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 Committee on Fiscal Policy
BILL: CS/SB 1412
INTRODUCER: Children, Families, and Elder Affairs Committee; Senator Bradley and others
SUBJECT: Mental Health
DATE: April 24, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Delia Cox CF Fav/CS
2. Barr Money AHS Favorable
3. Delia Yeatman FP Pre-meeting
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1412 authorizes the Department of Children and Families (DCF) to issue conditional
designations for Baker Act receiving and treatment facilities as an alternative to the suspension
or withdrawal of a standard facility designation.
The bill also modifies ch. 916, F.S., regarding competency determination, treatment options, and
restoration:
Requires local sheriffs or the DCF to administer psychotropic medications to forensic clients
in jails if clinically indicated prior to their admission to forensic facilities if clinically
indicated;
Requires expert evaluators and courts to consider alternative, community-based treatment
options before ordering the placement of a defendant to a forensic facility;
Requires administrators of forensic facilities to provide notification to courts no more than 60
days, rather than six months as in current law, from the time a defendant is competent to
proceed or no longer meets commitment criteria;
Reduces the maximum amount of time patients may wait to be transported from a forensic
facility to the committing jurisdiction once they are competent to proceed or no longer meet
commitment criteria, from 30 days to 7 days;
Requires competency determinations to be made at a competency hearing within 30 days of
notification from forensic facilities that patients have gained competency or no longer meet
commitment criteria;
REVISED: BILL: CS/SB 1412 Page 2
Requires forensic facilities to transfer defendants back to the committing jurisdiction with up
to 30 days of medication and assist in discharge planning with medical teams at the receiving
county jail; and
Reenacts and makes conforming changes to several existing sections of statute.
The DCF anticipates the bill will have no fiscal impact on state government. See Section V. of
this analysis.
The bill takes effect on July 1, 2023.
II. Present Situation:
Receiving and Treatment Facilities
The Department of Children and Families (DCF) is authorized to designate and monitor
receiving facilities, treatment facilities, and receiving systems and may suspend or withdraw
such designations for failure to comply with Florida law.
1
A receiving facility is a public or
private facility that provides emergency screening, evaluation, and short-term stabilization for
mental health or substance abuse disorders.
2
A treatment facility is a state-owned, state-operated,
or state-supported hospital, center, or clinic providing extended treatment and hospitalization of
persons who have a mental illness.
3
Unless specifically designated by the DCF, facilities are not
permitted to hold or treat involuntary patients experiencing a mental health or substance use
disorder crisis.
4
There are currently 126 public and private designated receiving facilities in Florida.
5
The DCF is also statutorily authorized to adopt rules relating to a number of issues surrounding
receiving and treatment facilities, including:
Procedures and criteria for receiving and evaluating facility applications for designation,
which may include onsite facility inspection and evaluation of an applicant’s licensing status
and performance history, as well as consideration of local service needs;
Minimum standards that a facility must meet and maintain in order to be designated as a
receiving or treatment facility and procedures for monitoring continued adherence to such
standards;
Procedures and criteria for designating receiving systems which may include consideration of
the adequacy of services provided by facilities within the receiving system to meet the needs
of the geographic area using available resources;
Procedures for receiving complaints against a designated facility or designated receiving
system and for initiating inspections and investigations of facilities or receiving systems
alleged to have violated regulatory laws or rules; and
1
Section 394.461, F.S.
2
Section 394.455(13), F.S.
3
Section 394.455(49), F.S.
4
Section 394.461, F.S.
5
The Department of Children and Families, SB 1412 Bill Analysis, March 10, 2023, at p. 2. (on file with the Senate
Appropriations Committee on Health and Human Services) (hereinafter cited as, “The DCF Analysis”).
BILL: CS/SB 1412 Page 3
Procedures and criteria for the suspension or withdrawal of designation as a receiving facility
or receiving system.
6
The DCF does not have a licensing mechanism to allow facilities that have outstanding
inspection findings or are the subject of an investigation to temporarily operate while under a
corrective action plan. Current law only provides the DCF with the authority to suspend or
withdraw designations. In circumstances where a provider is the only available public receiving
facility in a geographic area, suspending or withdrawing the designation would result in reducing
access to crisis care services.
7
Competency Restoration Treatment and Forensic Facilities
Chapter 916, F.S., governs the state forensic system, which is a network of state facilities and
community services for persons who are involved with the criminal justice system and who have
mental health issues, an intellectual disability, or autism. Offenders who are charged with a
felony and adjudicated incompetent to proceed
8
and offenders who are adjudicated not guilty by
reason of insanity may be involuntarily committed to state civil and forensic treatment facilities
by the circuit court,
9
or in lieu of such commitment, may be released on conditional release
10
by
the circuit court if the person is not serving a prison sentence.
11
The committing court retains
jurisdiction over the defendant while the defendant is under involuntary commitment or
conditional release, and a defendant may not be released from either commitment or conditional
release except by order of the committing court.
12
Sections 916.13 and 916.15, F.S., set forth the criteria under which a court may involuntarily
commit a defendant charged with a felony who has been adjudicated incompetent to proceed or
who has been found not guilty by reason of insanity. Florida law provides for the ability to
commit a person under either basis; however, the goals for the commitment are different for each
basis of the commitment. Persons committed under s. 916.13, F.S., after an adjudication of
incompetency to proceed have a primary goal of restoration of competency; whereas persons
who have been found not guilty by reason of insanity who are committed have a primary goal of
stabilization and post-hospital planning.
A civil facility is, in part, a mental health facility established within the DCF, or by contract with
the DCF, to serve individuals committed pursuant to ch. 394, F.S., and defendants pursuant to ch.
916, F.S., who do not require the security provided in a forensic facility.
13
A forensic facility is a separate and secure facility established within the DCF or the Agency for
Persons with Disabilities (APD) to serve forensic clients committed pursuant to ch. 916, F.S. A
6
Section 394.461(6), F.S.
7
The DCF Analysis at p. 2.
8
“Incompetent to proceed” means “the defendant does not have sufficient present ability to consult with her or his lawyer
with a reasonable degree of rational understanding” or “the defendant has no rational, as well as factual, understanding of the
proceedings against her or him.” Section 916.12(1), F.S.
9
Sections 916.13, 916.15, and 916.302, F.S.
10
Conditional release is release into the community accompanied by outpatient care and treatment. Section 916.17, F.S.
11
Section 916.17(1), F.S.
12
Section 916.16(1), F.S.
13
Section 916.106(4), F.S. BILL: CS/SB 1412 Page 4
separate and secure facility means a security-grade building for the purposes of separately
housing individuals with mental illness from persons who have intellectual disabilities or autism
and separately housing persons who have been involuntarily committed from non-forensic
residents.
14
Determination of Incompetency
If a defendant is suspected of being incompetent, the court, counsel for the defendant, or the state
may file a motion for examination to have the defendant’s cognitive state assessed.
15
If the
motion is well-founded, the court will appoint experts to evaluate the defendant’s cognitive state.
The defendant’s competency is then determined by the judge in a subsequent hearing.
16
If the
defendant is found to be competent, the criminal proceeding resumes.
17
If the defendant is found
to be incompetent to proceed, the proceeding may not resume unless competency is restored.
18
Judicial Determination of Incompetency, Expert Evaluations, and Commitment
A defendant is deemed incompetent to proceed if the defendant does not have sufficient present
ability to consult with her or his lawyer with a reasonable degree of rational understanding or if
the defendant has no rational, as well as factual, understanding of the proceedings against her or
him.
19
A defendant who, because of psychotropic medication,
20
is able to understand the nature
of proceedings and assist in the defendant’s own defense must not automatically be deemed
incompetent to proceed simply because the defendant’s satisfactory mental functioning is
dependent upon such medication.
21
Section 916.115, F.S., requires courts to appoint no more than three expert evaluators to
determine the mental condition of a defendant in a criminal case, including competency to
proceed, insanity, involuntary placement, and treatment.
22
Mental health experts must first
determine whether the defendant has a mental illness and, if so, consider the factors related to the
issue of whether the defendant meets the criteria for competence to proceed.
23
A defendant must
be evaluated by no fewer than two experts before the court commits the defendant or takes other
action, except if one expert finds that the defendant is incompetent to proceed and the parties
stipulate to that finding. The court may commit the defendant or take other action without further
evaluation or hearing, or the court may appoint no more than two additional experts to evaluate
the defendant.
24
Notwithstanding any stipulation by the state and the defendant, the court may
14
Section 916.106(10), F.S.
15
Rule 3.210, Fla.R.Crim.P.
16
Id.
17
Rule 3.212, Fla.R.Crim.P.
18
Id.
19
Section 916.12(1), F.S.
20
“Psychotropic medication” is defined to mean any drug or compound used to treat mental or emotional disorders affecting
the mind, behavior, intellectual functions, perception, moods, or emotions and includes antipsychotic, antidepressant,
antimanic, and antianxiety drugs. Section 916.12(5), F.S.
21
Section 916.12(5), F.S.
22
Section 916.115(1), F.S.
23
Section 916.12(2), F.S.
24
Id. BILL: CS/SB 1412 Page 5
require a hearing with testimony from the expert or experts before ordering the commitment of a
defendant.
25
In considering the issue of competence to proceed, an examining expert must first consider and
specifically include in his or her report the defendant’s capacity to:
Appreciate the charges or allegations against the defendant;
Appreciate the range and nature of possible penalties, if applicable, that may be imposed in
the proceedings against the defendant;
Understand the adversarial nature of the legal process;
Disclose to counsel facts pertinent to the proceedings at issue;
Manifest appropriate courtroom behavior; and
Testify relevantly.
26
In addition, an examining expert must consider and include in his or her report any other factor
deemed relevant by the expert.
27
If an expert finds that the defendant is incompetent to proceed, the expert must report on any
recommended treatment for the defendant to attain competence to proceed.
28
In considering the
issues relating to treatment, the examining expert must specifically report on:
The mental illness causing the incompetence;
The treatment or treatments appropriate for the mental illness of the defendant and an
explanation of each of the possible treatment alternatives in order of choices;
The availability of acceptable treatment and, if treatment is available in the community, the
expert shall so state in the report;
The likelihood of the defendant’s attaining competence under the treatment recommended;
An assessment of the probable duration of the treatment required to restore competence; and
The probability that the defendant will attain competence to proceed in the foreseeable
future.
29
The statute does not specify the alternative community-based treatment options that should be
considered. For Fiscal Year 2022-2023, the DCF reports that it is funding 299 community-based
beds for defendants with lesser felony offenses, low symptom acuity, and those who require
limited resources. Of those beds, 278 are currently filled.
In addition, the DCF reports that it is
increasing the number of community-based diversion options to meet anticipated future
demand.
30
When expert evaluators determine that a person does not meet the established criteria to proceed
to trial, and alternative options are not appropriate, a court may commit the defendant to a secure
setting to receive intensive behavioral health services, with the goal of competency restoration.
31
25
Id.
26
Section 916.12(3), F.S.
27
Id.
28
Section 916.12(4), F.S.
29
Id.
30
The DCF Analysis at p. 3
31
The DCF Analysis at p. 3. BILL: CS/SB 1412 Page 6
If a person is committed pursuant to either statute, the administrator at the commitment facility
must submit a report to the court:
No later than six months after a defendant’s admission date and at the end of any period of
extended commitment; or
At any time the administrator has determined that the defendant has regained competency or
no longer meets the criteria for involuntary commitment.
32
Judicial Procedure for Release and Transportation Back to Committing Jurisdiction
Current law also requires that a competency hearing must be held within 30 days after the court
receives notification that a defendant is competent to proceed or no longer meets the criteria for
continued commitment.
33
However, many defendants are not being transported back to the
committing jurisdiction in a timely manner.
34
While patients await transportation back to the
county with jurisdiction, they remain at a treatment facility.
35
On an average day, there are
between 80 and 100 competent individuals in treatment facilities awaiting transportation back to
the committing jurisdiction.
36
As a result, the waitlist for state mental health services is longer as
defendants awaiting transportation are left in state facilities and are occupying beds that could be
used by those awaiting treatment.
37
While s. 916.13, F.S., requires that a competency hearing be held within 30 days of receiving a
competency notification, there are instances in which courts do not make a determination of
competency during an initial hearing, resulting in a defendant remaining at a treatment facility
for longer than the maximum 30 days required by current law.
38
Additionally, in some instances
individuals that are transported back to the committing jurisdiction decompensate
39
before a
determination of competency can be made.
40
If the defendant is receiving psychotropic medication at a mental health facility at the time he or
she is discharged and transferred to the jail, the administering of such medication must continue
unless the jail physician documents the need to change or discontinue it.
41
The jail and
department physicians shall collaborate to ensure that medication changes do not adversely affect
the defendant’s mental health status or his or her ability to continue with court proceedings;
32
Sections 916.13(2)(b) and 916.15(3)(c), F.S. For involuntary commitment of a person under s. 916.15, F.S., the additional
report must be submitted prior to the end of any period of extended commitment, rather than “at the end” of the extended
commitment.
33
Sections 916.13(2)(c) and 916.15(5), F.S.
34
The DCF Analysis at p. 4.
35
Id.
36
Id.
37
Id.
38
Id.
39
Psychiatrists and psychologists use the term "decompensating" to describe worsening symptoms of mental illness. An
"episode of decompensation" is a period of significant, often rapid, deterioration in mental health, such as a panic attack. See
Episodes of Decompensation in Mental Illness: Social Security Disability, available at
https://www.disabilitysecrets.com/mic2.html (last visited March 14, 2023).
40
The DCF Analysis at p. 4.
41
Sections 916.13(2)(c) and 916.15(5), F.S. BILL: CS/SB 1412 Page 7
however, the final authority regarding the administering of medication to an inmate in jail rests
with the jail physician.
42
State Forensic System – Mental Health Treatment for Criminal Defendants
State Treatment Facilities
State treatment facilities are the most restrictive settings for forensic services. The forensic
facilities provide assessment, evaluation, and treatment to the individuals who have mental
health issues and who are involved with the criminal justice system.
Mental Health Treatment Facilities
The DCF runs three mental health treatment facilities: the Florida State Hospital (FSH), the
Northeast Florida State Hospital (NEFSH), and the North Florida Evaluation and Treatment
Center (NFETC).
43
The DCF also contracts with a private provider to operate three additional
facilities that provide competency restoration treatment and training. The facilities are the South
Florida Evaluation and Treatment Center, South Florida State Hospital, and Treasure Coast
Treatment Facility which are operated by Wellpath Recovery Solutions (Wellpath). The six
facilities have a combined total of 2,129 treatment beds.
44
As of March 15, 2023, there were a total of 330 individuals on the waitlist for forensic beds at
the state’s mental health facilities.
45
Individuals spend 59 days on the waitlist on average.
46
Rights of Forensic Clients
Section 916.107, F.S., establishes a number of rights for clients of the state’s forensic system.
Clients with mental illness, intellectual disability, or autism who are charged with committing
felonies must receive appropriate treatment or training.
47
In a criminal case involving a client
who has been adjudicated incompetent to proceed or not guilty by reason of insanity, a jail may
be used as an emergency facility for up to 15 days following the date the DCF or the APD
receives a completed copy of the court commitment order containing all documentation required
by the applicable Florida Rules of Criminal Procedure.
48
For a forensic client who is held in a jail awaiting admission to a facility of the DCF or the APD,
evaluation and treatment or training may be provided in the jail by the local community mental
health provider for mental health services, by the developmental disabilities program for persons
42
Id.
43
The DCF, State Mental Health Treatment Facilities, available at https://www2.myflfamilies.com/service-programs/mental-
health/state-mental-health-treatment-facilities.shtml last visited March 14, 2023).
44
Id.
45
The DCF, E-mail from John Paul Fiore, Legislative Affairs Director, Forensic Bed Waitlist, March 15, 2023 (on file with
the Senate Committee on Children, Families, and Elder Affairs).
46
The DCF, E-mail from John Paul Fiore, Legislative Affairs Director, Re: SB 1600, January 29, 2022 (on file with the Senate
Committee on Children, Families, and Elder Affairs).
47
Section 916.107(1)(a), F.S.
48
Id. BILL: CS/SB 1412 Page 8
with intellectual disability or autism, the client’s physician or psychologist, or any other
appropriate program until the client is transferred to a civil or forensic facility.
49
Clients also have a right to treatment, including the right to be given, at the time of admission
and at regular intervals thereafter, a physical examination, which shall include screening for
communicable disease by a health practitioner authorized by law to give such screenings and
examinations.
50
Not more than 30 days after admission, each client shall also have and receive,
in writing, an individualized treatment or training plan which the client has had an opportunity to
assist in preparing.
51
III. Effect of Proposed Changes:
Conditional Designations
Section 1 amends s. 394.461, F.S., authorizing the Department of Children and Families (DCF)
to issue conditional designations for up to 60 days in lieu of the suspension or withdrawal of a
receiving or treatment facility’s designation while under a corrective action plan. This will allow
the DCF to work with a facility to correct program deficiencies while the facility continues the
examination and treatment of individuals in their care.
Administration of Psychotropic Medications – Rights of Forensic Clients
Section 2 amends s. 916.107, F.S., requiring sheriffs to either administer, or permit the DCF to
administer, clinically indicated psychotropic medication to forensic clients held in a jail awaiting
admission to a state mental health treatment facility. This will help stabilize defendants and
create a smoother transition into the competency restoration process once a defendant is
committed to a forensic facility.
Process for Incompetency Determinations, Alternative Treatment Options, and Modified
Timelines
Section 3 amends s. 916.12, F.S., requiring examining experts and courts to consider a list of
minimum alternative treatment options before ordering a defendant to be placed in a treatment
facility. Specifically, the bill requires examining experts to report on the completion of a clinical
assessment made by mental health experts appointed to ensure the safety of the patient and the
community. Experts must also report on the appropriateness of the following community-based
options for treating and supporting the recovery of a patient:
Mental health services;
Treatment services;
Rehabilitative services;
Support services; and
Case management services as those terms are defined in s. 394.67(16), F.S., which may be
provided by or within:
o Multidisciplinary community treatment teams;
49
Id.
50
Section 916.107(2)(b), F.S.
51
Section 916.107(2)(d), F.S. BILL: CS/SB 1412 Page 9
o Community treatment teams, such as Florida Assertive Community Treatment (FACT)
teams;
o Conditional release programs;
o Outpatient services or intensive outpatient treatment programs; and
o Supportive employment and supportive housing opportunities.
The bill also requires the examining expert’s report to the court to include a full and detailed
explanation of why the alternative treatment options referenced in the evaluation are insufficient
to meet the needs of the defendant.
Section 4 amends s. 916.13, F.S., requiring courts to review the examining expert’s report to
ensure that each of the above-mentioned alternative treatment options are insufficient to meet the
defendant’s clinical needs when determining if there is clear and convincing evidence that
requires the issuance of a commitment order.
The bill requires treatment facilities to send defendant competency evaluation reports to the court
within 60 days, instead of six months, after a defendant’s admission to the treatment facility.
The bill reduces the maximum amount of time defendants may wait to be transported out of a
treatment facility to the committing court’s jurisdiction, from 30 days to 7 days, once they have
been evaluated competent to proceed or no longer meet commitment criteria. This will require
the sheriff or the entity transporting the defendant to the committing jurisdiction to take custody
of the defendant within a significantly shorter timeframe. This provision will reduce the
likelihood that the defendant will decompensate and will reduce the waitlist for other defendants
who are in need of treatment.
The bill requires courts to make a competency determination at a hearing within 30 days of
notification from a treatment facility that the defendant is competent to proceed or no longer
meets commitment criteria.
Additionally, treatment facilities must discharge the defendant with up to 30 days of medications
and assist in discharge planning with medical teams at the receiving county jail. This will ensure
the defendant is provided continuity of care when returning back to the committing jurisdiction.
Conforming Changes
Section 5 reenacts s. 394.658(1)(a),F.S., outlining application criteria for one-year planning
grants under the Criminal Justice, Mental Health, and Substance Abuse Reinvestment Grant
Program, for the purposes of incorporating changes made under the act.
Section 6 reenacts s. 916.106(9), F.S., defining “forensic client” and “client” as a defendant who
has been committed to the Department of Children and Families or the Agency for Persons with
Disabilities, for the purposes of incorporating changes made under the act.
Section 7 reenacts s. 916.17(1) and (2), F.S., relating to conditional release of a defendant in lieu
of involuntary commitment, for the purposes of incorporating changes made under the act.
BILL: CS/SB 1412 Page 10
Section 8 provides an effective date of July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
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) states the bill will have no impact on
state revenue or expenditures.
52
The DCF also states that the bill will not have a fiscal
impact on local jails, because existing medical and psychiatric resources within jails
throughout the state are sufficient to meet the requirements of the bill.
53
The agency also
anticipates that decreasing the time for transporting defendants will not result in a fiscal
impact on sheriffs due to the fact that the total number of transports will not increase.
54
52
The DCF Analysis at p. 6.
53
Id., p. 5.
54
Id, p. 6. BILL: CS/SB 1412 Page 11
The Florida Sheriff’s Association anticipates the provisions in the bill that address the
delivery of certain psychotropic medications and timelines for transporting a defendant
back to the committing jurisdiction will not have a negative fiscal impact on sheriffs.
55
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 394.461, 916.107,
916.12, and 916.13.
This bill reenacts the following sections of the Florida Statutes: 394.658, 916.106, and 916.17.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Children, Families, and Elder Affairs on March 20, 2023:
The Committee Substitute changes all instances of the word “patient” in the bill to
“defendant” to provide consistency with the rest of ch. 916, F.S.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
55
See The Florida Sheriff’s Association, E-mail from Allie McNair, Government Affairs Coordinator, Re: DCF: SB 1412 –
FSA Feedback March 16, 2023 (on file with the Senate Committee on Children, Families, and Elder Affairs).