.  The burden of proof at any hearing held under this
247	paragraph shall be by a preponderance of the evidence.
248	(e)1.  If the child's prescribing physician certifies in
249	the signed medical report required in paragraph (c) that delay
250	in providing a prescribed psychotropic medication would more
251	likely than not cause significant harm to the child, the
252	medication may be provided in advance of the issuance of a court
253	order. In such event, the medical report must provide the
254	specific reasons why the child may experience significant harm
255	and the nature and the extent of the potential harm. The
256	department must submit a motion seeking continuation of the
257	medication and the physician's medical report to the court, the
258	child's guardian ad litem, and all other parties within 3
259	working days after the department commences providing the
260	medication to the child. The department shall seek the order at
261	the next regularly scheduled court hearing required under this
262	chapter or within 30 days after the date of the prescription,
263	whichever occurs sooner. If any party objects to the
264	department's motion, the court shall hold a hearing within 7
265	days after the objection.
266	2.  Psychotropic medications may be administered in advance
267	of a court order in hospitals, crisis stabilization units, and
268	in statewide inpatient psychiatric programs. Within 3 working
269	days after the medication is begun, the department must seek
270	court authorization as described in paragraph (c).
271	(f)1.  The department shall fully inform the court of the
272	child's medical and behavioral status as part of the social
273	services report prepared for each judicial review hearing held
274	for a child for whom psychotropic medication has been prescribed
275	or provided under this subsection. As a part of the information
276	provided to the court, the department shall furnish copies of
277	all pertinent medical records concerning the child which have
278	been generated since the previous hearing. On its own motion or
279	on good cause shown by any party, including any guardian ad
280	litem, attorney, or attorney ad litem who has been appointed to
281	represent the child or the child's interests, the court may
282	review the status more frequently than required in this
283	subsection.
284	2.  The court may, in the best interests of the child,
285	order the department to obtain a medical opinion addressing
286	whether the continued use of the medication under the
287	circumstances is safe and medically appropriate.
288	(g)  The department shall adopt rules to ensure that
289	children receive timely access to clinically appropriate
290	psychotropic medications. These rules must include, but need not
291	be limited to, the process for determining which adjunctive
292	services are needed, the uniform process for facilitating the
293	prescribing physician's ability to obtain the express and
294	informed consent of a child's parent or guardian, the procedures
295	for obtaining court authorization for the provision of a
296	psychotropic medication, the frequency of medical monitoring and
297	reporting on the status of the child to the court, how the
298	child's parents will be involved in the treatment planning
299	process if their parental rights have not been terminated, and
300	how caretakers are to be provided information contained in the
301	physician's signed medical report. The rules must also include
302	uniform forms to be used in requesting court authorization for
303	the use of a psychotropic medication and provide for the
304	integration of each child's treatment plan and case plan. The
305	department must begin the formal rulemaking process within 90
306	days after the effective date of this act.
307	(5)(4)  A judge may order a child in an out-of-home
308	placement to be treated by a licensed health care professional
309	based on evidence that the child should receive treatment.  The
310	judge may also order such child to receive mental health or
311	developmental disabilities services from a psychiatrist,
312	psychologist, or other appropriate service provider.  Except as
313	provided in subsection (6)(5), if it is necessary to place the
314	child in a residential facility for such services, the
315	procedures and criteria established in s. 394.467 or chapter 393
316	shall be used, whichever is applicable. A child may be provided
317	developmental disabilities or mental health services in
318	emergency situations, pursuant to the procedures and criteria
319	contained in s. 394.463(1) or chapter 393, whichever is
320	applicable.
321	Section 3.  Paragraph (a) of subsection (3) and paragraph
322	(b) of subsection (4) of section 394.459, Florida Statutes, are
323	amended to read:
324	394.459  Rights of patients.--
325	(3)  RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT.--
326	(a)1.  Each patient entering treatment shall be asked to
327	give express and informed consent for admission or and
328	treatment. If the patient has been adjudicated incapacitated or
329	found to be incompetent to consent to treatment, express and
330	informed consent to treatment shall be sought instead from the
331	patient's guardian or guardian advocate.  If the patient is a
332	minor, express and informed consent for admission or and
333	treatment shall also be requested from the patient's guardian.
334	Express and informed consent for admission or and treatment of a
335	patient under 18 years of age shall be required from the
336	patient's guardian, unless the minor is seeking outpatient
337	crisis intervention services under s. 394.4784.  Express and
338	informed consent for admission or and treatment given by a
339	patient who is under 18 years of age shall not be a condition of
340	admission when the patient's guardian gives express and informed
341	consent for the patient's admission pursuant to s. 394.463 or s.
342	394.467.
343	2.  Before Prior to giving express and informed consent,
344	the following information shall be provided and explained in
345	plain language disclosed to the patient, or to the patient's
346	guardian if the patient is 18 years of age or older and has been
347	adjudicated incapacitated, or to the patient's guardian advocate
348	if the patient has been found to be incompetent to consent to
349	treatment, or to both the patient and the guardian if the
350	patient is a minor: the reason for admission or treatment;, the
351	proposed treatment;, the purpose of the treatment to be
352	provided;, the common risks, benefits, and side effects thereof;
353	the specific dosage range for the medication, when applicable;,
354	alternative treatment modalities;, the approximate length of
355	care; the potential effects of stopping treatment; how treatment
356	will be monitored;, and that any consent given for treatment by
357	a patient may be revoked orally or in writing before prior to or
358	during the treatment period by the patient or by a person who is
359	legally authorized to make health care decisions on behalf of
360	the patient, the guardian advocate, or the guardian.
361	(4)  QUALITY OF TREATMENT.--
362	(b)  Receiving and treatment Facilities shall develop and
363	maintain, in a form accessible to and readily understandable by
364	patients and consistent with rules adopted by the department,
365	the following:
366	1.  Criteria, procedures, and required staff training for
367	any use of close or elevated levels of supervision, of
368	restraint, seclusion, or isolation, or of emergency treatment
369	orders, and for the use of bodily control and physical
370	management techniques.
371	2.  Procedures for documenting, monitoring, and requiring
372	clinical review of all uses of the procedures described in
373	subparagraph 1. and for documenting and requiring review of any
374	incidents resulting in injury to patients.
375	3.  A system for investigating, tracking, managing, and
376	responding to the review of complaints by persons receiving
377	services or individuals acting on their behalf patients or their
378	families or guardians.
379	Section 4.  Paragraph (b) of subsection (1) of section
380	743.0645, Florida Statutes, is amended to read:
381	743.0645  Other persons who may consent to medical care or
382	treatment of a minor.--
383	(1)  As used in this section, the term:
384	(b)  "Medical care and treatment" includes ordinary and
385	necessary medical and dental examination and treatment,
386	including blood testing, preventive care including ordinary
387	immunizations, tuberculin testing, and well-child care, but does
388	not include surgery, general anesthesia, provision of
389	psychotropic medications, or other extraordinary procedures for
390	which a separate court order, power of attorney, or informed
391	consent as provided by law is required, except as provided in s.
392	39.407(3).
393	Section 5.  The Department of Children and Family Services
394	shall assess and document the positive and negative fiscal
395	impact of the provisions of this act on the department, taking
396	into consideration costs incurred prior to July 1, 2005. The
397	department shall submit a report with its findings to the
398	President of the Senate and the Speaker of the House of
399	Representatives by February 1, 2006.
400	Section 6.  This act shall take effect July 1, 2005.

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