Senate Bill sb3044

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    Florida Senate - 2004                                  SB 3044

    By Senator Campbell





    32-570A-04

  1                      A bill to be entitled

  2         An act relating to the care and treatment of

  3         dependent children; amending s. 39.407, F.S.;

  4         providing that the Department of Children and

  5         Family Services may conduct a health screening

  6         on any child who is removed from his or her

  7         home; providing the elements of the health

  8         screening; providing for consent for medical

  9         care and treatment under certain circumstances;

10         specifying limitations to consent by the

11         department; providing that a court may order a

12         child to receive a mental or physical

13         examination; providing for the administration

14         of psychotropic drugs to children; describing

15         methods to obtain consent for the dispensing of

16         psychotropic medication to a child in the legal

17         custody of the department; requiring the court

18         to conduct a psychotropic medications review of

19         each child to determine the medical status of

20         the child; directing the court to review the

21         child's resource record and the prescribing

22         physician's psychotropic prescription report;

23         detailing the contents of the prescription

24         report; listing other factors for the court to

25         consider when evaluating the child; requiring

26         the court to use the standard of clear and

27         convincing evidence when determining whether to

28         authorize the department to consent to

29         psychotropic medications; providing that a

30         licensed health care professional be called to

31         treat a child in an out-of-home placement in an

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    Florida Senate - 2004                                  SB 3044
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 1         emergency; providing that the act does not

 2         eliminate the right of a parent to give, or

 3         refuse to give, consent for medical treatment

 4         for his or her child; providing that unless the

 5         parent's rights have been terminated, the

 6         parent is financially responsible for the cost

 7         of medical care and treatment given to the

 8         child; creating s. 39.4071, F.S.; requiring the

 9         department to prepare and maintain a

10         comprehensive, accurate, and updated health and

11         education record, to be known as the "child

12         resource record," for each child who is placed

13         in a shelter home, foster care, or other

14         residential placement, or who is otherwise in

15         the custody or care of the department;

16         specifying the contents of the child resource

17         record; directing that the child resource

18         record follow the child to each residential

19         placement; requiring that the child resource

20         record be open for inspection to certain

21         specified persons; creating s. 39.4072, F.S.;

22         providing that a court may order certain

23         specified persons to submit to a physical or

24         mental examination by a qualified professional;

25         amending s. 409.145, F.S.; conforming

26         provisions to changes made by the act; amending

27         s. 743.0645, F.S.; defining terms relating to

28         persons who can give consent to medical care

29         for a minor; providing procedures to authorize

30         consent for the prescription and administration

31         of psychotropic medication to children in the

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    Florida Senate - 2004                                  SB 3044
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 1         custody or care of the Department of Children

 2         and Family Services or committed to the

 3         Department of Juvenile Justice; requiring a

 4         physician prescribing psychotropic medications

 5         for a child to file a report with specified

 6         organizations; requiring the Department of

 7         Children and Family Services, the Department of

 8         Juvenile Justice, and the Department of Health

 9         to adopt rules to administer the prescription

10         and administration of psychotropic medications

11         to children; creating s. 743.0647, F.S.;

12         requiring a prescribing physician to report to

13         the physician's regulating board any adverse

14         incident or condition involving psychotropic

15         medication to a child within a specified time;

16         requiring the Board of Medicine and the Board

17         of Osteopathic Medicine to create a voluntary

18         peer review board to review reports required

19         and received relating to adverse incidents;

20         providing procedures for the peer review

21         boards; directing the boards to forward

22         quarterly information to the Center for

23         Juvenile Psychotropic Studies at the University

24         of Florida College of Medicine; directing the

25         Board of Medicine and the Board of Osteopathic

26         Medicine to publish an annual summary and trend

27         analysis of all adverse incident and effects

28         reports on their websites; creating the Center

29         for Juvenile Psychotropic Studies within the

30         Department of Psychiatry of the College of

31         Medicine of the University of Florida;

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    Florida Senate - 2004                                  SB 3044
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 1         providing the purpose of the center; providing

 2         for the appointment of a director; creating an

 3         advisory board; providing for board membership;

 4         requiring the center to work with the

 5         Department of Children and Family Services, the

 6         Department of Juvenile Justice, and the Agency

 7         for Health Care Administration; requiring

 8         certain data relating to dependent minors for

 9         whom psychotropic medications have been

10         prescribed to be made available to the center,

11         as legally allowed; requiring the center to

12         report to legislative leaders by a specified

13         date; providing for future repeal; providing an

14         effective date

15  

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

17  

18         Section 1.  Section 39.407, Florida Statutes, is

19  amended to read:

20         39.407  Medical, psychiatric, and psychological

21  examination and treatment of child; physical or mental

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

23         (1)  HEALTH SCREENING.--

24         (a)  When any child is removed from the home and

25  maintained in an out-of-home placement, the department is

26  authorized to have a health medical screening performed on the

27  child without authorization from the court and without consent

28  from a parent or legal custodian. The health screening shall

29  include medical, vision, hearing, and dental assessments. Such

30  medical screening shall be performed by A licensed health care

31  professional shall perform the health screening and shall be

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 1  to examine the child for injury, illness, and communicable

 2  diseases, nutritional status, and to determine the need for

 3  immunization, laboratory tests, and referrals for dental,

 4  optometric, and educational needs. A Medicaid-eligible child

 5  shall have the health screening performed in accordance with

 6  the Early and Periodic Screening, Diagnosis, and Treatment

 7  (EPSDT) Program.

 8         (b)  The department shall by rule establish the

 9  invasiveness of the medical procedures authorized to be

10  performed under this subsection.  In no case does This

11  subsection does not authorize the department to consent to

12  medical care or treatment for the such children.

13         (2)  CONSENT TO MEDICAL CARE AND TREATMENT.--

14         (a)  When the health department has performed the

15  medical screening authorized by subsection (1) is performed,

16  or when it is otherwise determined by a licensed health care

17  professional that a child who is in an out-of-home placement

18  or who has been an adjudicated dependent, but who has not been

19  committed to the department, is in need of medical care and

20  treatment, including the need for immunization, authorization

21  consent for medical care and treatment shall be obtained in

22  the following manner:

23         (a)1.  Express and informed consent must to medical

24  treatment shall be obtained from a parent or legal custodian

25  of the child.; or

26         2.  If consent under subparagraph 1. cannot be obtained

27  because the parent or legal custodian is unknown or

28  unavailable or the parent or legal custodian is unwilling or

29  refuses to consent, the department or authorized agent must

30  obtain court authorization for medical care and treatment.

31  

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 1         3.  If the needed medical care and treatment

 2  constitutes an emergency situation as set forth in s. 743.064

 3  or the need for medical care and treatment is related to

 4  suspected abuse, abandonment, or neglect of the child by a

 5  parent, caregiver, or legal custodian, the department or its

 6  authorized agent may authorize the medical care or treatment

 7  without a court order and without the consent of the parent,

 8  legal custodian, or guardian. The department's or the

 9  authorized agent's authorization for medical care and

10  treatment under this subparagraph is limited to the time

11  reasonably necessary to obtain subsequent court authorization.

12         4.  If the parental rights of the child's parents have

13  been terminated and the department has become the child's

14  legal custodian, the department may consent to the child's

15  medical care and treatment as set forth in s. 743.0645. A

16  court order for such treatment shall be obtained.

17         (b)  The department or its authorized agent may not

18  consent to sterilization, abortion, psychotropic medications,

19  termination of life support, or other extraordinary procedures

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

21  informed consent as provided by law is required.

22         (c)  The department or its authorized agent shall

23  notify the parent or legal custodian as soon as possible after

24  medical care and treatment has been provided to the child by

25  authority granted in subparagraphs (a)2., 3., or 4. If a

26  parent or legal custodian of the child is unavailable and his

27  or her whereabouts cannot be reasonably ascertained, and it is

28  after normal working hours so that a court order cannot

29  reasonably be obtained, an authorized agent of the department

30  shall have the authority to consent to necessary medical

31  treatment, including immunization, for the child. The

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    Florida Senate - 2004                                  SB 3044
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 1  authority of the department to consent to medical treatment in

 2  this circumstance shall be limited to the time reasonably

 3  necessary to obtain court authorization.

 4         (c)  If a parent or legal custodian of the child is

 5  available but refuses to consent to the necessary treatment,

 6  including immunization, a court order shall be required unless

 7  the situation meets the definition of an emergency in s.

 8  743.064 or the treatment needed is related to suspected abuse,

 9  abandonment, or neglect of the child by a parent, caregiver,

10  or legal custodian.  In such case, the department shall have

11  the authority to consent to necessary medical treatment.  This

12  authority is limited to the time reasonably necessary to

13  obtain court authorization.

14  

15  In no case shall the department consent to sterilization,

16  abortion, or termination of life support.

17         (3)(a)  MENTAL AND PHYSICAL EXAMINATION, EDUCATIONAL

18  NEEDS ASSESSMENT, AND ADDITIONAL SERVICES.--A judge may order

19  a child in an out-of-home placement or otherwise in the

20  custody of the department:

21         (a)  To be examined by a licensed health care

22  professional.

23         (b)  To be treated by a licensed health care

24  professional based on evidence that the child should receive

25  treatment.

26         (c)(b)  The judge may also order such child To be

27  evaluated by a psychiatrist or a psychologist or, if a

28  developmental disability is suspected or alleged, by the

29  developmental disability diagnostic and evaluation team of the

30  department.  If it is necessary to place a child in a

31  residential facility for such evaluation, the criteria and

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 1  procedure established in s. 394.463(2) or chapter 393 shall be

 2  used, whichever is applicable.

 3         (d)(c)  The judge may also order such child To be

 4  evaluated by a district school board educational needs

 5  assessment team. The educational needs assessment provided by

 6  the district school board educational needs assessment team

 7  shall include, but not be limited to, reports of intelligence

 8  and achievement tests, screening for learning disabilities and

 9  other handicaps, and screening for the need for alternative

10  education as defined in s. 1001.42.

11         (e)  To receive mental health or developmental

12  disabilities services from a psychiatrist, psychologist, or

13  other appropriate service provider. Except as provided in

14  subsection (4), if it is necessary to place the child in a

15  residential facility for these services, the procedures and

16  criteria set forth in s. 394.467 or chapter 393 shall be used,

17  whichever is applicable. A child may be provided developmental

18  disability services or mental health services in emergency

19  situations, using the procedures and criteria set forth in s.

20  394.463(1) or chapter 393, whichever is applicable.

21         (f)  To be provided services or treatment by a duly

22  accredited practitioner who relies solely on spiritual means

23  for healing in accordance with the tenets and practices of a

24  church or religious organization, when required by the child's

25  health and when requested by the child.

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

27  placement to be treated by a licensed health care professional

28  based on evidence that the child should receive treatment.

29  The judge may also order such child to receive mental health

30  or developmental disabilities services from a psychiatrist,

31  psychologist, or other appropriate service provider.  Except

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

 2  child in a residential facility for such services, the

 3  procedures and criteria established in s. 394.467 or chapter

 4  393 shall be used, whichever is applicable. A child may be

 5  provided developmental disabilities or mental health services

 6  in emergency situations, pursuant to the procedures and

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

 8  is applicable.

 9         (4)(5)  PLACEMENT IN A RESIDENTIAL TREATMENT

10  CENTER.--Children who are in the legal custody of the

11  department may be placed by the department, without prior

12  approval of the court, in a residential treatment center

13  licensed under s. 394.875 or a hospital licensed under chapter

14  395 for residential mental health treatment only under

15  pursuant to this section or may be placed by the court in

16  accordance with an order of involuntary examination or

17  involuntary placement entered under pursuant to s. 394.463 or

18  s. 394.467. All children placed in a residential treatment

19  program under this subsection must have a guardian ad litem

20  appointed.

21         (a)  As used in this subsection, the term:

22         1.  "Residential treatment" means placement for

23  observation, diagnosis, or treatment of an emotional

24  disturbance in a residential treatment center licensed under

25  s. 394.875 or a hospital licensed under chapter 395.

26         2.  "Least restrictive alternative" means the treatment

27  and conditions of treatment that, separately and in

28  combination, are no more intrusive or restrictive of freedom

29  than reasonably necessary to achieve a substantial therapeutic

30  benefit or to protect the child or adolescent or others from

31  physical injury.

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 1         3.  "Suitable for residential treatment" or

 2  "suitability" means a determination concerning a child or

 3  adolescent with an emotional disturbance as defined in s.

 4  394.492(5) or a serious emotional disturbance as defined in s.

 5  394.492(6) that each of the following criteria is met:

 6         a.  The child requires residential treatment.

 7         b.  The child is in need of a residential treatment

 8  program and is expected to benefit from mental health

 9  treatment.

10         c.  An appropriate, less restrictive alternative to

11  residential treatment is unavailable.

12         (b)  Whenever the department believes that a child in

13  its legal custody is emotionally disturbed and may need

14  residential treatment, an examination and suitability

15  assessment must be conducted by a qualified evaluator who is

16  appointed by the Agency for Health Care Administration. This

17  suitability assessment must be completed before the placement

18  of the child in a residential treatment center for emotionally

19  disturbed children and adolescents or a hospital. The

20  qualified evaluator must be a psychiatrist or a psychologist

21  licensed in Florida who has at least 3 years of experience in

22  the diagnosis and treatment of serious emotional disturbances

23  in children and adolescents and who has no actual or perceived

24  conflict of interest with any inpatient facility or

25  residential treatment center or program.

26         (c)  Before a child is admitted under this subsection,

27  the child shall be assessed for suitability for residential

28  treatment by a qualified evaluator who has conducted a

29  personal examination and assessment of the child and has made

30  written findings that:

31  

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 1         1.  The child appears to have an emotional disturbance

 2  serious enough to require residential treatment and is

 3  reasonably likely to benefit from the treatment.

 4         2.  The child has been provided with a clinically

 5  appropriate explanation of the nature and purpose of the

 6  treatment.

 7         3.  All available modalities of treatment less

 8  restrictive than residential treatment have been considered,

 9  and a less restrictive alternative that would offer comparable

10  benefits to the child is unavailable.

11  

12  A copy of the written findings of the evaluation and

13  suitability assessment must be provided to the department and

14  to the guardian ad litem, who shall have the opportunity to

15  discuss the findings with the evaluator.

16         (d)  Immediately upon placing a child in a residential

17  treatment program under this section, the department must

18  notify the guardian ad litem and the court having jurisdiction

19  over the child and must provide the guardian ad litem and the

20  court with a copy of the assessment by the qualified

21  evaluator.

22         (e)  Within 10 days after the admission of a child to a

23  residential treatment program, the director of the residential

24  treatment program or the director's designee must ensure that

25  an individualized plan of treatment has been prepared by the

26  program and has been explained to the child, to the

27  department, and to the guardian ad litem, and submitted to the

28  department. The child must be involved in the preparation of

29  the plan to the maximum feasible extent consistent with his or

30  her ability to understand and participate, and the guardian ad

31  litem and the child's foster parents must be involved to the

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 1  maximum extent consistent with the child's treatment needs.

 2  The plan must include a preliminary plan for residential

 3  treatment and aftercare upon completion of residential

 4  treatment. The plan must include specific behavioral and

 5  emotional goals against which the success of the residential

 6  treatment may be measured. A copy of the plan must be provided

 7  to the child, to the guardian ad litem, and to the department.

 8         (f)  Within 30 days after admission, the residential

 9  treatment program must review the appropriateness and

10  suitability of the child's placement in the program. The

11  residential treatment program must determine whether the child

12  is receiving benefit toward the treatment goals and whether

13  the child could be treated in a less restrictive treatment

14  program. The residential treatment program shall prepare a

15  written report of its findings and submit the report to the

16  guardian ad litem and to the department. The department must

17  submit the report to the court. The report must include a

18  discharge plan for the child. The residential treatment

19  program must continue to evaluate the child's treatment

20  progress every 30 days thereafter and must include its

21  findings in a written report submitted to the department. The

22  department may not reimburse a facility until the facility has

23  submitted every written report that is due.

24         (g)1.  The department must submit, at the beginning of

25  each month, to the court having jurisdiction over the child, a

26  written report regarding the child's progress toward achieving

27  the goals specified in the individualized plan of treatment.

28         2.  The court must conduct a hearing to review the

29  status of the child's residential treatment plan no later than

30  3 months after the child's admission to the residential

31  treatment program. An independent review of the child's

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 1  progress toward achieving the goals and objectives of the

 2  treatment plan must be completed by a qualified evaluator and

 3  submitted to the court before its 3-month review.

 4         3.  For any child in residential treatment at the time

 5  a judicial review is held under pursuant to s. 39.701, the

 6  child's continued placement in residential treatment must be a

 7  subject of the judicial review.

 8         4.  If at any time the court determines that the child

 9  is not suitable for continued residential treatment, the court

10  shall order the department to place the child in the least

11  restrictive setting that is best suited to meet his or her

12  needs.

13         (h)  After the initial 3-month review, the court must

14  conduct a review of the child's residential treatment plan

15  every 90 days.

16         (i)  The department must adopt rules for implementing

17  timeframes for the completion of suitability assessments by

18  qualified evaluators and a procedure that includes timeframes

19  for completing the 3-month independent review by the qualified

20  evaluators of the child's progress toward achieving the goals

21  and objectives of the treatment plan which review must be

22  submitted to the court. The Agency for Health Care

23  Administration must adopt rules for the registration of

24  qualified evaluators, the procedure for selecting the

25  evaluators to conduct the reviews required under this section,

26  and a reasonable, cost-efficient fee schedule for qualified

27  evaluators.

28         (5)  ADMINISTRATION OF PSYCHOTROPIC MEDICATION.--

29         (a)  The department or its authorized agent may not

30  authorize the prescription, administration, or use of

31  psychotropic medication to a child who is in the custody or

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 1  care of the department or its authorized agent, including

 2  shelter care, foster care, or other residential placement,

 3  unless the psychotropic medication has been federally

 4  approved. The department or its authorized agent may not

 5  authorize psychotropic medication to be given to a child

 6  younger than the age of 6 unless the psychotropic medication

 7  has been federally approved for pediatric use. The prescribing

 8  physician for the administration of the psychotropic

 9  medication must be a physician licensed under chapter 458 or

10  chapter 459.

11         (b)  The department or its authorized agent may consent

12  to or approve the initiation, continuation, or change in the

13  prescription and administration of psychotropic medications

14  under this chapter if:

15         1.  The department or its authorized agent first

16  obtains express and written consent from the parent or legal

17  custodian and from the child, if the child is 12 years of age

18  or older.

19         2.  The department or its authorized agent obtains

20  court approval to authorize consent when a child's parent or

21  legal custodian is unknown or unavailable or is unwilling or

22  refuses to give express written and informed consent.

23         3.  The department or its authorized agent obtains

24  court approval to authorize consent when the parental rights

25  of the child's parents have been terminated and the department

26  has become the legal custodian of the child.

27         (c)  No later than 30 days after the child has been

28  removed from the home, the department or its authorized agent

29  must once again obtain express written and informed consent

30  from the parent or legal custodian or, when applicable, obtain

31  

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 1  authority to consent from the court relating to the

 2  administration of psychotropic medications.

 3         (d)1.  If a child is in the custody or care of the

 4  department or its authorized agent, the court shall conduct a

 5  psychotropic medications review to determine the status of the

 6  child's prescribed or administered psychotropic medications.

 7  The psychotropic medications review must be conducted at least

 8  once every 6 months. The court may review the child's progress

 9  status more frequently upon the court's own motion or, for

10  good cause shown, upon the motion of any party, including the

11  child, if age-appropriate, or the child's attorney, attorney

12  ad litem, or guardian ad litem. A psychotropic medications

13  review may be conducted during any other timely scheduled

14  hearing or judicial review hearing under s. 39.701.

15         2.  The court may order the department to produce

16  supplemental evidence or to obtain a medical opinion to

17  determine if the continued use of the psychotropic medications

18  is safe and medically appropriate.

19         3.  A psychotropic medications review requires no

20  hearing if the parent or legal custodian and the child, if 12

21  years of age or older, consents to the prescription and

22  administration of the psychotropic medication.

23         (e)1.  During a psychotropic medications review, the

24  court shall consider the child's resource record as provided

25  in s. 39.4075, and the prescribing physician's signed

26  psychotropic prescription report. The department or its

27  authorized agent is responsible for providing the child's

28  resource record and the prescribing physician's signed

29  psychotropic prescription report to the court. The child's

30  resource record and prescribing physician's report are

31  admissible in evidence.

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 1         2.  The prescribing physician's signed psychotropic

 2  prescription report must include:

 3         a.  The name and range of the dosage of the

 4  psychotropic medication and any other medication the child is

 5  taking or expected to take.

 6         b.  The diagnosed mental condition or the intended

 7  monitoring or treatment purpose underlying the need to

 8  initiate or change the prescription and administration of the

 9  psychotropic medication.

10         c.  How the proposed medication is expected to help the

11  child, the timeframe in which improvement of the child's

12  symptoms can be expected, and who will be monitoring the child

13  for improvement or side effects.

14         d.  The treatment plan, including the length of time

15  the child has taken or is expected to take the psychotropic

16  medication and any other medication, and the need for any

17  supporting and integrated medical, counseling, or other

18  services.

19         e.  A description of the side effects, benefits, risks,

20  contraindications, drug interaction precautions, and

21  alternatives to the medication, including, but not limited to,

22  precautions recommended for activities, foods and medications

23  to be avoided, and activities that are prohibited while the

24  child is on medication.

25         f.  Whether any laboratory tests, including

26  neurological, cardiac, and blood testing, need to be done

27  before or while the child is being administered the prescribed

28  medication and at what time periods.

29         g.  How the psychotropic medication will replace or

30  supplement any other currently prescribed medication or

31  treatment.

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 1         h.  Whether the prescribing physician consulted with

 2  each person whose consent is required as provided by law,

 3  including the child, if age-appropriate, and provided an

 4  explanation of the nature and purpose of the treatment, the

 5  side effects, benefits, risks, contraindications, drug

 6  interaction precautions, and alternatives to the medication.

 7         i.  The reasons or explanation for why the child, if

 8  age-appropriate, and the parent or legal custodian consented

 9  or refused to consent to the administration of the

10  psychotropic medication, and any written informed consents

11  that are obtained, unattainable, or refused.

12         j.  The dosage recommended by the drug's manufacturer

13  or the United States Food and Drug Administration.

14         3.  The court shall also consider at least the

15  following:

16         a.  The child's expressed treatment preference, if the

17  child is age-appropriate.

18         b.  Whether the treatment is essential to the care of

19  the child.

20         c.  Whether the treatment is experimental.

21         d.  The probability of adverse side effects, including

22  whether the treatment presents an unreasonable risk of

23  serious, hazardous, or irreversible side effects.

24         e.  The prognosis and probable risks with and without

25  treatment.

26         f.  Whether comparable or alternative therapies are

27  available to diagnose, monitor, or treat the condition of the

28  child.

29         4.  The prescribing physician is not required to

30  testify at or attend the hearing unless the court specifically

31  orders the testimony or attendance.

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 1         5.  The court shall inquire about additional medical,

 2  counseling, or other services that the prescribing physician

 3  believes are necessary or would be beneficial for the child's

 4  medical condition.

 5         6.  The court may require further medical consultation,

 6  including a second opinion, based on considerations of the

 7  best interests of the child.

 8         7.  At the conclusion of a psychotropic medications

 9  review hearing, in arriving at a substitute judgment decision,

10  the court shall determine by clear and convincing evidence

11  whether authorization to consent to the prescription and

12  administration of psychotropic medication should be granted.

13  If at any time the court determines that the child's best

14  interests require discontinuation of a prescribed psychotropic

15  medication, the court shall order the medication to be

16  discontinued in compliance with acceptable medical practice as

17  it relates to the termination of the ordered medication.

18         (6)  EMERGENCY CARE AND TREATMENT.--Except as otherwise

19  provided in this section, this section does not alter s.

20  743.064 or s. 394.463(2)(f). If a child is in out-of-home

21  placement or otherwise in the custody or care of the

22  department and there are indications of physical injury,

23  illness, or other adverse incidents or conditions, a licensed

24  health care professional shall be called immediately or the

25  child shall be taken to the nearest health care facility for

26  emergency care and treatment. When a child is in an

27  out-of-home placement, a licensed health care professional

28  shall be immediately called if there are indications of

29  physical injury or illness, or the child shall be taken to the

30  nearest available hospital for emergency care.

31  

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 1         (7)  PARENTAL RIGHT TO CONSENT OR REFUSE TO CONSENT AND

 2  FINANCIAL RESPONSIBILITY.--

 3         (a)  Unless a parent's rights have been terminated and

 4  except as otherwise provided herein, this section does not

 5  eliminate the right of a parent, legal custodian, or the child

 6  to consent or refuse to consent to examination or any medical

 7  care or treatment, including extraordinary medical care or

 8  treatment for the child. A parent or legal custodian of a

 9  child may not be required or coerced through threat of loss of

10  custody or parental rights to consent to any medical care or

11  treatment.

12         (b)  The parent or legal custodian of a child who is in

13  an out-of-home placement or who is otherwise in the custody or

14  care of the department or its authorized agent is financially

15  responsible for the cost of medical care and treatment

16  provided to the child, unless a parent's rights have been

17  terminated. The parent or legal custodian is financially

18  responsible regardless of whether the parent or legal

19  custodian consented or refused to consent to the care and

20  treatment. After any hearing, the court may order the parent

21  or legal custodian, if found able to do so, to reimburse the

22  department or the provider of health services for the medical

23  care and treatment given to the child. nothing in this section

24  shall be deemed to eliminate the right of a parent, legal

25  custodian, or the child to consent to examination or treatment

26  for the child.

27         (8)  EVALUATIONS AND EXAMINATIONS.--For the purpose of

28  obtaining an evaluation or examination or receiving treatment

29  as authorized under this section, no child alleged to be or

30  found to be dependent shall be placed in a detention home or

31  other program used primarily for the care and custody of

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 1  children alleged or found to have committed delinquent acts.

 2  Except as otherwise provided herein, nothing in this section

 3  shall be deemed to alter the provisions of s. 743.064.

 4         (9)  A court shall not be precluded from ordering

 5  services or treatment to be provided to the child by a duly

 6  accredited practitioner who relies solely on spiritual means

 7  for healing in accordance with the tenets and practices of a

 8  church or religious organization, when required by the child's

 9  health and when requested by the child.

10         (10)  Nothing in this section shall be construed to

11  authorize the permanent sterilization of the child unless such

12  sterilization is the result of or incidental to medically

13  necessary treatment to protect or preserve the life of the

14  child.

15         (11)  For the purpose of obtaining an evaluation or

16  examination, or receiving treatment as authorized pursuant to

17  this section, no child alleged to be or found to be dependent

18  shall be placed in a detention home or other program used

19  primarily for the care and custody of children alleged or

20  found to have committed delinquent acts.

21         (12)  The parents or legal custodian of a child in an

22  out-of-home placement remain financially responsible for the

23  cost of medical treatment provided to the child even if either

24  one or both of the parents or if the legal custodian did not

25  consent to the medical treatment. After a hearing, the court

26  may order the parents or legal custodian, if found able to do

27  so, to reimburse the department or other provider of medical

28  services for treatment provided.

29         (13)  Nothing in this section alters the authority of

30  the department to consent to medical treatment for a dependent

31  

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 1  child when the child has been committed to the department and

 2  the department has become the legal custodian of the child.

 3         (14)  At any time after the filing of a shelter

 4  petition or petition for dependency, when the mental or

 5  physical condition, including the blood group, of a parent,

 6  caregiver, legal custodian, or other person requesting custody

 7  of a child is in controversy, the court may order the person

 8  to submit to a physical or mental examination by a qualified

 9  professional.  The order may be made only upon good cause

10  shown and pursuant to notice and procedures as set forth by

11  the Florida Rules of Juvenile Procedure.

12         Section 2.  Section 39.4071, Florida Statutes, is

13  created to read:

14         39.4071  Child resource record.--

15         (1)  In accordance with 42 U.S.C. s. 675, the

16  department shall prepare and maintain a comprehensive,

17  accurate, and updated health and education record on each

18  child who is placed in a shelter home, foster care, or other

19  residential placement, or who is otherwise in the custody or

20  care of the department.

21         (2)  The health and education record shall be referred

22  to as the child resource record and shall include: the child's

23  name; family and social history; medical history with the

24  respective dates and purposes of medical care and treatment;

25  the results of all medical, psychiatric, and psychological

26  information, evaluations, exams, and screenings; educational

27  records and needs assessments; medical visits,

28  hospitalizations, and operations and procedures with reasons

29  thereof; dates, locations, and names of treating or

30  administering professionals; names and telephone numbers of

31  all physicians and other health care professionals who have

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 1  treated the child; the child's known allergies and negative

 2  reactions to medication; all medications previously and

 3  currently prescribed, including dates of administration,

 4  renewals of prescription and discontinuation, the dosage and

 5  frequency, and subsequent renewals of prescription; any

 6  written informed consents as required by law and reasons for

 7  not obtaining the consents or for the refusals to consent; the

 8  name and telephone numbers of the agent of the department who

 9  is currently responsible for the child; the name and telephone

10  number of the parent, legal custodian, relative caregiver, or

11  foster care parent, if applicable; and the local after-hour

12  call number of the department for emergencies.

13         (3)  The department shall provide written documentation

14  describing why any information required by subsection (2) is

15  not available and accessible in the child resource record and

16  the steps that the department is taking to obtain the

17  information.

18         (4)  The child resource record shall follow the child

19  to each residential placement. While the child resides there,

20  the child resource record shall remain in the custody of the

21  parent or legal custodian, shelter, or foster care parent or

22  provider, or other caretaker. The record must accompany the

23  child to every health care appointment in order that the

24  information contained therein may be shared with the provider

25  and updated as appropriate.

26         (5)  The child resource record shall be open for

27  inspection by the parent or legal custodian or other person

28  who has the power, as authorized by law, to consent to medical

29  care or treatment.

30         (6)  The department shall adopt rules to administer

31  this section.

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 1         Section 3.  Section 39.4072, Florida Statutes, is

 2  created to read:

 3         39.4072  Physical or mental examination of parent or

 4  person requesting custody of child.--At any time after the

 5  filing of a shelter petition or petition for dependency, when

 6  the mental or physical condition, including the blood group,

 7  of a parent, caregiver, legal custodian, or other person

 8  requesting custody of a child is in controversy, the court may

 9  order the person to submit to a physical or mental examination

10  by a qualified professional. The order may be made only upon

11  good cause shown and under the notice and procedures set forth

12  in the Florida Rules of Juvenile Procedure.

13         Section 4.  Subsections (6) and (7) of section 409.145,

14  Florida Statutes, are amended to read:

15         409.145  Care of children.--

16         (6)  Whenever any child is placed under the protection,

17  care, and guidance of the department or a duly licensed public

18  or private agency, or as soon thereafter as is practicable,

19  the department or agency, as the case may be, shall complete a

20  full medical evaluation of the child and shall endeavor to

21  obtain such information concerning the family medical history

22  of the child and the natural parents as is available or

23  readily obtainable. This information shall be kept on file by

24  the department or agency for possible future use as provided

25  in ss. 63.082 and 63.162 or as may be otherwise provided by

26  law.

27         (7)  Whenever any child is placed by the department in

28  a shelter home, foster home, or other residential placement,

29  the department shall make available to the operator of the

30  shelter home, foster home, other residential placement, or

31  other caretaker as soon thereafter as is practicable, the

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 1  child's child resource record as required by s. 39.4071, to

 2  include all relevant information concerning the child's

 3  demographic, social, and medical history.

 4         Section 5.  Section 743.0645, Florida Statutes, is

 5  amended to read:

 6         743.0645  Other persons who may consent to medical care

 7  or treatment of a minor; psychotropic medications.--

 8         (1)  DEFINITIONS.--As used in this section, the term:

 9         (a)  "Blood testing" includes Early Periodic Screening,

10  Diagnosis, and Treatment (EPSDT) testing and other blood

11  testing deemed necessary by documented history or

12  symptomatology but excludes HIV testing and controlled

13  substance testing or any other testing for which separate

14  court order or informed consent as provided by law is

15  required.

16         (b)  "Child resource record" has the same meaning as in

17  s. 39.4071.

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

19  and necessary medical and dental examination and treatment,

20  including blood testing, preventive care including ordinary

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

22  does not include surgery, general anesthesia, provision of

23  psychotropic medications, or other extraordinary procedures

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

25  informed consent as provided by law is required.

26         (d)  "Peer review" means an evaluation by two or more

27  physicians licensed under the same authority and with the same

28  or similar specialty as the physician under review, to assess

29  the medical necessity, appropriateness, quality, and cost of

30  health care and health services provided to a patient, based

31  

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 1  on recognized health care standards, and to determine whether

 2  the documentation in the physician's records is adequate.

 3         (e)(c)  "Person who has the power to consent as

 4  otherwise provided by law" includes a natural or adoptive

 5  parent, legal custodian, or legal guardian.

 6         (f)  "Psychotropic medication" is medication, the

 7  prescribed intent of which is to affect or alter thought

 8  processes, mood, or behavior, including, but not limited to,

 9  antipsychotic, antidepressant, and antianxiolytic medication,

10  behavior medications, mood stabilizers, and medications to

11  treat attentional problems. The classification of a medication

12  depends upon its stated, intended effect when prescribed,

13  because it may have many different effects.

14         (2)  CONSENT.--

15         (a)  Any of the following persons, in order of priority

16  listed, may authorize consent to the medical care and or

17  treatment of a minor who is not committed to the Department of

18  Children and Family Services or the Department of Juvenile

19  Justice or in their custody under chapter 39, chapter 984, or

20  chapter 985 when, after a reasonable attempt, a person who has

21  the power to consent as otherwise provided by law cannot be

22  contacted by the treatment provider and actual notice to the

23  contrary has not been given to the provider by that person:

24         1.(a)  A person who possesses a power of attorney to

25  provide medical consent for the minor. A power of attorney

26  executed after July 1, 2001, to provide medical consent for a

27  minor includes the power to consent to medically necessary

28  surgical and general anesthesia services for the minor unless

29  the such services are excluded by the individual executing the

30  power of attorney.

31         2.(b)  The stepparent.

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 1         3.(c)  The grandparent of the minor.

 2         4.(d)  An adult brother or sister of the minor.

 3         5.(e)  An adult aunt or uncle of the minor.

 4         (b)  Each treatment provider shall document in the

 5  minor's records

 6  

 7  There shall be maintained in the treatment provider's records

 8  of the minor documentation that a reasonable attempt was made

 9  to contact the person who has the power to consent.

10         (3)  AUTHORIZATION FOR CONSENT.--

11         (a)  Consent or authorization for medical care and

12  treatment for any child in the custody or care of the

13  Department of Children and Family Services or its authorized

14  agent under chapter 39 must be obtained as provided in s.

15  39.407.

16         (b)(3)  The Department of Children and Family Services

17  or the Department of Juvenile Justice caseworker, juvenile

18  probation officer, or person primarily responsible for the

19  case management of the child, the administrator of any

20  facility licensed by the department under s. 393.067, s.

21  394.875, or s. 409.175, or the administrator of any

22  state-operated or state-contracted delinquency residential

23  treatment facility may consent to the medical care or

24  treatment of any minor committed to it or in its custody under

25  chapter 39, chapter 984, or chapter 985, when the person who

26  has the power to consent as otherwise provided by law cannot

27  be contacted and the such person has not expressly objected to

28  the such consent.  There shall be maintained in the records of

29  the minor documentation that a reasonable attempt was made to

30  contact the person who has the power to consent as otherwise

31  provided by law.

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 1         (4)  AUTHORIZATION FOR CONSENT TO THE ADMINISTRATION OF

 2  PSYCHOTROPIC MEDICATION.--

 3         (a)  Consent for the prescription and administration of

 4  psychotropic medication for any child who is in the custody or

 5  care of the Department of Children and Family Services or its

 6  authorized agent under chapter 39 must be obtained as provided

 7  in s. 39.4075.

 8         (b)  Consent for the prescription and administration of

 9  psychotropic medication for any child who is committed or

10  otherwise in the custody of the Department of Juvenile Justice

11  under chapter 984 or chapter 985 shall be obtained as follows:

12         1.  Written informed consent shall be obtained from the

13  parent or legal custodian of a child.

14         2.  If the child is 12 years of age or older, written

15  informed consent shall also be obtained from the child.

16         3.  If the parent or legal custodian is unwilling or

17  unavailable or refuses to consent, the Department of Juvenile

18  Justice must obtain an order from the court authorizing

19  consent before the prescribing and administering of

20  psychotropic medication.

21         4.  If the parental rights of a parent have been

22  terminated, the Department of Juvenile Justice must obtain an

23  order from the court authorizing consent before the

24  prescribing and administering of psychotropic medication.

25         (c)  If authority to consent for the prescription and

26  administration of psychotropic medication is obtained under

27  this subsection, the prescribing physician, who must be a

28  physician licensed under chapter 458 or chapter 459, shall

29  submit a copy of the child's resource record and a

30  psychotropic prescription report to the board which has

31  

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 1  regulatory responsibility over the license of the prescribing

 2  physician. The psychotropic prescription report shall contain:

 3         1.  The name of the prescribed psychotropic medication.

 4         2.  The prescribed dosage.

 5         3.  The dosage recommended by the drug's manufacturer

 6  or the United States Food and Drug Administration.

 7         4.  The reason the medication is prescribed.

 8         5.  The expected benefit of the medication.

 9         6.  The side effects of the medication.

10  

11  A copy of the psychotropic prescription report shall be

12  provided to the department, which the foster parents, and the

13  parents if the parents can be located and their parental

14  rights have not been terminated.

15         (5)(4)  NOTICE.--The medical provider shall notify the

16  parent or other person who has the power to consent as

17  otherwise provided by law as soon as possible after the

18  medical care and or treatment is administered by pursuant to

19  consent or approval to authorize care and treatment given

20  under this section.  The medical records shall reflect the

21  reason consent as otherwise provided by law was not initially

22  obtained and shall be open for inspection by the parent or

23  other person who has the power to consent as otherwise

24  provided by law.

25         (6)(5)  IMMUNITY.--The person who gives consent; a

26  physician, dentist, nurse, or other health care professional

27  licensed to practice in this state; or a hospital or medical

28  facility, including, but not limited to, county health

29  departments, shall not incur civil liability by reason of the

30  giving of consent, examination, or rendering of treatment,

31  provided that the such consent, examination, or treatment was

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 1  given or rendered as a reasonable prudent person or similar

 2  health care professional would give or render it under the

 3  same or similar circumstances.

 4         (7)(6)  RULES.--The Department of Children and Family

 5  Services, the Department of Health, and the Department of

 6  Juvenile Justice shall may adopt rules to administer implement

 7  this section.

 8         (8)(7)  STATUTES.--This section does not affect other

 9  statutory provisions of this state that relate to medical

10  consent for minors.

11         Section 6.  Section 743.0647, Florida Statutes, is

12  created to read:

13         743.0647  REPORTS OF ADVERSE INCIDENT OR CONDITION.--

14         (1)  Within 10 days after the occurrence of an adverse

15  incident or condition, as defined in this section, resulting

16  from the dispensation, administration, or use of psychotropic

17  medication to a child under s. 743.0645 or s. 39.407, the

18  parent, legal custodian, or the respective department or its

19  agent with whom the child is committed must immediately notify

20  the prescribing physician. The prescribing physician must

21  promptly report the adverse incident or condition to the

22  respective board under which the prescribing physician is

23  licensed and to the manufacturer of the psychotropic

24  medication. The prescribing physician shall also forward a

25  copy of his or her psychotropic prescription report to the

26  respective board.

27         (2)  The Board of Medicine and the Board of Osteopathic

28  Medicine shall each create a voluntary peer review board. Each

29  respective peer review board shall review the reports required

30  and received under this section. Each respective peer review

31  board shall determine whether the psychotropic medication was

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 1  prescribed appropriately and whether the conduct of the

 2  prescribing physician is potentially subject to disciplinary

 3  action. The peer review boards shall also notify the

 4  department to which the child is committed or which maintains

 5  custody of the child within 24 hours after the determination.

 6  Upon notice, the department to which the child is committed

 7  and which is responsible for the custody or care of the child

 8  shall ensure that the child receives appropriate medical

 9  followup and that the medication is discontinued immediately

10  or as soon as practicable under the circumstances.

11         (3)  Each respective board shall provide staff support

12  for all meetings of the peer review boards created under this

13  section and shall reimburse the participants for all

14  meeting-related expenses.

15         (4)  Each respective board shall forward quarterly

16  information to the Center for Juvenile Psychotropic Studies

17  regarding the number of psychotropic prescription reports

18  received, the number of psychotropic prescription reports

19  determined to be clinically inappropriate, and the number of

20  adverse incidents reported to the respective peer review

21  boards.

22         (5)  Each respective board shall publish on its website

23  an annual summary and trend analysis of all adverse incident

24  and effects reports. The published information shall not

25  identify the patient, the reporting person, or the

26  practitioner involved. The purpose of the publication of the

27  summary and trend analysis is to promote the rapid

28  dissemination of information relating to adverse incidents and

29  effects of psychotropic medications on children to assist in

30  avoidance of similar incidents and effects and reduce

31  morbidity and mortality.

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 1         (6)  The Board of Medicine and the Board of Osteopathic

 2  Medicine shall adopt rules to administer the policies and

 3  procedures for reporting adverse incidents or conditions

 4  resulting from the dispensation, administration, or use of

 5  psychotropic medications to children. The policies and

 6  procedures must include a verification of corrective action to

 7  remediate or minimize incidents or adverse effects and a

 8  timeline for reporting the incidents or effects to the

 9  respective boards.

10         Section 7.  (1)  The Center for Juvenile Psychotropic

11  Studies is established within the Department of Psychiatry of

12  the College of Medicine of the University of Florida. The

13  mission of the center is to collect, track, and assess

14  information regarding children who are committed to or

15  otherwise in the custody or care of the Department of Children

16  and Family Services or the Department of Juvenile Justice and

17  who have been or are currently being prescribed psychotropic

18  medications.

19         (2)(a)  An advisory board shall be created to

20  periodically and objectively review and advise the center on

21  all actions taken under this section.

22         (b)  The membership of the board shall consist of eight

23  experts or practitioners in psychiatric health, a clinical

24  pharmacologist, the executive director of the Statewide

25  Guardian Ad Litem Office, and the secretaries, or their

26  designees, of the Department of Children and Family Services,

27  the Department of Juvenile Justice, and the Agency for

28  Healthcare Administration. The Governor, the President of the

29  Senate, the Speaker of the House of Representatives, and the

30  President of the University of Florida shall each appoint one

31  member. The Florida Psychiatric Society shall appoint the

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 1  remaining members of the board. None of the members may be a

 2  person who is currently conducting clinical studies involving

 3  psychotropic medication.

 4         (3)  The Dean of the College of Medicine of the

 5  University of Florida shall appoint the Director of the

 6  Center.

 7         (4)  The center shall work in conjunction with the

 8  Department of Children and Family Services, the Department of

 9  Juvenile Justice, and the Department of Health, and to the

10  extent allowed by the privacy requirements of existing federal

11  and state law, those agencies shall work with, and make

12  available to the center, data regarding each child, including,

13  but not limited to:

14         (a)  Demographic information such as age, geographic

15  location, and economic status.

16         (b)  Family history, including involvement with child

17  welfare or the juvenile justice systems.

18         (c)  All information regarding the medications

19  prescribed or administered, including, but not limited to,

20  information contained in the medication administration record.

21         (d)  Practice patterns, licensure, and board

22  certification of prescribing physicians.

23         (5)  The center shall report its findings to the

24  Governor and the Legislature and make recommendations

25  regarding psychotropic medications as prescribed and

26  administered to children who are committed or otherwise in

27  state custody or care. The report is due annually on January 1

28  beginning in 2005.

29         (6)  This section expires July 1, 2009.

30         Section 8.  This act shall take effect July 1, 2004.

31  

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Provides that the Department of Children and Family
      Services may conduct a health screening on any child who
 4    is removed from his or her home. Provides for consent for
      medical care and treatment under certain circumstances.
 5    Specifies limitations to consent by the department.
      Provides for the administration of psychotropic drugs to
 6    children. Describes the methods to obtain consent for the
      dispensing of psychotropic medication to a child in the
 7    legal custody of the department. Requires the court to
      conduct a psychotropic medications review of each child
 8    to determine the medical status of the child. Directs the
      court to review the child's resource record and the
 9    prescribing physician's psychotropic prescription report.
      Details the contents of the prescription report. Lists
10    other factors for the court to consider when evaluating
      the child. Provides that the act does not eliminate the
11    right of a parent to give, or refuse to give, consent for
      medical treatment for his or her child. Provides that
12    unless the parent's rights have been terminated, the
      parent is financially responsible for the cost of medical
13    care and treatment given to the child. Requires the
      department to prepare and maintain a comprehensive,
14    accurate, and updated health and education record, to be
      known as the "child resource record," for each child who
15    is placed in a shelter home, foster care, or other
      residential placement, or who is otherwise in the custody
16    or care of the department. Specifies the contents of the
      child resource record. Directs that the child resource
17    record follow the child to each residential placement.
      Requires the child resource record to be open for
18    inspection to certain specified persons. Provides
      procedures to authorize consent for the prescription and
19    administration of psychotropic medication to children in
      the custody or care of the Department of Children and
20    Family Services or committed to the Department of
      Juvenile Justice. Requires a physician prescribing
21    psychotropic medications for a child to file a report
      with specified organizations. Requires a prescribing
22    physician to report to the physician's regulating board
      any adverse incident or condition involving psychotropic
23    medication to a child within a specified time period.
      Directs the Board of Medicine and the Board of
24    Osteopathic Medicine to create a voluntary peer review
      board to review reports required and received relating to
25    adverse incidents. Directs the Board of Medicine and the
      Board of Osteopathic Medicine to publish an annual
26    summary and trend analysis of all adverse incident and
      effects reports on their websites. Creates the Center for
27    Juvenile Psychotropic Studies within the Department of
      Psychiatry of the College of Medicine of the University
28    of Florida. Creates an advisory board and provides for
      board membership. Requires the center to work with the
29    Department of Children and Family Services, the
      Department of Juvenile Justice, and the Agency for Health
30    Care Administration. Requires the center to report to
      legislative leaders by a specified date.
31  

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