Florida Senate - 2022 CS for SB 1262 By the Committee on Children, Families, and Elder Affairs; and Senator Burgess 586-02288-22 20221262c1 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 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 patients 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; revising the due date for the commissions 47 interim report; amending s. 397.601, F.S.; requiring 48 service providers to document that an option to 49 authorize the release of specified information has 50 been provided, within a specified timeframe, to 51 individuals admitted on a voluntary basis; amending s. 52 397.6772, F.S.; requiring law enforcement officers to 53 include certain information relating to emergency 54 contacts in reports relating to the delivery of a 55 person to a hospital or licensed detoxification or 56 addictions receiving facility; limiting the use of 57 certain information provided; maintaining the 58 confidential and exempt status of certain information 59 provided to a hospital or licensed detoxification or 60 addictions receiving facility; amending ss. 409.972 61 and 744.2007, F.S.; conforming cross-references; 62 providing an effective date. 63 64 Be It Enacted by the Legislature of the State of Florida: 65 66 Section 1.Present subsections (47), (48), and (49) of 67 section 394.455, Florida Statutes, are redesignated as 68 subsections (48), (49), and (50), respectively, and a new 69 subsection (47) is added to that section, to read: 70 394.455Definitions.As used in this part, the term: 71 (47)Telehealth has the same meaning as provided in s. 72 456.47. 73 Section 2.Subsection (5) of section 394.459, Florida 74 Statutes is amended to read: 75 394.459Rights of patients. 76 (5)COMMUNICATION, ABUSE REPORTING, AND VISITS. 77 (a)Each person receiving services in a facility providing 78 mental health services under this part has the right to 79 communicate freely and privately with persons outside the 80 facility unless a qualified professional determines it is 81 determined that such communication is likely to be harmful to 82 the person or others in a manner directly related to the 83 persons clinical well-being, the clinical well-being of other 84 patients, or the general safety of staff. Each facility shall 85 make available as soon as reasonably possible to persons 86 receiving services a telephone that allows for free local calls 87 and access to a long-distance service. A facility is not 88 required to pay the costs of a patients long-distance calls. 89 The telephone shall be readily accessible to the patient and 90 shall be placed so that the patient may use it to communicate 91 privately and confidentially. The facility may establish 92 reasonable rules for the use of this telephone, provided that 93 the rules do not interfere with a patients access to a 94 telephone to report abuse pursuant to paragraph (f) (e). 95 (b)Each patient admitted to a facility under the 96 provisions of this part shall be allowed to receive, send, and 97 mail sealed, unopened correspondence; and no patients incoming 98 or outgoing correspondence shall be opened, delayed, held, or 99 censored by the facility unless a qualified professional 100 determines that such correspondence is likely to be harmful to 101 the patient or others in a manner directly related to the 102 patients clinical well-being, the clinical well-being of other 103 patients, or the general safety of staff. If there is reason to 104 believe that such correspondence it contains items or substances 105 which may be harmful to the patient or others, in which case the 106 administrator may direct reasonable examination of such mail and 107 may regulate the disposition of such items or substances. 108 (c)Each facility must permit immediate access to any 109 patient, subject to the patients right to deny or withdraw 110 consent at any time, by the patients family members, guardian, 111 guardian advocate, representative, Florida statewide or local 112 advocacy council, or attorney, unless a qualified professional 113 determines that such access would be detrimental to the patient 114 in a manner directly related to the patients clinical well 115 being, the clinical well-being of other patients, or the general 116 safety of staff. 117 (d)If a patients right to communicate with outside 118 persons; receive, send, or mail sealed, unopened correspondence; 119 or to receive visitors is restricted by the facility, written 120 notice of such restriction and the reasons for the restriction 121 shall be served on the patient, the patients attorney, and the 122 patients guardian, guardian advocate, or representative; a 123 qualified professional must document any restriction within 24 124 hours and such restriction shall be recorded on the patients 125 clinical record with the reasons therefor. The restriction of a 126 patients right to communicate or to receive visitors shall be 127 reviewed at least every 3 7 days. The right to communicate or 128 receive visitors shall not be restricted as a means of 129 punishment. Nothing in this paragraph shall be construed to 130 limit the provisions of paragraph (e)(d). 131 (e)(d)Each facility shall establish reasonable rules 132 governing visitors, visiting hours, and the use of telephones by 133 patients in the least restrictive possible manner. Patients 134 shall have the right to contact and to receive communication 135 from their attorneys at any reasonable time. 136 (f)(e)Each patient receiving mental health treatment in 137 any facility shall have ready access to a telephone in order to 138 report an alleged abuse. The facility staff shall orally and in 139 writing inform each patient of the procedure for reporting abuse 140 and shall make every reasonable effort to present the 141 information in a language the patient understands. A written 142 copy of that procedure, including the telephone number of the 143 central abuse hotline and reporting forms, shall be posted in 144 plain view. 145 (g)(f)The department shall adopt rules providing a 146 procedure for reporting abuse. Facility staff shall be required, 147 as a condition of employment, to become familiar with the 148 requirements and procedures for the reporting of abuse. 149 Section 3.Paragraph (b) of subsection (2) of section 150 394.4599, Florida Statutes, is amended to read: 151 394.4599Notice. 152 (2)INVOLUNTARY ADMISSION. 153 (b)A receiving facility shall give prompt notice of the 154 whereabouts of an individual who is being involuntarily held for 155 examination to the individuals guardian, guardian advocate, 156 health care surrogate or proxy, attorney or representative, or 157 other emergency contact identified through electronic databases 158 pursuant to s. 394.463(2)(a), by telephone or in person within 159 24 hours after the individuals arrival at the facility. Contact 160 attempts shall be documented in the individuals clinical record 161 and shall begin as soon as reasonably possible after the 162 individuals arrival. 163 Section 4.Paragraph (a) of subsection (2) of section 164 394.4615, Florida Statutes, is amended to read: 165 394.4615Clinical records; confidentiality. 166 (2)The clinical record shall be released when: 167 (a)The patient or the patients guardian authorizes the 168 release. The guardian or guardian advocate shall be provided 169 access to the appropriate clinical records of the patient. The 170 patient or the patients guardian or guardian advocate may 171 authorize the release of information and clinical records to 172 appropriate persons to ensure the continuity of the patients 173 health care or mental health care. A receiving facility must 174 document that, within 24 hours of admission, individuals 175 admitted on a voluntary basis have been provided with the option 176 to authorize the release of information from their clinical 177 record to the individuals health care surrogate or proxy, 178 attorney, representative, or other known emergency contact. 179 Section 5.Paragraphs (a), (e), (f), and (g) of subsection 180 (2) of section 394.463, Florida Statutes, are amended, and 181 subsection (5) is added to that section, to read: 182 394.463Involuntary examination. 183 (2)INVOLUNTARY EXAMINATION. 184 (a)An involuntary examination may be initiated by any one 185 of the following means: 186 1.A circuit or county court may enter an ex parte order 187 stating that a person appears to meet the criteria for 188 involuntary examination and specifying the findings on which 189 that conclusion is based. The ex parte order for involuntary 190 examination must be based on written or oral sworn testimony 191 that includes specific facts that support the findings. If other 192 less restrictive means are not available, such as voluntary 193 appearance for outpatient evaluation, a law enforcement officer, 194 or other designated agent of the court, shall take the person 195 into custody and deliver him or her to an appropriate, or the 196 nearest, facility within the designated receiving system 197 pursuant to s. 394.462 for involuntary examination. The order of 198 the court shall be made a part of the patients clinical record. 199 A fee may not be charged for the filing of an order under this 200 subsection. A facility accepting the patient based on this order 201 must send a copy of the order to the department within 5 working 202 days. The order may be submitted electronically through existing 203 data systems, if available. The order shall be valid only until 204 the person is delivered to the facility or for the period 205 specified in the order itself, whichever comes first. If a time 206 limit is not specified in the order, the order is valid for 7 207 days after the date that the order was signed. 208 2.A law enforcement officer shall take a person who 209 appears to meet the criteria for involuntary examination into 210 custody and deliver the person or have him or her delivered to 211 an appropriate, or the nearest, facility within the designated 212 receiving system pursuant to s. 394.462 for examination. The 213 officer shall execute a written report detailing the 214 circumstances under which the person was taken into custody, 215 which must be made a part of the patients clinical record. The 216 report must include all emergency contact information for the 217 person that is readily accessible to the law enforcement 218 officer, including information available through electronic 219 databases maintained by the Department of Law Enforcement or by 220 the Department of Highway Safety and Motor Vehicles. Such 221 emergency contact information may be used by a receiving 222 facility only for the purpose of informing listed emergency 223 contacts of a patients whereabouts and shall otherwise remain 224 confidential and exempt pursuant to s. 119.0712(2)(d). Any 225 facility accepting the patient based on this report must send a 226 copy of the report to the department within 5 working days. 227 3.A physician, a physician assistant, a clinical 228 psychologist, a psychiatric nurse, an advanced practice 229 registered nurse registered under s. 464.0123, a mental health 230 counselor, a marriage and family therapist, or a clinical social 231 worker may execute a certificate stating that he or she has 232 examined a person within the preceding 48 hours and finds that 233 the person appears to meet the criteria for involuntary 234 examination and stating the observations upon which that 235 conclusion is based. If other less restrictive means, such as 236 voluntary appearance for outpatient evaluation, are not 237 available, a law enforcement officer shall take into custody the 238 person named in the certificate and deliver him or her to the 239 appropriate, or nearest, facility within the designated 240 receiving system pursuant to s. 394.462 for involuntary 241 examination. The law enforcement officer shall execute a written 242 report detailing the circumstances under which the person was 243 taken into custody. The report must include all emergency 244 contact information for the person that is readily accessible to 245 the law enforcement officer, including information available 246 through electronic databases maintained by the Department of Law 247 Enforcement or by the Department of Highway Safety and Motor 248 Vehicles. Such emergency contact information may be used by a 249 receiving facility only for the purpose of informing listed 250 emergency contacts of a patients whereabouts and shall 251 otherwise remain confidential and exempt pursuant to s. 252 119.0712(2)(d). The report and certificate shall be made a part 253 of the patients clinical record. Any facility accepting the 254 patient based on this certificate must send a copy of the 255 certificate to the department within 5 working days. The 256 document may be submitted electronically through existing data 257 systems, if applicable. 258 259 When sending the order, report, or certificate to the 260 department, a facility shall, at a minimum, provide information 261 about which action was taken regarding the patient under 262 paragraph (g), which information shall also be made a part of 263 the patients clinical record. 264 (e)The department shall receive and maintain the copies of 265 ex parte orders, involuntary outpatient services orders issued 266 pursuant to s. 394.4655, involuntary inpatient placement orders 267 issued pursuant to s. 394.467, professional certificates, and 268 law enforcement officers reports, and reports relating to the 269 transportation of patients. These documents shall be considered 270 part of the clinical record, governed by the provisions of s. 271 394.4615. These documents shall be used to prepare annual 272 reports analyzing the data obtained from these documents, 273 without information identifying patients, and shall provide 274 copies of reports to the department, the President of the 275 Senate, the Speaker of the House of Representatives, and the 276 minority leaders of the Senate and the House of Representatives. 277 (f)A patient shall be examined by a physician or a 278 clinical psychologist, or by a psychiatric nurse performing 279 within the framework of an established protocol with a 280 psychiatrist at a facility without unnecessary delay to 281 determine if the criteria for involuntary services are met. 282 Emergency treatment may be provided upon the order of a 283 physician if the physician determines that such treatment is 284 necessary for the safety of the patient or others. The patient 285 may not be released by the receiving facility or its contractor 286 without the documented approval of a psychiatrist or a clinical 287 psychologist or, if the receiving facility is owned or operated 288 by a hospital or health system, the release may also be approved 289 by a psychiatric nurse performing within the framework of an 290 established protocol with a psychiatrist, or an attending 291 emergency department physician with experience in the diagnosis 292 and treatment of mental illness after completion of an 293 involuntary examination pursuant to this subsection. A 294 psychiatric nurse may not approve the release of a patient if 295 the involuntary examination was initiated by a psychiatrist 296 unless the release is approved by the initiating psychiatrist. 297 The release may be approved through telehealth. 298 (g)The examination period must be for up to 72 hours. For 299 a minor, the examination shall be initiated within 12 hours 300 after the patients arrival at the facility. Within the 301 examination period or, if the examination period ends on a 302 weekend or holiday, no later than the next working day 303 thereafter, one of the following actions must be taken, based on 304 the individual needs of the patient: 305 1.The patient shall be released, unless he or she is 306 charged with a crime, in which case the patient shall be 307 returned to the custody of a law enforcement officer; 308 2.The patient shall be released, subject to subparagraph 309 1., for voluntary outpatient treatment; 310 3.The patient, unless he or she is charged with a crime, 311 shall be asked to give express and informed consent to placement 312 as a voluntary patient and, if such consent is given, the 313 patient shall be admitted as a voluntary patient; or 314 4.A petition for involuntary services shall be filed in 315 the circuit court if inpatient treatment is deemed necessary or 316 with the criminal county court, as defined in s. 394.4655(1), as 317 applicable. When inpatient treatment is deemed necessary, the 318 least restrictive treatment consistent with the optimum 319 improvement of the patients condition shall be made available. 320 When a petition is to be filed for involuntary outpatient 321 placement, it shall be filed by one of the petitioners specified 322 in s. 394.4655(4)(a). A petition for involuntary inpatient 323 placement shall be filed by the facility administrator. If a 324 patients 72-hour examination period ends on a weekend or 325 holiday, and the receiving facility: 326 a.Intends to file a petition for involuntary services, 327 such patient may be held at a receiving facility through the 328 next working day thereafter and such petition for involuntary 329 services must be filed no later than such date. If the receiving 330 facility fails to file a petition for involuntary services at 331 the close of the next working day, the patient shall be released 332 from the receiving facility. 333 b.Does not intend to file a petition for involuntary 334 services, a receiving facility may postpone release of a patient 335 until the next working day thereafter only if a qualified 336 professional documents that adequate discharge planning and 337 procedures in accordance with s. 394.468 are not possible until 338 the next working day. 339 (5)UNLAWFUL ACTIVITIES RELATING TO EXAMINATION AND 340 TREATMENT; PENALTIES. 341 (a)A person may not knowingly and willfully: 342 1.Furnish false information for the purpose of obtaining 343 emergency or other involuntary admission of another; 344 2.Cause or otherwise secure, or conspire with or assist 345 another to cause or secure, any emergency or other involuntary 346 procedure of another person under false pretenses; 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 first degree, punishable as provided in s. 352 775.082 and by a fine not exceeding $5,000. 353 Section 6.Section 394.468, Florida Statutes, is amended to 354 read: 355 394.468Admission and discharge procedures. 356 (1)Admission and discharge procedures and treatment 357 policies of the department are governed solely by this part. 358 Such procedures and policies shall not be subject to control by 359 court procedure rules. The matters within the purview of this 360 part are deemed to be substantive, not procedural. 361 (2)Discharge planning and procedures for any patients 362 release from a receiving facility or treatment facility must 363 include and document consideration of, at a minimum: 364 (a)Follow-up behavioral health appointments; 365 (b)Information on how to obtain prescribed medications; 366 and 367 (c)Information pertaining to: 368 1.Available living arrangements; 369 2.Transportation; and 370 3.Recovery support opportunities. 371 Section 7.Paragraph (c) of subsection (3) of section 372 394.9086, Florida Statutes, is amended, a new paragraph (d) is 373 added to that subsection, and subsection (5) of that section is 374 amended, to read: 375 394.9086Commission on Mental Health and Substance Abuse. 376 (3)MEMBERSHIP; TERM LIMITS; MEETINGS. 377 (c)The commission shall convene no later than September 1, 378 2021. The commission shall meet quarterly or upon the call of 379 the chair. The commission shall hold its meetings in person at 380 locations throughout the state via teleconference or other 381 electronic means. 382 (d)Members of the commission are entitled to receive 383 reimbursement for per diem and travel expenses pursuant to s. 384 112.061. 385 (5)REPORTS.By January 1, 2023 September 1, 2022, the 386 commission shall submit an interim report to the President of 387 the Senate, the Speaker of the House of Representatives, and the 388 Governor containing its findings and recommendations on how to 389 best provide and facilitate mental health and substance abuse 390 services in the state. The commission shall submit its final 391 report to the President of the Senate, the Speaker of the House 392 of Representatives, and the Governor by September 1, 2023. 393 Section 8.Subsection (5) is added to section 397.601, 394 Florida Statutes, to read: 395 397.601Voluntary admissions. 396 (5)A service provider must document that, within 24 hours 397 of admission, individuals admitted on a voluntary basis have 398 been provided with the option to authorize the release of 399 information from their clinical record to the individuals 400 health care surrogate or proxy, attorney, representative, or 401 other known emergency contact. 402 Section 9.Section 397.6772, Florida Statutes, is amended 403 to read: 404 397.6772Protective custody without consent. 405 (1)If a person in circumstances which justify protective 406 custody as described in s. 397.677 fails or refuses to consent 407 to assistance and a law enforcement officer has determined that 408 a hospital or a licensed detoxification or addictions receiving 409 facility is the most appropriate place for the person, the 410 officer may, after giving due consideration to the expressed 411 wishes of the person: 412 (a)Take the person to a hospital or to a licensed 413 detoxification or addictions receiving facility against the 414 persons will but without using unreasonable force. The officer 415 shall use the standard form developed by the department pursuant 416 to s. 397.321 to execute a written report detailing the 417 circumstances under which the person was taken into custody. The 418 report must include all emergency contact information for the 419 person that is readily accessible to the law enforcement 420 officer, including information available through electronic 421 databases maintained by the Department of Law Enforcement or by 422 the Department of Highway Safety and Motor Vehicles. Such 423 emergency contact information may be used by a hospital or 424 licensed detoxification or addictions receiving facility only 425 for the purpose of informing listed emergency contacts of a 426 patients whereabouts and shall otherwise remain confidential 427 and exempt pursuant to s. 119.0712(2)(d). The written report 428 shall be included in the patients clinical record; or 429 (b)In the case of an adult, detain the person for his or 430 her own protection in any municipal or county jail or other 431 appropriate detention facility. 432 433 Such detention is not to be considered an arrest for any 434 purpose, and no entry or other record may be made to indicate 435 that the person has been detained or charged with any crime. The 436 officer in charge of the detention facility must notify the 437 nearest appropriate licensed service provider within the first 8 438 hours after detention that the person has been detained. It is 439 the duty of the detention facility to arrange, as necessary, for 440 transportation of the person to an appropriate licensed service 441 provider with an available bed. Persons taken into protective 442 custody must be assessed by the attending physician within the 443 72-hour period and without unnecessary delay, to determine the 444 need for further services. 445 (2)The law enforcement officer must notify the nearest 446 relative of a minor in protective custody and must be notified 447 by the law enforcement officer, as must notify the nearest 448 relative or other known emergency contact of an adult, unless 449 the adult requests that there be no notification. The law 450 enforcement officer must document such notification, and any 451 attempts at notification, in the written report detailing the 452 circumstances under which the person was taken into custody as 453 required under paragraph (1)(a). 454 Section 10.Paragraph (b) of subsection (1) of section 455 409.972, Florida Statutes, is amended to read: 456 409.972Mandatory and voluntary enrollment. 457 (1)The following Medicaid-eligible persons are exempt from 458 mandatory managed care enrollment required by s. 409.965, and 459 may voluntarily choose to participate in the managed medical 460 assistance program: 461 (b)Medicaid recipients residing in residential commitment 462 facilities operated through the Department of Juvenile Justice 463 or a treatment facility as defined in s. 394.455(49) s. 464 394.455(48). 465 Section 11.Subsection (7) of section 744.2007, Florida 466 Statutes, is amended to read: 467 744.2007Powers and duties. 468 (7)A public guardian may not commit a ward to a treatment 469 facility, as defined in s. 394.455(49) s. 394.455(48), without 470 an involuntary placement proceeding as provided by law. 471 Section 12.This act shall take effect July 1, 2022.