The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Appropriations Subcommittee on Health and Human Services
BILL: CS/SB 1262
INTRODUCER: Children, Families, and Elder Affairs Committee and Senator Burgess
SUBJECT: Mental Health and Substance Abuse
DATE: February 15, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Delia Cox CF Fav/CS
2. Sneed Money AHS Pre-meeting
3. AP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1262 makes several changes to procedures surrounding voluntary and involuntary
examinations of individuals under the Baker and Marchman Acts. The bill prohibits restrictions
on visitors, phone calls, and written correspondence for Baker Act patients unless certain
qualified medical professionals document specific conditions are met. The bill requires law
enforcement officers to search certain electronic databases for emergency contact information of
Baker and Marchman Act patients being transported to a receiving facility.
Under the bill, patients subject to an involuntary Baker Act examination who do not meet the
criteria for a petition for involuntary services must be released at the end of 72 hours, regardless
of whether the examination period ends on a weekend or holiday, as long as certain discharge
criteria are met.
The bill makes it a first degree misdemeanor for a person to knowingly and willfully:
Furnish false information for the purpose of obtaining emergency or other involuntary
admission for any person;
Cause, or conspire with another to cause, any emergency or other involuntary mental health
procedure for the person under false pretenses; or,
Cause, or conspire with another to cause, any person to be denied their rights under the Baker
Act statutes.
REVISED: BILL: CS/SB 1262 Page 2
The bill requires receiving facilities to offer voluntary Baker and Marchman Act patients the
option to authorize the release of clinical information to certain individuals known to the patient
within 24 hours of admission.
The bill clarifies that telehealth may be used when discharging patients under an involuntary
Baker Act examination, and directs facilities receiving transportation reports detailing the
circumstances of a Baker Act to share such reports with the Department of Children and Families
(the DCF) for use in analyzing annual Baker Act data.
The bill also makes several changes to the Commission on Mental Health and Substance Abuse
(Commission), including:
Requiring the Commission to conduct meetings in person at locations throughout the state,
rather than holding meetings remotely and authorizing members to receive per diem and
reimbursement and travel expenses; and
Modifying the due date for the Commission’s interim report from September 1, 2022 to
January 1, 2023.
The bill is expected to have a negative fiscal impact on state government. See Section V. Fiscal
Impact Statement.
The bill takes effect July 1, 2022.
II. Present Situation:
Refer to Section III (Effect of Proposed Changes) for discussion of the relevant portions of
current law.
III. Effect of Proposed Changes:
The Baker Act
In 1971, the Legislature adopted the Florida Mental Health Act, known as the Baker Act.
1
The
Baker Act deals with Florida’s mental health commitment laws, and includes legal procedures
for mental health examination and treatment, including voluntary and involuntary examinations.
2
The Baker Act also protects the rights of all individuals examined or treated for mental illness in
Florida.
3
Involuntary Examination
Individuals suffering from an acute mental health crisis may require emergency treatment to
stabilize their condition. Emergency mental health examination and stabilization services may be
provided on a voluntary or involuntary basis.
4
An involuntary examination is required if there is
reason to believe that the person has a mental illness and because of his or her mental illness:
1
Ch. 71-131, LO.F.; The Baker Act is contained in ch. 394, F.S.
2
Sections 394.451-394.47891, F.S.
3
Section 394.459, F.S.
4
Sections 394.4625 and 394.463, F.S. BILL: CS/SB 1262 Page 3
The person has refused voluntary examination after conscientious explanation and disclosure
of the purpose of the examination or is unable to determine for himself or herself whether
examination is necessary; and
Without care or treatment, the person is likely to suffer from neglect or refuse to care for
himself or herself; such neglect or refusal poses a real and present threat of substantial harm
to his or her well-being; and it is not apparent that such harm may be avoided through the
help of willing family members or friends or the provision of other services; or
There is a substantial likelihood that without care or treatment the person will cause serious
bodily harm to himself or herself or others in the near future, as evidenced by recent
behavior.
5
The involuntary examination may be initiated by:
A court entering an ex parte order stating that a person appears to meet the criteria for
involuntary examination, based on sworn testimony;
6
A law enforcement officer taking a person who appears to meet the criteria for involuntary
examination into custody and delivering the person or having him or her delivered to a
receiving facility for examination;
7
or
A physician, clinical psychologist, psychiatric nurse, mental health counselor, marriage and
family therapist, or clinical social worker executing a certificate stating that he or she has
examined a person within the preceding 48 hours and finds that the person appears to meet
the criteria for involuntary examination, including a statement of the professional’s
observations supporting such conclusion.
8
A law enforcement officer who delivers an individual to a receiving facility must execute a
written report detailing the circumstances under which the person was taken into custody, and
the report must be made a part of the patient’s clinical record.
9
Any facility accepting the patient
based on this certificate must send a copy of the certificate to the DCF within 5 working days.
10
The same reporting requirements apply in instances where a law enforcement officer delivers a
person to a receiving facility pursuant to a certificate executed by a health care professional.
11
Involuntary patients must be taken to either a public or private facility which has been designated
by the DCF as a Baker Act receiving facility. The purpose of receiving facilities is to receive and
hold, or refer, as appropriate, involuntary patients under emergency conditions for psychiatric
evaluation and to provide short-term treatment or transportation to the appropriate service
provider.
12
The patient must be examined by the receiving facility within 72 hours of the initiation of the
involuntary examination. The examination may be performed by:
5
Section 394.463(1), F.S.
6
Section 394.463(2)(a)1., F.S. Additionally, the order of the court must be made a part of the patient’s clinical record.
7
Section 394.463(2)(a)2., F.S.
8
Section 394.463(2)(a)3., F.S.
9
Section 394.463(2)(a)2., F.S.
10
Id.
11
Section 394.463(2)(a)3., F.S.
12
Section 394.455(40), F.S. BILL: CS/SB 1262 Page 4
A physician;
13
A clinical psychologist;
14
or
A psychiatric nurse
15
performing within the framework of an established protocol with a
psychiatrist at a facility.
16
The patient may not be released by the receiving facility without the documented approval of one
of the following:
A psychiatrist;
A clinical psychologist; or
If the receiving facility is owned or operated by a hospital or health system:
o A psychiatric nurse performing within the framework of an established protocol with a
psychiatrist;
17
or
o An attending emergency department physician with experience in the diagnosis and
treatment of mental illness after completion of an involuntary examination.
18
By the end of the 72 hour period, or if the period ends on a weekend or holiday, no later than the
next working day, one of the following actions must be taken to address the individual needs of
the patient:
The patient must be released, unless he or she is charged with a crime, in which case the
patient is to be returned to the custody of a law enforcement officer;
The patient must be released for voluntary outpatient treatment;
The patient, unless he or she is charged with a crime, must be asked to give express and
informed consent to placement as a voluntary patient and, if such consent is given, the patient
must be admitted as a voluntary patient; or
A petition for involuntary services must be filed in the circuit court if inpatient treatment is
deemed necessary or with the criminal county court, as applicable. When inpatient treatment
is deemed necessary, the least restrictive treatment consistent with the optimum improvement
of the patient’s condition must be made available. A petition for involuntary inpatient
placement must be filed by the facility administrator.
19
Receiving facilities must also ensure that a patient’s discharge plan considers all of the following
prior to the patient’s release:
13
“Physician” means a medical practitioner licensed under ch. 458, F.S., or ch. 459, F.S., who has experience in the diagnosis
and treatment of mental illness or a physician employed by a facility operated by the United States Department of Veterans
Affairs or the United States Department of Defense. Section 394.455(33), F.S.
14
“Clinical psychologist” means a psychologist as defined in s. 490.003(7), F.S., with 3 years of postdoctoral experience in
the practice of clinical psychology, inclusive of the experience required for licensure, or a psychologist employed by a
facility operated by the United States Department of Veterans Affairs that qualifies as a receiving or treatment facility.
Section 394.455(5), F.S.
15
“Psychiatric nurse” means an advanced practice registered nurse licensed under s. 464.012, F.S., who has a master’s or
doctoral degree in psychiatric nursing, holds a national advanced practice certification as a psychiatric mental health
advanced practice nurse, and has 2 years of post-master’s clinical experience under the supervision of a physician. Section
394.455(36), F.S.
16
Section 394.463(2)(f), F.S.
17
A psychiatric nurse may not approve the release of a patient if the involuntary examination was initiated by a psychiatrist
unless the release is approved by the initiating psychiatrist. Section 394.463(2)(f), F.S.
18
Section 394.463(2)(f), F.S.
19
Section 394.463(2)(g), F.S. BILL: CS/SB 1262 Page 5
The patient’s transportation resources;
The patient’s access to stable living arrangements;
How assistance in securing needed living arrangements or shelter will be provided to patients
at risk of readmission within the 3 weeks immediately following discharge due to
homelessness or transient status. The discharging facility must document that, before
discharging the patient, it has requested a commitment from a shelter provider that assistance
will be rendered;
The availability of assistance in obtaining a timely aftercare appointment for needed services,
including continuation of prescribed psychotropic medications. Aftercare appointments for
psychotropic medication and case management must be requested to occur not later than 7
days after the expected date of discharge; if the discharge is delayed, the discharging facility
must document notification of the delay to the aftercare provider. The discharging facility
shall coordinate with the aftercare service provider and document the aftercare planning;
The availability of, and access to, prescribed psychotropic medications in the community. To
ensure a patient’s safety and provision of continuity of essential psychotropic medications,
such prescribed psychotropic medications, prescriptions, multiple partial prescriptions for
psychotropic medications, or a combination thereof, must be provided to the patient upon
discharge to cover the intervening days until the first scheduled psychotropic medication
aftercare appointment, up to a maximum of 21 calendar days;
The provision of education and written information about the patient’s illness and
psychotropic medications, including other prescribed and over-the-counter medications; the
common side-effects of any medications prescribed; and any common adverse clinically
significant drug-to-drug interactions between that medication and other commonly available
prescribed and over-the-counter medications;
The provision of contact and program information about, and referral to, any community-
based peer support services in the community;
The provision of contact and program information about, and referral to, any needed
community resources;
Referral to substance abuse treatment programs, trauma or abuse recovery-focused programs,
or other self-help groups, if indicated by assessments; and
The provision of information about advance directives, including how to prepare and use
them.
20
Involuntary Inpatient Placement
A person may be placed in involuntary inpatient placement for treatment upon a finding of the
court by clear and convincing evidence that:
He or she is mentally ill and because of his or her mental illness:
o He or she has refused voluntary placement for treatment after sufficient and conscientious
explanation and disclosure of the purpose of placement or is unable to determine for
himself or herself whether placement is necessary; and
o He or she is manifestly incapable of surviving alone or with the help of willing and
responsible family or friends, including available alternative services; and
o Without treatment, is likely to suffer from neglect or refuse to care for himself or herself;
and
20
Rule 65E-5.1303, F.A.C. BILL: CS/SB 1262 Page 6
o Such neglect or refusal poses a real and present threat of substantial harm to his or her
well-being; or
o There is a substantial likelihood that in the near future he or she will inflict serious bodily
harm on himself or herself or another person, as evidenced by recent behavior causing,
attempting, or threatening such harm; and
All available less restrictive treatment alternatives which would offer an opportunity for
improvement of his or her condition have been judged to be inappropriate.
21
The administrator of the receiving or treatment facility that is retaining a patient for involuntary
inpatient treatment must file a petition for involuntary inpatient placement in the court in the
county where the patient is located.
22
Upon filing, the clerk of the court must provide copies to
the DCF, the patient, the patient’s guardian or representative, and the state attorney and public
defender of the judicial circuit in which the patient is located.
23
The court must hold a hearing on
involuntary inpatient placement within 5 court working days, unless a continuance is granted.
24
The Marchman Act
In the early 1970s, the federal government enacted laws creating formula grants for states to
develop continuums of care for individuals and families affected by substance abuse.
25
The laws
resulted in separate funding streams and requirements for alcoholism and drug abuse. In response
to the laws, the Florida Legislature enacted chs. 396 and 397, F.S., relating to alcohol and drug
abuse, respectively.
26
Each of these laws governed different aspects of addiction, and thus had
different rules promulgated by the state to fully implement the respective pieces of legislation.
27
However, because persons with substance abuse issues often do not restrict their misuse to one
substance or another, having two separate laws dealing with the prevention and treatment of
addiction was cumbersome and did not adequately address Florida’s substance abuse problem.
28
In 1993, legislation was adopted to combine ch. 396 and 397, F.S., into a single law, the Hal S.
Marchman Alcohol and Other Drug Services Act (Marchman Act).
29
The Marchman Act encourages individuals to seek services on a voluntary basis within the
existing financial and space capacities of a service provider. An individual who wishes to enter
treatment may apply to a service provider for voluntary admission.
30
Within the financial and
space capabilities of the service provider, the individual must be admitted to treatment when
sufficient evidence exists that he or she is impaired by substance abuse and his or her medical
and behavioral conditions are not beyond the safe management capabilities of the service
provider.
31
However, denial of addiction is a prevalent symptom of SUD, creating a barrier to
21
Section 394.467(1), F.S.
22
Section 394.467(2) and (3), F.S.
23
Section 394.467(3), F.S.
24
Section 394.467(5), F.S.
25
The DCF, Baker Act and Marchman Act Project Team Report for Fiscal Year 2016-2017, p. 4-5. (On file with the Senate
Children, Families, and Elder Affairs Committee).
26
Id.
27
Id.
28
Id.
29
Ch. 93-39, s. 2, L.O.F. (creating ch. 397, F.S., effective October 1, 1993).
30
Section 397.601(1), F.S
31
Section 397.601(2), F.S. BILL: CS/SB 1262 Page 7
timely intervention and effective treatment.
32
As a result, treatment typically must stem from a
third party providing the intervention needed for SUD treatment.
33
Involuntary Admissions
The Marchman Act establishes a variety of methods under which substance abuse assessment,
stabilization, and treatment can be obtained on an involuntary basis. There are five involuntary
admission procedures that can be broken down into two categories depending upon whether the
court is involved.
34
Three of the procedures do not involve the court, while two require direct
petitions to the circuit court. The same criteria for involuntary admission apply regardless of the
admission process used.
35
An individual meets the criteria for an involuntary admission under the Marchman Act when
there is good faith reason to believe the individual is substance abuse impaired and, because of
such impairment, has lost the power of self-control with respect to substance use, and either:
Is in need of substance abuse services and, by reason of substance abuse impairment, his or
her judgment has been so impaired that he or she is incapable of appreciating his or her need
for such services and of making a rational decision in that regard;
36
or
Without care or treatment:
o The person is likely to suffer from neglect or refuse to care for himself or herself;
o Such neglect or refusal poses a real and present threat of substantial harm to his or her
well-being; and
o It is not apparent that such harm may be avoided through the help of willing family
members or friends or the provision of other services; or
o There is substantial likelihood that the person:
Has inflicted, or threatened to or attempted to inflict physical harm on himself,
herself, or another; or
Is likely to inflict, physical harm on himself, herself, or another unless he or she is
admitted.
37
Non-Court Involved Involuntary Admissions
The three types of non-court procedures for involuntary admission for substance abuse treatment
under the Marchman Act include protective custody, emergency admission, and the alternative
involuntary assessment for minors.
Law enforcement officers use the protective custody procedure when an individual is substance-
impaired or intoxicated in public and such impairment is brought to the attention of the officer.
38
32
Darran Duchene and Patrick Lane, Fundamentals of the Marchman Act, Risk RX, Vol. 6 No. 2 (Apr. – Jun. 2006) State
University System of Florida Self-Insurance Programs, available at http://flbog.sip.ufl.edu/risk-rx-article/fundamentals-of-
the-marchman-act/ (last visited January 19, 2022) (hereinafter cited as “Fundamentals of the Marchman Act”).
33
Id.
34
Id.
35
Id.
36
Section 394.675(2)(a), F.S. However, mere refusal to receive services does not constitute evidence of lack of judgment
with respect to the person’s need for such services.
37
Section 397.675(2)(b), F.S.
38
Section 397.677, F.S. The individual can be a minor or adult under this process. BILL: CS/SB 1262 Page 8
The purpose of this procedure is to allow the person to be taken to a safe environment for
observation and assessment to determine the need for treatment. A law enforcement officer may
take the individual to their residence, a hospital, a detoxification center, or an addiction receiving
facility, whichever the officer determines is most appropriate.
39
The officer is also required to
execute a written report
40
detailing the circumstances under which the individual was taken into
custody.
41
The current version of the form developed and disseminated by the DCF must also
include information on transportation, family members or others present when the individual was
taken into custody, and next of kin or other contact information, if known.
42
If the individual in these circumstances does not consent to protective custody, the officer may
do so against the person’s will, without using unreasonable force. Additionally, the officer has
the option of taking an individual to a jail or detention facility for his or her own protection. Such
detention cannot be considered an arrest for any purpose and no record can be made to indicate
that the person has been detained or charged with any crime.
43
However, if the individual is a
minor, the law enforcement officer must notify the nearest relative of a minor in protective
custody without consent.
44
The second process, emergency admission, authorizes an individual who appears to meet the
criteria for involuntary admission to be admitted to a hospital, an addiction receiving facility, or
a detoxification facility for emergency assessment and stabilization, or to a less intensive
component of a licensed service provider for assessment only.
45
Individuals admitted for
involuntary assessment and stabilization under this provision must have a certificate from a
specified health professional
46
demonstrating the need for this type of placement and
recommending the least restrictive type of service that is appropriate to the needs of the
individual.
47
Lastly, the alternative involuntary assessment for minors provides a way for a parent, legal
guardian, or legal custodian to have a minor admitted to an addiction receiving facility to assess
the minor’s need for treatment by a qualified professional.
48
39
Section 397.6771, F.S. A person may be held in protective custody for no more than 72 hours, unless a petition for
involuntary assessment or treatment has been timely filed with the court within that timeframe to extend protective custody.
40
The DCF is required to develop the form pursuant to s. 397.321(19), F.S.
41
Section 397.6772(1)(a), F.S.
42
The current version of the form is available at
https://eds.myflfamilies.com/DCFFormsInternet/Search/OpenDCFForm.aspx?FormId=1061 (last visited January 19, 2022).
43
Section 397.6772(1), F.S.
44
Section 397.6772(2), F.S.
45
Section 397.679, F.S.
46
Section 397.6793(1), F.S., provides a list of professionals that include a physician, a clinical psychologist, a physician
assistant working under the scope of practice of the supervising physician, a psychiatric nurse, an advanced practice
registered nurse, a mental health counselor, a marriage and family therapist, a master’s-level-certified addictions professional
for substance abuse services, or a clinical social worker.
47
Section 397.6793, F.S. The certificate can be from a physician, advanced practice registered nurse, a psychiatric nurse, a
clinical psychologist, a clinical social worker, a marriage and family therapist, a mental health counselor, or a physician
assistant working under the scope of a practice of the supervising physician, or a master’s-level-certified addictions
professional for substance abuse services.
48
Section 397.6798, F.S. BILL: CS/SB 1262 Page 9
Telehealth (Sections 1 and 5)
Section 456.47, F.S., defines the term “telehealth” as the use of synchronous or asynchronous
telecommunications technology by a telehealth provider to provide health care services,
including, but not limited to, assessment, diagnosis, consultation, treatment, and monitoring of a
patient; transfer of medical data; patient and professional health-related education; public health
services; and health administration. The term does not include audio-only telephone calls, e-mail
messages, or facsimile transmissions.
“Synchronous” telehealth refers to the live, real-time, or interactive transmission of information
between a patient and a health care provider during the same time period. The use of live video
to evaluate and diagnosis a patient would be considered synchronous telehealth.
“Asynchronous” telehealth refers to the transfer of data between a patient and a health care
provider over a period of time and typically in separate time frames. This is commonly referred
to as “store-and-forward.”
“Remote patient monitoring” refers to the collection, transmission, evaluation, and
communication of individual health data to a health care provider from the patient’s location
through technology such as wireless devices, wearable sensors, implanted health monitors,
smartphones, and mobile apps.
49
Remote monitoring is used to monitor physiologic parameters,
including weight, blood pressure, blood glucose, pulse, temperature, oximetry, respiratory flow
rate, and more. Remote monitoring can be useful for ongoing condition monitoring and chronic
disease management. Depending upon the patient’s needs, remote monitoring can be
synchronous or asynchronous.
Florida Telehealth Providers
In 2019, the Legislature passed and the Governor approved CS/CS/HB 23, creating s. 456.47,
F.S., which became effective on July 1, 2019.
50
It authorized Florida-licensed health care
providers
51
to use telehealth to deliver health care services within their respective scopes of
practice.
Telehealth providers who treat patients located in Florida must be one of the licensed health care
practitioners listed below and be either Florida-licensed, licensed under a multi-state health care
licensure compact of which Florida is a member state, or registered as an out-of-state telehealth
provider:
Behavioral Analyst;
52
Acupuncturist;
53
Allopathic physician;
54
49
American Board of Telehealth, Telehealth: Defining 21
st
Century Care, available at
https://www.americantelemed.org/resource/why-telemedicine/ (last visited January 19, 2022).
50
Chapter 2019-137, s. 6, L.O.F.
51
Section 456.47(1)(b), F.S.
52
Section 393.17, F.S.
53
Chapter 457, F.S.
54
Chapter 458, F.S. BILL: CS/SB 1262 Page 10
Osteopathic physician;
55
Chiropractor;
56
Podiatrist;
57
Optometrist;
58
Nurse;
59
Pharmacist;
60
Dentist;
61
Dental Hygienist;
62
Midwife;
63
Speech Therapist;
64
Occupational Therapist;
65
Radiology Technician;
66
Electrologist;
67
Orthotist;
68
Pedorthist;
69
Prosthetist;
70
Medical Physicist;
71
Emergency Medical Technician;
72
Paramedic;
73
Massage Therapist;
74
Optician;
75
Hearing Aid Specialist;
76
Clinical Laboratory Personnel;
77
Respiratory Therapist;
78
55
Chapter 459, F.S.
56
Chapter 460, F.S.
57
Chapter 461, F.S.
58
Chapter 463, F.S.
59
Chapter 464, F.S.
60
Chapter 465, F.S.
61
Chapter 466, F.S.
62
Id.
63
Chapter 467, F.S.
64
Chapter 468, F.S.
65
Id.
66
Id.
67
Chapter 458, F.S.
68
Chapter 468, F.S.
69
Id.
70
Id.
71
Chapter 483, F.S.
72
Chapter 401, F.S.
73
Id.
74
Chapter 480, F.S.
75
Chapter 484, F.S.
76
Id.
77
Chapter 483, F.S.
78
Chapter 468, F.S. BILL: CS/SB 1262 Page 11
Psychologist;
79
Psychotherapist;
80
Dietician/Nutritionist;
81
Athletic Trainer;
82
Clinical Social Worker;
83
Marriage and Family Therapist;
84
and
Mental Health Counselor.
85
Effect of the Bill
The bill provides a definition for “telehealth,” specifically that telehealth has the same meaning
as defined in s. 456.47, F.S. The bill permits receiving facilities holding patients for an
involuntary examination under the Baker Act to authorize the release of a patient via telehealth.
Under the bill, if a patient’s 72-hour examination period ends on a weekend or holiday, and the
receiving facility:
Intends to file a petition for involuntary services, the patient may be held at a receiving
facility through the next working day thereafter and the petition for involuntary services must
be filed no later than that date. If the receiving facility fails to file a petition at the close of
the next working day, the patient must be released from the receiving facility.
Does not intend to file a petition for involuntary services, a receiving facility may postpone
release of a patient until the next working day thereafter only if a qualified professional
documents that adequate discharge planning and procedures in accordance with s. 394.468,
F.S.,
86
are not possible until the next working day.
Specifically, receiving facilities must include, and document consideration of the following
newly established discharge planning and procedure requirements delineated in s. 394.468, F.S.:
Follow-up behavioral health appointments;
Information on how to obtain prescribed medications; and
Information pertaining to:
o Available living arrangements;
o Transportation; and
o Recovery support opportunities.
The bill applies these requirements to all patients discharged from a receiving or treatment
facility.
79
Chapter 490, F.S.
80
Chapter 491, F.S.
81
Chapter 468, F.S.
82
Chapter 468, F.S.
83
Chapter 491, F.S.
84
Id.
85
Id.
86
Section 394.468, F.S., currently provides that admission and discharge and treatment policies of the DCF are governed
solely by ch. 394, F.S., and are not subject to control by court procedure rules. The matters within the purview of this part are
deemed to be substantive, not procedural. BILL: CS/SB 1262 Page 12
These changes will help to ensure patients are not held by a facility for longer than necessary,
while maintaining sound and proper discharge considerations.
Notice Requirements (Sections 3 through 7)
Receiving facilities must give prompt notice
87
of the whereabouts of a patient who is being
involuntarily held for examination to the patient’s guardian,
88
guardian advocate,
89
health care
surrogate or proxy, attorney, and representative.
90
If the patient is a minor, the receiving facility
must give prompt notice to the minor’s parent, guardian, caregiver, or guardian advocate. Notice
for an adult may be provided within 24 hours of arrival; however, notice for a minor must be
provided immediately after the minor’s arrival at the facility.
91
The facility may delay the
notification for a minor for up to 24 hours if it has submitted a report to the central abuse hotline.
The receiving facility must attempt to notify the minor’s parent, guardian, caregiver, or guardian
advocate until it receives confirmation that the notice has been received. Attempts must be
repeated at least once every hour during the first 12 hours after the minor’s arrival and then once
every 24 hours thereafter until confirmation is received, the minor is released, or a petition for
involuntary services is filed with the court.
92
Emergency Contact Information and Florida Databases
On December 7, 2005, Tiffiany Marie Olson was killed in a traffic crash on U.S. 19 in Manatee
County.
93
Following her mother not being notified of her death for several hours, her mother was
instrumental in getting emergency contact information (ECI) added to a person’s driver license
or identification card record.
94
The Florida Department of Highway Safety and Motor Vehicles
(the FLHSMV) launched the program on October 2, 2006, and it has since been adopted by 15
other states.
95
ECI allows law enforcement to contact designated individuals in the event of an emergency.
96
The system is securely maintained by the FLHSMV and can be accessed by law enforcement
only in an emergency situation.
97
Floridians with a valid driver’s license or ID card may enter up
87
Notice may be provided in person or by telephone; however, in the case of a minor, notice may also be provided by other
electronic means. Section 394.455(2), F.S.
88
“Guardian” means the natural guardian of a minor, or a person appointed by a court to act on behalf of a ward’s person if
the ward is a minor or has been adjudicated incapacitated. Section 394.455(17), F.S.
89
“Guardian advocate” means a person appointed by a court to make decisions regarding mental health treatment on behalf
of a patient who has been found incompetent to consent to treatment. Section 394.455(18), F.S.
90
Section 394.4599(2)(b), F.S.
91
Section 394.4599(2)(b)-(c), F.S.
92
Section 394.4599(c)2., F.S.
93
The Florida Highway Safety and Motor Vehicles (the FLHSMV), Emergency Contact Information History, available at
https://www.flhsmv.gov/driver-licenses-id-cards/emergency-contact-information-history/ (last visited January 19, 2022).
94
Id.
95
To Inform Families First, About TIFF, available at https://www.toinformfamiliesfirst.org/ (last visited January 19, 2022)
(hereinafter “About TIFF”).
96
The FLHSMV, ECI Brochure, available at https://flhsmv.gov/pdf/eci/eci_brochure.pdf (last visited January 19, 2022).
97
Id. BILL: CS/SB 1262 Page 13
to two emergency contacts.
98
Residents can register or update their ECI without cost at
flhsmv.gov/eci
99
or at local driver license offices statewide.
100
Driver and Vehicle Information Database (DAVID)
The DAVID system is the FLHSMV’s multifaceted database that provides accurate, concise, and
up-to-date driver and motor vehicle information to law enforcement, criminal justice officials,
and other state agencies.
101
To maintain the integrity of this information, the records are
regulated and can only be accessed and used by authorized personnel in accordance with state
and federal law.
102
The DAVID system also contains ECI for Florida drivers who have chosen to list emergency
contacts.
103
ECI available through DAVID may only be accessed by law enforcement and may
only be used in emergency situations.
104
Florida Crime Information Center (FCIC) System
The FCIC system is Florida’s central database for tracking various crime-related information.
The system is designed “to provide services, information, and capabilities to the law enforcement
and criminal justice community” in the state, and gives them access to other criminal justice
information systems nationwide.
105
All employees that access the FCIC must be certified by the
Florida Department of Law Enforcement, and all information obtained through the system is
restricted to criminal justice purposes.
106
Law enforcement can also use FCIC to access information pertaining to a driver’s specific
license, providing an officer with information including a driver’s name, date of birth, residential
address and licensure status. If a driver has chosen to add ECI, it will also be provided to an
officer along with the rest of the driver-specific information at the bottom of the screen when he
or she queries the FCIC database.
107
98
Id.
99
The FLHSMV, Emergency Contact Information History, available at https://www.flhsmv.gov/driver-licenses-id-
cards/emergency-contact-information-history/ (last visited February 9, 2022).
100
Id.
101
The FLHSMV Office of Inspector General, DAVID Audits, p. 1, available at
https://www.flhsmv.gov/pdf/igoffice/20171823.pdf (last visited January 19, 2022).
102
Id., s. 119.0712(2)(d), F.S.
103
About TIFF.
104
The Fort Lauderdale Police Department, Access to Criminal Justice Information, p. 4, available at
https://www.flpd.org/home/showpublisheddocument/4061/637662691735570000 (last visited January 19, 2022).
105
Florida Highway Patrol Policy Manual, Criminal Justice Information Services: Policy 14.02.04C. (Rev. Mar. 2015),
available at https://www.flhsmv.gov/fhp/Manuals/1402.pdf (last visited Nov. 21, 2017).
106
Id. at Policy 14.02.07C. and D.
107
News 6 Orlando, Do Florida Drivers Need to Set Up Emergency Contact Information?, available at
https://www.clickorlando.com/news/local/2022/01/17/do-florida-drivers-need-to-set-up-emergency-contact-information/ (last
visited January 19, 2022). BILL: CS/SB 1262 Page 14
Effect of the Bill
Involuntary Admissions
Baker Act
The bill adds emergency contacts, identified by law enforcement through the DAVID or FCIC
electronic databases, to the list of individuals a receiving facility may contact when a patient is
brought to a receiving facility for an involuntary examination under the Baker Act.
Under the bill, an officer who delivers a patient to a receiving facility must include all ECI
discoverable through FCIC, DAVID, or other electronic databases maintained by the FDLE or
the FLHSMV in the report detailing the circumstances under which the person was taken into
custody. Such information must be included in reports following instances where a law
enforcement officer:
Determines an individual meets the criteria for involuntary examination and delivers the
individual to a receiving facility;
Delivers an individual to a receiving facility pursuant to a certificate executed by a health
care professional under s. 394.463(2)(a)3., F.S.; or
Determines that a hospital or addictions receiving facility is the most appropriate place for a
person who:
o Is in protective custody; or
o Refuses to consent to assistance.
Such information may not be used for any purpose other than informing emergency contacts of a
patient’s whereabouts, and shall otherwise remain confidential and exempt from Florida’s public
records disclosure requirements.
Marchman Act
When a law enforcement officer delivers a person to a hospital or addictions receiving facility
under the Marchman Act, the bill requires the officer to attempt to notify the nearest relative or
emergency contact of the person and document such notification, and attempts at notification, in
the report.
Voluntary Admissions
The bill requires receiving facilities and substance abuse service providers serving Baker Act and
Marchman Act patients, respectively, to document that individuals admitted on a voluntary basis
have been provided with the option to authorize the release of clinical information, within 24
hours of admission, to the individual’s:
Health care surrogate or proxy;
Attorney;
Representative; or
Other known emergency contact.
The release authorization will help to ensure patients admitted on a voluntary basis will have the
option of sharing important information regarding health care decisions with the individuals
specified above. BILL: CS/SB 1262 Page 15
Individual Bill of Rights (Sections 2 and 5)
Both the Marchman Act and the Baker Act provide an individual bill of rights.
108
Rights in
common include the right to:
Dignity;
Quality of treatment;
Not be refused treatment at a state-funded facility due to an inability to pay;
Communicate with others;
Care and custody of personal effects; and
Petition the court on a writ of habeas corpus.
109
The individual bill of rights also imposes liability for damages on persons who violate individual
rights.
110
The Marchman Act ensures the right to habeas corpus, which means that a petition for
release may be filed with the court by an individual involuntarily retained or his or her parent or
representative.
111
In addition to the petitioners authorized in the Marchman Act, the Baker Act
permits the DCF to file a writ for habeas corpus on behalf of the individual.
112
The Marchman Act also makes it a first degree misdemeanor
113
for a person to:
Knowingly furnishing false information for the purpose of obtaining emergency or other
involuntary admission for any person;
Causing or otherwise securing, or conspiring with or assisting another to cause or secure,
without reason for believing a person to be impaired, any emergency or other involuntary
procedure for the person; or
Causing, or conspiring with or assisting another to cause, the denial to any person of any
right accorded under the Marchman Act.
114
The Baker Act currently does not contain similar criminal penalties for activities that infringe
upon patients’ rights.
Right to Outside Communication and Visitation
All patients held at a receiving facility have the explicit right to communicate freely and
privately with others outside the facility unless it is determined that communication will likely
harm the patient or others.
115
Similar conditions apply to the right of patients to send, receive,
and mail correspondence, and to access outside visitors.
116
Facilities must review restrictions on
108
Section 394.459, F.S., provides “Rights of Individuals” for individuals served through the Baker Act; section 397.501,
F.S., provides “Rights of Individuals” for individuals served through the Marchman Act.
109
Id.
110
Sections 394.459(10) and 397.501(10)(a), F.S.
111
Section 397.501(9), F.S.
112
Section 394.459(8)(a), F.S.
113
A first degree misdemeanor is punishable by a term of imprisonment not exceeding one year and a fine of $1,000.
Sections 775.082 and 775.083, F.S. However, s. 397.581, F.S., specifically provides that this offense is punishable by a fine
of up to $5,000.
114
Section 397.581, F.S.
115
Section 394.459(5)(a), F.S.
116
Section 394.459(5)(b)-(c), F.S. BILL: CS/SB 1262 Page 16
a patient’s right to communicate, send or receive sealed, unopened correspondence, or receive
visitors at least once every 7 days.
117
Effect of the Bill
Patient Access and Communication
The bill prohibits receiving facilities from restricting any of the following patients’ rights unless
a qualified professional determines that failing to do so would be detrimental to the clinical well-
being of any patient or the general well-being of staff, including:
The right to communicate freely and privately with persons outside of the receiving facility;
The right to receive, send, and mail sealed, unopened correspondence; and
The right to access to any patient, subject to the patient’s right to deny or withdraw consent at
any time, by the patient’s family, guardian, guardian advocate, representative, Florida
statewide or local advocacy council, or attorney.
A “qualified professional” is defined in s. 394.455(39), F.S., to mean:
A physician licensed under ch. 458, F.S.;
A physician assistant licensed under ch. 459, F.S.;
A psychiatrist licensed under ch. 458, F.S., or ch. 459, F.S.;
A psychologist as defined in s. 490.003(7), F.S.; or
A psychiatric nurse as defined in s. 394.455(36), F.S.
The bill also reduces the number of days within which a receiving facility must review
restrictions on a patient’s right to communicate or receive visitors from 7 days to 3 days. A
qualified professional must document such restrictions within 24 hours of the restriction being
implemented.
Criminal Penalty
The bill also makes it a first degree misdemeanor to knowingly and willfully:
Furnish false information for the purpose of obtaining emergency or other involuntary
admission for any person;
Cause, or conspire with another to cause, any involuntary mental health procedure for the
person without a reason for believing a person is impaired; or
Cause, or conspire with another to cause, any person to be denied their rights under the
mental health statutes.
The bill also provides that a person who is convicted of this offense may be punished by a fine
not exceeding $5,000.
Mental Health Data Reporting and Analysis (Section 5)
The DCF collects and maintains copies of ex parte orders, involuntary outpatient services orders,
involuntary inpatient placement orders, and professional certificates initiating Baker Act
117
Section 394.459(5)(c), F.S. BILL: CS/SB 1262 Page 17
examinations.
118
Such documents are considered part of a patient’s clinical record and are used
to prepare annual reports analyzing the de-identified data contained therein.
119
The DCF
contracts with the Louis de la Parte Florida Mental Health Institute at the University of South
Florida (the Institute) to perform the data analysis and prepare the reports.
120
The Institute also
analyzes other information relating to mental health and acts as a provider of crisis services to
certain patients.
121
The reports are provided to the DCF, the President of the Senate, the Speaker
of the House of Representatives, and the minority leaders of the Senate and the House of
Representatives.
122
Transportation to a Facility
Baker Act
The Baker Act requires each county to designate a single law enforcement agency to transfer the
person in need of services. If the person is in custody based on noncriminal or minor criminal
behavior, the law enforcement officer will transport the person to the nearest receiving facility.
If, however, the person is arrested for a felony the person must first be processed in the same
manner as any other criminal suspect. The law enforcement officer must then transport the
person to the nearest facility, unless the facility is unable to provide adequate security.
123
Law
enforcement must then relinquish the person, along with corresponding documentation, to a
responsible individual at the facility.
124
Marchman Act
The Marchman Act authorizes an applicant seeking to have a person admitted to a facility, the
person’s spouse or guardian, a law enforcement officer, or a health officer to transport the
individual for an emergency assessment and stabilization.
125
If a person in circumstances which justify protective custody
126
fails or refuses to consent to
assistance and a law enforcement officer has determined that a hospital or a licensed
detoxification or addictions receiving facility is the most appropriate place for the person, the
officer may, after giving due consideration to the expressed wishes of the person:
Take the person to a hospital or to a licensed detoxification or addictions receiving facility
against the person’s will but without using unreasonable force; or
118
Section 394.463(2)(e), F.S.
119
Id.
120
The University of South Florida, Baker Act Reporting Center, About Us, available at https://www.usf.edu/cbcs/baker-
act/about/index.aspx (last visited January 19, 2022).
121
See The University of South Florida, Baker Act Reporting Center, What We Do, available at
https://www.usf.edu/cbcs/baker-act/about/whatwedo.aspx (last visited Jan. 7, 2022); and The University of South Florida,
Louis de la Parte Florida Mental Health Institute, About the Institute, available at https://www.usf.edu/cbcs/fmhi/about/ (last
visited January 19, 2022).
122
Id.
123
Section 394.462(1)(f)-(g), F.S.
124
Section 394.462(3), F.S.
125
Section 397.6795, F.S.
126
Section 397.677, F.S., states that a law enforcement officer may implement protective custody measures when a minor or
an adult who appears to meet the involuntary admission criteria in s. 397.675, F.S., is brought to the attention of law
enforcement or in a public space. BILL: CS/SB 1262 Page 18
In the case of an adult, detain the person for his or her own protection in any municipal or
county jail or other appropriate detention facility.
127
The officer must use a standard form developed by the DCF to execute a written report detailing
the circumstances under which the person was taken into custody, and the written report shall be
included in the patient’s clinical record.
Effect of the Bill
The bill adds reports completed by law enforcement when a person is transported to a receiving
facility to the documents received and maintained by the DCF for use in preparing annual reports
on Baker Act data. The bill also makes such reports a part of a patient’s clinical record. The
transportation reports will allow the Baker Act Reporting Center to provide a more
comprehensive overview of Baker Act data statewide.
Commission on Mental Health and Substance Abuse
In 2021, the Legislature created the Commission on Mental Health and Substance Abuse
(Commission), adjunct to the DCF, in response to recommendations of the 20
th
Statewide Grand
Jury.
128
The DCF is required to provide administrative staff and support services for the
Commission.
129
The purposes of the Commission include:
Examining the current methods of providing mental health and substance abuse services in
the state;
Improving the effectiveness of current practices, procedures, programs, and initiatives in
providing such services;
Identifying any barriers or deficiencies in the delivery of such services; and
Recommending changes to existing laws, rules, and policies necessary to implement the
Commission’s recommendations.
130
The Commission is comprised of 19 members, including the Secretaries of AHCA and DCF.
131
Membership of the Commission also includes:
Seven members appointed by the Governor, including:
o A psychologist licensed under ch. 490, F.S., practicing within the mental health delivery
system;
o A mental health professional licensed under ch. 491, F.S.;
o A representative of mental health courts;
o An emergency room physician;
o A representative from the field of law enforcement;
o A representative from the criminal justice system; and
127
Section 397.6772(1)(a)-(b), F.S.
128
Chapter 2021-170, L.O.F.
129
Section 394.9086(1), F.S.
130
Section 394.9086(2), F.S.
131
Section 394.9086(3)(a), F.S. BILL: CS/SB 1262 Page 19
o A representative of a child welfare agency involved in the delivery of behavioral health
services.
Five members appointed by the President of the Senate, including:
o A member of the Senate;
o A person living with a mental health disorder;
o A family member of a consumer of publicly funded mental health services;
o A representative of the Louis de la Parte Mental Health Institute within the University of
South Florida; and
o A representative of a county school district.
Five members appointed by the Speaker of the House of Representatives, including:
o A member of the House of Representatives;
o A representative of a treatment facility;
o A representative of a managing entity;
o A representative of a community substance abuse provider; and
o A psychiatrist licensed under chs. 458 or 459, F.S., practicing within the mental health
delivery system.
132
The Governor appoints the Commission chair from among its members, and members serve at
the pleasure of the officer who appointed the member.
133
The Commission is required to hold its
meetings via teleconference or other electronic means.
134
A vacancy on the Commission is
required to be filled in the same manner as the original appointment.
135
The duties of the Commission include:
Conducting a review and evaluation of the management and functioning of existing publicly
supported mental health and substance abuse systems in the DCF, AHCA, and all other
relevant state departments;
o At a minimum, such review must include a review of current goals and objectives,
current planning, service strategies, coordination management, purchasing, contracting,
financing, local government funding responsibility, and accountability mechanisms.
Considering the unique needs of people who are dually diagnosed;
Addressing access to, financing of, and scope of responsibility in the delivery of emergency
behavioral health care services;
Addressing the quality and effectiveness of current service delivery systems and professional
staffing and clinical structure of services, roles, and responsibilities of public and private
providers;
Addressing priority population groups for publicly funded services, identifying the
comprehensive delivery systems, needs assessment and planning activities, and local
government responsibilities for funding services;
Reviewing the implementation of ch. 2020-107, Laws of Fla.;
136
132
Id.
133
Section 394.9086(3)(b), F.S.
134
Section 394.9086(3)(c), F.S.
135
Section 394.9086(3)(b), F.S.
136
HB 945 (2020) required managing entities to implement the features of a coordinated system of mental health care for
children and expands the use of mobile response teams (MRT) across the state. It required the Florida Mental Health Institute
within the University of South Florida to develop a model protocol for school use of MRTs. The bill also required the AHCA
and the DCF to identify children and adolescents who are the highest users of crisis stabilization services and take action to BILL: CS/SB 1262 Page 20
Identifying gaps in the provision of mental health and substance abuse services;
Providing recommendations on how managing entities may promote service continuity;
Making recommendations about the mission and objectives of state-supported mental health
and substance abuse services and the planning, management, staffing, financing, contracting,
coordination, and accountability of mechanisms best suited for the recommended mission
and objectives; and
Evaluating and making recommendations regarding the establishment of a permanent,
agency-level entity to manage mental health, behavioral health, substance abuse, and related
services statewide, including the:
o Duties and organizational structure;
o Resource needs and possible sources of funding;
o Impact on access to and the quality of services;
o Impact on individuals with behavioral health needs, and their families, who are currently
receiving services and those who are in need of services; and
o Relation to and integration with service providers, managing entities, communities, state
agencies, and provider systems.
137
The Commission is required to submit an initial report by September 1, 2022, and a final report
by September 1, 2023, to the Governor, President of the Senate, and Speaker of the House of
Representatives on its findings and recommendations on how to best provide and facilitate
mental health and substance abuse services.
138
Effect of the Bill
The bill amends s. 394.9086, F.S., making the following changes to the Commission, including:
Requiring the Commission to conduct meetings in person at locations throughout the state,
rather than holding meetings remotely;
Authorizing Commission members to receive per diem and reimbursement and travel
expenses; and
Changes the due date for the Commission’s interim report from September 1, 2022 to
January 1, 2023.
Cross-References
The bill amends ss. 409.972 and 744.2007, F.S., relating to mandatory and voluntary managed
care enrollment, and the powers and duties of public guardians, respectively, to conform cross-
references to changes made by the act.
meet the needs of such children. Lastly, the bill required the AHCA to continually test the Medicaid managed care provider
network databases to ensure behavioral health providers are accepting enrollees and confirm that enrollees have access to
behavioral health systems.
137
Section 394.9086(4)(a), F.S.
138
Section 394.9086(5), F.S. BILL: CS/SB 1262 Page 21
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not appear to require cities and counties to expend funds or limit their
authority to raise revenue or receive state-shared revenues as specified by Article VII,
Section 18 of the Florida Constitution.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The Department of Children and Families (DCF) contracts with the Baker Act Reporting
Center at the University of South Florida (USF) to collect and analyze Baker Act data.
The USF Baker Act Reporting Center is responsible for producing an Annual Baker Act
report on behalf of the DCF for submission to the Legislature. The DCF will need to
amend its contract with the Reporting Center to require collection and analysis of
transportation forms. The cost for DCF to contract with the Reporting Center is
anticipated to be $90,000 for the first year, and $75,000 for each subsequent year.
139
CS/SB 1262 also requires the Commission on Mental Health and Substance Abuse
(Commission) to conduct their meetings in person at locations throughout the state. The
139
The DCF, Agency Analysis for SB 1262, p. 5, February 11, 2022 (on file with the Senate Committee on Children,
Families, and Elder Affairs). BILL: CS/SB 1262 Page 22
bill entitles commission members to receive reimbursement for per diem and travel
expenses. The DCF estimates the cost of travel for the 18 Commission members to attend
monthly in-person meetings to be $104,220. The Commission is repealed on September
1, 2023.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 394.455, 394.459,
394.4599, 394.4615, 394.463, 394.468, 394.9086, 397.601, 397.6772, 409.972, and 744.2007.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Children, Families, and Elder Affairs on January 25, 2022:
The committee substitute:
Revises the conditions for restricting a patient’s access to telephonic communications,
mail correspondence, and in-person visitation to instances where the restriction is
necessary to ensure the clinical well-being of the patient, clinical well-being of
another patient, or general well-being of staff.
Requires that any restrictions on in-person visitation be reviewed every 3 days, rather
than every 4 days as currently provided for in the bill, and requires a qualified
professional to document any such restrictions within 24 hours of implementation.
Provides that, under both the Baker and Marchman Acts, emergency contact
information obtained through electronic databases used by law enforcement cannot be
used for purposes other than letting the contact know the whereabouts of the patient.
Clarifies that a receiving facility can hold a patient until the next working day after
the weekend or holiday if the intent is to file a petition for involuntary services, but
requires that the facility release the patient if such petition is not filed by the next
working day.
Provides that a person commits a first degree, rather than second degree misdemeanor
if he or she knowingly and willfully, rather than only knowingly commits any of the
acts listed in section 5 of the bill.
Makes the following changes to provisions related to discharge planning and
procedures:
o Moves the discharge planning requirements from s. 394.463, F.S. to s. 394.468,
F.S.; BILL: CS/SB 1262 Page 23
o Applies the requirements to all patients being discharged from a receiving or
treatment facility under ch. 394, F.S.; and
o Modifies the requirements such that receiving facilities must documents and
consider, at a minimum, follow-up behavioral health appointments and
information on how to obtain prescribed medications and pertaining to available
living arrangements, transportation, and recovery support opportunities.
Makes the following changes to the Commission on Mental Health and Substance
Abuse:
o Requires the Commission on Mental Health and Substance Abuse to conduct their
meetings in person at locations throughout the state. Currently, the Commission is
holding meetings remotely.
o Requires Commission members to be reimbursed for travel expenses.
o Moves the due date of the Commission’s interim report from September 1, 2022
to January 1, 2023.
Provides an effective date of July 1, 2022.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.