Florida Senate - 2009 CS for SB 2018
By the Committee on Criminal Justice; and Senators Fasano,
Joyner, Crist, Wise, Rich, Gelber, Dockery, Siplin, Diaz de la
Portilla, King, and Wilson
591-05196A-09 20092018c1
1 A bill to be entitled
2 An act relating to mental health; creating s.
3 394.4656, F.S.; creating the Community Mental Health
4 and Substance Abuse Treatment and Crime Reduction Act;
5 providing legislative findings and intent; providing
6 goals for the community mental health and substance
7 abuse forensic treatment system; defining terms;
8 requiring the Department of Children and Family
9 Services, in consultation with the Agency for Health
10 Care Administration, to develop and implement a
11 community mental health and substance abuse forensic
12 treatment system; providing initiatives and strategies
13 for the community forensic system; detailing the
14 services to be provided in the community forensic
15 system; setting forth the eligibility criteria for
16 treatment in the system; authorizing the department to
17 develop a continuum of services to implement the
18 Community Mental Health and Substance Abuse Treatment
19 and Crime Reduction Act; specifying the services and
20 functions the department must undertake; authorizing
21 the department to establish pilot sites within the
22 state where the community mental health and substance
23 abuse forensic treatment system will be implemented;
24 amending s. 394.655, F.S.; providing additional
25 functions of the Criminal Justice, Mental Health, and
26 Substance Abuse Policy Council; amending s. 394.656,
27 F.S.; requiring the department and the agency to
28 cooperate with counties that receive grants funding
29 under the Criminal Justice, Mental Health, and
30 Substance Abuse Reinvestment Grant Program; amending
31 s. 394.657, F.S.; requiring county councils to consult
32 with local government when planning or implementing
33 the Community Mental Health and Substance Abuse
34 Treatment and Crime Reduction Act; amending s.
35 409.906, F.S.; adding home and community-based mental
36 health services to the optional Medicaid services
37 offered by the state Medicaid program; amending s.
38 409.912, F.S.; exempting persons who have serious and
39 persistent mental illnesses and who are receiving
40 services under the Community Mental Health and
41 Substance Abuse Crime Reduction Act from MediPass and
42 managed care plans; amending s. 916.107, F.S.;
43 specifying treatment procedures for a client admitted
44 to a state forensic mental health treatment facility
45 who lacks the capacity to make an informed decision
46 regarding mental health treatment at the time of
47 admission; amending s. 916.111, F.S.; providing for
48 forensic evaluator training for mental health experts;
49 amending s. 916.115, F.S.; requiring court-appointed
50 experts to have completed forensic evaluator training;
51 requiring the court-appointed expert to be a
52 psychiatrist or a licensed psychologist; requiring the
53 Department of Children and Family Services to maintain
54 and annually provide the courts with a forensic
55 evaluator registry; amending s. 916.13, F.S.;
56 providing timeframes for competency hearings to be
57 held; amending s. 916.15, F.S.; providing timeframes
58 for commitment hearings to be held; amending s.
59 916.17, F.S.; requiring that certain defendants be
60 placed in a community residential facility for
61 competency restoration in demonstration areas
62 established under the Community Mental Health and
63 Substance Abuse Treatment and Crime Reduction Act;
64 providing exceptions; amending s. 985.19, F.S.;
65 authorizing the department to develop and contract for
66 training mental health professionals to perform
67 forensic evaluations, the protocols and procedures to
68 be used, and standardizing the criteria used; revising
69 requirements relating to the forensic evaluator
70 training program that appointed experts must complete;
71 providing an effective date.
72
73 Be It Enacted by the Legislature of the State of Florida:
74
75 Section 1. Section 394.4656, Florida Statutes, is created
76 to read:
77 394.4656 Community Mental Health and Substance Abuse
78 Treatment and Crime Reduction Act.—
79 (1) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
80 that many jail inmates who have serious mental illnesses and who
81 are committed to state forensic mental health treatment
82 facilities for competency restoration could be served more
83 effectively and at less cost in community-based alternative
84 programs. The Legislature further finds that many people who
85 have serious mental illnesses and who have been discharged from
86 state forensic mental health treatment facilities could avoid
87 recidivism to the criminal justice and forensic mental health
88 systems if they received specialized treatment in the community.
89 Therefore, it is the intent of the Legislature to create the
90 Community Mental Health and Substance Abuse Treatment and Crime
91 Reduction Act to serve individuals who have mental illnesses or
92 co-occurring mental illnesses and substance abuse disorders and
93 who are involved in or at risk of entering state forensic mental
94 health treatment facilities, prisons, jails, juvenile justice
95 centers, or state civil mental health treatment facilities.
96 (2) GOALS.—The goals of the community mental health and
97 substance abuse forensic treatment system are to:
98 (a) Ensure public safety.
99 (b) Ensure that services to restore forensic competency are
100 provided in the least restrictive, least costly, and most
101 effective environment.
102 (c) Provide competency-restoration services in the
103 community if appropriate, based on consideration of public
104 safety, needs of the individual, and available resources.
105 (d) Reduce admissions for competency restoration to state
106 forensic mental health treatment facilities.
107 (e) Reduce rates of arrest, incarceration, and
108 reincarceration.
109 (f) Increase outreach and services to individuals at risk
110 for involvement in the criminal justice, juvenile justice, or
111 forensic mental health systems.
112 (g) Support collaboration among state and local
113 stakeholders, including law enforcement agencies, courts, state
114 agencies, jails, county government, service providers,
115 individuals with mental illnesses or co-occurring mental
116 illnesses and substance abuse disorders, family members,
117 advocates, and other community members.
118 (3) DEFINITIONS.—As used in this section, the term:
119 (a) “Agency” means the Agency for Health Care
120 Administration.
121 (b) “Best practices” means treatment services that
122 incorporate the most effective and acceptable interventions
123 available in the care and treatment of individuals who are
124 diagnosed as having a mental illness or a co-occurring mental
125 illness and substance abuse disorder.
126 (c) “Community forensic system” means the community mental
127 health and substance abuse forensic treatment system, including
128 the comprehensive set of services and supports provided to
129 individuals involved in or at risk of becoming involved in the
130 criminal justice system.
131 (d) “Community residential facility” means a community
132 based residential treatment setting licensed by the agency under
133 s. 394.875 or s. 429.075, or by the department under s. 397.401.
134 (e) “Evidence-based practices” means interventions and
135 strategies that, based on the best available empirical research,
136 demonstrate effective and efficient outcomes in the care and
137 treatment of individuals who are diagnosed as having mental
138 illnesses or co-occurring mental illnesses and substance use
139 disorders.
140 (f) “Forensic intensive care management” means activities
141 addressing the comprehensive psychiatric, social, and support
142 needs of individuals who are diagnosed as having serious and
143 persistent mental illnesses, co-occurring disorders, or severe
144 emotional disturbances, and who are involved in the justice
145 system and receiving services under this section. Activities
146 include, but are not limited to, service planning, service
147 coordination, monitoring, and assistance with accessing federal,
148 state, and local benefits necessary to sustain a person in the
149 community.
150 (g) “Geographic area” means a county, circuit, regional, or
151 multiregional area in this state.
152 (4) SERVICE SYSTEM.—The department, in consultation with
153 the agency, may develop and implement a community mental health
154 and substance abuse forensic treatment system. The system must
155 build on local community diversion and reentry initiatives and
156 strategies that are consistent with those identified and
157 supported under s. 394.658(1), or with geographic areas that
158 have piloted a community-based diversion program .
159 (a) The community forensic system initiatives and
160 strategies may include, but are not limited to:
161 1. Mental health courts.
162 2. Diversion programs.
163 3. Alternative prosecution and sentencing techniques.
164 4. Crisis intervention teams.
165 5. Specialized training for criminal justice, juvenile
166 justice, and treatment services professionals.
167 6. Specialized probation officers at the state and county
168 levels to serve individuals under correctional control in the
169 community.
170 7. Collateral services such as supported, transitional, and
171 permanent housing, and supported employment.
172 8. Reentry services to create or expand mental health and
173 co-occurring treatment and supports for affected individuals.
174 (b) The community forensic system must include a
175 comprehensive continuum of care and services that use evidence
176 based and best practices to address co-occurring mental health
177 and substance abuse disorder, including the following minimum
178 services and elements:
179 1. Competency-restoration and treatment services provided
180 in a variety of settings from least restrictive to progressively
181 more restrictive settings.
182 2. Forensic intensive care management.
183 3. Supported housing.
184 4. Supported employment.
185 5. Medication management.
186 6. Trauma-specific services for treatment of the effects of
187 sexual, physical, and emotional abuse or trauma experienced by
188 individuals who have mental illnesses and are involved in the
189 criminal justice system.
190 7. Residential services to address crisis episodes and
191 short-term residential treatment.
192 8. Treatment for co-occurring mental health and substance
193 use disorders.
194 9. Outreach and education for individuals and their
195 families who are at risk of further involvement with the justice
196 system.
197 10. The use of involuntary outpatient placement for
198 individuals meeting the criteria as provided under s. 394.4655
199 and conditional release for individuals adjudicated incompetent
200 to proceed due to mental illness or not guilty by reason of
201 insanity as provided under s. 916.17.
202 11. Other services or supports as identified.
203 (5) ELIGIBILITY.—The department may serve individuals who
204 meet the criteria in this subsection. The department must give
205 highest priority for services under this section to:
206 (a) Adults who are adjudicated incompetent to proceed or
207 not guilty by reason of insanity under chapter 916 and ordered
208 by the court into forensic commitment, whose current most
209 serious charge is a felony of the third degree or a felony of
210 the second degree if the felony did not involve violence, and
211 who meet public safety criteria established by the court and
212 treatability criteria established by the department for
213 placement in a community setting.
214 (b) Adults who experience serious and persistent mental
215 illnesses reentering the community from state prisons.
216 (c) Adults who have been committed to a state forensic
217 mental health treatment facility after being adjudicated
218 incompetent to proceed or not guilty by reason of insanity, and
219 who are released or who are pending release to the community by
220 the court after completing competency restoration services or
221 being found to no longer meet the criteria for continued
222 commitment placement.
223 (d) Adults who experience serious and persistent mental
224 illnesses, who have a history of involvement in the justice
225 system, or who are at risk of entering or who are already
226 involved with the criminal justice system.
227 (e) Children deemed incompetent to proceed under s. 985.19.
228 (6) DEPARTMENT RESPONSIBILITIES.—The department may develop
229 a continuum of services to implement this section in accordance
230 with subsection (4). The department may:
231 (a) Define requirements for all providers in the community
232 forensic system.
233 (b) Implement demonstration sites for participation, based
234 on criteria in subsection (7), which demonstrate active and
235 sustained participation in community collaborations.
236 (c) Enter into memoranda of agreement with county planning
237 councils or committees identified in s. 394.657 that
238 participated in the criminal justice, mental health, and
239 substance abuse reinvestment grant program pursuant to s.
240 394.656, or that piloted a community-based diversion program.
241 (d) Identify providers to implement the continuum of
242 services. The department shall consult with county planning
243 councils or committees in the selection process.
244 (e) Establish performance measures and reporting
245 requirements for providers participating in the community
246 forensic system. The measures shall include, at a minimum:
247 1. The number of individuals diverted from state forensic
248 ment al health treatment facilities.
249 2. The number of individuals diverted from the criminal
250 justice system.
251 3. The rates of arrest, incarceration, and reincarceration
252 for new criminal offenses.
253 4. The rates of employment.
254 5. The annual number of days in a crisis stabilization
255 unit, detoxification facility, short-term residential treatment
256 program, state civil mental health treatment facility, or state
257 forensic mental health treatment facility.
258 (f) Monitor contracts for compliance with terms and assess
259 performance under contracts; provide an annual report to the
260 Governor, the President of the Senate, the Speaker of the House
261 of Representatives, the Chief Justice of the Florida Supreme
262 Court, and the State Courts Administrator on the implementation
263 status of the Community Mental Health and Substance Abuse
264 Treatment and Crime Reduction Act.
265 (7) IMPLEMENTATION.—The department may implement this
266 section within available resources. In expectation of statewide
267 implementation, the department may establish demonstration sites
268 in the following geographic areas of the state: Escambia, Leon,
269 and Dade counties and the Tampa Bay area. Future expansion shall
270 be based on findings of community readiness and the potential
271 for affecting the greatest number of individuals entering the
272 forensic mental health and criminal justice systems. Criteria
273 for selection may include:
274 (a) Community readiness to deliver the services outlined in
275 subsection (4), demonstrated by well-established community
276 collaboration plans and local partnerships as evidenced by
277 memoranda of agreement that are submitted to and approved by the
278 department.
279 (b) A high bed-utilization rate at state forensic mental
280 health treatment facilities.
281 (c) Successful application for implementation grant funding
282 under the Criminal Justice, Mental Health, and Substance Abuse
283 Reinvestment Grant Program.
284 (d) Other elements determined by the department in
285 consultation with the agency.
286 Section 2. Paragraph (b) of subsection (11) of section
287 394.655, Florida Statutes, is amended to read:
288 394.655 The Substance Abuse and Mental Health Corporation;
289 powers and duties; composition; evaluation and reporting
290 requirements.—
291 (11)
292 (b) The purpose of the council shall be to:
293 1. Align policy initiatives in the criminal justice,
294 juvenile justice, and mental health, and substance abuse systems
295 to ensure the most effective use of resources and to coordinate
296 the development of legislative proposals and budget requests
297 relating to the shared needs of adults and juveniles who have a
298 mental illness, substance abuse disorder, or co-occurring mental
299 health and substance abuse disorders who are in, or at risk of
300 entering, the criminal justice system.
301 2. Provide consultation in the development of comprehensive
302 and cost-effective community-based mental health and substance
303 abuse treatment services for individuals who have mental
304 illnesses and who are receiving services in state forensic
305 mental health treatment facilities, juvenile secure residential
306 treatment centers specializing in competency training, prisons,
307 jails, and juvenile justice centers.
308 Section 3. Subsection (1) of section 394.656, Florida
309 Statutes, is amended to read:
310 394.656 Criminal Justice, Mental Health, and Substance
311 Abuse Reinvestment Grant Program.—
312 (1) There is created within the Department of Children and
313 Family Services the Criminal Justice, Mental Health, and
314 Substance Abuse Reinvestment Grant Program. The purpose of the
315 program is to provide funding to counties to with which they can
316 plan, implement, or expand initiatives that increase public
317 safety, avert increased spending on criminal justice, and
318 improve the accessibility and effectiveness of treatment
319 services for adults and juveniles who have a mental illness,
320 substance abuse disorder, or co-occurring mental health and
321 substance abuse disorders and who are in, or at risk of
322 entering, the criminal or juvenile justice systems. In
323 implementing the Community Mental Health and Substance Abuse
324 Treatment and Crime Reduction Act, the department and agency
325 shall work in coordination with counties that received grants
326 under the program or piloted a community-based diversion
327 program.
328 Section 4. Subsection (1) of section 394.657, Florida
329 Statutes, is amended to read:
330 394.657 County planning councils or committees.—
331 (1) Each board of county commissioners shall designate the
332 county public safety coordinating council established under s.
333 951.26, or designate another criminal or juvenile justice mental
334 health and substance abuse council or committee, as the planning
335 council or committee. The public safety coordinating council or
336 other designated criminal or juvenile justice mental health and
337 substance abuse council or committee shall:,
338 (a) Coordinate in coordination with the county offices of
339 planning and budget to, shall make a formal recommendation to
340 the board of county commissioners regarding how the Criminal
341 Justice, Mental Health, and Substance Abuse Reinvestment Grant
342 Program may best be implemented within a community. The board of
343 county commissioners may assign any entity to prepare the
344 application on behalf of the county administration for
345 submission to the corporation for review. A county may join with
346 one or more counties to form a consortium and use a regional
347 public safety coordinating council or another county-designated
348 regional criminal or juvenile justice mental health and
349 substance abuse planning council or committee for the geographic
350 area represented by the member counties.
351 (b) Consult with local governing bodies when planning or
352 implementing the Community Mental Health and Substance Abuse
353 Treatment and Crime Reduction Act.
354 Section 5. Subsection (28) is added to section 409.906,
355 Florida Statutes, to read:
356 409.906 Optional Medicaid services.—Subject to specific
357 appropriations, the agency may make payments for services which
358 are optional to the state under Title XIX of the Social Security
359 Act and are furnished by Medicaid providers to recipients who
360 are determined to be eligible on the dates on which the services
361 were provided. Any optional service that is provided shall be
362 provided only when medically necessary and in accordance with
363 state and federal law. Optional services rendered by providers
364 in mobile units to Medicaid recipients may be restricted or
365 prohibited by the agency. Nothing in this section shall be
366 construed to prevent or limit the agency from adjusting fees,
367 reimbursement rates, lengths of stay, number of visits, or
368 number of services, or making any other adjustments necessary to
369 comply with the availability of moneys and any limitations or
370 directions provided for in the General Appropriations Act or
371 chapter 216. If necessary to safeguard the state’s systems of
372 providing services to elderly and disabled persons and subject
373 to the notice and review provisions of s. 216.177, the Governor
374 may direct the Agency for Health Care Administration to amend
375 the Medicaid state plan to delete the optional Medicaid service
376 known as “Intermediate Care Facilities for the Developmentally
377 Disabled.” Optional services may include:
378 (28) HOME AND COMMUNITY-BASED SERVICES.—The agency,
379 contingent upon appropriation of funds for this purpose, may
380 seek federal approval through a state plan amendment to
381 implement home and community-based services under the authority
382 of and in compliance with s. 1915i of the Social Security Act
383 for services provided to individuals who have been determined by
384 an independent evaluation to have disabilities that cause them
385 to become, or put them at risk of becoming, involved with the
386 criminal justice system due to their mental illness. In
387 accordance with allowances under s. 1915i of the Social Security
388 Act, these services may be limited to a select number of
389 eligible individuals in select geographic areas, as identified
390 by the agency. Eligible individuals may have incomes up to 150
391 percent of the federal poverty level. The agency shall
392 coordinate with the department to select and define the services
393 that will be submitted in the state plan amendment and provided
394 under this subsection. The agency shall disenroll individuals
395 receiving services under this subsection from MediPass, or any
396 capitated or other Medicaid-managed care arrangement. Enrollment
397 in state plan services may not exceed 1,000 individuals unless
398 additional approval is obtained from the Legislature. The agency
399 must receive approval from the Legislature or Legislative Budget
400 Commission for any funding beyond that provided within initial
401 implementation revenues. After July 1, 2012, the agency may seek
402 authority to capitate Medicaid behavioral health services under
403 this subsection.
404 Section 6. Subsection (54) is added to section 409.912,
405 Florida Statutes, to read:
406 409.912 Cost-effective purchasing of health care.—The
407 agency shall purchase goods and services for Medicaid recipients
408 in the most cost-effective manner consistent with the delivery
409 of quality medical care. To ensure that medical services are
410 effectively utilized, the agency may, in any case, require a
411 confirmation or second physician’s opinion of the correct
412 diagnosis for purposes of authorizing future services under the
413 Medicaid program. This section does not restrict access to
414 emergency services or poststabilization care services as defined
415 in 42 C.F.R. part 438.114. Such confirmation or second opinion
416 shall be rendered in a manner approved by the agency. The agency
417 shall maximize the use of prepaid per capita and prepaid
418 aggregate fixed-sum basis services when appropriate and other
419 alternative service delivery and reimbursement methodologies,
420 including competitive bidding pursuant to s. 287.057, designed
421 to facilitate the cost-effective purchase of a case-managed
422 continuum of care. The agency shall also require providers to
423 minimize the exposure of recipients to the need for acute
424 inpatient, custodial, and other institutional care and the
425 inappropriate or unnecessary use of high-cost services. The
426 agency shall contract with a vendor to monitor and evaluate the
427 clinical practice patterns of providers in order to identify
428 trends that are outside the normal practice patterns of a
429 provider’s professional peers or the national guidelines of a
430 provider’s professional association. The vendor must be able to
431 provide information and counseling to a provider whose practice
432 patterns are outside the norms, in consultation with the agency,
433 to improve patient care and reduce inappropriate utilization.
434 The agency may mandate prior authorization, drug therapy
435 management, or disease management participation for certain
436 populations of Medicaid beneficiaries, certain drug classes, or
437 particular drugs to prevent fraud, abuse, overuse, and possible
438 dangerous drug interactions. The Pharmaceutical and Therapeutics
439 Committee shall make recommendations to the agency on drugs for
440 which prior authorization is required. The agency shall inform
441 the Pharmaceutical and Therapeutics Committee of its decisions
442 regarding drugs subject to prior authorization. The agency is
443 authorized to limit the entities it contracts with or enrolls as
444 Medicaid providers by developing a provider network through
445 provider credentialing. The agency may competitively bid single
446 source-provider contracts if procurement of goods or services
447 results in demonstrated cost savings to the state without
448 limiting access to care. The agency may limit its network based
449 on the assessment of beneficiary access to care, provider
450 availability, provider quality standards, time and distance
451 standards for access to care, the cultural competence of the
452 provider network, demographic characteristics of Medicaid
453 beneficiaries, practice and provider-to-beneficiary standards,
454 appointment wait times, beneficiary use of services, provider
455 turnover, provider profiling, provider licensure history,
456 previous program integrity investigations and findings, peer
457 review, provider Medicaid policy and billing compliance records,
458 clinical and medical record audits, and other factors. Providers
459 shall not be entitled to enrollment in the Medicaid provider
460 network. The agency shall determine instances in which allowing
461 Medicaid beneficiaries to purchase durable medical equipment and
462 other goods is less expensive to the Medicaid program than long
463 term rental of the equipment or goods. The agency may establish
464 rules to facilitate purchases in lieu of long-term rentals in
465 order to protect against fraud and abuse in the Medicaid program
466 as defined in s. 409.913. The agency may seek federal waivers
467 necessary to administer these policies.
468 (54) Persons who have serious and persistent mental
469 illnesses, who are receiving services under the Community Mental
470 Health and Substance Abuse Crime Reduction Act, and who are
471 eligible for and receiving services under the state plan
472 implemented under s. 1915i of the Social Security Act, as
473 approved by the Centers for Medicare and Medicaid Services, are
474 exempt from MediPass and managed care plans authorized under
475 this chapter, including capitated managed care plans authorized
476 under s. 409.91211.
477 Section 7. Paragraph (a) of subsection (3) of section
478 916.107, Florida Statutes, is amended to read:
479 916.107 Rights of forensic clients.—
480 (3) RIGHT TO EXPRESS AND INFORMED CONSENT.—
481 (a) A forensic client shall be asked to give express and
482 informed written consent for treatment. If a client refuses such
483 treatment as is deemed necessary and essential by the client’s
484 multidisciplinary treatment team for the appropriate care of the
485 client, such treatment may be provided under the following
486 circumstances:
487 1. In an emergency situation in which there is immediate
488 danger to the safety of the client or others, such treatment may
489 be provided upon the written order of a physician for a period
490 not to exceed 48 hours, excluding weekends and legal holidays.
491 If, after the 48-hour period, the client has not given express
492 and informed consent to the treatment initially refused, the
493 administrator or designee of the civil or forensic facility
494 shall, within 48 hours, excluding weekends and legal holidays,
495 petition the committing court or the circuit court serving the
496 county in which the facility is located, at the option of the
497 facility administrator or designee, for an order authorizing the
498 continued treatment of the client. In the interim, the need for
499 treatment shall be reviewed every 48 hours and may be continued
500 without the consent of the client upon the continued written
501 order of a physician who has determined that the emergency
502 situation continues to present a danger to the safety of the
503 client or others.
504 2. In a situation other than an emergency situation, the
505 administrator or designee of the facility shall petition the
506 court for an order authorizing necessary and essential treatment
507 for the client.
508 a. If the client has been receiving psychotherapeutic
509 medication at the jail at the time of transfer to the state
510 forensic mental health treatment facility and lacks the capacity
511 to make an informed decision regarding mental health treatment
512 at the time of admission, the admitting physician may order a
513 continuation of the psychotherapeutic medication if, in the
514 clinical judgment of the physician, abrupt cessation of the
515 psychotherapeutic medication could cause a risk to the health
516 and safety of the client during the time a court order to
517 medicate is pursued. The jail physician shall provide a current
518 psychotherapeutic medication order at the time of transfer to
519 the admitting facility.
520 b. The court order shall allow such treatment for up to a
521 period not to exceed 90 days following the date of the entry of
522 the order. Unless the court is notified in writing that the
523 client has provided express and informed consent in writing or
524 that the client has been discharged by the committing court, the
525 administrator or designee shall, before prior to the expiration
526 of the initial 90-day order, petition the court for an order
527 authorizing the continuation of treatment for another 90 days
528 90-day period. This procedure shall be repeated until the client
529 provides consent or is discharged by the committing court.
530 3. At the hearing on the issue of whether the court should
531 enter an order authorizing treatment for which a client was
532 unable to or refused to give express and informed consent, the
533 court shall determine by clear and convincing evidence that the
534 client has mental illness, retardation, or autism, that the
535 treatment not consented to is essential to the care of the
536 client, and that the treatment not consented to is not
537 experimental and does not present an unreasonable risk of
538 serious, hazardous, or irreversible side effects. In arriving at
539 the substitute judgment decision, the court must consider at
540 least the following factors:
541 a. The client’s expressed preference regarding treatment;
542 b. The probability of adverse side effects;
543 c. The prognosis without treatment; and
544 d. The prognosis with treatment.
545
546 The hearing shall be as convenient to the client as may be
547 consistent with orderly procedure and shall be conducted in
548 physical settings not likely to be injurious to the client’s
549 condition. The court may appoint a general or special magistrate
550 to preside at the hearing. The client or the client’s guardian,
551 and the representative, shall be provided with a copy of the
552 petition and the date, time, and location of the hearing. The
553 client has the right to have an attorney represent him or her at
554 the hearing, and, if the client is indigent, the court shall
555 appoint the office of the public defender to represent the
556 client at the hearing. The client may testify or not, as he or
557 she chooses, and has the right to cross-examine witnesses and
558 may present his or her own witnesses.
559 Section 8. Section 916.111, Florida Statutes, is amended to
560 read:
561 916.111 Training of mental health experts.—The evaluation
562 of defendants for competency to proceed or for sanity at the
563 time of the commission of the offense shall be conducted in such
564 a way as to ensure uniform application of the criteria
565 enumerated in Rules 3.210 and 3.216, Florida Rules of Criminal
566 Procedure.
567 (1) A forensic evaluator training course approved by the
568 department must be provided at least annually to ensure that
569 mental health professionals have the opportunity to be placed on
570 the department’s forensic evaluator registry.
571 (a) Beginning July 1, 2010, experts shall remain on the
572 registry if they have completed or retaken the required training
573 within the previous 5 years. Those who have not completed the
574 training must be removed from the registry and may not conduct
575 evaluations for the courts.
576 (b) A mental health professional who has completed the
577 training course within the previous 5 years must maintain
578 documentation of completion of the required training and provide
579 current contact information to the department.
580 (2) The department shall develop, and may contract with
581 accredited institutions:
582 (a)(1) To provide:
583 1.(a) A plan for training mental health professionals to
584 perform forensic evaluations and to standardize the criteria and
585 procedures to be used in these evaluations;
586 2.(b) Clinical protocols and procedures based upon the
587 criteria of Rules 3.210 and 3.216, Florida Rules of Criminal
588 Procedure; and
589 3.(c) Training for mental health professionals in the
590 application of these protocols and procedures in performing
591 forensic evaluations and providing reports to the courts; and
592 (b)(2) To compile and maintain the necessary information
593 for evaluating the success of this program, including the number
594 of persons trained, the cost of operating the program, and the
595 effect on the quality of forensic evaluations as measured by
596 appropriateness of admissions to state forensic facilities and
597 to community-based care programs.
598 Section 9. Subsection (1) of section 916.115, Florida
599 Statutes, is amended to read:
600 916.115 Appointment of experts.—
601 (1) The court shall appoint no more than three experts to
602 determine the mental condition of a defendant in a criminal
603 case, including competency to proceed, insanity, involuntary
604 placement, and treatment. The experts may evaluate the defendant
605 in jail or in another appropriate local facility or in a
606 facility of the Department of Corrections.
607 (a) To the extent possible, The appointed experts shall
608 have completed forensic evaluator training as provided in s.
609 916.111 approved by the department, and each shall be a
610 psychiatrist, or licensed psychologist, or physician.
611 (b) The department shall maintain and annually provide the
612 courts with a forensic evaluator registry list of available
613 mental health professionals who have completed the approved
614 training as experts.
615 Section 10. Section 916.13, Florida Statutes, is amended to
616 read:
617 916.13 Involuntary commitment of defendant adjudicated
618 incompetent.—
619 (1) Every defendant who is charged with a felony and who is
620 adjudicated incompetent to proceed may be involuntarily
621 committed for treatment upon a finding by the court of clear and
622 convincing evidence that:
623 (a) The defendant has a mental illness and because of the
624 mental illness:
625 1. The defendant is manifestly incapable of surviving alone
626 or with the help of willing and responsible family or friends,
627 including available alternative services, and, without
628 treatment, the defendant is likely to suffer from neglect or
629 refuse to care for herself or himself and such neglect or
630 refusal poses a real and present threat of substantial harm to
631 the defendant’s well-being; or
632 2. There is a substantial likelihood that in the near
633 future the defendant will inflict serious bodily harm on herself
634 or himself or another person, as evidenced by recent behavior
635 causing, attempting, or threatening such harm;
636 (b) All available, less restrictive treatment alternatives,
637 including treatment in community residential facilities or
638 community inpatient or outpatient settings, which would offer an
639 opportunity for improvement of the defendant’s condition have
640 been judged to be inappropriate; and
641 (c) There is a substantial probability that the mental
642 illness causing the defendant’s incompetence will respond to
643 treatment and the defendant will regain competency to proceed in
644 the reasonably foreseeable future.
645 (2) A defendant who has been charged with a felony and who
646 has been adjudicated incompetent to proceed due to mental
647 illness, and who meets the criteria for involuntary commitment
648 to the department under the provisions of this chapter, may be
649 committed to the department, and the department shall retain and
650 treat the defendant.
651 (a) Within No later than 6 months after the date of
652 admission and at the end of any period of extended commitment,
653 or at any time the administrator or designee has shall have
654 determined that the defendant has regained competency to proceed
655 or no longer meets the criteria for continued commitment, the
656 administrator or designee shall file a report with the court
657 pursuant to the applicable Florida Rules of Criminal Procedure.
658 (b) Within 30 days after the court receives notification
659 that a defendant is competent to proceed or no longer meets the
660 criteria for continued commitment, the defendant shall be
661 transported back to jail pursuant to s. 916.107(10) for the
662 purpose of holding a competency hearing, unless the defendant
663 can be transported directly to the competency hearing without
664 first returning to a county jail. Whenever feasible, defendants
665 should be released to community placement without returning to a
666 county jail.
667 (c) A competency hearing must be held within 30 days after
668 a court receives notification that the defendant is competent to
669 proceed or no longer meets criteria for continued commitment.
670 Section 11. Present subsection (4) of section 916.15,
671 Florida Statutes, is renumbered as subsection (5), and a new
672 subsection (4) is added to that section, to read:
673 916.15 Involuntary commitment of defendant adjudicated not
674 guilty by reason of insanity.—
675 (4) Within 30 days after the court is notified that a
676 defendant no longer meets the criteria for involuntary
677 commitment placement, the defendant shall be transported back to
678 jail for the purpose of holding a commitment hearing. The
679 commitment hearing must be held within 30 days after the court
680 receives notification that the defendant no longer meets the
681 criteria for continued commitment placement.
682 Section 12. Present subsections (2) and (3) of section
683 916.17, Florida Statutes, are renumbered as subsections (3) and
684 (4), respectively, and a new subsection (2) is added to that
685 section, to read:
686 916.17 Conditional release.—
687 (2) A defendant who otherwise meets the criteria for
688 involuntary commitment under s. 916.13, but whose current most
689 serious charge is a felony of the third degree or a felony of
690 the second degree when the felony did not involve violence, must
691 be placed in a community residential facility for competency
692 restoration in pilot sites established in s. 394.4656, unless
693 bed space or funding is unavailable for the community placement
694 or the trial court makes an explicit finding that the defendant
695 cannot be safely managed in such a placement. In making such
696 finding, the court shall consider all of the following:
697 (a) The nature and seriousness of the crime allegedly
698 committed.
699 (b) The individual’s criminal history.
700 (c) The individual’s psychiatric history.
701 (d) The individual’s history of violent behavior or threats
702 of violent behavior and risk of harm to self or others.
703 (e) The likelihood that the individual will comply with and
704 benefit from the mental health treatment and services being
705 recommended.
706 (f) The availability of appropriate community-based
707 services and treatment settings.
708 (g) Other information considered relevant by the court.
709 Section 13. Paragraphs (b) through (h) of subsection (1) of
710 section 985.19, Florida Statutes, are amended to read:
711 985.19 Incompetency in juvenile delinquency cases.—
712 (1) If, at any time prior to or during a delinquency case,
713 the court has reason to believe that the child named in the
714 petition may be incompetent to proceed with the hearing, the
715 court on its own motion may, or on the motion of the child’s
716 attorney or state attorney must, stay all proceedings and order
717 an evaluation of the child’s mental condition.
718 (b) All determinations of competency must shall be made at
719 a hearing, with findings of fact based on an evaluation of the
720 child’s mental condition made by at least not less than two but
721 not nor more than three experts appointed by the court. The
722 basis for the determination of incompetency must be specifically
723 stated in the evaluation and must be conducted so as to ensure
724 uniform application of the criteria enumerated in the Florida
725 Rules of Juvenile Procedure. In addition, A recommendation as to
726 whether residential or nonresidential treatment or training is
727 required must be included in the evaluation. Experts appointed
728 by the court to determine the mental condition of a child shall
729 be allowed reasonable fees for services rendered. State
730 employees may be paid expenses pursuant to s. 112.061. The fees
731 shall be taxed as costs in the case.
732 (c) All court orders determining incompetency must include
733 specific written findings by the court as to the nature of the
734 incompetency and whether the child requires secure or nonsecure
735 treatment or training environments.
736 (d) The evaluation of juveniles for competency to proceed
737 shall be conducted in a manner that ensures the uniform
738 application of the criteria in the Florida Rules of Juvenile
739 Procedure. The department shall develop, and may contract with
740 accredited institutions to provide:
741 1. A plan for training mental health professionals to
742 perform forensic evaluations and for standardizing the criteria
743 and procedures to be used in such evaluations;
744 2. Clinical protocols and procedures based on the criteria
745 in the Florida Rules of Juvenile Procedure;
746 3. Training for mental health professionals in the
747 application of these protocols and procedures for performing
748 forensic evaluations and providing reports to the courts; and
749 4. Evaluation of the success of the program, including the
750 number of persons trained, the cost of operating the program,
751 and the effect on the quality of forensic evaluations as
752 measured by the appropriateness of admissions to the
753 department’s juvenile competent to proceed programs.
754 (e)(d) For competency incompetency evaluations related to
755 mental illness, the Department of Children and Family Services
756 shall maintain and annually provide the courts with a forensic
757 evaluator registry list of available mental health professionals
758 who have completed a training program approved by the Department
759 of Children and Family Services to perform the evaluations as
760 provided in this section. An appointed expert must be a
761 psychiatrist or licensed psychologist and must be included in
762 the registry.
763 1. A forensic evaluator training course approved by the
764 Department of Children and Family Services must be provided at
765 least annually to ensure that mental health professionals have
766 an opportunity to be placed on the registry.
767 2. Beginning July 1, 2010, experts shall remain on the
768 registry if they have completed or retaken the required training
769 within the previous 5 years. Those who have not completed the
770 required training within the previous 5 years must be removed
771 from the registry and may not conduct evaluations for the
772 courts.
773 3. A mental health professional who has completed the
774 training course within the previous 5 years must maintain
775 documentation of having completing the required training and
776 provide current contact information to the Department of
777 Children and Family Services.
778 (f)(e) For competency incompetency evaluations related to
779 mental retardation or autism, the court shall order the Agency
780 for Persons with Disabilities to examine the child to determine
781 if the child meets the definition of “retardation” or “autism”
782 in s. 393.063 and, if so, whether the child is competent to
783 proceed with delinquency proceedings.
784 (g)(f) A child is competent to proceed if the child has
785 sufficient present ability to consult with counsel with a
786 reasonable degree of rational understanding and the child has a
787 rational and factual understanding of the present proceedings.
788 The report must address the child’s capacity to:
789 1. Appreciate the charges or allegations against the child.
790 2. Appreciate the range and nature of possible penalties
791 that may be imposed in the proceedings against the child, if
792 applicable.
793 3. Understand the adversarial nature of the legal process.
794 4. Disclose to counsel facts pertinent to the proceedings
795 at issue.
796 5. Display appropriate courtroom behavior.
797 6. Testify relevantly.
798 (h)(g) Immediately upon the filing of the court order
799 finding a child incompetent to proceed, the clerk of the court
800 shall notify the Department of Children and Family Services and
801 the Agency for Persons with Disabilities and fax or hand deliver
802 to the department and to the agency a referral packet that
803 includes, at a minimum, the court order, the charging documents,
804 the petition, and the court-appointed evaluator’s reports.
805 (i)(h) After placement of the child in the appropriate
806 setting, the Department of Children and Family Services in
807 consultation with the Agency for Persons with Disabilities, as
808 appropriate, must, within 30 days after placement of the child,
809 prepare and submit to the court a treatment or training plan for
810 the child’s restoration of competency. A copy of the plan must
811 be served upon the child’s attorney, the state attorney, and the
812 attorneys representing the Department of Juvenile Justice.
813 Section 14. This act shall take effect July 1, 2009.