Florida Senate - 2010 SB 1140
By Senator Fasano
1 A bill to be entitled
2 An act relating to mental health; creating s.
3 394.4656, F.S.; creating the Community Mental Health
4 and Substance Abuse Treatment and Crime Reduction Act;
5 providing legislative findings and intent; providing
6 goals for the community mental health and substance
7 abuse forensic treatment system; defining terms;
8 requiring the Department of Children and Family
9 Services, in consultation with the Agency for Health
10 Care Administration, to develop and implement a
11 community mental health and substance abuse forensic
12 treatment system; providing initiatives and strategies
13 for the community forensic system; detailing the
14 services to be provided in the community forensic
15 system; setting forth the eligibility criteria for
16 treatment in the system; authorizing the department,
17 within available resources, to develop a continuum of
18 services to implement the Community Mental Health and
19 Substance Abuse Treatment and Crime Reduction Act;
20 amending s. 394.655, F.S.; providing additional
21 functions of the Criminal Justice, Mental Health, and
22 Substance Abuse Policy Council; amending s. 394.656,
23 F.S.; requiring the department and the agency to
24 cooperate with counties that receive grant funding
25 under the Criminal Justice, Mental Health, and
26 Substance Abuse Reinvestment Grant Program; amending
27 s. 394.657, F.S.; requiring county planning councils
28 to consult with local governmental bodies when
29 planning or implementing the Community Mental Health
30 and Substance Abuse Treatment and Crime Reduction Act;
31 amending s. 409.906, F.S.; adding home and community
32 based mental health services to the optional Medicaid
33 services offered by the state Medicaid program;
34 amending s. 409.912, F.S.; exempting persons who have
35 serious and persistent mental illnesses and who are
36 receiving services under the Community Mental Health
37 and Substance Abuse Treatment and Crime Reduction Act
38 from MediPass and managed care plans; amending s.
39 916.106, F.S.; defining the terms “acquittee” and
40 “conditional releasee”; amending s. 916.107, F.S.;
41 specifying treatment procedures for a client or
42 conditional releasee admitted to a state forensic
43 mental health treatment facility who lacks the
44 capacity to make an informed decision regarding mental
45 health treatment at the time of admission; amending s.
46 916.111, F.S.; providing for forensic evaluator
47 training for mental health experts; amending s.
48 916.115, F.S.; providing, to the extent possible, that
49 court-appointed experts be a psychiatrist or a
50 licensed psychologist; requiring the Department of
51 Children and Family Services to maintain and annually
52 provide the courts with a forensic evaluator registry;
53 amending s. 916.13, F.S.; providing timeframes for
54 competency hearings to be held; amending s. 916.15,
55 F.S.; providing timeframes for commitment hearings to
56 be held; amending s. 916.17, F.S.; requiring that
57 certain defendants or acquittees be placed in a
58 community residential facility for competency
59 restoration in demonstration areas established under
60 the Community Mental Health and Substance Abuse
61 Treatment and Crime Reduction Act; providing
62 exceptions; amending s. 985.19, F.S.; authorizing the
63 Department of Children and Family Services to develop
64 or contract for the training of mental health
65 professionals performing forensic evaluations, for
66 standardizing the protocols, procedures, criteria
67 used, and evaluating the program; revising
68 requirements relating to the forensic evaluator
69 training program that appointed experts must complete;
70 providing an effective date.
72 Be It Enacted by the Legislature of the State of Florida:
74 Section 1. Section 394.4656, Florida Statutes, is created
75 to read:
76 394.4656 Community Mental Health and Substance Abuse
77 Treatment and Crime Reduction Act.—
78 (1) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
79 that many jail inmates who have serious mental illnesses and who
80 are committed to state forensic mental health treatment
81 facilities for competency restoration could be served more
82 effectively and at less cost in community-based alternative
83 programs. The Legislature further finds that many people who
84 have serious mental illnesses and who have been discharged from
85 state forensic mental health treatment facilities could avoid
86 recidivism to the criminal justice and forensic mental health
87 systems if they received specialized treatment in the community.
88 Therefore, it is the intent of the Legislature to create the
89 Community Mental Health and Substance Abuse Treatment and Crime
90 Reduction Act to serve individuals who have mental illnesses or
91 co-occurring mental illnesses and substance abuse disorders and
92 who are involved in or at risk of entering state forensic mental
93 health treatment facilities, prisons, jails, juvenile justice
94 centers, or state civil mental health treatment facilities.
95 (2) GOALS.—The goals of the community mental health and
96 substance abuse forensic treatment system are to:
97 (a) Ensure public safety.
98 (b) Ensure that services to restore forensic competency are
99 provided in the least restrictive, least costly, and most
100 effective environment.
101 (c) Provide competency-restoration services in the
102 community if appropriate, based on consideration of public
103 safety, needs of the individual, and available resources.
104 (d) Reduce admissions for competency restoration to state
105 forensic mental health treatment facilities.
106 (e) Reduce rates of arrest, incarceration, and
108 (f) Increase outreach and services to individuals at risk
109 for involvement in the criminal justice, juvenile justice, or
110 forensic mental health systems.
111 (g) Support collaboration among state and local
112 stakeholders, including law enforcement agencies, courts, state
113 agencies, jails, county governments, service providers,
114 individuals with mental illnesses or co-occurring mental
115 illnesses and substance abuse disorders, family members,
116 advocates, and other community members.
117 (3) DEFINITIONS.—As used in this section, the term:
118 (a) “Agency” means the Agency for Health Care
120 (b) “Best practices” means treatment services that
121 incorporate the most effective and acceptable interventions
122 available in the care and treatment of individuals who are
123 diagnosed as having a mental illness or a co-occurring mental
124 illness and substance abuse disorder.
125 (c) “Community forensic system” means the community mental
126 health and substance abuse forensic treatment system, including
127 the comprehensive set of services and supports provided to
128 individuals involved in or at risk of becoming involved in the
129 criminal justice system.
130 (d) “Community residential facility” means a community
131 based residential treatment setting licensed by the agency under
132 s. 394.875 or s. 429.075, or by the department under chapter
134 (e) “Evidence-based practices” means interventions and
135 strategies that, based on the best available empirical research,
136 demonstrate effective and efficient outcomes in the care and
137 treatment of individuals who are diagnosed as having mental
138 illnesses or co-occurring mental illnesses and substance abuse
140 (f) “Forensic intensive care management” means activities
141 addressing the comprehensive psychiatric, social, and support
142 needs of individuals who are diagnosed as having serious and
143 persistent mental illnesses, co-occurring disorders, or severe
144 emotional disturbances, and who are involved in the criminal
145 justice system and receiving services under this section.
146 Activities include, but are not limited to, service planning,
147 service coordination, monitoring, and assistance with accessing
148 federal, state, and local benefits necessary to sustain a person
149 in the community.
150 (g) “Geographic area” means a county, circuit, regional, or
151 multiregional area in this state.
152 (4) SERVICE SYSTEM.—The department, in consultation with
153 the agency, may develop and implement a community mental health
154 and substance abuse forensic treatment system. The system must
155 build on local community diversion and reentry initiatives and
156 strategies that are consistent with those identified and
157 supported under s. 394.658(1), or with geographic areas that
158 have a community-based diversion program.
159 (a) The community forensic system initiatives and
160 strategies may include, but are not limited to:
161 1. Mental health courts.
162 2. Diversion programs.
163 3. Alternative prosecution and sentencing techniques.
164 4. Crisis intervention teams.
165 5. Specialized training for criminal justice, juvenile
166 justice, and treatment services professionals.
167 6. Specialized probation officers at the state and county
168 levels to serve individuals under correctional control in the
170 7. Collateral services such as supported, transitional, and
171 permanent housing and supported employment.
172 8. Reentry services to create or expand mental health and
173 co-occurring treatment and supports for affected individuals.
174 (b) The community forensic system must include a
175 comprehensive continuum of care and services that use evidence
176 based and best practices to address co-occurring mental health
177 and substance abuse disorders, including the following minimum
178 services and elements:
179 1. Competency-restoration and treatment services provided
180 in a variety of settings from least restrictive to progressively
181 more restrictive settings.
182 2. Forensic intensive care management.
183 3. Supported housing.
184 4. Supported employment.
185 5. Medication management.
186 6. Trauma-specific services for treatment of the effects of
187 sexual, physical, and emotional abuse or trauma experienced by
188 individuals who have mental illnesses and are involved in the
189 criminal justice system.
190 7. Residential services to address crisis episodes and
191 short-term residential treatment.
192 8. Treatment for co-occurring mental health and substance
193 abuse disorders.
194 9. Outreach and education for individuals and their
195 families who are at risk of further involvement with the justice
197 10. Involuntary outpatient placement for individuals
198 meeting the criteria as provided under s. 394.4655 and
199 conditional release for individuals adjudicated incompetent to
200 proceed due to mental illness or not guilty by reason of
201 insanity as provided under s. 916.17.
202 11. Secure residential placement for initial service
203 delivery and stabilization.
204 12. Other services or supports as identified.
205 (5) ELIGIBILITY.—Initial implementation is limited to
206 adults who are adjudicated incompetent to proceed or not guilty
207 by reason of insanity under chapter 916, whose current most
208 serious charge is a felony of the third degree or a felony of
209 the second degree if the felony did not involve violence, who
210 meet public safety criteria established by the court and
211 treatability criteria established by the department for
212 placement in a community setting, and who otherwise would be
213 admitted to a state mental health treatment facility. Contingent
214 upon legislative approval, the department may serve:
215 (a) Adults who experience serious and persistent mental
216 illnesses reentering the community from state prisons.
217 (b) Adults who have been committed to a state forensic
218 mental health treatment facility after being adjudicated
219 incompetent to proceed or not guilty by reason of insanity, and
220 who are released or who are pending release to the community by
221 the court after completing competency restoration services or
222 being found to no longer meet the criteria for continued
224 (c) Adults who experience serious and persistent mental
225 illnesses, who have a history of involvement in the justice
226 system, or who are at risk of entering or who are already
227 involved with the criminal justice system.
228 (d) Children deemed incompetent to proceed under s. 985.19.
229 (6) DEPARTMENT RESPONSIBILITIES.—The department may develop
230 a continuum of services to administer this section in accordance
231 with subsection (4). The department may:
232 (a) Define requirements for all providers in the community
233 forensic system.
234 (b) Implement demonstration sites for participation, based
235 on criteria in subsection (7), which demonstrate active and
236 sustained participation in community collaborations.
237 (c) Enter into memoranda of agreement with county planning
238 councils or committees that are identified pursuant to s.
239 394.657 and participated in the criminal justice, mental health,
240 and substance abuse reinvestment grant program pursuant to s.
241 394.656, or with a community-based diversion program.
242 (d) Identify providers to implement the continuum of
243 services. The department shall consult with county planning
244 councils or committees in the selection process.
245 (e) Establish performance measures and reporting
246 requirements for providers participating in the community
247 forensic system. The measures shall include, at a minimum:
248 1. The number of individuals diverted from state forensic
249 mental health treatment facilities.
250 2. The number of individuals diverted from the criminal
251 justice system.
252 3. The rates of arrest, incarceration, and reincarceration
253 for new criminal offenses.
254 4. The rates of employment.
255 5. The annual number of days in a crisis stabilization
256 unit, detoxification facility, short-term residential treatment
257 program, state civil mental health treatment facility, or state
258 forensic mental health treatment facility.
259 (f) Monitor contracts for compliance with terms and assess
260 performance under contracts and provide an annual report by
261 October 1 to the Governor, the President of the Senate, the
262 Speaker of the House of Representatives, the Chief Justice of
263 the Supreme Court, and the State Courts Administrator on the
264 implementation status of the Community Mental Health and
265 Substance Abuse Treatment and Crime Reduction Act.
266 (7) IMPLEMENTATION.—The department may implement this
267 section within available resources. In expectation of statewide
268 implementation of this section, the department, in consultation
269 with the agency, may identify geographic areas of the state for
270 initial implementation of the pilot program sites. Future
271 expansion shall be based on findings of community readiness and
272 the potential for affecting the greatest number of individuals
273 entering the forensic mental health and criminal justice
274 systems. Criteria for selection may include:
275 (a) Community readiness to deliver the services outlined in
276 subsection (4), demonstrated by well-established community
277 collaboration plans and local partnerships as evidenced by
278 memoranda of agreement that are submitted to and approved by the
280 (b) A high bed-utilization rate at state forensic mental
281 health treatment facilities.
282 (c) Successful application for implementation grant funding
283 under the Criminal Justice, Mental Health, and Substance Abuse
284 Reinvestment Grant Program.
285 (d) Other elements determined by the department in
286 consultation with the agency.
287 Section 2. Paragraph (b) of subsection (11) of section
288 394.655, Florida Statutes, is amended to read:
289 394.655 The Substance Abuse and Mental Health Corporation;
290 powers and duties; composition; evaluation and reporting
292 (11)(b) The purpose of the council shall be to:
293 1. Align policy initiatives in the criminal justice,
294 juvenile justice,
and mental health, and substance abuse systems
295 to ensure the most effective use of resources and to coordinate
296 the development of legislative proposals and budget requests
297 relating to the shared needs of adults and juveniles who have a
298 mental illness, substance abuse disorder, or co-occurring mental
299 health and substance abuse disorders who are in, or at risk of
300 entering, the criminal justice system.
301 2. Provide consultation in the development of comprehensive
302 and cost-effective community-based mental health and substance
303 abuse treatment services for individuals who have mental
304 illnesses and who are receiving services in state forensic
305 mental health treatment facilities, juvenile secure residential
306 treatment centers specializing in competency training, prisons,
307 jails, and juvenile justice centers.
308 Section 3. Subsection (1) of section 394.656, Florida
309 Statutes, is amended to read:
310 394.656 Criminal Justice, Mental Health, and Substance
311 Abuse Reinvestment Grant Program.—
312 (1) There is created within the Department of Children and
313 Family Services the Criminal Justice, Mental Health, and
314 Substance Abuse Reinvestment Grant Program. The purpose of the
315 program is to provide funding to counties to with which they can
316 plan, implement, or expand initiatives that increase public
317 safety, avert increased spending on criminal justice, and
318 improve the accessibility and effectiveness of treatment
319 services for adults and juveniles who have a mental illness,
320 substance abuse disorder, or co-occurring mental health and
321 substance abuse disorders and who are in, or at risk of
322 entering, the criminal or juvenile justice systems. In
323 implementing the Community Mental Health and Substance Abuse
324 Treatment and Crime Reduction Act, the department and agency
325 shall work in coordination with counties that received grants
326 under the program or a community-based diversion program.
327 Section 4. Subsection (1) of section 394.657, Florida
328 Statutes, is amended to read:
329 394.657 County planning councils or committees.—
330 (1) Each board of county commissioners shall designate the
331 county public safety coordinating council established under s.
332 951.26, or designate another criminal or juvenile justice mental
333 health and substance abuse council or committee, as the planning
334 council or committee. The public safety coordinating council or
335 other designated criminal or juvenile justice mental health and
336 substance abuse council or committee shall: ,
337 (a) Coordinate in coordination with the county offices of
338 planning and budget to , shall make a formal recommendation to
339 the board of county commissioners regarding how the Criminal
340 Justice, Mental Health, and Substance Abuse Reinvestment Grant
341 Program may best be implemented within a community. The board of
342 county commissioners may assign any entity to prepare the
343 application on behalf of the county administration for
344 submission to the corporation for review. A county may join with
345 one or more counties to form a consortium and use a regional
346 public safety coordinating council or another county-designated
347 regional criminal or juvenile justice mental health and
348 substance abuse planning council or committee for the geographic
349 area represented by the member counties.
350 (b) Consult with local governing bodies when planning or
351 implementing the Community Mental Health and Substance Abuse
352 Treatment and Crime Reduction Act.
353 Section 5. Subsection (28) is added to section 409.906,
354 Florida Statutes, to read:
355 409.906 Optional Medicaid services.—Subject to specific
356 appropriations, the agency may make payments for services which
357 are optional to the state under Title XIX of the Social Security
358 Act and are furnished by Medicaid providers to recipients who
359 are determined to be eligible on the dates on which the services
360 were provided. Any optional service that is provided shall be
361 provided only when medically necessary and in accordance with
362 state and federal law. Optional services rendered by providers
363 in mobile units to Medicaid recipients may be restricted or
364 prohibited by the agency. Nothing in this section shall be
365 construed to prevent or limit the agency from adjusting fees,
366 reimbursement rates, lengths of stay, number of visits, or
367 number of services, or making any other adjustments necessary to
368 comply with the availability of moneys and any limitations or
369 directions provided for in the General Appropriations Act or
370 chapter 216. If necessary to safeguard the state’s systems of
371 providing services to elderly and disabled persons and subject
372 to the notice and review provisions of s. 216.177, the Governor
373 may direct the Agency for Health Care Administration to amend
374 the Medicaid state plan to delete the optional Medicaid service
375 known as “Intermediate Care Facilities for the Developmentally
376 Disabled.” Optional services may include:
377 (28) HOME AND COMMUNITY-BASED SERVICES.—The agency,
378 contingent upon appropriation of funds for this purpose, may
379 seek federal approval through a state plan amendment to
380 implement home and community-based services under the authority
381 of and in compliance with s. 1915i of the Social Security Act
382 for services provided to individuals who have been determined by
383 an independent evaluation to have disabilities that cause them
384 to become, or put them at risk of becoming, involved with the
385 criminal justice system due to their mental illness. In
386 accordance with allowances under s. 1915i of the Social Security
387 Act, these services may be limited to a select number of
388 eligible individuals in select geographic areas, as identified
389 by the agency. Eligible individuals may have incomes up to 150
390 percent of the federal poverty level. The agency shall
391 coordinate with the department to select and define the services
392 that will be submitted in the state plan amendment and provided
393 under this subsection. The agency shall disenroll individuals
394 receiving services under this subsection from MediPass or any
395 capitated or other Medicaid-managed care arrangement. Enrollment
396 in state plan services may not exceed 1,000 individuals unless
397 additional approval is obtained from the Legislature. The agency
398 must receive approval from the Legislature or Legislative Budget
399 Commission for any funding beyond that provided within initial
400 implementation revenues. After July 1, 2013, the agency may seek
401 authority to capitate Medicaid behavioral health services under
402 this subsection.
403 Section 6. Subsection (54) is added to section 409.912,
404 Florida Statutes, to read:
405 409.912 Cost-effective purchasing of health care.—The
406 agency shall purchase goods and services for Medicaid recipients
407 in the most cost-effective manner consistent with the delivery
408 of quality medical care. To ensure that medical services are
409 effectively utilized, the agency may, in any case, require a
410 confirmation or second physician’s opinion of the correct
411 diagnosis for purposes of authorizing future services under the
412 Medicaid program. This section does not restrict access to
413 emergency services or poststabilization care services as defined
414 in 42 C.F.R. part 438.114. Such confirmation or second opinion
415 shall be rendered in a manner approved by the agency. The agency
416 shall maximize the use of prepaid per capita and prepaid
417 aggregate fixed-sum basis services when appropriate and other
418 alternative service delivery and reimbursement methodologies,
419 including competitive bidding pursuant to s. 287.057, designed
420 to facilitate the cost-effective purchase of a case-managed
421 continuum of care. The agency shall also require providers to
422 minimize the exposure of recipients to the need for acute
423 inpatient, custodial, and other institutional care and the
424 inappropriate or unnecessary use of high-cost services. The
425 agency shall contract with a vendor to monitor and evaluate the
426 clinical practice patterns of providers in order to identify
427 trends that are outside the normal practice patterns of a
428 provider’s professional peers or the national guidelines of a
429 provider’s professional association. The vendor must be able to
430 provide information and counseling to a provider whose practice
431 patterns are outside the norms, in consultation with the agency,
432 to improve patient care and reduce inappropriate utilization.
433 The agency may mandate prior authorization, drug therapy
434 management, or disease management participation for certain
435 populations of Medicaid beneficiaries, certain drug classes, or
436 particular drugs to prevent fraud, abuse, overuse, and possible
437 dangerous drug interactions. The Pharmaceutical and Therapeutics
438 Committee shall make recommendations to the agency on drugs for
439 which prior authorization is required. The agency shall inform
440 the Pharmaceutical and Therapeutics Committee of its decisions
441 regarding drugs subject to prior authorization. The agency is
442 authorized to limit the entities it contracts with or enrolls as
443 Medicaid providers by developing a provider network through
444 provider credentialing. The agency may competitively bid single
445 source-provider contracts if procurement of goods or services
446 results in demonstrated cost savings to the state without
447 limiting access to care. The agency may limit its network based
448 on the assessment of beneficiary access to care, provider
449 availability, provider quality standards, time and distance
450 standards for access to care, the cultural competence of the
451 provider network, demographic characteristics of Medicaid
452 beneficiaries, practice and provider-to-beneficiary standards,
453 appointment wait times, beneficiary use of services, provider
454 turnover, provider profiling, provider licensure history,
455 previous program integrity investigations and findings, peer
456 review, provider Medicaid policy and billing compliance records,
457 clinical and medical record audits, and other factors. Providers
458 shall not be entitled to enrollment in the Medicaid provider
459 network. The agency shall determine instances in which allowing
460 Medicaid beneficiaries to purchase durable medical equipment and
461 other goods is less expensive to the Medicaid program than long
462 term rental of the equipment or goods. The agency may establish
463 rules to facilitate purchases in lieu of long-term rentals in
464 order to protect against fraud and abuse in the Medicaid program
465 as defined in s. 409.913. The agency may seek federal waivers
466 necessary to administer these policies.
467 (54) Persons who have serious and persistent mental
468 illnesses, who are receiving services under the Community Mental
469 Health and Substance Abuse Treatment and Crime Reduction Act,
470 and who are eligible for and receiving services under the state
471 plan implemented under s. 1915i of the Social Security Act, as
472 approved by the Centers for Medicare and Medicaid Services, are
473 exempt from MediPass and managed care plans authorized under
474 this chapter, including capitated managed care plans authorized
475 under s. 409.91211.
476 Section 7. Section 916.106, Florida Statutes, is amended to
478 916.106 Definitions.—For the purposes of this chapter, the
480 (1) “Acquittee” means a defendant who has been adjudicated
481 not guilty by reason of insanity.
482 (2) (1) “Agency” means the Agency for Persons with
483 Disabilities. The agency is responsible for training forensic
484 clients who are developmentally disabled due to mental
485 retardation or autism and have been determined incompetent to
487 (3) (2) “Autism” has the same meaning as in s. 393.063.
488 (4) (3) “Chemical weapon” means any shell, cartridge, bomb,
489 gun, or other device capable of emitting chloroacetophenone
490 (CN), chlorobenzalmalononitrile (CS) or any derivatives thereof
491 in any form, or any other agent with lacrimatory properties, and
492 shall include products such as that commonly known as “mace.”
493 (5) (4) “Civil facility” means:
494 (a) A mental health facility established within the
495 department or by contract with the department to serve
496 individuals committed pursuant to chapter 394 and those
497 defendants committed pursuant to this chapter who do not require
498 the security provided in a forensic facility; or
499 (b) An intermediate care facility for the developmentally
500 disabled, a foster care facility, a group home facility, or a
501 supported living setting, as defined in s. 393.063, designated
502 by the agency to serve those defendants who do not require the
503 security provided in a forensic facility.
504 (6) “Conditional releasee” means a person placed on
505 conditional release pursuant to s. 916.17.
506 (7) (5) “Court” means the circuit court.
507 (8) (6) “Defendant” means an adult, or a juvenile who is
508 prosecuted as an adult, who has been arraigned and charged with
509 a felony offense under the laws of this state.
510 (9) (7) “Department” means the Department of Children and
511 Family Services. The department is responsible for the treatment
512 of forensic clients who have been determined incompetent to
513 proceed due to mental illness or who have been acquitted of a
514 felony by reason of insanity.
515 (10) (8) “Express and informed consent” or “consent” means
516 consent given voluntarily in writing after a conscientious and
517 sufficient explanation and disclosure of the purpose of the
518 proposed treatment, the common side effects of the treatment, if
519 any, the expected duration of the treatment, and any alternative
520 treatment available.
521 (11) (9) “Forensic client” or “client” means any defendant
522 who has been committed to the department or agency pursuant to
523 s. 916.13, s. 916.15, or s. 916.302.
524 (12) (10) “Forensic facility” means a separate and secure
525 facility established within the department or agency to serve
526 forensic clients. A separate and secure facility means a
527 security-grade building for the purpose of separately housing
528 persons who have mental illness from persons with retardation or
529 autism and separately housing persons who have been
530 involuntarily committed pursuant to this chapter from
531 nonforensic residents.
532 (13) (11) “Incompetent to proceed” means unable to proceed
533 at any material stage of a criminal proceeding, which shall
534 include trial of the case, pretrial hearings involving questions
535 of fact on which the defendant might be expected to testify,
536 entry of a plea, proceedings for violation of probation or
537 violation of community control, sentencing, and hearings on
538 issues regarding a defendant’s failure to comply with court
539 orders or conditions or other matters in which the mental
540 competence of the defendant is necessary for a just resolution
541 of the issues being considered.
542 (14) (12) “Institutional security personnel” means the staff
543 of forensic facilities who meet or exceed the requirements of s.
544 943.13 and who are responsible for providing security,
545 protecting clients and personnel, enforcing rules, preventing
546 and investigating unauthorized activities, and safeguarding the
547 interests of citizens in the surrounding communities.
548 (15) (13) “Mental illness” means an impairment of the
549 emotional processes that exercise conscious control of one’s
550 actions, or of the ability to perceive or understand reality,
551 which impairment substantially interferes with a defendant’s
552 ability to meet the ordinary demands of living. For the purposes
553 of this chapter, the term does not apply to defendants with only
554 mental retardation or autism and does not include intoxication
555 or conditions manifested only by antisocial behavior or
556 substance abuse impairment.
557 (16) (14) “Restraint” means a physical device, method, or
558 drug used to control dangerous behavior.
559 (a) A physical restraint is any manual method or physical
560 or mechanical device, material, or equipment attached or
561 adjacent to a person’s body so that he or she cannot easily
562 remove the restraint and that restricts freedom of movement or
563 normal access to one’s body.
564 (b) A drug used as a restraint is a medication used to
565 control the person’s behavior or to restrict his or her freedom
566 of movement and not part of the standard treatment regimen of
567 the person with a diagnosed mental illness who is a client of
568 the department. Physically holding a person during a procedure
569 to forcibly administer psychotropic medication is a physical
571 (c) Restraint does not include physical devices, such as
572 orthopedically prescribed appliances, surgical dressings and
573 bandages, supportive body bands, or other physical holding when
574 necessary for routine physical examinations and tests; for
575 purposes of orthopedic, surgical, or other similar medical
576 treatment; when used to provide support for the achievement of
577 functional body position or proper balance; or when used to
578 protect a person from falling out of bed.
579 (17) (15) “Retardation” has the same meaning as in s.
581 (18) (16) “Seclusion” means the physical segregation of a
582 person in any fashion or the involuntary isolation of a person
583 in a room or area from which the person is prevented from
584 leaving. The prevention may be by physical barrier or by a staff
585 member who is acting in a manner, or who is physically situated,
586 so as to prevent the person from leaving the room or area. For
587 purposes of this chapter, the term does not mean isolation due
588 to a person’s medical condition or symptoms, the confinement in
589 a forensic facility to a bedroom or area during normal hours of
590 sleep when there is not an active order for seclusion, or during
591 an emergency such as a riot or hostage situation when clients
592 may be temporarily placed in their rooms for their own safety.
593 (19) (17) “Social service professional” means a person whose
594 minimum qualifications include a bachelor’s degree and at least
595 2 years of social work, clinical practice, special education,
596 habilitation, or equivalent experience working directly with
597 persons with retardation, autism, or other developmental
599 Section 8. Paragraph (a) of subsection (3) of section
600 916.107, Florida Statutes, is amended to read:
601 916.107 Rights of forensic clients.—
602 (3) RIGHT TO EXPRESS AND INFORMED CONSENT.—
603 (a) A forensic client or a person placed on conditional
604 release pursuant to s. 916.17(2) who resides in a crisis
605 stabilization unit or a short-term residential treatment
606 facility shall be asked to give express and informed written
607 consent for treatment. If a client refuses such treatment as is
608 deemed necessary and essential by the client’s multidisciplinary
609 treatment team for the appropriate care of the client, such
610 treatment may be provided under the following circumstances:
611 1. In an emergency situation in which there is immediate
612 danger to the safety of the client, conditional releasee, or
613 others, such treatment may be provided upon the written order of
614 a physician for a period not to exceed 48 hours, excluding
615 weekends and legal holidays. If, after the 48-hour period, the
616 client or conditional releasee has not given express and
617 informed consent to the treatment initially refused, the
618 administrator or designee of the civil or forensic facility,
619 crisis stabilization unit, or short-term residential treatment
620 facility serving individuals placed on conditional release
621 pursuant to s. 916.17(2) shall, within 48 hours, excluding
622 weekends and legal holidays, petition the committing court or
623 the circuit court serving the county in which the facility is
624 located, at the option of the facility administrator or
625 designee, for an order authorizing the continued treatment of
626 the client or conditional releasee. In the interim, the need for
627 treatment shall be reviewed every 48 hours and may be continued
628 without the consent of the client or conditional releasee upon
629 the continued written order of a physician who has determined
630 that the emergency situation continues to present a danger to
631 the safety of the client, conditional releasee, or others.
632 2. In a situation other than an emergency situation, the
633 administrator or designee of the civil or forensic facility,
634 crisis stabilization unit, or short-term residential treatment
635 facility shall petition the court for an order authorizing
636 necessary and essential treatment for the client or conditional
638 a. If the client has been receiving psychotherapeutic
639 medication at the jail at the time of transfer to the state
640 forensic mental health treatment facility and lacks the capacity
641 to make an informed decision regarding mental health treatment
642 at the time of admission, the admitting physician may order a
643 continuation of the psychotherapeutic medication if, in the
644 clinical judgment of the physician, abrupt cessation of the
645 psychotherapeutic medication could cause a risk to the health
646 and safety of the client during the time a court order to
647 medicate is pursued. The jail physician shall provide a current
648 psychotherapeutic medication order at the time of transfer to
649 the state mental health treatment facility.
650 b. The court order shall allow such treatment for up to a
651 period not to exceed 90 days following the date of the entry of
652 the order. Unless the court is notified in writing that the
653 client or conditional releasee has provided express and informed
654 consent in writing or that he or she the client has been
655 discharged by the committing court, the administrator or
656 designee shall, before prior to the expiration of the initial
657 90-day order, petition the court for an order authorizing the
658 continuation of treatment for another 90 days 90-day period.
659 This procedure shall be repeated until the client or conditional
660 releasee provides consent or is discharged by the committing
662 3. At the hearing on the issue of whether the court should
663 enter an order authorizing treatment for which a client or
664 conditional releasee was unable to or refused to give express
665 and informed consent, the court shall determine by clear and
666 convincing evidence that the client or conditional releasee has
667 mental illness, retardation, or autism, that the treatment not
668 consented to is essential to his or her the care of the client,
669 and that the treatment not consented to is not experimental and
670 does not present an unreasonable risk of serious, hazardous, or
671 irreversible side effects. In arriving at the substitute
672 judgment decision, the court must consider at least the
673 following factors:
674 a. The individual’s client’s expressed preference regarding
676 b. The probability of adverse side effects;
677 c. The prognosis without treatment; and
678 d. The prognosis with treatment.
680 The hearing shall be as convenient to the client or conditional
681 releasee as may be consistent with orderly procedure and shall
682 be conducted in physical settings not likely to be injurious to
683 his or her the client’s condition. The court may appoint a
684 general or special magistrate to preside at the hearing. The
685 client or conditional releasee or his or her the client’s
686 guardian, and the representative, shall be provided with a copy
687 of the petition and the date, time, and location of the hearing.
688 The client or conditional releasee has the right to have an
689 attorney represent him or her at the hearing, and, if the client
690 or conditional releasee is indigent, the court shall appoint the
691 office of the public defender to represent him or her the client
692 at the hearing. The client or conditional releasee may testify
693 or not, as he or she chooses, and has the right to cross-examine
694 witnesses and may present his or her own witnesses.
695 Section 9. Section 916.111, Florida Statutes, is amended to
697 916.111 Training of mental health experts.—The evaluation
698 of defendants for competency to proceed or for sanity at the
699 time of the commission of the offense shall be conducted in such
700 a way as to ensure uniform application of the criteria
701 enumerated in Rules 3.210 and 3.216, Florida Rules of Criminal
703 (1) Appointed experts shall have completed forensic
704 evaluator training as specified in this section.
705 (2) A forensic evaluator training course approved by the
706 department must be provided at least annually to ensure that
707 mental health professionals have the opportunity to be placed on
708 the department’s forensic evaluator registry.
709 (a) Beginning July 1, 2011, experts shall remain on the
710 registry if they have completed or retaken the required training
711 course within the previous 5 years. Those who have not completed
712 the training course must be removed from the registry and may
713 not conduct evaluations for the courts.
714 (b) A mental health professional who has completed the
715 training course within the previous 5 years must maintain
716 documentation of completion of the required training course and
717 provide current contact information to the department.
718 (3) The department shall develop, and may contract with
719 accredited institutions:
720 (a) (1) To provide:
721 1. (a) A plan for training mental health professionals to
722 perform forensic evaluations and to standardize the criteria and
723 procedures to be used in these evaluations;
724 2. (b) Clinical protocols and procedures based upon the
725 criteria of Rules 3.210 and 3.216, Florida Rules of Criminal
726 Procedure; and
727 3. (c) Training for mental health professionals in the
728 application of these protocols and procedures in performing
729 forensic evaluations and providing reports to the courts; and
730 (b) (2) To compile and maintain the necessary information
731 for evaluating the success of this program, including the number
732 of persons trained, the cost of operating the program, and the
733 effect on the quality of forensic evaluations as measured by
734 appropriateness of admissions to state forensic facilities and
735 to community-based care programs.
736 Section 10. Subsection (1) of section 916.115, Florida
737 Statutes, is amended to read:
738 916.115 Appointment of experts.—
739 (1) The court shall appoint no more than three experts to
740 determine the mental condition of a defendant in a criminal
741 case, including competency to proceed, insanity, involuntary
742 placement, and treatment. The experts may evaluate the defendant
743 in jail or in another appropriate local facility or in a
744 facility of the Department of Corrections.
745 (a) To the extent possible, the appointed experts shall
746 have completed forensic evaluator training approved by the
747 department, and each shall be a psychiatrist or , licensed
748 psychologist , or physician.
749 (b) The department shall maintain and annually provide the
750 courts with a forensic evaluator registry list of available
751 mental health professionals who have completed the approved
752 training as experts.
753 Section 11. Section 916.13, Florida Statutes, is amended to
755 916.13 Involuntary commitment of defendant adjudicated
757 (1) Every defendant who is charged with a felony and who is
758 adjudicated incompetent to proceed may be involuntarily
759 committed for treatment upon a finding by the court of clear and
760 convincing evidence that:
761 (a) The defendant has a mental illness and because of the
762 mental illness:
763 1. The defendant is manifestly incapable of surviving alone
764 or with the help of willing and responsible family or friends,
765 including available alternative services, and, without
766 treatment, the defendant is likely to suffer from neglect or
767 refuse to care for herself or himself and such neglect or
768 refusal poses a real and present threat of substantial harm to
769 the defendant’s well-being; or
770 2. There is a substantial likelihood that in the near
771 future the defendant will inflict serious bodily harm on herself
772 or himself or another person, as evidenced by recent behavior
773 causing, attempting, or threatening such harm;
774 (b) All available, less restrictive treatment alternatives,
775 including treatment in community residential facilities or
776 community inpatient or outpatient settings, which would offer an
777 opportunity for improvement of the defendant’s condition have
778 been judged to be inappropriate; and
779 (c) There is a substantial probability that the mental
780 illness causing the defendant’s incompetence will respond to
781 treatment and the defendant will regain competency to proceed in
782 the reasonably foreseeable future.
783 (2) A defendant who has been charged with a felony and who
784 has been adjudicated incompetent to proceed due to mental
785 illness, and who meets the criteria for involuntary commitment
786 to the department under the provisions of this chapter, may be
787 committed to the department, and the department shall retain and
788 treat the defendant.
789 (a) Within No later than 6 months after the date of
790 admission and at the end of any period of extended commitment,
791 or at any time the administrator or designee has shall have
792 determined that the defendant has regained competency to proceed
793 or no longer meets the criteria for continued commitment, the
794 administrator or designee shall file a report with the court
795 pursuant to the applicable Florida Rules of Criminal Procedure.
796 (b) A competency hearing must be held within 30 days after
797 a court receives notification that the defendant is competent to
798 proceed or no longer meets criteria for continued commitment.
799 Section 12. Section 916.15, Florida Statutes, is amended to
801 916.15 Involuntary commitment of an acquittee defendant
802 adjudicated not guilty by reason of insanity.—
803 (1) The determination of whether a defendant is not guilty
804 by reason of insanity shall be determined in accordance with
805 Rule 3.217, Florida Rules of Criminal Procedure.
806 (2) An acquittee A defendant who is acquitted of criminal
807 charges because of a finding of not guilty by reason of insanity
808 may be involuntarily committed pursuant to such finding if the
809 defendant has a mental illness and, because of the illness, is
810 manifestly dangerous to himself or herself or others.
811 (3) Every acquittee defendant acquitted of criminal charges
812 by reason of insanity and found to meet the criteria for
813 involuntary commitment may be committed and treated in
814 accordance with the provisions of this section and the
815 applicable Florida Rules of Criminal Procedure. The department
816 shall admit an acquittee a defendant so adjudicated to an
817 appropriate facility or program for treatment and shall retain
818 and treat such acquittee defendant. No later than 6 months after
819 the date of admission, prior to the end of any period of
820 extended commitment, or at any time the administrator or
821 designee shall have determined that the acquittee defendant no
822 longer meets the criteria for continued commitment placement,
823 the administrator or designee shall file a report with the court
824 pursuant to the applicable Florida Rules of Criminal Procedure.
825 (4) The commitment hearing must be held within 30 days
826 after the court receives notification that the acquittee no
827 longer meets the criteria for continued commitment placement.
828 (5) (4) In all proceedings under this section, both the
829 acquittee defendant and the state shall have the right to a
830 hearing before the committing court. Evidence at such hearing
831 may be presented by the hospital administrator or the
832 administrator’s designee as well as by the state and the
833 acquittee defendant. The acquittee has defendant shall have the
834 right to counsel at any such hearing. In the event that an
835 acquittee a defendant is determined to be indigent pursuant to
836 s. 27.52, the public defender shall represent the acquittee
837 defendant. The parties shall have access to the acquittee’s
838 defendant’s records at the treating facilities and may interview
839 or depose personnel who have had contact with the acquittee
840 defendant at the treating facilities.
841 Section 13. Section 916.17, Florida Statutes, is amended to
843 916.17 Conditional release.—
844 (1) Except for an inmate currently serving a prison
845 sentence, the committing court may order a conditional release
846 of any defendant or acquittee in lieu of an involuntary
847 commitment to a facility pursuant to s. 916.13 or s. 916.15
848 based upon an approved plan for providing appropriate outpatient
849 care and treatment. Upon a recommendation that outpatient
850 treatment of the defendant or acquittee is appropriate, a
851 written plan for outpatient treatment, including recommendations
852 from qualified professionals, must be filed with the court, with
853 copies to all parties. Such a plan may also be submitted by the
854 defendant or acquittee and filed with the court with copies to
855 all parties. The plan shall include:
856 (a) Special provisions for residential care or adequate
857 supervision of the defendant or acquittee.
858 (b) Provisions for outpatient mental health services.
859 (c) If appropriate, recommendations for auxiliary services
860 such as vocational training, educational services, or special
861 medical care.
863 In its order of conditional release, the court shall specify the
864 conditions of release based upon the release plan and shall
865 direct the appropriate agencies or persons to submit periodic
866 reports to the court regarding the defendant’s or acquittee’s
867 compliance with the conditions of the release and progress in
868 treatment, with copies to all parties.
869 (2) A defendant who otherwise meets the criteria for
870 involuntary commitment under s. 916.13, but whose current most
871 serious charge is a felony of the third degree or a felony of
872 the second degree when the felony did not involve violence, must
873 be placed in a community residential facility for competency
874 restoration unless bed space or funding is unavailable for the
875 community placement or the trial court makes an explicit finding
876 that the defendant cannot be safely managed in such a placement.
877 In making such finding, the court shall consider all of the
879 (a) The nature and seriousness of the crime allegedly
881 (b) The individual’s criminal history.
882 (c) The individual’s psychiatric history.
883 (d) The individual’s history of violent behavior or threats
884 of violent behavior and risk of harm to self or others.
885 (e) The likelihood that the individual will comply with and
886 benefit from the mental health treatment and services being
888 (f) The availability of appropriate community-based
889 services and treatment settings.
890 (g) Other information considered relevant by the court.
891 (3) (2) Upon the filing of an affidavit or statement under
892 oath by any person that the defendant or acquittee has failed to
893 comply with the conditions of release, that the defendant’s or
894 acquittee’s condition has deteriorated to the point that
895 inpatient care is required, or that the release conditions
896 should be modified, the court shall hold a hearing within 7 days
897 after receipt of the affidavit or statement under oath. After
898 the hearing, the court may modify the release conditions. The
899 court may also order that the defendant or acquittee be returned
900 to the department if it is found, after the appointment and
901 report of experts, that the person meets the criteria for
902 involuntary commitment under s. 916.13 or s. 916.15.
903 (4) (3) If at any time it is determined after a hearing that
904 the defendant or acquittee who has been conditionally released
905 under subsection (1) no longer requires court-supervised
906 followup care, the court shall terminate its jurisdiction in the
907 cause and discharge the defendant or acquittee.
908 Section 14. Subsection (1) of section 985.19, Florida
909 Statutes, is amended to read:
910 985.19 Incompetency in juvenile delinquency cases.—
911 (1) If, at any time prior to or during a delinquency case,
912 the court has reason to believe that the child named in the
913 petition may be incompetent to proceed with the hearing, the
914 court on its own motion may, or on the motion of the child’s
915 attorney or state attorney must, stay all proceedings and order
916 an evaluation of the child’s mental condition.
917 (a) Any motion questioning the child’s competency to
918 proceed must be served upon the child’s attorney, the state
919 attorney, the attorneys representing the Department of Juvenile
920 Justice, and the attorneys representing the Department of
921 Children and Family Services. Thereafter, any motion, notice of
922 hearing, order, or other legal pleading relating to the child’s
923 competency to proceed with the hearing must be served upon the
924 child’s attorney, the state attorney, the attorneys representing
925 the Department of Juvenile Justice, and the attorneys
926 representing the Department of Children and Family Services.
927 (b) All determinations of competency must shall be made at
928 a hearing, with findings of fact based on an evaluation of the
929 child’s mental condition made by at least not less than two but
930 not nor more than three experts appointed by the court. The
931 basis for the determination of incompetency must be specifically
932 stated in the evaluation and must be conducted so as to ensure
933 uniform application of the criteria enumerated in Rule 8.095,
934 Florida Rules of Juvenile Procedure. In addition, A
935 recommendation as to whether residential or nonresidential
936 treatment or training is required must be included in the
937 evaluation. Experts appointed by the court to determine the
938 mental condition of a child shall be allowed reasonable fees for
939 services rendered. State employees may be paid expenses pursuant
940 to s. 112.061. The fees shall be taxed as costs in the case.
941 (c) All court orders determining incompetency must include
942 specific written findings by the court as to the nature of the
943 incompetency and whether the child requires a secure or
944 nonsecure treatment or training environment environments.
945 (d) The evaluation of juveniles for competency to proceed
946 shall be conducted in a manner that ensures the uniform
947 application of the criteria in Rule 8.095, Florida Rules of
948 Juvenile Procedure. The Department of Children and Family
949 Services shall develop, or may contract with accredited
950 institutions to provide for:
951 1. A plan for training mental health professionals to
952 perform forensic evaluations and for standardizing the criteria
953 and procedures to be used in such evaluations;
954 2. Clinical protocols and procedures based on the criteria
955 in the Florida Rules of Juvenile Procedure;
956 3. Training programs for mental health professionals in the
957 application of these protocols and procedures for performing
958 forensic evaluations and providing reports to the courts; and
959 4. Procedures for evaluating the success of the program,
960 including the number of persons trained, the cost of operating
961 the program, and the effect on the quality of forensic
962 evaluations as measured by the appropriateness of admissions to
963 the Department of Children and Family Services’ juvenile
964 competence-to-proceed programs.
965 (e) (d) For competency incompetency evaluations related to
966 mental illness, the Department of Children and Family Services
967 shall maintain and annually provide the courts with a forensic
968 evaluator registry list of available mental health professionals
969 who have completed a training program, approved by the
970 Department of Children and Family Services to perform the
971 evaluations under this section. To the extent possible, the
972 appointed expert shall be a psychiatrist or licensed
974 (f) An expert appointed by the court must have completed
975 forensic evaluator training as specified below.
976 1. A forensic evaluator training course approved by the
977 Department of Children and Family Services must be provided at
978 least annually to ensure that mental health professionals have
979 an opportunity to be placed on the registry.
980 2. Beginning July 1, 2011, an expert shall remain on the
981 registry if he or she has completed or retaken the required
982 training within the previous 5 years. An expert who has not
983 completed the required training within the previous 5 years must
984 be removed from the registry and may not conduct evaluations for
985 the courts.
986 3. A mental health professional who has completed the
987 training course within the previous 5 years must maintain
988 documentation of having completing the required training and
989 provide current contact information to the Department of
990 Children and Family Services.
991 (g) (e) For competency incompetency evaluations related to
992 mental retardation or autism, the court shall order the Agency
993 for Persons with Disabilities to examine the child to determine
994 if the child meets the definition of “retardation” or “autism”
995 in s. 393.063 and, if so, whether the child is competent to
996 proceed with delinquency proceedings.
997 (h) (f) A child is competent to proceed if the child has
998 sufficient present ability to consult with counsel with a
999 reasonable degree of rational understanding and the child has a
1000 rational and factual understanding of the present proceedings.
1001 The report must address the child’s capacity to:
1002 1. Appreciate the charges or allegations against the child.
1003 2. Appreciate the range and nature of possible penalties
1004 that may be imposed in the proceedings against the child, if
1006 3. Understand the adversarial nature of the legal process.
1007 4. Disclose to counsel facts pertinent to the proceedings
1008 at issue.
1009 5. Display appropriate courtroom behavior.
1010 6. Testify relevantly.
1011 (i) (g) Immediately upon the filing of the court order
1012 finding a child to be incompetent to proceed, the clerk of the
1013 court shall notify the Department of Children and Family
1014 Services and the Agency for Persons with Disabilities and fax or
1015 hand deliver to the department and to the agency a referral
1016 packet that includes, at a minimum, the court order, the
1017 charging documents, the petition, and the court-appointed
1018 evaluator’s reports.
1019 (j) (h) After placement of the child in the appropriate
1020 setting, the Department of Children and Family Services in
1021 consultation with the Agency for Persons with Disabilities, as
1022 appropriate, must, within 30 days after placement of the child,
1023 prepare and submit to the court a treatment or training plan for
1024 the child’s restoration of competency. A copy of the plan must
1025 be served upon the child’s attorney, the state attorney, and the
1026 attorneys representing the Department of Juvenile Justice.
1027 Section 15. This act shall take effect July 1, 2010.