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