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 39.4071 Use 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.
