Florida Senate - 2022 SB 1262 By Senator Burgess 20-01531-22 20221262__ 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 patients communication with 6 persons outside of a receiving facility may be 7 restricted; revising the conditions under which a 8 patients sealed and unopened incoming or outgoing 9 correspondence may be restricted; revising the 10 conditions under which a patients visitation with 11 persons outside of a receiving facility may be 12 restricted; revising the frequency with which the 13 restriction on a patients right to receive visitors 14 must be reviewed; amending s. 394.4599, F.S.; 15 requiring a receiving facility to notify specified 16 emergency contacts of individuals who are being 17 involuntarily held for examination; amending s. 18 394.4615, 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 requiring the Department of Children and Families to 27 receive and maintain reports relating to the 28 transportation of patients; authorizing receiving 29 facility discharge examinations to be conducted 30 through telehealth; requiring a facility administrator 31 to file a petition for involuntary placement by a 32 specified time; authorizing a receiving facility to 33 postpone the release of a patient if certain 34 requirements are met; requiring that discharge and 35 planning procedures include and document the 36 consideration of specified factors and actions; 37 prohibiting certain activities relating to examination 38 and treatment; providing a criminal penalty; amending 39 s. 397.601, F.S.; requiring service providers to 40 document that an option to authorize the release of 41 specified information has been provided, within a 42 specified timeframe, to individuals admitted on a 43 voluntary basis; amending s. 397.6772, F.S.; requiring 44 law enforcement officers to include certain 45 information relating to emergency contacts in reports 46 relating to the delivery of a person to a receiving 47 facility; amending ss. 409.972 and 744.2007, F.S.; 48 conforming cross-references; providing an effective 49 date. 50 51 Be It Enacted by the Legislature of the State of Florida: 52 53 Section 1.Present subsections (47), (48), and (49) of 54 section 394.455, Florida Statutes, are redesignated as 55 subsections (48), (49), and (50), respectively, and a new 56 subsection (47) is added to that section, to read: 57 394.455Definitions.As used in this part, the term: 58 (47)Telehealth has the same meaning as provided in s. 59 456.47. 60 Section 2.Paragraphs (a), (b), and (c) of subsection (5) 61 of section 394.459, Florida Statutes, are amended to read: 62 394.459Rights of patients. 63 (5)COMMUNICATION, ABUSE REPORTING, AND VISITS. 64 (a)Each person receiving services in a facility providing 65 mental health services under this part has the right to 66 communicate freely and privately with persons outside the 67 facility unless a qualified professional determines it is 68 determined that such communication is likely to be harmful to 69 the person or others in a manner directly related to the 70 persons clinical well-being or to the well-being of others. 71 Each facility shall make available as soon as reasonably 72 possible to persons receiving services a telephone that allows 73 for free local calls and access to a long-distance service. A 74 facility is not required to pay the costs of a patients long 75 distance calls. The telephone shall be readily accessible to the 76 patient and shall be placed so that the patient may use it to 77 communicate privately and confidentially. The facility may 78 establish reasonable rules for the use of this telephone, 79 provided that the rules do not interfere with a patients access 80 to a telephone to report abuse pursuant to paragraph (e). 81 (b)Each patient admitted to a facility under the 82 provisions of this part shall be allowed to receive, send, and 83 mail sealed, unopened correspondence; and no patients incoming 84 or outgoing correspondence shall be opened, delayed, held, or 85 censored by the facility unless a qualified professional 86 determines that such correspondence is likely to be harmful to 87 the patient or others in a manner directly related to the 88 patients clinical well-being or to the well-being of others, or 89 there is reason to believe that such correspondence it contains 90 items or substances which may be harmful to the patient or 91 others, in which case the administrator may direct reasonable 92 examination of such mail and may regulate the disposition of 93 such items or substances. 94 (c)Each facility must permit immediate access to any 95 patient, subject to the patients right to deny or withdraw 96 consent at any time, by the patients family members, guardian, 97 guardian advocate, representative, Florida statewide or local 98 advocacy council, or attorney, unless a qualified professional 99 determines that such access would be detrimental to the patient 100 in a manner directly related to the patients clinical well 101 being. If a patients right to communicate or to receive 102 visitors is restricted by the facility, written notice of such 103 restriction and the reasons for the restriction shall be served 104 on the patient, the patients attorney, and the patients 105 guardian, guardian advocate, or representative; and such 106 restriction shall be recorded on the patients clinical record 107 with the reasons therefor. The restriction of a patients right 108 to communicate or to receive visitors shall be reviewed at least 109 every 4 7 days. The right to communicate or receive visitors 110 shall not be restricted as a means of punishment. Nothing in 111 this paragraph shall be construed to limit the provisions of 112 paragraph (d). 113 Section 3.Paragraph (b) of subsection (2) of section 114 394.4599, Florida Statutes, is amended to read: 115 394.4599Notice. 116 (2)INVOLUNTARY ADMISSION. 117 (b)A receiving facility shall give prompt notice of the 118 whereabouts of an individual who is being involuntarily held for 119 examination to the individuals guardian, guardian advocate, 120 health care surrogate or proxy, attorney or representative, or 121 other emergency contact identified through electronic databases 122 pursuant to s. 394.463(2)(a), by telephone or in person within 123 24 hours after the individuals arrival at the facility. Contact 124 attempts shall be documented in the individuals clinical record 125 and shall begin as soon as reasonably possible after the 126 individuals arrival. 127 Section 4.Paragraph (a) of subsection (2) of section 128 394.4615, Florida Statutes, is amended to read: 129 394.4615Clinical records; confidentiality. 130 (2)The clinical record shall be released when: 131 (a)The patient or the patients guardian authorizes the 132 release. The guardian or guardian advocate shall be provided 133 access to the appropriate clinical records of the patient. The 134 patient or the patients guardian or guardian advocate may 135 authorize the release of information and clinical records to 136 appropriate persons to ensure the continuity of the patients 137 health care or mental health care. A receiving facility must 138 document that, within 24 hours of admission, individuals 139 admitted on a voluntary basis have been provided with the option 140 to authorize the release of information from their clinical 141 record to the individuals health care surrogate or proxy, 142 attorney, representative, or other known emergency contact. 143 Section 5.Present paragraphs (h) and (i) of subsection (2) 144 of section 394.463, Florida Statutes, are redesignated as 145 paragraphs (i) and (j), respectively, a new paragraph (h) is 146 added to that subsection, paragraphs (a), (e), (f), and (g) of 147 that subsection are amended, and subsection (5) is added to that 148 section, to read: 149 394.463Involuntary examination. 150 (2)INVOLUNTARY EXAMINATION. 151 (a)An involuntary examination may be initiated by any one 152 of the following means: 153 1.A circuit or county court may enter an ex parte order 154 stating that a person appears to meet the criteria for 155 involuntary examination and specifying the findings on which 156 that conclusion is based. The ex parte order for involuntary 157 examination must be based on written or oral sworn testimony 158 that includes specific facts that support the findings. If other 159 less restrictive means are not available, such as voluntary 160 appearance for outpatient evaluation, a law enforcement officer, 161 or other designated agent of the court, shall take the person 162 into custody and deliver him or her to an appropriate, or the 163 nearest, facility within the designated receiving system 164 pursuant to s. 394.462 for involuntary examination. The order of 165 the court shall be made a part of the patients clinical record. 166 A fee may not be charged for the filing of an order under this 167 subsection. A facility accepting the patient based on this order 168 must send a copy of the order to the department within 5 working 169 days. The order may be submitted electronically through existing 170 data systems, if available. The order shall be valid only until 171 the person is delivered to the facility or for the period 172 specified in the order itself, whichever comes first. If a time 173 limit is not specified in the order, the order is valid for 7 174 days after the date that the order was signed. 175 2.A law enforcement officer shall take a person who 176 appears to meet the criteria for involuntary examination into 177 custody and deliver the person or have him or her delivered to 178 an appropriate, or the nearest, facility within the designated 179 receiving system pursuant to s. 394.462 for examination. The 180 officer shall execute a written report detailing the 181 circumstances under which the person was taken into custody, 182 which must be made a part of the patients clinical record. The 183 report must include all emergency contact information for the 184 person that is readily accessible to the law enforcement 185 officer, including information available through electronic 186 databases maintained by the Department of Law Enforcement or by 187 the Department of Highway Safety and Motor Vehicles. Any 188 facility accepting the patient based on this report must send a 189 copy of the report to the department within 5 working days. 190 3.A physician, a physician assistant, a clinical 191 psychologist, a psychiatric nurse, an advanced practice 192 registered nurse registered under s. 464.0123, a mental health 193 counselor, a marriage and family therapist, or a clinical social 194 worker may execute a certificate stating that he or she has 195 examined a person within the preceding 48 hours and finds that 196 the person appears to meet the criteria for involuntary 197 examination and stating the observations upon which that 198 conclusion is based. If other less restrictive means, such as 199 voluntary appearance for outpatient evaluation, are not 200 available, a law enforcement officer shall take into custody the 201 person named in the certificate and deliver him or her to the 202 appropriate, or nearest, facility within the designated 203 receiving system pursuant to s. 394.462 for involuntary 204 examination. The law enforcement officer shall execute a written 205 report detailing the circumstances under which the person was 206 taken into custody. The report must include all emergency 207 contact information for the person that is readily accessible to 208 the law enforcement officer, including information available 209 through electronic databases maintained by the Department of Law 210 Enforcement or by the Department of Highway Safety and Motor 211 Vehicles. The report and certificate shall be made a part of the 212 patients clinical record. Any facility accepting the patient 213 based on this certificate must send a copy of the certificate to 214 the department within 5 working days. The document may be 215 submitted electronically through existing data systems, if 216 applicable. 217 218 When sending the order, report, or certificate to the 219 department, a facility shall, at a minimum, provide information 220 about which action was taken regarding the patient under 221 paragraph (g), which information shall also be made a part of 222 the patients clinical record. 223 (e)The department shall receive and maintain the copies of 224 ex parte orders, involuntary outpatient services orders issued 225 pursuant to s. 394.4655, involuntary inpatient placement orders 226 issued pursuant to s. 394.467, professional certificates, and 227 law enforcement officers reports, and reports relating to the 228 transportation of patients. These documents shall be considered 229 part of the clinical record, governed by the provisions of s. 230 394.4615. These documents shall be used to prepare annual 231 reports analyzing the data obtained from these documents, 232 without information identifying patients, and shall provide 233 copies of reports to the department, the President of the 234 Senate, the Speaker of the House of Representatives, and the 235 minority leaders of the Senate and the House of Representatives. 236 (f)A patient shall be examined by a physician or a 237 clinical psychologist, or by a psychiatric nurse performing 238 within the framework of an established protocol with a 239 psychiatrist at a facility without unnecessary delay to 240 determine if the criteria for involuntary services are met. 241 Emergency treatment may be provided upon the order of a 242 physician if the physician determines that such treatment is 243 necessary for the safety of the patient or others. The patient 244 may not be released by the receiving facility or its contractor 245 without the documented approval of a psychiatrist or a clinical 246 psychologist or, if the receiving facility is owned or operated 247 by a hospital or health system, the release may also be approved 248 by a psychiatric nurse performing within the framework of an 249 established protocol with a psychiatrist, or an attending 250 emergency department physician with experience in the diagnosis 251 and treatment of mental illness after completion of an 252 involuntary examination pursuant to this subsection. A 253 psychiatric nurse may not approve the release of a patient if 254 the involuntary examination was initiated by a psychiatrist 255 unless the release is approved by the initiating psychiatrist. 256 The release may be approved through telehealth. 257 (g)The examination period must be for up to 72 hours. For 258 a minor, the examination shall be initiated within 12 hours 259 after the patients arrival at the facility. Within the 260 examination period or, if the examination period ends on a 261 weekend or holiday, no later than the next working day 262 thereafter, one of the following actions must be taken, based on 263 the individual needs of the patient: 264 1.The patient shall be released, unless he or she is 265 charged with a crime, in which case the patient shall be 266 returned to the custody of a law enforcement officer; 267 2.The patient shall be released, subject to subparagraph 268 1., for voluntary outpatient treatment; 269 3.The patient, unless he or she is charged with a crime, 270 shall be asked to give express and informed consent to placement 271 as a voluntary patient and, if such consent is given, the 272 patient shall be admitted as a voluntary patient; or 273 4.A petition for involuntary services shall be filed in 274 the circuit court if inpatient treatment is deemed necessary or 275 with the criminal county court, as defined in s. 394.4655(1), as 276 applicable. When inpatient treatment is deemed necessary, the 277 least restrictive treatment consistent with the optimum 278 improvement of the patients condition shall be made available. 279 When a petition is to be filed for involuntary outpatient 280 placement, it shall be filed by one of the petitioners specified 281 in s. 394.4655(4)(a). A petition for involuntary inpatient 282 placement shall be filed by the facility administrator. If a 283 patients 72-hour examination period ends on a weekend or 284 holiday, a petition may be filed no later than the next working 285 day thereafter. 286 (h)If the examination period ends on a weekend or holiday, 287 a receiving facility may postpone release of a patient until the 288 next working day thereafter only if a qualified professional 289 documents that adequate discharge planning and procedures are 290 not possible until the next working day. Discharge planning and 291 procedures must include and document consideration of the 292 following: 293 1.The patients transportation resources; 294 2.The patients access to stable living arrangements; 295 3.How assistance in securing needed living arrangements or 296 shelter will be provided to patients at risk of readmission 297 within the 3 weeks immediately following discharge due to 298 homelessness or transient status. The discharging facility must 299 document that, before discharging the patient, it has requested 300 a commitment from a shelter provider that assistance will be 301 rendered; 302 4.The availability of assistance in obtaining a timely 303 aftercare appointment for needed services, including 304 continuation of prescribed psychotropic medications. Aftercare 305 appointments for psychotropic medication and case management 306 must be requested to occur not later than 7 days after the 307 expected date of discharge; if the discharge is delayed, the 308 discharging facility must document notification of the delay to 309 the aftercare provider. The discharging facility shall 310 coordinate with the aftercare service provider and document the 311 aftercare planning; 312 5.The availability of, and access to, prescribed 313 psychotropic medications in the community. To ensure a patients 314 safety and provision of continuity of essential psychotropic 315 medications, such prescribed psychotropic medications, 316 prescriptions, multiple partial prescriptions for psychotropic 317 medications, or a combination thereof, must be provided to the 318 patient upon discharge to cover the intervening days until the 319 first scheduled psychotropic medication aftercare appointment, 320 up to a maximum of 21 calendar days; 321 6.The provision of education and written information about 322 the patients illness and psychotropic medications, including 323 other prescribed and over-the-counter medications; the common 324 side-effects of any medications prescribed; and any common 325 adverse clinically significant drug-to-drug interactions between 326 that medication and other commonly available prescribed and 327 over-the-counter medications; 328 7.The provision of contact and program information about, 329 and referral to, any community-based peer support services in 330 the community; 331 8.The provision of contact and program information about, 332 and referral to, any needed community resources; 333 9.Referral to substance abuse treatment programs, trauma 334 or abuse recovery-focused programs, or other self-help groups, 335 if indicated by assessments; and 336 10.The provision of information about advance directives, 337 including how to prepare and use them. 338 (5)UNLAWFUL ACTIVITIES RELATING TO EXAMINATION AND 339 TREATMENT; PENALTIES. 340 (a)A person may not: 341 1.Knowingly furnish false information for the purpose of 342 obtaining emergency or other involuntary admission of another; 343 2.Cause or otherwise secure, or conspire with or assist 344 another to cause or secure, without reason for believing a 345 person to be impaired, any emergency or other involuntary 346 procedure of another person; or 347 3.Cause, or conspire with or assist another to cause, the 348 denial to any person of any right accorded pursuant to this 349 chapter. 350 (b)A person who violates this subsection commits a 351 misdemeanor of the second degree, punishable as provided in s. 352 775.082 and by a fine not exceeding $5,000. 353 Section 6.Subsection (5) is added to section 397.601, 354 Florida Statutes, to read: 355 397.601Voluntary admissions. 356 (5)A service provider must document that, within 24 hours 357 of admission, individuals admitted on a voluntary basis have 358 been provided with the option to authorize the release of 359 information from their clinical record to the individuals 360 health care surrogate or proxy, attorney, representative, or 361 other known emergency contact. 362 Section 7.Section 397.6772, Florida Statutes, is amended 363 to read: 364 397.6772Protective custody without consent. 365 (1)If a person in circumstances which justify protective 366 custody as described in s. 397.677 fails or refuses to consent 367 to assistance and a law enforcement officer has determined that 368 a hospital or a licensed detoxification or addictions receiving 369 facility is the most appropriate place for the person, the 370 officer may, after giving due consideration to the expressed 371 wishes of the person: 372 (a)Take the person to a hospital or to a licensed 373 detoxification or addictions receiving facility against the 374 persons will but without using unreasonable force. The officer 375 shall use the standard form developed by the department pursuant 376 to s. 397.321 to execute a written report detailing the 377 circumstances under which the person was taken into custody. The 378 report must include all emergency contact information for the 379 person that is readily accessible to the law enforcement 380 officer, including information available through electronic 381 databases maintained by the Department of Law Enforcement or by 382 the Department of Highway Safety and Motor Vehicles. The written 383 report shall be included in the patients clinical record; or 384 (b)In the case of an adult, detain the person for his or 385 her own protection in any municipal or county jail or other 386 appropriate detention facility. 387 388 Such detention is not to be considered an arrest for any 389 purpose, and no entry or other record may be made to indicate 390 that the person has been detained or charged with any crime. The 391 officer in charge of the detention facility must notify the 392 nearest appropriate licensed service provider within the first 8 393 hours after detention that the person has been detained. It is 394 the duty of the detention facility to arrange, as necessary, for 395 transportation of the person to an appropriate licensed service 396 provider with an available bed. Persons taken into protective 397 custody must be assessed by the attending physician within the 398 72-hour period and without unnecessary delay, to determine the 399 need for further services. 400 (2)The law enforcement officer must notify the nearest 401 relative of a minor in protective custody and must be notified 402 by the law enforcement officer, as must notify the nearest 403 relative or other known emergency contact of an adult, unless 404 the adult requests that there be no notification. The law 405 enforcement officer must document such notification, and any 406 attempts at notification, in the written report detailing the 407 circumstances under which the person as taken into custody 408 required under paragraph (1)(a). 409 Section 8.Paragraph (b) of subsection (1) of section 410 409.972, Florida Statutes, is amended to read: 411 409.972Mandatory and voluntary enrollment. 412 (1)The following Medicaid-eligible persons are exempt from 413 mandatory managed care enrollment required by s. 409.965, and 414 may voluntarily choose to participate in the managed medical 415 assistance program: 416 (b)Medicaid recipients residing in residential commitment 417 facilities operated through the Department of Juvenile Justice 418 or a treatment facility as defined in s. 394.455(49) s. 419 394.455(48). 420 Section 9.Subsection (7) of section 744.2007, Florida 421 Statutes, is amended to read: 422 744.2007Powers and duties. 423 (7)A public guardian may not commit a ward to a treatment 424 facility, as defined in s. 394.455(49) s. 394.455(48), without 425 an involuntary placement proceeding as provided by law. 426 Section 10.This act shall take effect July 1, 2022.