Florida Senate - 2022 PROPOSED COMMITTEE SUBSTITUTE
Bill No. CS for SB 1262
Ì430576:Î430576
576-03084-22
Proposed Committee Substitute by the Committee on Appropriations
(Appropriations Subcommittee on Health and Human Services)
1 A bill to be entitled
2 An act relating to mental health and substance abuse;
3 amending s. 394.455, F.S.; defining the term
4 “telehealth”; amending s. 394.459, F.S.; revising the
5 conditions under which a patient’s communication with
6 persons outside of a receiving facility may be
7 restricted; revising the conditions under which a
8 patient’s sealed and unopened incoming or outgoing
9 correspondence may be restricted; revising the
10 conditions under which a patient’s contact and
11 visitation with persons outside of a receiving
12 facility may be restricted; revising the frequency
13 with which the restriction on a patient’s right to
14 receive visitors must be reviewed; amending s.
15 394.4599, F.S.; requiring a receiving facility to
16 notify specified emergency contacts of individuals who
17 are being involuntarily held for examination; amending
18 s. 394.4615, F.S.; requiring receiving facilities to
19 document that an option to authorize the release of
20 specified information has been provided, within a
21 specified timeframe, to individuals admitted on a
22 voluntary basis; amending s. 394.463, F.S.; requiring
23 that reports issued by law enforcement officers when
24 delivering a person to a receiving facility contain
25 certain information related to emergency contacts;
26 limiting the use of certain information provided;
27 maintaining the confidential and exempt status of
28 certain information provided to a receiving facility;
29 requiring the Department of Children and Families to
30 receive and maintain reports relating to the
31 transportation of patients; authorizing receiving
32 facility discharge examinations to be conducted
33 through telehealth; requiring a facility administrator
34 to file a petition for involuntary placement by a
35 specified time; authorizing a receiving facility to
36 postpone the release of a patient if certain
37 requirements are met; prohibiting certain activities
38 relating to examination and treatment; providing a
39 criminal penalty; amending s. 394.468, F.S.; requiring
40 that discharge and planning procedures include and
41 document the consideration of specified factors and
42 actions; amending s. 394.9086; modifying meeting
43 requirements of the Commission on Mental Health and
44 Substance Abuse; authorizing reimbursement for per
45 diem and travel expenses for members of the
46 commission; authorizing the commission to access
47 certain information or records; revising the due date
48 for the commission’s interim report; amending s.
49 397.601, F.S.; requiring service providers to document
50 that an option to authorize the release of specified
51 information has been provided, within a specified
52 timeframe, to individuals admitted on a voluntary
53 basis; amending s. 397.6772, F.S.; requiring law
54 enforcement officers to include certain information
55 relating to emergency contacts in reports relating to
56 the delivery of a person to a hospital or licensed
57 detoxification or addictions receiving facility;
58 limiting the use of certain information provided;
59 maintaining the confidential and exempt status of
60 certain information provided to a hospital or licensed
61 detoxification or addictions receiving facility;
62 amending ss. 409.972 and 744.2007, F.S.; conforming
63 cross-references; providing an effective date.
64
65 Be It Enacted by the Legislature of the State of Florida:
66
67 Section 1. Present subsections (47), (48), and (49) of
68 section 394.455, Florida Statutes, are redesignated as
69 subsections (48), (49), and (50), respectively, and a new
70 subsection (47) is added to that section, to read:
71 394.455 Definitions.—As used in this part, the term:
72 (47) ″Telehealth″ has the same meaning as provided in s.
73 456.47.
74 Section 2. Subsection (5) of section 394.459, Florida
75 Statutes is amended to read:
76 394.459 Rights of patients.—
77 (5) COMMUNICATION, ABUSE REPORTING, AND VISITS.—
78 (a) Each person receiving services in a facility providing
79 mental health services under this part has the right to
80 communicate freely and privately with persons outside the
81 facility unless a qualified professional determines it is
82 determined that such communication is likely to be harmful to
83 the person or others in a manner directly related to the
84 person’s clinical well-being, the clinical well-being of other
85 patients, or the general safety of staff. Each facility shall
86 make available as soon as reasonably possible to persons
87 receiving services a telephone that allows for free local calls
88 and access to a long-distance service. A facility is not
89 required to pay the costs of a patient’s long-distance calls.
90 The telephone shall be readily accessible to the patient and
91 shall be placed so that the patient may use it to communicate
92 privately and confidentially. The facility may establish
93 reasonable rules for the use of this telephone, provided that
94 the rules do not interfere with a patient’s access to a
95 telephone to report abuse pursuant to paragraph (f) (e).
96 (b) Each patient admitted to a facility under the
97 provisions of this part shall be allowed to receive, send, and
98 mail sealed, unopened correspondence; and no patient’s incoming
99 or outgoing correspondence shall be opened, delayed, held, or
100 censored by the facility unless a qualified professional
101 determines that such correspondence is likely to be harmful to
102 the patient or others in a manner directly related to the
103 patient’s clinical well-being, the clinical well-being of other
104 patients, or the general safety of staff. If there is reason to
105 believe that such correspondence it contains items or substances
106 which may be harmful to the patient or others, in which case the
107 administrator may direct reasonable examination of such mail and
108 may regulate the disposition of such items or substances.
109 (c) Each facility must permit immediate access to any
110 patient, subject to the patient’s right to deny or withdraw
111 consent at any time, by the patient’s family members, guardian,
112 guardian advocate, representative, Florida statewide or local
113 advocacy council, or attorney, unless a qualified professional
114 determines that such access would be detrimental to the patient
115 in a manner directly related to the patient’s clinical well
116 being, the clinical well-being of other patients, or the general
117 safety of staff.
118 (d) If a patient’s right to communicate with outside
119 persons; receive, send, or mail sealed, unopened correspondence;
120 or to receive visitors is restricted by the facility, written
121 notice of such restriction and the reasons for the restriction
122 shall be served on the patient, the patient’s attorney, and the
123 patient’s guardian, guardian advocate, or representative; a
124 qualified professional must document any restriction within 24
125 hours and such restriction shall be recorded on the patient’s
126 clinical record with the reasons therefor. The restriction of a
127 patient’s right to communicate or to receive visitors shall be
128 reviewed at least every 3 7 days. The right to communicate or
129 receive visitors shall not be restricted as a means of
130 punishment. Nothing in this paragraph shall be construed to
131 limit the provisions of paragraph (e)(d).
132 (e)(d) Each facility shall establish reasonable rules
133 governing visitors, visiting hours, and the use of telephones by
134 patients in the least restrictive possible manner. Patients
135 shall have the right to contact and to receive communication
136 from their attorneys at any reasonable time.
137 (f)(e) Each patient receiving mental health treatment in
138 any facility shall have ready access to a telephone in order to
139 report an alleged abuse. The facility staff shall orally and in
140 writing inform each patient of the procedure for reporting abuse
141 and shall make every reasonable effort to present the
142 information in a language the patient understands. A written
143 copy of that procedure, including the telephone number of the
144 central abuse hotline and reporting forms, shall be posted in
145 plain view.
146 (g)(f) The department shall adopt rules providing a
147 procedure for reporting abuse. Facility staff shall be required,
148 as a condition of employment, to become familiar with the
149 requirements and procedures for the reporting of abuse.
150 Section 3. Paragraph (b) of subsection (2) of section
151 394.4599, Florida Statutes, is amended to read:
152 394.4599 Notice.—
153 (2) INVOLUNTARY ADMISSION.—
154 (b) A receiving facility shall give prompt notice of the
155 whereabouts of an individual who is being involuntarily held for
156 examination to the individual’s guardian, guardian advocate,
157 health care surrogate or proxy, attorney or representative, or
158 other emergency contact identified through electronic databases
159 pursuant to s. 394.463(2)(a), by telephone or in person within
160 24 hours after the individual’s arrival at the facility. Contact
161 attempts shall be documented in the individual’s clinical record
162 and shall begin as soon as reasonably possible after the
163 individual’s arrival.
164 Section 4. Paragraph (a) of subsection (2) of section
165 394.4615, Florida Statutes, is amended to read:
166 394.4615 Clinical records; confidentiality.—
167 (2) The clinical record shall be released when:
168 (a) The patient or the patient’s guardian authorizes the
169 release. The guardian or guardian advocate shall be provided
170 access to the appropriate clinical records of the patient. The
171 patient or the patient’s guardian or guardian advocate may
172 authorize the release of information and clinical records to
173 appropriate persons to ensure the continuity of the patient’s
174 health care or mental health care. A receiving facility must
175 document that, within 24 hours of admission, individuals
176 admitted on a voluntary basis have been provided with the option
177 to authorize the release of information from their clinical
178 record to the individual’s health care surrogate or proxy,
179 attorney, representative, or other known emergency contact.
180 Section 5. Paragraphs (a), (e), (f), and (g) of subsection
181 (2) of section 394.463, Florida Statutes, are amended, and
182 subsection (5) is added to that section, to read:
183 394.463 Involuntary examination.—
184 (2) INVOLUNTARY EXAMINATION.—
185 (a) An involuntary examination may be initiated by any one
186 of the following means:
187 1. A circuit or county court may enter an ex parte order
188 stating that a person appears to meet the criteria for
189 involuntary examination and specifying the findings on which
190 that conclusion is based. The ex parte order for involuntary
191 examination must be based on written or oral sworn testimony
192 that includes specific facts that support the findings. If other
193 less restrictive means are not available, such as voluntary
194 appearance for outpatient evaluation, a law enforcement officer,
195 or other designated agent of the court, shall take the person
196 into custody and deliver him or her to an appropriate, or the
197 nearest, facility within the designated receiving system
198 pursuant to s. 394.462 for involuntary examination. The order of
199 the court shall be made a part of the patient’s clinical record.
200 A fee may not be charged for the filing of an order under this
201 subsection. A facility accepting the patient based on this order
202 must send a copy of the order to the department within 5 working
203 days. The order may be submitted electronically through existing
204 data systems, if available. The order shall be valid only until
205 the person is delivered to the facility or for the period
206 specified in the order itself, whichever comes first. If a time
207 limit is not specified in the order, the order is valid for 7
208 days after the date that the order was signed.
209 2. A law enforcement officer shall take a person who
210 appears to meet the criteria for involuntary examination into
211 custody and deliver the person or have him or her delivered to
212 an appropriate, or the nearest, facility within the designated
213 receiving system pursuant to s. 394.462 for examination. The
214 officer shall execute a written report detailing the
215 circumstances under which the person was taken into custody,
216 which must be made a part of the patient’s clinical record. The
217 report must include all emergency contact information for the
218 person that is readily accessible to the law enforcement
219 officer, including information available through electronic
220 databases maintained by the Department of Law Enforcement or by
221 the Department of Highway Safety and Motor Vehicles. Such
222 emergency contact information may be used by a receiving
223 facility only for the purpose of informing listed emergency
224 contacts of a patient’s whereabouts and shall otherwise remain
225 confidential and exempt pursuant to s. 119.0712(2)(d). Any
226 facility accepting the patient based on this report must send a
227 copy of the report to the department within 5 working days.
228 3. A physician, a physician assistant, a clinical
229 psychologist, a psychiatric nurse, an advanced practice
230 registered nurse registered under s. 464.0123, a mental health
231 counselor, a marriage and family therapist, or a clinical social
232 worker may execute a certificate stating that he or she has
233 examined a person within the preceding 48 hours and finds that
234 the person appears to meet the criteria for involuntary
235 examination and stating the observations upon which that
236 conclusion is based. If other less restrictive means, such as
237 voluntary appearance for outpatient evaluation, are not
238 available, a law enforcement officer shall take into custody the
239 person named in the certificate and deliver him or her to the
240 appropriate, or nearest, facility within the designated
241 receiving system pursuant to s. 394.462 for involuntary
242 examination. The law enforcement officer shall execute a written
243 report detailing the circumstances under which the person was
244 taken into custody. The report must include all emergency
245 contact information for the person that is readily accessible to
246 the law enforcement officer, including information available
247 through electronic databases maintained by the Department of Law
248 Enforcement or by the Department of Highway Safety and Motor
249 Vehicles. Such emergency contact information may be used by a
250 receiving facility only for the purpose of informing listed
251 emergency contacts of a patient’s whereabouts and shall
252 otherwise remain confidential and exempt pursuant to s.
253 119.0712(2)(d). The report and certificate shall be made a part
254 of the patient’s clinical record. Any facility accepting the
255 patient based on this certificate must send a copy of the
256 certificate to the department within 5 working days. The
257 document may be submitted electronically through existing data
258 systems, if applicable.
259
260 When sending the order, report, or certificate to the
261 department, a facility shall, at a minimum, provide information
262 about which action was taken regarding the patient under
263 paragraph (g), which information shall also be made a part of
264 the patient’s clinical record.
265 (e) The department shall receive and maintain the copies of
266 ex parte orders, involuntary outpatient services orders issued
267 pursuant to s. 394.4655, involuntary inpatient placement orders
268 issued pursuant to s. 394.467, professional certificates, and
269 law enforcement officers’ reports, and reports relating to the
270 transportation of patients. These documents shall be considered
271 part of the clinical record, governed by the provisions of s.
272 394.4615. These documents shall be used to prepare annual
273 reports analyzing the data obtained from these documents,
274 without information identifying patients, and shall provide
275 copies of reports to the department, the President of the
276 Senate, the Speaker of the House of Representatives, and the
277 minority leaders of the Senate and the House of Representatives.
278 (f) A patient shall be examined by a physician or a
279 clinical psychologist, or by a psychiatric nurse performing
280 within the framework of an established protocol with a
281 psychiatrist at a facility without unnecessary delay to
282 determine if the criteria for involuntary services are met.
283 Emergency treatment may be provided upon the order of a
284 physician if the physician determines that such treatment is
285 necessary for the safety of the patient or others. The patient
286 may not be released by the receiving facility or its contractor
287 without the documented approval of a psychiatrist or a clinical
288 psychologist or, if the receiving facility is owned or operated
289 by a hospital or health system, the release may also be approved
290 by a psychiatric nurse performing within the framework of an
291 established protocol with a psychiatrist, or an attending
292 emergency department physician with experience in the diagnosis
293 and treatment of mental illness after completion of an
294 involuntary examination pursuant to this subsection. A
295 psychiatric nurse may not approve the release of a patient if
296 the involuntary examination was initiated by a psychiatrist
297 unless the release is approved by the initiating psychiatrist.
298 The release may be approved through telehealth.
299 (g) The examination period must be for up to 72 hours. For
300 a minor, the examination shall be initiated within 12 hours
301 after the patient’s arrival at the facility. Within the
302 examination period or, if the examination period ends on a
303 weekend or holiday, no later than the next working day
304 thereafter, one of the following actions must be taken, based on
305 the individual needs of the patient:
306 1. The patient shall be released, unless he or she is
307 charged with a crime, in which case the patient shall be
308 returned to the custody of a law enforcement officer;
309 2. The patient shall be released, subject to subparagraph
310 1., for voluntary outpatient treatment;
311 3. The patient, unless he or she is charged with a crime,
312 shall be asked to give express and informed consent to placement
313 as a voluntary patient and, if such consent is given, the
314 patient shall be admitted as a voluntary patient; or
315 4. A petition for involuntary services shall be filed in
316 the circuit court if inpatient treatment is deemed necessary or
317 with the criminal county court, as defined in s. 394.4655(1), as
318 applicable. When inpatient treatment is deemed necessary, the
319 least restrictive treatment consistent with the optimum
320 improvement of the patient’s condition shall be made available.
321 When a petition is to be filed for involuntary outpatient
322 placement, it shall be filed by one of the petitioners specified
323 in s. 394.4655(4)(a). A petition for involuntary inpatient
324 placement shall be filed by the facility administrator. If a
325 patient’s 72-hour examination period ends on a weekend or
326 holiday, and the receiving facility:
327 a. Intends to file a petition for involuntary services,
328 such patient may be held at a receiving facility through the
329 next working day thereafter and such petition for involuntary
330 services must be filed no later than such date. If the receiving
331 facility fails to file a petition for involuntary services at
332 the close of the next working day, the patient shall be released
333 from the receiving facility following approval pursuant to
334 paragraph (f).
335 b. Does not intend to file a petition for involuntary
336 services, a receiving facility may postpone release of a patient
337 until the next working day thereafter only if a qualified
338 professional documents that adequate discharge planning and
339 procedures in accordance with s. 394.468, and approval pursuant
340 to paragraph (f), are not possible until the next working day.
341 (5) UNLAWFUL ACTIVITIES RELATING TO EXAMINATION AND
342 TREATMENT; PENALTIES.—
343 (a) A person may not knowingly and willfully:
344 1. Furnish false information for the purpose of obtaining
345 emergency or other involuntary admission of another;
346 2. Cause or otherwise secure, or conspire with or assist
347 another to cause or secure, any emergency or other involuntary
348 procedure of another person under false pretenses; or
349 3. Cause, or conspire with or assist another to cause,
350 without lawful justification, the denial to any person of any
351 right accorded pursuant to this chapter.
352 (b) A person who violates this subsection commits a
353 misdemeanor of the first degree, punishable as provided in s.
354 775.082 and by a fine not exceeding $5,000.
355 Section 6. Section 394.468, Florida Statutes, is amended to
356 read:
357 394.468 Admission and discharge procedures.—
358 (1) Admission and discharge procedures and treatment
359 policies of the department are governed solely by this part.
360 Such procedures and policies shall not be subject to control by
361 court procedure rules. The matters within the purview of this
362 part are deemed to be substantive, not procedural.
363 (2) Discharge planning and procedures for any patient’s
364 release from a receiving facility or treatment facility must
365 include and document consideration of, at a minimum:
366 (a) Follow-up behavioral health appointments;
367 (b) Information on how to obtain prescribed medications;
368 and
369 (c) Information pertaining to:
370 1. Available living arrangements;
371 2. Transportation; and
372 3. Recovery support opportunities.
373 Section 7. Paragraph (c) of subsection (3) and subsection
374 (5) of section 394.9086, Florida Statutes, are amended, and
375 paragraphs (d) and (e) are added to subsection (3) of that
376 section, to read:
377 394.9086 Commission on Mental Health and Substance Abuse.—
378 (3) MEMBERSHIP; TERM LIMITS; MEETINGS.—
379 (c) The commission shall convene no later than September 1,
380 2021. The commission shall meet quarterly or upon the call of
381 the chair. The commission may shall hold its meetings in person
382 at locations throughout the state or via teleconference or other
383 electronic means.
384 (d) Members of the commission are entitled to receive
385 reimbursement for per diem and travel expenses pursuant to s.
386 112.061.
387 (e) Notwithstanding any other law, the commission may
388 request and shall be provided with access to any information or
389 records, including exempt and confidential information or
390 records, which are necessary for the commission to carry out its
391 duties. Information or records obtained by the commission which
392 are otherwise exempt or confidential and exempt shall retain
393 such exempt or confidential and exempt status, and the
394 commission may not disclose such information or records.
395 (5) REPORTS.—By January 1, 2023 September 1, 2022, the
396 commission shall submit an interim report to the President of
397 the Senate, the Speaker of the House of Representatives, and the
398 Governor containing its findings and recommendations on how to
399 best provide and facilitate mental health and substance abuse
400 services in the state. The commission shall submit its final
401 report to the President of the Senate, the Speaker of the House
402 of Representatives, and the Governor by September 1, 2023.
403 Section 8. Subsection (5) is added to section 397.601,
404 Florida Statutes, to read:
405 397.601 Voluntary admissions.—
406 (5) A service provider must document that, within 24 hours
407 of admission, individuals admitted on a voluntary basis have
408 been provided with the option to authorize the release of
409 information from their clinical record to the individual’s
410 health care surrogate or proxy, attorney, representative, or
411 other known emergency contact.
412 Section 9. Section 397.6772, Florida Statutes, is amended
413 to read:
414 397.6772 Protective custody without consent.—
415 (1) If a person in circumstances which justify protective
416 custody as described in s. 397.677 fails or refuses to consent
417 to assistance and a law enforcement officer has determined that
418 a hospital or a licensed detoxification or addictions receiving
419 facility is the most appropriate place for the person, the
420 officer may, after giving due consideration to the expressed
421 wishes of the person:
422 (a) Take the person to a hospital or to a licensed
423 detoxification or addictions receiving facility against the
424 person’s will but without using unreasonable force. The officer
425 shall use the standard form developed by the department pursuant
426 to s. 397.321 to execute a written report detailing the
427 circumstances under which the person was taken into custody. The
428 report must include all emergency contact information for the
429 person that is readily accessible to the law enforcement
430 officer, including information available through electronic
431 databases maintained by the Department of Law Enforcement or by
432 the Department of Highway Safety and Motor Vehicles. Such
433 emergency contact information may be used by a hospital or
434 licensed detoxification or addictions receiving facility only
435 for the purpose of informing listed emergency contacts of a
436 patient’s whereabouts and shall otherwise remain confidential
437 and exempt pursuant to s. 119.0712(2)(d). The written report
438 shall be included in the patient’s clinical record; or
439 (b) In the case of an adult, detain the person for his or
440 her own protection in any municipal or county jail or other
441 appropriate detention facility.
442
443 Such detention is not to be considered an arrest for any
444 purpose, and no entry or other record may be made to indicate
445 that the person has been detained or charged with any crime. The
446 officer in charge of the detention facility must notify the
447 nearest appropriate licensed service provider within the first 8
448 hours after detention that the person has been detained. It is
449 the duty of the detention facility to arrange, as necessary, for
450 transportation of the person to an appropriate licensed service
451 provider with an available bed. Persons taken into protective
452 custody must be assessed by the attending physician within the
453 72-hour period and without unnecessary delay, to determine the
454 need for further services.
455 (2) The law enforcement officer must notify the nearest
456 relative of a minor in protective custody and must be notified
457 by the law enforcement officer, as must notify the nearest
458 relative or other known emergency contact of an adult, unless
459 the adult requests that there be no notification. The law
460 enforcement officer must document such notification, and any
461 attempts at notification, in the written report detailing the
462 circumstances under which the person was taken into custody as
463 required under paragraph (1)(a).
464 Section 10. Paragraph (b) of subsection (1) of section
465 409.972, Florida Statutes, is amended to read:
466 409.972 Mandatory and voluntary enrollment.—
467 (1) The following Medicaid-eligible persons are exempt from
468 mandatory managed care enrollment required by s. 409.965, and
469 may voluntarily choose to participate in the managed medical
470 assistance program:
471 (b) Medicaid recipients residing in residential commitment
472 facilities operated through the Department of Juvenile Justice
473 or a treatment facility as defined in s. 394.455(49) s.
474 394.455(48).
475 Section 11. Subsection (7) of section 744.2007, Florida
476 Statutes, is amended to read:
477 744.2007 Powers and duties.—
478 (7) A public guardian may not commit a ward to a treatment
479 facility, as defined in s. 394.455(49) s. 394.455(48), without
480 an involuntary placement proceeding as provided by law.
481 Section 12. This act shall take effect July 1, 2022.