Bill Text: FL S1808 | 2012 | Regular Session | Introduced


Bill Title: Provision of Psychotropic Medication to Children in Out-of-home Placements

Spectrum: Partisan Bill (Republican 3-0)

Status: (Failed) 2012-03-09 - Died in Budget Subcommittee on Health and Human Services Appropriations [S1808 Detail]

Download: Florida-2012-S1808-Introduced.html
       Florida Senate - 2012                                    SB 1808
       
       
       
       By Senator Storms
       
       
       
       
       10-01452-12                                           20121808__
    1                        A bill to be entitled                      
    2         An act relating to the provision of psychotropic
    3         medication to children in out-of-home placements;
    4         amending s. 39.407, F.S.; requiring that children
    5         placed in out-of-home care receive a comprehensive
    6         behavioral health assessment; specifying eligibility;
    7         prescribing duties for the Department of Children and
    8         Family Services; deleting provisions relating to the
    9         provision of psychotropic medications to children in
   10         out-of-home care; creating s. 39.4071, F.S.; providing
   11         legislative findings and intent; providing
   12         definitions; requiring that a guardian ad litem be
   13         appointed by the court to represent a child in the
   14         custody of the Department of Children and Family
   15         Services who is prescribed a psychotropic medication;
   16         prescribing the duties of the guardian ad litem;
   17         requiring that the department or lead agency notify
   18         the guardian ad litem of any change in the status of
   19         the child; providing for psychiatric evaluation of the
   20         child; requiring that express and informed consent and
   21         assent be obtained from a child or the child’s parent
   22         or guardian; providing requirements for a prescribing
   23         physician in obtaining consent and assent; providing
   24         for the invalidation of a parent’s informed consent;
   25         requiring the department to seek informed consent from
   26         the legal guardian in certain circumstances; requiring
   27         the department to file a motion for the administration
   28         of psychotropic medication along with the final
   29         judgment of termination of parental rights under
   30         certain circumstances; requiring that a court
   31         authorize the administration of psychotropic
   32         medication to a child who is in shelter care or in
   33         foster care and for whom informed consent from the
   34         parents or a legal guardian has not been obtained;
   35         providing requirements for the motion to the court;
   36         requiring that any party objecting to the
   37         administration of psychotropic medication file its
   38         objection within a specified period; authorizing the
   39         court to obtain a second opinion regarding the
   40         proposed administration; requiring that the court hold
   41         a hearing if any party objects to the proposed
   42         administration; specifying circumstances under which
   43         the department may provide psychotropic medication to
   44         a child before court authorization is obtained;
   45         requiring that the department seek court authorization
   46         for continued administration of the medication;
   47         providing for an expedited hearing on such motion
   48         under certain circumstances; requiring the department
   49         to provide notice to all parties and the court for
   50         each emergency use of psychotropic medication under
   51         certain conditions; providing for discontinuation,
   52         alteration, and destruction of medication; requiring
   53         that a mental health treatment plan be developed for
   54         each child or youth who needs mental health services;
   55         requiring that certain information be included in a
   56         mental health treatment plan; requiring the department
   57         to develop and administer procedures to require the
   58         caregiver and prescribing physician to report any
   59         adverse side effects; requiring documentation of the
   60         adverse side effects; prohibiting the prescription of
   61         psychotropic medication to certain children who are in
   62         out-of-home care absent certain conditions; requiring
   63         review by a licensed child psychiatrist before
   64         psychotropic medication is administered to certain
   65         children who are in out-of-home care under certain
   66         conditions; prohibiting authorization for a child in
   67         the custody of the department to participate in any
   68         clinical trial designed to evaluate the use of
   69         psychotropic medication in children; requiring that
   70         the department inform the court of a child's medical
   71         and behavioral status at each judicial hearing;
   72         requiring that the department adopt rules; amending s.
   73         743.0645, F.S.; conforming a cross-reference;
   74         providing an effective date.
   75  
   76  Be It Enacted by the Legislature of the State of Florida:
   77  
   78         Section 1. Subsection (3) of section 39.407, Florida
   79  Statutes, is amended to read:
   80         39.407 Medical, psychiatric, and psychological examination
   81  and treatment of child; physical, mental, or substance abuse
   82  examination of person with or requesting child custody.—
   83         (3)(a)All children placed in out-of-home care shall be
   84  provided with a comprehensive behavioral health assessment. The
   85  child protective investigator or dependency case manager shall
   86  submit a referral for such assessment no later than 7 days after
   87  a child is placed in out-of-home care.
   88         (b)Any child who has been in out-of-home care for more
   89  than 1 year, or who did not receive a comprehensive behavioral
   90  health assessment when placed into out-of-home care, is eligible
   91  to receive a comprehensive behavioral health assessment. Such
   92  assessments evaluate behaviors that give rise to the concern
   93  that the child has unmet mental health needs. Any party to the
   94  dependency proceeding, or the court on its own motion, may
   95  request that an assessment be performed.
   96         (c)The child protective investigator or dependency case
   97  manager shall be responsible for ensuring that all
   98  recommendations in the comprehensive behavioral health
   99  assessment are incorporated into the child’s case plan and that
  100  the recommended services are provided in a timely manner. If, at
  101  a case planning conference, there is a determination made that a
  102  specific recommendation should not be included in a child’s case
  103  plan, the court must be provided with a written explanation as
  104  to why the recommendation is not being followed.
  105         (d)This provision does not prevent a child from receiving
  106  any other form of psychological assessment when needed.
  107         (e)If it is determined that a child is in need of mental
  108  health services, the comprehensive behavioral health assessment
  109  must be provided to the physician involved in developing the
  110  child’s mental health treatment plan, pursuant to s. 39.4071(9).
  111         (3)(a)1.Except as otherwise provided in subparagraph (b)1.
  112  or paragraph (e), before the department provides psychotropic
  113  medications to a child in its custody, the prescribing physician
  114  shall attempt to obtain express and informed consent, as defined
  115  in s. 394.455(9) and as described in s. 394.459(3)(a), from the
  116  child’s parent or legal guardian. The department must take steps
  117  necessary to facilitate the inclusion of the parent in the
  118  child’s consultation with the physician. However, if the
  119  parental rights of the parent have been terminated, the parent’s
  120  location or identity is unknown or cannot reasonably be
  121  ascertained, or the parent declines to give express and informed
  122  consent, the department may, after consultation with the
  123  prescribing physician, seek court authorization to provide the
  124  psychotropic medications to the child. Unless parental rights
  125  have been terminated and if it is possible to do so, the
  126  department shall continue to involve the parent in the
  127  decisionmaking process regarding the provision of psychotropic
  128  medications. If, at any time, a parent whose parental rights
  129  have not been terminated provides express and informed consent
  130  to the provision of a psychotropic medication, the requirements
  131  of this section that the department seek court authorization do
  132  not apply to that medication until such time as the parent no
  133  longer consents.
  134         2.Any time the department seeks a medical evaluation to
  135  determine the need to initiate or continue a psychotropic
  136  medication for a child, the department must provide to the
  137  evaluating physician all pertinent medical information known to
  138  the department concerning that child.
  139         (b)1.If a child who is removed from the home under s.
  140  39.401 is receiving prescribed psychotropic medication at the
  141  time of removal and parental authorization to continue providing
  142  the medication cannot be obtained, the department may take
  143  possession of the remaining medication and may continue to
  144  provide the medication as prescribed until the shelter hearing,
  145  if it is determined that the medication is a current
  146  prescription for that child and the medication is in its
  147  original container.
  148         2.If the department continues to provide the psychotropic
  149  medication to a child when parental authorization cannot be
  150  obtained, the department shall notify the parent or legal
  151  guardian as soon as possible that the medication is being
  152  provided to the child as provided in subparagraph 1. The child’s
  153  official departmental record must include the reason parental
  154  authorization was not initially obtained and an explanation of
  155  why the medication is necessary for the child’s well-being.
  156         3.If the department is advised by a physician licensed
  157  under chapter 458 or chapter 459 that the child should continue
  158  the psychotropic medication and parental authorization has not
  159  been obtained, the department shall request court authorization
  160  at the shelter hearing to continue to provide the psychotropic
  161  medication and shall provide to the court any information in its
  162  possession in support of the request. Any authorization granted
  163  at the shelter hearing may extend only until the arraignment
  164  hearing on the petition for adjudication of dependency or 28
  165  days following the date of removal, whichever occurs sooner.
  166         4.Before filing the dependency petition, the department
  167  shall ensure that the child is evaluated by a physician licensed
  168  under chapter 458 or chapter 459 to determine whether it is
  169  appropriate to continue the psychotropic medication. If, as a
  170  result of the evaluation, the department seeks court
  171  authorization to continue the psychotropic medication, a motion
  172  for such continued authorization shall be filed at the same time
  173  as the dependency petition, within 21 days after the shelter
  174  hearing.
  175         (c)Except as provided in paragraphs (b) and (e), the
  176  department must file a motion seeking the court’s authorization
  177  to initially provide or continue to provide psychotropic
  178  medication to a child in its legal custody. The motion must be
  179  supported by a written report prepared by the department which
  180  describes the efforts made to enable the prescribing physician
  181  to obtain express and informed consent for providing the
  182  medication to the child and other treatments considered or
  183  recommended for the child. In addition, the motion must be
  184  supported by the prescribing physician’s signed medical report
  185  providing:
  186         1.The name of the child, the name and range of the dosage
  187  of the psychotropic medication, and that there is a need to
  188  prescribe psychotropic medication to the child based upon a
  189  diagnosed condition for which such medication is being
  190  prescribed.
  191         2.A statement indicating that the physician has reviewed
  192  all medical information concerning the child which has been
  193  provided.
  194         3.A statement indicating that the psychotropic medication,
  195  at its prescribed dosage, is appropriate for treating the
  196  child’s diagnosed medical condition, as well as the behaviors
  197  and symptoms the medication, at its prescribed dosage, is
  198  expected to address.
  199         4.An explanation of the nature and purpose of the
  200  treatment; the recognized side effects, risks, and
  201  contraindications of the medication; drug-interaction
  202  precautions; the possible effects of stopping the medication;
  203  and how the treatment will be monitored, followed by a statement
  204  indicating that this explanation was provided to the child if
  205  age appropriate and to the child’s caregiver.
  206         5.Documentation addressing whether the psychotropic
  207  medication will replace or supplement any other currently
  208  prescribed medications or treatments; the length of time the
  209  child is expected to be taking the medication; and any
  210  additional medical, mental health, behavioral, counseling, or
  211  other services that the prescribing physician recommends.
  212         (d)1.The department must notify all parties of the
  213  proposed action taken under paragraph (c) in writing or by
  214  whatever other method best ensures that all parties receive
  215  notification of the proposed action within 48 hours after the
  216  motion is filed. If any party objects to the department’s
  217  motion, that party shall file the objection within 2 working
  218  days after being notified of the department’s motion. If any
  219  party files an objection to the authorization of the proposed
  220  psychotropic medication, the court shall hold a hearing as soon
  221  as possible before authorizing the department to initially
  222  provide or to continue providing psychotropic medication to a
  223  child in the legal custody of the department. At such hearing
  224  and notwithstanding s. 90.803, the medical report described in
  225  paragraph (c) is admissible in evidence. The prescribing
  226  physician need not attend the hearing or testify unless the
  227  court specifically orders such attendance or testimony, or a
  228  party subpoenas the physician to attend the hearing or provide
  229  testimony. If, after considering any testimony received, the
  230  court finds that the department’s motion and the physician’s
  231  medical report meet the requirements of this subsection and that
  232  it is in the child’s best interests, the court may order that
  233  the department provide or continue to provide the psychotropic
  234  medication to the child without additional testimony or
  235  evidence. At any hearing held under this paragraph, the court
  236  shall further inquire of the department as to whether additional
  237  medical, mental health, behavioral, counseling, or other
  238  services are being provided to the child by the department which
  239  the prescribing physician considers to be necessary or
  240  beneficial in treating the child’s medical condition and which
  241  the physician recommends or expects to provide to the child in
  242  concert with the medication. The court may order additional
  243  medical consultation, including consultation with the MedConsult
  244  line at the University of Florida, if available, or require the
  245  department to obtain a second opinion within a reasonable
  246  timeframe as established by the court, not to exceed 21 calendar
  247  days, after such order based upon consideration of the best
  248  interests of the child. The department must make a referral for
  249  an appointment for a second opinion with a physician within 1
  250  working day. The court may not order the discontinuation of
  251  prescribed psychotropic medication if such order is contrary to
  252  the decision of the prescribing physician unless the court first
  253  obtains an opinion from a licensed psychiatrist, if available,
  254  or, if not available, a physician licensed under chapter 458 or
  255  chapter 459, stating that more likely than not, discontinuing
  256  the medication would not cause significant harm to the child.
  257  If, however, the prescribing psychiatrist specializes in mental
  258  health care for children and adolescents, the court may not
  259  order the discontinuation of prescribed psychotropic medication
  260  unless the required opinion is also from a psychiatrist who
  261  specializes in mental health care for children and adolescents.
  262  The court may also order the discontinuation of prescribed
  263  psychotropic medication if a child’s treating physician,
  264  licensed under chapter 458 or chapter 459, states that
  265  continuing the prescribed psychotropic medication would cause
  266  significant harm to the child due to a diagnosed nonpsychiatric
  267  medical condition.
  268         2.The burden of proof at any hearing held under this
  269  paragraph shall be by a preponderance of the evidence.
  270         (e)1.If the child’s prescribing physician certifies in the
  271  signed medical report required in paragraph (c) that delay in
  272  providing a prescribed psychotropic medication would more likely
  273  than not cause significant harm to the child, the medication may
  274  be provided in advance of the issuance of a court order. In such
  275  event, the medical report must provide the specific reasons why
  276  the child may experience significant harm and the nature and the
  277  extent of the potential harm. The department must submit a
  278  motion seeking continuation of the medication and the
  279  physician’s medical report to the court, the child’s guardian ad
  280  litem, and all other parties within 3 working days after the
  281  department commences providing the medication to the child. The
  282  department shall seek the order at the next regularly scheduled
  283  court hearing required under this chapter, or within 30 days
  284  after the date of the prescription, whichever occurs sooner. If
  285  any party objects to the department’s motion, the court shall
  286  hold a hearing within 7 days.
  287         2.Psychotropic medications may be administered in advance
  288  of a court order in hospitals, crisis stabilization units, and
  289  in statewide inpatient psychiatric programs. Within 3 working
  290  days after the medication is begun, the department must seek
  291  court authorization as described in paragraph (c).
  292         (f)1.The department shall fully inform the court of the
  293  child’s medical and behavioral status as part of the social
  294  services report prepared for each judicial review hearing held
  295  for a child for whom psychotropic medication has been prescribed
  296  or provided under this subsection. As a part of the information
  297  provided to the court, the department shall furnish copies of
  298  all pertinent medical records concerning the child which have
  299  been generated since the previous hearing. On its own motion or
  300  on good cause shown by any party, including any guardian ad
  301  litem, attorney, or attorney ad litem who has been appointed to
  302  represent the child or the child’s interests, the court may
  303  review the status more frequently than required in this
  304  subsection.
  305         2.The court may, in the best interests of the child, order
  306  the department to obtain a medical opinion addressing whether
  307  the continued use of the medication under the circumstances is
  308  safe and medically appropriate.
  309         (g)The department shall adopt rules to ensure that
  310  children receive timely access to clinically appropriate
  311  psychotropic medications. These rules must include, but need not
  312  be limited to, the process for determining which adjunctive
  313  services are needed, the uniform process for facilitating the
  314  prescribing physician’s ability to obtain the express and
  315  informed consent of a child’s parent or guardian, the procedures
  316  for obtaining court authorization for the provision of a
  317  psychotropic medication, the frequency of medical monitoring and
  318  reporting on the status of the child to the court, how the
  319  child’s parents will be involved in the treatment-planning
  320  process if their parental rights have not been terminated, and
  321  how caretakers are to be provided information contained in the
  322  physician’s signed medical report. The rules must also include
  323  uniform forms to be used in requesting court authorization for
  324  the use of a psychotropic medication and provide for the
  325  integration of each child’s treatment plan and case plan. The
  326  department must begin the formal rulemaking process within 90
  327  days after the effective date of this act.
  328         Section 2. Section 39.4071, Florida Statutes, is created to
  329  read:
  330         39.4071Use of psychotropic medication for children in out
  331  of-home placement.—
  332         (1)LEGISLATIVE FINDINGS AND INTENT.—
  333         (a)The Legislature finds that children in out-of-home
  334  placements often have multiple risk factors that predispose them
  335  to emotional and behavioral disorders and that they receive
  336  mental health services at higher rates and are more likely to be
  337  given psychotropic medications than children from comparable
  338  backgrounds.
  339         (b)The Legislature also finds that the use of psychotropic
  340  medications for the treatment of children in out-of-home
  341  placements who have emotional and behavioral disturbances has
  342  increased over recent years. While this increased use of
  343  psychotropic medications is paralleled by an increase in the
  344  rate of the coadministration of two or more psychotropic
  345  medications, data on the safety and efficacy of many of the
  346  psychotropic medications used in children and research
  347  supporting the coadministration of two or more psychotropic
  348  medications in this population is limited.
  349         (c)The Legislature further finds that significant
  350  challenges are encountered in providing quality mental health
  351  care to children in out-of-home placements. Not uncommonly,
  352  children in out-of-home placements are subjected to multiple
  353  placements and many service providers, with communication
  354  between providers often poor, resulting in fragmented medical
  355  and mental health care. The dependable, ongoing therapeutic and
  356  caregiving relationships these children need are hampered by the
  357  high turnover among child welfare caseworkers and care
  358  providers. Furthermore, children in out-of-home placements,
  359  unlike children from intact families, often have no consistent
  360  interested party who is available to coordinate treatment and
  361  monitoring plans or to provide longitudinal oversight of care.
  362         (d)The Legislature recognizes the important role the
  363  Guardian ad Litem Program has played in this state’s dependency
  364  system for the past 30 years serving the state’s most vulnerable
  365  children through the use of trained volunteers, case
  366  coordinators, child advocates, and attorneys. The program’s
  367  singular focus is on the child and its mission is to advocate
  368  for the best interest of the child. It is often the guardian ad
  369  litem who is the constant in a child’s life, maintaining
  370  consistent contact with the child, the child’s caseworkers, and
  371  others involved with the child, including family, doctors,
  372  teachers, and service providers. Studies have shown that a child
  373  assigned a guardian ad litem will, on average, experience fewer
  374  placement changes than a child without a guardian ad litem. It
  375  is therefore the intent of the Legislature that children in out
  376  of-home placements who may benefit from psychotropic medications
  377  receive those medications safely as part of a comprehensive
  378  mental health treatment plan requiring the appointment of a
  379  guardian ad litem whose responsibility is to monitor the plan
  380  for compliance and suitability as to the child’s best interest.
  381         (2)DEFINITIONS.—As used in this section, the term:
  382         (a)“Behavior analysis” means services rendered by a
  383  provider who is certified by the Behavior Analysis Certification
  384  Board in accordance with chapter 393.
  385         (b)“Obtaining assent” means a process by which a provider
  386  of medical services helps a child achieve a developmentally
  387  appropriate awareness of the nature of his or her condition,
  388  informs the child of what can be expected through tests and
  389  treatment, makes a clinical assessment of the child’s
  390  understanding of the situation and the factors influencing how
  391  he or she is responding, and solicits an expression of the
  392  child’s willingness to adhere to the proposed care. The mere
  393  absence of an objection by the child may not be construed as
  394  assent.
  395         (c)“Comprehensive behavioral health assessment” means an
  396  in-depth and detailed assessment of the child’s emotional,
  397  social, behavioral, and developmental functioning within the
  398  home, school, and community. A comprehensive behavioral health
  399  assessment must include direct observation of the child in the
  400  home, school, and community, as well as in the clinical setting,
  401  and must adhere to the requirements contained in the Florida
  402  Medicaid Community Behavioral Health Services Coverage and
  403  Limitations Handbook.
  404         (d)“Express and informed consent” means a process by which
  405  a provider of medical services obtains voluntary consent from a
  406  parent whose rights have not been terminated or a legal guardian
  407  of the child who has received full, accurate, and sufficient
  408  information and an explanation about the child’s medical
  409  condition, medication, and treatment in order to enable the
  410  parent or guardian to make a knowledgeable decision without any
  411  element of fraud, deceit, duress, or other form of coercion.
  412         (e)“Mental health treatment plan” means a plan that lists
  413  the particular mental health needs of the child and the services
  414  that will be provided to address those needs. If the plan
  415  includes prescribing psychotropic medication to a child in out
  416  of-home placement, the plan must also include the information
  417  required by subsection (9).
  418         (f)“Psychotropic medication” means a prescription
  419  medication that is used for the treatment of mental disorders
  420  and includes, without limitation, hypnotics, antipsychotics,
  421  antidepressants, antianxiety agents, sedatives, stimulants, and
  422  mood stabilizers.
  423         (3)APPOINTMENT OF GUARDIAN AD LITEM.—
  424         (a)If not already appointed, a guardian ad litem shall be
  425  appointed by the court at the earliest possible time to
  426  represent the best interests of a child in out-of-home placement
  427  who is prescribed a psychotropic medication or is being
  428  evaluated for the initiation of psychotropic medication.
  429  Pursuant to s. 39.820, the appointed guardian ad litem is a
  430  party to any judicial proceeding as a representative of the
  431  child and serves until discharged by the court.
  432         (b)Under the provisions of this section, the guardian ad
  433  litem shall participate in the development of the mental health
  434  treatment plan, monitor whether all requirements of the mental
  435  health treatment plan are being provided to the child, including
  436  counseling, behavior analysis, or other services, medications,
  437  and treatment modalities; and notice the court of the child’s
  438  objections, if any, to the mental health treatment plan. The
  439  guardian ad litem shall prepare and submit to the court a
  440  written report every 45 days or as directed by the court,
  441  advising the court and the parties as to the status of the care,
  442  health, and medical treatment of the child pursuant to the
  443  mental health treatment plan and any change in the status of the
  444  child. The guardian ad litem will immediately notify parties as
  445  soon as any medical emergency of the child becomes known. The
  446  guardian ad litem shall ensure that the prescribing physician
  447  has been provided with all pertinent medical information
  448  concerning the child.
  449         (c)The department and the community-based care lead agency
  450  shall notify the court and the guardian ad litem, and, if
  451  applicable, the child’s attorney, in writing within 24 hours
  452  after any change in the status of the child, including, but not
  453  limited to, a change in placement, a change in school, a change
  454  in medical condition or medication, or a change in prescribing
  455  physician, other service providers, counseling, or treatment
  456  scheduling.
  457         (4)PSYCHIATRIC EVALUATION OF CHILD.Whenever the
  458  department believes that a child in its legal custody may need
  459  psychiatric treatment, an evaluation must be conducted by a
  460  physician licensed under chapter 458 or chapter 459.
  461         (5)EXPRESS AND INFORMED CONSENT AND ASSENT.—If, at the
  462  time of removal from his or her home, a child is being provided,
  463  or at any time is being evaluated for the initiation of,
  464  prescribed psychotropic medication under this section, express
  465  and informed consent and assent shall be sought by the
  466  prescribing physician.
  467         (a)The prescribing physician shall obtain assent from the
  468  child, unless the prescribing physician determines that it is
  469  not appropriate to obtain assent from the child. In making this
  470  assessment, the prescribing physician shall consider the
  471  capacity of the child to make an independent decision based on
  472  his or her age, maturity, and psychological and emotional state.
  473  If the physician determines that it is not appropriate to obtain
  474  assent from the child, the physician must document the decision
  475  in the mental health treatment plan. If the physician determines
  476  it is appropriate to obtain assent from the child and the child
  477  refuses to give assent, the physician must document the child’s
  478  refusal in the mental health treatment plan.
  479         1.Assent from a child shall be sought in a manner that is
  480  understandable to the child using a developmentally appropriate
  481  assent form. The child shall be provided with sufficient
  482  information, such as the nature and purpose of the medication,
  483  how it will be administered, the probable risks and benefits,
  484  alternative treatments and the risks and benefits thereof, and
  485  the risks and benefits of refusing or discontinuing the
  486  medication, and when it may be appropriately discontinued.
  487  Assent may be oral or written and must be documented by the
  488  prescribing physician.
  489         2.Oral assent is appropriate for a child who is younger
  490  than 7 years of age. Assent from a child who is 7 to 13 years of
  491  age may be sought orally or in a simple form that is written at
  492  the second-grade or third-grade reading level. A child who is 14
  493  years of age or older may understand the language presented in
  494  the consent form for parents or legal guardians. If so, the
  495  child may sign the consent form along with the parent or legal
  496  guardian. Forms for parents and older children shall be written
  497  at the sixth-grade to eighth-grade reading level.
  498         3.In each case where assent is obtained, a copy of the
  499  assent documents must be provided to the parent or legal
  500  guardian and the guardian ad litem, with the original assent
  501  documents becoming a part of the child’s mental health treatment
  502  plan and filed with the court.
  503         (b)Express and informed consent for the administration of
  504  psychotropic medication may be given only by a parent whose
  505  rights have not been terminated or a legal guardian of the child
  506  who has received full, accurate, and sufficient information and
  507  an explanation about the child’s medical condition, medication,
  508  and treatment in order to enable the parent or guardian to make
  509  a knowledgeable decision. A sufficient explanation includes, but
  510  need not be limited to, the following information, which must be
  511  provided and explained in plain language by the prescribing
  512  physician to the parent or legal guardian: the child’s
  513  diagnosis, the symptoms to be addressed by the medication, the
  514  name of the medication and its dosage ranges, the reason for
  515  prescribing it, and its purpose or intended results; benefits,
  516  side effects, risks, and contraindications, including effects of
  517  not starting or stopping the medication; method for
  518  administering the medication and how it will be monitored;
  519  potential drug interactions; alternative treatments to
  520  psychotropic medication; a plan to reduce or eliminate ongoing
  521  medication when medically appropriate; the counseling,
  522  behavioral analysis, or other services used to complement the
  523  use of medication, when applicable; and that the parent or legal
  524  guardian may revoke the consent at any time.
  525         1.Express and informed consent may be oral or written and
  526  must be documented by the prescribing physician. If the
  527  department or the physician is unable to obtain consent from the
  528  parent or legal guardian, the reasons must be documented.
  529         2.When express and informed consent is obtained, a copy of
  530  the consent documents must be provided to the parent or legal
  531  guardian and the guardian ad litem, with the original consent
  532  documents becoming a part of the child’s mental health treatment
  533  plan and filed with the court.
  534         (c)The informed consent of any parent whose whereabouts
  535  are unknown for 60 days, who is adjudicated incapacitated, who
  536  does not have regular and frequent contact with the child, who
  537  later revokes assent, or whose parental rights are terminated
  538  after giving consent, is invalid. If the informed consent of a
  539  parent becomes invalid, the department may seek informed consent
  540  from any other parent or legal guardian. If the informed consent
  541  provided by a parent whose parental rights have been terminated
  542  is invalid and no other parent or legal guardian gives informed
  543  consent, the department shall file a motion for the
  544  administration of psychotropic medication along with the motion
  545  for final judgment of termination of parental rights.
  546         (d)If consent is revoked or becomes invalid the department
  547  shall immediately notify all parties and, if applicable, the
  548  child’s attorney. Medication shall be continued until such time
  549  as the court rules on the motion.
  550         (e)Under no circumstance may a medication be discontinued
  551  without explicit instruction from a physician as to how to
  552  safely discontinue the medication.
  553         (6)ADMINISTRATION OF PSYCHOTROPIC MEDICATION TO A CHILD IN
  554  SHELTER CARE OR IN FOSTER CARE WHEN INFORMED CONSENT HAS NOT
  555  BEEN OBTAINED.—
  556         (a)Motion for court authorization for administration of
  557  psychotropic medications.
  558         1.Any time a physician who has evaluated the child
  559  prescribes psychotropic medication as part of the mental health
  560  treatment plan and the child’s parents or legal guardians have
  561  not provided express and informed consent as provided by law or
  562  such consent is invalid as set forth in paragraph (5)(c), the
  563  department or its agent shall file a motion with the court
  564  within 3 working days to authorize the administration of the
  565  psychotropic medication before the administration of the
  566  medication, except as provided in subsection (7). In each case
  567  in which a motion is required, the motion must include:
  568         a.A written report by the department describing the
  569  efforts made to enable the prescribing physician to obtain
  570  express and informed consent for providing the medication to the
  571  child and describing other treatments attempted, considered, and
  572  recommended for the child; and
  573         b.The prescribing physician’s completed and signed mental
  574  health treatment plan.
  575         2.The department must file a copy of the motion with the
  576  court and, within 48 hours after filing the motion with the
  577  court, notify all parties in writing, or by whatever other
  578  method best ensures that all parties receive notification, of
  579  its proposed administration of psychotropic medication to the
  580  child.
  581         3.If any party objects to the proposed administration of
  582  the psychotropic medication to the child, that party must file
  583  its objection within 2 working days after being notified of the
  584  department’s motion. A party may request an extension of time to
  585  object for good cause shown, if such extension would be in the
  586  best interests of the child. Any extension shall be for a
  587  specific number of days not to exceed the time absolutely
  588  necessary.
  589         4.Lack of assent from the child shall be deemed a timely
  590  objection from the child.
  591         (b)Court action on motion for administration of
  592  psychotropic medication.
  593         1.If no party timely files an objection to the
  594  department’s motion and the motion is legally sufficient, the
  595  court may enter its order authorizing the proposed
  596  administration of the psychotropic medication without a hearing.
  597  Based on its determination of the best interests of the child,
  598  the court may order additional medical consultation, including
  599  consultation with the MedConsult line at the University of
  600  Florida, if available, or require the department to obtain a
  601  second opinion within a reasonable time established by the
  602  court, not to exceed 21 calendar days. If the court orders an
  603  additional medical consultation or second medical opinion, the
  604  department shall file a written report including the results of
  605  this additional consultation or a copy of the second medical
  606  opinion with the court within the time required by the court,
  607  and shall serve a copy of the report on all parties.
  608         2.If any party timely files its objection to the proposed
  609  administration of the psychotropic medication to the child, the
  610  court shall hold a hearing as soon as possible on the
  611  department’s motion.
  612         a.The signed mental health treatment plan of the
  613  prescribing physician is admissible in evidence at the hearing.
  614         b.The court shall ask the department whether additional
  615  medical, mental health, behavior analysis, counseling, or other
  616  services are being provided to the child which the prescribing
  617  physician considers to be necessary or beneficial in treating
  618  the child’s medical condition and which the physician recommends
  619  or expects to be provided to the child along with the
  620  medication.
  621         3.The court may order additional medical consultation or a
  622  second medical opinion, as provided in this paragraph.
  623         4.After considering the department’s motion and any
  624  testimony received, the court may enter its order authorizing
  625  the department to provide or continue to provide the proposed
  626  psychotropic medication to the child. The court must find a
  627  compelling governmental interest that the proposed psychotropic
  628  medication is in the child’s best interest. In so determining
  629  the court shall consider, at a minimum, the following factors:
  630         a.The severity and likelihood of risks associated with the
  631  treatment.
  632         b.The magnitude and likelihood of benefits expected from
  633  the treatment.
  634         c.The child’s prognosis without the proposed psychotropic
  635  medication.
  636         d.The availability and effectiveness of alternative
  637  treatments.
  638         e.The wishes of the child concerning treatment
  639  alternatives.
  640         f.The recommendation of the parents or legal guardian.
  641         g.The recommendation of the guardian ad litem.
  642         (7)ADMINISTRATION OF PSYCHOTROPIC MEDICATION TO A CHILD IN
  643  OUT-OF-HOME CARE BEFORE COURT AUTHORIZATION HAS BEEN OBTAINED.
  644  The department may provide continued administration of
  645  psychotropic medication to a child before authorization by the
  646  court has been obtained only as provided in this subsection.
  647         (a)If a child is removed from the home and taken into
  648  custody under s. 39.401, the department may continue to
  649  administer a current prescription of psychotropic medication to
  650  the child; however, the department shall request court
  651  authorization for the continued administration of the medication
  652  at the shelter hearing. This request shall be included in the
  653  shelter petition.
  654         1.The department shall provide all information in its
  655  possession to the court in support of its request at the shelter
  656  hearing. The court may authorize the continued administration of
  657  the psychotropic medication only until the arraignment hearing
  658  on the petition for adjudication, or for 28 days following the
  659  date of the child’s removal, whichever occurs first.
  660         2.If the department believes, based on the required
  661  physician’s evaluation, that it is appropriate to continue the
  662  psychotropic medication beyond the time authorized by the court
  663  at the shelter hearing, the department shall file a motion
  664  seeking continued court authorization at the same time that it
  665  files the dependency petition, but within 21 days after the
  666  shelter hearing.
  667         (b)If the department believes, based on the certification
  668  of the prescribing physician, that delay in providing the
  669  prescribed psychotropic medication to the child would, more
  670  likely than not, cause significant harm to the child, the
  671  department shall administer the medication to the child
  672  immediately. The department shall submit a motion to the court
  673  seeking continuation of the medication within 3 working days
  674  after the department begins providing the medication to the
  675  child.
  676         1.The motion seeking authorization for the continued
  677  administration of the psychotropic medication to the child must
  678  include all information required in this section. The required
  679  medical report must also include the specific reasons why the
  680  child may experience significant harm, and the nature and the
  681  extent of the potential harm, resulting from a delay in
  682  authorizing the prescribed medication.
  683         2.The department shall serve the motion on all parties
  684  within 3 working days after the department begins providing the
  685  medication to the child.
  686         3.The court shall hear the department’s motion at the next
  687  regularly scheduled court hearing required by law, or within 30
  688  days after the date of the prescription, whichever occurs first.
  689  However, if any party files an objection to the motion, the
  690  court shall hold a hearing within 7 days.
  691         (c)The department may authorize, in advance of a court
  692  order, the administration of psychotropic medications to a child
  693  in its custody in a hospital, crisis stabilization unit or
  694  receiving facility, therapeutic group home, or statewide
  695  inpatient psychiatric program. If the department does so, it
  696  must file a motion to seek court authorization for the continued
  697  administration of the medication within 3 working days as
  698  required in this section.
  699         (d)If a child receives a one-time dose of a psychotropic
  700  medication during a crisis, the department shall provide
  701  immediate notice to all parties and to the court of each such
  702  emergency use.
  703         (8)DISCONTINUATION OR ALTERATION OF MEDICATION;
  704  DESTRUCTION OF MEDICATION.—A party may not alter the provision
  705  of prescribed psychotropic medication to a child in any way
  706  except upon order of the court or advice of a physician.
  707         (a)On the motion of any party or its own motion, the court
  708  may order the discontinuation of a medication already
  709  prescribed. Such discontinuation must be performed in
  710  consultation with a physician in such a manner as to minimize
  711  risk to the child.
  712         (b)The child’s repeated refusal to take or continue to
  713  take a medication shall be treated as a motion to discontinue
  714  the medication and shall be set for hearing as soon as possible
  715  but no later than within 7 days after knowledge of such repeated
  716  refusal.
  717         (c)Upon any discontinuation of a medication, the
  718  department shall document the date and reason for the
  719  discontinuation and shall notify all parties. The guardian ad
  720  litem must be notified within 24 hours as previously provided
  721  herein.
  722         (d)The department shall ensure the destruction of any
  723  medication no longer being taken by the prescribed child.
  724         (9)DEVELOPMENT OF MENTAL HEALTH TREATMENT PLAN.—Upon the
  725  determination that a child needs mental health services, a
  726  mental health treatment plan must be developed which lists the
  727  particular mental health needs of the child and the services
  728  that will be provided to address those needs. When possible, the
  729  plan shall be developed in a face-to-face conference with the
  730  child, the child’s parents, case manager, physician, therapist,
  731  legal guardian, guardian ad litem, and any other interested
  732  party. The mental health treatment plan shall be incorporated
  733  into the case plan as tasks for the department and may be
  734  amended under s. 39.6013.
  735         (a)If the mental health treatment plan involves the
  736  provision of psychotropic medication, the plan must include:
  737         1.The name of the child, a statement indicating that there
  738  is a need to prescribe psychotropic medication to the child
  739  based upon a diagnosed condition for which there is an evidence
  740  base for the medication that is being prescribed, a statement
  741  indicating the compelling governmental interest in prescribing
  742  the psychotropic medication, and the name and range of the
  743  dosage of the psychotropic medication.
  744         2.A statement indicating that the physician has reviewed
  745  all medical information concerning the child which has been
  746  provided by the department or community-based care lead agency
  747  and briefly listing all such information received.
  748         3.A medication profile, including all medications the
  749  child is prescribed or will be prescribed, any previously
  750  prescribed medications where known, and whether those
  751  medications are being added, continued, or discontinued upon
  752  implementation of the mental health treatment plan.
  753         4.A statement indicating that the psychotropic medication,
  754  at its prescribed dosage, is appropriate for treating the
  755  child’s diagnosed medical condition, as well as the behaviors
  756  and symptoms that the medication, at its prescribed dosage, is
  757  expected to address.
  758         5.An explanation of the nature and purpose of the
  759  treatment; the recognized side effects, risks, and
  760  contraindications of the medication, including procedures for
  761  reporting adverse effects; drug-interaction precautions; the
  762  possible effects of stopping or not initiating the medication;
  763  and how the treatment will be monitored, followed by a statement
  764  indicating that this explanation was provided to the child if
  765  developmentally appropriate and to the child’s caregiver.
  766         6.Documentation addressing whether the psychotropic
  767  medication will replace or supplement any other currently
  768  prescribed medications or treatments; the length of time the
  769  child is expected to be taking the medication; a plan for the
  770  discontinuation of any medication when medically appropriate;
  771  and any additional medical, mental health, behavioral,
  772  counseling, or other services that the prescribing physician
  773  recommends as part of a comprehensive treatment plan.
  774         7.A document describing those observable behaviors
  775  warranting psychotropic treatment, the means for obtaining
  776  reliable frequency data on these same observable behaviors, and
  777  the reporting of this data with sufficient frequency to support
  778  medication decisions.
  779         (b)The department shall develop and administer procedures
  780  to require the caregiver and prescribing physician to report any
  781  adverse side effects of the medication to the department or its
  782  designee and the guardian ad litem. Any adverse side effects
  783  must be documented in the mental health treatment plan and
  784  medical records for the child.
  785         (10)REVIEW FOR ADMINISTRATION OF PSYCHOTROPIC MEDICATION
  786  FOR CHILDREN FROM BIRTH THROUGH 10 YEARS OF AGE IN OUT-OF-HOME
  787  CARE.—
  788         (a)Absent a finding of a compelling governmental interest,
  789  a psychotropic medication may not be authorized by the court for
  790  any child from birth through 10 years of age who is in out-of
  791  home placement. Based on a finding of a compelling governmental
  792  interest but before a psychotropic medication is authorized by
  793  the court for any child from birth through 10 years of age who
  794  is in an out-of-home placement, a review of the administration
  795  must be obtained from a child psychiatrist who is licensed under
  796  chapter 458 or chapter 459. The results of this review must be
  797  provided to the child and the parent or legal guardian before
  798  final express and informed consent is given.
  799         (b)The department may authorize, in advance of a court
  800  order, the administration of psychotropic medications to a child
  801  from birth through 10 years of age in its custody in the
  802  following levels of residential care:
  803         1. Hospital;
  804         2. Crisis stabilization unit or receiving facility;
  805         3. Therapeutic group home; or
  806         4. Statewide inpatient psychiatric program.
  807  
  808  These levels of care demonstrate the requirement of compelling
  809  governmental interest through the extensive admission criteria
  810  being met. If the department does so, it must file a motion to
  811  seek court authorization for the continued administration of the
  812  medication within 3 working days.
  813         (c)If a child receives a one-time dose of a psychotropic
  814  medication during a crisis, the department shall provide
  815  immediate notice to all parties and to the court of each such
  816  emergency use.
  817         (11)CLINICAL TRIALS.—At no time shall a child in the
  818  custody of the department be allowed to participate in a
  819  clinical trial that is designed to develop new psychotropic
  820  medications or evaluate their application to children.
  821         (12)JUDICIAL REVIEW HEARINGS.—The department shall fully
  822  inform the court of the child’s medical and behavioral status as
  823  part of the social services report prepared for each judicial
  824  review hearing held for a child for whom psychotropic medication
  825  has been prescribed or provided under this subsection. As a part
  826  of the information provided to the court, the department shall
  827  furnish copies of all pertinent medical records concerning the
  828  child which have been generated since the previous hearing. On
  829  its own motion or on good cause shown by any party, including
  830  any guardian ad litem, attorney, or attorney ad litem who has
  831  been appointed to represent the child or the child’s interests,
  832  the court may review the status more frequently than required in
  833  this subsection.
  834         (13)ADOPTION OF RULES.—The department shall adopt rules to
  835  ensure that children receive timely access to mental health
  836  services, including, but not limited to, clinically appropriate
  837  psychotropic medications. These rules must include, but need not
  838  be limited to, the process for determining which adjunctive
  839  services are needed, the uniform process for facilitating the
  840  prescribing physician’s ability to obtain the express and
  841  informed consent of a child’s parent or legal guardian, the
  842  procedures for obtaining court authorization for the provision
  843  of a psychotropic medication, the frequency of medical
  844  monitoring and reporting on the status of the child to the
  845  court, how the child’s parents will be involved in the
  846  treatment-planning process if their parental rights have not
  847  been terminated, and how caretakers are to be provided
  848  information contained in the physician’s signed mental health
  849  treatment plan. The rules must also include uniform forms or
  850  standardized information to be used statewide in requesting
  851  court authorization for the use of a psychotropic medication and
  852  provide for the integration of each child’s mental health
  853  treatment plan and case plan. The department shall begin the
  854  formal rulemaking process by October 1, 2012.
  855         Section 3. Paragraph (b) of subsection (1) of section
  856  743.0645, Florida Statutes, is amended to read:
  857         743.0645 Other persons who may consent to medical care or
  858  treatment of a minor.—
  859         (1) As used in this section, the term:
  860         (b) “Medical care and treatment” includes ordinary and
  861  necessary medical and dental examination and treatment,
  862  including blood testing, preventive care including ordinary
  863  immunizations, tuberculin testing, and well-child care, but does
  864  not include surgery, general anesthesia, provision of
  865  psychotropic medications, or other extraordinary procedures for
  866  which a separate court order, power of attorney, or informed
  867  consent as provided by law is required, except as provided in s.
  868  39.4071 s. 39.407(3).
  869         Section 4. This act shall take effect July 1, 2012.

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