Florida Senate - 2010 SB 2718
By Senator Storms
10-01853C-10 20102718__
1 A bill to be entitled
2 An act relating to the provision of psychotropic
3 medication to children in out-of-home placements;
4 repealing s. 39.407(3), F.S., relating to the
5 authority of the Department of Children and Family
6 Services to prescribe psychotropic medication to a
7 child in its custody; creating s. 39.4071, F.S.;
8 providing legislative findings and intent; providing
9 definitions; requiring that a guardian ad litem be
10 appointed by the court to represent a child in the
11 custody of the Department of Children and Family
12 Services who is prescribed a psychotropic medication;
13 prescribing the duties of the guardian ad litem;
14 requiring that the department or lead agency notify
15 the guardian ad litem of any change in the status of
16 the child; requiring that express and informed consent
17 and assent be obtained from a child or the child’s
18 parent or guardian; providing requirements for a
19 prescribing physician in obtaining consent and assent;
20 providing for the invalidation of a parent’s informed
21 consent; requiring the department to seek informed
22 consent from the legal guardian in certain
23 circumstances; requiring the department to file a
24 motion for the administration of psychotropic
25 medication with the final judgment of termination of
26 parental rights under certain circumstances; requiring
27 that a court authorize the administration of
28 psychotropic medication to a child who is in shelter
29 care or in foster care and for whom parental consent
30 has not been obtained; providing requirements for the
31 motion to the court; requiring that any party
32 objecting to the administration of psychotropic
33 medication file its objection within a specified
34 period; authorizing the court to obtain a second
35 opinion regarding the proposed administration;
36 requiring that the court hold a hearing if any party
37 objects to the proposed administration; specifying
38 circumstances under which the department may provide
39 psychotropic medication to a child before court
40 authorization is obtained; requiring that the
41 department seek court authorization for continued
42 administration of the medication; providing for an
43 expedited hearing on such motion under certain
44 circumstances; requiring the department to provide
45 notice to all parties and the court for each emergency
46 use of psychotropic medication under certain
47 conditions; requiring that a mental health treatment
48 plan be developed for each child or youth who is
49 placed into an out-of-home placement; requiring
50 certain information to be included in a mental health
51 treatment plan; requiring the department to develop
52 and administer procedures to require the caregiver and
53 prescribing physician to report any adverse side
54 effects; requiring documentation of the adverse side
55 effects; prohibiting the prescription of psychotropic
56 medication to certain children who are in out-of-home
57 care absent certain conditions; requiring review by a
58 licensed child psychiatrist before psychotropic
59 medication is administered to certain children who are
60 in out-of-home care under certain conditions;
61 prohibiting authorization for a child in the custody
62 of the department to participate in any clinical trial
63 designed to evaluate the use of psychotropic
64 medication in children; amending s. 743.0645, F.S.;
65 conforming a cross-reference; providing an effective
66 date.
67
68 Be It Enacted by the Legislature of the State of Florida:
69
70 Section 1. Subsection (3) of section 39.407, Florida
71 Statutes, is repealed.
72 Section 2. Section 39.4071, Florida Statutes, is created to
73 read:
74 39.4071 Use of psychotropic medication for children in out
75 of-home placement.—
76 (1) LEGISLATIVE FINDINGS AND INTENT.—
77 (a) The Legislature finds that children in out-of-home
78 placements often have multiple risk factors that predispose them
79 to emotional and behavioral disorders and that they receive
80 mental health services at higher rates and are more likely to be
81 given psychotropic medications than children from comparable
82 backgrounds.
83 (b) The Legislature also finds that the use of psychotropic
84 medications for the treatment of children in out-of-home
85 placements who have emotional and behavioral disturbances has
86 increased over recent years. While this increased use of
87 psychotropic medications is paralleled by an increase in the
88 rate of the coadministration of two or more psychotropic
89 medications or polypharmacy, data on the safety and efficacy of
90 many of the psychotropic medications used in children and
91 research supporting the practice of polypharmacy in this
92 population is limited.
93 (c) The Legislature further finds that significant
94 challenges are encountered in providing quality mental health
95 care to children in out-of-home placements. Not uncommonly,
96 children in out-of-home placements are subjected to multiple
97 placements and many service providers, with communication
98 between providers often poor, resulting in fragmented medical
99 and mental health care. The dependable, ongoing therapeutic and
100 caregiving relationships these children need are hampered by the
101 high turnover among child welfare caseworkers and care
102 providers. Furthermore, children in out-of-home placements,
103 unlike children from intact families, often have no consistent
104 interested party who is available to coordinate treatment and
105 monitoring plans or to provide longitudinal oversight of care.
106 (d) It is therefore the intent of the Legislature that
107 children in out-of-home placements who may benefit from
108 psychotropic medications receive those medications safely as
109 part of a comprehensive mental health treatment plan overseen by
110 a court-appointed guardian ad litem.
111 (2) DEFINITIONS.—As used in this section, the term:
112 (a) “Assent” means a process by which a provider of medical
113 services helps a child achieve a developmentally appropriate
114 awareness of the nature of his or her condition, informs the
115 child of what can be expected through tests and treatment, makes
116 a clinical assessment of the child’s understanding of the
117 situation and the factors influencing how he or she is
118 responding, and solicits an expression of the child’s
119 willingness to accept the proposed care. The mere absence of an
120 objection by the child may not be construed as assent.
121 (b) “Comprehensive behavioral health assessment” means an
122 in-depth and detailed assessment of the child’s emotional,
123 social, behavioral, and developmental functioning within the
124 family home, school, and community. A comprehensive behavioral
125 health assessment must include direct observation of the child
126 in the home, school, and community, as well as in the clinical
127 setting, and must adhere to the requirements contained in the
128 Florida Medicaid Community Behavioral Health Services Coverage
129 and Limitations Handbook.
130 (c) “Express and informed consent” means voluntary consent
131 from a parent whose rights have not been terminated or a legal
132 guardian of the child who has received full, accurate, and
133 sufficient information and an explanation about the child’s
134 medical condition, medication, and treatment in order to enable
135 the parent or guardian to make a knowledgeable decision without
136 being subjected to any deceit or coercion.
137 (d) “Mental health treatment plan” means a report that is
138 prepared by a physician prescribing psychotropic medication to a
139 child in out-of-home placement and that includes the information
140 required by this section.
141 (e) “Psychotropic medication” means any chemical substance
142 prescribed with the intent to treat psychiatric disorders, and
143 those substances that, though prescribed with the intent to
144 treat other medical conditions, have the effect of altering
145 brain chemistry or involve any of the medications in the
146 following categories:
147 1. Antipsychotics;
148 2. Antidepressants;
149 3. Sedative hypnotics;
150 4. Lithium;
151 5. Stimulants;
152 6. Nonstimulant medications for treating attention deficit
153 hyperactivity disorder;
154 7. Anti-dementia medications and cognitive enhancers;
155 8. Anticonvulsants and alpha-2 agonists; and
156 9. Any other medication used to stabilize or improve mood,
157 mental status, behavior, or mental illness.
158 (3) APPOINTMENT OF GUARDIAN AD LITEM.—
159 (a) A guardian ad litem shall be appointed by the court at
160 the earliest possible time to represent the best interests of a
161 child in the custody of the department who is prescribed a
162 psychotropic medication. Pursuant to s. 39.820, the appointed
163 guardian ad litem is a party to any judicial proceeding as a
164 representative of the child and serves until discharged by the
165 court.
166 (b) It is the duty of the guardian ad litem to oversee the
167 care, health, and medical treatment of the child; to advise the
168 court regarding any change in the status of the child; and to
169 respond to any medical emergency of the child.
170 (c) The department and the community-based care lead agency
171 shall notify the guardian ad litem within 24 hours after any
172 change in the status of the child, including, but not limited
173 to, a change in placement, a change in school, or a change in
174 medical condition or medication.
175 (4) EXPRESS AND INFORMED CONSENT AND ASSENT.—If, at the
176 time of removal from his or her home, a child is being provided
177 or is being evaluated for the initiation of prescribed
178 psychotropic medication under this section, express and informed
179 consent and assent shall be sought by the prescribing physician.
180 (a) The prescribing physician shall obtain assent from the
181 child, unless the prescribing physician determines that it is
182 not appropriate to obtain assent from the child. In making this
183 assessment, the prescribing physician shall consider the
184 capacity of the child to make an independent decision based on
185 his or her age, maturity, and psychological and emotional state.
186 If the physician determines that it is not appropriate to obtain
187 assent from the child, the physician must document the decision
188 in the mental health treatment plan.
189 1. Assent from a child shall be sought in a manner that is
190 understandable to the child using an age-appropriate assent
191 form. The child shall be provided with sufficient information,
192 such as the nature and purpose of the medication, the probable
193 risks and benefits, alternative treatments and the risks and
194 benefits thereof, and the risks and benefits of refusing or
195 discontinuing the medication. Assent may be oral or written and
196 must be documented by the prescribing physician.
197 2. Oral assent is appropriate for a child who is younger
198 than 7 years of age. Assent from a child who is 7 to 13 years of
199 age may be sought orally or in a simple form that is written at
200 the second-grade or third-grade reading level. A child who is 14
201 years of age or older may understand the language presented in
202 the consent form for parents or guardians. If so, the child may
203 sign the consent form along with the parent or guardian. Forms
204 for parents and older children shall be written at the sixth
205 grade to eighth-grade reading level.
206 3. In each case where assent is obtained, a copy of the
207 assent documents must be provided to the parent or legal
208 guardian and the original assent documents shall become part of
209 the child’s mental health treatment plan.
210 (b) Express and informed consent for the administration of
211 psychotropic medication may be given only by a parent whose
212 rights have not been terminated or a legal guardian of the child
213 who has received full, accurate, and sufficient information and
214 an explanation about the child’s medical condition, medication,
215 and treatment in order to enable the parent or guardian to make
216 a knowledgeable decision. A sufficient explanation includes, but
217 need not be limited to, the following information, which is
218 provided and explained in plain language by the prescribing
219 physician to the parent or guardian: the medication, the reason
220 for prescribing it, and its purpose or intended results; side
221 effects, risks, and contraindications, including effects of
222 stopping the medication; method for administering the medication
223 and dosage range when applicable; potential drug interactions;
224 alternative treatments; and the behavioral health or other
225 services used to complement the use of medication, when
226 applicable.
227 1. Express and informed consent may be oral or written and
228 must be documented by the prescribing physician. If the
229 department or the physician is unable to obtain consent from the
230 parent or guardian, the reasons must be documented.
231 2. When express and informed consent is obtained, a copy of
232 the consent documents must be provided to the parent or legal
233 guardian and the original consent documents shall become part of
234 the child’s mental health treatment plan.
235 (c) The informed consent of any parent whose whereabouts
236 are unknown for 60 days, who is adjudicated incompetent, who
237 does not have regular and frequent contact with the child, or
238 whose parental rights are terminated after giving consent, is
239 invalid. If the informed consent of a parent becomes invalid,
240 the department shall seek informed consent from the legal
241 guardian. If the informed consent was provided by a parent whose
242 parental rights have been terminated, the department shall file
243 a motion for the administration of psychotropic medication along
244 with the motion for final judgment of termination of parental
245 rights.
246 (5) ADMINISTRATION OF PSYCHOTROPIC MEDICATION TO A CHILD IN
247 SHELTER CARE OR IN FOSTER CARE WHEN PARENTAL CONSENT HAS NOT
248 BEEN OBTAINED.—
249 (a) Motion for court authorization for administration of
250 psychotropic medications.—
251 1. If the department believes that a child in its physical
252 or legal custody requires the administration of a psychotropic
253 medication and the child’s parents or legal guardians have not
254 provided express and informed consent as provided by law, the
255 department or its agent shall file a motion with the court to
256 authorize the administration of the psychotropic medication
257 before the administration of the medication, except as provided
258 in subsection (6). In each case in which a motion is required,
259 the motion must include:
260 a. A written report by the department describing the
261 efforts made to enable the prescribing physician to obtain
262 express and informed consent for providing the medication to the
263 child and describing other treatments considered or recommended
264 for the child; and
265 b. The prescribing physician’s completed and signed mental
266 health treatment plan.
267 2. The department must file a copy of the motion with the
268 court and, within 48 hours after filing the motion with the
269 court, notify all parties in writing, or by whatever other
270 method best ensures that all parties receive notification, of
271 its proposed administration of psychotropic medication to the
272 child.
273 3. If any party objects to the proposed administration of
274 the psychotropic medication to the child, that party must file
275 its objection within 2 working days after being notified of the
276 department’s motion.
277 (b) Court action on motion for administration of
278 psychotropic medication.—
279 1. If no party timely files an objection to the
280 department’s motion, the court may enter its order authorizing
281 the proposed administration of the psychotropic medication
282 without a hearing. Based on its determination of the best
283 interests of the child, the court may order additional medical
284 consultation or require the department to obtain a second
285 opinion within a reasonable time, but not more than 21 calendar
286 days. If the court orders an additional medical consultation or
287 second medical opinion, the department shall file a written
288 report including the results of this additional consultation or
289 a copy of the second medical opinion with the court within the
290 time required by the court, and shall serve a copy of the report
291 as required by this section.
292 2. If any party timely files its objection to the proposed
293 administration of the psychotropic medication to the child, the
294 court shall hold a hearing as soon as possible on the
295 department’s motion.
296 a. The medical report of the prescribing physician is
297 admissible in evidence at the hearing.
298 b. The court shall ask the department whether additional
299 medical, mental health, behavioral, counseling, or other
300 services are being provided to the child which the prescribing
301 physician considers to be necessary or beneficial in treating
302 the child’s medical condition and which the physician recommends
303 or expects to be provided to the child along with the
304 medication.
305 3. The court may order additional medical consultation or a
306 second medical opinion, as provided in subsection 1.
307 4. After considering the department’s motion and any
308 testimony received, the court may order that the department
309 provide or continue to provide the proposed psychotropic
310 medication to the child upon a determination that it is in the
311 child’s best interest to do so.
312 (6) ADMINISTRATION OF PSYCHOTROPIC MEDICATION TO A CHILD IN
313 OUT-OF-HOME CARE BEFORE COURT AUTHORIZATION HAS BEEN OBTAINED.
314 The department may provide continued administration of
315 psychotropic medication to a child before authorization by the
316 court has been obtained only as provided in this subsection.
317 (a) If a child is removed from the home and taken into
318 custody under s. 39.401, the department may continue to
319 administer a current prescription of psychotropic medication to
320 the child; however, the department shall request court
321 authorization for the continued administration of the medication
322 at the shelter hearing. This request shall be included in the
323 shelter petition.
324 1. The department shall provide all information in its
325 possession to the court in support of its request at the shelter
326 hearing. The court may authorize the continued administration of
327 the psychotropic medication only until the arraignment hearing
328 on the petition for adjudication, or for 28 days following the
329 date of the child’s removal, whichever occurs first.
330 2. If the department believes, based on the required
331 physician’s evaluation, that it is appropriate to continue the
332 psychotropic medication beyond the time authorized by the court
333 at the shelter hearing, the department shall file a motion
334 seeking continued court authorization at the same time that it
335 files the dependency petition, but within 21 days after the
336 shelter hearing.
337 (b) If the department believes, based on the certification
338 of the prescribing physician, that delay in providing the
339 prescribed psychotropic medication to the child would, more
340 likely than not, cause significant harm to the child, the
341 department must submit a motion to the court seeking
342 continuation of the medication within 3 working days after the
343 department begins providing the medication to the child.
344 1. The motion seeking authorization for the continued
345 administration of the psychotropic medication to the child must
346 include all information required in this section. The required
347 medical report must also include the specific reasons why the
348 child may experience significant harm, and the nature and the
349 extent of the potential harm, resulting from a delay in
350 authorizing the prescribed medication.
351 2. The department shall serve the motion on all parties
352 within 3 working days after the department begins providing the
353 medication to the child.
354 3. The court shall hear the department’s motion at the next
355 regularly scheduled court hearing required by law, or within 30
356 days after the date of the prescription, whichever occurs first.
357 However, if any party files an objection to the motion, the
358 court shall hold a hearing within 7 days.
359 (c) The department may authorize, in advance of a court
360 order, the administration of psychotropic medications to a child
361 in its custody in a hospital, crisis stabilization unit, or in
362 statewide inpatient psychiatric program. If the department does
363 so, it must seek court authorization for the continued
364 administration of the medication as required in this section.
365 (d) If a child receives a one-time dose of a psychotropic
366 medication during a crisis, the department shall provide
367 immediate notice to all parties and to the court of each such
368 emergency use.
369 (7) DEVELOPMENT OF MENTAL HEALTH TREATMENT PLAN.—
370 (a) Within 7 days after a child or youth is placed into an
371 approved out-of-home placement, the child protective
372 investigator or dependency case manager shall submit a referral
373 for a comprehensive behavioral health assessment, which shall be
374 used to develop a mental health treatment plan for the child.
375 The mental health treatment plan must include:
376 1. The name of the child, a statement indicating that there
377 is a need to prescribe psychotropic medication to the child
378 based upon a diagnosed, organically caused condition for which
379 such medication is being prescribed, a statement indicating the
380 compelling governmental interest in prescribing the psychotropic
381 medication, and the name and range of the dosage of the
382 psychotropic medication.
383 2. A statement indicating that the physician has reviewed
384 all medical information concerning the child which has been
385 provided.
386 3. A statement indicating that the psychotropic medication,
387 at its prescribed dosage, is appropriate for treating the
388 child’s diagnosed medical condition, as well as the behaviors
389 and symptoms that the medication, at its prescribed dosage, is
390 expected to address.
391 4. An explanation of the nature and purpose of the
392 treatment; the recognized side effects, risks, and
393 contraindications of the medication, including procedures for
394 reporting adverse effects; drug-interaction precautions; the
395 possible effects of stopping the medication; and how the
396 treatment will be monitored, followed by a statement indicating
397 that this explanation was provided to the child if age
398 appropriate and to the child’s caregiver.
399 5. Documentation addressing whether the psychotropic
400 medication will replace or supplement any other currently
401 prescribed medications or treatments; the length of time the
402 child is expected to be taking the medication; a plan for the
403 discontinuation of any medication when medically appropriate;
404 and any additional medical, mental health, behavioral,
405 counseling, or other services that the prescribing physician
406 recommends as part of a comprehensive treatment plan.
407 (b) The department shall develop and administer procedures
408 to require the caregiver and prescribing physician to report any
409 adverse side effects of the medication to the department or its
410 designee. Any adverse side effects must be documented in the
411 treatment plan for the child.
412 (8) REVIEW FOR ADMINISTRATION OF PSYCHOTROPIC MEDICATION
413 FOR CHILDREN FROM BIRTH THROUGH 10 YEARS OF AGE IN OUT-OF-HOME
414 CARE.–Absent a finding of a compelling governmental interest, a
415 psychotropic medication may not be prescribed for any child from
416 birth to 10 years of age who is in out-of-home placement. Based
417 on a finding of a compelling governmental interest but before a
418 psychotropic medication is prescribed for any child from birth
419 through 10 years of age who is in an out-of-home placement, a
420 review of the administration must be obtained from a child
421 psychiatrist who is licensed under chapter 458 or chapter 459.
422 This review must occur before express and informed consent or
423 assent is sought from the child or his or her parent or
424 guardian.
425 (9) CLINICAL TRIALS.–At no time shall a child in the
426 custody of the department be allowed to participate in a
427 clinical trial that is designed to develop new psychotropic
428 medications or evaluate their application to children.
429 Section 3. Paragraph (b) of subsection (1) of section
430 743.0645, Florida Statutes, is amended to read:
431 743.0645 Other persons who may consent to medical care or
432 treatment of a minor.—
433 (1) As used in this section, the term:
434 (b) “Medical care and treatment” includes ordinary and
435 necessary medical and dental examination and treatment,
436 including blood testing, preventive care including ordinary
437 immunizations, tuberculin testing, and well-child care, but does
438 not include surgery, general anesthesia, provision of
439 psychotropic medications, or other extraordinary procedures for
440 which a separate court order, power of attorney, or informed
441 consent as provided by law is required, except as provided in s.
442 39.4071 s. 39.407(3).
443 Section 4. This act shall take effect July 1, 2010.