Florida Senate - 2024 SB 960
By Senator Berman
26-01544-24 2024960__
1 A bill to be entitled
2 An act relating to outpatient mental health services;
3 amending s. 394.455, F.S.; revising and providing
4 definitions; amending s. 394.4655, F.S.; authorizing a
5 court to order a respondent into outpatient treatment
6 for a specified amount of time under certain
7 circumstances; providing criteria for involuntary
8 outpatient treatment; requiring monitoring of the
9 respondent for the duration of his or her treatment;
10 requiring the court to retain jurisdiction over the
11 case and parties under certain circumstances;
12 authorizing a certain court exercising original
13 jurisdiction to order certain respondents into
14 involuntary outpatient services; prohibiting such
15 court from using incarceration as a sanction for
16 noncompliance with the outpatient treatment plan;
17 amending s. 394.467, F.S.; revising criteria for
18 involuntary inpatient placement; amending ss.
19 394.4599, 394.4615, 394.463, 394.467, 394.495,
20 394.496, 394.9085, 409.972, 464.012, 744.2007, and
21 790.065, F.S.; conforming provisions and cross
22 references to changes made by the act; providing an
23 effective date.
24
25 Be It Enacted by the Legislature of the State of Florida:
26
27 Section 1. Subsections (32) through (39) and (40) through
28 (50) of section 394.455, Florida Statutes, are redesignated as
29 subsections (33) through (40) and (42) through (52),
30 respectively, subsection (23) is amended, and new subsections
31 (32) and (41) are added to that section, to read:
32 394.455 Definitions.—As used in this part, the term:
33 (23) “Involuntary examination” means an examination
34 performed under s. 394.463, s. 397.6772, s. 397.679, s.
35 397.6798, or s. 397.6957 s. 397.6811 to determine whether a
36 person qualifies for involuntary services.
37 (32) “Neglect or refuse to care for himself or herself”
38 means a refusal to accept treatment and includes, but is not
39 limited to, evidence that a person:
40 (a) Is, for a reason other than indigence, unable to
41 satisfy basic needs for nourishment, clothing, medical care,
42 shelter, or safety, thereby creating a substantial probability
43 of imminent death, serious physical debilitation, or disease; or
44 (b) Is substantially unable to make an informed treatment
45 choice, after an explanation of the advantages and disadvantages
46 of, and alternatives to, treatment, and needs care or treatment
47 to prevent deterioration. However, the following do not
48 constitute a refusal to accept treatment:
49 1. A willingness to take medication appropriate for the
50 person’s condition, but a reasonable disagreement about type or
51 dosage;
52 2. A good faith effort to follow a reasonable treatment
53 plan;
54 3. An inability to obtain access to appropriate treatment
55 because of inadequate health care coverage or an insurer’s
56 refusal or delay in providing coverage for treatment; or
57 4. An inability to obtain access to needed services because
58 the provider has no available treatment beds or qualified
59 professionals, the provider only accepts patients under court
60 order, or the provider gives persons under court order priority
61 over voluntary patients in obtaining treatment and services.
62 (41) “Real and present threat of substantial harm”
63 includes, but is not limited to, evidence of a substantial
64 probability that the untreated person will:
65 (a) Lack, refuse, or not receive services for health and
66 safety which are actually available in the community; or
67 (b) Suffer severe mental, emotional, or physical harm that
68 will result in the loss of his or her ability to function in the
69 community or in the loss of cognitive or volitional control over
70 his or her thoughts or actions.
71 Section 2. Section 394.4655, Florida Statutes, is amended
72 to read:
73 (Substantial rewording of section. See
74 s. 394.4655, F.S., for present text.)
75 394.4655 Involuntary outpatient services.—
76 (1)(a) A court may order a respondent into outpatient
77 treatment for up to 6 months if, during the initial hearing
78 under s. 394.467 or a subsequent hearing before a respondent’s
79 anticipated discharge from inpatient placement, at the request
80 of the facility, and providing at least 1 week’s notice to the
81 court and the parties of its belief that the respondent would
82 benefit from involuntary outpatient services, it is established
83 that the respondent meets the involuntary placement criteria and
84 all of the following:
85 1. The respondent has been incarcerated, has been
86 involuntarily admitted to a receiving facility or treatment
87 facility as defined in s. 394.455, or has received mental health
88 services in a forensic or correctional facility at least twice
89 during the previous 36 months.
90 2. The outpatient treatment is provided and available in
91 the county in which the respondent resides or will reside if he
92 or she is being placed from a state treatment facility.
93 3. The respondent’s treating physician certifies, within a
94 reasonable degree of medical probability, that the respondent:
95 a. May be appropriately treated on an outpatient basis.
96 b. Is able to follow and benefit from the prescribed
97 treatment plan.
98 (b) For the duration of his or her treatment, the
99 respondent must be monitored by a social worker or case manager
100 of the outpatient treatment provider, or a willing, able, and
101 responsible individual appointed by the court who must inform
102 the court, state attorney, and respondent’s counsel of any
103 failure by the respondent to comply with his or her outpatient
104 program.
105 (2) The court shall, if required, retain jurisdiction over
106 the case and parties for the entry of further orders after a
107 hearing. Such jurisdiction includes, but is not limited to,
108 ordering inpatient treatment to stabilize a respondent who
109 decompensates while under court-ordered treatment and meets the
110 commitment criteria of s. 394.467(1), and extending, modifying,
111 or ending outpatient services. For a court to extend, modify, or
112 end outpatient services, the appropriate motion must be filed
113 with the court before the operating order expires, and the court
114 shall schedule a hearing as soon as practicable to determine
115 whether the respondent still meets the commitment criteria and
116 assess the appropriateness of any treatment modification.
117 (3) A criminal county court exercising its original
118 jurisdiction in a misdemeanor case under s. 34.01 may order into
119 involuntary outpatient services a respondent who meets the
120 commitment criteria. The court may not use incarceration as a
121 sanction for noncompliance with the outpatient treatment plan,
122 but it may order an evaluation for possible inpatient placement
123 if there is significant, or multiple instances of,
124 noncompliance.
125 Section 3. Paragraph (a) of subsection (1) of section
126 394.467, Florida Statutes, is amended to read:
127 394.467 Involuntary inpatient placement.—
128 (1) CRITERIA.—A person may be ordered for involuntary
129 inpatient placement for treatment upon a finding of the court by
130 clear and convincing evidence that:
131 (a) He or she has a mental illness and because of his or
132 her mental illness:
133 1.a. He or she has refused voluntary inpatient placement
134 for treatment after sufficient and conscientious explanation and
135 disclosure of the purpose of inpatient placement for treatment;
136 or
137 b. He or she is unable to determine for himself or herself
138 whether inpatient placement is necessary; and
139 2.a. He or she is incapable of surviving alone or with the
140 help of willing and responsible family or friends, including
141 available alternative services, and, without treatment, is
142 likely to suffer from neglect or refuse to care for himself or
143 herself, and such neglect or refusal poses a real and present
144 threat of substantial harm to his or her well-being; or
145 b. There is substantial likelihood that in the near future,
146 and without services, he or she will inflict serious bodily harm
147 to on self or others, as evidenced by recent acts, omissions, or
148 behavior causing, attempting, or threatening such harm,
149 including, but not limited to, significant property damage; and
150 Section 4. Paragraph (d) of subsection (2) of section
151 394.4599, Florida Statutes, is amended to read:
152 394.4599 Notice.—
153 (2) INVOLUNTARY ADMISSION.—
154 (d) The written notice of the filing of the petition for
155 involuntary services for an individual being held must contain
156 the following:
157 1. Notice that the petition for:
158 a. Involuntary inpatient treatment pursuant to s. 394.467
159 has been filed with the circuit court in the county in which the
160 individual is hospitalized and the address of such court; or
161 b. Involuntary outpatient services pursuant to s. 394.4655
162 has been filed with the criminal county court, as provided under
163 s. 394.4655 defined in s. 394.4655(1), or the circuit court, as
164 applicable, in the county in which the individual is
165 hospitalized and the address of such court.
166 2. Notice that the office of the public defender has been
167 appointed to represent the individual in the proceeding, if the
168 individual is not otherwise represented by counsel.
169 3. The date, time, and place of the hearing and the name of
170 each examining expert and every other person expected to testify
171 in support of continued detention.
172 4. Notice that the individual, the individual’s guardian,
173 guardian advocate, health care surrogate or proxy, or
174 representative, or the administrator may apply for a change of
175 venue for the convenience of the parties or witnesses or because
176 of the condition of the individual.
177 5. Notice that the individual is entitled to an independent
178 expert examination and, if the individual cannot afford such an
179 examination, that the court will provide for one.
180 Section 5. Subsection (3) of section 394.4615, Florida
181 Statutes, is amended to read:
182 394.4615 Clinical records; confidentiality.—
183 (3) Information from the clinical record may be released in
184 the following circumstances:
185 (a) When a patient has communicated to a service provider a
186 specific threat to cause serious bodily injury or death to an
187 identified or a readily available person, if the service
188 provider reasonably believes, or should reasonably believe
189 according to the standards of his or her profession, that the
190 patient has the apparent intent and ability to imminently or
191 immediately carry out such threat. When such communication has
192 been made, the administrator may authorize the release of
193 sufficient information to provide adequate warning to the person
194 threatened with harm by the patient.
195 (b) When the administrator of the facility or secretary of
196 the department deems release to a qualified researcher as
197 defined in administrative rule, an aftercare treatment provider,
198 or an employee or agent of the department is necessary for
199 treatment of the patient, maintenance of adequate records,
200 compilation of treatment data, aftercare planning, or evaluation
201 of programs.
202
203 For the purpose of determining whether a person meets the
204 criteria for involuntary outpatient placement or for preparing
205 the proposed treatment plan pursuant to s. 394.4655, the
206 clinical record may be released to the state attorney, the
207 public defender or the patient’s private legal counsel, the
208 court, and to the appropriate mental health professionals,
209 including the service provider identified in s.
210 394.4655(7)(b)2., in accordance with state and federal law.
211 Section 6. Paragraph (g) of subsection (2) of section
212 394.463, Florida Statutes, is amended to read:
213 394.463 Involuntary examination.—
214 (2) INVOLUNTARY EXAMINATION.—
215 (g) The examination period must be for up to 72 hours. For
216 a minor, the examination shall be initiated within 12 hours
217 after the patient’s arrival at the facility. Within the
218 examination period, one of the following actions must be taken,
219 based on the individual needs of the patient:
220 1. The patient shall be released, unless he or she is
221 charged with a crime, in which case the patient shall be
222 returned to the custody of a law enforcement officer;
223 2. The patient shall be released, subject to subparagraph
224 1., for voluntary outpatient treatment;
225 3. The patient, unless he or she is charged with a crime,
226 shall be asked to give express and informed consent to placement
227 as a voluntary patient and, if such consent is given, the
228 patient shall be admitted as a voluntary patient; or
229 4. A petition for involuntary services shall be filed in
230 the circuit court if inpatient treatment is deemed necessary or
231 with the criminal county court, as defined in s. 394.4655(1), as
232 applicable. When inpatient treatment is deemed necessary, the
233 least restrictive treatment consistent with the optimum
234 improvement of the patient’s condition shall be made available.
235 When a petition is to be filed for involuntary outpatient
236 placement, it shall be filed by one of the petitioners specified
237 in s. 394.4655(4)(a). A petition for involuntary inpatient
238 placement shall be filed by the facility administrator. If a
239 patient’s 72-hour examination period ends on a weekend or
240 holiday, and the receiving facility:
241 a. Intends to file a petition for involuntary services,
242 such patient may be held at a receiving facility through the
243 next working day thereafter and such petition for involuntary
244 services must be filed no later than such date. If the receiving
245 facility fails to file a petition for involuntary services at
246 the close of the next working day, the patient shall be released
247 from the receiving facility following approval pursuant to
248 paragraph (f).
249 b. Does not intend to file a petition for involuntary
250 services, a receiving facility may postpone release of a patient
251 until the next working day thereafter only if a qualified
252 professional documents that adequate discharge planning and
253 procedures in accordance with s. 394.468, and approval pursuant
254 to paragraph (f), are not possible until the next working day.
255 Section 7. Paragraph (c) of subsection (6) of section
256 394.467, Florida Statutes, is amended to read:
257 394.467 Involuntary inpatient placement.—
258 (6) HEARING ON INVOLUNTARY INPATIENT PLACEMENT.—
259 (c) If at any time before the conclusion of the hearing on
260 involuntary inpatient placement it appears to the court that the
261 person does not meet the criteria for involuntary inpatient
262 placement under this section, but instead meets the criteria for
263 involuntary outpatient services, the court may order the person
264 evaluated for involuntary outpatient services pursuant to s.
265 394.4655. The petition and hearing procedures set forth in s.
266 394.4655 shall apply. If the person instead meets the criteria
267 for involuntary assessment, protective custody, or involuntary
268 admission pursuant to s. 397.675, then the court may order the
269 person to be admitted for involuntary assessment for a period of
270 5 days pursuant to s. 397.6811. Thereafter, all proceedings are
271 governed by chapter 397.
272 Section 8. Paragraphs (a) and (c) of subsection (3) of
273 section 394.495, Florida Statutes, are amended to read:
274 394.495 Child and adolescent mental health system of care;
275 programs and services.—
276 (3) Assessments must be performed by:
277 (a) A professional as defined in s. 394.455(5), (7), (34)
278 (33), (37) (36), or (38) (37);
279 (c) A person who is under the direct supervision of a
280 qualified professional as defined in s. 394.455(5), (7), (34)
281 (33), (37) (36), or (38) (37) or a professional licensed under
282 chapter 491.
283 Section 9. Subsection (5) of section 394.496, Florida
284 Statutes, is amended to read:
285 394.496 Service planning.—
286 (5) A professional as defined in s. 394.455(5), (7), (34)
287 (33), (37) (36), or (38) (37) or a professional licensed under
288 chapter 491 must be included among those persons developing the
289 services plan.
290 Section 10. Subsection (6) of section 394.9085, Florida
291 Statutes, is amended to read:
292 394.9085 Behavioral provider liability.—
293 (6) For purposes of this section, the terms “detoxification
294 services,” “addictions receiving facility,” and “receiving
295 facility” have the same meanings as those provided in ss.
296 397.311(26)(a)3., 397.311(26)(a)1., and 394.455 394.455(40),
297 respectively.
298 Section 11. Paragraph (b) of subsection (1) of section
299 409.972, Florida Statutes, is amended to read:
300 409.972 Mandatory and voluntary enrollment.—
301 (1) The following Medicaid-eligible persons are exempt from
302 mandatory managed care enrollment required by s. 409.965, and
303 may voluntarily choose to participate in the managed medical
304 assistance program:
305 (b) Medicaid recipients residing in residential commitment
306 facilities operated through the Department of Juvenile Justice
307 or a treatment facility as defined in s. 394.455 s. 394.455(49).
308 Section 12. Paragraph (e) of subsection (4) of section
309 464.012, Florida Statutes, is amended to read:
310 464.012 Licensure of advanced practice registered nurses;
311 fees; controlled substance prescribing.—
312 (4) In addition to the general functions specified in
313 subsection (3), an advanced practice registered nurse may
314 perform the following acts within his or her specialty:
315 (e) A psychiatric nurse, who meets the requirements in s.
316 394.455 s. 394.455(36), within the framework of an established
317 protocol with a psychiatrist, may prescribe psychotropic
318 controlled substances for the treatment of mental disorders.
319 Section 13. Subsection (7) of section 744.2007, Florida
320 Statutes, is amended to read:
321 744.2007 Powers and duties.—
322 (7) A public guardian may not commit a ward to a treatment
323 facility, as defined in s. 394.455 s. 394.455(49), without an
324 involuntary placement proceeding as provided by law.
325 Section 14. Paragraph (a) of subsection (2) of section
326 790.065, Florida Statutes, is amended to read:
327 790.065 Sale and delivery of firearms.—
328 (2) Upon receipt of a request for a criminal history record
329 check, the Department of Law Enforcement shall, during the
330 licensee’s call or by return call, forthwith:
331 (a) Review any records available to determine if the
332 potential buyer or transferee:
333 1. Has been convicted of a felony and is prohibited from
334 receipt or possession of a firearm pursuant to s. 790.23;
335 2. Has been convicted of a misdemeanor crime of domestic
336 violence, and therefore is prohibited from purchasing a firearm;
337 3. Has had adjudication of guilt withheld or imposition of
338 sentence suspended on any felony or misdemeanor crime of
339 domestic violence unless 3 years have elapsed since probation or
340 any other conditions set by the court have been fulfilled or
341 expunction has occurred; or
342 4. Has been adjudicated mentally defective or has been
343 committed to a mental institution by a court or as provided in
344 sub-sub-subparagraph b.(II), and as a result is prohibited by
345 state or federal law from purchasing a firearm.
346 a. As used in this subparagraph, “adjudicated mentally
347 defective” means a determination by a court that a person, as a
348 result of marked subnormal intelligence, or mental illness,
349 incompetency, condition, or disease, is a danger to himself or
350 herself or to others or lacks the mental capacity to contract or
351 manage his or her own affairs. The phrase includes a judicial
352 finding of incapacity under s. 744.331(6)(a), an acquittal by
353 reason of insanity of a person charged with a criminal offense,
354 and a judicial finding that a criminal defendant is not
355 competent to stand trial.
356 b. As used in this subparagraph, “committed to a mental
357 institution” means:
358 (I) Involuntary commitment, commitment for mental
359 defectiveness or mental illness, and commitment for substance
360 abuse. The phrase includes involuntary inpatient placement as
361 defined in s. 394.467, involuntary outpatient placement as
362 described defined in s. 394.4655, involuntary assessment and
363 stabilization under s. 397.6818, and involuntary substance abuse
364 treatment under s. 397.6957, but does not include a person in a
365 mental institution for observation or discharged from a mental
366 institution based upon the initial review by the physician or a
367 voluntary admission to a mental institution; or
368 (II) Notwithstanding sub-sub-subparagraph (I), voluntary
369 admission to a mental institution for outpatient or inpatient
370 treatment of a person who had an involuntary examination under
371 s. 394.463, where each of the following conditions have been
372 met:
373 (A) An examining physician found that the person is an
374 imminent danger to himself or herself or others.
375 (B) The examining physician certified that if the person
376 did not agree to voluntary treatment, a petition for involuntary
377 outpatient or inpatient treatment would have been filed under s.
378 394.463(2)(g)4., or the examining physician certified that a
379 petition was filed and the person subsequently agreed to
380 voluntary treatment prior to a court hearing on the petition.
381 (C) Before agreeing to voluntary treatment, the person
382 received written notice of that finding and certification, and
383 written notice that as a result of such finding, he or she may
384 be prohibited from purchasing a firearm, and may not be eligible
385 to apply for or retain a concealed weapon or firearms license
386 under s. 790.06 and the person acknowledged such notice in
387 writing, in substantially the following form:
388 “I understand that the doctor who examined me believes I am a
389 danger to myself or to others. I understand that if I do not
390 agree to voluntary treatment, a petition will be filed in court
391 to require me to receive involuntary treatment. I understand
392 that if that petition is filed, I have the right to contest it.
393 In the event a petition has been filed, I understand that I can
394 subsequently agree to voluntary treatment prior to a court
395 hearing. I understand that by agreeing to voluntary treatment in
396 either of these situations, I may be prohibited from buying
397 firearms and from applying for or retaining a concealed weapons
398 or firearms license until I apply for and receive relief from
399 that restriction under Florida law.”
400 (D) A judge or a magistrate has, pursuant to sub-sub
401 subparagraph c.(II), reviewed the record of the finding,
402 certification, notice, and written acknowledgment classifying
403 the person as an imminent danger to himself or herself or
404 others, and ordered that such record be submitted to the
405 department.
406 c. In order to check for these conditions, the department
407 shall compile and maintain an automated database of persons who
408 are prohibited from purchasing a firearm based on court records
409 of adjudications of mental defectiveness or commitments to
410 mental institutions.
411 (I) Except as provided in sub-sub-subparagraph (II), clerks
412 of court shall submit these records to the department within 1
413 month after the rendition of the adjudication or commitment.
414 Reports shall be submitted in an automated format. The reports
415 must, at a minimum, include the name, along with any known alias
416 or former name, the sex, and the date of birth of the subject.
417 (II) For persons committed to a mental institution pursuant
418 to sub-sub-subparagraph b.(II), within 24 hours after the
419 person’s agreement to voluntary admission, a record of the
420 finding, certification, notice, and written acknowledgment must
421 be filed by the administrator of the receiving or treatment
422 facility, as defined in s. 394.455, with the clerk of the court
423 for the county in which the involuntary examination under s.
424 394.463 occurred. No fee shall be charged for the filing under
425 this sub-sub-subparagraph. The clerk must present the records to
426 a judge or magistrate within 24 hours after receipt of the
427 records. A judge or magistrate is required and has the lawful
428 authority to review the records ex parte and, if the judge or
429 magistrate determines that the record supports the classifying
430 of the person as an imminent danger to himself or herself or
431 others, to order that the record be submitted to the department.
432 If a judge or magistrate orders the submittal of the record to
433 the department, the record must be submitted to the department
434 within 24 hours.
435 d. A person who has been adjudicated mentally defective or
436 committed to a mental institution, as those terms are defined in
437 this paragraph, may petition the court that made the
438 adjudication or commitment, or the court that ordered that the
439 record be submitted to the department pursuant to sub-sub
440 subparagraph c.(II), for relief from the firearm disabilities
441 imposed by such adjudication or commitment. A copy of the
442 petition shall be served on the state attorney for the county in
443 which the person was adjudicated or committed. The state
444 attorney may object to and present evidence relevant to the
445 relief sought by the petition. The hearing on the petition may
446 be open or closed as the petitioner may choose. The petitioner
447 may present evidence and subpoena witnesses to appear at the
448 hearing on the petition. The petitioner may confront and cross
449 examine witnesses called by the state attorney. A record of the
450 hearing shall be made by a certified court reporter or by court
451 approved electronic means. The court shall make written findings
452 of fact and conclusions of law on the issues before it and issue
453 a final order. The court shall grant the relief requested in the
454 petition if the court finds, based on the evidence presented
455 with respect to the petitioner’s reputation, the petitioner’s
456 mental health record and, if applicable, criminal history
457 record, the circumstances surrounding the firearm disability,
458 and any other evidence in the record, that the petitioner will
459 not be likely to act in a manner that is dangerous to public
460 safety and that granting the relief would not be contrary to the
461 public interest. If the final order denies relief, the
462 petitioner may not petition again for relief from firearm
463 disabilities until 1 year after the date of the final order. The
464 petitioner may seek judicial review of a final order denying
465 relief in the district court of appeal having jurisdiction over
466 the court that issued the order. The review shall be conducted
467 de novo. Relief from a firearm disability granted under this
468 sub-subparagraph has no effect on the loss of civil rights,
469 including firearm rights, for any reason other than the
470 particular adjudication of mental defectiveness or commitment to
471 a mental institution from which relief is granted.
472 e. Upon receipt of proper notice of relief from firearm
473 disabilities granted under sub-subparagraph d., the department
474 shall delete any mental health record of the person granted
475 relief from the automated database of persons who are prohibited
476 from purchasing a firearm based on court records of
477 adjudications of mental defectiveness or commitments to mental
478 institutions.
479 f. The department is authorized to disclose data collected
480 pursuant to this subparagraph to agencies of the Federal
481 Government and other states for use exclusively in determining
482 the lawfulness of a firearm sale or transfer. The department is
483 also authorized to disclose this data to the Department of
484 Agriculture and Consumer Services for purposes of determining
485 eligibility for issuance of a concealed weapons or concealed
486 firearms license and for determining whether a basis exists for
487 revoking or suspending a previously issued license pursuant to
488 s. 790.06(10). When a potential buyer or transferee appeals a
489 nonapproval based on these records, the clerks of court and
490 mental institutions shall, upon request by the department,
491 provide information to help determine whether the potential
492 buyer or transferee is the same person as the subject of the
493 record. Photographs and any other data that could confirm or
494 negate identity must be made available to the department for
495 such purposes, notwithstanding any other provision of state law
496 to the contrary. Any such information that is made confidential
497 or exempt from disclosure by law shall retain such confidential
498 or exempt status when transferred to the department.
499 Section 15. This act shall take effect July 1, 2024.