C:\data\acrobat\senate\billtext\s1090er.txt

ENROLLED

2005 Legislature

CS for CS for SB 1090, 1st Engrossed

An act relating to mental health care services

for minors and incapacitated persons; amending

s. 39.402, F.S.; requiring a child's parent or

legal guardian to provide certain information

to the Department of Children and Family

Services; amending s. 39.407, F.S.; specifying

requirements for the department with respect to

providing psychotropic medication to a child in

the custody of the department; requiring that

the prescribing physician attempt to obtain

express and informed parental consent for

providing such medication; authorizing the

department to provide psychotropic medication

without such consent under certain

circumstances; requiring the department to

provide medical information to a physician

under certain circumstances; requiring that the

child be evaluated by a physician; requiring

that the department obtain court authorization

for providing such medication within a

specified period; providing requirements for a

motion by the department seeking court

authorization to provide psychotropic

medication; specifying circumstances under

which medication may be provided in advance of

a court order; requiring that notice be

provided to all parties if the department

proposes to provide psychotropic medication to

the child; requiring that a hearing be held if

any party objects; providing requirements for

CODING:

Words stricken are deletions; words underlined are additions.

ENROLLED

2005 Legislature

CS for CS for SB 1090, 1st Engrossed

the hearing; authorizing the court to order

additional medical consultation; specifying the

required burden of proof with respect to

evidence presented at the hearing; requiring

that the department provide a child's medical

records to the court; providing requirements

for court review; authorizing the court to

order the department to obtain a medical

opinion; requiring that the department adopt

rules to ensure that children receive

appropriate psychotropic medications;

specifying the provisions to be included in the

rules; conforming a cross-reference; amending

s. 394.459, F.S., relating to the rights of

patients under the Florida Mental Health Act;

revising provisions requiring that a patient be

asked to give express and informed consent

before admission or treatment; requiring that

additional information be provided with respect

to the risks and benefits of treatment, the

dosage range of medication, potential side

effects, and the monitoring of treatment;

clarifying provisions governing the manner in

which consent may be revoked; requiring that

facilities develop a system for investigating

and responding to certain complaints; amending

s. 743.0645, F.S.; redefining the term "medical

care and treatment" for purposes of obtaining

consent for the medical treatment of a minor;

providing an exception with respect to the

consent provided under s. 39.407, F.S.;

CODING:

Words stricken are deletions; words underlined are additions.

ENROLLED

2005 Legislature

CS for CS for SB 1090, 1st Engrossed

directing the department to conduct an

assessment; requiring a report; creating s.

1006.0625, F.S.; defining the term

"psychotropic medication"; prohibiting a public

school from denying a student access to

programs or services under certain conditions;

authorizing public school teachers and school

district personnel to share certain information

with a student's parent; prohibiting public

school teachers and school district personnel

from compelling certain actions by a parent;

authorizing the refusal of psychological

screening; providing for medical decisionmaking

authority; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Subsection (11) of section 39.402, Florida

Statutes, is amended to read:

39.402 Placement in a shelter.--

(11)(a) If a child is placed in a shelter pursuant to

a court order following a shelter hearing, the court shall

require in the shelter hearing order that the parents of the

child, or the guardian of the child's estate, if possessed of

assets which under law may be disbursed for the care, support,

and maintenance of the child, to pay, to the department or

institution having custody of the child, fees as established

by the department. When the order affects the guardianship

estate, a certified copy of the order shall be delivered to

the judge having jurisdiction of the guardianship estate. The

shelter order shall also require the parents to provide to the

CODING:

Words stricken are deletions; words underlined are additions.

ENROLLED

2005 Legislature

CS for CS for SB 1090, 1st Engrossed

department and any other state agency or party designated by

the court, within 28 days after entry of the shelter order,

the financial information necessary to accurately calculate

child support pursuant to s. 61.30.

(b) The parent or legal guardian shall provide all

known medical information to the department.

Section 2. Present subsections (3) through (14) of

section 39.407, Florida Statutes, are redesignated as

subsections (4) through (15), respectively, a new subsection

(3) is added to that section, and present subsection (4) of

that section is amended, to read:

39.407 Medical, psychiatric, and psychological

examination and treatment of child; physical or mental

examination of parent or person requesting custody of child.--

(3)(a)1. Except as otherwise provided in subparagraph

(b)1. or paragraph (e), before the department provides

psychotropic medications to a child in its custody, the

prescribing physician shall attempt to obtain express and

informed consent, as defined in s. 394.455(9) and as described

in s. 394.459(3)(a), from the child's parent or legal

guardian. The department must take steps necessary to

facilitate the inclusion of the parent in the child's

consultation with the physician. However, if the parental

rights of the parent have been terminated, the parent's

location or identity is unknown or cannot reasonably be

ascertained, or the parent declines to give express and

informed consent, the department may, after consultation with

the prescribing physician, seek court authorization to provide

the psychotropic medications to the child. Unless parental

rights have been terminated and if it is possible to do so,

the department shall continue to involve the parent in the

CODING:

Words stricken are deletions; words underlined are additions.

ENROLLED

2005 Legislature

CS for CS for SB 1090, 1st Engrossed

decisionmaking process regarding the provision of psychotropic

medications. If, at any time, a parent whose parental rights

have not been terminated provides express and informed consent

to the provision of a psychotropic medication, the

requirements of this section that the department seek court

authorization do not apply to that medication until such time

as the parent no longer consents.

2. Any time the department seeks a medical evaluation

to determine the need to initiate or continue a psychotropic

medication for a child, the department must provide to the

evaluating physician all pertinent medical information known

to the department concerning that child.

(b)1. If a child who is removed from the home under s.

39.401 is receiving prescribed psychotropic medication at the

time of removal and parental authorization to continue

providing the medication cannot be obtained, the department

may take possession of the remaining medication and may

continue to provide the medication as prescribed until the

shelter hearing, if it is determined that the medication is a

current prescription for that child and the medication is in

its original container.

2. If the department continues to provide the

psychotropic medication to a child when parental authorization

cannot be obtained, the department shall notify the parent or

legal guardian as soon as possible that the medication is

being provided to the child as provided in subparagraph 1. The

child's official departmental record must include the reason

parental authorization was not initially obtained and an

explanation of why the medication is necessary for the child's

well-being.

CODING:

Words stricken are deletions; words underlined are additions.

ENROLLED

2005 Legislature

CS for CS for SB 1090, 1st Engrossed

3. If the department is advised by a physician

licensed under chapter 458 or chapter 459 that the child

should continue the psychotropic medication and parental

authorization has not been obtained, the department shall

request court authorization at the shelter hearing to continue

to provide the psychotropic medication and shall provide to

the court any information in its possession in support of the

request. Any authorization granted at the shelter hearing may

extend only until the arraignment hearing on the petition for

adjudication of dependency or 28 days following the date of

removal, whichever occurs sooner.

4. Before filing the dependency petition, the

department shall ensure that the child is evaluated by a

physician licensed under chapter 458 or chapter 459 to

determine whether it is appropriate to continue the

psychotropic medication. If, as a result of the evaluation,

the department seeks court authorization to continue the

psychotropic medication, a motion for such continued

authorization shall be filed at the same time as the

dependency petition, within 21 days after the shelter hearing.

department must file a motion seeking the court's

authorization to initially provide or continue to provide

psychotropic medication to a child in its legal custody. The

motion must be supported by a written report prepared by the

department which describes the efforts made to enable the

prescribing physician to obtain express and informed consent

for providing the medication to the child and other treatments

considered or recommended for the child. In addition, the

motion must be supported by the prescribing physician's signed

medical report providing:

CODING:

Words stricken are deletions; words underlined are additions.

ENROLLED

2005 Legislature

CS for CS for SB 1090, 1st Engrossed

1. The name of the child, the name and range of the

dosage of the psychotropic medication, and that there is a

need to prescribe psychotropic medication to the child based

upon a diagnosed condition for which such medication is being

prescribed.

2. A statement indicating that the physician has

reviewed all medical information concerning the child which

has been provided.

3. A statement indicating that the psychotropic

medication, at its prescribed dosage, is appropriate for

treating the child's diagnosed medical condition, as well as

the behaviors and symptoms the medication, at its prescribed

dosage, is expected to address.

4. An explanation of the nature and purpose of the

treatment; the recognized side effects, risks, and

contraindications of the medication; drug-interaction

precautions; the possible effects of stopping the medication;

and how the treatment will be monitored, followed by a

statement indicating that this explanation was provided to the

child if age appropriate and to the child's caregiver.

5. Documentation addressing whether the psychotropic

medication will replace or supplement any other currently

prescribed medications or treatments; the length of time the

child is expected to be taking the medication; and any

additional medical, mental health, behavioral, counseling, or

other services that the prescribing physician recommends.

(d)1. The department must notify all parties of the

proposed action taken under paragraph (c) in writing or by

whatever other method best ensures that all parties receive

notification of the proposed action within 48 hours after the

motion is filed. If any party objects to the department's

CODING:

Words stricken are deletions; words underlined are additions.

ENROLLED

2005 Legislature

CS for CS for SB 1090, 1st Engrossed

motion, that party shall file the objection within 2 working

days after being notified of the department's motion. If any

party files an objection to the authorization of the proposed

psychotropic medication, the court shall hold a hearing as

soon as possible before authorizing the department to

initially provide or to continue providing psychotropic

medication to a child in the legal custody of the department.

At such hearing and notwithstanding s. 90.803, the medical

report described in paragraph (c) is admissible in evidence.

The prescribing physician need not attend the hearing or

testify unless the court specifically orders such attendance

or testimony, or a party subpoenas the physician to attend the

hearing or provide testimony. If, after considering any

testimony received, the court finds that the department's

motion and the physician's medical report meet the

requirements of this subsection and that it is in the child's

best interests, the court may order that the department

provide or continue to provide the psychotropic medication to

the child without additional testimony or evidence. At any

hearing held under this paragraph, the court shall further

inquire of the department as to whether additional medical,

mental health, behavioral, counseling, or other services are

being provided to the child by the department which the

prescribing physician considers to be necessary or beneficial

in treating the child's medical condition and which the

physician recommends or expects to provide to the child in

concert with the medication. The court may order additional

medical consultation, including consultation with the

MedConsult line at the University of Florida, if available, or

require the department to obtain a second opinion within a

reasonable timeframe as established by the court, not to

CODING:

Words stricken are deletions; words underlined are additions.

ENROLLED

2005 Legislature

CS for CS for SB 1090, 1st Engrossed

exceed 21 calendar days, after such order based upon

consideration of the best interests of the child. The

department must make a referral for an appointment for a

second opinion with a physician within 1 working day. The

court may not order the discontinuation of prescribed

psychotropic medication if such order is contrary to the

decision of the prescribing physician unless the court first

obtains an opinion from a licensed psychiatrist, if available,

or, if not available, a physician licensed under chapter 458

or chapter 459, stating that more likely than not,

discontinuing the medication would not cause significant harm

to the child. If, however, the prescribing psychiatrist

specializes in mental health care for children and

adolescents, the court may not order the discontinuation of

prescribed psychotropic medication unless the required opinion

is also from a psychiatrist who specializes in mental health

care for children and adolescents. The court may also order

the discontinuation of prescribed psychotropic medication if a

child's treating physician, licensed under chapter 458 or

chapter 459, states that continuing the prescribed

psychotropic medication would cause significant harm to the

child due to a diagnosed nonpsychiatric medical condition.

2. The burden of proof at any hearing held under this

paragraph shall be by a preponderance of the evidence.

(e)1. If the child's prescribing physician certifies

in the signed medical report required in paragraph (c) that

delay in providing a prescribed psychotropic medication would

more likely than not cause significant harm to the child, the

medication may be provided in advance of the issuance of a

court order. In such event, the medical report must provide

the specific reasons why the child may experience significant

CODING:

Words stricken are deletions; words underlined are additions.

ENROLLED

2005 Legislature

CS for CS for SB 1090, 1st Engrossed

harm and the nature and the extent of the potential harm. The

department must submit a motion seeking continuation of the

medication and the physician's medical report to the court,

the child's guardian ad litem, and all other parties within 3

working days after the department commences providing the

medication to the child. The department shall seek the order

at the next regularly scheduled court hearing required under

this chapter, or within 30 days after the date of the

prescription, whichever occurs sooner. If any party objects to

the department's motion, the court shall hold a hearing within

7 days.

2. Psychotropic medications may be administered in

advance of a court order in hospitals, crisis stabilization

units, and in statewide inpatient psychiatric programs. Within

3 working days after the medication is begun, the department

must seek court authorization as described in paragraph (c).

(f)1. The department shall fully inform the court of

the child's medical and behavioral status as part of the

social services report prepared for each judicial review

hearing held for a child for whom psychotropic medication has

been prescribed or provided under this subsection. As a part

of the information provided to the court, the department shall

furnish copies of all pertinent medical records concerning the

child which have been generated since the previous hearing. On

its own motion or on good cause shown by any party, including

any guardian ad litem, attorney, or attorney ad litem who has

been appointed to represent the child or the child's

interests, the court may review the status more frequently

than required in this subsection.

2. The court may, in the best interests of the child,

order the department to obtain a medical opinion addressing

CODING:

Words stricken are deletions; words underlined are additions.

ENROLLED

2005 Legislature

CS for CS for SB 1090, 1st Engrossed

whether the continued use of the medication under the

circumstances is safe and medically appropriate.

(g) The department shall adopt rules to ensure that

children receive timely access to clinically appropriate

psychotropic medications. These rules must include, but need

not be limited to, the process for determining which

adjunctive services are needed, the uniform process for

facilitating the prescribing physician's ability to obtain the

express and informed consent of a child's parent or guardian,

the procedures for obtaining court authorization for the

provision of a psychotropic medication, the frequency of

medical monitoring and reporting on the status of the child to

the court, how the child's parents will be involved in the

treatment-planning process if their parental rights have not

been terminated, and how caretakers are to be provided

information contained in the physician's signed medical

report. The rules must also include uniform forms to be used

in requesting court authorization for the use of a

psychotropic medication and provide for the integration of

each child's treatment plan and case plan. The department must

begin the formal rulemaking process within 90 days after the

effective date of this act.

(5)(4) A judge may order a child in an out-of-home

placement to be treated by a licensed health care professional

based on evidence that the child should receive treatment.

The judge may also order such child to receive mental health

or developmental disabilities services from a psychiatrist,

psychologist, or other appropriate service provider. Except

as provided in subsection(6)(5), if it is necessary to place

the child in a residential facility for such services, the

procedures and criteria established in s. 394.467 or chapter

CODING:

Words stricken are deletions; words underlined are additions.

ENROLLED

2005 Legislature

CS for CS for SB 1090, 1st Engrossed

393 shall be used, whichever is applicable. A child may be

provided developmental disabilities or mental health services

in emergency situations, pursuant to the procedures and

criteria contained in s. 394.463(1) or chapter 393, whichever

is applicable.

Section 3. Paragraph (a) of subsection (3) and

paragraph (b) of subsection (4) of section 394.459, Florida

Statutes, are amended to read:

394.459 Rights of patients.--

(3) RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT.--

(a)1. Each patient entering treatment shall be asked

to give express and informed consent for admission or and

treatment. If the patient has been adjudicated incapacitated

or found to be incompetent to consent to treatment, express

and informed consent to treatment shall be sought instead from

the patient's guardian or guardian advocate. If the patient

is a minor, express and informed consent for admission or and

treatment shall also be requested from the patient's guardian.

Express and informed consent for admission or and treatment of

a patient under 18 years of age shall be required from the

patient's guardian, unless the minor is seeking outpatient

crisis intervention services under s. 394.4784. Express and

informed consent for admission or and treatment given by a

patient who is under 18 years of age shall not be a condition

of admission when the patient's guardian gives express and

informed consent for the patient's admission pursuant to s.

394.463 or s. 394.467.

2. Before Prior to giving express and informed

consent, the following information shall be provided and

explained in plain language disclosed to the patient, or to

the patient's guardian if the patient is 18 years of age or

CODING:

Words stricken are deletions; words underlined are additions.

ENROLLED

2005 Legislature

CS for CS for SB 1090, 1st Engrossed

older and has been adjudicated incapacitated, or to the

patient's guardian advocate if the patient has been found to

be incompetent to consent to treatment, or to both the patient

and the guardian if the patient is a minor: the reason for

admission or treatment;, the proposed treatment;, the purpose

of the treatment to be provided;, the common risks, benefits,

and side effects thereof; the specific dosage range for the

medication, when applicable;, alternative treatment

modalities;, the approximate length of care; the potential

effects of stopping treatment; how treatment will be

monitored;, and that any consent given for treatment by a

patient may be revoked orally or in writing before prior to or

during the treatment period by the patient or by a person who

is legally authorized to make health care decisions on behalf

of the patient, the guardian advocate, or the guardian.

(4) QUALITY OF TREATMENT.--

(b) Receiving and treatment Facilities shall develop

and maintain, in a form accessible to and readily

understandable by patients and consistent with rules adopted

by the department, the following:

1. Criteria, procedures, and required staff training

for any use of close or elevated levels of supervision, of

restraint, seclusion, or isolation, or of emergency treatment

orders, and for the use of bodily control and physical

management techniques.

2. Procedures for documenting, monitoring, and

requiring clinical review of all uses of the procedures

described in subparagraph 1. and for documenting and requiring

review of any incidents resulting in injury to patients.

3. A system for investigating, tracking, managing, and

responding to the review of complaints by persons receiving

CODING:

Words stricken are deletions; words underlined are additions.

ENROLLED

2005 Legislature

CS for CS for SB 1090, 1st Engrossed

services or individuals acting on their behalf patients or

their families or guardians.

Section 4. Paragraph (b) of subsection (1) of section

743.0645, Florida Statutes, is amended to read:

743.0645 Other persons who may consent to medical care

or treatment of a minor.--

(1) As used in this section, the term:

(b) "Medical care and treatment" includes ordinary and

necessary medical and dental examination and treatment,

including blood testing, preventive care including ordinary

immunizations, tuberculin testing, and well-child care, but

does not include surgery, general anesthesia, provision of

psychotropic medications, or other extraordinary procedures

for which a separate court order, power of attorney, or

informed consent as provided by law is required, except as

provided in s. 39.407(3).

Section 5. The Department of Children and Family

Services shall assess and document the positive and negative

fiscal impact of the provisions of this act on the department,

taking into consideration costs incurred prior to July 1,

2005. The department shall submit a report with its findings

to the President of the Senate and the Speaker of the House of

Representatives by February 1, 2006.

Section 6. Section 1006.0625, Florida Statutes, is

created to read:

1006.0625 Administration of psychotropic medication;

prohibition; conditions.--

(1) As used in this section, the term "psychotropic

medication" means a prescription medication that is used for

the treatment of mental disorders and includes, without

limitation, antihypnotics, antipsychotics, antidepressants,

CODING:

Words stricken are deletions; words underlined are additions.

ENROLLED

2005 Legislature

CS for CS for SB 1090, 1st Engrossed

anxiety agents, sedatives, psychomotor stimulants, and mood

stabilizers.

(2) A public school may not deny any student access to

programs or services because the parent of the student has

refused to place the student on psychotropic medication.

(3) A public school teacher and school district

personnel may share school-based observations of a student's

academic, functional, and behavioral performance with the

student's parent and offer program options and other

assistance that is available to the parent and the student

based on the observations. However, a public school teacher

and school district personnel may not compel or attempt to

compel any specific actions by the parent or require that a

student take medication. A parent may refuse psychological

screening of the student.

Any medical decision made to address a student's needs is a

matter between the student, the student's parent, and a

competent health care professional chosen by the parent.

Section 7. This act shall take effect July 1, 2005.

CODING:

Words stricken are deletions; words underlined are additions.