August 21, 2019
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       Florida Senate - 2010                      CS for CS for SB 2718
       
       
       
       By the Committees on Judiciary; and Children, Families, and
       Elder Affairs; and Senator Storms
       
       
       
       590-04769A-10                                         20102718c2
    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         amending s. 39.407, F.S.; requiring the provision of a
    5         comprehensive mental health treatment plan; specifying
    6         eligibility; prescribing duties for the Department of
    7         Children and Family Services; deleting provisions
    8         relating to the provision of psychotropic medications
    9         to children in out-of-home care; creating s. 39.4071,
   10         F.S.; providing legislative findings and intent;
   11         providing definitions; requiring that a guardian ad
   12         litem be appointed by the court to represent a child
   13         in the custody of the Department of Children and
   14         Family Services who is prescribed a psychotropic
   15         medication; prescribing the duties of the guardian ad
   16         litem; requiring that the department or lead agency
   17         notify the guardian ad litem of any change in the
   18         status of the child; providing for psychiatric
   19         evaluation of the child; requiring that express and
   20         informed consent and assent be obtained from a child
   21         or the child’s parent or guardian; providing
   22         requirements for a prescribing physician in obtaining
   23         consent and assent; providing for the invalidation of
   24         a parent’s informed consent; requiring the department
   25         to seek informed consent from the legal guardian in
   26         certain circumstances; requiring the department to
   27         file a motion for the administration of psychotropic
   28         medication with the final judgment of termination of
   29         parental rights under certain circumstances; requiring
   30         that a court authorize the administration of
   31         psychotropic medication to a child who is in shelter
   32         care or in foster care and for whom informed consent
   33         from the parents or a legal guardian has not been
   34         obtained; providing requirements for the motion to the
   35         court; requiring that any party objecting to the
   36         administration of psychotropic medication file its
   37         objection within a specified period; authorizing the
   38         court to obtain a second opinion regarding the
   39         proposed administration; requiring that the court hold
   40         a hearing if any party objects to the proposed
   41         administration; specifying circumstances under which
   42         the department may provide psychotropic medication to
   43         a child before court authorization is obtained;
   44         requiring that the department seek court authorization
   45         for continued administration of the medication;
   46         providing for an expedited hearing on such motion
   47         under certain circumstances; requiring the department
   48         to provide notice to all parties and the court for
   49         each emergency use of psychotropic medication under
   50         certain conditions; providing for discontinuation,
   51         alteration, and destruction of medication; requiring
   52         that a mental health treatment plan be developed for
   53         each child or youth who needs mental health services;
   54         requiring certain information to be included in a
   55         mental health treatment plan; requiring the department
   56         to develop and administer procedures to require the
   57         caregiver and prescribing physician to report any
   58         adverse side effects; requiring documentation of the
   59         adverse side effects; prohibiting the prescription of
   60         psychotropic medication to certain children who are in
   61         out-of-home care absent certain conditions; requiring
   62         review by a licensed child psychiatrist before
   63         psychotropic medication is administered to certain
   64         children who are in out-of-home care under certain
   65         conditions; prohibiting authorization for a child in
   66         the custody of the department to participate in any
   67         clinical trial designed to evaluate the use of
   68         psychotropic medication in children; amending s.
   69         743.0645, F.S.; conforming a cross-reference;
   70         providing an effective date.
   71  
   72  Be It Enacted by the Legislature of the State of Florida:
   73  
   74         Section 1. Subsection (3) of section 39.407, Florida
   75  Statutes, is amended to read:
   76         39.407 Medical, psychiatric, and psychological examination
   77  and treatment of child; physical, mental, or substance abuse
   78  examination of person with or requesting child custody.—
   79         (3)(a)All children placed in out-of-home care shall be
   80  provided with a comprehensive behavioral health assessment. The
   81  child protective investigator or dependency case manager shall
   82  submit a referral for such assessment no later than 7 days after
   83  a child is placed in out-of-home care.
   84         (b)Any child who has been in out-of-home care for more
   85  than 1 year, or who did not receive a comprehensive behavioral
   86  health assessment when placed into out-of-home care, is eligible
   87  to receive a comprehensive behavioral health assessment. Such
   88  assessments evaluate behaviors that give rise to the concern
   89  that the child has unmet mental health needs. Any party to the
   90  dependency proceeding, or the court on its own motion, may
   91  request that an assessment be performed.
   92         (c)The child protective investigator or dependency case
   93  manager shall be responsible for ensuring that all
   94  recommendations in the comprehensive behavioral health
   95  assessment are incorporated into the child’s case plan and that
   96  the recommended services are provided in a timely manner. If, at
   97  a case planning conference, there is a determination made that a
   98  specific recommendation should not be included in a child’s case
   99  plan, the court must be provided with a written explanation as
  100  to why the recommendation is not being followed.
  101         (d)Nothing in this provision shall be construed to prevent
  102  a child from receiving any other form of psychological
  103  assessment when needed.
  104         (e)If it is determined that a child is in need of mental
  105  health services, the comprehensive behavioral health assessment
  106  must be provided to the physician involved in developing the
  107  child’s mental health treatment plan, pursuant to s. 39.4071(9).
  108         (3)(a)1.Except as otherwise provided in subparagraph (b)1.
  109  or paragraph (e), before the department provides psychotropic
  110  medications to a child in its custody, the prescribing physician
  111  shall attempt to obtain express and informed consent, as defined
  112  in s. 394.455(9) and as described in s. 394.459(3)(a), from the
  113  child’s parent or legal guardian. The department must take steps
  114  necessary to facilitate the inclusion of the parent in the
  115  child’s consultation with the physician. However, if the
  116  parental rights of the parent have been terminated, the parent’s
  117  location or identity is unknown or cannot reasonably be
  118  ascertained, or the parent declines to give express and informed
  119  consent, the department may, after consultation with the
  120  prescribing physician, seek court authorization to provide the
  121  psychotropic medications to the child. Unless parental rights
  122  have been terminated and if it is possible to do so, the
  123  department shall continue to involve the parent in the
  124  decisionmaking process regarding the provision of psychotropic
  125  medications. If, at any time, a parent whose parental rights
  126  have not been terminated provides express and informed consent
  127  to the provision of a psychotropic medication, the requirements
  128  of this section that the department seek court authorization do
  129  not apply to that medication until such time as the parent no
  130  longer consents.
  131         2.Any time the department seeks a medical evaluation to
  132  determine the need to initiate or continue a psychotropic
  133  medication for a child, the department must provide to the
  134  evaluating physician all pertinent medical information known to
  135  the department concerning that child.
  136         (b)1.If a child who is removed from the home under s.
  137  39.401 is receiving prescribed psychotropic medication at the
  138  time of removal and parental authorization to continue providing
  139  the medication cannot be obtained, the department may take
  140  possession of the remaining medication and may continue to
  141  provide the medication as prescribed until the shelter hearing,
  142  if it is determined that the medication is a current
  143  prescription for that child and the medication is in its
  144  original container.
  145         2.If the department continues to provide the psychotropic
  146  medication to a child when parental authorization cannot be
  147  obtained, the department shall notify the parent or legal
  148  guardian as soon as possible that the medication is being
  149  provided to the child as provided in subparagraph 1. The child’s
  150  official departmental record must include the reason parental
  151  authorization was not initially obtained and an explanation of
  152  why the medication is necessary for the child’s well-being.
  153         3.If the department is advised by a physician licensed
  154  under chapter 458 or chapter 459 that the child should continue
  155  the psychotropic medication and parental authorization has not
  156  been obtained, the department shall request court authorization
  157  at the shelter hearing to continue to provide the psychotropic
  158  medication and shall provide to the court any information in its
  159  possession in support of the request. Any authorization granted
  160  at the shelter hearing may extend only until the arraignment
  161  hearing on the petition for adjudication of dependency or 28
  162  days following the date of removal, whichever occurs sooner.
  163         4.Before filing the dependency petition, the department
  164  shall ensure that the child is evaluated by a physician licensed
  165  under chapter 458 or chapter 459 to determine whether it is
  166  appropriate to continue the psychotropic medication. If, as a
  167  result of the evaluation, the department seeks court
  168  authorization to continue the psychotropic medication, a motion
  169  for such continued authorization shall be filed at the same time
  170  as the dependency petition, within 21 days after the shelter
  171  hearing.
  172         (c)Except as provided in paragraphs (b) and (e), the
  173  department must file a motion seeking the court’s authorization
  174  to initially provide or continue to provide psychotropic
  175  medication to a child in its legal custody. The motion must be
  176  supported by a written report prepared by the department which
  177  describes the efforts made to enable the prescribing physician
  178  to obtain express and informed consent for providing the
  179  medication to the child and other treatments considered or
  180  recommended for the child. In addition, the motion must be
  181  supported by the prescribing physician’s signed medical report
  182  providing:
  183         1.The name of the child, the name and range of the dosage
  184  of the psychotropic medication, and that there is a need to
  185  prescribe psychotropic medication to the child based upon a
  186  diagnosed condition for which such medication is being
  187  prescribed.
  188         2.A statement indicating that the physician has reviewed
  189  all medical information concerning the child which has been
  190  provided.
  191         3.A statement indicating that the psychotropic medication,
  192  at its prescribed dosage, is appropriate for treating the
  193  child’s diagnosed medical condition, as well as the behaviors
  194  and symptoms the medication, at its prescribed dosage, is
  195  expected to address.
  196         4.An explanation of the nature and purpose of the
  197  treatment; the recognized side effects, risks, and
  198  contraindications of the medication; drug-interaction
  199  precautions; the possible effects of stopping the medication;
  200  and how the treatment will be monitored, followed by a statement
  201  indicating that this explanation was provided to the child if
  202  age appropriate and to the child’s caregiver.
  203         5.Documentation addressing whether the psychotropic
  204  medication will replace or supplement any other currently
  205  prescribed medications or treatments; the length of time the
  206  child is expected to be taking the medication; and any
  207  additional medical, mental health, behavioral, counseling, or
  208  other services that the prescribing physician recommends.
  209         (d)1.The department must notify all parties of the
  210  proposed action taken under paragraph (c) in writing or by
  211  whatever other method best ensures that all parties receive
  212  notification of the proposed action within 48 hours after the
  213  motion is filed. If any party objects to the department’s
  214  motion, that party shall file the objection within 2 working
  215  days after being notified of the department’s motion. If any
  216  party files an objection to the authorization of the proposed
  217  psychotropic medication, the court shall hold a hearing as soon
  218  as possible before authorizing the department to initially
  219  provide or to continue providing psychotropic medication to a
  220  child in the legal custody of the department. At such hearing
  221  and notwithstanding s. 90.803, the medical report described in
  222  paragraph (c) is admissible in evidence. The prescribing
  223  physician need not attend the hearing or testify unless the
  224  court specifically orders such attendance or testimony, or a
  225  party subpoenas the physician to attend the hearing or provide
  226  testimony. If, after considering any testimony received, the
  227  court finds that the department’s motion and the physician’s
  228  medical report meet the requirements of this subsection and that
  229  it is in the child’s best interests, the court may order that
  230  the department provide or continue to provide the psychotropic
  231  medication to the child without additional testimony or
  232  evidence. At any hearing held under this paragraph, the court
  233  shall further inquire of the department as to whether additional
  234  medical, mental health, behavioral, counseling, or other
  235  services are being provided to the child by the department which
  236  the prescribing physician considers to be necessary or
  237  beneficial in treating the child’s medical condition and which
  238  the physician recommends or expects to provide to the child in
  239  concert with the medication. The court may order additional
  240  medical consultation, including consultation with the MedConsult
  241  line at the University of Florida, if available, or require the
  242  department to obtain a second opinion within a reasonable
  243  timeframe as established by the court, not to exceed 21 calendar
  244  days, after such order based upon consideration of the best
  245  interests of the child. The department must make a referral for
  246  an appointment for a second opinion with a physician within 1
  247  working day. The court may not order the discontinuation of
  248  prescribed psychotropic medication if such order is contrary to
  249  the decision of the prescribing physician unless the court first
  250  obtains an opinion from a licensed psychiatrist, if available,
  251  or, if not available, a physician licensed under chapter 458 or
  252  chapter 459, stating that more likely than not, discontinuing
  253  the medication would not cause significant harm to the child.
  254  If, however, the prescribing psychiatrist specializes in mental
  255  health care for children and adolescents, the court may not
  256  order the discontinuation of prescribed psychotropic medication
  257  unless the required opinion is also from a psychiatrist who
  258  specializes in mental health care for children and adolescents.
  259  The court may also order the discontinuation of prescribed
  260  psychotropic medication if a child’s treating physician,
  261  licensed under chapter 458 or chapter 459, states that
  262  continuing the prescribed psychotropic medication would cause
  263  significant harm to the child due to a diagnosed nonpsychiatric
  264  medical condition.
  265         2.The burden of proof at any hearing held under this
  266  paragraph shall be by a preponderance of the evidence.
  267         (e)1.If the child’s prescribing physician certifies in the
  268  signed medical report required in paragraph (c) that delay in
  269  providing a prescribed psychotropic medication would more likely
  270  than not cause significant harm to the child, the medication may
  271  be provided in advance of the issuance of a court order. In such
  272  event, the medical report must provide the specific reasons why
  273  the child may experience significant harm and the nature and the
  274  extent of the potential harm. The department must submit a
  275  motion seeking continuation of the medication and the
  276  physician’s medical report to the court, the child’s guardian ad
  277  litem, and all other parties within 3 working days after the
  278  department commences providing the medication to the child. The
  279  department shall seek the order at the next regularly scheduled
  280  court hearing required under this chapter, or within 30 days
  281  after the date of the prescription, whichever occurs sooner. If
  282  any party objects to the department’s motion, the court shall
  283  hold a hearing within 7 days.
  284         2.Psychotropic medications may be administered in advance
  285  of a court order in hospitals, crisis stabilization units, and
  286  in statewide inpatient psychiatric programs. Within 3 working
  287  days after the medication is begun, the department must seek
  288  court authorization as described in paragraph (c).
  289         (f)1.The department shall fully inform the court of the
  290  child’s medical and behavioral status as part of the social
  291  services report prepared for each judicial review hearing held
  292  for a child for whom psychotropic medication has been prescribed
  293  or provided under this subsection. As a part of the information
  294  provided to the court, the department shall furnish copies of
  295  all pertinent medical records concerning the child which have
  296  been generated since the previous hearing. On its own motion or
  297  on good cause shown by any party, including any guardian ad
  298  litem, attorney, or attorney ad litem who has been appointed to
  299  represent the child or the child’s interests, the court may
  300  review the status more frequently than required in this
  301  subsection.
  302         2.The court may, in the best interests of the child, order
  303  the department to obtain a medical opinion addressing whether
  304  the continued use of the medication under the circumstances is
  305  safe and medically appropriate.
  306         (g)The department shall adopt rules to ensure that
  307  children receive timely access to clinically appropriate
  308  psychotropic medications. These rules must include, but need not
  309  be limited to, the process for determining which adjunctive
  310  services are needed, the uniform process for facilitating the
  311  prescribing physician’s ability to obtain the express and
  312  informed consent of a child’s parent or guardian, the procedures
  313  for obtaining court authorization for the provision of a
  314  psychotropic medication, the frequency of medical monitoring and
  315  reporting on the status of the child to the court, how the
  316  child’s parents will be involved in the treatment-planning
  317  process if their parental rights have not been terminated, and
  318  how caretakers are to be provided information contained in the
  319  physician’s signed medical report. The rules must also include
  320  uniform forms to be used in requesting court authorization for
  321  the use of a psychotropic medication and provide for the
  322  integration of each child’s treatment plan and case plan. The
  323  department must begin the formal rulemaking process within 90
  324  days after the effective date of this act.
  325         Section 2. Section 39.4071, Florida Statutes, is created to
  326  read:
  327         39.4071Use of psychotropic medication for children in out
  328  of-home placement.—
  329         (1)LEGISLATIVE FINDINGS AND INTENT.—
  330         (a)The Legislature finds that children in out-of-home
  331  placements often have multiple risk factors that predispose them
  332  to emotional and behavioral disorders and that they receive
  333  mental health services at higher rates and are more likely to be
  334  given psychotropic medications than children from comparable
  335  backgrounds.
  336         (b)The Legislature also finds that the use of psychotropic
  337  medications for the treatment of children in out-of-home
  338  placements who have emotional and behavioral disturbances has
  339  increased over recent years. While this increased use of
  340  psychotropic medications is paralleled by an increase in the
  341  rate of the coadministration of two or more psychotropic
  342  medications, data on the safety and efficacy of many of the
  343  psychotropic medications used in children and research
  344  supporting the coadministration of two or more psychotropic
  345  medications in this population is limited.
  346         (c)The Legislature further finds that significant
  347  challenges are encountered in providing quality mental health
  348  care to children in out-of-home placements. Not uncommonly,
  349  children in out-of-home placements are subjected to multiple
  350  placements and many service providers, with communication
  351  between providers often poor, resulting in fragmented medical
  352  and mental health care. The dependable, ongoing therapeutic and
  353  caregiving relationships these children need are hampered by the
  354  high turnover among child welfare caseworkers and care
  355  providers. Furthermore, children in out-of-home placements,
  356  unlike children from intact families, often have no consistent
  357  interested party who is available to coordinate treatment and
  358  monitoring plans or to provide longitudinal oversight of care.
  359         (d)The Legislature recognizes the important role the
  360  Guardian ad Litem Program has played in Florida’s dependency
  361  system for the past thirty years serving the state’s most
  362  vulnerable children through the use of trained volunteers, case
  363  coordinators, child advocates and attorneys. The program’s
  364  singular focus is on the child and its mission is to advocate
  365  for the best interest of the child. It is often the guardian ad
  366  litem who is the constant in a child’s life, maintaining
  367  consistent contact with the child, the child’s caseworkers, and
  368  others involved with the child, including family, doctors,
  369  teachers, and service providers. Studies have shown that a child
  370  assigned a guardian ad litem will, on average, experience fewer
  371  placement changes than a child without a guardian ad litem. It
  372  is therefore the intent of the Legislature that children in out
  373  of-home placements who may benefit from psychotropic medications
  374  receive those medications safely as part of a comprehensive
  375  mental health treatment plan requiring the appointment of a
  376  guardian ad litem whose responsibility is to monitor the plan
  377  for compliance and suitability as to the child’s best interest.
  378         (2)DEFINITIONS.—As used in this section, the term:
  379         (a)“Behavior analysis” means services rendered by a
  380  provider who is certified by the Behavior Analysis Certification
  381  Board in accordance with chapter 393.
  382         (b)“Obtaining assent” means a process by which a provider
  383  of medical services helps a child achieve a developmentally
  384  appropriate awareness of the nature of his or her condition,
  385  informs the child of what can be expected through tests and
  386  treatment, makes a clinical assessment of the child’s
  387  understanding of the situation and the factors influencing how
  388  he or she is responding, and solicits an expression of the
  389  child’s willingness to adhere to the proposed care. The mere
  390  absence of an objection by the child may not be construed as
  391  assent.
  392         (c)“Comprehensive behavioral health assessment” means an
  393  in-depth and detailed assessment of the child’s emotional,
  394  social, behavioral, and developmental functioning within the
  395  family home, school, and community. A comprehensive behavioral
  396  health assessment must include direct observation of the child
  397  in the home, school, and community, as well as in the clinical
  398  setting, and must adhere to the requirements contained in the
  399  Florida Medicaid Community Behavioral Health Services Coverage
  400  and Limitations Handbook.
  401         (d)“Express and informed consent” means a process by which
  402  a provider of medical services obtains voluntary consent from a
  403  parent whose rights have not been terminated or a legal guardian
  404  of the child who has received full, accurate, and sufficient
  405  information and an explanation about the child’s medical
  406  condition, medication, and treatment in order to enable the
  407  parent or guardian to make a knowledgeable decision without any
  408  element of fraud, deceit, duress, or other form of coercion.
  409         (e)“Mental health treatment plan” means a plan which lists
  410  the particular mental health needs of the child and the services
  411  that will be provided to address those needs. If the plan
  412  includes prescribing psychotropic medication to a child in out
  413  of-home placement, the plan must also include the information
  414  required by subsection (9).
  415         (f)“Psychotropic medication” means a prescription
  416  medication that is used for the treatment of mental disorders
  417  and includes, without limitation, hypnotics, antipsychotics,
  418  antidepressants, antianxiety agents, sedatives, stimulants, and
  419  mood stabilizers.
  420         (3)APPOINTMENT OF GUARDIAN AD LITEM.—
  421         (a)If not already appointed, a guardian ad litem shall be
  422  appointed by the court at the earliest possible time to
  423  represent the best interests of a child in out-of-home placement
  424  who is prescribed a psychotropic medication or is being
  425  evaluated for the initiation of psychotropic medication.
  426  Pursuant to s. 39.820, the appointed guardian ad litem is a
  427  party to any judicial proceeding as a representative of the
  428  child and serves until discharged by the court.
  429         (b)Under the provisions of this section, the guardian ad
  430  litem shall participate in the development of the mental health
  431  treatment plan, monitor whether all requirements of the mental
  432  health treatment plan are being provided to the child, including
  433  counseling, behavior analysis, or other services, medications,
  434  and treatment modalities; and notice the court of the child’s
  435  objections, if any, to the mental health treatment plan. The
  436  guardian ad litem shall prepare and submit to the court a
  437  written report every 45 days or as directed by the court,
  438  advising the court and the parties as to the status of the care,
  439  health, and medical treatment of the child pursuant to the
  440  mental health treatment plan and any change in the status of the
  441  child. The guardian ad litem will immediately notify parties as
  442  soon as any medical emergency of the child becomes known. The
  443  guardian ad litem shall ensure that the prescribing physician
  444  has been provided with all pertinent medical information
  445  concerning the child.
  446         (c)The department and the community-based care lead agency
  447  shall notify the court and the guardian ad litem, and, if
  448  applicable, the child’s attorney, in writing within 24 hours
  449  after any change in the status of the child, including, but not
  450  limited to, a change in placement, a change in school, a change
  451  in medical condition or medication, or a change in prescribing
  452  physician, other service providers, counseling, or treatment
  453  scheduling.
  454         (4)PSYCHIATRIC EVALUATION OF CHILD.Whenever the
  455  department believes that a child in its legal custody may need
  456  psychiatric treatment, an evaluation must be conducted by a
  457  physician licensed under chapter 458 or chapter 459.
  458         (5)EXPRESS AND INFORMED CONSENT AND ASSENT.—If, at the
  459  time of removal from his or her home, a child is being provided,
  460  or at any time is being evaluated for the initiation of,
  461  prescribed psychotropic medication under this section, express
  462  and informed consent and assent shall be sought by the
  463  prescribing physician.
  464         (a)The prescribing physician shall obtain assent from the
  465  child, unless the prescribing physician determines that it is
  466  not appropriate to obtain assent from the child. In making this
  467  assessment, the prescribing physician shall consider the
  468  capacity of the child to make an independent decision based on
  469  his or her age, maturity, and psychological and emotional state.
  470  If the physician determines that it is not appropriate to obtain
  471  assent from the child, the physician must document the decision
  472  in the mental health treatment plan. In the event the physician
  473  determines it is appropriate to obtain assent from the child and
  474  the child refuses to give assent, the physician must document
  475  the child’s refusal in the mental health treatment plan.
  476         1.Assent from a child shall be sought in a manner that is
  477  understandable to the child using a developmentally appropriate
  478  assent form. The child shall be provided with sufficient
  479  information, such as the nature and purpose of the medication,
  480  how it will be administered, the probable risks and benefits,
  481  alternative treatments and the risks and benefits thereof, and
  482  the risks and benefits of refusing or discontinuing the
  483  medication, and when it may be appropriately discontinued.
  484  Assent may be oral or written and must be documented by the
  485  prescribing physician.
  486         2.Oral assent is appropriate for a child who is younger
  487  than 7 years of age. Assent from a child who is 7 to 13 years of
  488  age may be sought orally or in a simple form that is written at
  489  the second-grade or third-grade reading level. A child who is 14
  490  years of age or older may understand the language presented in
  491  the consent form for parents or legal guardians. If so, the
  492  child may sign the consent form along with the parent or legal
  493  guardian. Forms for parents and older children shall be written
  494  at the sixth grade to eighth-grade reading level.
  495         3.In each case where assent is obtained, a copy of the
  496  assent documents must be provided to the parent or legal
  497  guardian and the guardian ad litem, with the original assent
  498  documents becoming a part of the child’s mental health treatment
  499  plan and filed with the court.
  500         (b)Express and informed consent for the administration of
  501  psychotropic medication may be given only by a parent whose
  502  rights have not been terminated or a legal guardian of the child
  503  who has received full, accurate, and sufficient information and
  504  an explanation about the child’s medical condition, medication,
  505  and treatment in order to enable the parent or guardian to make
  506  a knowledgeable decision. A sufficient explanation includes, but
  507  need not be limited to, the following information, which must be
  508  provided and explained in plain language by the prescribing
  509  physician to the parent or legal guardian: the child’s
  510  diagnosis, the symptoms to be addressed by the medication, the
  511  name of the medication and its dosage ranges, the reason for
  512  prescribing it, and its purpose or intended results; benefits,
  513  side effects, risks, and contraindications, including effects of
  514  not starting or stopping the medication; method for
  515  administering the medication and how it will monitored;
  516  potential drug interactions; alternative treatments to
  517  psychotropic medication; a plan to reduce or eliminate ongoing
  518  medication when medically appropriate; the counseling,
  519  behavioral analysis, or other services used to complement the
  520  use of medication, when applicable; and that the parent or legal
  521  guardian may revoke the consent at any time.
  522         1.Express and informed consent may be oral or written and
  523  must be documented by the prescribing physician. If the
  524  department or the physician is unable to obtain consent from the
  525  parent or legal guardian, the reasons must be documented.
  526         2.When express and informed consent is obtained, a copy of
  527  the consent documents must be provided to the parent or legal
  528  guardian and the guardian ad litem, with the original consent
  529  documents becoming a part of the child’s mental health treatment
  530  plan and filed with the court.
  531         (c)The informed consent of any parent whose whereabouts
  532  are unknown for 60 days, who is adjudicated incapacitated, who
  533  does not have regular and frequent contact with the child, who
  534  later revokes assent, or whose parental rights are terminated
  535  after giving consent, is invalid. If the informed consent of a
  536  parent becomes invalid, the department may seek informed consent
  537  from any other parent or legal guardian. If the informed consent
  538  provided by a parent whose parental rights have been terminated
  539  is invalid and no other parent or legal guardian gives informed
  540  consent, the department shall file a motion for the
  541  administration of psychotropic medication along with the motion
  542  for final judgment of termination of parental rights.
  543         (d)If consent is revoked or becomes invalid the department
  544  shall immediately notify all parties and, if applicable, the
  545  child’s attorney. Medication shall be continued until such time
  546  as the court rules on the motion.
  547         (e)Under no circumstance may a medication be discontinued
  548  without explicit instruction from a physician as to how to
  549  safely discontinue the medication.
  550         (6)ADMINISTRATION OF PSYCHOTROPIC MEDICATION TO A CHILD IN
  551  SHELTER CARE OR IN FOSTER CARE WHEN INFORMED CONSENT HAS NOT
  552  BEEN OBTAINED.—
  553         (a)Motion for court authorization for administration of
  554  psychotropic medications.
  555         1.Any time a physician who has evaluated the child
  556  prescribes psychotropic medication as part of the mental health
  557  treatment plan and the child’s parents or legal guardians have
  558  not provided express and informed consent as provided by law or
  559  such consent is invalid as set forth in paragraph (5)(c), the
  560  department or its agent shall file a motion with the court
  561  within 3 working days to authorize the administration of the
  562  psychotropic medication before the administration of the
  563  medication, except as provided in subsection (7). In each case
  564  in which a motion is required, the motion must include:
  565         a.A written report by the department describing the
  566  efforts made to enable the prescribing physician to obtain
  567  express and informed consent for providing the medication to the
  568  child and describing other treatments attempted, considered, and
  569  recommended for the child; and
  570         b.The prescribing physician’s completed and signed mental
  571  health treatment plan.
  572         2.The department must file a copy of the motion with the
  573  court and, within 48 hours after filing the motion with the
  574  court, notify all parties in writing, or by whatever other
  575  method best ensures that all parties receive notification, of
  576  its proposed administration of psychotropic medication to the
  577  child.
  578         3.If any party objects to the proposed administration of
  579  the psychotropic medication to the child, that party must file
  580  its objection within 2 working days after being notified of the
  581  department’s motion. A party may request an extension of time to
  582  object for good cause shown, provided that such extension would
  583  be in the best interests of the child. Any extension shall be
  584  for a specific number of days not to exceed the time absolutely
  585  necessary.
  586         4.Lack of assent from the child shall be deemed a timely
  587  objection from the child.
  588         (b)Court action on motion for administration of
  589  psychotropic medication.
  590         1.If no party timely files an objection to the
  591  department’s motion and the motion is legally sufficient, the
  592  court may enter its order authorizing the proposed
  593  administration of the psychotropic medication without a hearing.
  594  Based on its determination of the best interests of the child,
  595  the court may order additional medical consultation, including
  596  consultation with the MedConsult line at the University of
  597  Florida, if available, or require the department to obtain a
  598  second opinion within a reasonable time established by the
  599  court, not to exceed 21 calendar days. If the court orders an
  600  additional medical consultation or second medical opinion, the
  601  department shall file a written report including the results of
  602  this additional consultation or a copy of the second medical
  603  opinion with the court within the time required by the court,
  604  and shall serve a copy of the report on all parties.
  605         2.If any party timely files its objection to the proposed
  606  administration of the psychotropic medication to the child, the
  607  court shall hold a hearing as soon as possible on the
  608  department’s motion.
  609         a.The signed mental health treatment plan of the
  610  prescribing physician is admissible in evidence at the hearing.
  611         b.The court shall ask the department whether additional
  612  medical, mental health, behavior analysis, counseling, or other
  613  services are being provided to the child which the prescribing
  614  physician considers to be necessary or beneficial in treating
  615  the child’s medical condition and which the physician recommends
  616  or expects to be provided to the child along with the
  617  medication.
  618         3.The court may order additional medical consultation or a
  619  second medical opinion, as provided in this paragraph.
  620         4.After considering the department’s motion and any
  621  testimony received, the court may enter its order authorizing
  622  the department to provide or continue to provide the proposed
  623  psychotropic medication to the child. The court must find a
  624  compelling governmental interest that the proposed psychotropic
  625  medication is in the child’s best interest. In so determining
  626  the court shall consider, at a minimum, the following factors:
  627         a.The severity and likelihood of risks associated with the
  628  treatment.
  629         b.The magnitude and likelihood of benefits expected from
  630  the treatment.
  631         c.The child’s prognosis without the proposed psychotropic
  632  medication.
  633         d.The availability and effectiveness of alternative
  634  treatments.
  635         e.The wishes of the child concerning treatment
  636  alternatives.
  637         f.The recommendation of the parents or legal guardian.
  638         g.The recommendation of the guardian ad litem.
  639         (7)ADMINISTRATION OF PSYCHOTROPIC MEDICATION TO A CHILD IN
  640  OUT-OF-HOME CARE BEFORE COURT AUTHORIZATION HAS BEEN OBTAINED.
  641  The department may provide continued administration of
  642  psychotropic medication to a child before authorization by the
  643  court has been obtained only as provided in this subsection.
  644         (a)If a child is removed from the home and taken into
  645  custody under s. 39.401, the department may continue to
  646  administer a current prescription of psychotropic medication to
  647  the child; however, the department shall request court
  648  authorization for the continued administration of the medication
  649  at the shelter hearing. This request shall be included in the
  650  shelter petition.
  651         1.The department shall provide all information in its
  652  possession to the court in support of its request at the shelter
  653  hearing. The court may authorize the continued administration of
  654  the psychotropic medication only until the arraignment hearing
  655  on the petition for adjudication, or for 28 days following the
  656  date of the child’s removal, whichever occurs first.
  657         2.If the department believes, based on the required
  658  physician’s evaluation, that it is appropriate to continue the
  659  psychotropic medication beyond the time authorized by the court
  660  at the shelter hearing, the department shall file a motion
  661  seeking continued court authorization at the same time that it
  662  files the dependency petition, but within 21 days after the
  663  shelter hearing.
  664         (b)If the department believes, based on the certification
  665  of the prescribing physician, that delay in providing the
  666  prescribed psychotropic medication to the child would, more
  667  likely than not, cause significant harm to the child, the
  668  department shall administer the medication to the child
  669  immediately. The department must submit a motion to the court
  670  seeking continuation of the medication within 3 working days
  671  after the department begins providing the medication to the
  672  child.
  673         1.The motion seeking authorization for the continued
  674  administration of the psychotropic medication to the child must
  675  include all information required in this section. The required
  676  medical report must also include the specific reasons why the
  677  child may experience significant harm, and the nature and the
  678  extent of the potential harm, resulting from a delay in
  679  authorizing the prescribed medication.
  680         2.The department shall serve the motion on all parties
  681  within 3 working days after the department begins providing the
  682  medication to the child.
  683         3.The court shall hear the department’s motion at the next
  684  regularly scheduled court hearing required by law, or within 30
  685  days after the date of the prescription, whichever occurs first.
  686  However, if any party files an objection to the motion, the
  687  court shall hold a hearing within 7 days.
  688         (c)The department may authorize, in advance of a court
  689  order, the administration of psychotropic medications to a child
  690  in its custody in a hospital, crisis stabilization unit or
  691  receiving facility, therapeutic group home, or statewide
  692  inpatient psychiatric program. If the department does so, it
  693  must file a motion to seek court authorization for the continued
  694  administration of the medication within 3 working days as
  695  required in this section.
  696         (d)If a child receives a one-time dose of a psychotropic
  697  medication during a crisis, the department shall provide
  698  immediate notice to all parties and to the court of each such
  699  emergency use.
  700         (8)DISCONTINUATION OR ALTERATION OF MEDICATION;
  701  DESTRUCTION OF MEDICATION.—No party may alter the provision of
  702  prescribed psychotropic medication to a child in any way except
  703  upon order of the court or advice of a physician.
  704         (a)On the motion of any party or its own motion, the court
  705  may order the discontinuation of a medication already
  706  prescribed. Such discontinuation must be performed in
  707  consultation with a physician in such a manner as to minimize
  708  risk to the child.
  709         (b)The child’s repeated refusal to take or continue to
  710  take a medication shall be treated as a motion to discontinue
  711  the medication and shall be set for hearing as soon as possible
  712  but no later than within 7 days after knowledge of such repeated
  713  refusal.
  714         (c)Upon any discontinuation of a medication, the
  715  department shall document the date and reason for the
  716  discontinuation and shall notify all parties. The guardian ad
  717  litem must be notified within 24 hours as previously provided
  718  herein.
  719         (d)The department shall ensure the destruction of any
  720  medication no longer being taken by the prescribed child.
  721         (9)DEVELOPMENT OF MENTAL HEALTH TREATMENT PLAN.—Upon the
  722  determination that a child needs mental health services, a
  723  mental health treatment plan must be developed which lists the
  724  particular mental health needs of the child and the services
  725  that will be provided to address those needs. When possible, the
  726  plan shall be developed in a face-to-face conference with the
  727  child, the child’s parents, case manager, physician, therapist,
  728  legal guardian, guardian ad litem, and any other interested
  729  party. The mental health treatment plan shall be incorporated
  730  into the case plan as tasks for the department and may be
  731  amended under s. 39.6013.
  732         (a)If the mental health treatment plan involves the
  733  provision of psychotropic medication, the plan must include:
  734         1.The name of the child, a statement indicating that there
  735  is a need to prescribe psychotropic medication to the child
  736  based upon a diagnosed condition for which there is an evidence
  737  base for the medication that is being prescribed, a statement
  738  indicating the compelling governmental interest in prescribing
  739  the psychotropic medication, and the name and range of the
  740  dosage of the psychotropic medication.
  741         2.A statement indicating that the physician has reviewed
  742  all medical information concerning the child which has been
  743  provided by the department or community-based care lead agency
  744  and briefly listing all such information received.
  745         3.A medication profile, including all medications the
  746  child is prescribed or will be prescribed, any previously
  747  prescribed medications where known, and whether those
  748  medications are being added, continued, or discontinued upon
  749  implementation of the mental health treatment plan.
  750         4.A statement indicating that the psychotropic medication,
  751  at its prescribed dosage, is appropriate for treating the
  752  child’s diagnosed medical condition, as well as the behaviors
  753  and symptoms that the medication, at its prescribed dosage, is
  754  expected to address.
  755         5.An explanation of the nature and purpose of the
  756  treatment; the recognized side effects, risks, and
  757  contraindications of the medication, including procedures for
  758  reporting adverse effects; drug-interaction precautions; the
  759  possible effects of stopping or not initiating the medication;
  760  and how the treatment will be monitored, followed by a statement
  761  indicating that this explanation was provided to the child if
  762  developmentally appropriate and to the child’s caregiver.
  763         6.Documentation addressing whether the psychotropic
  764  medication will replace or supplement any other currently
  765  prescribed medications or treatments; the length of time the
  766  child is expected to be taking the medication; a plan for the
  767  discontinuation of any medication when medically appropriate;
  768  and any additional medical, mental health, behavioral,
  769  counseling, or other services that the prescribing physician
  770  recommends as part of a comprehensive treatment plan.
  771         7.A document describing those observable behaviors
  772  warranting psychotropic treatment, the means for obtaining
  773  reliable frequency data on these same observable behaviors, and
  774  the reporting of this data with sufficient frequency to support
  775  medication decisions.
  776         (b)The department shall develop and administer procedures
  777  to require the caregiver and prescribing physician to report any
  778  adverse side effects of the medication to the department or its
  779  designee and the guardian ad litem. Any adverse side effects
  780  must be documented in the mental health treatment plan and
  781  medical records for the child.
  782         (10)REVIEW FOR ADMINISTRATION OF PSYCHOTROPIC MEDICATION
  783  FOR CHILDREN FROM BIRTH THROUGH 10 YEARS OF AGE IN OUT-OF-HOME
  784  CARE.—
  785         (a)Absent a finding of a compelling governmental interest,
  786  a psychotropic medication may not be authorized by the court for
  787  any child from birth through 10 years of age who is in out-of
  788  home placement. Based on a finding of a compelling governmental
  789  interest but before a psychotropic medication is authorized by
  790  the court for any child from birth through 10 years of age who
  791  is in an out-of-home placement, a review of the administration
  792  must be obtained from a child psychiatrist who is licensed under
  793  chapter 458 or chapter 459. The results of this review must be
  794  provided to the child and the parent or legal guardian before
  795  final express and informed consent is given.
  796         (b)The department may authorize, in advance of a court
  797  order, the administration of psychotropic medications to a child
  798  from birth through 10 years of age in its custody in the
  799  following levels of residential care:
  800         1. Hospital;
  801         2. Crisis stabilization unit or receiving facility;
  802         3. Therapeutic group home; or
  803         4. Statewide inpatient psychiatric program.
  804  
  805  These levels of care demonstrate the requirement of compelling
  806  governmental interest through the extensive admission criteria
  807  being met. If the department does so, it must file a motion to
  808  seek court authorization for the continued administration of the
  809  medication within 3 working days.
  810         (c)If a child receives a one-time dose of a psychotropic
  811  medication during a crisis, the department shall provide
  812  immediate notice to all parties and to the court of each such
  813  emergency use.
  814         (11)CLINICAL TRIALS.—At no time shall a child in the
  815  custody of the department be allowed to participate in a
  816  clinical trial that is designed to develop new psychotropic
  817  medications or evaluate their application to children.
  818         (12)JUDICIAL REVIEW HEARINGS.—The department shall fully
  819  inform the court of the child’s medical and behavioral status as
  820  part of the social services report prepared for each judicial
  821  review hearing held for a child for whom psychotropic medication
  822  has been prescribed or provided under this subsection. As a part
  823  of the information provided to the court, the department shall
  824  furnish copies of all pertinent medical records concerning the
  825  child which have been generated since the previous hearing. On
  826  its own motion or on good cause shown by any party, including
  827  any guardian ad litem, attorney, or attorney ad litem who has
  828  been appointed to represent the child or the child’s interests,
  829  the court may review the status more frequently than required in
  830  this subsection.
  831         (13)ADOPTION OF RULES.—The department may adopt rules to
  832  ensure that children receive timely access to mental health
  833  services, including, but not limited to, clinically appropriate
  834  psychotropic medications. These rules must include, but need not
  835  be limited to, the process for determining which adjunctive
  836  services are needed, the uniform process for facilitating the
  837  prescribing physician’s ability to obtain the express and
  838  informed consent of a child’s parent or legal guardian, the
  839  procedures for obtaining court authorization for the provision
  840  of a psychotropic medication, the frequency of medical
  841  monitoring and reporting on the status of the child to the
  842  court, how the child’s parents will be involved in the
  843  treatment-planning process if their parental rights have not
  844  been terminated, and how caretakers are to be provided
  845  information contained in the physician’s signed mental health
  846  treatment plan. The rules must also include uniform forms or
  847  standardized information to be used on a statewide basis in
  848  requesting court authorization for the use of a psychotropic
  849  medication and provide for the integration of each child’s
  850  mental health treatment plan and case plan. The department must
  851  begin the formal rulemaking process within 90 days after the
  852  effective date of this act.
  853         Section 3. Paragraph (b) of subsection (1) of section
  854  743.0645, Florida Statutes, is amended to read:
  855         743.0645 Other persons who may consent to medical care or
  856  treatment of a minor.—
  857         (1) As used in this section, the term:
  858         (b) “Medical care and treatment” includes ordinary and
  859  necessary medical and dental examination and treatment,
  860  including blood testing, preventive care including ordinary
  861  immunizations, tuberculin testing, and well-child care, but does
  862  not include surgery, general anesthesia, provision of
  863  psychotropic medications, or other extraordinary procedures for
  864  which a separate court order, power of attorney, or informed
  865  consent as provided by law is required, except as provided in s.
  866  39.4071 s. 39.407(3).
  867         Section 4. This act shall take effect July 1, 2010.

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