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Minors
(See also Involuntary Examination)
(See also bakeracttraining.org for course on Consent for Minors)
Minority Defined
Q. How is a minor defined?
A minor is any person under 18 years old who has not been married and has not had a
court remove the disability of nonage. However, most references in the Baker Act are to
persons “under the age of 18). Therefore, one must consider a person age 0-17 as a
minor for the purposes of the Baker Act and lack the legal capacity to provide consent
for admission or treatment. A minor must provide assent (agreement) to be voluntary.
Q. Who is a child’s guardian?
A child’s guardian is generally one or both of his or her natural or adoptive parents. After
a divorce, guardianship belongs to the parent or parents with custody. The mother of a
child born out-of-wedlock is guardian of the child. In the absence of a parent a guardian
must be appointed by a court and can be a relative or other person interested in the
welfare of the child. (Florida laws governing dissolution of marriage and parental
responsibility have changed some of the language dealing with divorce and custody).
Informed Consent & Consent to Treatment
Q. We have a psychiatrist that is board-certified for treatment of Adult, Child and
Adolescent patients. He has been treating a 17 year old patient that is resistant to
pharmacological management. He approached me and asked if he could perform
outpatient ECT on the patient. The parents are willing to consent for the
treatment. The hospital is licensed for pediatric medical patients (not psychiatric)
to perform anesthesia-assisted procedures. If the patient is willing to go through
the procedure and the parents give consent and the psychiatrist has all the
“typical” paperwork needed for ECT, can he perform the procedure?
This issue is addressed in the Baker Act and the Medical Practice Act. These provisions
are as follows:
394.459(3, FS) RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT.—
(b)In the case of medical procedures requiring the use of a general anesthetic or
electroconvulsive treatment, and prior to performing the procedure, express and
informed consent shall be obtained from the patient if the patient is legally
competent, from the guardian of a minor patient, from the guardian of a patient
who has been adjudicated incapacitated, or from the guardian advocate of the
patient if the guardian advocate has been given express court authority to
consent to medical procedures or electroconvulsive treatment as provided under
s. 394.4598.
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Since the minor is not competent to provide consent as a result of age, the guardian has
the power to make this decision. It still must be made with full disclosure of the risks,
benefits and all other factors required for consent to be “informed”.
458.325, FS Electroconvulsive and psychosurgical procedures.
(1)In each case of utilization of electroconvulsive or psychosurgical procedures,
prior written consent shall be obtained after disclosure to the patient, if he or she
is competent, or to the patient’s guardian, if he or she is a minor or
incompetent, of the purpose of the procedure, the common side effects thereof,
alternative treatment modalities, and the approximate number of such
procedures considered necessary and that any consent given may be revoked by
the patient or the patient’s guardian prior to or between treatments.
(2)Before convulsive therapy or psychosurgery may be administered, the
patient’s treatment record shall be reviewed and the proposed convulsive therapy
or psychosurgery agreed to by one other physician not directly involved with the
patient. Such agreement shall be documented in the patient’s treatment record
and shall be signed by both physicians.
Assuming that administering ECT to minors is an accepted psychiatric practice, there
appears to be no legal barrier to a minor receiving ECT. However, it might be best if you
verify that your hospital or HCA doesn’t have some policy/procedure governing this
issue.
Q. We had a 17 year old present to the ER for detox who said she didn’t know how
to contact her parents. She was with an adult partner. I know that for outpatient,
the age is under 16 for informed consent SA Treatment – would that also apply for
medical detox of a minor under 18?
You are correct that a person under the age of 18 can consent to voluntary substance
abuse services
397.601 Voluntary admissions.
(1)A person who wishes to enter treatment for substance abuse may apply to a
service provider for voluntary admission.
(2)Within the financial and space capabilities of the service provider, a person
must be admitted to treatment when sufficient evidence exists that the person is
impaired by substance abuse and the medical and behavioral conditions of the
person are not beyond the safe management capabilities of the service provider.
(3)The service provider must emphasize admission to the service component
that represents the least restrictive setting that is appropriate to the person’s
treatment needs.
(4)(a)The disability of minority for persons under 18 years of age is
removed solely for the purpose of obtaining voluntary substance abuse
impairment services from a licensed service provider, and consent to such
services by a minor has the same force and effect as if executed by an
individual who has reached the age of majority. Such consent is not
subject to later disaffirmance based on minority.
(b)Except for purposes of law enforcement activities in connection with protective
custody, the disability of minority is not removed if there is an involuntary
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admission for substance abuse services, in which case parental participation
may be required as the court finds appropriate.
Such services must be provided by a licensed service provider. This is defined as:
397.311 Definitions.
As used in this chapter, except part VIII, the term:
(33)“Service provider” or “provider” means a public agency, a private for-profit or
not-for-profit agency, a person who is a private practitioner, or a hospital
licensed under this chapter or exempt from licensure under this chapter.
397.405 Exemptions from licensure.
The following are exempt from the licensing provisions of this chapter:
(1) A hospital or hospital-based component licensed under chapter 395.
(5) A physician or physician assistant licensed under chapter 458 or chapter 459.
(6) A psychologist licensed under chapter 490.
(7) A social worker, marriage and family therapist, or mental health counselor
licensed under chapter 491.
(11)A facility licensed under s. 394.875 as a crisis stabilization unit.
The exemptions from licensure in this section do not apply to any service
provider that receives an appropriation, grant, or contract from the state to
operate as a service provider as defined in this chapter or to any substance
abuse program regulated pursuant to s. 397.406. Furthermore, this chapter may
not be construed to limit the practice of a physician or physician assistant
licensed under chapter 458 or chapter 459, a psychologist licensed under
chapter 490, a psychotherapist licensed under chapter 491, or an advanced
registered nurse practitioner licensed under part I of chapter 464, who provides
substance abuse treatment, so long as the physician, physician assistant,
psychologist, psychotherapist, or advanced registered nurse practitioner does not
represent to the public that he or she is a licensed service provider and does not
provide services to individuals pursuant to part V of this chapter. Failure to
comply with any requirement necessary to maintain an exempt status under this
section is a misdemeanor of the first degree, punishable as provided in s.
775.082 or s. 775.083.
Your hospital ED is an authorized service provider exempt from licensure under the
Marchman Act for substance abuse services. However, if the service is for medical
treatment and not for substance abuse treatment, a minor generally doesn’t have any
authority to provide consent for his/her own treatment, unless a court has emancipated
the minor from the parents. Other laws govern provision examination and treatment of
persons with emergency medical conditions and in circumstances in which a minor’s
legal guardian isn’t available. All of these circumstances are in covered in Appendix 1-
10 of the 2011 Baker Act Handbook.
Q. Does the court have authority to appoint a guardian advocate for a child when
the child's guardian is refusing to consent for treatment?
A child's natural guardian has the power to consent or refuse consent to treatment on
behalf of the minor, just as does a guardian (plenary or "of person") appointed by the
court for an adult.
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In the case of an adult, a request can be filed for the court to investigate any complaints
against a court-appointed guardian's decision-making. In the case of a minor whose
parent's refusal to consent to medically necessary treatments that might rise to the level
of "medical neglect", a report to the DCF Abuse Registry should be made.
There have been occasions when the natural parents (guardians) of a minor have been
unavailable and the child's caretaker isn't authorized to consent to psychotherapeutic
medications (chapter 743, FS) in which a guardian advocate was appointed to make
such treatment decisions. This is not the case where the parents refuse consent.
Q. Can you tell me if Florida Statutes address whether or not a social worker in a
school setting can counsel a child without written/signed parent or guardian
consent? My school district has always operated on seeing a child once only w/o
consent and from there, requiring signed authorization for continued counseling.
The Baker Act has long allowed minors age 12 or older to seek crisis intervention
services and treatment without the consent of a guardian. This should be for crisis
oriented services and can’t exceed more than two visits during any one week period.
The statutory provisions are below. You may want to be sure that education statutes
aren’t in conflict with the Baker Act for what can be done in schools. When two laws are
in conflict with each other, the more specific statute prevails over the general statute.
DOE provided the following information: There is no Florida Education Statute that
requires parental consent for students to able to access support services in schools.
However, parental “involvement” (at least-notice) is crucial when on-going support
services are needed for any student. Counseling services and social work services
should be available to every student. Parent involvement is a definite part of RtI in the
early and ongoing process and support services may be a piece of the
recommendations in order to inform class room interventions. At any time, if those
services are required to determine eligibility for ESE, consent is required. Particularly in
crisis situations, these services should be immediately available.
Q. We had a caregiver bring in a 14 year old girl for whom she has been providing
care for several years. She has a power of attorney signed by a Notary We
learned from this caregiver that the parents are out of the picture According to
the caregiver the whereabouts of the father are unknown and the last contact she
had with the mother was some time ago and the mother was in Texas, but she
states she has no contact with the mother and does not know where she is. We
have admitted the adolescent under a Baker Act executed by our psychiatrist
which provides for the psychiatric evaluation. Our decision at this time (hopefully
it is a correct one) is that after the psychiatric evaluation, if the psychiatrist
determines she needs further treatment including medication, we will file a Baker
Act 3032 and ask the Court to appoint the caregiver as the Guardian Advocate
who could then consent for treatment if the Court granted the Petition.
You’ve done a good job with a very difficult situation. You were correct that the
caregiver couldn’t apply for the child’s admission and couldn’t consent to psychotropic
medications on behalf of the child, even with a power of attorney (743, FS)
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394.459 Rights of patients.--
(3) RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT.--
(a)1. Each patient entering treatment shall be asked to give express and
informed consent for admission or treatment. If the patient has been adjudicated
incapacitated or found to be incompetent to consent to treatment, express and
informed consent to treatment shall be sought instead from the patient's guardian
or guardian advocate. If the patient is a minor, express and informed consent for
admission or treatment shall also be requested from the patient's guardian.
Express and informed consent for admission or treatment of a patient under 18
years of age shall be required from the patient's guardian, unless the minor is
seeking outpatient crisis intervention services under s. 394.4784. Express and
informed consent for admission or treatment given by a patient who is under 18
years of age shall not be a condition of admission when the patient's guardian
gives express and informed consent for the patient's admission pursuant to s.
394.463 or s. 394.467.
Until a guardian advocate is appointed, emergency treatment orders can be authorized
by a physician when imminent danger is documented. While the provisions of the Baker
Act apply to this situation, you may also need to be aware of other laws that may apply,
including:
743.0645 Other persons who may consent to medical care or treatment of a
minor.--
(1) As used in this section, the term:
(b) "Medical care and treatment" includes ordinary and necessary medical and
dental examination and treatment, including blood testing, preventive care
including ordinary immunizations, tuberculin testing, and well-child care, but does
not include surgery, general anesthesia, provision of psychotropic medications,
or other extraordinary procedures for which a separate court order, power of
attorney, or informed consent as provided by law is required, except as provided
in s. 39.407(3).
(c) "Person who has the power to consent as otherwise provided by law"
includes a natural or adoptive parent, legal custodian, or legal guardian.
(2) Any of the following persons, in order of priority listed, may consent to the
medical care or treatment of a minor who is not committed to the Department of
Children and Family Services or the Department of Juvenile Justice or in their
custody under chapter 39, chapter 984, or chapter 985 when, after a reasonable
attempt, a person who has the power to consent as otherwise provided by law
cannot be contacted by the treatment provider and actual notice to the contrary
has not been given to the provider by that person:
(a) A person who possesses a power of attorney to provide medical consent for
the minor. A power of attorney executed after July 1, 2001, to provide medical
consent for a minor includes the power to consent to medically necessary
surgical and general anesthesia services for the minor unless such services are
excluded by the individual executing the power of attorney.
(b) The stepparent.
(c) The grandparent of the minor.
(d) An adult brother or sister of the minor.
(e) An adult aunt or uncle of the minor.
There shall be maintained in the treatment provider's records of the minor
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documentation that a reasonable attempt was made to contact the person who
has the power to consent.
A guardian advocate is not generally sought when a person of any age has a natural
(parent) or court appointed guardian (744, FS). However, if the guardian is not
available, there is no prohibition in the Baker Act from appointing a guardian advocate in
such circumstances.
While the caregiver may be able to consent to treatment on behalf of the child on
inpatient status once appointed as a guardian advocate, this will end once the child is
discharged. It is essential that the caregiver petition the court to be appointed the child’s
guardian so such decisions can be made in the future. It is clear that the child has been
abandoned by her parents and DCF may be able to assist in this process. If not, I’m
sure that there is a good legal service in your area that could help in this matter.
Q. Can a licensed clinical social worker provide therapy to an adolescent without
consent from the parents or guardians? Can the social worker provide therapy to
the adolescent if a general medical consent is received, but not consent for
psychiatric care?
The Baker Act allows for minors age 13 years and older to access outpatient diagnostic
and evaluation services as well as outpatient crisis intervention, therapy, and counseling
services without the consent of parent or guardian. I’ve included those provisions below.
However, the Baker Act has much more stringent provisions for minors on an inpatient
status.
394.459(3) RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT.--
(a)1. Each patient entering treatment shall be asked to give express and
informed consent for admission or treatment…. If the patient is a minor, express
and informed consent for admission or treatment shall also be requested from
the patient's guardian. Express and informed consent for admission or treatment
of a patient under 18 years of age shall be required from the patient's guardian,
unless the minor is seeking outpatient crisis intervention services under s.
394.4784….
This provision clearly requires the consent of the minor’s guardian for any type of
treatment on an inpatient basis. If your facility uses the model Baker Act forms for
“General Authorization for Treatment Except Psychotropic Medications” and “Specific
Authorization for Psychotropic Medications”, there is space at the top of the 3042a form
for the guardian to authorize psychiatric assessment and for “other” which might include
psychotherapy.
In any case, inpatient therapy does require consent of a legal guardian. Should a parent
refuse to provide express and informed consent to medically necessary treatment (can’t
have any element of force, duress, or coercion), you may have to consider a referral to
child protective services.
394.4784 Minors; access to outpatient crisis intervention services and
treatment.--For the purposes of this section, the disability of nonage is removed
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for any minor age 13 years or older to access services under the following
circumstances:
(1) OUTPATIENT DIAGNOSTIC AND EVALUATION SERVICES.--When any
minor age 13 years or older experiences an emotional crisis to such degree that
he or she perceives the need for professional assistance, he or she shall have
the right to request, consent to, and receive mental health diagnostic and
evaluative services provided by a licensed mental health professional, as defined
by Florida Statutes, or in a mental health facility licensed by the state. The
purpose of such services shall be to determine the severity of the problem and
the potential for harm to the person or others if further professional services are
not provided. Outpatient diagnostic and evaluative services shall not include
medication and other somatic methods, aversive stimuli, or substantial
deprivation. Such services shall not exceed two visits during any 1-week period
in response to a crisis situation before parental consent is required for further
services, and may include parental participation when determined to be
appropriate by the mental health professional or facility.
(2) OUTPATIENT CRISIS INTERVENTION, THERAPY AND COUNSELING
SERVICES.--When any minor age 13 years or older experiences an emotional
crisis to such degree that he or she perceives the need for professional
assistance, he or she shall have the right to request, consent to, and receive
outpatient crisis intervention services including individual psychotherapy, group
therapy, counseling, or other forms of verbal therapy provided by a licensed
mental health professional, as defined by Florida Statutes, or in a mental health
facility licensed by the state. Such services shall not include medication and
other somatic treatments, aversive stimuli, or substantial deprivation. Such
services shall not exceed two visits during any 1-week period in response to a
crisis situation before parental consent is required for further services, and may
include parental participation when determined to be appropriate by the mental
health professional or facility.
(3) LIABILITY FOR PAYMENT.--The parent, parents, or legal guardian of a
minor shall not be liable for payment for any such outpatient diagnostic and
evaluation services or outpatient therapy and counseling services, as provided in
this section, unless such parent, parents, or legal guardian participates in the
outpatient diagnostic and evaluation services or outpatient therapy and
counseling services and then only for the services rendered with such
participation.
(4) PROVISION OF SERVICES.--No licensed mental health professional shall
be obligated to provide services to minors accorded the right to receive services
under this section. Provision of such services shall be on a voluntary basis.
Voluntary Admissions
Q. Under what conditions can a minor be voluntary?
The Baker Act permits minors to be voluntary if agreeable to the admission, but only
when their parent or legal guardian has applied for their admission and a judicial hearing
has been conducted to confirm the voluntariness of the consent. Unless parental rights
have been terminated, the natural parent continues to have the right to make such
decisions on behalf of their children, even if they cannot or will not do so. In the absence
of a parent or legal guardian’s consent, the court must make this decision.
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Any reference to "voluntariness hearings" done at facilities and by facility staff was
repealed from the Florida Administrative Code in 1997 because DCF didn't have the
specific statutory authority to define a hearing as an "administrative hearing", when all
other references to hearings in the Baker Act are judicial in nature. Therefore, it is
DCF's opinion that a judicial hearing of some type is required prior to the admission of
the minor on voluntary status. There is no rule or model forms for this purpose.
A child has a right to be held on a voluntary basis if he/she meets the criteria and the
correct procedures are followed – especially if the child doesn’t meet the criteria for
involuntary status. However, due to the onerous nature of voluntary admission of minors,
especially those in DCF custody, many providers have chosen to admit all such minors
on involuntary status. Assuming the minor meets the criteria for involuntary
examination, it would be entirely proper to admit him/her on involuntary status. While
minors may state a willingness to be in a psychiatric unit, they do not have the legal
capacity to give independent consent to the admission or to treatment.
Q. Today we had a situation where a juvenile walked into the Crisis Unit
voluntarily for evaluation. The RN’s advised that they did not have the authority
to Baker Act the juvenile patient and that we, the police, had to. The RN’s advised
us that the patient stated to them that if she goes back home she will kill herself. I
asked them if the patient was an adult and made the same comments would/could
they be able to Baker Act the patient. They advised yes. But when asked why
they couldn't Baker Act the juvenile they simply advised that they had not
authority to do so unless the person was in imminent danger. I know and
understand that legally hospitals need parental permission to do things with a
juvenile patient and that was lacking in this case but that still doesn't explain how
staff are not authorized to Baker Act a juvenile. Because of the concerns we had,
we decided to do the Baker Act. Can you please explain to me how can this be
and, if it is the case, the staff cannot/or are not authorized to Baker Act a juvenile.
You are correct -- there is no difference in the initiation of an involuntary examination for
minors than for adults. The only difference is in the voluntary admission and consent for
treatment of a minor. RN’s aren’t authorized to initiate involuntary examinations for
persons of any age. Only a physician, psychologist, psychiatric nurse, LCSW, LMHC
and LMFT and PA are authorized, other than circuit judges and law enforcement
officers. The initiating document simply permits law enforcement to take a person into
custody for delivery to a receiving facility. Since the youth was already at a designated
receiving facility with the authority to retain persons for examination, they could have
held the minor for up to 24 hours to get an authorized professional to conduct the
examination. They couldn’t have treated the minor without consent of his legal guardian.
The staff should have immediately tried to contact the guardian in order to get such
consent. It wasn’t appropriate for staff to contact law enforcement to initiate an
examination of a person already in their care. If they wanted a BA-52 signed, they
should have contacted an on-call legally authorized staff member to do the initiation.
Q. I have several questions about voluntary admission of minors. If a parent has
requested admission of a minor, but the minor is unwilling, can we admit? What if
the minor becomes unruly and refuses, but says nothing that shows imminent risk
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to us so an involuntary admission is out of the question? Do we let them go as
there is not evident risk? Our voluntariness hearings are done on the CCSU – but
this is after the admission takes place. Should Emergency Services be handling
the “Voluntariness Hearing” prior to admission?
There are two provisions of the Baker Act that apply to the questions you raise. They
are:
394.459(3), F.S. RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT.-
-
(a)1. Each patient entering treatment shall be asked to give express and
informed consent for admission or treatment… If the patient is a minor, express
and informed consent for admission or treatment shall also be requested from
the patient's guardian. Express and informed consent for admission or treatment
of a patient under 18 years of age shall be required from the patient's guardian,
unless the minor is seeking outpatient crisis intervention services under s.
394.4784…
394.4625 Voluntary admissions.--
(1) AUTHORITY TO RECEIVE PATIENTS.--
(a) A facility may receive for observation, diagnosis, or treatment any person 18
years of age or older making application by express and informed consent for
admission or any person age 17 or under for whom such application is made by
his or her guardian. If found to show evidence of mental illness, to be competent
to provide express and informed consent, and to be suitable for treatment, such
person 18 years of age or older may be admitted to the facility. A person age 17
or under may be admitted only after a hearing to verify the voluntariness of the
consent.
As to your questions:
1. If the minor is unwilling to be admitted, there isn’t any choice but to release the
minor or to initiate an involuntary examination. While the parent/guardian’s
application is required for voluntary admission, the minor’s assent must also be
sought. Overt danger isn’t always necessary to establish the grounds for
involuntary status. If the child has a mental illness, has refused or is unable to
determine that the exam is needed and is likely to suffer from neglect or refuse to
care for himself and this might lead to a real and present threat of substantial
harm to his wellbeing, overt harm to self/others need not be present.
2. Voluntariness hearings were removed from the Florida Administrative Code in
1997 after a legislative committee deemed them to exceed DCF’s authority to
define a “Hearing” as other than a judicial hearing. Such a hearing would have to
take place prior to, rather than after admission.
Q. I have some questions regarding the admission of minors under chapter 394.
Involuntary is easy and makes sense, however voluntary admissions do not, so I
would appreciate your expertise in this area. Chapter 394.4625(1)(a) states that a
person under 17 may be admitted only after a hearing to verify voluntariness of
the consent. Please tell me what a hearing is comprised of and who must be
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present and what paper must confirm that this is valid and complete? If we have a
minor child and a parent or guardian are in agreement with admission, can we
have the application 3097 signed? Do we need the psychiatrist to determine
patient's competence or is it sufficient for a LMHC or LCSW to make this
determination? It seems that initiating a BA 52 by a professional does not make
sense when the person is willing.
In 1997 a joint legislative committee determined that the "voluntariness hearing"
described in the Baker Act Florida Administrative Rules at that time didn't conform to a
"hearing" as intended in this section of the law because each other time that term was
used in the law, it applied to a judicial hearing. As a result, all reference to "voluntary
hearings" were deleted from the rules. The DCF General Counsel stated that only a
judicial hearing would suffice to meet this legal requirement and that it had to be
conducted prior to the minor's voluntary admission, despite the consent of the parents or
assent of the child to the admission..
The 3097 form is an approved document in the series of Baker Act forms. It allows for
the documentation of the parent/guardian's consent and the minor's assent. It is silent
as to the requirement for a hearing. However, the statutory language remains in effect.
DCF has proposed changes to this section of the Baker Act to allow for certain licensed
professionals to conduct an evaluation of voluntariness. However, this bill would have to
pass the Legislature to take effect.
Q. We admitted a 15 year old girl to our CSU whose parental rights were
terminated and she had been in the foster care system for many years. The 72-
hour period of the initial Baker Act expired yesterday and the nurse on duty
obtained a consent for voluntary admission by telephone from the child’s DCF or
Community Based Care worker. The child signed the portion of the voluntary
admission form that asks if the child is willing to stay. The question comes as to
whether or not the DCF or Community Based Care worker has the authority to
sign the child in voluntarily or should a Petition for Involuntary Placement have
been initiated prior to the expiration of the initial Baker Act? In the past we have
petitioned the Court for the continuation of treatment—filed a BA-3032. We do
know that this does not apply to treatment (medication) and are fully aware of the
need for a Court Order to administer medication.
The law requires that the application for voluntary admission be filed by the minor’s
guardian. If the court had formally appointed DCF or the community-based care agency
as the child’s guardian, consent by the authorized person from that agency would be
permissible. However, this isn’t the usual practice. Absent a formal guardian appointed
by the court, the court itself would act as the child’s guardian and would be responsible
for signing the voluntary application. The only other alternative would have been to file a
petition for involuntary placement.
Q. When admitting a minor of any age, can they be admitted voluntary, against
their will, with guardian consent? I have always been under the impression that
they could not. I am being told otherwise. I would like to clear this up.
You are correct that minors cannot be legally admitted on voluntary status unless:
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the minor’s legal guardian has applied for the admission,
the minor is in agreement to the admission (assent), and
that a “hearing” has been conducted prior to the admission.
It is unlikely that pre-admission court hearings for voluntary admission of minors are
being conducted anywhere in the state. For this reason, DCF has proposed legislative
changes that would change this required court hearing. However, the legislation hasn’t
passed and the “hearing” is still required.
As a result of this legal requirement, most receiving facilities admit minors on an
involuntary status and if the minor and the legal guardian agree to the admission, then
the minor is “transferred” to voluntary status, avoiding a voluntary “admission”. Some
facilities still have staff do a “voluntariness hearing”, a provision that was removed from
the Florida Administrative Code by legislative instruction in 1997. Some facilities review
these voluntary admissions with the court magistrate at the time involuntary placement
hearings are conducted. Other receiving facilities seem to just ignore the law entirely.
Involuntary Examinations
Q. One of the community facilities has told us that they will only take a child
under 14 if the patient is Baker Acted. If the patient has insurance that would only
be covered at this facility, we wouldn’t be able to transfer unless we Baker Act the
patient. Is this appropriate?
Requiring that an initiation of involuntary status of a person who doesn’t meet that
criteria is clearly incorrect. However, many hospitals want to ensure the person’s safety
during transport and sometimes that can only be achieve when involuntary has been
initiated because some medical transporters will release any voluntary person who
demands such release.
Q. I work at a free-standing psychiatric hospital. As to minors (14 and above) it
appears if the parents voluntarily admit their child with 3052b paperwork, there are
no forms to be filed with the court (unless child is dependent). Is this correct?
What discontinues the 3052b? Regarding consent to treat by a proxy, the proxy
is initiated when within the first 24hours the physician deems the patient
incompetent to provide consent and is viable until a court hearing when an
advocate is then appointed by the court. Correct?
There is no difference between the ages of a minor regarding inpatient care. Ages 0-17
are handled identically. The only difference referred to in the law is the status of co-
location with adult patients as well as outpatient crisis intervention.
If there is “3052b” paperwork, the child is on involuntary status and wouldn’t be
voluntarily admitted by the child’s parents. If the BA-52 had been initiated prior to the
child’s arrival at the facility, the law requires that law enforcement transport be provided
and the BA-3100 form be completed by the officer. A parent wouldn’t present their child
with the BA-52 paperwork.
While a parent’s application for voluntary admission on behalf of his/her child is required,
it is also required that the child’s “assent” be obtained – agreement to the admission.
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The law also requires that a judicial hearing to verify the voluntariness of the consent
take place prior to the child’s admission, although few if any counties in the state
provides for such hearings.
If the parent doesn’t file the application for voluntary admission or the child doesn’t
assent to the voluntary admission, the child must be continued on involuntary status and
a BA-32 petition for involuntary inpatient placement must be filed with the Clerk of Court
within 72 hours of the child’s arrival at the facility.
Only a dependent child’s parent is authorized to apply for his/her voluntary admission or
to provide consent to the dependent child’s treatment. If the parent can’t or won’t
provide this consent for admission and treatment, only the court is authorized to do so.
Once a BA-52 is initiated, only a documented examination by a physician or clinical
psychologist at a hospital or receiving facility documenting that the person doesn’t meet
criteria for involuntary placement can lead to conversion to voluntary status. At that time,
an application for voluntary admission and consent to treatment can be completed by the
parent of a minor. If the patient is an adult, a Certification of Competency must be
documented that the patient is able to make well-reasoned, willful and knowing decisions
on a consistent basis before an application for voluntary admission can be completed.
A proxy cannot provide consent to admission or treatment for a minor. With regard to an
adult, a surrogate or proxy can’t consent to a person’s voluntary admission – the person
must be held on involuntary status. When a physician documents that the patient isn’t
able to provide express and informed consent (well-reasoned, willful and knowing
decision making), the surrogate/proxy is notified and signs the affidavit. After required
information is provided to the surrogate/proxy about their duties as well as full disclosure
about the treatment to be provided and the surrogate/proxy speaks with the patient and
the physician, consent for treatment can be accepted. A petition for involuntary inpatient
placement and appointment of a guardian advocate is then filed with the court within the
time period provided by law. The Guardian Advocate will then, once appointed by the
court, take the place of the surrogate/proxy for psychiatric decision-making.
Q. When two physicians have determined a minor to be incompetent for
admission, does a petition for involuntary placement need to be sent in to the
court or does the petitioner have the right to choose not to send it?
All minors are considered "incompetent to consent" by virtue of age. They can only be
voluntary if the parent/guardian has applied for the child's admission and a court has
conducted a hearing to verify the voluntariness of the consent.
Chapter 394.4625(1)(a), F.S. governs voluntary admissions. The "hearing" referred to in
this section for minors has been determined to be judicial, rather than administrative.
Another Baker Act provision is 394.459(3)(a) that governs right to express and informed
patient consent. This section requires that each person (including minors) be asked to
give express and informed consent for admission and treatment. If a minor, that consent
must also be requested and obtained from the person's guardian.
If a minor objects to or is unable to fully understand the implications of inpatient care, a
petition for involuntary placement must be filed with the court. There is no provision for a
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waiver of filing/hearing in the law. Involuntary examination 394.463(1) and Involuntary
Placement [394.467 (1), FS] provisions of the Baker Act make no distinction between
minors and adults. If they meet the criteria listed in the law, a petition must be filed with
the court.
Q. A parent of a student who was recently Baker Acted from school by the school
resource officer stated that since there is Native American ancestry in the child's
background) a federal order is required before he can be Baker Acted. Since the
need to hospitalize him again in the future may occur, we are hoping that you can
steer us in the right direction on this.
Contrary to the parent’s statement, there isn’t any exception in the Baker Act for persons
with Native American ancestry. People of all nationalities undergo involuntary
examination under the Baker Act. The Vienna Convention and bi-lateral treaties the
United States has negotiated with other countries require Consulate Notification and
Access to Foreign Nationals held against their will in hospitals. Only a state circuit court
has authority to initiate an ex parte order under the Baker Act – federal courts have no
such authority, in addition to certified law enforcement officers and authorized mental
health professionals. In fact, federal law enforcement officers can’t initiate involuntary
examinations per the Florida Attorney General – only law enforcement officers who are
certified under state law. Native American reservations are subject to federal law, just
like military bases and VA hospital properties. However, the Baker Act is applicable to
persons of all ages who are in Florida as residents, citizens, visitors, or others on legal
or illegal bases. The DCF Assistant General Counsel concurred with the above
response.
Q. Our Risk Managers (attorneys) indicated there is a gap in the Baker Act law.
They instructed us that a child can be involuntarily examined (52), but cannot be
involuntarily placed (32). Usually families sign their children in voluntarily If it is
true that you cannot treat a child on an involuntary status, What are our options?
Minors are frequently involuntarily placed by courts throughout the state. Minors cannot
be ordered to involuntary outpatient placement -- this may have caused some confusion.
The criteria for voluntary admission, as well as involuntary examination and placement
are:
394.4625 Voluntary admissions.--
(1) AUTHORITY TO RECEIVE PATIENTS.--
(a) A facility may receive for observation, diagnosis, or treatment any person 18
years of age or older making application by express and informed consent for
admission or any person age 17 or under for whom such application is made by
his or her guardian. If found to show evidence of mental illness, to be competent
to provide express and informed consent, and to be suitable for treatment, such
person 18 years of age or older may be admitted to the facility. A person age 17
or under may be admitted only after a hearing to verify the voluntariness of the
consent.
394.463 Involuntary examination.--
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(1) CRITERIA.--A person may be taken to a receiving facility for involuntary
examination if there is reason to believe that the person has a mental illness and
because of his or her mental illness:
(a)1. The person has refused voluntary examination after conscientious
explanation and disclosure of the purpose of the examination; or
2. The person is unable to determine for himself or herself whether examination
is necessary; and
(b)1. Without care or treatment, the person is likely to suffer from neglect or
refuse to care for himself or herself; such neglect or refusal poses a real and
present threat of substantial harm to his or her well-being; and it is not apparent
that such harm may be avoided through the help of willing family members or
friends or the provision of other services; or
2. There is a substantial likelihood that without care or treatment the person will
cause serious bodily harm to himself or herself or others in the near future, as
evidenced by recent behavior.
394.467 Involuntary inpatient placement.--
(1) CRITERIA.--A person may be placed in involuntary inpatient placement for
treatment upon a finding of the court by clear and convincing evidence that:
(a) He or she is mentally ill and because of his or her mental illness:
1.a. He or she has refused voluntary placement for treatment after sufficient and
conscientious explanation and disclosure of the purpose of placement for
treatment; or
b. He or she is unable to determine for himself or herself whether placement is
necessary; and
2.a. He or she is manifestly incapable of surviving alone or with the help of
willing and responsible family or friends, including available alternative services,
and, without treatment, is likely to suffer from neglect or refuse to care for himself
or herself, and such neglect or refusal poses a real and present threat of
substantial harm to his or her well-being; or
b. There is substantial likelihood that in the near future he or she will inflict
serious bodily harm on himself or herself or another person, as evidenced by
recent behavior causing, attempting, or threatening such harm; and
(b) All available less restrictive treatment alternatives which would offer an
opportunity for improvement of his or her condition have been judged to be
inappropriate.
394.459(3) RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT.--
(a)1. Each patient entering treatment shall be asked to give express and
informed consent for admission or treatment. If the patient has been adjudicated
incapacitated or found to be incompetent to consent to treatment, express and
informed consent to treatment shall be sought instead from the patient's guardian
or guardian advocate. If the patient is a minor, express and informed consent for
admission or treatment shall also be requested from the patient's guardian.
Express and informed consent for admission or treatment of a patient under 18
years of age shall be required from the patient's guardian, unless the minor is
seeking outpatient crisis intervention services under s. 394.4784. Express and
informed consent for admission or treatment given by a patient who is under 18
years of age shall not be a condition of admission when the patient's guardian
gives express and informed consent for the patient's admission pursuant to s.
394.463 or s. 394.467.
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You should also consider the issues of admission/placement separately from the issue
of treatment.
No minor can provide consent for his/her own admission or treatment. However,
if the child refused to assent (agree) to the admission, it is necessary to initiate
the involuntary process -- involuntary examination if necessary to conduct the
examination and involuntary inpatient placement if the examination reflects that
the minor meets the criteria under 394.467.
With regard to voluntary admission of a minor, a parent or guardian must actually
sign the application, but a judicial hearing must be conducted prior to the child’s
admission.
With regard to a parent’s demand for release of the child, you may need to consider a
referral to the child abuse hotline if you believe the parent’s refusal of care represents
abuse or neglect, as defined in chapter 39, FS.
Q. In order to Baker Act a child or adolescent, do you need or must you have the
parent’s permission? This question came up after an agency director reported
having heard that parents must approve before a child or adolescent can be Baker
Acted.
No. There is no basis for a parent or guardian of a child to provide consent or refuse
consent to his/her child’s involuntary examination. This decision is entirely up to a judge,
a law enforcement officer, or an authorized mental health professional who has reason
to believe the involuntary examination criteria is met. In no case under chapter 394.463
governing involuntary examination is a difference made between adults and minors
noted – no parental consent is mentioned.
Q. A 16 year old male with suicidal behaviors and positive for illicit drugs was
brought to our ER. The doctor initiated an involuntary examination but the
patient’s father, as the custodial parent, wanted to take him home without being
seen by a psychiatrist; he preferred an appointment with a psychologist of his
preference. Does the custodial parent (guardian) reserve the right to take the
minor home against a doctor's opinion for inpatient evaluation?
The consent of a minor’s guardian is required for voluntary status, but not for involuntary
status. If a court, law enforcement officer, or authorized mental health professional have
reason to believe the minor meets the criteria for involuntary examination, the minor
must be taken to a receiving facility for an examination. The Administrator has the
power to release/discharge a person only if the criteria for involuntary placement aren’t
met. Of course, for a receiving facility to keep a person longer than the 72 hours
permitted for examination, a petition for involuntary placement must be timely filed with
the court.
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Q. Shouldn’t the nearest Baker Act receiving facility accept an adolescent brought
in by police for an involuntary evaluation even if they do not have an adolescent
unit?
Receiving facilities are required to accept any person brought by law enforcement for
involuntary examination. This is found in chapter 394.462(1)(j), FS “The nearest
receiving facility must accept persons brought by law enforcement officers for involuntary
examination”. This is especially critical when the receiving facility is a licensed hospital
because it is then governed by the federal EMTALA law that requires it to accept any
person brought to its emergency department and to conduct a medical screening and
stabilization before releasing or transferring the person. Failure to follow that federal law
has serious consequences.
The community can incorporate into a proposed Transportation Exception Plan a
provision that law enforcement officers transporting minors can bypass the nearest
receiving facility and be taken to a receiving facility that has licensed pediatric psychiatric
beds. However, if the minor is brought to another receiving facility in error, it must
accept the minor and transfer the child to a more appropriate facility.
Q. When a minor is brought to a receiving facility pursuant to an ex parte order
for Involuntary Examination, does consent for the admission and treatment by the
guardian specified under 394.459,(3)(a)1 still apply? If so, is this for both
admission and treatment or just treatment?
The minor must be accepted by the facility and must be examined (394.463) by a
physician or psychologist to determine if he/she meets criteria for involuntary placement
(394.467), regardless of whether consent is obtained from the guardian.
However, treatment is a different issue since the court order is generally silent as to this
issue. The minor can’t be treated unless, after full disclosure, the child’s legal guardian
(parent or court appointed guardian) provides consent. If a legal guardian is not
available or refuses such consent, a court order for treatment would be required, short of
an emergency treatment order resulting from documentation of imminent danger.
Transportation & Transfers
Q. When transporting a juvenile for an involuntary examination we, law
enforcement, have to transport to the nearest receiving facility unless there is a
Transportation Exception Plan. I would rather transport a juvenile to a receiving
facility that is properly equipped to handle the juvenile, rather than transport a
juvenile, who is in crisis, to an adult center and have them wait there for further
transportation. As it stands the closest facility (approximately 10 minutes away)
does not have the facilities for juveniles. A different facility approximately 15 - 20
minutes away and is a juvenile receiving facility. Who defines the Transportation
Exception Plan and is it something that a local agency can write?
The good news is that a Transportation Exception Plan for law enforcement to take
minors to the nearest facility licensed with pediatric psychiatry beds has been approved
by your Board of County Commissioners and the DCF Secretary. This will allow you to
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by-pass the nearest receiving facility to deliver the minor to a receiving facility that has
specialized programming for youth.
Q. A parent (legal guardian) has refused to allow her adolescent who is held for
involuntary examination in a hospital ED to go to the closest receiving facility that
treats adolescents; no other facilities have capacity. At what point does it become
necessary to send the adolescent to that closest receiving facility, without
consent of the parent?
There is no difference in the federal EMTALA law and the state Baker Act between how
adults and minors are treated with regard to transfers. Clearly, the minor’s guardian has
the right to request a transfer on behalf of the minor. However, this request doesn’t
obligate another facility to accept the transfer.
If the sending facility is a designated receiving facility with licensed psychiatric beds for
minors, it can only transfer after the consent of the guardian and the destination facility.
If the guardian refused to consent to the transfer and your hospital has the capability and
capacity to meet the child’s needs, it must retain the child. If the sending ED is not a part
of a Baker Act receiving facility, the ED physician can certify the necessity of the transfer
and the child can be transferred without the consent of the guardian.
Q. If the minor is medically clear and no appropriate beds (for a minor) are
available, the 12 hr time period has elapsed, what happens to the Baker Act? Is
our facility obligated to discharge the patient? Does the Baker Act just end or do
we continue to hold the patient and wait for an appropriate bed to become
available? It is my understanding that if we don’t admit the patient to our unit or
find an appropriate bed within the 12 hour period, this is a direct violation and the
Baker Act is discontinued.
Your hospital is a designated receiving facility; therefore the 12 hour provision isn’t
applicable. It is only applicable when a hospital where a person has been taken for
examination/treatment of an emergency medical condition isn’t designated as a
receiving facility and therefore doesn’t have the capability or capacity to meet the
person’s needs. Since your entire hospital is part of the receiving facility, the clock you
need to be concerned with is the 72-hour clock.
If you don’t have licensed beds for minors, you should begin the process of seeking an
appropriate facility to which you can transfer the minor. The Baker Act does permit the
admission of a minor to an adult unit under certain circumstances, as follows:
394.4785 Children and adolescents; admission and placement in mental
facilities.--
(2) A person under the age of 14 who is admitted to any hospital licensed
pursuant to chapter 395 may not be admitted to a bed in a room or ward with an
adult patient in a mental health unit or share common areas with an adult patient
in a mental health unit. However, a person 14 years of age or older may be
admitted to a bed in a room or ward in the mental health unit with an adult if the
admitting physician documents in the case record that such placement is
medically indicated or for reasons of safety. Such placement shall be reviewed
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by the attending physician or a designee or on-call physician each day and
documented in the case record.
While the above admission isn’t ideal, any alternative is better than releasing a person of
any age who is actively harmful to self or others due to an acute mental illness.
Continue to document your efforts to locate another facility more appropriate for the
patient.
Q. If a minor patient is Baker Acted to a hospital which has no psychiatric facility
and the nearest receiving facility that accepts minors is at capacity, does the
receiving facility legally have to accept the child (on an overflow)?
A receiving facility only has to accept a transfer if it has the capability (psychiatric care
for the age of the patient) and capacity (available beds). If the hospital accepts transfers
of paying patients over it's capacity, it must also do so for non-paying patients.
Otherwise, it can refuse the transfer and the child would be sent to the next closest
facility that could meet the child's needs.
Q. Does the initiating hospital have to hold the child until a receiving facility
accepts?
Yes. The transfer must take place within 12 hours after the child has been medically
stabilized. An appropriate transfer can only take place when the destination hospital has
agreed to the transfer.
Q. Can the child be transferred to another county and can that BA receiving
facility deny admission if they do not accept the child's insurance (in this case
straight Medicaid)?
Yes, the child can be transferred to another county if that is the nearest receiving facility
with pediatric capability and capacity. While the initiating hospital should make every
effort to send a patient to a receiving facility that accepts the person's insurance (or to a
public receiving facility if the child is uninsured), no hospital can refuse a referral based
on the person's inability to pay. This constitutes "reverse dumping" under EMTALA and
must be reported to AHCA for investigation.
Q. May a Baker Act receiving facility transfer a Baker Act patient with a Medicaid
HMO/Medicaid PSN/Medicaid FFS without the patient’s or legal guardian’s
consent? May a Baker Act Receiving Facility transfer a Baker Act patient with a
commercial plan without the patient’s or legal guardian’s consent?
No. The federal EMTALA law governs this issue and where the federal law is in conflict
with the State’s Baker Act law, the federal law prevails. A hospital with the capability
and capacity to care for a person’s needs cannot transfer a person with an emergency
medical condition (even an emergency psychiatric condition) on a pre-admission basis
without the consent of that person or his/her legal representative because of the
person’s inability to pay. No contract between a Managed Care Organization (MCO) can
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excuse a hospital from its EMTALA obligations. MCO’s cannot deny a hospital
permission to treat its enrollees -- it can only refuse to pay. Even if the plan requires
prior authorization, a Medicare or Medicaid MCO can’t require prior authority for
provision of emergency care.
Q. Regarding transfer agreements between two Baker Act facilities, I have been
told that I must obtain a letter of agreement with another Baker Act facility to
accept patients under the age of 14 that are brought to my facility under the Baker
Act (if I do not offer child services and provided that we determine the patient is
medically stable before being transferred). Do you know if this letter of agreement
can be with a Baker Act facility in another county?
It would be in the best interest of the child and family to have the agreement with a
nearby facility for the purpose of continuity of care and aftercare planning. Further,
chapter 395 Florida’s hospital licensing statute requires medically necessary transfers be
made to the geographically closest hospital with the service capability and capacity, as
follows:
395.1041 Access to emergency services and care.--
(3) (e) Except as otherwise provided by law, all medically necessary transfers
shall be made to the geographically closest hospital with the service
capability, unless another prior arrangement is in place or the geographically
closest hospital is at service capacity. When the condition of a medically
necessary transferred patient improves so that the service capability of the
receiving hospital is no longer required, the receiving hospital may transfer the
patient back to the transferring hospital and the transferring hospital shall receive
the patient within its service capability.
You have two licensed free-standing hospitals in your surrounding area that are licensed
for children. There are also two CSU’s for children closer than the hospital you propose.
Any hospital, including free-standing Class 3 psychiatric hospitals are subject to the
federal EMTALA law and must follow federal and state requirements for an appropriate
transfer – for sending and accepting persons with psychiatric emergencies. Ability to
pay for care for an unstabilized emergency cannot be considered as a condition for
acceptance. Non-hospital receiving facilities are not subject to EMTALA or chapter 395.
If the geographically closest hospital-based facilities don’t have capability to serve
minors, an agreement with an out-of-county receiving facility with such capability would
appear to be acceptable.
Q. I am the Risk Manager at a residential treatment center and Baker Act receiving
facility for children and adolescents, licensed as a specialty hospital. If a patient is
admitted as a Baker Act (BA52) to a hospital ER for overdosing on medication,
goes into a coma and comes out of the coma 7 days later, The hospital did not
initiate an extension (BA32). The hospital then transfers the patient to our care.
Did the Baker Act end at the 72 hour mark, requiring a BA32 (14 days) to be
initiated? Does a BA52 end while a patient is unconscious? If the 72 hours period
is still in effect, can we legally re-initiate a Baker Act because the first one expired
after 72 hours? If the patient / guardian arrives here does not want to voluntarily
sign in and is not stating they are suicidal or homicidal, what do we do? Do we
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appeal for a BA32? Would the age of the patient matter? Does the Marchman Act
play a role in this scenario?
1. Did the Baker Act end at the 72 hour mark, requiring a BA32 (14 days) to be
initiated? No. The 72-hour clock for involuntary examination stopped as soon as
the physician at the ED documented an emergency medical condition. The clock
starts again once the doctor determines that the person’s medical condition has
stabilized or that an emergency medical condition doesn’t exist. In your scenario, the
72-hour clock wasn’t even ticking for at least 7 days while the person was in a coma.
It is possible that the emergency medical condition may have even extended beyond
that time, depending on the documentation from the physician. The statute reads as
follows:
394.463(2) Involuntary Examination
(g) A person for whom an involuntary examination has been initiated who is
being evaluated or treated at a hospital for an emergency medical condition
specified in s. 395.002 must be examined by a receiving facility within 72 hours.
The 72-hour period begins when the patient arrives at the hospital and
ceases when the attending physician documents that the patient has an
emergency medical condition. If the patient is examined at a hospital providing
emergency medical services by a professional qualified to perform an involuntary
examination and is found as a result of that examination not to meet the criteria
for involuntary outpatient placement pursuant to s. 394.4655(1) or involuntary
inpatient placement pursuant to s. 394.467(1), the patient may be offered
voluntary placement, if appropriate, or released directly from the hospital
providing emergency medical services. The finding by the professional that the
patient has been examined and does not meet the criteria for involuntary
inpatient placement or involuntary outpatient placement must be entered into the
patient's clinical record. Nothing in this paragraph is intended to prevent a
hospital providing emergency medical services from appropriately transferring a
patient to another hospital prior to stabilization, provided the requirements of s.
395.1041(3)(c) have been met.
(h) One of the following must occur within 12 hours after the patient's
attending physician documents that the patient's medical condition has
stabilized or that an emergency medical condition does not exist:
1. The patient must be examined by a designated receiving facility and released;
or
2. The patient must be transferred to a designated receiving facility in which
appropriate medical treatment is available. However, the receiving facility must
be notified of the transfer within 2 hours after the patient's condition has been
stabilized or after determination that an emergency medical condition does not
exist.
2. Does a BA52 end while a patient is not conscious?
See the above response. The BA-52 is still valid until after the medical
emergency is over.
3. If the 72 hours period is still in effect, can we legally re-initiate a Baker Act
because the first one expired after 72 hours?
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You cannot re-initiate a new BA 52. It is the patient’s right to not be held for
longer than 72 hours for psychiatric examination, not the facility’s right to have a
full 72 hours to conduct the examination. It is understood that the psychiatric
examination cannot take place while an emergency medical condition exists;
however, any time that elapses other than for the medical emergency is
deducted from what is available for the psychiatric exam.
4. If the patient/guardian arrives here does not want to voluntarily sign in and is
not stating they are suicidal or homicidal, what do we do?
If the patient is on a voluntary status and doesn’t meet criteria for involuntary
placement, he/she must be released. However, the criteria extends beyond just
vocalizing suicidal or homicidal ideations. The criteria is as follows:
394.463 Involuntary examination.--
(1) CRITERIA.--A person may be taken to a receiving facility for involuntary
examination if there is reason to believe that the person has a mental illness
and because of his or her mental illness:
(a)1. The person has refused voluntary examination after conscientious
explanation and disclosure of the purpose of the examination; or
2. The person is unable to determine for himself or herself whether
examination is necessary; and
(b)1. Without care or treatment, the person is likely to suffer from neglect or
refuse to care for himself or herself; such neglect or refusal poses a real and
present threat of substantial harm to his or her well-being; and it is not apparent
that such harm may be avoided through the help of willing family members or
friends or the provision of other services; or
2. There is a substantial likelihood that without care or treatment the person
will cause serious bodily harm to himself or herself or others in the near future,
as evidenced by recent behavior.
As you can see from the above, refusal to undergo the exam is not always
necessary – it can be due to inability to make well-reasoned, willful, and knowing
decisions. It can be due to passive self-neglect as well as overt danger. Even if
overt danger, there must be reason to believe that there is substantial likelihood
(based on recent behavior) that he person will cause serious bodily harm.
5. Do we appeal for a BA32?
It is unclear what you mean by “appeal for a BA 32”. If the person meets the
criteria for involuntary placement (as differentiated from involuntary examination),
a receiving facility may file the petition in a timely manner with the clerk of court.
6. Would the age of the patient matter?
The age of the patient doesn’t matter for involuntary examination and involuntary
placement. However, the age does matter for voluntary admission. A voluntary
admission of a person age 17 or younger is based on an application by the
child’s parent or legal guardian (not just a caretaker or DCF) as well as the
22
assent (agreement) by the child. The law also requires a hearing prior to the
voluntary admission of a minor.
7. Does the Marchman Act play a role in this scenario?
The Marchman Act wouldn’t apply in the scenario you presented unless the basis
of the overdose was solely due to substance abuse impairment as defined in
chapter 397 instead of a mental illness as defined in chapter 394.
Involuntary Placement
Q. Is there a requirement for a natural parent to attend the Baker Act hearing of an
adolescent, over the age of 13? The magistrate found a minor to meet the criteria
for involuntary hospitalization and treatment with psychotropic medications. The
parents have joint custody and the father encourages his daughter's
noncompliance with her medications.
The Baker Act doesn't address the presence of parents/guardians at the involuntary
placement hearings. However, it seems unusual that a parent who lives locally whose
child meets such acute criteria wouldn't insist on being a part of the process and to
encourage the child's compliance with medically recommended treatment. If a parent
denies necessary medical treatment to his/her child, a report to DCF might be
considered. No treatment can be provided to the minor, regardless of age, without the
consent of a guardian or the court, short of imminent danger.
Decision making by divorced parents is governed by chapter 61, FS -- this law has just
been dramatically amended by the 2008 Legislature. It eliminates terms such as
"custody" and replaces them with terms such as "parenting plan", 'time sharing
schedule", "shared parental responsibility", and "sole parental responsibility". In any
case, with shared parental responsibility (previously called shared custody), both parents
retain access to information and records as well as decision-making about their child. If
they disagree, they need to go back to family court for resolution to the parenting plan
that contains information about consent issues.
Separation of Minors from Adults
Q. Is it permissible to house minors age 14 and older on the same unit as adults?
We have a distinct area of 10 beds, although it is not separated by locked doors,
where adolescents can stay at times. 394.4785 speaks to part of this but I am
unclear if the intent is that adolescents and adults are SHARING a room on the
unit, not as in our case, just sharing the unit space. We would not ever have the
adolescents and adults sharing rooms.
Chapter 394.4785(1), FS permits children and adolescents to be admitted to licensed
hospitals on voluntary status and on involuntary placement status. You may have
noticed that this section doesn’t mention admission of minors to hospitals or CSU’s for
involuntary examination, which is of course a necessary step for an involuntary
placement petition to be filed. This seems to be an error in the statute that may be
addressed in future revisions to the Baker Act.
23
However, s.394.4785(2), FS prohibits placing children under the age of 14 in rooms with
adults or sharing common space with adults. It does permit persons 14 and older to
actually share a room with an adult if the physician documents on a daily basis that the
placement is necessary for safety or medical reasons. Your inquiry atates that you
wouldn’t have minors and adults sharing the same rooms. However, there is no
prohibition in the law against persons age 14 or above from sharing common space with
adults on a psychiatric unit. Your staff may provide continuous observations to
absolutely ensure that the adolescents and adults are never left unattended. The liability
in such cases may be high.
You may need to consult with AHCA since a separate CON/license is needed for
pediatric psychiatric beds from those licensed for adults. If an occasional 16 or 17 year
old was housed on common areas with adults, that might not be necessary. However,
when a unit is established, staffed and program designed specifically for minors, it may
be a different issue.
Juvenile Delinquency (s.985.115, FS)
Q. The LCSW at our Juvenile Detention Center initiated a Baker Act for a youth in
DJJ custody. The facility contacted the mobile crisis unit, per protocol, who
stated they would be out to assess later that evening. The CSU called JDC and
stated the youth met Baker Act criteria, however, if DJJ did not provide an officer
to stay with the youth she would not be accepted. This was related to
aggressiveness during a previous Baker Act. Is DJJ required to provide an officer
to stay with the youth during Baker Act? Also, is it acceptable for the Crisis Unit
to not assess the youth at all (either at their facility or the DJJ facility) after the
Baker Act was initiated by a licensed professional?
There is no requirement in the Baker Act for a referral agent to provide a sitter or law
enforcement officer as a condition of a receiving facility accepting a person for
involuntary examination.
394.462 Transportation.
(1)TRANSPORTATION TO A RECEIVING FACILITY.—
(j)The nearest receiving facility must accept persons brought by law
enforcement officers for involuntary examination.
While a person with minor criminal charges must be taken to a receiving facility instead
of to jail, the law makes some difference for those who have been arrested for a felony.
If the child has actually been arrested for a felony (not just a “delinquent act”) and has
been “processed” at the JDC, it is totally appropriate for the child to then be sent to the
receiving facility for examination and/or treatment. Only if the facility documents that it is
unable to provide adequate security can it deny admission, but remains legally
responsible for providing mental health examination and treatment to the child where he
or she is held.
394.462 Transportation.
(1)TRANSPORTATION TO A RECEIVING FACILITY.—
24
(f)When any law enforcement officer has custody of a person based on either
noncriminal or minor criminal behavior that meets the statutory guidelines for
involuntary examination under this part, the law enforcement officer shall
transport the person to the nearest receiving facility for examination.
(g)When any law enforcement officer has arrested a person for a felony and it
appears that the person meets the statutory guidelines for involuntary
examination or placement under this part, such person shall first be processed in
the same manner as any other criminal suspect. The law enforcement agency
shall thereafter immediately notify the nearest public receiving facility, which shall
be responsible for promptly arranging for the examination and treatment of the
person. A receiving facility is not required to admit a person charged with a crime
for whom the facility determines and documents that it is unable to provide
adequate security, but shall provide mental health examination and treatment to
the person where he or she is held.
This would mean the full range of treatment services provided at a CSSU would have to
be delivered at the JDC. Suggesting that behavior from a previous admission is sufficient
to deny admission without an accompanying officer is not appropriate. Receiving
facilities are established to care for persons of all ages who because of mental illness
are “dangerous to self or others”. Those persons may be aggressive and staff are
trained to de-escalate such individuals.
Q. Do law enforcement officers have to take minors with “felony” charges and
who have had an involuntary examination under the Baker Act initiated to the
Juvenile Assessment Center or to a designated receiving facility?
It is the responsibility of DJJ to provide housing for the child, while it is the responsibility
of the CCSU according to 394 to provide crisis evaluation and treatment as needed.
DCF central office has been working with DJJ to sort out the process of transition and
providing services to children in DJJ custody. According to the Baker Act, CCSU’s have
the right not to admit a child with felony charges to their facility if they feel they cannot
provide adequate security. In the event they do not accept DJJ children, then CCSUs by
law must then provide services where the child is held.
Q. Can a public receiving facility bill a DJJ-contracted facility for an indigent (non-
Medicaid) child who receives involuntary examination initiated by the DJJ facility
professional staff? I feel that the answer is no, but I don't know what authority to
cite.
DJJ has no responsibility to pay for the cost of involuntary examination or placement of a
youth in a public or private receiving facility. The following AG opinions deal with
payment of Involuntary Placement Bills
Attorney General Opinion 93-49 Regarding Who is Responsible for the
Payment of an Involuntary Baker Act Placement, 1993 WL 384795 (Fla. A.G.)
Attorney General Robert A. Butterworth advised the Board of County
Commissioners for Lafayette County, FL that the county is not primarily
responsible for the payment of hospital costs, however, a county may be liable
for hospital costs in the event a person is arrested for a felony involving violence
25
to another person, and the arrested person is indigent. Depending upon the
Baker Act patient’s ability to pay, the patient is responsible for the payment of
any hospital bill for involuntary placement under the Baker Act, however, if the
patient is indigent, the Department of Health and Rehabilitative Services (HRS) is
obligated to provide treatment at a receiving facility and HRS provides treatment
for indigent Baker Act patients without any cost to the county.
Attorney General Opinion 74-271 Regarding Involuntary Hospitalization in
Psychiatric Facility. A circuit court judge may order a patient involuntarily
hospitalized at a private psychiatric facility not under contract with the State
provided that the patient meets the statutory criteria for involuntary
hospitalization, the facility has been designated by DCF, and the cost of
treatment is to be borne by the patient, if he is competent, or by his guardian if
the patient is incompetent. When state funds are to be expended for involuntary
hospitalization of a patient in a private psychiatric facility, such facility must be
under a contract with the state.
The above summaries place responsibility on the patient to pay for care. If neither the
patient nor an insurer can pay, DCF provides this care through a public receiving facility
under contract with the department. The Baker Act only mentions recovery of cost of
care for arrested persons as follows:
394.462 Transportation.--
(1) TRANSPORTATION TO A RECEIVING FACILITY.--
(i) The costs of transportation, evaluation, hospitalization, and treatment incurred
under this subsection by persons who have been arrested for violations of any
state law or county or municipal ordinance may be recovered as provided in s.
901.35.
Chapter 901, FS governs arrests. The above section reads as follows;
901.35 Financial responsibility for medical expenses.--
(1) Notwithstanding any other provision of law, the responsibility for paying the
expenses of medical care, treatment, hospitalization, and transportation for any
person ill, wounded, or otherwise injured during or at the time of arrest for any
violation of a state law or a county or municipal ordinance is the responsibility
of the person receiving such care, treatment, hospitalization, and transportation.
The provider of such services shall seek reimbursement for the expenses
incurred in providing medical care, treatment, hospitalization, and transportation
from the following sources in the following order:
(a) From an insurance company, health care corporation, or other source, if the
prisoner is covered by an insurance policy or subscribes to a health care
corporation or other source for those expenses.
(b) From the person receiving the medical care, treatment, hospitalization, or
transportation.
(c) From a financial settlement for the medical care, treatment, hospitalization, or
transportation payable or accruing to the injured party.
(2) Upon a showing that reimbursement from the sources listed in subsection (1)
is not available, the costs of medical care, treatment, hospitalization, and
transportation shall be paid:
26
(a) From the general fund of the county in which the person was arrested, if the
arrest was for violation of a state law or county ordinance; or
(b) From the municipal general fund, if the arrest was for violation of a municipal
ordinance.
The responsibility for payment of such medical costs shall exist until such time as
an arrested person is released from the custody of the arresting agency.
(3) An arrested person who has health insurance, subscribes to a health care
corporation, or receives health care benefits from any other source shall assign
such benefits to the health care provider.
Nowhere above is DJJ assigned responsibility. Chapter 985, FS governing juvenile
justice provides for access to medical care for youth in DJJ custody as follows:
985.18 Medical, psychiatric, psychological, substance abuse, and
educational examination and treatment.--
(1) After a detention petition or a petition for delinquency has been filed, the
court may order the child named in the petition to be examined by a physician.
The court may also order the child to be evaluated by a psychiatrist or a
psychologist, by a district school board educational needs assessment team, or,
if a developmental disability is suspected or alleged, by a developmental
disabilities diagnostic and evaluation team with the Agency for Persons with
Disabilities. If it is necessary to place a child in a residential facility for such
evaluation, the criteria and procedures established in chapter 393, chapter
394, or chapter 397, whichever is applicable, shall be used.
(2) Whenever a child has been found to have committed a delinquent act, or
before such finding with the consent of any parent or legal custodian of the child,
the court may order the child to be treated by a physician. The court may also
order the child to receive mental health, substance abuse, or retardation
services from a psychiatrist, psychologist, or other appropriate service
provider. If it is necessary to place the child in a residential facility for such
services, the procedures and criteria established in chapter 393, chapter
394, or chapter 397, whichever is applicable, shall be used. After a child has
been adjudicated delinquent, if an educational needs assessment by the district
school board or the Department of Children and Family Services has been
previously conducted, the court shall order the report of such needs assessment
included in the child's court record in lieu of a new assessment. For purposes of
this section, an educational needs assessment includes, but is not limited to,
reports of intelligence and achievement tests, screening for learning disabilities
and other handicaps, and screening for the need for alternative education.
(3) When any child is detained pending a hearing, the person in charge of the
detention center or facility or his or her designated representative may authorize
a triage examination as a preliminary screening device to determine if the child is
in need of medical care or isolation or provide or cause to be provided such
medical or surgical services as may be deemed necessary by a physician.
(4) Whenever a child found to have committed a delinquent act is placed by
order of the court within the care and custody or under the supervision of the
Department of Juvenile Justice and it appears to the court that there is no parent,
guardian, or person standing in loco parentis who is capable of authorizing or
willing to authorize medical, surgical, dental, or other remedial care or treatment
for the child, the court may, after due notice to the parent, guardian, or person
standing in loco parentis, if any, order that a representative of the Department of
27
Juvenile Justice may authorize such medical, surgical, dental, or other remedial
care for the child by licensed practitioners as may from time to time appear
necessary.
(5) Upon specific appropriation, the department may obtain comprehensive
evaluations, including, but not limited to, medical, academic, psychological,
behavioral, sociological, and vocational needs of a youth with multiple arrests for
all level criminal acts or a youth committed to a minimum-risk or low-risk
commitment program.
(6) A physician shall be immediately notified by the person taking the child into
custody or the person having custody if there are indications of physical injury or
illness, or the child shall be taken to the nearest available hospital for emergency
care. A child may be provided mental health, substance abuse, or
retardation services, in emergency situations, pursuant to chapter 393,
chapter 394, or chapter 397, whichever is applicable. After a hearing, the
court may order the custodial parent or parents, guardian, or other
custodian, if found able to do so, to reimburse the county or state for the
expense involved in such emergency treatment or care.
(7) Nothing in this section shall be deemed to eliminate the right of the parents
or the child to consent to examination or treatment for the child, except that
consent of a parent shall not be required if the physician determines there is an
injury or illness requiring immediate treatment and the child consents to such
treatment or an ex parte court order is obtained authorizing treatment.
Subsection (5) above seems to suggest that DJJ would have to have a specific
legislative appropriation to pay for such care.
Q. I have a question about transportation of juveniles. One of my deputies
responded to the Juvenile Detention Center and was asked to transport a kid that
was court ordered to serve 20 days. While he was there someone from DJJ
initiated a Baker Act. All of the papers were signed and they wanted us to
transport him to the receiving center. He was in their care, control and custody. I
told DJJ to transport him just like they would if the kid had a Dr.’s appt or other
court ordered event. The DJJ supervisor said that the SO does it all the time but
agreed that DJJ would do it this time. The deputy said he knew of other times we
did transport but only when the kid’s sentence was complete. Can you comment
on both situations of when he is mid sentence or completed sentence? What if
the deputy response to a disturbance and there is no staff there to initiate a Baker
Act. If the kid meets the criteria for Baker Act could or should we remove him
from a secure facility?
The criminal/delinquency law and the Baker Act can be used simultaneously, unless
there something in the criminal law that directly contradicts the Baker Act. In this case,
law enforcement continues to have responsibility to provide the transport of a person
from any setting except a hospital (because of the federal EMTALA law) of a person
under involuntary examination status to the nearest receiving facility. The following are
some legal citations that might help:
985.115 Release or delivery from custody.--
28
(2) Unless otherwise ordered by the court under s. 985.255 or s. 985.26, and
unless there is a need to hold the child, a person taking a child into custody shall
attempt to release the child as follows:
(d) If the child is believed to be mentally ill as defined in s. 394.463(1), to a law
enforcement officer who shall take the child to a designated public receiving
facility as defined in s. 394.455 for examination under s. 394.463.
985.18 Medical, psychiatric, psychological, substance abuse, and
educational examination and treatment.--
(1) After a detention petition or a petition for delinquency has been filed, the
court may order the child named in the petition to be examined by a physician.
The court may also order the child to be evaluated by a psychiatrist or a
psychologist, by a district school board educational needs assessment team, or,
if a developmental disability is suspected or alleged, by a developmental
disabilities diagnostic and evaluation team with the Agency for Persons with
Disabilities. If it is necessary to place a child in a residential facility for such
evaluation, the criteria and procedures established in chapter 393, chapter 394,
or chapter 397, whichever is applicable, shall be used.
394.462 Transportation.--
(1) TRANSPORTATION TO A RECEIVING FACILITY.--
(a) Each county shall designate a single law enforcement agency within the
county, or portions thereof, to take a person into custody upon the entry of an ex
parte order or the execution of a certificate for involuntary examination by an
authorized professional and to transport that person to the nearest receiving
facility for examination. The designated law enforcement agency may decline to
transport the person to a receiving facility only if:.. [there are exceptions listed,
but none of them are related to juvenile justice]
394.463(2) INVOLUNTARY EXAMINATION.--
(a) An involuntary examination may be initiated by any one of the following
means:
3. A physician, clinical psychologist, psychiatric nurse, mental health counselor,
marriage and family therapist, or clinical social worker may execute a certificate
stating that he or she has examined a person within the preceding 48 hours and
finds that the person appears to meet the criteria for involuntary examination and
stating the observations upon which that conclusion is based. If other less
restrictive means are not available, such as voluntary appearance for outpatient
evaluation, a law enforcement officer shall take the person named in the
certificate into custody and deliver him or her to the nearest receiving facility for
involuntary examination. The law enforcement officer shall execute a written
report detailing the circumstances under which the person was taken into
custody. The report and certificate shall be made a part of the patient's clinical
record. Any receiving facility accepting the patient based on this certificate must
send a copy of the certificate to the Agency for Health Care Administration on the
next working day.
There are also two appellate cases – one says only law enforcement can transport
persons on involuntary examination status and the other says that because such
transport is non-discretionary, the officer is immune from any civil or criminal liability.
29
Q. A local receiving facility recently stated that it didn’t have to accept minors on
a Baker Act if they were from JDC. Is this correct?
The issue of minors with felony charges has come up as a result of the following section
of the law:
394.462 Transportation.--
(1) Transportation to a Receiving Facility.--
(f) When any law enforcement officer has custody of a person based on either
noncriminal or minor criminal behavior that meets the statutory guidelines for involuntary
examination under this part, the law enforcement officer shall transport the person to the
nearest receiving facility for examination.
(g) When any law enforcement officer has arrested a person for a felony and it appears
that the person meets the statutory guidelines for involuntary examination or placement
under this part, such person shall first be processed in the same manner as any other
criminal suspect. The law enforcement agency shall thereafter immediately notify the
nearest public receiving facility, which shall be responsible for promptly arranging for the
examination and treatment of the person. A receiving facility is not required to admit a
person charged with a crime for whom the facility determines and documents that it is
unable to provide adequate security, but shall provide mental health examination and
treatment to the person where he or she is held.
While the above section was originally intended to apply only to adults, the language is
not limited to adults. Further, chapter 985 governing juvenile delinquency generally
refers to “delinquent acts” instead of “felonies”. Many communities believe the JAC
and/or JDC must process the child first, even though he/she may be threatening
suicide. Most DJJ facilities won’t accept a child who is suicidal. This catches law
enforcement and the child between the two systems. However, any minor should have
the benefit/protection of the civil mental health system, regardless of his/her charges.
Q. Law enforcement agencies in our area refuse to initiate or even transport a
child for an involuntary examination under the Baker Act if the child was
committed to a DJJ program. The law enforcement agency states that since the
child is in a DJJ program under a court order, the officer had no authority to
remove the child from the placement without further order of the court. Can a
juvenile who has been committed to a DJJ program undergo an involuntary
examination under the civil Baker Act?
The DJJ statute clearly allows any child committed to such a program to be transferred
to a mental health or substance abuse program for a period of up to 90 days. The
specific provision is as follows:
985.418 Transfer to other treatment services.--Any child committed to the department
may be transferred to retardation, mental health, or substance abuse treatment facilities
for diagnosis and evaluation pursuant to chapter 393, chapter 394, or chapter 397,
whichever is applicable, for a period not to exceed 90 days.
30
Q. We are trying to address issues about disabled (autistic, schizophrenic,
etc.) children who create a disruption and are taken into custody on school
property, often for battery on a school employee, which is a felony. The goal is to
try to get school administration and law enforcement to deal with these children in
a way that recognizes the children's limitations and hopefully avoids arrest and
transportation to DJJ / jail facilities. Do you have any suggestions?
This issue you raise is a serious one. Some school districts have had disproportionately
high rates of arrest among students as a first line of defense in a "0-Tolerance" policy
implementation. Even when criminal charges are brought, chapter 985 provides the
following:
985.115 Release or delivery from custody.--
(1) A child taken into custody shall be released from custody as soon as is
reasonably possible.
(2) Unless otherwise ordered by the court under s. 985.255 or s. 985.26, and
unless there is a need to hold the child, a person taking a child into custody shall
attempt to release the child as follows:
(d) If the child is believed to be mentally ill as defined in s. 394.463(1), to a law
enforcement officer who shall take the child to a designated public receiving
facility as defined in s. 394.455 for examination under s. 394.463.
(e) If the child appears to be intoxicated and has threatened, attempted, or
inflicted physical harm on himself or herself or another, or is incapacitated by
substance abuse, to a law enforcement officer who shall deliver the child to a
hospital, addictions receiving facility, or treatment resource.
However, the Baker Act has some conflicting language:
394.462 Transportation.--
(1) Transportation To A Receiving Facility.--
(f) When any law enforcement officer has custody of a person based on either
noncriminal or minor criminal behavior that meets the statutory guidelines for
involuntary examination under this part, the law enforcement officer shall
transport the person to the nearest receiving facility for examination.
(g) When any law enforcement officer has arrested a person for a felony and it
appears that the person meets the statutory guidelines for involuntary
examination or placement under this part, such person shall first be processed in
the same manner as any other criminal suspect. The law enforcement agency
shall thereafter immediately notify the nearest public receiving facility, which shall
be responsible for promptly arranging for the examination and treatment of the
person. A receiving facility is not required to admit a person charged with a crime
for whom the facility determines and documents that it is unable to provide
adequate security, but shall provide mental health examination and treatment to
the person where he or she is held.
This has placed law enforcement officers in an awkward situation where the Juvenile
Assessment Center (CAC) won’t accept a child with acute mental health or substance
abuse issues, but the receiving facility or Juvenile Addiction Receiving Facility (JARF)
won’t accept a child with felony charges. There have been complaints around the state
about officers stuck driving between JAC and JARF programs, neither willing to accept
the child.
31
When arrests are used, an apparent discriminatory pattern sometimes emerges. Then
schools turn to the next method of removing youth from a campus -- the Baker Act.
These schools often insist on school resource officers initiating the involuntary
examination and some districts even prohibit school-based licensed mental health
personnel from doing the initiation. Failure to have behavioral health professionals
involved in these situations often results in an excess of unnecessary Baker Acts being
done -- often for the wrong reasons.
These students are usually released from the Baker Act receiving facility in 1-3 days and
returned to the classroom. All it accomplishes some times is placing a stigma against
the child. However, when schools recommend parents take these children for voluntary
examination and treatment, many never follow through.
Receiving Facilities
Q. Our free-standing psychiatric hospital is licensed only for adults. However, I’ve
always been under the impression that either a CSU or psychiatric hospital could
admit a child 14 as long as the doctor felt it would be appropriate for the child to
be on a unit with adults? If not, could we refuse to accept a minor?
A non-hospital CSU is permitted to let a child under 14 share common areas of the unit
with adults when under direct visual observation by staff, but not to share a room. If 14
or over, the child can share a room only when the physician daily documents medical or
safety reasons. Chapter 65E-12 governing CSU’s (not hospitals) has the following
language:
Section 65E-12.106, FAC Common Minimum Program Standards.
(22) Children. Every program which serves persons under 18 years of age shall
define, in local program standards, the services and supervision to be provided to
the children. Minors under the age of 14 years shall not be admitted to a bed in a
room or ward with an adult. They may share common areas with an adult only
when under direct visual observation by unit staff. Minors who are 14 years of
age and older may be admitted to a bed in a room or ward in the mental health
unit with an adult, if the clinical record contains documentation by a physician
that such placement is medically indicated or for reasons of safety. This shall be
reviewed and documented on a daily basis.
Hospitals have a little different and more stringent provision in the Baker Act. Minors
under 14 cannot share common areas with adults or a room. However, if 14 or over,
they can share a room if the physician documents daily that the co-location with an adult
is necessary for medical or safety reasons.
Now, with regard to the federal EMTALA law, all hospitals accepting unscheduled
admissions are subject to EMTALA as a free-standing psychiatric hospital if it accepts
persons on an unscheduled “emergency” basis. Emergency psychiatric conditions and
emergency substance abuse conditions are defined by CMS as emergency medical
conditions, even if no other physical problems are identified. Therefore, all provisions of
EMTALA apply. We know that as a designated receiving facility free-standing
32
psychiatric hospitals do indeed accept persons with emergency conditions on an
unscheduled basis.
Such free-standing psychiatric hospitals must perform on all persons brought onto the
premises of the hospital a screening examination within the capability of the facility to
provide. If the hospital determines on the basis of the examination that it doesn’t have
the capacity (space) or capability (programming) to meet the emergency needs of the
person, it can seek a transfer of the person to another hospital that has the capability
and capacity and that provides prior approval for the transfer. This transfer may be on
the basis of the individual’s medical condition, the age of the individual (minors for which
it isn’t licensed, etc. If the transfer is on the basis of “capacity or capability”, it may be
possible to perform a transfer without the consent of the individual – only requiring the
certification of a physician. However, it cannot request a transfer without the consent of
the individual (or legal representative) undergoing an emergency solely on the basis of
inability to pay as this has no relevance to the hospital’s capacity or capability.
CSU’s licensed under Chapter 394, Part IV, FS are not hospitals and are not subject to
EMTALA. Some public receiving facilities are hospitals – not CSUs and, if licensed as
hospitals, they are subject to EMTALA. Some hospitals are public receiving facilities if
they have a contract with DCF for Baker Act appropriated funds. Such hospitals are
subject to EMTALA. The term public/private only relates to whether Baker Act
appropriated funds are provided under contract with DCF. Hospital are licensed under
chapter 395 and CSU’s are licensed under Chapter 394. EMTALA only applies to
hospitals that accept persons under emergency conditions.
Q. We are a Baker Act facility for adults - no acute beds for minors. Last Friday
the police dropped off a 12 years old and then we spent hours trying to transfer
him to another facility in the area who serves that population. My question is: Do
we have to accept that patient or can we tell the police that they need to take him
to the next Baker Act facility a few miles away that treats acute minors? I ask
this because there is absolutely no place at our facility for that patient to go once
dropped off.
The issue you raise is one that DCF HQ and Circuit staff along with AHCA staff spent a
great deal of time discussing about a year or so ago. As a licensed hospital that accepts
individuals for emergency psychiatric conditions, you are subject to the federal EMTALA
law. You must accept and provide the required medical screening examination within
the capability of your free-standing hospital to provide. If the minor can’t be released
because you’ve confirmed the presence of an emergency medical condition (psychiatric
and substance abuse emergencies are EMC’s) and you can’t admit because you’re not
licensed for minors, you have to transfer the minor to “A Designated Receiving Facility”.
The facility to which you transfer doesn’t need to be the nearest. It was resolved earlier
that you would transfer such minors to your sister facility in another county if you couldn’t
arrange a transfer to local facility serving minors.
Besides the federal EMTALA law, the state’s Baker Act requires the nearest receiving
facility to accept any person brought by law enforcement for involuntary examination. A
Transportation Exception Plan should be devised for your area of the state to permit law
enforcement officers to deliver all minors directly to facility licensed and funded for
minors. Such a Plan requires approval by the affected Boards of County Commissioners
33
and the Secretary of DCF. It permits but doesn’t require law enforcement to follow the
exception, but without the TEP, the officer has no legal choice but to deliver a person of
any age on involuntary status to the nearest facility and for your hospital to “accept” (but
not necessarily admit) the individual.
Q. Our hospital is licensed for acute adult beds and child residential beds. Lately
local law enforcement has dropped off an adolescent for acute admission. We are
not licensed for this level of care and have a very difficult time transferring these
patients to an acute facility. My question: As a Baker Act receiving facility must
we accept these patients from law enforcement or are we able to instruct law
enforcement to take the patient to a nearby facility that is licensed as a Child and
Adolescent Hospital? Currently we are admitting these patients and placing them
on the adult unit on a 1:1 level of observation.
This issue is related to your obligations under the federal EMTALA law as well as the
state’s Baker Act. EMTALA generally requires all licensed hospitals to accept any
person and to conduct a “medical screening examination” to determine if the person has
an emergency medical condition. If so, all aspects of EMTALA apply regarding transfer
requirements. CMS defines an emergency medical condition to include emergency
psychiatric and substance abuse conditions, even absent any other medical issues. Age
of the patient isn’t a factor in acceptance. However, once you document you don’t have
the capacity or capability to manage the person’s emergency, you can seek a transfer to
a willing hospital that does have the capacity and capability. Not being licensed to
provide inpatient care for minors would be a “capability” limitation in justifying the
necessity of a transfer.
The other free standing psychiatric program in your area is also licensed as a hospital
and is licensed to serve minors -- as such it has certain obligations to accept the transfer
of persons for which it has the capability and capacity – regardless of the person’s ability
to pay for care.
The state’s Baker Act requires law enforcement to deliver a person on involuntary status
to the nearest receiving facility and for “the nearest receiving facility to accept any
person brought by law enforcement for involuntary examination”. Once you’ve
“accepted” the person from law enforcement, you can seek a transfer under the
provisions specified in the law, as follows:
394.4685 Transfer of patients among facilities.
(2)TRANSFER FROM PUBLIC TO PRIVATE FACILITIES.—A patient who has
been admitted to a public receiving or public treatment facility and has requested,
either personally or through his or her guardian or guardian advocate, and is able
to pay for treatment in a private facility shall be transferred at the patient’s
expense to a private facility upon acceptance of the patient by the private facility.
(3)TRANSFER FROM PRIVATE TO PUBLIC FACILITIES.—
(a)A patient or the patient’s guardian or guardian advocate may request the
transfer of the patient from a private to a public facility, and the patient may be so
transferred upon acceptance of the patient by the public facility.
(b)A private facility may request the transfer of a patient from the facility to a
public facility, and the patient may be so transferred upon acceptance of the
34
patient by the public facility. The cost of such transfer shall be the responsibility
of the transferring facility.
(c)A public facility must respond to a request for the transfer of a patient within 2
working days after receipt of the request.
(4)TRANSFER BETWEEN PRIVATE FACILITIES.—A patient in a private facility
or the patient’s guardian or guardian advocate may request the transfer of the
patient to another private facility at any time, and the patient shall be transferred
upon acceptance of the patient by the facility to which transfer is sought.
The Baker Act provides for a “Transportation Exception Plan” permitting variance from
the above transportation requirements for certain purposes – one of which could be
allowing (but not requiring) law enforcement to take minors to a specified receiving
facility that has the capability of addressing the needs of minors, even when not the
nearest facility. Such a TEP exists in Pinellas, Broward, and Miami-Dade. TEP’s for
other purposes exist in counties around the state such as for a centralized receiving
facility or other permitted reasons. In any case, a TEP must be approved by the Board
of County Commissioners and the DCF Secretary before implantation.
DCF Circuit Office staff would be critical to developing such a proposed plan and to help
negotiate improved transfer agreements between local receiving facilities.
Q. I am the CEO of a freestanding psychiatric hospital. I have a question
regarding our pending Baker Act designation. DCF has completed our unit
inspection. I have been told that I must obtain a letter of agreement with a CCSU if
I choose to only be a CSU. I was also told that a CSU is for all ages, but I do not
understand how a CSU would then differ from a CCSU. I don’t want to admit Baker
Acts under the age of 14.
You use the term CSU and CSSU for your facility. This is probably not correct since
these terms are legally restricted to state-funded public receiving facilities. They have a
substantial range of additional requirements contained in 65E-12, FAC that are over and
above the hospital requirements in chapter 395 and the Baker Act requirements in
chapter 394, FS and 65E-5, FAC. You may be using these terms in substitution for
designation as a receiving facility, which may be a CSU/CSSU or a licensed hospital.
The state's Baker Act statute [394.4785(2)] prohibits persons under the age of 14 from
sharing a room or any common area with an adult. This means that you would have to
seclude a child of this age in an enclosed area with 1 to 1 staff. This seclusion may not
be acceptable under your federal CMS Conditions of Participation or under the Baker
Act because the child hasn't demonstrated any imminent danger to warrant the
seclusion.
A CCSU is limited to serving persons under the age of 18. A CSU is legally authorized
to serve persons of any age. While you may not want to accept children under the age
of 14, you would have to accept them if brought to you by law enforcement for Baker Act
involuntary examination. Further, as a licensed hospital subject to the federal EMTALA
law, you would have to accept any person brought to you and provide a medical
screening within your hospital's capability. If determined that you cannot meet the
specialized emergency needs of the child, you would have to seek an appropriate
transfer. As you know, the federal EMTALA regulations are very precise as to what
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constitutes an appropriate transfer and there are serious consequences for failing to
meet these requirements.
You may wish to work with the DCF Circuit staff in developing a Transportation
Exception Plan for your county in which children under a certain age could be diverted
by law enforcement to a facility that has the capability of serving this age group. Such a
plan requires approval by the Board of County Commissioners and the Secretary of
DCF. Such plans are in place in several counties throughout the state. A MOU with
facilities serving children under the age of 14 is a good idea. However, it might be
difficult for any such facility to guarantee immediate access to a transfer. Many facilities
are at full capacity and with the shortfalls in state general revenue funding; public
receiving facilities cannot always meet this need.
Under EMTALA, no licensed hospital with the capability and capacity to manage a
person's specialized emergency needs can delay or deny a transfer solely on the basis
of inability to pay. It can only refuse a transfer based on lack of capability and capacity.
A non-hospital CSU/CSSU is not subject to EMTALA.
Q. We are considering the closure of out Child and Adolescent unit. If we were to
move forward with this would we still be required to receive ages 0-13 when
placed on a Baker Act? Is there a statute to this effect and if so what is it?
Concerning the possibility of the Transportation Exception Plan, what are the
steps involved/time frames to get this? Is there criteria that must be met in order
to qualify for this? Do you know of facilities that have a Transportation Exception
Plan in effect, and if so, how does it work for them?
Enclosed information below that describes the statutory and code requirements related
to Transportation Exception Plans.
394.462 Transportation.--
(1) Transportation to a Receiving Facility.--
(a) Each county shall designate a single law enforcement agency within the
county, or portions thereof, to take a person into custody upon the entry of
an ex parte order or the execution of a certificate for involuntary
examination by an authorized professional and to transport that person to
the nearest receiving facility for examination. The designated law
enforcement agency may decline to transport the person to a receiving
facility only if: (a number of exceptions are listed in the law)
(3) EXCEPTIONS.--An exception to the requirements of this section may be
granted by the secretary of the department for the purposes of improving
service coordination or better meeting the special needs of individuals. A
proposal for an exception must be submitted by the district administrator after
being approved by the governing boards of any affected counties, prior to
submission to the secretary.
(a) A proposal for an exception must identify the specific provision from which an
exception is requested; describe how the proposal will be implemented by
participating law enforcement agencies and transportation authorities; and
provide a plan for the coordination of services such as case management.
(b) The exception may be granted only for:
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1. An arrangement centralizing and improving the provision of services within a
district, which may include an exception to the requirement for transportation to
the nearest receiving facility;
2. An arrangement by which a facility may provide, in addition to required psychiatric
services, an environment and services which are uniquely tailored to the needs
of an identified group of persons with special needs, such as persons with
hearing impairments or visual impairments, or elderly persons with physical
frailties; or
3. A specialized transportation system that provides an efficient and humane
method of transporting patients to receiving facilities, among receiving facilities,
and to treatment facilities.
(c) Any exception approved pursuant to this subsection shall be reviewed and
approved every 5 years by the secretary.
65E-5.2601 Transportation Exception Plan.
(1) In determining whether to approve a proposal for an exception or exceptions to
the transportation requirements of Section 394.462(3), F.S., the following shall be
considered by the department:
(a) The specific provision from which an exception is requested;
(b) Evidence presented by the department’s district or region of community need and
support for the request;
(c) Whether the proposal is presented in a format that is clear, simple, and can be
readily implemented by all parties and the public;
(d) How the proposed plan will improve services to the public and persons needing
Baker Act services; and
(e) Whether the geographic boundaries identified in the proposal are distinct and
unambiguous.
(2) The proposal must include provisions which address:
(a) Accountability for delays or confusion when transportation fails to respond
appropriately;
(b) How disputes which may arise over implementation of the plan will be resolved;
(c) Identification of the public official whose position is responsible for the continuing
oversight and monitoring of the service in compliance with the terms of the
approved proposal;
(d) The plan for periodically monitoring compliance with the proposal, public
satisfaction with the service provided, and assurance of rights of each person
served by the facility;
(e) The method complaints and grievances are to be received and resolved; and
(f) Community support and involvement including a description of the participation of
designated public and private receiving facilities, law enforcement, transportation
officials, consumers, families, and advocacy groups.
(3) The approval by the governing boards of any affected counties, shall be
certified in writing by the district or region’s mental health and substance abuse
program supervisor, prior to the plan’s submission to the Secretary of the
Department.
Under the federal EMTALA law, your hospital is required to accept all persons and to
perform a medical screening examination, regardless of age or type of condition. This
applies to those on voluntary or involuntary status. An emergency psychiatric condition
is considered by the federal government to be an emergency medical condition even if
no other medical condition exists. If you had no beds for psychiatrically impaired minors,
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your hospital would be responsible for seeking out a specialty hospital or receiving
facility and obtaining prior approval before transferring the child once stabilized for
transfer. You would be responsible for arranging safe and appropriate transport for the
child to the destination facility.
EMTALA, the Emergency Medical Treatment and Active Labor Act, is the patient
“antidumping” provision of Section 1867 of the Social Security Act. Corresponding state
statutes are included in Chapter 395.1041 governing Access to Emergency Care.
Chapter 395 is Florida’s hospital licensing statute. It is more stringent than the federal
EMTALA law in places.
With regard to your questions about hospitals’ obligations under the Baker Act, chapter
395 addresses this in several cites.
395.003(5)(a) governing licensure of all hospitals states “Adherence to patient
rights, standards of care, and examination and placement procedures provided
under part I of chapter 394 shall be a condition of licensure for hospitals
providing voluntary or involuntary medical or psychiatric observation, evaluation,
diagnosis, or treatment”.
(5)(b)”Any hospital that provides psychiatric treatment to persons under 18 years
of age who have emotional disturbances shall comply with the procedures
pertaining to the rights of patients prescribed in part I of chapter 394”.
395.1041(6) RIGHTS OF PERSONS BEING TREATED.--A hospital providing
emergency services and care to a person who is being involuntarily examined
under the provisions of s. 394.463 shall adhere to the rights of patients specified
in part I of chapter 394 and the involuntary examination procedures provided in s.
394.463, regardless of whether the hospital, or any part thereof, is designated as
a receiving or treatment facility under part I of chapter 394 and regardless of
whether the person is admitted to the hospital.
395.1055(5) governing rules and enforcement states “The agency shall enforce
the provisions of part I of chapter 394, and rules adopted thereunder, with
respect to the rights, standards of care, and examination and placement
procedures applicable to patients voluntarily or involuntarily admitted to hospitals
providing psychiatric observation, evaluation, diagnosis, or treatment”.
395.1065(6) governing criminal and administrative penalties states “In seeking to
impose penalties against a facility as defined in s. 394.455 for a violation of part I
of chapter 394, the agency is authorized to rely on the investigation and findings
by the Department of Health in lieu of conducting its own investigation”.
It appears from your message that your hospital may intend to retain its adult psychiatric
unit and its designation as a receiving facility? If so, even under the state’s Baker Act it
would required to accept any person brought by law enforcement for involuntary
examination. A Transportation Exception Plan could be submitted to your Board of
County Commissioners and to the DCF Secretary for approval to have minors of the age
you specify diverted away from your hospital unless they have significant medical
issues.
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Q. We have an adolescent who will be going to a residential program where a
teacher will work with him to try to get him to, or keep him at, grade level work.
Whose responsibility is it to inform his school that he will not be returning? Do
you have any educational tools or communication with the schools?
There was a specific right to education in the Baker Act until the 1996 amendments.
However, that was removed because it is the responsibility of DOE to provide this
education, regardless of where the child is. The 65E-12 CSU rules have no specific
requirements governing this issue. You would have to contact the school system to find
out how each school boards meet this obligation, whether through visiting teachers,
web-based, sending lessons via family, etc. It may be different methods used in each
school system.
Release of Information
Q. A School Resource Officer initiated an involuntary examination on a 14 yr. old.
who was transported to an adolescent unit where she was retained for a few days.
The school is now inquiring about the absence of this student and is requesting
documentation evidencing that the student was in fact "Baker Acted". They have
no cooperation from the student's mother. Can a school request the paperwork
from law enforcement? Although public record, is a minor protected from such
disclosure? If law enforcement initiates an involuntary exam. on a child or
adolescent while in the school, would you recommend that police provide a copy
of the form to the school? Is there any way to ameliorate this dilemma, protect
minors and meet the request of the school?
The Florida Attorney General has issued two opinions on this subject. Both indicate that
the Baker Act forms (initiation and transport) are confidential and exempt from the state's
public record law. They cannot be released. However, any other forms prepared by law
enforcement, such as incident reports, are public records and anyone can ask for them,
including the school personnel. Some agencies include the same information on the
incident report forms as on the official Baker Act forms. Other agencies only reference
the BA-52A form on the incident report form but don't include any information. Others do
something in between.
There is no difference between an agency's responsibilities to a minor as to an adult with
regard to the Baker Act. The officer should seek a legal opinion from the attorney
representing his/her agency. There is a general counsel to a sheriff in a different part of
the state who believes that even the incident reports must be kept confidential -- that the
Attorney General is "just another attorney".
Q. I am a therapist seeing a 14 year old patient. The parents are getting divorced
and they are both asking what is being said during the patient sessions. Does the
therapist have to reveal any information to the parents? If an attorney calls and
subpoenas for information about the session does the therapist have to
disclose?
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This is a very difficult situation. The attorneys representing each of the parents need to
stipulate what information should be shared by the therapist with either or both of the
parents.
However, both parents are natural guardians of the minor child and generally both have
a right to information about the child. Chapter 61, FS governs the dissolution of
marriage in Florida. One paragraph may address your situation:
61.13 Support of children; parenting and time-sharing; powers of court.
(2)(c)3.Access to records and information pertaining to a minor child, including,
but not limited to, medical, dental, and school records, may not be denied to
either parent. Full rights under this subparagraph apply to either parent unless a
court order specifically revokes these rights, including any restrictions on these
rights as provided in a domestic violence injunction. A parent having rights under
this subparagraph has the same rights upon request as to form, substance, and
manner of access as are available to the other parent of a child, including,
without limitation, the right to in-person communication with medical, dental, and
education providers.
The Marchman Act governs substance abuse issues. If the minor in the situation you
mention is being treated for a substance abuse issue, the following section may apply:
397.501, FS RIGHT TO CONFIDENTIALITY OF INDIVIDUAL RECORDS.—
(7)(a)The records of service providers which pertain to the identity, diagnosis,
and prognosis of and service provision to any individual are confidential in
accordance with this chapter and with applicable federal confidentiality
regulations and are exempt from s. 119.07(1) and s. 24(a), Art. I of the State
Constitution. Such records may not be disclosed without the written consent of
the individual to whom they pertain except that appropriate disclosure may be
made without such consent:
(e)1.Since a minor acting alone has the legal capacity to voluntarily apply for and
obtain substance abuse treatment, any written consent for disclosure may be
given only by the minor. This restriction includes, but is not limited to, any
disclosure of identifying information to the parent, legal guardian, or custodian of
a minor for the purpose of obtaining financial reimbursement.
Another issue is HIPAA. HIPAA generally defers to state laws to identify who stands in
the shoes of a patient who doesn’t have capacity (due to age or disability). In such
situations, a therapist could generally share information with a child’s guardian.
One can never ignore a subpoena unless one is willing to risk contempt of court. You
might have to appear with the records and ask a court to conduct a good cause hearing
on whether the records should be released – an in camera inspection of the records by
the judge might occur.
Bottom line – you should consult with an attorney or have the parents get their attorneys
to negotiate what (if any) information about their child can be withheld by the therapist,
given chapter 61, FS above.
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Q. I had a question regarding minors signing release of information forms in
Florida. Is it required? Is there a statute on this?
A minor has no authority to provide consent to release of mental health information – it
must come from the minor’s legal guardian. However, a minor can provide consent to
release of substance abuse information as permitted by the Marchman Act.
Q. I’m an attorney for DCF. Do you know if HIPAA prevents the department from
releasing medical records of children in our care when they are requesting them
as part of a dependency proceeding? It would seem to me that these judges would
need these records in order to rule. I wonder if there is an exception for this
purpose?
HIPAA defers to state law when the state law is more protective of a person's privacy.
Otherwise, HIPAA prevails.
If the department is the legal guardian of the child in our care, we always would have the
authority of consenting to the release of information on behalf of the child.
Otherwise, the parent or legal guardian of the child would have the same right to decide
on release of medical records as they would to the consent to examine or treat their
child. If refusing to sign a release or documented as being unavailable, I believe a court
order might be needed. A court order always is sufficient to allow release of medical
information.
You are much more familiar with the dependency laws than I am, however, chapter 39
would prevail over anything in the Baker Act. Some provisions that might apply are:
39.402 Placement in a shelter.
(11)(b)The court shall request that the parents consent to provide access to the
child’s medical records and provide information to the court, the department or its
contract agencies, and any guardian ad litem or attorney for the child. If a parent
is unavailable or unable to consent or withholds consent and the court
determines access to the records and information is necessary to provide
services to the child, the court shall issue an order granting access. The court
may also order the parents to provide all known medical information to
The following applies to the provision of examination and treatment (especially
psychotropic medications) and address the provision of medical records to the court.
39.407 Medical, psychiatric, and psychological examination and treatment
of child; physical, mental, or substance abuse examination of person with
or requesting child custody.
(1)When any child is removed from the home and maintained in an out-of-home
placement, the department is authorized to have a medical screening performed
on the child without authorization from the court and without consent from a
parent or legal custodian. Such medical screening shall be performed by a
licensed health care professional and shall be to examine the child for injury,
illness, and communicable diseases and to determine the need for immunization.
The department shall by rule establish the invasiveness of the medical
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procedures authorized to be performed under this subsection. In no case does
this subsection authorize the department to consent to medical treatment for
such children.
(2)When the department has performed the medical screening authorized by
subsection (1), or when it is otherwise determined by a licensed health care
professional that a child who is in an out-of-home placement, but who has not
been committed to the department, is in need of medical treatment, including the
need for immunization, consent for medical treatment shall be obtained in the
following manner:
(a)1.Consent to medical treatment shall be obtained from a parent or legal
custodian of the child; or
2.A court order for such treatment shall be obtained.
(b)If a parent or legal custodian of the child is unavailable and his or her
whereabouts cannot be reasonably ascertained, and it is after normal working
hours so that a court order cannot reasonably be obtained, an authorized agent
of the department shall have the authority to consent to necessary medical
treatment, including immunization, for the child. The authority of the department
to consent to medical treatment in this circumstance shall be limited to the time
reasonably necessary to obtain court authorization.
(c)If a parent or legal custodian of the child is available but refuses to consent to
the necessary treatment, including immunization, a court order shall be required
unless the situation meets the definition of an emergency in s. 743.064 or the
treatment needed is related to suspected abuse, abandonment, or neglect of the
child by a parent, caregiver, or legal custodian. In such case, the department
shall have the authority to consent to necessary medical treatment. This authority
is limited to the time reasonably necessary to obtain court authorization.
In no case shall the department consent to sterilization, abortion, or termination
of life support.
(3)(a)1.Except as otherwise provided in subparagraph (b)1. or paragraph (e),
before the department provides psychotropic medications to a child in its
custody, the prescribing physician shall attempt to obtain express and informed
consent, as defined in s. 394.455(9) and as described in s. 394.459(3)(a), from
the child’s parent or legal guardian. The department must take steps necessary
to facilitate the inclusion of the parent in the child’s consultation with the
physician. However, if the parental rights of the parent have been terminated, the
parent’s location or identity is unknown or cannot reasonably be ascertained, or
the parent declines to give express and informed consent, the department may,
after consultation with the prescribing physician, seek court authorization to
provide the psychotropic medications to the child. Unless parental rights have
been terminated and if it is possible to do so, the department shall continue
to involve the parent in the decision making process regarding the
provision of psychotropic medications. If, at any time, a parent whose
parental rights have not been terminated provides express and informed
consent to the provision of a psychotropic medication, the requirements of
this section that the department seek court authorization do not apply to
that medication until such time as the parent no longer consents.
2.Any time the department seeks a medical evaluation to determine the
need to initiate or continue a psychotropic medication for a child, the
department must provide to the evaluating physician all pertinent medical
information known to the department concerning that child.
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(b)1.If a child who is removed from the home under s. 39.401 is receiving
prescribed psychotropic medication at the time of removal and parental
authorization to continue providing the medication cannot be obtained, the
department may take possession of the remaining medication and may continue
to provide the medication as prescribed until the shelter hearing, if it is
determined that the medication is a current prescription for that child and the
medication is in its original container.
2.If the department continues to provide the psychotropic medication to a child
when parental authorization cannot be obtained, the department shall notify the
parent or legal guardian as soon as possible that the medication is being
provided to the child as provided in subparagraph 1. The child’s official
departmental record must include the reason parental authorization was
not initially obtained and an explanation of why the medication is
necessary for the child’s well-being.
3.If the department is advised by a physician licensed under chapter 458 or
chapter 459 that the child should continue the psychotropic medication and
parental authorization has not been obtained, the department shall request
court authorization at the shelter hearing to continue to provide the
psychotropic medication and shall provide to the court any information in its
possession in support of the request. Any authorization granted at the shelter
hearing may extend only until the arraignment hearing on the petition for
adjudication of dependency or 28 days following the date of removal, whichever
occurs sooner.
4.Before filing the dependency petition, the department shall ensure that the child
is evaluated by a physician licensed under chapter 458 or chapter 459 to
determine whether it is appropriate to continue the psychotropic medication. If, as
a result of the evaluation, the department seeks court authorization to continue
the psychotropic medication, a motion for such continued authorization shall be
filed at the same time as the dependency petition, within 21 days after the shelter
hearing.
(c)Except as provided in paragraphs (b) and (e), the department must file a
motion seeking the court’s authorization to initially provide or continue to
provide psychotropic medication to a child in its legal custody. The motion
must be supported by a written report prepared by the department which
describes the efforts made to enable the prescribing physician to obtain
express and informed consent for providing the medication to the child and
other treatments considered or recommended for the child. In addition, the
motion must be supported by the prescribing physician’s signed medical
report providing:
1.The name of the child, the name and range of the dosage of the psychotropic
medication, and that there is a need to prescribe psychotropic medication to the
child based upon a diagnosed condition for which such medication is being
prescribed.
2.A statement indicating that the physician has reviewed all medical information
concerning the child which has been provided.
3.A statement indicating that the psychotropic medication, at its prescribed
dosage, is appropriate for treating the child’s diagnosed medical condition, as
well as the behaviors and symptoms the medication, at its prescribed dosage, is
expected to address.
4.An explanation of the nature and purpose of the treatment; the recognized side
effects, risks, and contraindications of the medication; drug-interaction
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precautions; the possible effects of stopping the medication; and how the
treatment will be monitored, followed by a statement indicating that this
explanation was provided to the child if age appropriate and to the child’s
caregiver.
5.Documentation addressing whether the psychotropic medication will replace or
supplement any other currently prescribed medications or treatments; the length
of time the child is expected to be taking the medication; and any additional
medical, mental health, behavioral, counseling, or other services that the
prescribing physician recommends.
(d)1.The department must notify all parties of the proposed action taken under
paragraph (c) in writing or by whatever other method best ensures that all parties
receive notification of the proposed action within 48 hours after the motion is
filed. If any party objects to the department’s motion, that party shall file the
objection within 2 working days after being notified of the department’s motion. If
any party files an objection to the authorization of the proposed psychotropic
medication, the court shall hold a hearing as soon as possible before authorizing
the department to initially provide or to continue providing psychotropic
medication to a child in the legal custody of the department. At such hearing and
notwithstanding s. 90.803, the medical report described in paragraph (c) is
admissible in evidence. The prescribing physician need not attend the hearing or
testify unless the court specifically orders such attendance or testimony, or a
party subpoenas the physician to attend the hearing or provide testimony. If, after
considering any testimony received, the court finds that the department’s motion
and the physician’s medical report meet the requirements of this subsection and
that it is in the child’s best interests, the court may order that the department
provide or continue to provide the psychotropic medication to the child without
additional testimony or evidence. At any hearing held under this paragraph, the
court shall further inquire of the department as to whether additional medical,
mental health, behavioral, counseling, or other services are being provided to the
child by the department which the prescribing physician considers to be
necessary or beneficial in treating the child’s medical condition and which the
physician recommends or expects to provide to the child in concert with the
medication. The court may order additional medical consultation, including
consultation with the MedConsult line at the University of Florida, if available, or
require the department to obtain a second opinion within a reasonable timeframe
as established by the court, not to exceed 21 calendar days, after such order
based upon consideration of the best interests of the child. The department must
make a referral for an appointment for a second opinion with a physician within 1
working day. The court may not order the discontinuation of prescribed
psychotropic medication if such order is contrary to the decision of the
prescribing physician unless the court first obtains an opinion from a licensed
psychiatrist, if available, or, if not available, a physician licensed under chapter
458 or chapter 459, stating that more likely than not, discontinuing the medication
would not cause significant harm to the child. If, however, the prescribing
psychiatrist specializes in mental health care for children and adolescents, the
court may not order the discontinuation of prescribed psychotropic medication
unless the required opinion is also from a psychiatrist who specializes in mental
health care for children and adolescents. The court may also order the
discontinuation of prescribed psychotropic medication if a child’s treating
physician, licensed under chapter 458 or chapter 459, states that continuing the
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prescribed psychotropic medication would cause significant harm to the child due
to a diagnosed nonpsychiatric medical condition.
2.The burden of proof at any hearing held under this paragraph shall be by a
preponderance of the evidence.
(e)1.If the child’s prescribing physician certifies in the signed medical report
required in paragraph (c) that delay in providing a prescribed psychotropic
medication would more likely than not cause significant harm to the child, the
medication may be provided in advance of the issuance of a court order. In such
event, the medical report must provide the specific reasons why the child may
experience significant harm and the nature and the extent of the potential harm.
The department must submit a motion seeking continuation of the medication
and the physician’s medical report to the court, the child’s guardian ad litem, and
all other parties within 3 working days after the department commences providing
the medication to the child. The department shall seek the order at the next
regularly scheduled court hearing required under this chapter, or within 30 days
after the date of the prescription, whichever occurs sooner. If any party objects to
the department’s motion, the court shall hold a hearing within 7 days.
2.Psychotropic medications may be administered in advance of a court order in
hospitals, crisis stabilization units, and in statewide inpatient psychiatric
programs. Within 3 working days after the medication is begun, the department
must seek court authorization as described in paragraph (c).
(f)1.The department shall fully inform the court of the child’s medical and
behavioral status as part of the social services report prepared for each judicial
review hearing held for a child for whom psychotropic medication has been
prescribed or provided under this subsection. As a part of the information
provided to the court, the department shall furnish copies of all pertinent medical
records concerning the child which have been generated since the previous
hearing. On its own motion or on good cause shown by any party, including any
guardian ad litem, attorney, or attorney ad litem who has been appointed to
represent the child or the child’s interests, the court may review the status more
frequently than required in this subsection.
2.The court may, in the best interests of the child, order the department to obtain
a medical opinion addressing whether the continued use of the medication under
the circumstances is safe and medically appropriate.
(g)The department shall adopt rules to ensure that children receive timely access
to clinically appropriate psychotropic medications. These rules must include, but
need not be limited to, the process for determining which adjunctive services are
needed, the uniform process for facilitating the prescribing physician’s ability to
obtain the express and informed consent of a child’s parent or guardian, the
procedures for obtaining court authorization for the provision of a psychotropic
medication, the frequency of medical monitoring and reporting on the status of
the child to the court, how the child’s parents will be involved in the treatment-
planning process if their parental rights have not been terminated, and how
caretakers are to be provided information contained in the physician’s signed
medical report. The rules must also include uniform forms to be used in
requesting court authorization for the use of a psychotropic medication and
provide for the integration of each child’s treatment plan and case plan. The
department must begin the formal rulemaking process within 90 days after the
effective date of this act.
(4)(a)A judge may order a child in an out-of-home placement to be examined by
a licensed health care professional.
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Even if the court’s dependency records are sealed, HIPAA shouldn’t be a problem. If a
guardian provides consents or a court order to produce the records is available, the
release to the courts should be done.
