Florida Senate - 2024 SB 960



By Senator Berman





26-01544-24 2024960__
1 A bill to be entitled
2 An act relating to outpatient mental health services;
3 amending s. 394.455, F.S.; revising and providing
4 definitions; amending s. 394.4655, F.S.; authorizing a
5 court to order a respondent into outpatient treatment
6 for a specified amount of time under certain
7 circumstances; providing criteria for involuntary
8 outpatient treatment; requiring monitoring of the
9 respondent for the duration of his or her treatment;
10 requiring the court to retain jurisdiction over the
11 case and parties under certain circumstances;
12 authorizing a certain court exercising original
13 jurisdiction to order certain respondents into
14 involuntary outpatient services; prohibiting such
15 court from using incarceration as a sanction for
16 noncompliance with the outpatient treatment plan;
17 amending s. 394.467, F.S.; revising criteria for
18 involuntary inpatient placement; amending ss.
19 394.4599, 394.4615, 394.463, 394.467, 394.495,
20 394.496, 394.9085, 409.972, 464.012, 744.2007, and
21 790.065, F.S.; conforming provisions and cross
22 references to changes made by the act; providing an
23 effective date.
24
25 Be It Enacted by the Legislature of the State of Florida:
26
27 Section 1. Subsections (32) through (39) and (40) through
28 (50) of section 394.455, Florida Statutes, are redesignated as
29 subsections (33) through (40) and (42) through (52),
30 respectively, subsection (23) is amended, and new subsections
31 (32) and (41) are added to that section, to read:
32 394.455 Definitions.—As used in this part, the term:
33 (23) “Involuntary examination” means an examination
34 performed under s. 394.463, s. 397.6772, s. 397.679, s.
35 397.6798, or s. 397.6957 s. 397.6811 to determine whether a
36 person qualifies for involuntary services.
37 (32) “Neglect or refuse to care for himself or herself”
38 means a refusal to accept treatment and includes, but is not
39 limited to, evidence that a person:
40 (a) Is, for a reason other than indigence, unable to
41 satisfy basic needs for nourishment, clothing, medical care,
42 shelter, or safety, thereby creating a substantial probability
43 of imminent death, serious physical debilitation, or disease; or
44 (b) Is substantially unable to make an informed treatment
45 choice, after an explanation of the advantages and disadvantages
46 of, and alternatives to, treatment, and needs care or treatment
47 to prevent deterioration. However, the following do not
48 constitute a refusal to accept treatment:
49 1. A willingness to take medication appropriate for the
50 person’s condition, but a reasonable disagreement about type or
51 dosage;
52 2. A good faith effort to follow a reasonable treatment
53 plan;
54 3. An inability to obtain access to appropriate treatment
55 because of inadequate health care coverage or an insurer’s
56 refusal or delay in providing coverage for treatment; or
57 4. An inability to obtain access to needed services because
58 the provider has no available treatment beds or qualified
59 professionals, the provider only accepts patients under court
60 order, or the provider gives persons under court order priority
61 over voluntary patients in obtaining treatment and services.
62 (41) “Real and present threat of substantial harm”
63 includes, but is not limited to, evidence of a substantial
64 probability that the untreated person will:
65 (a) Lack, refuse, or not receive services for health and
66 safety which are actually available in the community; or
67 (b) Suffer severe mental, emotional, or physical harm that
68 will result in the loss of his or her ability to function in the
69 community or in the loss of cognitive or volitional control over
70 his or her thoughts or actions.
71 Section 2. Section 394.4655, Florida Statutes, is amended
72 to read:
73 (Substantial rewording of section. See
74 s. 394.4655, F.S., for present text.)
75 394.4655 Involuntary outpatient services.—
76 (1)(a) A court may order a respondent into outpatient
77 treatment for up to 6 months if, during the initial hearing
78 under s. 394.467 or a subsequent hearing before a respondent’s
79 anticipated discharge from inpatient placement, at the request
80 of the facility, and providing at least 1 week’s notice to the
81 court and the parties of its belief that the respondent would
82 benefit from involuntary outpatient services, it is established
83 that the respondent meets the involuntary placement criteria and
84 all of the following:
85 1. The respondent has been incarcerated, has been
86 involuntarily admitted to a receiving facility or treatment
87 facility as defined in s. 394.455, or has received mental health
88 services in a forensic or correctional facility at least twice
89 during the previous 36 months.
90 2. The outpatient treatment is provided and available in
91 the county in which the respondent resides or will reside if he
92 or she is being placed from a state treatment facility.
93 3. The respondent’s treating physician certifies, within a
94 reasonable degree of medical probability, that the respondent:
95 a. May be appropriately treated on an outpatient basis.
96 b. Is able to follow and benefit from the prescribed
97 treatment plan.
98 (b) For the duration of his or her treatment, the
99 respondent must be monitored by a social worker or case manager
100 of the outpatient treatment provider, or a willing, able, and
101 responsible individual appointed by the court who must inform
102 the court, state attorney, and respondent’s counsel of any
103 failure by the respondent to comply with his or her outpatient
104 program.
105 (2) The court shall, if required, retain jurisdiction over
106 the case and parties for the entry of further orders after a
107 hearing. Such jurisdiction includes, but is not limited to,
108 ordering inpatient treatment to stabilize a respondent who
109 decompensates while under court-ordered treatment and meets the
110 commitment criteria of s. 394.467(1), and extending, modifying,
111 or ending outpatient services. For a court to extend, modify, or
112 end outpatient services, the appropriate motion must be filed
113 with the court before the operating order expires, and the court
114 shall schedule a hearing as soon as practicable to determine
115 whether the respondent still meets the commitment criteria and
116 assess the appropriateness of any treatment modification.
117 (3) A criminal county court exercising its original
118 jurisdiction in a misdemeanor case under s. 34.01 may order into
119 involuntary outpatient services a respondent who meets the
120 commitment criteria. The court may not use incarceration as a
121 sanction for noncompliance with the outpatient treatment plan,
122 but it may order an evaluation for possible inpatient placement
123 if there is significant, or multiple instances of,
124 noncompliance.
125 Section 3. Paragraph (a) of subsection (1) of section
126 394.467, Florida Statutes, is amended to read:
127 394.467 Involuntary inpatient placement.—
128 (1) CRITERIA.—A person may be ordered for involuntary
129 inpatient placement for treatment upon a finding of the court by
130 clear and convincing evidence that:
131 (a) He or she has a mental illness and because of his or
132 her mental illness:
133 1.a. He or she has refused voluntary inpatient placement
134 for treatment after sufficient and conscientious explanation and
135 disclosure of the purpose of inpatient placement for treatment;
136 or
137 b. He or she is unable to determine for himself or herself
138 whether inpatient placement is necessary; and
139 2.a. He or she is incapable of surviving alone or with the
140 help of willing and responsible family or friends, including
141 available alternative services, and, without treatment, is
142 likely to suffer from neglect or refuse to care for himself or
143 herself, and such neglect or refusal poses a real and present
144 threat of substantial harm to his or her well-being; or
145 b. There is substantial likelihood that in the near future,
146 and without services, he or she will inflict serious bodily harm
147 to on self or others, as evidenced by recent acts, omissions, or
148 behavior causing, attempting, or threatening such harm,
149 including, but not limited to, significant property damage; and
150 Section 4. Paragraph (d) of subsection (2) of section
151 394.4599, Florida Statutes, is amended to read:
152 394.4599 Notice.—
153 (2) INVOLUNTARY ADMISSION.—
154 (d) The written notice of the filing of the petition for
155 involuntary services for an individual being held must contain
156 the following:
157 1. Notice that the petition for:
158 a. Involuntary inpatient treatment pursuant to s. 394.467
159 has been filed with the circuit court in the county in which the
160 individual is hospitalized and the address of such court; or
161 b. Involuntary outpatient services pursuant to s. 394.4655
162 has been filed with the criminal county court, as provided under
163 s. 394.4655 defined in s. 394.4655(1), or the circuit court, as
164 applicable, in the county in which the individual is
165 hospitalized and the address of such court.
166 2. Notice that the office of the public defender has been
167 appointed to represent the individual in the proceeding, if the
168 individual is not otherwise represented by counsel.
169 3. The date, time, and place of the hearing and the name of
170 each examining expert and every other person expected to testify
171 in support of continued detention.
172 4. Notice that the individual, the individual’s guardian,
173 guardian advocate, health care surrogate or proxy, or
174 representative, or the administrator may apply for a change of
175 venue for the convenience of the parties or witnesses or because
176 of the condition of the individual.
177 5. Notice that the individual is entitled to an independent
178 expert examination and, if the individual cannot afford such an
179 examination, that the court will provide for one.
180 Section 5. Subsection (3) of section 394.4615, Florida
181 Statutes, is amended to read:
182 394.4615 Clinical records; confidentiality.—
183 (3) Information from the clinical record may be released in
184 the following circumstances:
185 (a) When a patient has communicated to a service provider a
186 specific threat to cause serious bodily injury or death to an
187 identified or a readily available person, if the service
188 provider reasonably believes, or should reasonably believe
189 according to the standards of his or her profession, that the
190 patient has the apparent intent and ability to imminently or
191 immediately carry out such threat. When such communication has
192 been made, the administrator may authorize the release of
193 sufficient information to provide adequate warning to the person
194 threatened with harm by the patient.
195 (b) When the administrator of the facility or secretary of
196 the department deems release to a qualified researcher as
197 defined in administrative rule, an aftercare treatment provider,
198 or an employee or agent of the department is necessary for
199 treatment of the patient, maintenance of adequate records,
200 compilation of treatment data, aftercare planning, or evaluation
201 of programs.
202
203 For the purpose of determining whether a person meets the
204 criteria for involuntary outpatient placement or for preparing
205 the proposed treatment plan pursuant to s. 394.4655, the
206 clinical record may be released to the state attorney, the
207 public defender or the patient’s private legal counsel, the
208 court, and to the appropriate mental health professionals,
209 including the service provider identified in s.
210 394.4655(7)(b)2., in accordance with state and federal law.
211 Section 6. Paragraph (g) of subsection (2) of section
212 394.463, Florida Statutes, is amended to read:
213 394.463 Involuntary examination.—
214 (2) INVOLUNTARY EXAMINATION.—
215 (g) The examination period must be for up to 72 hours. For
216 a minor, the examination shall be initiated within 12 hours
217 after the patient’s arrival at the facility. Within the
218 examination period, one of the following actions must be taken,
219 based on the individual needs of the patient:
220 1. The patient shall be released, unless he or she is
221 charged with a crime, in which case the patient shall be
222 returned to the custody of a law enforcement officer;
223 2. The patient shall be released, subject to subparagraph
224 1., for voluntary outpatient treatment;
225 3. The patient, unless he or she is charged with a crime,
226 shall be asked to give express and informed consent to placement
227 as a voluntary patient and, if such consent is given, the
228 patient shall be admitted as a voluntary patient; or
229 4. A petition for involuntary services shall be filed in
230 the circuit court if inpatient treatment is deemed necessary or
231 with the criminal county court, as defined in s. 394.4655(1), as
232 applicable. When inpatient treatment is deemed necessary, the
233 least restrictive treatment consistent with the optimum
234 improvement of the patient’s condition shall be made available.
235 When a petition is to be filed for involuntary outpatient
236 placement, it shall be filed by one of the petitioners specified
237 in s. 394.4655(4)(a). A petition for involuntary inpatient
238 placement shall be filed by the facility administrator. If a
239 patient’s 72-hour examination period ends on a weekend or
240 holiday, and the receiving facility:
241 a. Intends to file a petition for involuntary services,
242 such patient may be held at a receiving facility through the
243 next working day thereafter and such petition for involuntary
244 services must be filed no later than such date. If the receiving
245 facility fails to file a petition for involuntary services at
246 the close of the next working day, the patient shall be released
247 from the receiving facility following approval pursuant to
248 paragraph (f).
249 b. Does not intend to file a petition for involuntary
250 services, a receiving facility may postpone release of a patient
251 until the next working day thereafter only if a qualified
252 professional documents that adequate discharge planning and
253 procedures in accordance with s. 394.468, and approval pursuant
254 to paragraph (f), are not possible until the next working day.
255 Section 7. Paragraph (c) of subsection (6) of section
256 394.467, Florida Statutes, is amended to read:
257 394.467 Involuntary inpatient placement.—
258 (6) HEARING ON INVOLUNTARY INPATIENT PLACEMENT.—
259 (c) If at any time before the conclusion of the hearing on
260 involuntary inpatient placement it appears to the court that the
261 person does not meet the criteria for involuntary inpatient
262 placement under this section, but instead meets the criteria for
263 involuntary outpatient services, the court may order the person
264 evaluated for involuntary outpatient services pursuant to s.
265 394.4655. The petition and hearing procedures set forth in s.
266 394.4655 shall apply. If the person instead meets the criteria
267 for involuntary assessment, protective custody, or involuntary
268 admission pursuant to s. 397.675, then the court may order the
269 person to be admitted for involuntary assessment for a period of
270 5 days pursuant to s. 397.6811. Thereafter, all proceedings are
271 governed by chapter 397.
272 Section 8. Paragraphs (a) and (c) of subsection (3) of
273 section 394.495, Florida Statutes, are amended to read:
274 394.495 Child and adolescent mental health system of care;
275 programs and services.—
276 (3) Assessments must be performed by:
277 (a) A professional as defined in s. 394.455(5), (7), (34)
278 (33), (37) (36), or (38) (37);
279 (c) A person who is under the direct supervision of a
280 qualified professional as defined in s. 394.455(5), (7), (34)
281 (33), (37) (36), or (38) (37) or a professional licensed under
282 chapter 491.
283 Section 9. Subsection (5) of section 394.496, Florida
284 Statutes, is amended to read:
285 394.496 Service planning.—
286