ENROLLED
       2022 Legislature                           CS for CS for SB 1262
       
       
       
       
       
       
                                                             20221262er
    1  
    2         An act relating to mental health and substance abuse;
    3         amending s. 119.0712, F.S.; authorizing emergency
    4         contact information to be released to certain
    5         entities; amending s. 394.455, F.S.; defining the term
    6         “telehealth”; amending s. 394.459, F.S.; revising the
    7         conditions under which a patient’s communication with
    8         persons outside of a receiving facility may be
    9         restricted; revising the conditions under which a
   10         patient’s sealed and unopened incoming or outgoing
   11         correspondence may be restricted; revising the
   12         conditions under which a patient’s contact and
   13         visitation with persons outside of a receiving
   14         facility may be restricted; revising the frequency
   15         with which the restriction on a patient’s right to
   16         receive visitors must be reviewed; amending s.
   17         394.4599, F.S.; requiring a receiving facility to
   18         notify specified emergency contacts of individuals who
   19         are being involuntarily held for examination; amending
   20         s. 394.4615, F.S.; requiring receiving facilities to
   21         document that an option to authorize the release of
   22         specified information has been provided, within a
   23         specified timeframe, to individuals admitted on a
   24         voluntary basis; amending s. 394.463, F.S.; requiring
   25         that reports issued by law enforcement officers when
   26         delivering a person to a receiving facility contain
   27         certain information related to emergency contacts;
   28         limiting the use of certain information provided;
   29         requiring the Department of Children and Families to
   30         receive and maintain reports relating to the
   31         transportation of patients; revising a prohibition on
   32         releasing a patient without certain documented
   33         approval; authorizing receiving facility discharge
   34         examinations to be conducted through telehealth;
   35         requiring a facility administrator to file a petition
   36         for involuntary placement by a specified time;
   37         authorizing a receiving facility to postpone the
   38         release of a patient if certain requirements are met;
   39         prohibiting certain activities relating to examination
   40         and treatment; providing a criminal penalty; amending
   41         s. 394.468, F.S.; requiring that discharge and
   42         planning procedures include and document the
   43         consideration of specified factors and actions;
   44         amending s. 394.9086; modifying meeting requirements
   45         of the Commission on Mental Health and Substance
   46         Abuse; authorizing reimbursement for per diem and
   47         travel expenses for members of the commission;
   48         authorizing the commission to access certain
   49         information or records; revising the due date for the
   50         commission’s interim report; amending s. 397.601,
   51         F.S.; requiring service providers to document that an
   52         option to authorize the release of specified
   53         information has been provided, within a specified
   54         timeframe, to individuals admitted on a voluntary
   55         basis; amending s. 397.6772, F.S.; requiring law
   56         enforcement officers to include certain information
   57         relating to emergency contacts in reports relating to
   58         the delivery of a person to a hospital or licensed
   59         detoxification or addictions receiving facility;
   60         limiting the use of certain information provided;
   61         amending ss. 409.972 and 744.2007, F.S.; conforming
   62         cross-references; providing an effective date.
   63          
   64  Be It Enacted by the Legislature of the State of Florida:
   65  
   66         Section 1. Paragraph (d) of subsection (2) of section
   67  119.0712, Florida Statutes, is amended to read:
   68         119.0712 Executive branch agency-specific exemptions from
   69  inspection or copying of public records.—
   70         (2) DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES.—
   71         (d)1. Emergency contact information contained in a motor
   72  vehicle record is confidential and exempt from s. 119.07(1) and
   73  s. 24(a), Art. I of the State Constitution.
   74         2. Without the express consent of the person to whom such
   75  emergency contact information applies, the emergency contact
   76  information contained in a motor vehicle record may be released
   77  only to:
   78         a. Law enforcement agencies for purposes of contacting
   79  those listed in the event of an emergency.
   80         b. A receiving facility, hospital, or licensed
   81  detoxification or addictions receiving facility pursuant to s.
   82  394.463(2)(a) or s. 397.6772(1)(a) for the sole purpose of
   83  informing a patient’s emergency contacts of the patient’s
   84  whereabouts.
   85         Section 2. Present subsections (47), (48), and (49) of
   86  section 394.455, Florida Statutes, are redesignated as
   87  subsections (48), (49), and (50), respectively, and a new
   88  subsection (47) is added to that section, to read:
   89         394.455 Definitions.—As used in this part, the term:
   90         (47) ″Telehealth″ has the same meaning as provided in s.
   91  456.47.
   92         Section 3. Subsection (5) of section 394.459, Florida
   93  Statutes is amended to read:
   94         394.459 Rights of patients.—
   95         (5) COMMUNICATION, ABUSE REPORTING, AND VISITS.—
   96         (a) Each person receiving services in a facility providing
   97  mental health services under this part has the right to
   98  communicate freely and privately with persons outside the
   99  facility unless a qualified professional determines it is
  100  determined that such communication is likely to be harmful to
  101  the person or others in a manner directly related to the
  102  person’s clinical well-being, the clinical well-being of other
  103  patients, or the general safety of staff. Each facility shall
  104  make available as soon as reasonably possible to persons
  105  receiving services a telephone that allows for free local calls
  106  and access to a long-distance service. A facility is not
  107  required to pay the costs of a patient’s long-distance calls.
  108  The telephone shall be readily accessible to the patient and
  109  shall be placed so that the patient may use it to communicate
  110  privately and confidentially. The facility may establish
  111  reasonable rules for the use of this telephone, provided that
  112  the rules do not interfere with a patient’s access to a
  113  telephone to report abuse pursuant to paragraph (f) (e).
  114         (b) Each patient admitted to a facility under the
  115  provisions of this part shall be allowed to receive, send, and
  116  mail sealed, unopened correspondence; and no patient’s incoming
  117  or outgoing correspondence shall be opened, delayed, held, or
  118  censored by the facility unless a qualified professional
  119  determines that such correspondence is likely to be harmful to
  120  the patient or others in a manner directly related to the
  121  patient’s clinical well-being, the clinical well-being of other
  122  patients, or the general safety of staff. If there is reason to
  123  believe that such correspondence it contains items or substances
  124  which may be harmful to the patient or others, in which case the
  125  administrator may direct reasonable examination of such mail and
  126  may regulate the disposition of such items or substances.
  127         (c) Each facility must permit immediate access to any
  128  patient, subject to the patient’s right to deny or withdraw
  129  consent at any time, by the patient’s family members, guardian,
  130  guardian advocate, representative, Florida statewide or local
  131  advocacy council, or attorney, unless a qualified professional
  132  determines that such access would be detrimental to the patient
  133  in a manner directly related to the patient’s clinical well
  134  being, the clinical well-being of other patients, or the general
  135  safety of staff.
  136         (d) If a patient’s right to communicate with outside
  137  persons; receive, send, or mail sealed, unopened correspondence;
  138  or to receive visitors is restricted by the facility, written
  139  notice of such restriction and the reasons for the restriction
  140  shall be served on the patient, the patient’s attorney, and the
  141  patient’s guardian, guardian advocate, or representative; a
  142  qualified professional must document any restriction within 24
  143  hours and such restriction shall be recorded on the patient’s
  144  clinical record with the reasons therefor. The restriction of a
  145  patient’s right to communicate or to receive visitors shall be
  146  reviewed at least every 3 7 days. The right to communicate or
  147  receive visitors shall not be restricted as a means of
  148  punishment. Nothing in this paragraph shall be construed to
  149  limit the provisions of paragraph (e)(d).
  150         (e)(d) Each facility shall establish reasonable rules
  151  governing visitors, visiting hours, and the use of telephones by
  152  patients in the least restrictive possible manner. Patients
  153  shall have the right to contact and to receive communication
  154  from their attorneys at any reasonable time.
  155         (f)(e) Each patient receiving mental health treatment in
  156  any facility shall have ready access to a telephone in order to
  157  report an alleged abuse. The facility staff shall orally and in
  158  writing inform each patient of the procedure for reporting abuse
  159  and shall make every reasonable effort to present the
  160  information in a language the patient understands. A written
  161  copy of that procedure, including the telephone number of the
  162  central abuse hotline and reporting forms, shall be posted in
  163  plain view.
  164         (g)(f) The department shall adopt rules providing a
  165  procedure for reporting abuse. Facility staff shall be required,
  166  as a condition of employment, to become familiar with the
  167  requirements and procedures for the reporting of abuse.
  168         Section 4. Paragraph (b) of subsection (2) of section
  169  394.4599, Florida Statutes, is amended to read:
  170         394.4599 Notice.—
  171         (2) INVOLUNTARY ADMISSION.—
  172         (b) A receiving facility shall give prompt notice of the
  173  whereabouts of an individual who is being involuntarily held for
  174  examination to the individual’s guardian, guardian advocate,
  175  health care surrogate or proxy, attorney or representative, or
  176  other emergency contact identified through electronic databases
  177  pursuant to s. 394.463(2)(a), by telephone or in person within
  178  24 hours after the individual’s arrival at the facility. Contact
  179  attempts shall be documented in the individual’s clinical record
  180  and shall begin as soon as reasonably possible after the
  181  individual’s arrival.
  182         Section 5. Paragraph (a) of subsection (2) of section
  183  394.4615, Florida Statutes, is amended to read:
  184         394.4615 Clinical records; confidentiality.—
  185         (2) The clinical record shall be released when:
  186         (a) The patient or the patient’s guardian authorizes the
  187  release. The guardian or guardian advocate shall be provided
  188  access to the appropriate clinical records of the patient. The
  189  patient or the patient’s guardian or guardian advocate may
  190  authorize the release of information and clinical records to
  191  appropriate persons to ensure the continuity of the patient’s
  192  health care or mental health care. A receiving facility must
  193  document that, within 24 hours of admission, individuals
  194  admitted on a voluntary basis have been provided with the option
  195  to authorize the release of information from their clinical
  196  record to the individual’s health care surrogate or proxy,
  197  attorney, representative, or other known emergency contact.
  198         Section 6. Paragraphs (a), (e), (f), and (g) of subsection
  199  (2) of section 394.463, Florida Statutes, are amended, and
  200  subsection (5) is added to that section, to read:
  201         394.463 Involuntary examination.—
  202         (2) INVOLUNTARY EXAMINATION.—
  203         (a) An involuntary examination may be initiated by any one
  204  of the following means:
  205         1. A circuit or county court may enter an ex parte order
  206  stating that a person appears to meet the criteria for
  207  involuntary examination and specifying the findings on which
  208  that conclusion is based. The ex parte order for involuntary
  209  examination must be based on written or oral sworn testimony
  210  that includes specific facts that support the findings. If other
  211  less restrictive means are not available, such as voluntary
  212  appearance for outpatient evaluation, a law enforcement officer,
  213  or other designated agent of the court, shall take the person
  214  into custody and deliver him or her to an appropriate, or the
  215  nearest, facility within the designated receiving system
  216  pursuant to s. 394.462 for involuntary examination. The order of
  217  the court shall be made a part of the patient’s clinical record.
  218  A fee may not be charged for the filing of an order under this
  219  subsection. A facility accepting the patient based on this order
  220  must send a copy of the order to the department within 5 working
  221  days. The order may be submitted electronically through existing
  222  data systems, if available. The order shall be valid only until
  223  the person is delivered to the facility or for the period
  224  specified in the order itself, whichever comes first. If a time
  225  limit is not specified in the order, the order is valid for 7
  226  days after the date that the order was signed.
  227         2. A law enforcement officer shall take a person who
  228  appears to meet the criteria for involuntary examination into
  229  custody and deliver the person or have him or her delivered to
  230  an appropriate, or the nearest, facility within the designated
  231  receiving system pursuant to s. 394.462 for examination. The
  232  officer shall execute a written report detailing the
  233  circumstances under which the person was taken into custody,
  234  which must be made a part of the patient’s clinical record. The
  235  report must include all emergency contact information for the
  236  person that is readily accessible to the law enforcement
  237  officer, including information available through electronic
  238  databases maintained by the Department of Law Enforcement or by
  239  the Department of Highway Safety and Motor Vehicles. Such
  240  emergency contact information may be used by a receiving
  241  facility only for the purpose of informing listed emergency
  242  contacts of a patient’s whereabouts pursuant to s.
  243  119.0712(2)(d). Any facility accepting the patient based on this
  244  report must send a copy of the report to the department within 5
  245  working days.
  246         3. A physician, a physician assistant, a clinical
  247  psychologist, a psychiatric nurse, an advanced practice
  248  registered nurse registered under s. 464.0123, a mental health
  249  counselor, a marriage and family therapist, or a clinical social
  250  worker may execute a certificate stating that he or she has
  251  examined a person within the preceding 48 hours and finds that
  252  the person appears to meet the criteria for involuntary
  253  examination and stating the observations upon which that
  254  conclusion is based. If other less restrictive means, such as
  255  voluntary appearance for outpatient evaluation, are not
  256  available, a law enforcement officer shall take into custody the
  257  person named in the certificate and deliver him or her to the
  258  appropriate, or nearest, facility within the designated
  259  receiving system pursuant to s. 394.462 for involuntary
  260  examination. The law enforcement officer shall execute a written
  261  report detailing the circumstances under which the person was
  262  taken into custody. The report must include all emergency
  263  contact information for the person that is readily accessible to
  264  the law enforcement officer, including information available
  265  through electronic databases maintained by the Department of Law
  266  Enforcement or by the Department of Highway Safety and Motor
  267  Vehicles. Such emergency contact information may be used by a
  268  receiving facility only for the purpose of informing listed
  269  emergency contacts of a patient’s whereabouts pursuant to s.
  270  119.0712(2)(d). The report and certificate shall be made a part
  271  of the patient’s clinical record. Any facility accepting the
  272  patient based on this certificate must send a copy of the
  273  certificate to the department within 5 working days. The
  274  document may be submitted electronically through existing data
  275  systems, if applicable.
  276  
  277  When sending the order, report, or certificate to the
  278  department, a facility shall, at a minimum, provide information
  279  about which action was taken regarding the patient under
  280  paragraph (g), which information shall also be made a part of
  281  the patient’s clinical record.
  282         (e) The department shall receive and maintain the copies of
  283  ex parte orders, involuntary outpatient services orders issued
  284  pursuant to s. 394.4655, involuntary inpatient placement orders
  285  issued pursuant to s. 394.467, professional certificates, and
  286  law enforcement officers’ reports, and reports relating to the
  287  transportation of patients. These documents shall be considered
  288  part of the clinical record, governed by the provisions of s.
  289  394.4615. These documents shall be used to prepare annual
  290  reports analyzing the data obtained from these documents,
  291  without information identifying patients, and shall provide
  292  copies of reports to the department, the President of the
  293  Senate, the Speaker of the House of Representatives, and the
  294  minority leaders of the Senate and the House of Representatives.
  295         (f) A patient shall be examined by a physician or a
  296  clinical psychologist, or by a psychiatric nurse performing
  297  within the framework of an established protocol with a
  298  psychiatrist at a facility without unnecessary delay to
  299  determine if the criteria for involuntary services are met.
  300  Emergency treatment may be provided upon the order of a
  301  physician if the physician determines that such treatment is
  302  necessary for the safety of the patient or others. The patient
  303  may not be released by the receiving facility or its contractor
  304  without the documented approval of a psychiatrist or a clinical
  305  psychologist or, if the receiving facility is owned or operated
  306  by a hospital, or health system, or nationally accredited
  307  community mental health center, the release may also be approved
  308  by a psychiatric nurse performing within the framework of an
  309  established protocol with a psychiatrist, or an attending
  310  emergency department physician with experience in the diagnosis
  311  and treatment of mental illness after completion of an
  312  involuntary examination pursuant to this subsection. A
  313  psychiatric nurse may not approve the release of a patient if
  314  the involuntary examination was initiated by a psychiatrist
  315  unless the release is approved by the initiating psychiatrist.
  316  The release may be approved through telehealth.
  317         (g) The examination period must be for up to 72 hours. For
  318  a minor, the examination shall be initiated within 12 hours
  319  after the patient’s arrival at the facility. Within the
  320  examination period or, if the examination period ends on a
  321  weekend or holiday, no later than the next working day
  322  thereafter, one of the following actions must be taken, based on
  323  the individual needs of the patient:
  324         1. The patient shall be released, unless he or she is
  325  charged with a crime, in which case the patient shall be
  326  returned to the custody of a law enforcement officer;
  327         2. The patient shall be released, subject to subparagraph
  328  1., for voluntary outpatient treatment;
  329         3. The patient, unless he or she is charged with a crime,
  330  shall be asked to give express and informed consent to placement
  331  as a voluntary patient and, if such consent is given, the
  332  patient shall be admitted as a voluntary patient; or
  333         4. A petition for involuntary services shall be filed in
  334  the circuit court if inpatient treatment is deemed necessary or
  335  with the criminal county court, as defined in s. 394.4655(1), as
  336  applicable. When inpatient treatment is deemed necessary, the
  337  least restrictive treatment consistent with the optimum
  338  improvement of the patient’s condition shall be made available.
  339  When a petition is to be filed for involuntary outpatient
  340  placement, it shall be filed by one of the petitioners specified
  341  in s. 394.4655(4)(a). A petition for involuntary inpatient
  342  placement shall be filed by the facility administrator. If a
  343  patient’s 72-hour examination period ends on a weekend or
  344  holiday, and the receiving facility:
  345         a.Intends to file a petition for involuntary services,
  346  such patient may be held at a receiving facility through the
  347  next working day thereafter and such petition for involuntary
  348  services must be filed no later than such date. If the receiving
  349  facility fails to file a petition for involuntary services at
  350  the close of the next working day, the patient shall be released
  351  from the receiving facility following approval pursuant to
  352  paragraph (f).
  353         b.Does not intend to file a petition for involuntary
  354  services, a receiving facility may postpone release of a patient
  355  until the next working day thereafter only if a qualified
  356  professional documents that adequate discharge planning and
  357  procedures in accordance with s. 394.468, and approval pursuant
  358  to paragraph (f), are not possible until the next working day.
  359         (5) UNLAWFUL ACTIVITIES RELATING TO EXAMINATION AND
  360  TREATMENT; PENALTIES.—
  361         (a)A person may not knowingly and willfully:
  362         1.Furnish false information for the purpose of obtaining
  363  emergency or other involuntary admission of another;
  364         2.Cause or otherwise secure, or conspire with or assist
  365  another to cause or secure, any emergency or other involuntary
  366  procedure of another person under false pretenses; or
  367         3.Cause, or conspire with or assist another to cause,
  368  without lawful justification, the denial to any person of any
  369  right accorded pursuant to this chapter.
  370         (b)A person who violates this subsection commits a
  371  misdemeanor of the first degree, punishable as provided in s.
  372  775.082 and by a fine not exceeding $5,000.
  373         Section 7. Section 394.468, Florida Statutes, is amended to
  374  read:
  375         394.468 Admission and discharge procedures.—
  376         (1) Admission and discharge procedures and treatment
  377  policies of the department are governed solely by this part.
  378  Such procedures and policies shall not be subject to control by
  379  court procedure rules. The matters within the purview of this
  380  part are deemed to be substantive, not procedural.
  381         (2)Discharge planning and procedures for any patient’s
  382  release from a receiving facility or treatment facility must
  383  include and document consideration of, at a minimum:
  384         (a)Follow-up behavioral health appointments;
  385         (b)Information on how to obtain prescribed medications;
  386  and
  387         (c)Information pertaining to:
  388         1.Available living arrangements;
  389         2.Transportation; and
  390         3.Recovery support opportunities.
  391         Section 8. Paragraph (c) of subsection (3) and subsection
  392  (5) of section 394.9086, Florida Statutes, are amended, and
  393  paragraphs (d) and (e) are added to subsection (3) of that
  394  section, to read:
  395         394.9086 Commission on Mental Health and Substance Abuse.—
  396         (3) MEMBERSHIP; TERM LIMITS; MEETINGS.—
  397         (c) The commission shall convene no later than September 1,
  398  2021. The commission shall meet quarterly or upon the call of
  399  the chair. The commission may shall hold its meetings in person
  400  at locations throughout the state or via teleconference or other
  401  electronic means.
  402         (d)Members of the commission are entitled to receive
  403  reimbursement for per diem and travel expenses pursuant to s.
  404  112.061.
  405         (e) Notwithstanding any other law, the commission may
  406  request and shall be provided with access to any information or
  407  records, including exempt and confidential information or
  408  records, which are necessary for the commission to carry out its
  409  duties. Information or records obtained by the commission which
  410  are otherwise exempt or confidential and exempt shall retain
  411  such exempt or confidential and exempt status, and the
  412  commission may not disclose such information or records.
  413         (5) REPORTS.—By January 1, 2023 September 1, 2022, the
  414  commission shall submit an interim report to the President of
  415  the Senate, the Speaker of the House of Representatives, and the
  416  Governor containing its findings and recommendations on how to
  417  best provide and facilitate mental health and substance abuse
  418  services in the state. The commission shall submit its final
  419  report to the President of the Senate, the Speaker of the House
  420  of Representatives, and the Governor by September 1, 2023.
  421         Section 9. Subsection (5) is added to section 397.601,
  422  Florida Statutes, to read:
  423         397.601 Voluntary admissions.—
  424         (5) A service provider must document that, within 24 hours
  425  of admission, individuals admitted on a voluntary basis have
  426  been provided with the option to authorize the release of
  427  information from their clinical record to the individual’s
  428  health care surrogate or proxy, attorney, representative, or
  429  other known emergency contact.
  430         Section 10. Section 397.6772, Florida Statutes, is amended
  431  to read:
  432         397.6772 Protective custody without consent.—
  433         (1) If a person in circumstances which justify protective
  434  custody as described in s. 397.677 fails or refuses to consent
  435  to assistance and a law enforcement officer has determined that
  436  a hospital or a licensed detoxification or addictions receiving
  437  facility is the most appropriate place for the person, the
  438  officer may, after giving due consideration to the expressed
  439  wishes of the person:
  440         (a) Take the person to a hospital or to a licensed
  441  detoxification or addictions receiving facility against the
  442  person’s will but without using unreasonable force. The officer
  443  shall use the standard form developed by the department pursuant
  444  to s. 397.321 to execute a written report detailing the
  445  circumstances under which the person was taken into custody. The
  446  report must include all emergency contact information for the
  447  person that is readily accessible to the law enforcement
  448  officer, including information available through electronic
  449  databases maintained by the Department of Law Enforcement or by
  450  the Department of Highway Safety and Motor Vehicles. Such
  451  emergency contact information may be used by a hospital or
  452  licensed detoxification or addictions receiving facility only
  453  for the purpose of informing listed emergency contacts of a
  454  patient’s whereabouts pursuant to s. 119.0712(2)(d). The written
  455  report shall be included in the patient’s clinical record; or
  456         (b) In the case of an adult, detain the person for his or
  457  her own protection in any municipal or county jail or other
  458  appropriate detention facility.
  459  
  460  Such detention is not to be considered an arrest for any
  461  purpose, and no entry or other record may be made to indicate
  462  that the person has been detained or charged with any crime. The
  463  officer in charge of the detention facility must notify the
  464  nearest appropriate licensed service provider within the first 8
  465  hours after detention that the person has been detained. It is
  466  the duty of the detention facility to arrange, as necessary, for
  467  transportation of the person to an appropriate licensed service
  468  provider with an available bed. Persons taken into protective
  469  custody must be assessed by the attending physician within the
  470  72-hour period and without unnecessary delay, to determine the
  471  need for further services.
  472         (2) The law enforcement officer must notify the nearest
  473  relative of a minor in protective custody and must be notified
  474  by the law enforcement officer, as must notify the nearest
  475  relative or other known emergency contact of an adult, unless
  476  the adult requests that there be no notification. The law
  477  enforcement officer must document such notification, and any
  478  attempts at notification, in the written report detailing the
  479  circumstances under which the person was taken into custody as
  480  required under paragraph (1)(a).
  481         Section 11. Paragraph (b) of subsection (1) of section
  482  409.972, Florida Statutes, is amended to read:
  483         409.972 Mandatory and voluntary enrollment.—
  484         (1) The following Medicaid-eligible persons are exempt from
  485  mandatory managed care enrollment required by s. 409.965, and
  486  may voluntarily choose to participate in the managed medical
  487  assistance program:
  488         (b) Medicaid recipients residing in residential commitment
  489  facilities operated through the Department of Juvenile Justice
  490  or a treatment facility as defined in s. 394.455(49) s.
  491  394.455(48).
  492         Section 12. Subsection (7) of section 744.2007, Florida
  493  Statutes, is amended to read:
  494         744.2007 Powers and duties.—
  495         (7) A public guardian may not commit a ward to a treatment
  496  facility, as defined in s. 394.455(49) s. 394.455(48), without
  497  an involuntary placement proceeding as provided by law.
  498         Section 13. This act shall take effect July 1, 2022.