Florida Senate - 2022                        COMMITTEE AMENDMENT
       Bill No. SB 1262
       
       
       
       
       
       
                                Ì453624&Î453624                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/03/2022           .                                
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       The Committee on Children, Families, and Elder Affairs (Burgess)
       recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Present subsections (47), (48), and (49) of
    6  section 394.455, Florida Statutes, are redesignated as
    7  subsections (48), (49), and (50), respectively, and a new
    8  subsection (47) is added to that section, to read:
    9         394.455 Definitions.—As used in this part, the term:
   10         (47) ″Telehealth″ has the same meaning as provided in s.
   11  456.47.
   12         Section 2. Paragraphs (a), (b), and (c) of subsection (5)
   13  of section 394.459, Florida Statutes, are amended, present
   14  paragraphs (d), (e), and (f) are redesignated as paragraphs (e),
   15  (f), and (g), respectively, and a new paragraph (d) is added to
   16  that subsection, to read:
   17         394.459 Rights of patients.—
   18         (5) COMMUNICATION, ABUSE REPORTING, AND VISITS.—
   19         (a) Each person receiving services in a facility providing
   20  mental health services under this part has the right to
   21  communicate freely and privately with persons outside the
   22  facility unless a qualified professional determines it is
   23  determined that such communication is likely to be harmful to
   24  the person or others in a manner directly related to the
   25  person’s clinical well-being, the clinical well-being of other
   26  patients, or the general safety of staff. Each facility shall
   27  make available as soon as reasonably possible to persons
   28  receiving services a telephone that allows for free local calls
   29  and access to a long-distance service. A facility is not
   30  required to pay the costs of a patient’s long-distance calls.
   31  The telephone shall be readily accessible to the patient and
   32  shall be placed so that the patient may use it to communicate
   33  privately and confidentially. The facility may establish
   34  reasonable rules for the use of this telephone, provided that
   35  the rules do not interfere with a patient’s access to a
   36  telephone to report abuse pursuant to paragraph (f) (e).
   37         (b) Each patient admitted to a facility under the
   38  provisions of this part shall be allowed to receive, send, and
   39  mail sealed, unopened correspondence; and no patient’s incoming
   40  or outgoing correspondence shall be opened, delayed, held, or
   41  censored by the facility unless a qualified professional
   42  determines that such correspondence is likely to be harmful to
   43  the patient or others in a manner directly related to the
   44  patient’s clinical well-being, the clinical well-being of other
   45  patients, or the general safety of staff. If there is reason to
   46  believe that such correspondence it contains items or substances
   47  which may be harmful to the patient or others, in which case the
   48  administrator may direct reasonable examination of such mail and
   49  may regulate the disposition of such items or substances.
   50         (c) Each facility must permit immediate access to any
   51  patient, subject to the patient’s right to deny or withdraw
   52  consent at any time, by the patient’s family members, guardian,
   53  guardian advocate, representative, Florida statewide or local
   54  advocacy council, or attorney, unless a qualified professional
   55  determines that such access would be detrimental to the patient
   56  in a manner directly related to the patient’s clinical well
   57  being, the clinical well-being of other patients, or the general
   58  safety of staff.
   59         (d) If a patient’s right to communicate with outside
   60  persons; receive, send, or mail sealed, unopened correspondence;
   61  or to receive visitors is restricted by the facility, written
   62  notice of such restriction and the reasons for the restriction
   63  shall be served on the patient, the patient’s attorney, and the
   64  patient’s guardian, guardian advocate, or representative; a
   65  qualified professional must document any restriction within 24
   66  hours and such restriction shall be recorded on the patient’s
   67  clinical record with the reasons therefor. The restriction of a
   68  patient’s right to communicate or to receive visitors shall be
   69  reviewed at least every 3 7 days. The right to communicate or
   70  receive visitors shall not be restricted as a means of
   71  punishment. Nothing in this paragraph shall be construed to
   72  limit the provisions of paragraph (e)(d).
   73         (e)(d) Each facility shall establish reasonable rules
   74  governing visitors, visiting hours, and the use of telephones by
   75  patients in the least restrictive possible manner. Patients
   76  shall have the right to contact and to receive communication
   77  from their attorneys at any reasonable time.
   78         (f)(e) Each patient receiving mental health treatment in
   79  any facility shall have ready access to a telephone in order to
   80  report an alleged abuse. The facility staff shall orally and in
   81  writing inform each patient of the procedure for reporting abuse
   82  and shall make every reasonable effort to present the
   83  information in a language the patient understands. A written
   84  copy of that procedure, including the telephone number of the
   85  central abuse hotline and reporting forms, shall be posted in
   86  plain view.
   87         (g)(f) The department shall adopt rules providing a
   88  procedure for reporting abuse. Facility staff shall be required,
   89  as a condition of employment, to become familiar with the
   90  requirements and procedures for the reporting of abuse.
   91         Section 3. Paragraph (b) of subsection (2) of section
   92  394.4599, Florida Statutes, is amended to read:
   93         394.4599 Notice.—
   94         (2) INVOLUNTARY ADMISSION.—
   95         (b) A receiving facility shall give prompt notice of the
   96  whereabouts of an individual who is being involuntarily held for
   97  examination to the individual’s guardian, guardian advocate,
   98  health care surrogate or proxy, attorney or representative, or
   99  other emergency contact identified through electronic databases
  100  pursuant to s. 394.463(2)(a), by telephone or in person within
  101  24 hours after the individual’s arrival at the facility. Contact
  102  attempts shall be documented in the individual’s clinical record
  103  and shall begin as soon as reasonably possible after the
  104  individual’s arrival.
  105         Section 4. Paragraph (a) of subsection (2) of section
  106  394.4615, Florida Statutes, is amended to read:
  107         394.4615 Clinical records; confidentiality.—
  108         (2) The clinical record shall be released when:
  109         (a) The patient or the patient’s guardian authorizes the
  110  release. The guardian or guardian advocate shall be provided
  111  access to the appropriate clinical records of the patient. The
  112  patient or the patient’s guardian or guardian advocate may
  113  authorize the release of information and clinical records to
  114  appropriate persons to ensure the continuity of the patient’s
  115  health care or mental health care. A receiving facility must
  116  document that, within 24 hours of admission, individuals
  117  admitted on a voluntary basis have been provided with the option
  118  to authorize the release of information from their clinical
  119  record to the individual’s health care surrogate or proxy,
  120  attorney, representative, or other known emergency contact.
  121         Section 5. Paragraphs (a), (e), (f), and (g) of subsection
  122  (2) of section 394.463, Florida Statutes, are amended, and
  123  subsection (5) is added to that section, to read:
  124         394.463 Involuntary examination.—
  125         (2) INVOLUNTARY EXAMINATION.—
  126         (a) An involuntary examination may be initiated by any one
  127  of the following means:
  128         1. A circuit or county court may enter an ex parte order
  129  stating that a person appears to meet the criteria for
  130  involuntary examination and specifying the findings on which
  131  that conclusion is based. The ex parte order for involuntary
  132  examination must be based on written or oral sworn testimony
  133  that includes specific facts that support the findings. If other
  134  less restrictive means are not available, such as voluntary
  135  appearance for outpatient evaluation, a law enforcement officer,
  136  or other designated agent of the court, shall take the person
  137  into custody and deliver him or her to an appropriate, or the
  138  nearest, facility within the designated receiving system
  139  pursuant to s. 394.462 for involuntary examination. The order of
  140  the court shall be made a part of the patient’s clinical record.
  141  A fee may not be charged for the filing of an order under this
  142  subsection. A facility accepting the patient based on this order
  143  must send a copy of the order to the department within 5 working
  144  days. The order may be submitted electronically through existing
  145  data systems, if available. The order shall be valid only until
  146  the person is delivered to the facility or for the period
  147  specified in the order itself, whichever comes first. If a time
  148  limit is not specified in the order, the order is valid for 7
  149  days after the date that the order was signed.
  150         2. A law enforcement officer shall take a person who
  151  appears to meet the criteria for involuntary examination into
  152  custody and deliver the person or have him or her delivered to
  153  an appropriate, or the nearest, facility within the designated
  154  receiving system pursuant to s. 394.462 for examination. The
  155  officer shall execute a written report detailing the
  156  circumstances under which the person was taken into custody,
  157  which must be made a part of the patient’s clinical record. The
  158  report must include all emergency contact information for the
  159  person that is readily accessible to the law enforcement
  160  officer, including information available through electronic
  161  databases maintained by the Department of Law Enforcement or by
  162  the Department of Highway Safety and Motor Vehicles. Such
  163  emergency contact information may be used by a receiving
  164  facility only for the purpose of informing listed emergency
  165  contacts of a patient’s whereabouts and shall otherwise remain
  166  confidential and exempt pursuant to s. 119.0712(2)(d). Any
  167  facility accepting the patient based on this report must send a
  168  copy of the report to the department within 5 working days.
  169         3. A physician, a physician assistant, a clinical
  170  psychologist, a psychiatric nurse, an advanced practice
  171  registered nurse registered under s. 464.0123, a mental health
  172  counselor, a marriage and family therapist, or a clinical social
  173  worker may execute a certificate stating that he or she has
  174  examined a person within the preceding 48 hours and finds that
  175  the person appears to meet the criteria for involuntary
  176  examination and stating the observations upon which that
  177  conclusion is based. If other less restrictive means, such as
  178  voluntary appearance for outpatient evaluation, are not
  179  available, a law enforcement officer shall take into custody the
  180  person named in the certificate and deliver him or her to the
  181  appropriate, or nearest, facility within the designated
  182  receiving system pursuant to s. 394.462 for involuntary
  183  examination. The law enforcement officer shall execute a written
  184  report detailing the circumstances under which the person was
  185  taken into custody. The report must include all emergency
  186  contact information for the person that is readily accessible to
  187  the law enforcement officer, including information available
  188  through electronic databases maintained by the Department of Law
  189  Enforcement or by the Department of Highway Safety and Motor
  190  Vehicles. Such emergency contact information may be used by a
  191  receiving facility only for the purpose of informing listed
  192  emergency contacts of a patient’s whereabouts and shall
  193  otherwise remain confidential and exempt pursuant to s.
  194  119.0712(2)(d). The report and certificate shall be made a part
  195  of the patient’s clinical record. Any facility accepting the
  196  patient based on this certificate must send a copy of the
  197  certificate to the department within 5 working days. The
  198  document may be submitted electronically through existing data
  199  systems, if applicable.
  200  
  201  When sending the order, report, or certificate to the
  202  department, a facility shall, at a minimum, provide information
  203  about which action was taken regarding the patient under
  204  paragraph (g), which information shall also be made a part of
  205  the patient’s clinical record.
  206         (e) The department shall receive and maintain the copies of
  207  ex parte orders, involuntary outpatient services orders issued
  208  pursuant to s. 394.4655, involuntary inpatient placement orders
  209  issued pursuant to s. 394.467, professional certificates, and
  210  law enforcement officers’ reports, and reports relating to the
  211  transportation of patients. These documents shall be considered
  212  part of the clinical record, governed by the provisions of s.
  213  394.4615. These documents shall be used to prepare annual
  214  reports analyzing the data obtained from these documents,
  215  without information identifying patients, and shall provide
  216  copies of reports to the department, the President of the
  217  Senate, the Speaker of the House of Representatives, and the
  218  minority leaders of the Senate and the House of Representatives.
  219         (f) A patient shall be examined by a physician or a
  220  clinical psychologist, or by a psychiatric nurse performing
  221  within the framework of an established protocol with a
  222  psychiatrist at a facility without unnecessary delay to
  223  determine if the criteria for involuntary services are met.
  224  Emergency treatment may be provided upon the order of a
  225  physician if the physician determines that such treatment is
  226  necessary for the safety of the patient or others. The patient
  227  may not be released by the receiving facility or its contractor
  228  without the documented approval of a psychiatrist or a clinical
  229  psychologist or, if the receiving facility is owned or operated
  230  by a hospital or health system, the release may also be approved
  231  by a psychiatric nurse performing within the framework of an
  232  established protocol with a psychiatrist, or an attending
  233  emergency department physician with experience in the diagnosis
  234  and treatment of mental illness after completion of an
  235  involuntary examination pursuant to this subsection. A
  236  psychiatric nurse may not approve the release of a patient if
  237  the involuntary examination was initiated by a psychiatrist
  238  unless the release is approved by the initiating psychiatrist.
  239  The release may be approved through telehealth.
  240         (g) The examination period must be for up to 72 hours. For
  241  a minor, the examination shall be initiated within 12 hours
  242  after the patient’s arrival at the facility. Within the
  243  examination period or, if the examination period ends on a
  244  weekend or holiday, no later than the next working day
  245  thereafter, one of the following actions must be taken, based on
  246  the individual needs of the patient:
  247         1. The patient shall be released, unless he or she is
  248  charged with a crime, in which case the patient shall be
  249  returned to the custody of a law enforcement officer;
  250         2. The patient shall be released, subject to subparagraph
  251  1., for voluntary outpatient treatment;
  252         3. The patient, unless he or she is charged with a crime,
  253  shall be asked to give express and informed consent to placement
  254  as a voluntary patient and, if such consent is given, the
  255  patient shall be admitted as a voluntary patient; or
  256         4. A petition for involuntary services shall be filed in
  257  the circuit court if inpatient treatment is deemed necessary or
  258  with the criminal county court, as defined in s. 394.4655(1), as
  259  applicable. When inpatient treatment is deemed necessary, the
  260  least restrictive treatment consistent with the optimum
  261  improvement of the patient’s condition shall be made available.
  262  When a petition is to be filed for involuntary outpatient
  263  placement, it shall be filed by one of the petitioners specified
  264  in s. 394.4655(4)(a). A petition for involuntary inpatient
  265  placement shall be filed by the facility administrator. If a
  266  patient’s 72-hour examination period ends on a weekend or
  267  holiday, and the receiving facility:
  268         a.Intends to file a petition for involuntary services,
  269  such patient may be held at a receiving facility through the
  270  next working day thereafter and such petition for involuntary
  271  services must be filed no later than such date. If the receiving
  272  facility fails to file a petition for involuntary services at
  273  the close of the next working day, the patient shall be released
  274  from the receiving facility.
  275         b.Does not intend to file a petition for involuntary
  276  services, a receiving facility may postpone release of a patient
  277  until the next working day thereafter only if a qualified
  278  professional documents that adequate discharge planning and
  279  procedures in accordance with s. 394.468 are not possible until
  280  the next working day.
  281         (5) UNLAWFUL ACTIVITIES RELATING TO EXAMINATION AND
  282  TREATMENT; PENALTIES.—
  283         (a)A person may not knowingly and willfully:
  284         1.Furnish false information for the purpose of obtaining
  285  emergency or other involuntary admission of another;
  286         2.Cause or otherwise secure, or conspire with or assist
  287  another to cause or secure, any emergency or other involuntary
  288  procedure of another person under false pretenses; or
  289         3. Cause, or conspire with or assist another to cause, the
  290  denial to any person of any right accorded pursuant to this
  291  chapter.
  292         (b)A person who violates this subsection commits a
  293  misdemeanor of the first degree, punishable as provided in s.
  294  775.082 and by a fine not exceeding $5,000.
  295         Section 6. Section 394.468, Florida Statutes, is amended to
  296  read:
  297         394.468 Admission and discharge procedures.—
  298         (1)Admission and discharge procedures and treatment
  299  policies of the department are governed solely by this part.
  300  Such procedures and policies shall not be subject to control by
  301  court procedure rules. The matters within the purview of this
  302  part are deemed to be substantive, not procedural.
  303         (2)Discharge planning and procedures for any patient’s
  304  release from a receiving facility or treatment facility must
  305  include and document consideration of, at a minimum:
  306         (a)Follow-up behavioral health appointments;
  307         (b)Information on how to obtain prescribed medications;
  308  and
  309         (c)Information pertaining to:
  310         1.Available living arrangements;
  311         2.Transportation; and
  312         3.Recovery support opportunities.
  313         Section 7. Paragraph (c) of subsection (3) of section
  314  394.9086, Florida Statutes, is amended, a new paragraph (d) is
  315  added to that subsection, and subsection (5) of that section is
  316  amended, to read:
  317         394.9086 Commission on Mental Health and Substance Abuse.—
  318         (3) MEMBERSHIP; TERM LIMITS; MEETINGS.—
  319         (c) The commission shall convene no later than September 1,
  320  2021. The commission shall meet quarterly or upon the call of
  321  the chair. The commission shall hold its meetings in person at
  322  locations throughout the state via teleconference or other
  323  electronic means.
  324         (d)Members of the commission are entitled to receive
  325  reimbursement for per diem and travel expenses pursuant to s.
  326  112.061.
  327         (5) REPORTS.—By January 1, 2023 September 1, 2022, the
  328  commission shall submit an interim report to the President of
  329  the Senate, the Speaker of the House of Representatives, and the
  330  Governor containing its findings and recommendations on how to
  331  best provide and facilitate mental health and substance abuse
  332  services in the state. The commission shall submit its final
  333  report to the President of the Senate, the Speaker of the House
  334  of Representatives, and the Governor by September 1, 2023.
  335         Section 8. Subsection (5) is added to section 397.601,
  336  Florida Statutes, to read:
  337         397.601 Voluntary admissions.—
  338         (5) A service provider must document that, within 24 hours
  339  of admission, individuals admitted on a voluntary basis have
  340  been provided with the option to authorize the release of
  341  information from their clinical record to the individual’s
  342  health care surrogate or proxy, attorney, representative, or
  343  other known emergency contact.
  344         Section 9. Section 397.6772, Florida Statutes, is amended
  345  to read:
  346         397.6772 Protective custody without consent.—
  347         (1) If a person in circumstances which justify protective
  348  custody as described in s. 397.677 fails or refuses to consent
  349  to assistance and a law enforcement officer has determined that
  350  a hospital or a licensed detoxification or addictions receiving
  351  facility is the most appropriate place for the person, the
  352  officer may, after giving due consideration to the expressed
  353  wishes of the person:
  354         (a) Take the person to a hospital or to a licensed
  355  detoxification or addictions receiving facility against the
  356  person’s will but without using unreasonable force. The officer
  357  shall use the standard form developed by the department pursuant
  358  to s. 397.321 to execute a written report detailing the
  359  circumstances under which the person was taken into custody. The
  360  report must include all emergency contact information for the
  361  person that is readily accessible to the law enforcement
  362  officer, including information available through electronic
  363  databases maintained by the Department of Law Enforcement or by
  364  the Department of Highway Safety and Motor Vehicles. Such
  365  emergency contact information may be used by a hospital or
  366  licensed detoxification or addictions receiving facility only
  367  for the purpose of informing listed emergency contacts of a
  368  patient’s whereabouts and shall otherwise remain confidential
  369  and exempt pursuant to s. 119.0712(2)(d). The written report
  370  shall be included in the patient’s clinical record; or
  371         (b) In the case of an adult, detain the person for his or
  372  her own protection in any municipal or county jail or other
  373  appropriate detention facility.
  374  
  375  Such detention is not to be considered an arrest for any
  376  purpose, and no entry or other record may be made to indicate
  377  that the person has been detained or charged with any crime. The
  378  officer in charge of the detention facility must notify the
  379  nearest appropriate licensed service provider within the first 8
  380  hours after detention that the person has been detained. It is
  381  the duty of the detention facility to arrange, as necessary, for
  382  transportation of the person to an appropriate licensed service
  383  provider with an available bed. Persons taken into protective
  384  custody must be assessed by the attending physician within the
  385  72-hour period and without unnecessary delay, to determine the
  386  need for further services.
  387         (2) The law enforcement officer must notify the nearest
  388  relative of a minor in protective custody and must be notified
  389  by the law enforcement officer, as must notify the nearest
  390  relative or other known emergency contact of an adult, unless
  391  the adult requests that there be no notification. The law
  392  enforcement officer must document such notification, and any
  393  attempts at notification, in the written report detailing the
  394  circumstances under which the person was taken into custody as
  395  required under paragraph (1)(a).
  396         Section 10. Paragraph (b) of subsection (1) of section
  397  409.972, Florida Statutes, is amended to read:
  398         409.972 Mandatory and voluntary enrollment.—
  399         (1) The following Medicaid-eligible persons are exempt from
  400  mandatory managed care enrollment required by s. 409.965, and
  401  may voluntarily choose to participate in the managed medical
  402  assistance program:
  403         (b) Medicaid recipients residing in residential commitment
  404  facilities operated through the Department of Juvenile Justice
  405  or a treatment facility as defined in s. 394.455(49) s.
  406  394.455(48).
  407         Section 11. Subsection (7) of section 744.2007, Florida
  408  Statutes, is amended to read:
  409         744.2007 Powers and duties.—
  410         (7) A public guardian may not commit a ward to a treatment
  411  facility, as defined in s. 394.455(49) s. 394.455(48), without
  412  an involuntary placement proceeding as provided by law.
  413         Section 12. This act shall take effect July 1, 2022.
  414  ================= T I T L E  A M E N D M E N T ================
  415  And the title is amended as follows:
  416         Delete everything before the enacting clause
  417  and insert:
  418                        A bill to be entitled                      
  419         An act relating to mental health and substance abuse;
  420         amending s. 394.455, F.S.; defining the term
  421         “telehealth”; amending s. 394.459, F.S.; revising the
  422         conditions under which a patient’s communication with
  423         persons outside of a receiving facility may be
  424         restricted; revising the conditions under which a
  425         patient’s sealed and unopened incoming or outgoing
  426         correspondence may be restricted; revising the
  427         conditions under which a patient’s visitation with
  428         persons outside of a receiving facility may be
  429         restricted; revising the frequency with which the
  430         restriction on a patient’s right to receive visitors
  431         must be reviewed; amending s. 394.4599, F.S.;
  432         requiring a receiving facility to notify specified
  433         emergency contacts of individuals who are being
  434         involuntarily held for examination; amending s.
  435         394.4615, F.S.; requiring receiving facilities to
  436         document that an option to authorize the release of
  437         specified information has been provided, within a
  438         specified timeframe, to individuals admitted on a
  439         voluntary basis; amending s. 394.463, F.S.; requiring
  440         that reports issued by law enforcement officers when
  441         delivering a person to a receiving facility contain
  442         certain information related to emergency contacts;
  443         limiting the use of certain information provided;
  444         maintaining the confidential and exempt status of
  445         certain information provided to a receiving facility;
  446         requiring the Department of Children and Families to
  447         receive and maintain reports relating to the
  448         transportation of patients; authorizing receiving
  449         facility discharge examinations to be conducted
  450         through telehealth; requiring a facility administrator
  451         to file a petition for involuntary placement by a
  452         specified time; authorizing a receiving facility to
  453         postpone the release of a patient if certain
  454         requirements are met; prohibiting certain activities
  455         relating to examination and treatment; providing a
  456         criminal penalty; amending s. 394.468, F.S.; requiring
  457         that discharge and planning procedures include and
  458         document the consideration of specified factors and
  459         actions; amending s. 394.9086; modifying meeting
  460         requirements of the Commission on Mental Health and
  461         Substance Abuse; authorizing reimbursement for per
  462         diem and travel expenses; modifying the due date for
  463         the Commission’s interim report; amending s. 397.601,
  464         F.S.; requiring service providers to document that an
  465         option to authorize the release of specified
  466         information has been provided, within a specified
  467         timeframe, to individuals admitted on a voluntary
  468         basis; amending s. 397.6772, F.S.; requiring law
  469         enforcement officers to include certain information
  470         relating to emergency contacts in reports relating to
  471         the delivery of a person to a hospital or licensed
  472         detoxification or addictions receiving facility;
  473         limiting the use of certain information provided;
  474         maintaining the confidential and exempt status of
  475         certain information provided to a hospital or licensed
  476         detoxification or addictions receiving facility;
  477         amending ss. 409.972 and 744.2007, F.S.; conforming
  478         cross-references; providing an effective date.