Florida Senate - 2022                                    SB 1262
       
       
        
       By Senator Burgess
       
       
       
       
       
       20-01531-22                                           20221262__
    1                        A bill to be entitled                      
    2         An act relating to mental health and substance abuse;
    3         amending s. 394.455, F.S.; defining the term
    4         “telehealth”; amending s. 394.459, F.S.; revising the
    5         conditions under which a patient’s communication with
    6         persons outside of a receiving facility may be
    7         restricted; revising the conditions under which a
    8         patient’s sealed and unopened incoming or outgoing
    9         correspondence may be restricted; revising the
   10         conditions under which a patient’s visitation with
   11         persons outside of a receiving facility may be
   12         restricted; revising the frequency with which the
   13         restriction on a patient’s right to receive visitors
   14         must be reviewed; amending s. 394.4599, F.S.;
   15         requiring a receiving facility to notify specified
   16         emergency contacts of individuals who are being
   17         involuntarily held for examination; amending s.
   18         394.4615, F.S.; requiring receiving facilities to
   19         document that an option to authorize the release of
   20         specified information has been provided, within a
   21         specified timeframe, to individuals admitted on a
   22         voluntary basis; amending s. 394.463, F.S.; requiring
   23         that reports issued by law enforcement officers when
   24         delivering a person to a receiving facility contain
   25         certain information related to emergency contacts;
   26         requiring the Department of Children and Families to
   27         receive and maintain reports relating to the
   28         transportation of patients; authorizing receiving
   29         facility discharge examinations to be conducted
   30         through telehealth; requiring a facility administrator
   31         to file a petition for involuntary placement by a
   32         specified time; authorizing a receiving facility to
   33         postpone the release of a patient if certain
   34         requirements are met; requiring that discharge and
   35         planning procedures include and document the
   36         consideration of specified factors and actions;
   37         prohibiting certain activities relating to examination
   38         and treatment; providing a criminal penalty; amending
   39         s. 397.601, F.S.; requiring service providers to
   40         document that an option to authorize the release of
   41         specified information has been provided, within a
   42         specified timeframe, to individuals admitted on a
   43         voluntary basis; amending s. 397.6772, F.S.; requiring
   44         law enforcement officers to include certain
   45         information relating to emergency contacts in reports
   46         relating to the delivery of a person to a receiving
   47         facility; amending ss. 409.972 and 744.2007, F.S.;
   48         conforming cross-references; providing an effective
   49         date.
   50          
   51  Be It Enacted by the Legislature of the State of Florida:
   52  
   53         Section 1. Present subsections (47), (48), and (49) of
   54  section 394.455, Florida Statutes, are redesignated as
   55  subsections (48), (49), and (50), respectively, and a new
   56  subsection (47) is added to that section, to read:
   57         394.455 Definitions.—As used in this part, the term:
   58         (47) Telehealth has the same meaning as provided in s.
   59  456.47.
   60         Section 2. Paragraphs (a), (b), and (c) of subsection (5)
   61  of section 394.459, Florida Statutes, are amended to read:
   62         394.459 Rights of patients.—
   63         (5) COMMUNICATION, ABUSE REPORTING, AND VISITS.—
   64         (a) Each person receiving services in a facility providing
   65  mental health services under this part has the right to
   66  communicate freely and privately with persons outside the
   67  facility unless a qualified professional determines it is
   68  determined that such communication is likely to be harmful to
   69  the person or others in a manner directly related to the
   70  persons clinical well-being or to the well-being of others.
   71  Each facility shall make available as soon as reasonably
   72  possible to persons receiving services a telephone that allows
   73  for free local calls and access to a long-distance service. A
   74  facility is not required to pay the costs of a patient’s long
   75  distance calls. The telephone shall be readily accessible to the
   76  patient and shall be placed so that the patient may use it to
   77  communicate privately and confidentially. The facility may
   78  establish reasonable rules for the use of this telephone,
   79  provided that the rules do not interfere with a patient’s access
   80  to a telephone to report abuse pursuant to paragraph (e).
   81         (b) Each patient admitted to a facility under the
   82  provisions of this part shall be allowed to receive, send, and
   83  mail sealed, unopened correspondence; and no patient’s incoming
   84  or outgoing correspondence shall be opened, delayed, held, or
   85  censored by the facility unless a qualified professional
   86  determines that such correspondence is likely to be harmful to
   87  the patient or others in a manner directly related to the
   88  patient’s clinical well-being or to the well-being of others, or
   89  there is reason to believe that such correspondence it contains
   90  items or substances which may be harmful to the patient or
   91  others, in which case the administrator may direct reasonable
   92  examination of such mail and may regulate the disposition of
   93  such items or substances.
   94         (c) Each facility must permit immediate access to any
   95  patient, subject to the patient’s right to deny or withdraw
   96  consent at any time, by the patient’s family members, guardian,
   97  guardian advocate, representative, Florida statewide or local
   98  advocacy council, or attorney, unless a qualified professional
   99  determines that such access would be detrimental to the patient
  100  in a manner directly related to the patient’s clinical well
  101  being. If a patient’s right to communicate or to receive
  102  visitors is restricted by the facility, written notice of such
  103  restriction and the reasons for the restriction shall be served
  104  on the patient, the patient’s attorney, and the patient’s
  105  guardian, guardian advocate, or representative; and such
  106  restriction shall be recorded on the patient’s clinical record
  107  with the reasons therefor. The restriction of a patient’s right
  108  to communicate or to receive visitors shall be reviewed at least
  109  every 4 7 days. The right to communicate or receive visitors
  110  shall not be restricted as a means of punishment. Nothing in
  111  this paragraph shall be construed to limit the provisions of
  112  paragraph (d).
  113         Section 3. Paragraph (b) of subsection (2) of section
  114  394.4599, Florida Statutes, is amended to read:
  115         394.4599 Notice.—
  116         (2) INVOLUNTARY ADMISSION.—
  117         (b) A receiving facility shall give prompt notice of the
  118  whereabouts of an individual who is being involuntarily held for
  119  examination to the individual’s guardian, guardian advocate,
  120  health care surrogate or proxy, attorney or representative, or
  121  other emergency contact identified through electronic databases
  122  pursuant to s. 394.463(2)(a), by telephone or in person within
  123  24 hours after the individual’s arrival at the facility. Contact
  124  attempts shall be documented in the individual’s clinical record
  125  and shall begin as soon as reasonably possible after the
  126  individual’s arrival.
  127         Section 4. Paragraph (a) of subsection (2) of section
  128  394.4615, Florida Statutes, is amended to read:
  129         394.4615 Clinical records; confidentiality.—
  130         (2) The clinical record shall be released when:
  131         (a) The patient or the patient’s guardian authorizes the
  132  release. The guardian or guardian advocate shall be provided
  133  access to the appropriate clinical records of the patient. The
  134  patient or the patient’s guardian or guardian advocate may
  135  authorize the release of information and clinical records to
  136  appropriate persons to ensure the continuity of the patient’s
  137  health care or mental health care. A receiving facility must
  138  document that, within 24 hours of admission, individuals
  139  admitted on a voluntary basis have been provided with the option
  140  to authorize the release of information from their clinical
  141  record to the individual’s health care surrogate or proxy,
  142  attorney, representative, or other known emergency contact.
  143         Section 5. Present paragraphs (h) and (i) of subsection (2)
  144  of section 394.463, Florida Statutes, are redesignated as
  145  paragraphs (i) and (j), respectively, a new paragraph (h) is
  146  added to that subsection, paragraphs (a), (e), (f), and (g) of
  147  that subsection are amended, and subsection (5) is added to that
  148  section, to read:
  149         394.463 Involuntary examination.—
  150         (2) INVOLUNTARY EXAMINATION.—
  151         (a) An involuntary examination may be initiated by any one
  152  of the following means:
  153         1. A circuit or county court may enter an ex parte order
  154  stating that a person appears to meet the criteria for
  155  involuntary examination and specifying the findings on which
  156  that conclusion is based. The ex parte order for involuntary
  157  examination must be based on written or oral sworn testimony
  158  that includes specific facts that support the findings. If other
  159  less restrictive means are not available, such as voluntary
  160  appearance for outpatient evaluation, a law enforcement officer,
  161  or other designated agent of the court, shall take the person
  162  into custody and deliver him or her to an appropriate, or the
  163  nearest, facility within the designated receiving system
  164  pursuant to s. 394.462 for involuntary examination. The order of
  165  the court shall be made a part of the patient’s clinical record.
  166  A fee may not be charged for the filing of an order under this
  167  subsection. A facility accepting the patient based on this order
  168  must send a copy of the order to the department within 5 working
  169  days. The order may be submitted electronically through existing
  170  data systems, if available. The order shall be valid only until
  171  the person is delivered to the facility or for the period
  172  specified in the order itself, whichever comes first. If a time
  173  limit is not specified in the order, the order is valid for 7
  174  days after the date that the order was signed.
  175         2. A law enforcement officer shall take a person who
  176  appears to meet the criteria for involuntary examination into
  177  custody and deliver the person or have him or her delivered to
  178  an appropriate, or the nearest, facility within the designated
  179  receiving system pursuant to s. 394.462 for examination. The
  180  officer shall execute a written report detailing the
  181  circumstances under which the person was taken into custody,
  182  which must be made a part of the patient’s clinical record. The
  183  report must include all emergency contact information for the
  184  person that is readily accessible to the law enforcement
  185  officer, including information available through electronic
  186  databases maintained by the Department of Law Enforcement or by
  187  the Department of Highway Safety and Motor Vehicles. Any
  188  facility accepting the patient based on this report must send a
  189  copy of the report to the department within 5 working days.
  190         3. A physician, a physician assistant, a clinical
  191  psychologist, a psychiatric nurse, an advanced practice
  192  registered nurse registered under s. 464.0123, a mental health
  193  counselor, a marriage and family therapist, or a clinical social
  194  worker may execute a certificate stating that he or she has
  195  examined a person within the preceding 48 hours and finds that
  196  the person appears to meet the criteria for involuntary
  197  examination and stating the observations upon which that
  198  conclusion is based. If other less restrictive means, such as
  199  voluntary appearance for outpatient evaluation, are not
  200  available, a law enforcement officer shall take into custody the
  201  person named in the certificate and deliver him or her to the
  202  appropriate, or nearest, facility within the designated
  203  receiving system pursuant to s. 394.462 for involuntary
  204  examination. The law enforcement officer shall execute a written
  205  report detailing the circumstances under which the person was
  206  taken into custody. The report must include all emergency
  207  contact information for the person that is readily accessible to
  208  the law enforcement officer, including information available
  209  through electronic databases maintained by the Department of Law
  210  Enforcement or by the Department of Highway Safety and Motor
  211  Vehicles. The report and certificate shall be made a part of the
  212  patient’s clinical record. Any facility accepting the patient
  213  based on this certificate must send a copy of the certificate to
  214  the department within 5 working days. The document may be
  215  submitted electronically through existing data systems, if
  216  applicable.
  217  
  218  When sending the order, report, or certificate to the
  219  department, a facility shall, at a minimum, provide information
  220  about which action was taken regarding the patient under
  221  paragraph (g), which information shall also be made a part of
  222  the patient’s clinical record.
  223         (e) The department shall receive and maintain the copies of
  224  ex parte orders, involuntary outpatient services orders issued
  225  pursuant to s. 394.4655, involuntary inpatient placement orders
  226  issued pursuant to s. 394.467, professional certificates, and
  227  law enforcement officers’ reports, and reports relating to the
  228  transportation of patients. These documents shall be considered
  229  part of the clinical record, governed by the provisions of s.
  230  394.4615. These documents shall be used to prepare annual
  231  reports analyzing the data obtained from these documents,
  232  without information identifying patients, and shall provide
  233  copies of reports to the department, the President of the
  234  Senate, the Speaker of the House of Representatives, and the
  235  minority leaders of the Senate and the House of Representatives.
  236         (f) A patient shall be examined by a physician or a
  237  clinical psychologist, or by a psychiatric nurse performing
  238  within the framework of an established protocol with a
  239  psychiatrist at a facility without unnecessary delay to
  240  determine if the criteria for involuntary services are met.
  241  Emergency treatment may be provided upon the order of a
  242  physician if the physician determines that such treatment is
  243  necessary for the safety of the patient or others. The patient
  244  may not be released by the receiving facility or its contractor
  245  without the documented approval of a psychiatrist or a clinical
  246  psychologist or, if the receiving facility is owned or operated
  247  by a hospital or health system, the release may also be approved
  248  by a psychiatric nurse performing within the framework of an
  249  established protocol with a psychiatrist, or an attending
  250  emergency department physician with experience in the diagnosis
  251  and treatment of mental illness after completion of an
  252  involuntary examination pursuant to this subsection. A
  253  psychiatric nurse may not approve the release of a patient if
  254  the involuntary examination was initiated by a psychiatrist
  255  unless the release is approved by the initiating psychiatrist.
  256  The release may be approved through telehealth.
  257         (g) The examination period must be for up to 72 hours. For
  258  a minor, the examination shall be initiated within 12 hours
  259  after the patient’s arrival at the facility. Within the
  260  examination period or, if the examination period ends on a
  261  weekend or holiday, no later than the next working day
  262  thereafter, one of the following actions must be taken, based on
  263  the individual needs of the patient:
  264         1. The patient shall be released, unless he or she is
  265  charged with a crime, in which case the patient shall be
  266  returned to the custody of a law enforcement officer;
  267         2. The patient shall be released, subject to subparagraph
  268  1., for voluntary outpatient treatment;
  269         3. The patient, unless he or she is charged with a crime,
  270  shall be asked to give express and informed consent to placement
  271  as a voluntary patient and, if such consent is given, the
  272  patient shall be admitted as a voluntary patient; or
  273         4. A petition for involuntary services shall be filed in
  274  the circuit court if inpatient treatment is deemed necessary or
  275  with the criminal county court, as defined in s. 394.4655(1), as
  276  applicable. When inpatient treatment is deemed necessary, the
  277  least restrictive treatment consistent with the optimum
  278  improvement of the patient’s condition shall be made available.
  279  When a petition is to be filed for involuntary outpatient
  280  placement, it shall be filed by one of the petitioners specified
  281  in s. 394.4655(4)(a). A petition for involuntary inpatient
  282  placement shall be filed by the facility administrator. If a
  283  patient’s 72-hour examination period ends on a weekend or
  284  holiday, a petition may be filed no later than the next working
  285  day thereafter.
  286         (h)If the examination period ends on a weekend or holiday,
  287  a receiving facility may postpone release of a patient until the
  288  next working day thereafter only if a qualified professional
  289  documents that adequate discharge planning and procedures are
  290  not possible until the next working day. Discharge planning and
  291  procedures must include and document consideration of the
  292  following:
  293         1.The patient’s transportation resources;
  294         2.The patient’s access to stable living arrangements;
  295         3.How assistance in securing needed living arrangements or
  296  shelter will be provided to patients at risk of readmission
  297  within the 3 weeks immediately following discharge due to
  298  homelessness or transient status. The discharging facility must
  299  document that, before discharging the patient, it has requested
  300  a commitment from a shelter provider that assistance will be
  301  rendered;
  302         4.The availability of assistance in obtaining a timely
  303  aftercare appointment for needed services, including
  304  continuation of prescribed psychotropic medications. Aftercare
  305  appointments for psychotropic medication and case management
  306  must be requested to occur not later than 7 days after the
  307  expected date of discharge; if the discharge is delayed, the
  308  discharging facility must document notification of the delay to
  309  the aftercare provider. The discharging facility shall
  310  coordinate with the aftercare service provider and document the
  311  aftercare planning;
  312         5.The availability of, and access to, prescribed
  313  psychotropic medications in the community. To ensure a patient’s
  314  safety and provision of continuity of essential psychotropic
  315  medications, such prescribed psychotropic medications,
  316  prescriptions, multiple partial prescriptions for psychotropic
  317  medications, or a combination thereof, must be provided to the
  318  patient upon discharge to cover the intervening days until the
  319  first scheduled psychotropic medication aftercare appointment,
  320  up to a maximum of 21 calendar days;
  321         6.The provision of education and written information about
  322  the patient’s illness and psychotropic medications, including
  323  other prescribed and over-the-counter medications; the common
  324  side-effects of any medications prescribed; and any common
  325  adverse clinically significant drug-to-drug interactions between
  326  that medication and other commonly available prescribed and
  327  over-the-counter medications;
  328         7.The provision of contact and program information about,
  329  and referral to, any community-based peer support services in
  330  the community;
  331         8.The provision of contact and program information about,
  332  and referral to, any needed community resources;
  333         9.Referral to substance abuse treatment programs, trauma
  334  or abuse recovery-focused programs, or other self-help groups,
  335  if indicated by assessments; and
  336         10.The provision of information about advance directives,
  337  including how to prepare and use them.
  338         (5) UNLAWFUL ACTIVITIES RELATING TO EXAMINATION AND
  339  TREATMENT; PENALTIES.—
  340         (a)A person may not:
  341         1.Knowingly furnish false information for the purpose of
  342  obtaining emergency or other involuntary admission of another;
  343         2.Cause or otherwise secure, or conspire with or assist
  344  another to cause or secure, without reason for believing a
  345  person to be impaired, any emergency or other involuntary
  346  procedure of another person; or
  347         3.Cause, or conspire with or assist another to cause, the
  348  denial to any person of any right accorded pursuant to this
  349  chapter.
  350         (b)A person who violates this subsection commits a
  351  misdemeanor of the second degree, punishable as provided in s.
  352  775.082 and by a fine not exceeding $5,000.
  353         Section 6. Subsection (5) is added to section 397.601,
  354  Florida Statutes, to read:
  355         397.601 Voluntary admissions.—
  356         (5) A service provider must document that, within 24 hours
  357  of admission, individuals admitted on a voluntary basis have
  358  been provided with the option to authorize the release of
  359  information from their clinical record to the individual’s
  360  health care surrogate or proxy, attorney, representative, or
  361  other known emergency contact.
  362         Section 7. Section 397.6772, Florida Statutes, is amended
  363  to read:
  364         397.6772 Protective custody without consent.—
  365         (1) If a person in circumstances which justify protective
  366  custody as described in s. 397.677 fails or refuses to consent
  367  to assistance and a law enforcement officer has determined that
  368  a hospital or a licensed detoxification or addictions receiving
  369  facility is the most appropriate place for the person, the
  370  officer may, after giving due consideration to the expressed
  371  wishes of the person:
  372         (a) Take the person to a hospital or to a licensed
  373  detoxification or addictions receiving facility against the
  374  person’s will but without using unreasonable force. The officer
  375  shall use the standard form developed by the department pursuant
  376  to s. 397.321 to execute a written report detailing the
  377  circumstances under which the person was taken into custody. The
  378  report must include all emergency contact information for the
  379  person that is readily accessible to the law enforcement
  380  officer, including information available through electronic
  381  databases maintained by the Department of Law Enforcement or by
  382  the Department of Highway Safety and Motor Vehicles. The written
  383  report shall be included in the patient’s clinical record; or
  384         (b) In the case of an adult, detain the person for his or
  385  her own protection in any municipal or county jail or other
  386  appropriate detention facility.
  387  
  388  Such detention is not to be considered an arrest for any
  389  purpose, and no entry or other record may be made to indicate
  390  that the person has been detained or charged with any crime. The
  391  officer in charge of the detention facility must notify the
  392  nearest appropriate licensed service provider within the first 8
  393  hours after detention that the person has been detained. It is
  394  the duty of the detention facility to arrange, as necessary, for
  395  transportation of the person to an appropriate licensed service
  396  provider with an available bed. Persons taken into protective
  397  custody must be assessed by the attending physician within the
  398  72-hour period and without unnecessary delay, to determine the
  399  need for further services.
  400         (2) The law enforcement officer must notify the nearest
  401  relative of a minor in protective custody and must be notified
  402  by the law enforcement officer, as must notify the nearest
  403  relative or other known emergency contact of an adult, unless
  404  the adult requests that there be no notification. The law
  405  enforcement officer must document such notification, and any
  406  attempts at notification, in the written report detailing the
  407  circumstances under which the person as taken into custody
  408  required under paragraph (1)(a).
  409         Section 8. Paragraph (b) of subsection (1) of section
  410  409.972, Florida Statutes, is amended to read:
  411         409.972 Mandatory and voluntary enrollment.—
  412         (1) The following Medicaid-eligible persons are exempt from
  413  mandatory managed care enrollment required by s. 409.965, and
  414  may voluntarily choose to participate in the managed medical
  415  assistance program:
  416         (b) Medicaid recipients residing in residential commitment
  417  facilities operated through the Department of Juvenile Justice
  418  or a treatment facility as defined in s. 394.455(49) s.
  419  394.455(48).
  420         Section 9. Subsection (7) of section 744.2007, Florida
  421  Statutes, is amended to read:
  422         744.2007 Powers and duties.—
  423         (7) A public guardian may not commit a ward to a treatment
  424  facility, as defined in s. 394.455(49) s. 394.455(48), without
  425  an involuntary placement proceeding as provided by law.
  426         Section 10. This act shall take effect July 1, 2022.