HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 1277 Mental Health and Substance Abuse
SPONSOR(S): Health & Human Services Committee, Children, Families & Seniors Subcommittee, Massullo
TIED BILLS: IDEN./SIM. BILLS: SB 1262
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Children, Families & Seniors Subcommittee 15 Y, 0 N, As CS Rahming Brazzell
2) Criminal Justice & Public Safety Subcommittee 16 Y, 0 N Frost Hall
3) Health Care Appropriations Subcommittee 12 Y, 0 N Fontaine Clark
4) Health & Human Services Committee 16 Y, 0 N, As CS Rahming Calamas
SUMMARY ANALYSIS
The Florida Baker Act, ch. 394, F.S., provides legal procedures for voluntary and involuntary mental health
examination and treatment and the Marchman Act, ch. 397, F.S., does the same for substance abuse.
The bill makes several changes to Baker Act involuntary examination procedures within a receiving facility. It:
Revises conditions under which patient communication with people outside the facility may be
restricted, specifying that a qualified professional must make the determination.
Requires a qualified professional to document patient communication restrictions within 24-hours;
Creates discharge planning and procedures that must be followed if a patient’s 72-hour examination
period ends on a weekend or holiday;
Allows psychiatric nurses to release patients from involuntary exams when practicing in nationally
accredited community mental health centers, under certain conditions;
Requires the Department of Children and Families (DCF) to receive and maintain reports related to a
patient’s transportation to a receiving facility; and
Requires facilities to review a patient’s communication restrictions every three days, instead of weekly.
The bill requires receiving facilities and service providers to provide individuals the option to authorize the
release of their clinical records.
The bill requires law enforcement officers to notify emergency contacts of a person in protective custody under
the Marchman Act, and include the contact information in the incident report under both the Baker and
Marchman Acts. Law enforcement officers must use the emergency contact information contained in motor
vehicle records for this purpose, and the bill creates an exception to the current confidentiality requirements for
the use of that information, for that purpose. This exception also permits a receiving facility, hospital or
licensed, detoxification or addictions receiving facility to use such information for the sole purpose of informing
a patient’s emergency contacts of the patient’s whereabouts.
The bill grants the Commission on Mental Health and Substance Abuse access to any information or records
necessary to carry out its duties, including confidential and exempt records held by state agencies. The bill
gives Commission members the option to hold in-person meetings and provides reimbursement for associated
travel expenses. Finally, the bill extends the initial report due date to January 1, 2023.
The bill provides criminal penalties for certain intentional activities relating to involuntary admission and
treatment under the Baker Act.
The bill will have an insignificant, negative fiscal impact on DCF, which can be absorbed within existing
resources, and an indeterminate negative impact on jail beds by creating a new misdemeanor crime.
The bill provides an effective date of July 1, 2022.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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DATE: 2/24/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Mental Health and Mental Illness
Mental health is a state of well-being in which an individual realizes his or her own abilities, can cope
with the normal stresses of life, can work productively and fruitfully, and is able to contribute to his or
her community.1 The primary indicators used to evaluate an individual’s mental health are: 2
Emotional well-being- Perceived life satisfaction, happiness, cheerfulness, peacefulness;
Psychological well-being- Self-acceptance, personal growth including openness to new
experiences, optimism, hopefulness, purpose in life, control of one’s environment, spirituality,
self-direction, and positive relationships; and
Social well-being- Social acceptance, beliefs in the potential of people and society as a whole,
personal self-worth and usefulness to society, sense of community.
Mental illness is collectively all diagnosable mental disorders or health conditions that are characterized
by alterations in thinking, mood, or behavior (or some combination thereof) associated with distress or
impaired functioning.3 Thus, mental health refers to an individual’s mental state of well-being whereas
mental illness signifies an alteration of that well-being. Mental illness affects millions of people in the
United States each year. Nearly one in five adults lives with a mental illness. 4 During their childhood
and adolescence, nearly half of all children will experience a mental disorder, though the proportion
experiencing severe impairment during childhood and adolescence is much lower, at about 22%. 5
The Baker Act
The Florida Mental Health Act, otherwise known as the Baker Act, was enacted in 1971 to revise the
State’s mental health commitment laws. 6 The Baker Act provides legal procedures for mental health
examination and treatment, including voluntary and involuntary examinations.
Involuntary Examination
Individuals in acute mental or behavioral health crisis may require emergency treatment to stabilize
their condition. Emergency mental health examination and stabilization services may be provided on a
voluntary or involuntary basis.7 An involuntary examination is required if there is reason to believe that
the person has a mental illness and because of his or her mental illness: 8
The person has refused voluntary examination after conscientious explanation and disclosure of
the purpose of the examination or is unable to determine for himself or herself whether
examination is necessary; and
Without care or treatment, the person is likely to suffer from neglect or refuse to care for himself
or herself; such neglect or refusal poses a real and present threat of substantial harm to his or
1 World Health Organization, Mental Health: Strengthening Our Response, https://www.who.int/news -room/fact-sheets/detail/mental-
health-strengthening-our-response (last visited Feb. 3, 2022).
2 Centers for Disease Control and Prevention, Mental Health Basics, http://medbox.iiab.me/modules/en-
cdc/www.cdc.gov/mentalhealth/basics.htm (last visited Feb. 3, 2022).
3 Id.
4 National Institute of Mental Health (NIH), Mental Illness, https://www.nimh.nih.gov/health/statistics/mental-illness (last visited Feb. 3,
2022).
5 Id.
6 Ss. 394.451-394.47891, F.S.
7 Ss. 394.4625 and 394.463, F.S.
8 S. 394.463(1), F.S.
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her well-being; and it is not apparent that such harm may be avoided through the help of willing
family members or friends or the provision of other services; or
There is a substantial likelihood that without care or treatment the person will cause serious
bodily harm to himself or herself or others in the near future, as evidenced by recent behavior.
An involuntary examination may be initiated in one of three ways, 9 including by a law enforcement
officer taking a person who appears to meet the criteria for involuntary examination into custody and
delivering the person or having him or her delivered to an appropriate, or the nearest, receiving facility
for examination. Current law requires the officer to execute a written report detailing the circumstances
under which the person was taken into custody, and to make the report a part of the patient’s clinical
record. However, a law enforcement officer is not currently required to include in his or her written
report any available emergency contact information for the patient or other emergency contact
information available through the Florida Department of Law Enforcement (FDLE) or Florida Highway
Safety and Motor Vehicles (FLHSMV) electronic databases.
Involuntary examination patients must be taken to either a public or private facility which has been
designated by the Department of Children and Families (DCF) as a Baker Act receiving facility. The
purpose of a receiving facility is to receive and hold, or refer, as appropriate, involuntary patients under
emergency conditions for psychiatric evaluation and to provide short-term treatment or transportation to
the appropriate service provider.10 The examination period must be for up to 72 hours.11
Within the 72-hour examination period or, if the 72-hour examination period ends on a weekend or
holiday, the next working day thereafter, the patient must be released, released for voluntary outpatient
treatment, or consent to and be admitted as a voluntary patient; or the facility administrator must file a
petition for involuntary inpatient placement.12
Under current law, the receiving facility may not release an involuntary examination patient without the
documented approval of a psychiatrist, or a clinical psychologist. However, if the receiving facility is
owned or operated by a hospital or health system, the release may also be approved by a psychiatric
nurse performing within the framework of an established protocol with a psychiatrist, or an attending
emergency department physician with experience in the diagnosis and treatment of mental illness who
has completed the involuntary examination. A psychiatric nurse may not approve a patient’s release if
the involuntary examination was initiated by a psychiatrist unless the release is approved by the
initiating psychiatrist.13
Because of the current setting restrictions on where a psychiatric nurse may approve Baker Act
releases, there are close to 30 nationally accredited community mental health providers in Florida that
operate receiving facilities licensed under chapter 394, F.S., but cannot allow their psychiatric nurses to
discharge a Baker Act patient under the protocol of their psychiatrists. 14
Current law requires DCF to prepare and provide annual reports to the agency itself, the President of
the Senate, the Speaker of the House of Representatives, and the minority leaders of the Senate and
the House of Representatives. The annual reports analyze data obtained from involuntary orders
issued under the Baker Act, professional certificates, and law enforcement officers’ reports. 15 Current
9 S. 394.463(2)(a), F.S. An involuntary examination may also be initi ated by any of the following means: A court entering an ex parte
order stating that a person appears to meet the criteria for involuntary examination, based on sworn testimony. The order of the court
shall be made a part of the patient’s clinical record. A physician, clinical psychologist, psychiatric nurse, mental health counselor,
marriage and family therapist, or clinical social worker may execute a certificate stating that he or she has examined a pers on within the
preceding 48 hours and finds that the person appears to meet the criteria for involuntary examination and stating the observations upon
which that conclusion is based. The report and certificate shall be made a part of the patient’s clinical record.
10 S. 394.455(39), F.S.
11 S. 394.463(2)(g), F.S.
12 An eligible patient for release or voluntary treatment that is charged with a crime must be returned to a law enforcement off icer’s
custody. S. 394.463(g), F.S.
13 S. 394.463(f), F.S.
14 Email from Melanie Brown-Woofter, President and CEO, Florida Behavioral Health Association, Re: HB 1143 - FCBH Comments- HB
1277 Update (Jan. 19, 2022).
15 S. 394.463(e), F.S.
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law does not require DCF to receive or maintain reports relating to an involuntary patient’s
transportation to a facility.
Patient Rights – Communication
The Baker Act protects the rights of all individuals examined or treated for mental illness in Florida,
including, but not limited to, the right to communicate freely and privately with persons outside a facility,
unless the facility determines that such communication is likely to be harmful to the patient or others;
and the right to not have their incoming or outgoing mail opened, delayed, held, or censored by the
facility, unless there is reason to believe it contains items or substances that may be harmful to the
patient or others.16
Currently, a facility must also provide immediate patient access to a patient’s family members,
guardian, guardian advocate, representative, Florida statewide or local advocacy council, or attorney,
unless such access would be detrimental to the patient or the patient exercises the right not to
communicate or visit with the person.17 If a facility restricts a patient's right to communicate or receive
visitors, the facility must provide written notice of the restriction and the reasons for it to the patient, the
patient's attorney, and the patient's guardian, guardian advocate, or representative.
A facility must review patient communication restrictions weekly. 18
Baker Act Violations
Access to Relatives
News reports have identified problems related to a receiving facility denying patient rights under the
Baker Act, particularly as it relates to a patient’s right to have access to their family members. For
example, the families of 10 former North Tampa Behavioral Health patients told the Tampa Bay Times
that they were not allowed to see their relatives because their calls went unanswered or straight to
voicemail when they attempted to check on loved ones or because the hospital insisted they come
during “totally inappropriate” and “overly restrictive” visitation hours.19
Release and Due Process
State investigators also confirmed problems at North Tampa Behavioral Health related to a patient’s
discharge after the 72-hour examination period. The Agency for Health Care Administration (AHCA)20
determined that the facility “failed to either discharge or petition the court for involuntary placement
within the 72-hour examinations period for one of four sampled patients.” 21 According to the
investigation report, the hospital’s risk manager confirmed AHCA’s finding, indicating the facility’s
administrator signed the Notice of Petition for Involuntary Placement more than 24 hours after the 72-
hour examination period expired.
16 S. 394.459(5), F.S. Other patient rights include the right to dignity; treatmen t regardless of ability to pay; express and informed
consent for admission or treatment; quality treatment; possession of his or her clothing and personal effects; vote in electi ons, if eligible;
petition the court for a writ of habeas corpus to question the cause and legality of their detention in a receiving or treatment facility; and
participate in their treatment and discharge planning. See, s. 394.459 (1)-(11), F.S. Current law imposes liability for damages on those
who violate or abuse patient rights or privileges. See, s. 394.459 (10), F.S.
17 S. 394.459(5)(c), F.S.
18 Id. Every seven days.
19 Neil Bedi, How one Florida psychiatric hospital makes millions off patients who have no choice, Tampa Bay Times (Sept. 18, 2019),
https://projects.tampabay.com/projects/2019/investigations/north-tampa-behavioral-health/ (last visited Feb. 3, 2022).
20 The Agency for Health Care Administration (AHCA) is responsible for the administration of the Florida Medicaid program, licensure
and regulation of Florida’s health facilities and for providing Floridians information about the quality of care they receive . AHCA, Home,
https://ahca.myflorida.com/ (last visited Fec. 21, 2022).
21 AHCA, Summary Statement of Deficiencies, https://apps.ahca.myflorida.com/dm_web/DMWeb_Docs/9536816.pdf (last visited Feb.
21, 2022).
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Additionally, AHCA determined that the facility failed to timely file the patient’s habeas corpus petition 22
with the court.23 This also contributed to the patient being held at the facility longer than permitted under
law.
False Information, False Pretenses, and Denial of Patient Rights
Unlike the Marchman Act (see below), the Baker Act does not make it a crime to knowingly and willfully
furnish false information for the purpose of obtaining emergency or other involuntary admission, cause
or conspire to cause any person’s emergency or other involuntary procedure under false pretenses, or
cause, or conspire with or assist a