August 24, 2019
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       Florida Senate - 2010                                    SB 2718
       
       
       
       By Senator Storms
       
       
       
       
       10-01853C-10                                          20102718__
    1                        A bill to be entitled                      
    2         An act relating to the provision of psychotropic
    3         medication to children in out-of-home placements;
    4         repealing s. 39.407(3), F.S., relating to the
    5         authority of the Department of Children and Family
    6         Services to prescribe psychotropic medication to a
    7         child in its custody; creating s. 39.4071, F.S.;
    8         providing legislative findings and intent; providing
    9         definitions; requiring that a guardian ad litem be
   10         appointed by the court to represent a child in the
   11         custody of the Department of Children and Family
   12         Services who is prescribed a psychotropic medication;
   13         prescribing the duties of the guardian ad litem;
   14         requiring that the department or lead agency notify
   15         the guardian ad litem of any change in the status of
   16         the child; requiring that express and informed consent
   17         and assent be obtained from a child or the child’s
   18         parent or guardian; providing requirements for a
   19         prescribing physician in obtaining consent and assent;
   20         providing for the invalidation of a parent’s informed
   21         consent; requiring the department to seek informed
   22         consent from the legal guardian in certain
   23         circumstances; requiring the department to file a
   24         motion for the administration of psychotropic
   25         medication with the final judgment of termination of
   26         parental rights under certain circumstances; requiring
   27         that a court authorize the administration of
   28         psychotropic medication to a child who is in shelter
   29         care or in foster care and for whom parental consent
   30         has not been obtained; providing requirements for the
   31         motion to the court; requiring that any party
   32         objecting to the administration of psychotropic
   33         medication file its objection within a specified
   34         period; authorizing the court to obtain a second
   35         opinion regarding the proposed administration;
   36         requiring that the court hold a hearing if any party
   37         objects to the proposed administration; specifying
   38         circumstances under which the department may provide
   39         psychotropic medication to a child before court
   40         authorization is obtained; requiring that the
   41         department seek court authorization for continued
   42         administration of the medication; providing for an
   43         expedited hearing on such motion under certain
   44         circumstances; requiring the department to provide
   45         notice to all parties and the court for each emergency
   46         use of psychotropic medication under certain
   47         conditions; requiring that a mental health treatment
   48         plan be developed for each child or youth who is
   49         placed into an out-of-home placement; requiring
   50         certain information to be included in a mental health
   51         treatment plan; requiring the department to develop
   52         and administer procedures to require the caregiver and
   53         prescribing physician to report any adverse side
   54         effects; requiring documentation of the adverse side
   55         effects; prohibiting the prescription of psychotropic
   56         medication to certain children who are in out-of-home
   57         care absent certain conditions; requiring review by a
   58         licensed child psychiatrist before psychotropic
   59         medication is administered to certain children who are
   60         in out-of-home care under certain conditions;
   61         prohibiting authorization for a child in the custody
   62         of the department to participate in any clinical trial
   63         designed to evaluate the use of psychotropic
   64         medication in children; amending s. 743.0645, F.S.;
   65         conforming a cross-reference; providing an effective
   66         date.
   67  
   68  Be It Enacted by the Legislature of the State of Florida:
   69  
   70         Section 1. Subsection (3) of section 39.407, Florida
   71  Statutes, is repealed.
   72         Section 2. Section 39.4071, Florida Statutes, is created to
   73  read:
   74         39.4071Use of psychotropic medication for children in out
   75  of-home placement.—
   76         (1)LEGISLATIVE FINDINGS AND INTENT.
   77         (a)The Legislature finds that children in out-of-home
   78  placements often have multiple risk factors that predispose them
   79  to emotional and behavioral disorders and that they receive
   80  mental health services at higher rates and are more likely to be
   81  given psychotropic medications than children from comparable
   82  backgrounds.
   83         (b)The Legislature also finds that the use of psychotropic
   84  medications for the treatment of children in out-of-home
   85  placements who have emotional and behavioral disturbances has
   86  increased over recent years. While this increased use of
   87  psychotropic medications is paralleled by an increase in the
   88  rate of the coadministration of two or more psychotropic
   89  medications or polypharmacy, data on the safety and efficacy of
   90  many of the psychotropic medications used in children and
   91  research supporting the practice of polypharmacy in this
   92  population is limited.
   93         (c)The Legislature further finds that significant
   94  challenges are encountered in providing quality mental health
   95  care to children in out-of-home placements. Not uncommonly,
   96  children in out-of-home placements are subjected to multiple
   97  placements and many service providers, with communication
   98  between providers often poor, resulting in fragmented medical
   99  and mental health care. The dependable, ongoing therapeutic and
  100  caregiving relationships these children need are hampered by the
  101  high turnover among child welfare caseworkers and care
  102  providers. Furthermore, children in out-of-home placements,
  103  unlike children from intact families, often have no consistent
  104  interested party who is available to coordinate treatment and
  105  monitoring plans or to provide longitudinal oversight of care.
  106         (d)It is therefore the intent of the Legislature that
  107  children in out-of-home placements who may benefit from
  108  psychotropic medications receive those medications safely as
  109  part of a comprehensive mental health treatment plan overseen by
  110  a court-appointed guardian ad litem.
  111         (2)DEFINITIONS.As used in this section, the term:
  112         (a) “Assent” means a process by which a provider of medical
  113  services helps a child achieve a developmentally appropriate
  114  awareness of the nature of his or her condition, informs the
  115  child of what can be expected through tests and treatment, makes
  116  a clinical assessment of the child’s understanding of the
  117  situation and the factors influencing how he or she is
  118  responding, and solicits an expression of the child’s
  119  willingness to accept the proposed care. The mere absence of an
  120  objection by the child may not be construed as assent.
  121         (b)“Comprehensive behavioral health assessment” means an
  122  in-depth and detailed assessment of the child’s emotional,
  123  social, behavioral, and developmental functioning within the
  124  family home, school, and community. A comprehensive behavioral
  125  health assessment must include direct observation of the child
  126  in the home, school, and community, as well as in the clinical
  127  setting, and must adhere to the requirements contained in the
  128  Florida Medicaid Community Behavioral Health Services Coverage
  129  and Limitations Handbook.
  130         (c)“Express and informed consent” means voluntary consent
  131  from a parent whose rights have not been terminated or a legal
  132  guardian of the child who has received full, accurate, and
  133  sufficient information and an explanation about the child’s
  134  medical condition, medication, and treatment in order to enable
  135  the parent or guardian to make a knowledgeable decision without
  136  being subjected to any deceit or coercion.
  137         (d)“Mental health treatment plan” means a report that is
  138  prepared by a physician prescribing psychotropic medication to a
  139  child in out-of-home placement and that includes the information
  140  required by this section.
  141         (e)“Psychotropic medication” means any chemical substance
  142  prescribed with the intent to treat psychiatric disorders, and
  143  those substances that, though prescribed with the intent to
  144  treat other medical conditions, have the effect of altering
  145  brain chemistry or involve any of the medications in the
  146  following categories:
  147         1.Antipsychotics;
  148         2.Antidepressants;
  149         3.Sedative hypnotics;
  150         4.Lithium;
  151         5.Stimulants;
  152         6.Nonstimulant medications for treating attention deficit
  153  hyperactivity disorder;
  154         7.Anti-dementia medications and cognitive enhancers;
  155         8.Anticonvulsants and alpha-2 agonists; and
  156         9.Any other medication used to stabilize or improve mood,
  157  mental status, behavior, or mental illness.
  158         (3)APPOINTMENT OF GUARDIAN AD LITEM.
  159         (a)A guardian ad litem shall be appointed by the court at
  160  the earliest possible time to represent the best interests of a
  161  child in the custody of the department who is prescribed a
  162  psychotropic medication. Pursuant to s. 39.820, the appointed
  163  guardian ad litem is a party to any judicial proceeding as a
  164  representative of the child and serves until discharged by the
  165  court.
  166         (b)It is the duty of the guardian ad litem to oversee the
  167  care, health, and medical treatment of the child; to advise the
  168  court regarding any change in the status of the child; and to
  169  respond to any medical emergency of the child.
  170         (c)The department and the community-based care lead agency
  171  shall notify the guardian ad litem within 24 hours after any
  172  change in the status of the child, including, but not limited
  173  to, a change in placement, a change in school, or a change in
  174  medical condition or medication.
  175         (4)EXPRESS AND INFORMED CONSENT AND ASSENT.—If, at the
  176  time of removal from his or her home, a child is being provided
  177  or is being evaluated for the initiation of prescribed
  178  psychotropic medication under this section, express and informed
  179  consent and assent shall be sought by the prescribing physician.
  180         (a)The prescribing physician shall obtain assent from the
  181  child, unless the prescribing physician determines that it is
  182  not appropriate to obtain assent from the child. In making this
  183  assessment, the prescribing physician shall consider the
  184  capacity of the child to make an independent decision based on
  185  his or her age, maturity, and psychological and emotional state.
  186  If the physician determines that it is not appropriate to obtain
  187  assent from the child, the physician must document the decision
  188  in the mental health treatment plan.
  189         1.Assent from a child shall be sought in a manner that is
  190  understandable to the child using an age-appropriate assent
  191  form. The child shall be provided with sufficient information,
  192  such as the nature and purpose of the medication, the probable
  193  risks and benefits, alternative treatments and the risks and
  194  benefits thereof, and the risks and benefits of refusing or
  195  discontinuing the medication. Assent may be oral or written and
  196  must be documented by the prescribing physician.
  197         2.Oral assent is appropriate for a child who is younger
  198  than 7 years of age. Assent from a child who is 7 to 13 years of
  199  age may be sought orally or in a simple form that is written at
  200  the second-grade or third-grade reading level. A child who is 14
  201  years of age or older may understand the language presented in
  202  the consent form for parents or guardians. If so, the child may
  203  sign the consent form along with the parent or guardian. Forms
  204  for parents and older children shall be written at the sixth
  205  grade to eighth-grade reading level.
  206         3.In each case where assent is obtained, a copy of the
  207  assent documents must be provided to the parent or legal
  208  guardian and the original assent documents shall become part of
  209  the child’s mental health treatment plan.
  210         (b)Express and informed consent for the administration of
  211  psychotropic medication may be given only by a parent whose
  212  rights have not been terminated or a legal guardian of the child
  213  who has received full, accurate, and sufficient information and
  214  an explanation about the child’s medical condition, medication,
  215  and treatment in order to enable the parent or guardian to make
  216  a knowledgeable decision. A sufficient explanation includes, but
  217  need not be limited to, the following information, which is
  218  provided and explained in plain language by the prescribing
  219  physician to the parent or guardian: the medication, the reason
  220  for prescribing it, and its purpose or intended results; side
  221  effects, risks, and contraindications, including effects of
  222  stopping the medication; method for administering the medication
  223  and dosage range when applicable; potential drug interactions;
  224  alternative treatments; and the behavioral health or other
  225  services used to complement the use of medication, when
  226  applicable.
  227         1.Express and informed consent may be oral or written and
  228  must be documented by the prescribing physician. If the
  229  department or the physician is unable to obtain consent from the
  230  parent or guardian, the reasons must be documented.
  231         2.When express and informed consent is obtained, a copy of
  232  the consent documents must be provided to the parent or legal
  233  guardian and the original consent documents shall become part of
  234  the child’s mental health treatment plan.
  235         (c) The informed consent of any parent whose whereabouts
  236  are unknown for 60 days, who is adjudicated incompetent, who
  237  does not have regular and frequent contact with the child, or
  238  whose parental rights are terminated after giving consent, is
  239  invalid. If the informed consent of a parent becomes invalid,
  240  the department shall seek informed consent from the legal
  241  guardian. If the informed consent was provided by a parent whose
  242  parental rights have been terminated, the department shall file
  243  a motion for the administration of psychotropic medication along
  244  with the motion for final judgment of termination of parental
  245  rights.
  246         (5)ADMINISTRATION OF PSYCHOTROPIC MEDICATION TO A CHILD IN
  247  SHELTER CARE OR IN FOSTER CARE WHEN PARENTAL CONSENT HAS NOT
  248  BEEN OBTAINED.
  249         (a)Motion for court authorization for administration of
  250  psychotropic medications.
  251         1. If the department believes that a child in its physical
  252  or legal custody requires the administration of a psychotropic
  253  medication and the child’s parents or legal guardians have not
  254  provided express and informed consent as provided by law, the
  255  department or its agent shall file a motion with the court to
  256  authorize the administration of the psychotropic medication
  257  before the administration of the medication, except as provided
  258  in subsection (6). In each case in which a motion is required,
  259  the motion must include:
  260         a.A written report by the department describing the
  261  efforts made to enable the prescribing physician to obtain
  262  express and informed consent for providing the medication to the
  263  child and describing other treatments considered or recommended
  264  for the child; and
  265         b.The prescribing physician’s completed and signed mental
  266  health treatment plan.
  267         2. The department must file a copy of the motion with the
  268  court and, within 48 hours after filing the motion with the
  269  court, notify all parties in writing, or by whatever other
  270  method best ensures that all parties receive notification, of
  271  its proposed administration of psychotropic medication to the
  272  child.
  273         3.If any party objects to the proposed administration of
  274  the psychotropic medication to the child, that party must file
  275  its objection within 2 working days after being notified of the
  276  department’s motion.
  277         (b)Court action on motion for administration of
  278  psychotropic medication.
  279         1.If no party timely files an objection to the
  280  department’s motion, the court may enter its order authorizing
  281  the proposed administration of the psychotropic medication
  282  without a hearing. Based on its determination of the best
  283  interests of the child, the court may order additional medical
  284  consultation or require the department to obtain a second
  285  opinion within a reasonable time, but not more than 21 calendar
  286  days. If the court orders an additional medical consultation or
  287  second medical opinion, the department shall file a written
  288  report including the results of this additional consultation or
  289  a copy of the second medical opinion with the court within the
  290  time required by the court, and shall serve a copy of the report
  291  as required by this section.
  292         2.If any party timely files its objection to the proposed
  293  administration of the psychotropic medication to the child, the
  294  court shall hold a hearing as soon as possible on the
  295  department’s motion.
  296         a.The medical report of the prescribing physician is
  297  admissible in evidence at the hearing.
  298         b.The court shall ask the department whether additional
  299  medical, mental health, behavioral, counseling, or other
  300  services are being provided to the child which the prescribing
  301  physician considers to be necessary or beneficial in treating
  302  the child’s medical condition and which the physician recommends
  303  or expects to be provided to the child along with the
  304  medication.
  305         3.The court may order additional medical consultation or a
  306  second medical opinion, as provided in subsection 1.
  307         4.After considering the department’s motion and any
  308  testimony received, the court may order that the department
  309  provide or continue to provide the proposed psychotropic
  310  medication to the child upon a determination that it is in the
  311  child’s best interest to do so.
  312         (6)ADMINISTRATION OF PSYCHOTROPIC MEDICATION TO A CHILD IN
  313  OUT-OF-HOME CARE BEFORE COURT AUTHORIZATION HAS BEEN OBTAINED.
  314  The department may provide continued administration of
  315  psychotropic medication to a child before authorization by the
  316  court has been obtained only as provided in this subsection.
  317         (a) If a child is removed from the home and taken into
  318  custody under s. 39.401, the department may continue to
  319  administer a current prescription of psychotropic medication to
  320  the child; however, the department shall request court
  321  authorization for the continued administration of the medication
  322  at the shelter hearing. This request shall be included in the
  323  shelter petition.
  324         1.The department shall provide all information in its
  325  possession to the court in support of its request at the shelter
  326  hearing. The court may authorize the continued administration of
  327  the psychotropic medication only until the arraignment hearing
  328  on the petition for adjudication, or for 28 days following the
  329  date of the child’s removal, whichever occurs first.
  330         2. If the department believes, based on the required
  331  physician’s evaluation, that it is appropriate to continue the
  332  psychotropic medication beyond the time authorized by the court
  333  at the shelter hearing, the department shall file a motion
  334  seeking continued court authorization at the same time that it
  335  files the dependency petition, but within 21 days after the
  336  shelter hearing.
  337         (b) If the department believes, based on the certification
  338  of the prescribing physician, that delay in providing the
  339  prescribed psychotropic medication to the child would, more
  340  likely than not, cause significant harm to the child, the
  341  department must submit a motion to the court seeking
  342  continuation of the medication within 3 working days after the
  343  department begins providing the medication to the child.
  344         1.The motion seeking authorization for the continued
  345  administration of the psychotropic medication to the child must
  346  include all information required in this section. The required
  347  medical report must also include the specific reasons why the
  348  child may experience significant harm, and the nature and the
  349  extent of the potential harm, resulting from a delay in
  350  authorizing the prescribed medication.
  351         2.The department shall serve the motion on all parties
  352  within 3 working days after the department begins providing the
  353  medication to the child.
  354         3.The court shall hear the department’s motion at the next
  355  regularly scheduled court hearing required by law, or within 30
  356  days after the date of the prescription, whichever occurs first.
  357  However, if any party files an objection to the motion, the
  358  court shall hold a hearing within 7 days.
  359         (c) The department may authorize, in advance of a court
  360  order, the administration of psychotropic medications to a child
  361  in its custody in a hospital, crisis stabilization unit, or in
  362  statewide inpatient psychiatric program. If the department does
  363  so, it must seek court authorization for the continued
  364  administration of the medication as required in this section.
  365         (d) If a child receives a one-time dose of a psychotropic
  366  medication during a crisis, the department shall provide
  367  immediate notice to all parties and to the court of each such
  368  emergency use.
  369         (7)DEVELOPMENT OF MENTAL HEALTH TREATMENT PLAN.
  370         (a) Within 7 days after a child or youth is placed into an
  371  approved out-of-home placement, the child protective
  372  investigator or dependency case manager shall submit a referral
  373  for a comprehensive behavioral health assessment, which shall be
  374  used to develop a mental health treatment plan for the child.
  375  The mental health treatment plan must include:
  376         1. The name of the child, a statement indicating that there
  377  is a need to prescribe psychotropic medication to the child
  378  based upon a diagnosed, organically caused condition for which
  379  such medication is being prescribed, a statement indicating the
  380  compelling governmental interest in prescribing the psychotropic
  381  medication, and the name and range of the dosage of the
  382  psychotropic medication.
  383         2.A statement indicating that the physician has reviewed
  384  all medical information concerning the child which has been
  385  provided.
  386         3.A statement indicating that the psychotropic medication,
  387  at its prescribed dosage, is appropriate for treating the
  388  child’s diagnosed medical condition, as well as the behaviors
  389  and symptoms that the medication, at its prescribed dosage, is
  390  expected to address.
  391         4.An explanation of the nature and purpose of the
  392  treatment; the recognized side effects, risks, and
  393  contraindications of the medication, including procedures for
  394  reporting adverse effects; drug-interaction precautions; the
  395  possible effects of stopping the medication; and how the
  396  treatment will be monitored, followed by a statement indicating
  397  that this explanation was provided to the child if age
  398  appropriate and to the child’s caregiver.
  399         5.Documentation addressing whether the psychotropic
  400  medication will replace or supplement any other currently
  401  prescribed medications or treatments; the length of time the
  402  child is expected to be taking the medication; a plan for the
  403  discontinuation of any medication when medically appropriate;
  404  and any additional medical, mental health, behavioral,
  405  counseling, or other services that the prescribing physician
  406  recommends as part of a comprehensive treatment plan.
  407         (b)The department shall develop and administer procedures
  408  to require the caregiver and prescribing physician to report any
  409  adverse side effects of the medication to the department or its
  410  designee. Any adverse side effects must be documented in the
  411  treatment plan for the child.
  412         (8)REVIEW FOR ADMINISTRATION OF PSYCHOTROPIC MEDICATION
  413  FOR CHILDREN FROM BIRTH THROUGH 10 YEARS OF AGE IN OUT-OF-HOME
  414  CARE.–Absent a finding of a compelling governmental interest, a
  415  psychotropic medication may not be prescribed for any child from
  416  birth to 10 years of age who is in out-of-home placement. Based
  417  on a finding of a compelling governmental interest but before a
  418  psychotropic medication is prescribed for any child from birth
  419  through 10 years of age who is in an out-of-home placement, a
  420  review of the administration must be obtained from a child
  421  psychiatrist who is licensed under chapter 458 or chapter 459.
  422  This review must occur before express and informed consent or
  423  assent is sought from the child or his or her parent or
  424  guardian.
  425         (9)CLINICAL TRIALS.–At no time shall a child in the
  426  custody of the department be allowed to participate in a
  427  clinical trial that is designed to develop new psychotropic
  428  medications or evaluate their application to children.
  429         Section 3. Paragraph (b) of subsection (1) of section
  430  743.0645, Florida Statutes, is amended to read:
  431         743.0645 Other persons who may consent to medical care or
  432  treatment of a minor.—
  433         (1) As used in this section, the term:
  434         (b) “Medical care and treatment” includes ordinary and
  435  necessary medical and dental examination and treatment,
  436  including blood testing, preventive care including ordinary
  437  immunizations, tuberculin testing, and well-child care, but does
  438  not include surgery, general anesthesia, provision of
  439  psychotropic medications, or other extraordinary procedures for
  440  which a separate court order, power of attorney, or informed
  441  consent as provided by law is required, except as provided in s.
  442  39.4071 s. 39.407(3).
  443         Section 4. This act shall take effect July 1, 2010.

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