Florida Senate - 2009                                    SB 2018
       
       
       
       By Senator Fasano
       
       
       
       
       11-01179B-09                                          20092018__
    1                        A bill to be entitled                      
    2         An act relating to mental health; creating s.
    3         394.9086, F.S.; creating the Community Mental Health
    4         and Substance Abuse Treatment and Crime Reduction Act;
    5         providing legislative findings and intent; providing
    6         goals for the community mental health and substance
    7         abuse forensic treatment system; defining terms;
    8         requiring the Department of Children and Family
    9         Services, in consultation with the Agency for Health
   10         Care Administration, to develop and implement a
   11         community mental health and substance abuse forensic
   12         treatment system; providing initiatives and strategies
   13         for the community forensic system; detailing the
   14         services required in the community forensic system;
   15         setting forth the eligibility criteria for treatment
   16         in the system; requiring the department to develop a
   17         continuum of services to implement the Community
   18         Mental Health and Substance Abuse Treatment and Crime
   19         Reduction Act; specifying the services and functions
   20         the department must undertake; authorizing the
   21         department and the agency to identify geographic areas
   22         of the state where the community mental health and
   23         substance abuse forensic treatment system will be
   24         implemented; amending s. 394.655, F.S.; providing for
   25         additional functions of the Criminal Justice, Mental
   26         Health, and Substance Abuse Policy Council; amending
   27         s. 394.656, F.S.; requiring the department and the
   28         agency to cooperate with counties that receive grants
   29         funding under the Criminal Justice, Mental Health, and
   30         Substance Abuse Reinvestment Grant Program; amending
   31         s. 394.657, F.S.; requiring county councils to consult
   32         with local government when planning or implementing
   33         the Community Mental Health and Substance Abuse
   34         Treatment and Crime Reduction Act; amending s.
   35         394.659, F.S.; requiring the Criminal Justice, Mental
   36         Health, and Substance Abuse Technical Assistance
   37         Center at the Louis de la Parte Florida Mental Health
   38         Institute at the University of South Florida to
   39         perform certain functions with respect to implementing
   40         the act; amending s. 409.906, F.S.; adding home and
   41         community-based mental health services to the optional
   42         Medicaid services offered by the state Medicaid
   43         program; amending s. 409.912, F.S.; exempting persons
   44         who have serious and persistent mental illnesses and
   45         who are receiving services under the Community Mental
   46         Health and Substance Abuse Crime Reduction Act from
   47         MediPass and managed care plans; amending s. 916.107,
   48         F.S.; specifying treatment procedures for a client
   49         admitted to a state forensic mental health treatment
   50         facility who lacks the capacity to make an informed
   51         decision regarding mental health treatment at the time
   52         of admission; amending s. 916.111, F.S.; providing for
   53         forensic evaluator training for mental health experts;
   54         amending s. 916.115, F.S.; requiring court-appointed
   55         experts to have completed forensic evaluator training;
   56         requiring the court-appointed expert to be a
   57         psychiatrist or a licensed psychologist; requiring the
   58         Department of Children and Family Services to maintain
   59         and annually provide the courts with a forensic
   60         evaluator registry; amending s. 916.13, F.S.;
   61         requiring that a defendant who is serving a sentence
   62         in the custody of the Department of Corrections, who
   63         is charged with a new felony or is entitled to a
   64         mandatory appeal, and who has been adjudicated
   65         incompetent to proceed due to mental illness be
   66         retained in the physical custody of the Department of
   67         Corrections; requiring the Department of Corrections
   68         to administer competency training curriculum provided
   69         by the Department of Children and Family Services;
   70         amending s. 916.15, F.S.; requiring that a defendant
   71         who is serving a sentence in the custody of the
   72         Department of Corrections, who has been charged with a
   73         new felony, and who has been adjudicated not guilty by
   74         reason of insanity, must be retained in the physical
   75         custody of the Department of Corrections for the
   76         remainder of his or her sentence; requiring the
   77         Department of Corrections to evaluate the defendant
   78         and file a report with the committing court requesting
   79         that the defendant be returned to the court's
   80         jurisdiction to determine if the defendant continues
   81         to meet the criteria for involuntary commitment
   82         placement; amending s. 916.17, F.S.; requiring that
   83         certain defendants be placed in a community
   84         residential facility for competency restoration in
   85         demonstration areas established under the Community
   86         Mental Health and Substance Abuse Treatment and Crime
   87         Reduction Act; providing exceptions; amending s.
   88         985.19, F.S.; requiring that appointed experts
   89         complete the forensic evaluator training program;
   90         providing an effective date.
   91  
   92  Be It Enacted by the Legislature of the State of Florida:
   93  
   94         Section 1. Section 394.9086, Florida Statutes, is created
   95  to read:
   96         394.9086Community Mental Health and Substance Abuse
   97  Treatment and Crime Reduction Act.
   98         (1)LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
   99  that many jail inmates who have serious mental illnesses and who
  100  are committed to state forensic mental health treatment
  101  facilities for competency restoration could be served more
  102  effectively and at less cost in community-based alternative
  103  programs. The Legislature further finds that many people who
  104  have serious mental illnesses and who have been discharged from
  105  state forensic mental health treatment facilities could avoid
  106  recidivism to the criminal justice and forensic mental health
  107  systems if they received specialized treatment in the community.
  108  It is therefore the intent of the Legislature to create the
  109  Community Mental Health and Substance Abuse Treatment and Crime
  110  Reduction Act to serve individuals who have mental illnesses or
  111  co-occurring mental illnesses and substance use disorders and
  112  who are involved in or at risk of entering state forensic mental
  113  health treatment facilities, prisons, jails, juvenile justice
  114  centers, or state civil mental health treatment facilities.
  115         (2)GOALS.—The goals of the community mental health and
  116  substance abuse forensic treatment system are to:
  117         (a)Ensure public safety;
  118         (b)Ensure that services to restore forensic competency are
  119  provided in the least restrictive, least costly, and most
  120  effective environment;
  121         (c)Provide competency-restoration services in the
  122  community when appropriate, based on consideration of public
  123  safety, needs of the individual, and available resources;
  124         (d)Reduce admissions for competency restoration to state
  125  forensic mental health treatment facilities;
  126         (e)Reduce rates of arrest, incarceration, and
  127  reincarceration;
  128         (f)Increase outreach and services to individuals at risk
  129  for involvement in the criminal justice, juvenile justice, or
  130  forensic mental health systems; and
  131         (g)Support collaboration among state and local
  132  stakeholders, including law enforcement agencies, courts, state
  133  agencies, jails, county government, service providers,
  134  individuals with mental illnesses or co-occurring mental
  135  illnesses and substance abuse disorders, family members,
  136  advocates, and other community members.
  137         (3)DEFINITIONS.—As used in this section, the term:
  138         (a)“Agency” means the Agency for Health Care
  139  Administration.
  140         (b)”Best practices” means treatment services that
  141  incorporate the most effective and acceptable interventions
  142  available in the care and treatment of individuals who are
  143  diagnosed as having a mental illness or a co-occurring mental
  144  illness and substance use disorder.
  145         (c)“Community forensic system” means the community mental
  146  health and substance abuse forensic treatment system, including
  147  the comprehensive set of services and supports provided to
  148  individuals involved in or at risk of becoming involved in the
  149  criminal justice system.
  150         (d)“Community residential facility” means a community
  151  based residential treatment setting licensed by the agency under
  152  s. 394.875 or s. 429.075, or the department under s. 397.401.
  153         (e)“Department” means the Department of Children and
  154  Family Services.
  155         (f)“Evidence-based practices” means interventions and
  156  strategies that, based on the best available empirical research,
  157  demonstrate effective and efficient outcomes in the care and
  158  treatment of individuals who are diagnosed as having mental
  159  illnesses or co-occurring mental illnesses and substance use
  160  disorders.
  161         (g)“Forensic intensive care management” means activities
  162  addressing the comprehensive psychiatric, social, and support
  163  needs of individuals who are diagnosed as having serious and
  164  persistent mental illnesses, co-occurring disorders, or severe
  165  emotional disturbances, and who are involved in the justice
  166  system and receiving services under this section. Activities
  167  include, but are not limited to, service planning, service
  168  coordination, monitoring, and assistance with accessing federal,
  169  state, and local benefits necessary to sustain a person in the
  170  community.
  171         (h)“Geographic area” means a county, circuit, regional, or
  172  multiregional area in this state.
  173         (4)SERVICE SYSTEM.—The department, in consultation with
  174  the agency, shall develop and implement a community mental
  175  health and substance abuse forensic treatment system. The
  176  community forensic system must build on local community
  177  diversion and reentry initiatives and strategies that are
  178  consistent with those identified and supported under s.
  179  394.658(1).
  180         (a)The community forensic system initiatives and
  181  strategies may include, but are not limited to:
  182         1.Mental health courts;
  183         2.Diversion programs;
  184         3.Alternative prosecution and sentencing techniques;
  185         4.Crisis intervention teams;
  186         5.Specialized training for criminal justice, juvenile
  187  justice, and treatment services professionals;
  188         6.Specialized probation officers at the state and county
  189  levels to serve individuals under correctional control in the
  190  community;
  191         7.Collateral services such as supported, transitional, and
  192  permanent housing, and supported employment; and
  193         8.Reentry services to create or expand mental health and
  194  co-occurring treatment and supports for affected individuals.
  195         (b)The community forensic system must include a
  196  comprehensive continuum of care and services that use evidence
  197  based and best practices to address co-occurring mental health
  198  and substance use disorders. The community forensic system must
  199  include the following minimum services and elements:
  200         1.Competency-restoration and treatment services provided
  201  in a variety of settings from least restrictive to progressively
  202  more restrictive settings;
  203         2.Forensic intensive care management;
  204         3.Supported housing;
  205         4.Supported employment;
  206         5.Medication management;
  207         6.Trauma-specific services for treatment of the effects of
  208  sexual, physical, and emotional abuse or trauma experienced by
  209  individuals who have mental illnesses and are involved in the
  210  criminal justice system;
  211         7.Residential services to address crisis episodes and
  212  short-term residential treatment;
  213         8.Treatment for co-occurring mental health and substance
  214  use disorders;
  215         9.Outreach and education for individuals and their
  216  families who are at risk of further involvement with the justice
  217  system; and
  218         10.Other services or supports as identified.
  219         (5)ELIGIBILITY.—The department may serve individuals who
  220  meet the criteria in this subsection. The department must give
  221  highest priority for services under this section to:
  222         (a)Adults who are adjudicated incompetent to proceed or
  223  not guilty by reason of insanity under chapter 916 and ordered
  224  by the court into forensic commitment, whose current most
  225  serious charge is a felony of the third degree or a felony of
  226  the second degree if the felony did not involve violence, and
  227  who meet public safety criteria established by the court and
  228  treatability criteria established by the department for
  229  placement in a community setting.
  230         (b)Adults who experience serious and persistent mental
  231  illnesses re-entering the community from state prisons.
  232         (c)Adults who have been committed to a state forensic
  233  mental health treatment facility after being adjudicated
  234  incompetent to proceed or not guilty by reason of insanity, and
  235  are released or are pending release to the community by the
  236  court after completing competency restoration services or being
  237  found to no longer meet the criteria for continued commitment
  238  placement.
  239         (d)Adults who experience serious and persistent mental
  240  illnesses, who have a history of involvement in the justice
  241  system, or who are at risk of entering or are already involved
  242  with the criminal justice system.
  243         (e)Children deemed incompetent to proceed under s. 985.19.
  244         (6)DEPARTMENT RESPONSIBILITIES.—The department shall
  245  develop a continuum of services to implement the Community
  246  Mental Health and Substance Abuse Treatment and Crime Reduction
  247  Act in accordance with subsection (4). The department shall:
  248         (a)Define requirements for all providers in the community
  249  forensic system.
  250         (b)Select demonstration sites for participation, based on
  251  criteria in subsection (7), which demonstrate active and
  252  sustained participation in community collaborations.
  253         (c)Enter into memorandums of agreement with county
  254  planning councils or committees identified in s. 394.657, which
  255  are included in the demonstration sites.
  256         (d)Identify providers to implement the continuum of
  257  services. The department shall consult with county planning
  258  councils or committees in the selection process.
  259         (e)Establish performance measures and reporting
  260  requirements for providers participating in the community
  261  forensic system. The measures shall include, at a minimum:
  262         1.The number of individuals diverted from state forensic
  263  mental health treatment facilities;
  264         2.The number of individuals diverted from the criminal
  265  justice system;
  266         3.The rates of arrest, incarceration, and reincarceration
  267  for new criminal offenses;
  268         4.The rates of employment; and
  269         5.The annual number of days in a crisis stabilization
  270  unit, detoxification facility, short-term residential treatment
  271  program, state civil mental health treatment facility, or state
  272  forensic mental health treatment facility.
  273         (f)Monitor contracts for compliance with terms, and at
  274  least annually and to the extent possible, perform joint onsite
  275  monitoring with the agency and the Criminal Justice, Mental
  276  Health, and Substance Abuse Technical Assistance Center,
  277  established under s. 394.659, to assess performance of the
  278  contract.
  279         (7)IMPLEMENTATION.—In expectation of statewide
  280  implementation of this section, the department in consultation
  281  with the agency may identify geographic areas of the state for
  282  initial implementation. All areas must be selected based on
  283  findings of community readiness and the potential for affecting
  284  the greatest number of individuals entering the forensic mental
  285  health and criminal justice systems. Criteria for selection may
  286  include:
  287         (a)Community readiness to deliver the services outlined in
  288  subsection (4), demonstrated by well-established community
  289  collaboration plans and local partnerships as evidenced by
  290  memorandums of agreement that are submitted to and approved by
  291  the department;
  292         (b)A high bed-utilization rate at state forensic mental
  293  health treatment facilities;
  294         (c)Successful application for implementation grant funding
  295  under the Criminal Justice, Mental Health, and Substance Abuse
  296  Reinvestment Grant Program; and
  297         (d)Other elements determined by the department in
  298  consultation with the agency.
  299         Section 2. Paragraph (b) of subsection (11) of section
  300  394.655, Florida Statutes, is amended to read:
  301         394.655 The Substance Abuse and Mental Health Corporation;
  302  powers and duties; composition; evaluation and reporting
  303  requirements.—
  304         (11)
  305         (b) The purpose of the council shall be to:
  306         1. Align policy initiatives in the criminal justice,
  307  juvenile justice, and mental health systems to ensure the most
  308  effective use of resources and to coordinate the development of
  309  legislative proposals and budget requests relating to the shared
  310  needs of adults and juveniles who have a mental illness,
  311  substance abuse disorder, or co-occurring mental health and
  312  substance abuse disorders who are in, or at risk of entering,
  313  the criminal justice system.
  314         2.Provide consultation in the development of comprehensive
  315  and cost-effective community-based mental health and substance
  316  abuse treatment services for individuals who have mental
  317  illnesses and who are receiving services in state forensic
  318  mental health treatment facilities, juvenile secure residential
  319  treatment centers specializing in competency training, prisons,
  320  jails, and juvenile justice centers. The council shall appoint
  321  an advisory committee to review and monitor the implementation
  322  of the Community Mental Health and Substance Abuse Treatment and
  323  Crime Reduction Act. The advisory committee shall include at
  324  least one person who has received services and one family member
  325  of a person who has received services under this section.
  326         Section 3. Subsection (1) of section 394.656, Florida
  327  Statutes, is amended to read:
  328         394.656 Criminal Justice, Mental Health, and Substance
  329  Abuse Reinvestment Grant Program.—
  330         (1) There is created within the Department of Children and
  331  Family Services the Criminal Justice, Mental Health, and
  332  Substance Abuse Reinvestment Grant Program. The purpose of the
  333  program is to provide funding to counties with which they can
  334  plan, implement, or expand initiatives that increase public
  335  safety, avert increased spending on criminal justice, and
  336  improve the accessibility and effectiveness of treatment
  337  services for adults and juveniles who have a mental illness,
  338  substance abuse disorder, or co-occurring mental health and
  339  substance abuse disorders and who are in, or at risk of
  340  entering, the criminal or juvenile justice systems. In
  341  implementing the Community Mental Health and Substance Abuse
  342  Treatment and Crime Reduction Act, the department and agency
  343  shall work in coordination with counties that received grants
  344  under the Criminal Justice, Mental Health, and Substance Abuse
  345  Reinvestment Grant Program to develop local treatment and
  346  service delivery infrastructures.
  347         Section 4. Subsection (1) of section 394.657, Florida
  348  Statutes, is amended to read:
  349         394.657 County planning councils or committees.—
  350         (1) Each board of county commissioners shall designate the
  351  county public safety coordinating council established under s.
  352  951.26, or designate another criminal or juvenile justice mental
  353  health and substance abuse council or committee, as the planning
  354  council or committee. The public safety coordinating council or
  355  other designated criminal or juvenile justice mental health and
  356  substance abuse council or committee shall:,
  357         (a)Coordinate in coordination with the county offices of
  358  planning and budget to, shall make a formal recommendation to
  359  the board of county commissioners regarding how the Criminal
  360  Justice, Mental Health, and Substance Abuse Reinvestment Grant
  361  Program may best be implemented within a community. The board of
  362  county commissioners may assign any entity to prepare the
  363  application on behalf of the county administration for
  364  submission to the corporation for review. A county may join with
  365  one or more counties to form a consortium and use a regional
  366  public safety coordinating council or another county-designated
  367  regional criminal or juvenile justice mental health and
  368  substance abuse planning council or committee for the geographic
  369  area represented by the member counties.
  370         (b)Consult with local governing bodies when planning or
  371  implementing the Community Mental Health and Substance Abuse
  372  Treatment and Crime Reduction Act.
  373         Section 5. Paragraphs (g), (h), (i), and (j) are added to
  374  subsection (1) of section 394.659, Florida Statutes, to read:
  375         394.659 Criminal Justice, Mental Health, and Substance
  376  Abuse Technical Assistance Center.—
  377         (1) There is created a Criminal Justice, Mental Health, and
  378  Substance Abuse Technical Assistance Center at the Louis de la
  379  Parte Florida Mental Health Institute at the University of South
  380  Florida, which shall:
  381         (g)In coordination with the department, develop minimum
  382  competencies and proficiencies required for communities and
  383  service providers.
  384         (h)Identify evidence-based and best practices and deliver
  385  necessary training and consultation to service providers.
  386         (i)Assist the department in developing outcome measures.
  387         (j)Provide an annual report to the Governor, the President
  388  of the Senate, the Speaker of the House of Representatives, the
  389  Chief Justice of the Supreme Court, and the State Courts
  390  Administrator on the status of implementation of the Community
  391  Mental Health and Substance Abuse Treatment and Crime Reduction
  392  Act. For those areas that also have a grant under the subsection
  393  (2), the institute shall prepare a joint report to avoid
  394  duplication.
  395         Section 6. Subsection (28) is added to section 409.906,
  396  Florida Statutes, to read:
  397         409.906 Optional Medicaid services.—Subject to specific
  398  appropriations, the agency may make payments for services which
  399  are optional to the state under Title XIX of the Social Security
  400  Act and are furnished by Medicaid providers to recipients who
  401  are determined to be eligible on the dates on which the services
  402  were provided. Any optional service that is provided shall be
  403  provided only when medically necessary and in accordance with
  404  state and federal law. Optional services rendered by providers
  405  in mobile units to Medicaid recipients may be restricted or
  406  prohibited by the agency. Nothing in this section shall be
  407  construed to prevent or limit the agency from adjusting fees,
  408  reimbursement rates, lengths of stay, number of visits, or
  409  number of services, or making any other adjustments necessary to
  410  comply with the availability of moneys and any limitations or
  411  directions provided for in the General Appropriations Act or
  412  chapter 216. If necessary to safeguard the state's systems of
  413  providing services to elderly and disabled persons and subject
  414  to the notice and review provisions of s. 216.177, the Governor
  415  may direct the Agency for Health Care Administration to amend
  416  the Medicaid state plan to delete the optional Medicaid service
  417  known as “Intermediate Care Facilities for the Developmentally
  418  Disabled.” Optional services may include:
  419         (28)HOME AND COMMUNITY-BASED SERVICES.-The agency,
  420  contingent upon appropriation of funds for this purpose, may
  421  seek federal approval through a state plan amendment to
  422  implement home and community-based services under the authority
  423  of and in compliance with s. 1915i of the Social Security Act
  424  for services provided to individuals who have been determined by
  425  an independent evaluation to have disabilities that cause them
  426  to become, or put them at risk of becoming, involved with the
  427  criminal justice system due to their mental illness. In
  428  accordance with allowances under s. 1915i of the Social Security
  429  Act, these services may be limited to a select number of
  430  eligible individuals in select geographic areas, as identified
  431  by the agency. Eligible individuals may have incomes up to 150
  432  percent of the federal poverty level. The agency shall
  433  coordinate with the department to select and define the services
  434  that will be submitted in the state plan amendment and be
  435  provided under this subsection. The agency may disenroll from
  436  enrollment in MediPass, or any capitated or other Medicaid
  437  managed care arrangements, those individuals receiving servicer
  438  under this subsection. Enrollment in state plan services may not
  439  exceed 1,000 individuals unless additional approval is obtained
  440  from the Legislature. The agency must receive approval from the
  441  Legislature or Legislative Budget Commission for any funding
  442  beyond that which is provided within initial implementation
  443  revenues. After July 1, 2012, the agency may consider seeking
  444  authority to capitate Medicaid behavioral health services under
  445  this subsection.
  446         Section 7. Subsection (54) is added to section 409.912,
  447  Florida Statutes, to read:
  448         409.912 Cost-effective purchasing of health care.—The
  449  agency shall purchase goods and services for Medicaid recipients
  450  in the most cost-effective manner consistent with the delivery
  451  of quality medical care. To ensure that medical services are
  452  effectively utilized, the agency may, in any case, require a
  453  confirmation or second physician's opinion of the correct
  454  diagnosis for purposes of authorizing future services under the
  455  Medicaid program. This section does not restrict access to
  456  emergency services or poststabilization care services as defined
  457  in 42 C.F.R. part 438.114. Such confirmation or second opinion
  458  shall be rendered in a manner approved by the agency. The agency
  459  shall maximize the use of prepaid per capita and prepaid
  460  aggregate fixed-sum basis services when appropriate and other
  461  alternative service delivery and reimbursement methodologies,
  462  including competitive bidding pursuant to s. 287.057, designed
  463  to facilitate the cost-effective purchase of a case-managed
  464  continuum of care. The agency shall also require providers to
  465  minimize the exposure of recipients to the need for acute
  466  inpatient, custodial, and other institutional care and the
  467  inappropriate or unnecessary use of high-cost services. The
  468  agency shall contract with a vendor to monitor and evaluate the
  469  clinical practice patterns of providers in order to identify
  470  trends that are outside the normal practice patterns of a
  471  provider's professional peers or the national guidelines of a
  472  provider's professional association. The vendor must be able to
  473  provide information and counseling to a provider whose practice
  474  patterns are outside the norms, in consultation with the agency,
  475  to improve patient care and reduce inappropriate utilization.
  476  The agency may mandate prior authorization, drug therapy
  477  management, or disease management participation for certain
  478  populations of Medicaid beneficiaries, certain drug classes, or
  479  particular drugs to prevent fraud, abuse, overuse, and possible
  480  dangerous drug interactions. The Pharmaceutical and Therapeutics
  481  Committee shall make recommendations to the agency on drugs for
  482  which prior authorization is required. The agency shall inform
  483  the Pharmaceutical and Therapeutics Committee of its decisions
  484  regarding drugs subject to prior authorization. The agency is
  485  authorized to limit the entities it contracts with or enrolls as
  486  Medicaid providers by developing a provider network through
  487  provider credentialing. The agency may competitively bid single
  488  source-provider contracts if procurement of goods or services
  489  results in demonstrated cost savings to the state without
  490  limiting access to care. The agency may limit its network based
  491  on the assessment of beneficiary access to care, provider
  492  availability, provider quality standards, time and distance
  493  standards for access to care, the cultural competence of the
  494  provider network, demographic characteristics of Medicaid
  495  beneficiaries, practice and provider-to-beneficiary standards,
  496  appointment wait times, beneficiary use of services, provider
  497  turnover, provider profiling, provider licensure history,
  498  previous program integrity investigations and findings, peer
  499  review, provider Medicaid policy and billing compliance records,
  500  clinical and medical record audits, and other factors. Providers
  501  shall not be entitled to enrollment in the Medicaid provider
  502  network. The agency shall determine instances in which allowing
  503  Medicaid beneficiaries to purchase durable medical equipment and
  504  other goods is less expensive to the Medicaid program than long
  505  term rental of the equipment or goods. The agency may establish
  506  rules to facilitate purchases in lieu of long-term rentals in
  507  order to protect against fraud and abuse in the Medicaid program
  508  as defined in s. 409.913. The agency may seek federal waivers
  509  necessary to administer these policies.
  510         (54)Persons who have serious and persistent mental
  511  illnesses, who are receiving services under the Community Mental
  512  Health and Substance Abuse Crime Reduction Act, and who are
  513  eligible for and receiving services under the state plan
  514  implemented under s. 1915i of the Social Security Act, as
  515  approved by the Centers for Medicare and Medicaid Services, are
  516  exempt from MediPass and managed care plans authorized under
  517  this chapter, including capitated managed care plans authorized
  518  under s. 409.91211.
  519         Section 8. Paragraph (a) of subsection (3) of section
  520  916.107, Florida Statutes, is amended to read:
  521         916.107 Rights of forensic clients.—
  522         (3) RIGHT TO EXPRESS AND INFORMED CONSENT.—
  523         (a) A forensic client shall be asked to give express and
  524  informed written consent for treatment. If a client refuses such
  525  treatment as is deemed necessary and essential by the client's
  526  multidisciplinary treatment team for the appropriate care of the
  527  client, such treatment may be provided under the following
  528  circumstances:
  529         1. In an emergency situation in which there is immediate
  530  danger to the safety of the client or others, such treatment may
  531  be provided upon the written order of a physician for a period
  532  not to exceed 48 hours, excluding weekends and legal holidays.
  533  If, after the 48-hour period, the client has not given express
  534  and informed consent to the treatment initially refused, the
  535  administrator or designee of the civil or forensic facility
  536  shall, within 48 hours, excluding weekends and legal holidays,
  537  petition the committing court or the circuit court serving the
  538  county in which the facility is located, at the option of the
  539  facility administrator or designee, for an order authorizing the
  540  continued treatment of the client. In the interim, the need for
  541  treatment shall be reviewed every 48 hours and may be continued
  542  without the consent of the client upon the continued written
  543  order of a physician who has determined that the emergency
  544  situation continues to present a danger to the safety of the
  545  client or others.
  546         2. In a situation other than an emergency situation, the
  547  administrator or designee of the facility shall petition the
  548  court for an order authorizing necessary and essential treatment
  549  for the client.
  550         a.If the client has been receiving psychotherapeutic
  551  medication at the jail at the time of transfer to the state
  552  forensic mental health treatment facility and lacks the capacity
  553  to make an informed decision regarding mental health treatment
  554  at the time of admission, the admitting physician may order a
  555  continuation of the psychotherapeutic medication if, in the
  556  clinical judgment of the physician, abrupt cessation of the
  557  psychotherapeutic medication could cause a risk to the health
  558  and safety of the client during the time a court order to
  559  medicate is pursued. The jail physician shall provide a current
  560  psychotherapeutic medication order at the time of transfer to
  561  the admitting facility.
  562         b. The court order shall allow such treatment for a period
  563  not to exceed 90 days following the date of the entry of the
  564  order. Unless the court is notified in writing that the client
  565  has provided express and informed consent in writing or that the
  566  client has been discharged by the committing court, the
  567  administrator or designee shall, prior to the expiration of the
  568  initial 90-day order, petition the court for an order
  569  authorizing the continuation of treatment for another 90-day
  570  period. This procedure shall be repeated until the client
  571  provides consent or is discharged by the committing court.
  572         3. At the hearing on the issue of whether the court should
  573  enter an order authorizing treatment for which a client was
  574  unable to or refused to give express and informed consent, the
  575  court shall determine by clear and convincing evidence that the
  576  client has mental illness, retardation, or autism, that the
  577  treatment not consented to is essential to the care of the
  578  client, and that the treatment not consented to is not
  579  experimental and does not present an unreasonable risk of
  580  serious, hazardous, or irreversible side effects. In arriving at
  581  the substitute judgment decision, the court must consider at
  582  least the following factors:
  583         a. The client's expressed preference regarding treatment;
  584         b. The probability of adverse side effects;
  585         c. The prognosis without treatment; and
  586         d. The prognosis with treatment.
  587  
  588  The hearing shall be as convenient to the client as may be
  589  consistent with orderly procedure and shall be conducted in
  590  physical settings not likely to be injurious to the client's
  591  condition. The court may appoint a general or special magistrate
  592  to preside at the hearing. The client or the client's guardian,
  593  and the representative, shall be provided with a copy of the
  594  petition and the date, time, and location of the hearing. The
  595  client has the right to have an attorney represent him or her at
  596  the hearing, and, if the client is indigent, the court shall
  597  appoint the office of the public defender to represent the
  598  client at the hearing. The client may testify or not, as he or
  599  she chooses, and has the right to cross-examine witnesses and
  600  may present his or her own witnesses.
  601         Section 9. Section 916.111, Florida Statutes, is amended to
  602  read:
  603         916.111 Training of mental health experts.—The evaluation
  604  of defendants for competency to proceed or for sanity at the
  605  time of the commission of the offense shall be conducted in such
  606  a way as to ensure uniform application of the criteria
  607  enumerated in Rules 3.210 and 3.216, Florida Rules of Criminal
  608  Procedure.
  609         (1)A forensic evaluator training course approved by the
  610  department must be provided at least annually to ensure that
  611  mental health professionals have the opportunity to be placed on
  612  the department’s forensic evaluator registry.
  613         (a)Beginning July 1, 2010, experts shall remain on the
  614  registry if they have completed or retaken the required training
  615  within the previous 5 years. Those who have not completed the
  616  required training within the previous 5 years shall be removed
  617  from the registry and may not conduct evaluations for the
  618  courts.
  619         (b)A mental health professional who has completed the
  620  training course within the previous 5 years is responsible for
  621  maintaining documentation of completion of the required training
  622  and providing to the department current contact information.
  623         (2) The department shall develop, and may contract with
  624  accredited institutions:
  625         (a)(1) To provide:
  626         1.(a) A plan for training mental health professionals to
  627  perform forensic evaluations and to standardize the criteria and
  628  procedures to be used in these evaluations;
  629         2.(b) Clinical protocols and procedures based upon the
  630  criteria of Rules 3.210 and 3.216, Florida Rules of Criminal
  631  Procedure; and
  632         3.(c) Training for mental health professionals in the
  633  application of these protocols and procedures in performing
  634  forensic evaluations and providing reports to the courts; and
  635         (b)(2) To compile and maintain the necessary information
  636  for evaluating the success of this program, including the number
  637  of persons trained, the cost of operating the program, and the
  638  effect on the quality of forensic evaluations as measured by
  639  appropriateness of admissions to state forensic facilities and
  640  to community-based care programs.
  641         Section 10. Subsection (1) of section 916.115, Florida
  642  Statutes, is amended to read:
  643         916.115 Appointment of experts.—
  644         (1) The court shall appoint no more than three experts to
  645  determine the mental condition of a defendant in a criminal
  646  case, including competency to proceed, insanity, involuntary
  647  placement, and treatment. The experts may evaluate the defendant
  648  in jail or in another appropriate local facility or in a
  649  facility of the Department of Corrections.
  650         (a) To the extent possible, The appointed experts shall
  651  have completed forensic evaluator training as provided in s.
  652  916.111 approved by the department, and each shall be a
  653  psychiatrist, or licensed psychologist, or physician.
  654         (b) The department shall maintain and annually provide the
  655  courts with a forensic evaluator registry list of available
  656  mental health professionals who have completed the approved
  657  training as experts.
  658         Section 11. Section 916.13, Florida Statutes, is amended to
  659  read:
  660         916.13 Involuntary commitment of defendant adjudicated
  661  incompetent.—
  662         (1) Except for a defendant who is serving a sentence in the
  663  custody of the Department of Corrections, a Every defendant who
  664  is charged with a felony and who is adjudicated incompetent to
  665  proceed may be involuntarily committed for treatment upon a
  666  finding by the court of clear and convincing evidence that:
  667         (a) The defendant has a mental illness and because of the
  668  mental illness:
  669         1. The defendant is manifestly incapable of surviving alone
  670  or with the help of willing and responsible family or friends,
  671  including available alternative services, and, without
  672  treatment, the defendant is likely to suffer from neglect or
  673  refuse to care for herself or himself and such neglect or
  674  refusal poses a real and present threat of substantial harm to
  675  the defendant's well-being; or
  676         2. There is a substantial likelihood that in the near
  677  future the defendant will inflict serious bodily harm on herself
  678  or himself or another person, as evidenced by recent behavior
  679  causing, attempting, or threatening such harm;
  680         (b) All available, less restrictive treatment alternatives,
  681  including treatment in community residential facilities or
  682  community inpatient or outpatient settings, which would offer an
  683  opportunity for improvement of the defendant's condition have
  684  been judged to be inappropriate; and
  685         (c) There is a substantial probability that the mental
  686  illness causing the defendant's incompetence will respond to
  687  treatment and the defendant will regain competency to proceed in
  688  the reasonably foreseeable future.
  689         (2)(a) A defendant who has been charged with a felony and
  690  who has been adjudicated incompetent to proceed due to mental
  691  illness, and who meets the criteria for involuntary commitment
  692  to the department under the provisions of this chapter, may be
  693  committed to the department, and the department shall retain and
  694  treat the defendant. Within No later than 6 months after the
  695  date of admission and at the end of any period of extended
  696  commitment, or at any time the administrator or designee shall
  697  have determined that the defendant has regained competency to
  698  proceed or no longer meets the criteria for continued
  699  commitment, the administrator or designee shall file a report
  700  with the court pursuant to the applicable Florida Rules of
  701  Criminal Procedure.
  702         (b)A defendant who is serving a sentence in the custody of
  703  the Department of Corrections, who is charged with a new felony
  704  or is entitled to a mandatory appeal under Rule 3.851, Florida
  705  Rules of Criminal Procedure, and who has been adjudicated
  706  incompetent to proceed due to mental illness shall be retained
  707  in the physical custody of the Department of Corrections. The
  708  Department of Corrections shall administer competency training
  709  curriculum provided by the department. Within 6 months after the
  710  administration of the competency training and every 12 months
  711  thereafter, or at any time the department determines that the
  712  defendant has regained competency to proceed, the department
  713  shall file a report with the court pursuant to the applicable
  714  Florida Rules of Criminal Procedure.
  715         (c)Within 15 days after the court receives notification
  716  that a defendant is competent to proceed or no longer meets the
  717  criteria for continued commitment, the defendant shall be
  718  transported back to jail pursuant to s. 916.107(10) for the
  719  purpose of holding a competency hearing
  720         (d)A competency hearing shall be held within 30 days after
  721  a court receives notification that the defendant is competent to
  722  proceed or no longer meets criteria for continued commitment.
  723         Section 12. Present subsection (4) of section 916.15,
  724  Florida Statutes, is renumbered as subsection (6), and new
  725  subsections (4) and (5) are added to that section, to read:
  726         916.15 Involuntary commitment of defendant adjudicated not
  727  guilty by reason of insanity.—
  728         (4)(a)Within 15 days after the court is notified that a
  729  defendant no longer meets the criteria for involuntary
  730  commitment placement, the defendant shall be transported back to
  731  jail for the purpose of holding a commitment hearing.
  732         (b)The commitment hearing must be held within 30 days
  733  after the court receives notification that the defendant no
  734  longer meets the criteria for continued commitment placement.
  735         (5)A defendant who is serving a sentence in the custody of
  736  the Department of Corrections, who has been charged with a new
  737  felony, and who has been adjudicated not guilty by reason of
  738  insanity shall be retained in the physical custody of the
  739  Department of Corrections for the remainder of his or her
  740  sentence. Within 30 days before the defendant's release date,
  741  the department shall evaluate the defendant and file a report
  742  with the court requesting that the defendant be returned to the
  743  court's jurisdiction to determine if the defendant continues to
  744  meet the criteria for involuntary commitment placement.
  745         Section 13. Present subsections (2) and (3) of section
  746  916.17, Florida Statutes, are renumbered as subsections (3) and
  747  (4), respectively, and a new subsection (2) is added to that
  748  section, to read:
  749         916.17 Conditional release.—
  750         (2)A defendant who otherwise meets the criteria for
  751  involuntary commitment under s. 916.13, but whose current most
  752  serious charge is a felony of the third degree or a felony of
  753  the second degree when the felony did not involve violence, must
  754  be placed in a community residential facility for competency
  755  restoration in demonstration areas established in s. 394.9086,
  756  unless bed space or funding is unavailable for the community
  757  placement, or the trial court makes an explicit finding that the
  758  defendant cannot be safely managed in such a placement. In
  759  making the determination under this subsection, the court shall
  760  consider all of the following:
  761         (a)The nature and seriousness of the crime allegedly
  762  committed.
  763         (b)The individual’s criminal history.
  764         (c)The individual’s psychiatric history.
  765         (d)The individual’s history of violent behavior or threats
  766  of violent behavior, and risk of harm to self or others.
  767         (e)The likelihood that the individual will comply with and
  768  benefit from the mental health treatment and services being
  769  recommended.
  770         (f)The availability of appropriate community-based
  771  services and treatment settings.
  772         (g)Other information considered relevant by the court.
  773         Section 14. Paragraphs (b) and (d) of subsection (1) of
  774  section 985.19, Florida Statutes, are amended to read:
  775         985.19 Incompetency in juvenile delinquency cases.—
  776         (1) If, at any time prior to or during a delinquency case,
  777  the court has reason to believe that the child named in the
  778  petition may be incompetent to proceed with the hearing, the
  779  court on its own motion may, or on the motion of the child's
  780  attorney or state attorney must, stay all proceedings and order
  781  an evaluation of the child's mental condition.
  782         (b) All determinations of competency shall be made at a
  783  hearing, with findings of fact based on an evaluation of the
  784  child's mental condition made by not less than two nor more than
  785  three experts appointed by the court. The basis for the
  786  determination of incompetency must be specifically stated in the
  787  evaluation and must be conducted in such a way as to ensure
  788  uniform application of the criteria enumerated in Rule 8.095,
  789  Florida Rules of Juvenile Procedure. In addition, a
  790  recommendation as to whether residential or nonresidential
  791  treatment or training is required must be included in the
  792  evaluation. Experts appointed by the court to determine the
  793  mental condition of a child shall be allowed reasonable fees for
  794  services rendered. State employees may be paid expenses pursuant
  795  to s. 112.061. The fees shall be taxed as costs in the case.
  796         (d) Appointed experts must have completed forensic
  797  evaluator training approved by the department within 5 years
  798  prior to conducting evaluations for the court, and each must be
  799  a psychiatrist, licensed psychologist, or physician. For
  800  incompetency evaluations related to mental illness, the
  801  Department of Children and Family Services shall maintain and
  802  annually provide the courts with a list of available mental
  803  health professionals who have completed a training program
  804  approved by the Department of Children and Family Services to
  805  perform the evaluations. Beginning July 1, 2010, experts shall
  806  remain on the department's registry as long as they have
  807  completed or retaken the forensic evaluator training within the
  808  previous 5 years. Those who have not completed the required
  809  training within the previous 5 years shall be removed from the
  810  department's registry and may not conduct evaluations for the
  811  courts. Experts are responsible for maintaining documentation of
  812  completion of the required training and providing the department
  813  with current contact information during the 5-year period that
  814  the required training remains in effect.
  815         Section 15. This act shall take effect July 1, 2009.