HB 1567

1	A bill to be entitled
2	An act relating to the provision of psychotropic
3	medication to children in out-of-home placements;
4	repealing s. 39.407(3), F.S., relating to the authority of
5	the Department of Children and Family Services to
6	prescribe psychotropic medication to a child in its
7	custody; creating s. 39.4071, F.S.; providing legislative
8	findings and intent; providing definitions; requiring that
9	a guardian ad litem be appointed by the court to represent
10	a child in the custody of the Department of Children and
11	Family Services who is prescribed a psychotropic
12	medication; prescribing the duties of the guardian ad
13	litem; requiring that the department or lead agency notify
14	the guardian ad litem of any change in the status of the
15	child; requiring that express and informed consent and
16	assent be obtained from a child or the child's parent or
17	guardian; providing requirements for a prescribing
18	physician in obtaining consent and assent; providing for
19	the invalidation of a parent's informed consent; requiring
20	the department to seek informed consent from the legal
21	guardian in certain circumstances; requiring the
22	department to file a motion for the administration of
23	psychotropic medication with the final judgment of
24	termination of parental rights under certain
25	circumstances; requiring that a court authorize the
26	administration of psychotropic medication to a child who
27	is in shelter care or in foster care and for whom parental
28	consent has not been obtained; providing requirements for
29	the motion to the court; requiring that any party
30	objecting to the administration of psychotropic medication
31	file its objection within a specified period; authorizing
32	the court to obtain a second opinion regarding the
33	proposed administration; requiring that the court hold a
34	hearing if any party objects to the proposed
35	administration; specifying circumstances under which the
36	department may provide psychotropic medication to a child
37	before court authorization is obtained; requiring that the
38	department seek court authorization for continued
39	administration of the medication; providing for an
40	expedited hearing on such motion under certain
41	circumstances; requiring the department to provide notice
42	to all parties and the court for each emergency use of
43	psychotropic medication under certain conditions;
44	requiring that a mental health treatment plan be developed
45	for each child or youth who is placed into an out-of-home
46	placement; requiring certain information to be included in
47	a mental health treatment plan; requiring the department
48	to develop and administer procedures to require the
49	caregiver and prescribing physician to report any adverse
50	side effects; requiring documentation of the adverse side
51	effects; prohibiting the prescription of psychotropic
52	medication to certain children who are in out-of-home care
53	absent certain conditions; requiring review by a licensed
54	child psychiatrist before psychotropic medication is
55	administered to certain children who are in out-of-home
56	care under certain conditions; prohibiting authorization
57	for a child in the custody of the department to
58	participate in any clinical trial designed to evaluate the
59	use of psychotropic medication in children; amending s.
60	743.0645, F.S.; conforming a cross-reference; providing an
61	effective date.
62
63	Be It Enacted by the Legislature of the State of Florida:
64
65	Section 1.  Subsection (3) of section 39.407, Florida
66	Statutes, is repealed.
67	Section 2.  Section 39.4071, Florida Statutes, is created
68	to read:
69	39.4071  Use of psychotropic medication for children in
70	out-of-home placement.-
71	(1)  LEGISLATIVE FINDINGS AND INTENT.-
72	(a)  The Legislature finds that children in out-of-home
73	placements often have multiple risk factors that predispose them
74	to emotional and behavioral disorders and that they receive
75	mental health services at higher rates and are more likely to be
76	given psychotropic medications than children from comparable
77	backgrounds.
78	(b)  The Legislature also finds that the use of
79	psychotropic medications for the treatment of children in out-
80	of-home placements who have emotional and behavioral
81	disturbances has increased over recent years. While this
82	increased use of psychotropic medications is paralleled by an
83	increase in the rate of the coadministration of two or more
84	psychotropic medications or polypharmacy, data on the safety and
85	efficacy of many of the psychotropic medications used in
86	children and research supporting the practice of polypharmacy in
87	this population is limited.
88	(c)  The Legislature further finds that significant
89	challenges are encountered in providing quality mental health
90	care to children in out-of-home placements. Not uncommonly,
91	children in out-of-home placements are subjected to multiple
92	placements and many service providers, with communication
93	between providers often poor, resulting in fragmented medical
94	and mental health care. The dependable, ongoing therapeutic and
95	caregiving relationships these children need are hampered by the
96	high turnover among child welfare caseworkers and care
97	providers. Furthermore, children in out-of-home placements,
98	unlike children from intact families, often have no consistent
99	interested party who is available to coordinate treatment and
100	monitoring plans or to provide longitudinal oversight of care.
101	(d)  It is therefore the intent of the Legislature that
102	children in out-of-home placements who may benefit from
103	psychotropic medications receive those medications safely as
104	part of a comprehensive mental health treatment plan overseen by
105	a court-appointed guardian ad litem.
106	(2)  DEFINITIONS.-As used in this section, the term:
107	(a)  "Assent" means a process by which a provider of
108	medical services helps a child achieve a developmentally
109	appropriate awareness of the nature of his or her condition,
110	informs the child of what can be expected through tests and
111	treatment, makes a clinical assessment of the child's
112	understanding of the situation and the factors influencing how
113	he or she is responding, and solicits an expression of the
114	child's willingness to accept the proposed care. The mere
115	absence of an objection by the child may not be construed as
116	assent.
117	(b)  "Comprehensive behavioral health assessment" means an
118	in-depth and detailed assessment of the child's emotional,
119	social, behavioral, and developmental functioning within the
120	family home, school, and community. A comprehensive behavioral
121	health assessment must include direct observation of the child
122	in the home, school, and community, as well as in the clinical
123	setting, and must adhere to the requirements contained in the
124	Florida Medicaid Community Behavioral Health Services Coverage
125	and Limitations Handbook.
126	(c)  "Express and informed consent" means voluntary consent
127	from a parent whose rights have not been terminated or a legal
128	guardian of the child who has received full, accurate, and
129	sufficient information and an explanation about the child's
130	medical condition, medication, and treatment in order to enable
131	the parent or guardian to make a knowledgeable decision without
132	being subjected to any deceit or coercion.
133	(d)  "Mental health treatment plan" means a report that is
134	prepared by a physician prescribing psychotropic medication to a
135	child in out-of-home placement and that includes the information
136	required by this section.
137	(e)  "Psychotropic medication" means any chemical substance
138	prescribed with the intent to treat psychiatric disorders, and
139	those substances that, though prescribed with the intent to
140	treat other medical conditions, have the effect of altering
141	brain chemistry or involve any of the medications in the
142	following categories:
143	1.  Antipsychotics;
144	2.  Antidepressants;
145	3.  Sedative hypnotics;
146	4.  Lithium;
147	5.  Stimulants;
148	6.  Nonstimulant medications for treating attention deficit
149	hyperactivity disorder;
150	7.  Anti-dementia medications and cognitive enhancers;
151	8.  Anticonvulsants and alpha-2 agonists; and
152	9.  Any other medication used to stabilize or improve mood,
153	mental status, behavior, or mental illness.
154	(3)  APPOINTMENT OF GUARDIAN AD LITEM.-
155	(a)  A guardian ad litem shall be appointed by the court at
156	the earliest possible time to represent the best interests of a
157	child in the custody of the department who is prescribed a
158	psychotropic medication. Pursuant to s. 39.820, the appointed
159	guardian ad litem is a party to any judicial proceeding as a
160	representative of the child and serves until discharged by the
161	court.
162	(b)  It is the duty of the guardian ad litem to oversee the
163	care, health, and medical treatment of the child; to advise the
164	court regarding any change in the status of the child; and to
165	respond to any medical emergency of the child.
166	(c)  The department and the community-based care lead
167	agency shall notify the guardian ad litem within 24 hours after
168	any change in the status of the child, including, but not
169	limited to, a change in placement, a change in school, or a
170	change in medical condition or medication.
171	(4)  EXPRESS AND INFORMED CONSENT AND ASSENT.-If, at the
172	time of removal from his or her home, a child is being provided
173	or is being evaluated for the initiation of prescribed
174	psychotropic medication under this section, express and informed
175	consent and assent shall be sought by the prescribing physician.
176	(a)  The prescribing physician shall obtain assent from the
177	child, unless the prescribing physician determines that it is
178	not appropriate to obtain assent from the child. In making this
179	assessment, the prescribing physician shall consider the
180	capacity of the child to make an independent decision based on
181	his or her age, maturity, and psychological and emotional state.
182	If the physician determines that it is not appropriate to obtain
183	assent from the child, the physician must document the decision
184	in the mental health treatment plan.
185	1.  Assent from a child shall be sought in a manner that is
186	understandable to the child using an age-appropriate assent
187	form. The child shall be provided with sufficient information,
188	such as the nature and purpose of the medication, the probable
189	risks and benefits, alternative treatments and the risks and
190	benefits thereof, and the risks and benefits of refusing or
191	discontinuing the medication. Assent may be oral or written and
192	must be documented by the prescribing physician.
193	2.  Oral assent is appropriate for a child who is younger
194	than 7 years of age. Assent from a child who is 7 to 13 years of
195	age may be sought orally or in a simple form that is written at
196	the second-grade or third-grade reading level. A child who is 14
197	years of age or older may understand the language presented in
198	the consent form for parents or guardians. If so, the child may
199	sign the consent form along with the parent or guardian. Forms
200	for parents and older children shall be written at the sixth-
201	grade to eighth-grade reading level.
202	3.  In each case where assent is obtained, a copy of the
203	assent documents must be provided to the parent or legal
204	guardian and the original assent documents shall become part of
205	the child's mental health treatment plan.
206	(b)  Express and informed consent for the administration of
207	psychotropic medication may be given only by a parent whose
208	rights have not been terminated or a legal guardian of the child
209	who has received full, accurate, and sufficient information and
210	an explanation about the child's medical condition, medication,
211	and treatment in order to enable the parent or guardian to make
212	a knowledgeable decision. A sufficient explanation includes, but
213	need not be limited to, the following information, which is
214	provided and explained in plain language by the prescribing
215	physician to the parent or guardian: the medication, the reason
216	for prescribing it, and its purpose or intended results; side
217	effects, risks, and contraindications, including effects of
218	stopping the medication; method for administering the medication
219	and dosage range when applicable; potential drug interactions;
220	alternative treatments; and the behavioral health or other
221	services used to complement the use of medication, when
222	applicable.
223	1.  Express and informed consent may be oral or written and
224	must be documented by the prescribing physician. If the
225	department or the physician is unable to obtain consent from the
226	parent or guardian, the reasons must be documented.
227	2.  When express and informed consent is obtained, a copy
228	of the consent documents must be provided to the parent or legal
229	guardian and the original consent documents shall become part of
230	the child's mental health treatment plan.
231	(c)  The informed consent of any parent whose whereabouts
232	are unknown for 60 days, who is adjudicated incompetent, who
233	does not have regular and frequent contact with the child, or
234	whose parental rights are terminated after giving consent, is
235	invalid. If the informed consent of a parent becomes invalid,
236	the department shall seek informed consent from the legal
237	guardian. If the informed consent was provided by a parent whose
238	parental rights have been terminated, the department shall file
239	a motion for the administration of psychotropic medication along
240	with the motion for final judgment of termination of parental
241	rights.
242	(5)  ADMINISTRATION OF PSYCHOTROPIC MEDICATION TO A CHILD
243	IN SHELTER CARE OR IN FOSTER CARE WHEN PARENTAL CONSENT HAS NOT
244	BEEN OBTAINED.-
245	(a)  Motion for court authorization for administration of
246	psychotropic medications.-
247	1.  If the department believes that a child in its physical
248	or legal custody requires the administration of a psychotropic
249	medication and the child's parents or legal guardians have not
250	provided express and informed consent as provided by law, the
251	department or its agent shall file a motion with the court to
252	authorize the administration of the psychotropic medication
253	before the administration of the medication, except as provided
254	in subsection (6). In each case in which a motion is required,
255	the motion must include:
256	a.  A written report by the department describing the
257	efforts made to enable the prescribing physician to obtain
258	express and informed consent for providing the medication to the
259	child and describing other treatments considered or recommended
260	for the child; and
261	b.  The prescribing physician's completed and signed mental
262	health treatment plan.
263	2.  The department must file a copy of the motion with the
264	court and, within 48 hours after filing the motion with the
265	court, notify all parties in writing, or by whatever other
266	method best ensures that all parties receive notification, of
267	its proposed administration of psychotropic medication to the
268	child.
269	3.  If any party objects to the proposed administration of
270	the psychotropic medication to the child, that party must file
271	its objection within 2 working days after being notified of the
272	department's motion.
273	(b)  Court action on motion for administration of
274	psychotropic medication.-
275	1.  If no party timely files an objection to the
276	department's motion, the court may enter its order authorizing
277	the proposed administration of the psychotropic medication
278	without a hearing. Based on its determination of the best
279	interests of the child, the court may order additional medical
280	consultation or require the department to obtain a second
281	opinion within a reasonable time, but not more than 21 calendar
282	days. If the court orders an additional medical consultation or
283	second medical opinion, the department shall file a written
284	report including the results of this additional consultation or
285	a copy of the second medical opinion with the court within the
286	time required by the court, and shall serve a copy of the report
287	as required by this section.
288	2.  If any party timely files its objection to the proposed
289	administration of the psychotropic medication to the child, the
290	court shall hold a hearing as soon as possible on the
291	department's motion.
292	a.  The medical report of the prescribing physician is
293	admissible in evidence at the hearing.
294	b.  The court shall ask the department whether additional
295	medical, mental health, behavioral, counseling, or other
296	services are being provided to the child which the prescribing
297	physician considers to be necessary or beneficial in treating
298	the child's medical condition and which the physician recommends
299	or expects to be provided to the child along with the
300	medication.
301	3.  The court may order additional medical consultation or
302	a second medical opinion, as provided in subparagraph 1.
303	4.  After considering the department's motion and any
304	testimony received, the court may order that the department
305	provide or continue to provide the proposed psychotropic
306	medication to the child upon a determination that it is in the
307	child's best interest to do so.
308	(6)  ADMINISTRATION OF PSYCHOTROPIC MEDICATION TO A CHILD
309	IN OUT-OF-HOME CARE BEFORE COURT AUTHORIZATION HAS BEEN
310	OBTAINED.-The department may provide continued administration of
311	psychotropic medication to a child before authorization by the
312	court has been obtained only as provided in this subsection.
313	(a)  If a child is removed from the home and taken into
314	custody under s. 39.401, the department may continue to
315	administer a current prescription of psychotropic medication to
316	the child; however, the department shall request court
317	authorization for the continued administration of the medication
318	at the shelter hearing. This request shall be included in the
319	shelter petition.
320	1.  The department shall provide all information in its
321	possession to the court in support of its request at the shelter
322	hearing. The court may authorize the continued administration of
323	the psychotropic medication only until the arraignment hearing
324	on the petition for adjudication, or for 28 days following the
325	date of the child's removal, whichever occurs first.
326	2.  If the department believes, based on the required
327	physician's evaluation, that it is appropriate to continue the
328	psychotropic medication beyond the time authorized by the court
329	at the shelter hearing, the department shall file a motion
330	seeking continued court authorization at the same time that it
331	files the dependency petition, but within 21 days after the
332	shelter hearing.
333	(b)  If the department believes, based on the certification
334	of the prescribing physician, that delay in providing the
335	prescribed psychotropic medication to the child would, more
336	likely than not, cause significant harm to the child, the
337	department must submit a motion to the court seeking
338	continuation of the medication within 3 working days after the
339	department begins providing the medication to the child.
340	1.  The motion seeking authorization for the continued
341	administration of the psychotropic medication to the child must
342	include all information required in this section. The required
343	medical report must also include the specific reasons why the
344	child may experience significant harm, and the nature and the
345	extent of the potential harm, resulting from a delay in
346	authorizing the prescribed medication.
347	2.  The department shall serve the motion on all parties
348	within 3 working days after the department begins providing the
349	medication to the child.
350	3.  The court shall hear the department's motion at the
351	next regularly scheduled court hearing required by law, or
352	within 30 days after the date of the prescription, whichever
353	occurs first. However, if any party files an objection to the
354	motion, the court shall hold a hearing within 7 days.
355	(c)  The department may authorize, in advance of a court
356	order, the administration of psychotropic medications to a child
357	in its custody in a hospital, crisis stabilization unit, or in
358	statewide inpatient psychiatric program. If the department does
359	so, it must seek court authorization for the continued
360	administration of the medication as required in this section.
361	(d)  If a child receives a one-time dose of a psychotropic
362	medication during a crisis, the department shall provide
363	immediate notice to all parties and to the court of each such
364	emergency use.
365	(7)  DEVELOPMENT OF MENTAL HEALTH TREATMENT PLAN.-
366	(a)  Within 7 days after a child or youth is placed into an
367	approved out-of-home placement, the child protective
368	investigator or dependency case manager shall submit a referral
369	for a comprehensive behavioral health assessment, which shall be
370	used to develop a mental health treatment plan for the child.
371	The mental health treatment plan must include:
372	1.  The name of the child, a statement indicating that
373	there is a need to prescribe psychotropic medication to the
374	child based upon a diagnosed, organically caused condition for
375	which such medication is being prescribed, a statement
376	indicating the compelling governmental interest in prescribing
377	the psychotropic medication, and the name and range of the
378	dosage of the psychotropic medication.
379	2.  A statement indicating that the physician has reviewed
380	all medical information concerning the child which has been
381	provided.
382	3.  A statement indicating that the psychotropic
383	medication, at its prescribed dosage, is appropriate for
384	treating the child's diagnosed medical condition, as well as the
385	behaviors and symptoms that the medication, at its prescribed
386	dosage, is expected to address.
387	4.  An explanation of the nature and purpose of the
388	treatment; the recognized side effects, risks, and
389	contraindications of the medication, including procedures for
390	reporting adverse effects; drug-interaction precautions; the
391	possible effects of stopping the medication; and how the
392	treatment will be monitored, followed by a statement indicating
393	that this explanation was provided to the child if age
394	appropriate and to the child's caregiver.
395	5.  Documentation addressing whether the psychotropic
396	medication will replace or supplement any other currently
397	prescribed medications or treatments; the length of time the
398	child is expected to be taking the medication; a plan for the
399	discontinuation of any medication when medically appropriate;
400	and any additional medical, mental health, behavioral,
401	counseling, or other services that the prescribing physician
402	recommends as part of a comprehensive treatment plan.
403	(b)  The department shall develop and administer procedures
404	to require the caregiver and prescribing physician to report any
405	adverse side effects of the medication to the department or its
406	designee. Any adverse side effects must be documented in the
407	treatment plan for the child.
408	(8)  REVIEW FOR ADMINISTRATION OF PSYCHOTROPIC MEDICATION
409	FOR CHILDREN FROM BIRTH THROUGH 10 YEARS OF AGE IN OUT-OF-HOME
410	CARE.-Absent a finding of a compelling governmental interest, a
411	psychotropic medication may not be prescribed for any child from
412	birth to 10 years of age who is in out-of-home placement. Based
413	on a finding of a compelling governmental interest but before a
414	psychotropic medication is prescribed for any child from birth
415	through 10 years of age who is in an out-of-home placement, a
416	review of the administration must be obtained from a child
417	psychiatrist who is licensed under chapter 458 or chapter 459.
418	This review must occur before express and informed consent or
419	assent is sought from the child or his or her parent or
420	guardian.
421	(9)  CLINICAL TRIALS.-At no time shall a child in the
422	custody of the department be allowed to participate in a
423	clinical trial that is designed to develop new psychotropic
424	medications or evaluate their application to children.
425	Section 3.  Paragraph (b) of subsection (1) of section
426	743.0645, Florida Statutes, is amended to read:
427	743.0645  Other persons who may consent to medical care or
428	treatment of a minor.-
429	(1)  As used in this section, the term:
430	(b)  "Medical care and treatment" includes ordinary and
431	necessary medical and dental examination and treatment,
432	including blood testing, preventive care including ordinary
433	immunizations, tuberculin testing, and well-child care, but does
434	not include surgery, general anesthesia, provision of
435	psychotropic medications, or other extraordinary procedures for
436	which a separate court order, power of attorney, or informed
437	consent as provided by law is required, except as provided in s.
438	39.4071 s. 39.407(3).
439	Section 4.  This act shall take effect July 1, 2010.

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