HB 0909

1	A bill to be entitled
2	An act relating to medical screening of children; amending
3	s. 39.407, F.S.; revising provisions relating to medical
4	screenings performed on children who are removed from the
5	home and maintained in an out-of-home placement;
6	specifying certain conditions that the screening must
7	cover; prohibiting the Department of Children and Family
8	Services from administering or authorizing psychiatric or
9	psychological tests or psychotropic medications for a
10	child in departmental custody except with the written and
11	informed consent of the child's parent or legal guardian
12	or by court order; requiring the department to ensure that
13	children who are in departmental custody receive
14	appropriate psychotropic medications but have options for
15	alternative treatments; providing for rulemaking;
16	providing that the department may not provide consent for
17	administering psychotropic medications to a child for whom
18	the department is the legal custodian; amending s. 39.601,
19	F.S., relating to case plan requirements; providing that
20	case plans may not require parents to give their children
21	psychotropic medications; prohibiting the department from
22	threatening to terminate parental rights based solely on
23	the parents' refusal to give their child psychotropic
24	medications; amending s. 39.703, F.S.; prohibiting the
25	department from initiating proceedings to terminate
26	parental rights based solely on the parents' refusal to
27	give their child psychotropic medications; amending s.
28	39.806, F.S.; providing that the refusal of parents to
29	give their child psychotropic medications may not be
30	considered grounds for termination of parental rights;
31	providing that the parents' refusal to give their child
32	psychotropic medications may not be considered abuse or
33	neglect; amending s. 984.19, F.S.; revising provisions
34	relating to medical screenings performed on children who
35	are placed in shelter care; specifying certain conditions
36	that the screening must cover; prohibiting the Department
37	of Juvenile Justice from administering or authorizing
38	psychiatric or psychological tests or psychotropic
39	medications for a child in departmental custody except
40	with the written and informed consent of the child's
41	parent or legal guardian or by court order; requiring the
42	department to ensure that children who are in departmental
43	custody receive appropriate psychotropic medications but
44	have options for alternative treatments; providing for
45	rulemaking; providing that the department may not provide
46	consent for administering psychotropic medications to a
47	child for whom the department is the legal custodian;
48	amending s. 985.224, F.S.; revising provisions relating to
49	medical screenings performed on children who are taken
50	into detention; specifying certain conditions that the
51	screening must cover; prohibiting the Department of
52	Juvenile Justice from administering or authorizing
53	psychiatric or psychological tests or psychotropic
54	medications for a child in departmental custody except
55	with the written and informed consent of the child's
56	parent or legal guardian or by court order; requiring the
57	Department of Juvenile Justice to ensure that children who
58	are in departmental custody receive appropriate
59	psychotropic medications but have options for alternative
60	treatments; providing for rulemaking; providing an
61	effective date.
62
63	Be It Enacted by the Legislature of the State of Florida:
64
65	Section 1.  Subsections (1), (2), (4), and (13) of section
66	39.407, Florida Statutes, are amended to read:
67	39.407  Medical, psychiatric, and psychological examination
68	and treatment of child; physical or mental examination of parent
69	or person requesting custody of child.--
70	(1)  When any child is removed from the home and maintained
71	in an out-of-home placement, the department is authorized to
72	have a medical screening performed on the child without
73	authorization from the court and without consent from a parent
74	or legal custodian. Such medical screening shall be performed by
75	a competent, nonpsychiatric medical specialist licensed health
76	care professional and shall be to examine the child for injury,
77	illness, and communicable diseases and to determine the need for
78	immunization. The screening must also include checking for
79	nutritional deficiencies, heavy-metal toxicity, hypoglycemia,
80	and illegal drug dependence. The department shall by rule
81	establish the invasiveness of the medical procedures authorized
82	to be performed under this subsection. In no case does this
83	subsection authorize the department to consent to medical
84	treatment for such children.
85	(2)  When the department has performed the medical
86	screening authorized by subsection (1), or when it is otherwise
87	determined by a licensed health care professional that a child
88	who is in an out-of-home placement, but who has not been
89	committed to the department, is in need of medical treatment,
90	including the need for immunization, consent for medical
91	treatment shall be obtained in the following manner:
92	(a)1.  Consent to medical treatment shall be obtained from
93	a parent or legal custodian of the child; or
94	2.  A court order for such treatment shall be obtained.
95	(b)  If a parent or legal custodian of the child is
96	unavailable and his or her whereabouts cannot be reasonably
97	ascertained, and it is after normal working hours so that a
98	court order cannot reasonably be obtained, an authorized agent
99	of the department shall have the authority to consent to
100	necessary medical treatment, including immunization, for the
101	child. The authority of the department to consent to medical
102	treatment in this circumstance shall be limited to the time
103	reasonably necessary to obtain court authorization.
104	(c)  The department may not administer or authorize
105	psychiatric or psychological tests or psychotropic medications
106	for a child in its custody without the written and informed
107	consent of the child's parent or legal guardian or, if the
108	parent or guardian cannot be located, authorization by the
109	court. The department shall ensure that children under its care
110	receive timely access to clinically appropriate psychotropic
111	medications that have no known contraindications for use in
112	children, shall provide information on all known side effects of
113	such medications, and shall provide options for alternative
114	treatments. The department shall adopt rules to ensure that
115	children under its care receive appropriate psychotropic
116	medications or alternative treatments. The rules shall provide,
117	at a minimum, a uniform process for obtaining informed consent,
118	procedures for obtaining court authorization, and information
119	that must be provided in writing when requesting authorization
120	for the use of psychotropic medications.
121	(d)(c)  If a parent or legal custodian of the child is
122	available but refuses to consent to the necessary treatment,
123	including immunization, a court order shall be required unless
124	the situation meets the definition of an emergency in s. 743.064
125	or the treatment needed is related to suspected abuse,
126	abandonment, or neglect of the child by a parent, caregiver, or
127	legal custodian. In such case, the department shall have the
128	authority to consent to necessary medical treatment. This
129	authority is limited to the time reasonably necessary to obtain
130	court authorization.
131
132	In no case shall the department consent to sterilization,
133	abortion, or termination of life support.
134	(4)  A judge may order a child in an out-of-home placement
135	to be treated by a licensed health care professional based on
136	evidence that the child should receive treatment. The judge may
137	also order such child to receive mental health or developmental
138	disabilities services from a psychiatrist, psychologist, or
139	other appropriate service provider. Except as provided in
140	subsection (5), if it is necessary to place the child in a
141	residential facility for such services, the procedures and
142	criteria established in s. 394.467 or chapter 393 shall be used,
143	whichever is applicable. A child may be provided developmental
144	disabilities or mental health services in emergency situations,
145	pursuant to the procedures and criteria contained in s.
146	394.463(1) or chapter 393, whichever is applicable. Before a
147	foster child may be given psychotropic medication, the child
148	must first have had a comprehensive physical examination by a
149	competent, nonpsychiatric medical specialist, and all
150	possibilities of physical disease or disorder, such as
151	nutritional deficiencies, heavy-metal toxicity, hypoglycemia,
152	and illegal drug dependence, must have been ruled out as causes
153	of the child's behavior or symptoms that are proposed to be
154	addressed with psychotropic medication. Such medications may be
155	prescribed only with the permission of the foster child's parent
156	or, if the parent cannot be located, authorization by the court.
157	(13)  Nothing in This section does not alter alters the
158	authority of the department to consent to medical treatment for
159	a dependent child when the child has been committed to the
160	department and the department has become the legal custodian of
161	the child. However, the department may not provide consent for
162	administering psychotropic medications to the child.
163	Section 2.  Paragraph (g) is added to subsection (1) of
164	section 39.601, Florida Statutes, and subsection (4) of said
165	section is amended, to read:
166	39.601  Case plan requirements.--
167	(1)  The department or agent of the department shall
168	develop a case plan for each child receiving services pursuant
169	to this chapter. A parent of a child may not be required nor
170	coerced through threat of loss of custody or parental rights to
171	admit in the case plan to abusing, neglecting, or abandoning a
172	child. Where dependency mediation services are available and
173	appropriate to the best interests of the child, the court may
174	refer the case to mediation for development of a case plan. This
175	section does not change the provisions of s. 39.807.
176	(g)  The case plan may not require a parent to force his or
177	her child to take psychotropic medications.
178	(4)  If In the event that the parents are unwilling or
179	unable to participate in the development of a case plan, the
180	department shall document that unwillingness or inability to
181	participate. Such documentation must be provided in writing to
182	the parent when available for the court record, and then the
183	department shall prepare a case plan conforming as nearly as
184	possible with the requirements set forth in this section. The
185	unwillingness or inability of the parents to participate in the
186	development of a case plan shall not in itself bar the filing of
187	a petition for dependency or for termination of parental rights.
188	The parents, if available, must be provided a copy of the case
189	plan and be advised that they may, at any time prior to the
190	filing of a petition for termination of parental rights, enter
191	into a case plan and that they may request judicial review of
192	any provision of the case plan with which they disagree at any
193	court review hearing set for the child. The department may not
194	threaten to terminate parental rights based solely on a refusal
195	by the parents to medicate the child with psychotropic
196	medications.
197	Section 3.  Subsection (3) is added to section 39.703,
198	Florida Statutes, to read:
199	39.703  Initiation of termination of parental rights
200	proceedings; judicial review.--
201	(3)  The department may not initiate proceedings to
202	terminate parental rights based solely on a refusal by the
203	parents to medicate the child with psychotropic medications.
204	Section 4.  Paragraphs (c) and (e) of subsection (1) of
205	section 39.806, Florida Statutes, are amended to read:
206	39.806  Grounds for termination of parental rights.--
207	(1)  The department, the guardian ad litem, or any person
208	who has knowledge of the facts alleged or who is informed of
209	those facts and believes that they are true may petition for the
210	termination of parental rights under any of the following
211	circumstances:
212	(c)  When the parent or parents engaged in conduct toward
213	the child or toward other children that demonstrates that the
214	continuing involvement of the parent or parents in the parent-
215	child relationship threatens the life, safety, well-being, or
216	physical, mental, or emotional health of the child irrespective
217	of the provision of services. Provision of services may be
218	evidenced by proof that services were provided through a
219	previous plan or offered as a case plan from a child welfare
220	agency. The refusal of the parents to medicate the child with
221	psychotropic medications may not be considered grounds for
222	termination of parental rights.
223	(e)  A petition for termination of parental rights may also
224	be filed when a child has been adjudicated dependent, a case
225	plan has been filed with the court, and the child continues to
226	be abused, neglected, or abandoned by the parents. In this case,
227	the failure of the parents to substantially comply for a period
228	of 12 months after an adjudication of the child as a dependent
229	child or the child's placement into shelter care, whichever came
230	first, constitutes evidence of continuing abuse, neglect, or
231	abandonment unless the failure to substantially comply with the
232	case plan was due either to the lack of financial resources of
233	the parents or to the failure of the department to make
234	reasonable efforts to reunify the parent and child. Such 12-
235	month period may begin to run only after the child's placement
236	into shelter care or the entry of a disposition order placing
237	the custody of the child with the department or a person other
238	than the parent and the approval by the court of a case plan
239	with a goal of reunification with the parent, whichever came
240	first. The refusal of the parents to medicate the child with
241	psychotropic medications may not be considered abuse or neglect.
242	Section 5.  Subsections (1), (2), (4), and (12) of section
243	984.19, Florida Statutes, are amended to read:
244	984.19  Medical screening and treatment of child;
245	examination of parent, guardian, or person requesting custody.--
246	(1)  When any child is to be placed in shelter care, the
247	department is authorized to have a medical screening performed
248	on the child without authorization from the court and without
249	consent from a parent or guardian. Such medical screening shall
250	be performed by a competent, nonpsychiatric medical specialist
251	licensed health care professional and shall be to examine the
252	child for injury, illness, and communicable diseases. The
253	screening must also include checking for nutritional
254	deficiencies, heavy-metal toxicity, hypoglycemia, and illegal
255	drug dependence. In no case does this subsection authorize the
256	department to consent to medical treatment for such children.
257	(2)  When the department has performed the medical
258	screening authorized by subsection (1) or when it is otherwise
259	determined by a licensed health care professional that a child
260	is in need of medical treatment, consent for medical treatment
261	shall be obtained in the following manner:
262	(a)1.  Consent to medical treatment shall be obtained from
263	a parent or guardian of the child; or
264	2.  A court order for such treatment shall be obtained.
265	(b)  If a parent or guardian of the child is unavailable
266	and his or her whereabouts cannot be reasonably ascertained and
267	it is after normal working hours so that a court order cannot
268	reasonably be obtained, an authorized agent of the department or
269	its provider has the authority to consent to necessary medical
270	treatment for the child. The authority of the department to
271	consent to medical treatment in this circumstance is limited to
272	the time reasonably necessary to obtain court authorization.
273	(c)  If a parent or guardian of the child is available but
274	refuses to consent to the necessary treatment, a court order is
275	required, unless the situation meets the definition of an
276	emergency in s. 743.064 or the treatment needed is related to
277	suspected abuse or neglect of the child by the parent or
278	guardian. In such case, the department has the authority to
279	consent to necessary medical treatment. This authority is
280	limited to the time reasonably necessary to obtain court
281	authorization.
282	(d)  The department may not administer or authorize
283	psychiatric or psychological tests or psychotropic medications
284	for a child in its custody without the written and informed
285	consent of the child's parent or legal guardian or, if the
286	parent or guardian cannot be located, authorization by the
287	court. The department shall ensure that children under its care
288	receive timely access to clinically appropriate psychotropic
289	medications that have no known contraindications for use in
290	children, shall provide information on all known side effects of
291	such medications, and shall provide options for alternative
292	treatments. The department shall adopt rules to ensure that the
293	children under its care receive appropriate psychotropic
294	medications or alternative treatments. The rules shall provide,
295	at a minimum, a uniform process for obtaining informed consent,
296	procedures for obtaining court authorization, and information
297	that must be provided in writing when requesting authorization
298	for the use of psychotropic medications.
299
300	In no case may the department consent to sterilization,
301	abortion, or termination of life support.
302	(4)  A judge may order that a child alleged to be or
303	adjudicated a child in need of services be treated by a licensed
304	health care professional. The judge may also order such child to
305	receive mental health or retardation services from a
306	psychiatrist, psychologist, or other appropriate service
307	provider. If it is necessary to place the child in a residential
308	facility for such services, then the procedures and criteria
309	established in s. 394.467 or chapter 393 shall be used,
310	whichever is applicable. A child may be provided mental health
311	or retardation services in emergency situations, pursuant to the
312	procedures and criteria contained in s. 394.463(1) or chapter
313	393, whichever is applicable. Before a child alleged to be or
314	adjudicated a child in need of services may be given
315	psychotropic medication, the child must first have had a
316	comprehensive physical examination by a competent,
317	nonpsychiatric medical specialist and all possibilities of
318	physical disease or disorder, such as nutritional deficiencies,
319	heavy-metal toxicity, hypoglycemia, and illegal drug dependence,
320	must have been ruled out as causes of the child's behavior or
321	symptoms that are proposed to be addressed with psychotropic
322	medication. Such medications may be prescribed only with the
323	permission of the child's parent or, if the parent cannot be
324	located, authorization by the court.
325	(12)  Nothing in This section does not alter alters the
326	authority of the department to consent to medical treatment for
327	a child who has been committed to the department pursuant to s.
328	984.22(3) and (4) and of whom the department has become the
329	legal custodian. However, the department may not provide consent
330	for administering psychotropic medications to the child.
331	Section 6.  Subsections (5) through (8) of section 985.224,
332	Florida Statutes, are renumbered as subsections (6) through (9),
333	respectively, subsection (2) is amended, and a new subsection
334	(5) is added to said section, to read:
335	985.224  Medical, psychiatric, psychological, substance
336	abuse, and educational examination and treatment.--
337	(2)  Whenever a child has been found to have committed a
338	delinquent act, or before such finding with the consent of any
339	parent or legal custodian of the child, the court may order the
340	child to be treated by a physician. The court may also order the
341	child to receive mental health, substance abuse, or retardation
342	services from a psychiatrist, psychologist, or other appropriate
343	service provider. If it is necessary to place the child in a
344	residential facility for such services, the procedures and
345	criteria established in chapter 393, chapter 394, or chapter
346	397, whichever is applicable, shall be used. Before a child may
347	be given psychotropic medication, the child must first have had
348	a comprehensive physical examination by a competent,
349	nonpsychiatric medical specialist and all possibilities of
350	physical disease or disorder, such as nutritional deficiencies,
351	heavy-metal toxicity, hypoglycemia, and illegal drug dependence,
352	must have been ruled out as causes of the child's behavior or
353	symptoms that are proposed to be addressed with psychotropic
354	medication. Such medications may be prescribed only with the
355	permission of the child's parent or, if the parent cannot be
356	located, authorization by the court. After a child has been
357	adjudicated delinquent, if an educational needs assessment by
358	the district school board or the Department of Children and
359	Family Services has been previously conducted, the court shall
360	order the report of such needs assessment included in the
361	child's court record in lieu of a new assessment. For purposes
362	of this section, an educational needs assessment includes, but
363	is not limited to, reports of intelligence and achievement
364	tests, screening for learning disabilities and other handicaps,
365	and screening for the need for alternative education.
366	(5)  The Department of Juvenile Justice may not administer
367	or authorize psychiatric or psychological tests or psychotropic
368	medications for a child in its custody without the written and
369	informed consent of the child's parent or legal guardian or, if
370	the parent or guardian cannot be located, authorization by the
371	court. The department shall ensure that children under its care
372	receive timely access to clinically appropriate psychotropic
373	medications that have no known contraindications for use in
374	children, shall provide information on all known side effects of
375	such medications, and shall provide options for alternative
376	treatments. The department shall adopt rules to ensure that the
377	children under its care receive appropriate psychotropic
378	medications or alternative treatments. The rules shall provide,
379	at a minimum, a uniform process for obtaining informed consent,
380	procedures for obtaining court authorization, and information
381	that must be provided in writing when requesting authorization
382	for the use of psychotropic medications.
383	Section 7.  This act shall take effect July 1, 2005.

CODING: Words stricken are deletions; words underlined are additions.