January 22, 2021
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_h1567__
HB 1567

1
A bill to be entitled
2An act relating to the provision of psychotropic
3medication to children in out-of-home placements;
4repealing s. 39.407(3), F.S., relating to the authority of
5the Department of Children and Family Services to
6prescribe psychotropic medication to a child in its
7custody; creating s. 39.4071, F.S.; providing legislative
8findings and intent; providing definitions; requiring that
9a guardian ad litem be appointed by the court to represent
10a child in the custody of the Department of Children and
11Family Services who is prescribed a psychotropic
12medication; prescribing the duties of the guardian ad
13litem; requiring that the department or lead agency notify
14the guardian ad litem of any change in the status of the
15child; requiring that express and informed consent and
16assent be obtained from a child or the child's parent or
17guardian; providing requirements for a prescribing
18physician in obtaining consent and assent; providing for
19the invalidation of a parent's informed consent; requiring
20the department to seek informed consent from the legal
21guardian in certain circumstances; requiring the
22department to file a motion for the administration of
23psychotropic medication with the final judgment of
24termination of parental rights under certain
25circumstances; requiring that a court authorize the
26administration of psychotropic medication to a child who
27is in shelter care or in foster care and for whom parental
28consent has not been obtained; providing requirements for
29the motion to the court; requiring that any party
30objecting to the administration of psychotropic medication
31file its objection within a specified period; authorizing
32the court to obtain a second opinion regarding the
33proposed administration; requiring that the court hold a
34hearing if any party objects to the proposed
35administration; specifying circumstances under which the
36department may provide psychotropic medication to a child
37before court authorization is obtained; requiring that the
38department seek court authorization for continued
39administration of the medication; providing for an
40expedited hearing on such motion under certain
41circumstances; requiring the department to provide notice
42to all parties and the court for each emergency use of
43psychotropic medication under certain conditions;
44requiring that a mental health treatment plan be developed
45for each child or youth who is placed into an out-of-home
46placement; requiring certain information to be included in
47a mental health treatment plan; requiring the department
48to develop and administer procedures to require the
49caregiver and prescribing physician to report any adverse
50side effects; requiring documentation of the adverse side
51effects; prohibiting the prescription of psychotropic
52medication to certain children who are in out-of-home care
53absent certain conditions; requiring review by a licensed
54child psychiatrist before psychotropic medication is
55administered to certain children who are in out-of-home
56care under certain conditions; prohibiting authorization
57for a child in the custody of the department to
58participate in any clinical trial designed to evaluate the
59use of psychotropic medication in children; amending s.
60743.0645, F.S.; conforming a cross-reference; providing an
61effective date.
62
63Be It Enacted by the Legislature of the State of Florida:
64
65     Section 1.  Subsection (3) of section 39.407, Florida
66Statutes, is repealed.
67     Section 2.  Section 39.4071, Florida Statutes, is created
68to read:
69     39.4071  Use of psychotropic medication for children in
70out-of-home placement.-
71     (1)  LEGISLATIVE FINDINGS AND INTENT.-
72     (a)  The Legislature finds that children in out-of-home
73placements often have multiple risk factors that predispose them
74to emotional and behavioral disorders and that they receive
75mental health services at higher rates and are more likely to be
76given psychotropic medications than children from comparable
77backgrounds.
78     (b)  The Legislature also finds that the use of
79psychotropic medications for the treatment of children in out-
80of-home placements who have emotional and behavioral
81disturbances has increased over recent years. While this
82increased use of psychotropic medications is paralleled by an
83increase in the rate of the coadministration of two or more
84psychotropic medications or polypharmacy, data on the safety and
85efficacy of many of the psychotropic medications used in
86children and research supporting the practice of polypharmacy in
87this population is limited.
88     (c)  The Legislature further finds that significant
89challenges are encountered in providing quality mental health
90care to children in out-of-home placements. Not uncommonly,
91children in out-of-home placements are subjected to multiple
92placements and many service providers, with communication
93between providers often poor, resulting in fragmented medical
94and mental health care. The dependable, ongoing therapeutic and
95caregiving relationships these children need are hampered by the
96high turnover among child welfare caseworkers and care
97providers. Furthermore, children in out-of-home placements,
98unlike children from intact families, often have no consistent
99interested party who is available to coordinate treatment and
100monitoring plans or to provide longitudinal oversight of care.
101     (d)  It is therefore the intent of the Legislature that
102children in out-of-home placements who may benefit from
103psychotropic medications receive those medications safely as
104part of a comprehensive mental health treatment plan overseen by
105a court-appointed guardian ad litem.
106     (2)  DEFINITIONS.-As used in this section, the term:
107     (a)  "Assent" means a process by which a provider of
108medical services helps a child achieve a developmentally
109appropriate awareness of the nature of his or her condition,
110informs the child of what can be expected through tests and
111treatment, makes a clinical assessment of the child's
112understanding of the situation and the factors influencing how
113he or she is responding, and solicits an expression of the
114child's willingness to accept the proposed care. The mere
115absence of an objection by the child may not be construed as
116assent.
117     (b)  "Comprehensive behavioral health assessment" means an
118in-depth and detailed assessment of the child's emotional,
119social, behavioral, and developmental functioning within the
120family home, school, and community. A comprehensive behavioral
121health assessment must include direct observation of the child
122in the home, school, and community, as well as in the clinical
123setting, and must adhere to the requirements contained in the
124Florida Medicaid Community Behavioral Health Services Coverage
125and Limitations Handbook.
126     (c)  "Express and informed consent" means voluntary consent
127from a parent whose rights have not been terminated or a legal
128guardian of the child who has received full, accurate, and
129sufficient information and an explanation about the child's
130medical condition, medication, and treatment in order to enable
131the parent or guardian to make a knowledgeable decision without
132being subjected to any deceit or coercion.
133     (d)  "Mental health treatment plan" means a report that is
134prepared by a physician prescribing psychotropic medication to a
135child in out-of-home placement and that includes the information
136required by this section.
137     (e)  "Psychotropic medication" means any chemical substance
138prescribed with the intent to treat psychiatric disorders, and
139those substances that, though prescribed with the intent to
140treat other medical conditions, have the effect of altering
141brain chemistry or involve any of the medications in the
142following categories:
143     1.  Antipsychotics;
144     2.  Antidepressants;
145     3.  Sedative hypnotics;
146     4.  Lithium;
147     5.  Stimulants;
148     6.  Nonstimulant medications for treating attention deficit
149hyperactivity disorder;
150     7.  Anti-dementia medications and cognitive enhancers;
151     8.  Anticonvulsants and alpha-2 agonists; and
152     9.  Any other medication used to stabilize or improve mood,
153mental status, behavior, or mental illness.
154     (3)  APPOINTMENT OF GUARDIAN AD LITEM.-
155     (a)  A guardian ad litem shall be appointed by the court at
156the earliest possible time to represent the best interests of a
157child in the custody of the department who is prescribed a
158psychotropic medication. Pursuant to s. 39.820, the appointed
159guardian ad litem is a party to any judicial proceeding as a
160representative of the child and serves until discharged by the
161court.
162     (b)  It is the duty of the guardian ad litem to oversee the
163care, health, and medical treatment of the child; to advise the
164court regarding any change in the status of the child; and to
165respond to any medical emergency of the child.
166     (c)  The department and the community-based care lead
167agency shall notify the guardian ad litem within 24 hours after
168any change in the status of the child, including, but not
169limited to, a change in placement, a change in school, or a
170change in medical condition or medication.
171     (4)  EXPRESS AND INFORMED CONSENT AND ASSENT.-If, at the
172time of removal from his or her home, a child is being provided
173or is being evaluated for the initiation of prescribed
174psychotropic medication under this section, express and informed
175consent and assent shall be sought by the prescribing physician.
176     (a)  The prescribing physician shall obtain assent from the
177child, unless the prescribing physician determines that it is
178not appropriate to obtain assent from the child. In making this
179assessment, the prescribing physician shall consider the
180capacity of the child to make an independent decision based on
181his or her age, maturity, and psychological and emotional state.
182If the physician determines that it is not appropriate to obtain
183assent from the child, the physician must document the decision
184in the mental health treatment plan.
185     1.  Assent from a child shall be sought in a manner that is
186understandable to the child using an age-appropriate assent
187form. The child shall be provided with sufficient information,
188such as the nature and purpose of the medication, the probable
189risks and benefits, alternative treatments and the risks and
190benefits thereof, and the risks and benefits of refusing or
191discontinuing the medication. Assent may be oral or written and
192must be documented by the prescribing physician.
193     2.  Oral assent is appropriate for a child who is younger
194than 7 years of age. Assent from a child who is 7 to 13 years of
195age may be sought orally or in a simple form that is written at
196the second-grade or third-grade reading level. A child who is 14
197years of age or older may understand the language presented in
198the consent form for parents or guardians. If so, the child may
199sign the consent form along with the parent or guardian. Forms
200for parents and older children shall be written at the sixth-
201grade to eighth-grade reading level.
202     3.  In each case where assent is obtained, a copy of the
203assent documents must be provided to the parent or legal
204guardian and the original assent documents shall become part of
205the child's mental health treatment plan.
206     (b)  Express and informed consent for the administration of
207psychotropic medication may be given only by a parent whose
208rights have not been terminated or a legal guardian of the child
209who has received full, accurate, and sufficient information and
210an explanation about the child's medical condition, medication,
211and treatment in order to enable the parent or guardian to make
212a knowledgeable decision. A sufficient explanation includes, but
213need not be limited to, the following information, which is
214provided and explained in plain language by the prescribing
215physician to the parent or guardian: the medication, the reason
216for prescribing it, and its purpose or intended results; side
217effects, risks, and contraindications, including effects of
218stopping the medication; method for administering the medication
219and dosage range when applicable; potential drug interactions;
220alternative treatments; and the behavioral health or other
221services used to complement the use of medication, when
222applicable.
223     1.  Express and informed consent may be oral or written and
224must be documented by the prescribing physician. If the
225department or the physician is unable to obtain consent from the
226parent or guardian, the reasons must be documented.
227     2.  When express and informed consent is obtained, a copy
228of the consent documents must be provided to the parent or legal
229guardian and the original consent documents shall become part of
230the child's mental health treatment plan.
231     (c)  The informed consent of any parent whose whereabouts
232are unknown for 60 days, who is adjudicated incompetent, who
233does not have regular and frequent contact with the child, or
234whose parental rights are terminated after giving consent, is
235invalid. If the informed consent of a parent becomes invalid,
236the department shall seek informed consent from the legal
237guardian. If the informed consent was provided by a parent whose
238parental rights have been terminated, the department shall file
239a motion for the administration of psychotropic medication along
240with the motion for final judgment of termination of parental
241rights.
242     (5)  ADMINISTRATION OF PSYCHOTROPIC MEDICATION TO A CHILD
243IN SHELTER CARE OR IN FOSTER CARE WHEN PARENTAL CONSENT HAS NOT
244BEEN OBTAINED.-
245     (a)  Motion for court authorization for administration of
246psychotropic medications.-
247     1.  If the department believes that a child in its physical
248or legal custody requires the administration of a psychotropic
249medication and the child's parents or legal guardians have not
250provided express and informed consent as provided by law, the
251department or its agent shall file a motion with the court to
252authorize the administration of the psychotropic medication
253before the administration of the medication, except as provided
254in subsection (6). In each case in which a motion is required,
255the motion must include:
256     a.  A written report by the department describing the
257efforts made to enable the prescribing physician to obtain
258express and informed consent for providing the medication to the
259child and describing other treatments considered or recommended
260for the child; and
261     b.  The prescribing physician's completed and signed mental
262health treatment plan.
263     2.  The department must file a copy of the motion with the
264court and, within 48 hours after filing the motion with the
265court, notify all parties in writing, or by whatever other
266method best ensures that all parties receive notification, of
267its proposed administration of psychotropic medication to the
268child.
269     3.  If any party objects to the proposed administration of
270the psychotropic medication to the child, that party must file
271its objection within 2 working days after being notified of the
272department's motion.
273     (b)  Court action on motion for administration of
274psychotropic medication.-
275     1.  If no party timely files an objection to the
276department's motion, the court may enter its order authorizing
277the proposed administration of the psychotropic medication
278without a hearing. Based on its determination of the best
279interests of the child, the court may order additional medical
280consultation or require the department to obtain a second
281opinion within a reasonable time, but not more than 21 calendar
282days. If the court orders an additional medical consultation or
283second medical opinion, the department shall file a written
284report including the results of this additional consultation or
285a copy of the second medical opinion with the court within the
286time required by the court, and shall serve a copy of the report
287as required by this section.
288     2.  If any party timely files its objection to the proposed
289administration of the psychotropic medication to the child, the
290court shall hold a hearing as soon as possible on the
291department's motion.
292     a.  The medical report of the prescribing physician is
293admissible in evidence at the hearing.
294     b.  The court shall ask the department whether additional
295medical, mental health, behavioral, counseling, or other
296services are being provided to the child which the prescribing
297physician considers to be necessary or beneficial in treating
298the child's medical condition and which the physician recommends
299or expects to be provided to the child along with the
300medication.
301     3.  The court may order additional medical consultation or
302a second medical opinion, as provided in subparagraph 1.
303     4.  After considering the department's motion and any
304testimony received, the court may order that the department
305provide or continue to provide the proposed psychotropic
306medication to the child upon a determination that it is in the
307child's best interest to do so.
308     (6)  ADMINISTRATION OF PSYCHOTROPIC MEDICATION TO A CHILD
309IN OUT-OF-HOME CARE BEFORE COURT AUTHORIZATION HAS BEEN
310OBTAINED.-The department may provide continued administration of
311psychotropic medication to a child before authorization by the
312court has been obtained only as provided in this subsection.
313     (a)  If a child is removed from the home and taken into
314custody under s. 39.401, the department may continue to
315administer a current prescription of psychotropic medication to
316the child; however, the department shall request court
317authorization for the continued administration of the medication
318at the shelter hearing. This request shall be included in the
319shelter petition.
320     1.  The department shall provide all information in its
321possession to the court in support of its request at the shelter
322hearing. The court may authorize the continued administration of
323the psychotropic medication only until the arraignment hearing
324on the petition for adjudication, or for 28 days following the
325date of the child's removal, whichever occurs first.
326     2.  If the department believes, based on the required
327physician's evaluation, that it is appropriate to continue the
328psychotropic medication beyond the time authorized by the court
329at the shelter hearing, the department shall file a motion
330seeking continued court authorization at the same time that it
331files the dependency petition, but within 21 days after the
332shelter hearing.
333     (b)  If the department believes, based on the certification
334of the prescribing physician, that delay in providing the
335prescribed psychotropic medication to the child would, more
336likely than not, cause significant harm to the child, the
337department must submit a motion to the court seeking
338continuation of the medication within 3 working days after the
339department begins providing the medication to the child.
340     1.  The motion seeking authorization for the continued
341administration of the psychotropic medication to the child must
342include all information required in this section. The required
343medical report must also include the specific reasons why the
344child may experience significant harm, and the nature and the
345extent of the potential harm, resulting from a delay in
346authorizing the prescribed medication.
347     2.  The department shall serve the motion on all parties
348within 3 working days after the department begins providing the
349medication to the child.
350     3.  The court shall hear the department's motion at the
351next regularly scheduled court hearing required by law, or
352within 30 days after the date of the prescription, whichever
353occurs first. However, if any party files an objection to the
354motion, the court shall hold a hearing within 7 days.
355     (c)  The department may authorize, in advance of a court
356order, the administration of psychotropic medications to a child
357in its custody in a hospital, crisis stabilization unit, or in
358statewide inpatient psychiatric program. If the department does
359so, it must seek court authorization for the continued
360administration of the medication as required in this section.
361     (d)  If a child receives a one-time dose of a psychotropic
362medication during a crisis, the department shall provide
363immediate notice to all parties and to the court of each such
364emergency use.
365     (7)  DEVELOPMENT OF MENTAL HEALTH TREATMENT PLAN.-
366     (a)  Within 7 days after a child or youth is placed into an
367approved out-of-home placement, the child protective
368investigator or dependency case manager shall submit a referral
369for a comprehensive behavioral health assessment, which shall be
370used to develop a mental health treatment plan for the child.
371The mental health treatment plan must include:
372     1.  The name of the child, a statement indicating that
373there is a need to prescribe psychotropic medication to the
374child based upon a diagnosed, organically caused condition for
375which such medication is being prescribed, a statement
376indicating the compelling governmental interest in prescribing
377the psychotropic medication, and the name and range of the
378dosage of the psychotropic medication.
379     2.  A statement indicating that the physician has reviewed
380all medical information concerning the child which has been
381provided.
382     3.  A statement indicating that the psychotropic
383medication, at its prescribed dosage, is appropriate for
384treating the child's diagnosed medical condition, as well as the
385behaviors and symptoms that the medication, at its prescribed
386dosage, is expected to address.
387     4.  An explanation of the nature and purpose of the
388treatment; the recognized side effects, risks, and
389contraindications of the medication, including procedures for
390reporting adverse effects; drug-interaction precautions; the
391possible effects of stopping the medication; and how the
392treatment will be monitored, followed by a statement indicating
393that this explanation was provided to the child if age
394appropriate and to the child's caregiver.
395     5.  Documentation addressing whether the psychotropic
396medication will replace or supplement any other currently
397prescribed medications or treatments; the length of time the
398child is expected to be taking the medication; a plan for the
399discontinuation of any medication when medically appropriate;
400and any additional medical, mental health, behavioral,
401counseling, or other services that the prescribing physician
402recommends as part of a comprehensive treatment plan.
403     (b)  The department shall develop and administer procedures
404to require the caregiver and prescribing physician to report any
405adverse side effects of the medication to the department or its
406designee. Any adverse side effects must be documented in the
407treatment plan for the child.
408     (8)  REVIEW FOR ADMINISTRATION OF PSYCHOTROPIC MEDICATION
409FOR CHILDREN FROM BIRTH THROUGH 10 YEARS OF AGE IN OUT-OF-HOME
410CARE.-Absent a finding of a compelling governmental interest, a
411psychotropic medication may not be prescribed for any child from
412birth to 10 years of age who is in out-of-home placement. Based
413on a finding of a compelling governmental interest but before a
414psychotropic medication is prescribed for any child from birth
415through 10 years of age who is in an out-of-home placement, a
416review of the administration must be obtained from a child
417psychiatrist who is licensed under chapter 458 or chapter 459.
418This review must occur before express and informed consent or
419assent is sought from the child or his or her parent or
420guardian.
421     (9)  CLINICAL TRIALS.-At no time shall a child in the
422custody of the department be allowed to participate in a
423clinical trial that is designed to develop new psychotropic
424medications or evaluate their application to children.
425     Section 3.  Paragraph (b) of subsection (1) of section
426743.0645, Florida Statutes, is amended to read:
427     743.0645  Other persons who may consent to medical care or
428treatment of a minor.-
429     (1)  As used in this section, the term:
430     (b)  "Medical care and treatment" includes ordinary and
431necessary medical and dental examination and treatment,
432including blood testing, preventive care including ordinary
433immunizations, tuberculin testing, and well-child care, but does
434not include surgery, general anesthesia, provision of
435psychotropic medications, or other extraordinary procedures for
436which a separate court order, power of attorney, or informed
437consent as provided by law is required, except as provided in s.
43839.4071 s. 39.407(3).
439     Section 4.  This act shall take effect July 1, 2010.


CODING: Words stricken are deletions; words underlined are additions.
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