1 marchman act florida’s substance abuse impairment law south florida behavioral health network...
TRANSCRIPT
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Marchman Act
Florida’s Substance Abuse Impairment
Law
South Florida
Behavioral Health Network
June 19, 2015
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Agenda
Background & Alternative Laws Voluntary Admissions Involuntary Admissions Emergency Medical Conditions
(EMTALA) Provider & Client Responsibilities Involuntary Substance Abuse Treatment Client Rights Appellate Cases Resources Questions and Discussion about:
Baker ActFirearm ProhibitionsOther Issues
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Alternatives to the Marchman Act
Substance Abuse Impairment Only Baker Act, Chapter 394
Psychiatric – Not Medical Emergency Examination & Treatment of
Incapacitated Persons Act, Chapter 401 Federal EMTALA – Emergency Medical
Treatment and Active Labor Act & State’s Access to Emergency Services & Care, 395.1041, F.S.
Probate Rule 5.900 Expedited Judicial Intervention Concerning Medical Treatment Procedures
Intervention Alternatives Adult Protective Services, Chapter 415 Guardianship, Chapter 744 Advance Directives Act/Health Care
Surrogate & Proxy, Chapter 765
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History of theMarchman Act
Myers Act (396, FS) Drug Dependency Act (397, FS)
Hal S. Marchman Alcohol & Other Drug Services Act of 1993 -- addresses the entire array of substance abuse impairment issues.
Not just the substance abuse version of the Baker Act!!
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Substance Abuse Defined:397.311, FS
Substance Abuse means:
Use of any substance if such use is unlawful or
if such use is detrimental to the user or to others, but is not unlawful.
Substance Abuse Impairment:
A condition involving the use of alcohol or any psychoactive or mood-altering substance in such a manner as to induce:
mental, or emotional, or physical problems, and Cause socially dysfunctional behavior
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Service Definitions
Hospital – Licensed by AHCA under chapter 395, FS
Detox Center – uses medical and psychological procedures and supportive counseling to manage toxicity and withdrawing/stabilizing from effects of substance abuse.
Addiction Receiving Facility (ARF) –state contracted and designated secure acute care residential facility providing intensive level of care capable of handling aggressive behavior and deter elopements for persons meeting involuntary assessment / treatment
Juvenile Addiction Receiving Facility (JARF) – Same as above, but for minors
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Service ProvidersDefined & Exempt (397.405, FS)
Public agencies,
Private for-profit or not-for-profit agencies,
Specified private practitioners,
Hospitals,
DCF licensed or exempt from licensure under the Marchman Act.
Exempt from licensure: hospitals, nursing homes, federal facilities, physicians (458/459), psychologists, chapter 491 professionals, DD facilities, churches under certain circumstances, and substance abuse education programs (s.1003.42) – generally limited to voluntary services only.
ARF/JARF Facilities
CHI Community Health of South Florida (Inpatient Detox- 1.46 funded beds); 10300 SW 216th St, Miami; 305-252-4865 Citrus Health Network (JARF- 5.30 funded beds) 4175 West 20th Ave, Hialeah, 305-825-0300 x12353 Jackson CMHC (ARF & Inpatient Detox – 5.39 funded beds) 15055 NW 27th Ave, Opa-Locka; 786-466-2834 Banyan Community Health Center; (ARF- 2 funded beds); 3850 West Flagler St, Miami; 305-774-3600 Guidance Care Center (ARF & Inpatient Detox – 2.48 funded beds);3000 41 Street Ocean, Marathon; 305-434-7660 8
Residential ProvidersAssessment -- Available
With Appointment
Central Intake – No Appointment NeededM-F 8 a.m. – 4 p.m. 786-466-30203140 NW 76 St., Miami
South Florida Jail Ministries, Inc. d/b/a Agape Family Ministry22790 SW 112th Ave., Miami, 305-235-2616 Betterway of Miami 800 NW 28th St., Miami; 305-634-3409 Camillus House; 726 NE 1st Ave., Miami; 305-374-1065 Catholic Charities: St. Luke’s Recovery7707 NW 2nd Ave., Miami; 305-795-0077 Concept House; 162 NE 49th St., Miami; 305-751-6501 9
Residential ProvidersAssessment -- Available With Appointment (continued)
Here’s Help, Inc. 15100 NW 27th Ave. Opa Locka; 305-685-8201
Jessie Trice Community Health Center2985 NW 54 Street; Miami; 305-685-8201 Banyan Community Health Center: Casa Nueva Vida 1560 SW 1st St., Miami; 305-644-2667 Banyan Community Health Center: Dade Chase 140 NW 59 St., Miami; 305-759-8888 Miami Dade County Community Action and Human Services Department: New Directions3140 NW 76 St., Miami; 305-693-3251 The Village South; 3180 Biscayne Blvd.Miami, 305-341-1718
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Admissions
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Admission Types
I. Voluntary Admissions
II. Involuntary Admissions:
Non-Court Involved: Protective Custody – Law Enforcement Emergency – Physician Certificate Alternative Involuntary Assessment for
minors – to JARF by parents
Court Involved: Involuntary Assessment/Stabilization Involuntary Treatment
Voluntary Admissions397.601, FS
Any person, regardless of age, who wishes to enter substance abuse treatment may apply to a service provider for voluntary admission if meeting diagnostic criteria for substance abuse related disorders..
Setting must be least restrictive setting appropriate to person’s treatment needs.
Upon giving written informed consent, a person on involuntary status may be referred to a service provider for voluntary admission when the provider determines person no longer meets involuntary criteria.
Disability of minority (under 18) removed solely for purpose of voluntary admission, but not for involuntary when parental participation may be required by the court. 13
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Involuntary AdmissionsCriteria (397.675, FS)
Good faith reason to believe person is substance abuse impaired:
A condition involving the use of alcohol or any psychoactive or mood-altering substance in such a manner as to induce mental, or emotional, or physical problems, and cause socially dysfunctional behavior
and because of the impairment:Has lost power of self-control over substance use; and either:Has inflicted, or threatened or attempted to inflict, or unless admitted is likely to inflict, physical harm on self or others, orIs in need of substance abuse services and, by reason of substance abuse impairment, his/her judgment has been so impaired the person is incapable of appreciating need for services and of making a rational decision in regard thereto. (Mere refusal to receive services not evidence of lack of judgment)
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Protective Custody(397.677, FS)
Law enforcement officers acting in good faith pursuant to the Marchman Act may not be held criminally or civilly liable for false imprisonment.
Law enforcement may implement for individuals who are in a public place or is brought to attention of LEO.
For adults or minors when involuntary admission criteria appears to be met.
If a minor, the nearest relative must be notified by the law enforcement officer of the protective custody, as must the nearest relative of an adult, unless the adult requests that there be no notification.
Juvenile JusticeRelease or delivery from custody
985.115(2)FS
(c) If the child is believed to be suffering from a serious physical condition which requires either prompt diagnosis / treatment, a law enforcement officer who shall deliver the child to a hospital .
(d) If the child is believed to be mentally ill as defined in s. 394.463(1), a law enforcement officer shall take the child to a designated public receiving facility 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, a law enforcement officer shall deliver the child to a hospital, addictions receiving facility, or treatment resource.
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Protective CustodyWith Consent
Person may consent to LEO assistance to:
home, or
hospital, or
licensed detox center, or
addictions receiving facility,
whichever the LEO determines is most appropriate.
Nearest relative of a minor must be notified by the law enforcement officer of the protective custody, as must the nearest relative of an adult, unless the adult requests that there be no notification.
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Protective CustodyWithout Consent
Law enforcement officer may take person (after considering wishes of person) to a:
Hospital, orDetox, or Addiction Receiving Facility (ARF), or
An adult may be taken to jail. Not an arrest and no record made.
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Jail Responsibility
Jail must notify nearest appropriate licensed provider within 8 hours and shall arrange transport to provider with an available bed.
Must be assessed by jail’s attending physician without unnecessary delay but within 72-hours
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Release fromProtective Custody
Must be released by a qualified professional* when:
Client no longer meets the involuntary admission criteria, or
The 72-hour period has elapsed; or
Client has consented to remain voluntarily, or
Petition for involuntary assessment or treatment has been initiated. Timely filing of petition authorizes retention of client pending further order of the court.
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Qualified Professional Defined(397.311(26), FS)
Physician licensed under 458 or 459;
Professional licensed under chapter 490 or 491 (Psychologist, Clinical SW, Marriage & Family Therapist or Mental Health Counselor); or
Person certified through a DCF recognized certification process for substance abuse treatment services and holds, at a minimum, a bachelor’s degree.
Reciprocity with other states – meet Florida requirements within 1 year.
Grandfather Clause – certified in Florida prior to 1/1/95.
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Emergency Admissions(397.679, FS)
A person meeting involuntary admission criteria may be admitted to:
A hospital, or
A licensed detox, or
An ARF , or
A less intensive component of a licensed service provider for assessment only
for emergency assessment and stabilization upon receipt of a completed application with an attached completed physician’s certificate
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Emergency AdmissionInitiation
An application for emergency admission may be initiated:
For a minor by the parent, guardian or legal custodian.
For adults: Certifying physician Spouse or guardian Any relative Any other responsible adult who has
personal knowledge of the person’s substance abuse impairment.
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Physician’s Certificate
Physician’s Certificate must include:
• Name of client
• Relationship between client and physician
• Relationship between physician and provider
• Statement that exam & assessment occurred within 5 days of application date, and
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Physician’s Certificate (Continued)
Factual allegations about the need for emergency admission:
Reasons for physician’s belief the person meets each criteria for involuntary admission
Must recommend the least restrictive type of service
Must be signed by the physician
Must state if transport assistance is required and specify the type needed.
Must accompany the person and be in chart with signed copy of application.
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Emergency AdmissionTransportation
Transportation may be provided by:
An applicant for a person’s emergency admission, orSpouse or guardian, orLaw enforcement officer, orHealth officer
Federal EMTALA governs medical screening and transfer of persons with emergency medical conditions (includes substance abuse and psychiatric emergencies) from hospitals to other hospitals.
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Emergency Admission Disposition
Within 72 hours after emergency residential admission, client must be assessed by attending doctor to determine need for further services (5 days in OP).
Based on assessment, a qualified professional* must:Release the client / refer*Retain the client voluntarilyRetain the client and file a petition for involuntary assessment or treatment (authorizes retention pending court order).
* See next slide for Disposition Options
ED Options for Referral
Hospitals are subject to EMTALA. Emergency substance abuse conditions are Emergency Medical Conditions.
All rights of patients and responsibilities of hospitals apply as long as emergency lasts.
Once emergency is over, release with referral for follow-up services (not detox) can be made. See previous list of Miami-Dade providers:Addiction Receiving FacilitiesJuvenile Addiction Receiving FacilitiesDetox CentersAssessment Centers
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Alternative InvoluntaryAssessment – Minors
(397.6798, FS)
Admission to Juvenile Addiction Receiving Facility (JARF) for minors meeting involuntary criteria upon application from:
Parent, Guardian, or Legal custodian
Application must establish need for immediate admission and contain specific information, including reasons why applicant believes criteria is met.
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Alternative InvoluntaryAssessment -- Minors
Assessment by qualified professional within 72 hours to determine need for further services.
Physician can extend to total of 5 days if further services are needed.
Minor must be timely released or referred for further voluntary or involuntary treatment, whichever is most appropriate to minor’s needs.
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Involuntary Assessment & Stabilization - General Provisions
(397. 681, FS)
Petitions filed with Clerk of Court in county where person is located.
Circuit court has jurisdiction
Chief judge may appoint general or special magistrate.
Person has right to counsel at every stage of a petition for involuntary assessment or treatment.
Court will appoint counsel if requested or if needed and person cannot afford to pay (Regional Conflict Counsel).
Un-represented minor must have court-appointed guardian ad litem to act on the minor’s behalf.
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Assessment/StabilizationPetition (397.6811, FS)
Adult: petition may be filed by: Spouse, Guardian, Any relative, Private practitioner, Any three adults having personal
knowledge of person’s condition, or Service provider director/designee,.
Minor: petition may be filed by: Parent Legal guardian Legal custodian, or Licensed service provider.
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Provider Initiated Petitionsfor Involuntary Admissions
Providers may initiate petitions for:
involuntary assessment and stabilization, orinvoluntary treatment
When that provider has direct knowledge of the respondent's substance abuse impairment or when an extension of the involuntary admission period is needed.
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Provider Initiated Petitionsfor Involuntary Admissions
(continued)
Providers must have policies and procedures that specify the:
Circumstances under which a petition will be initiated and
Means by which petitions will be drafted, presented to the court, and monitored through the process in conformance with federal and state confidentiality requirements.
Forms used and methods employed to ensure adherence to legal timeframes must
be included in procedures.
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Assessment/StabilizationContent of Petition (397.6814, FS)
Petition must contain:
Name of applicants and respondent
Relationship between them
Name of attorney, if known
Ability to afford an attorney
Facts to support the need for involuntary admission, including why petitioner believes person meets each criteria for involuntary intervention.
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Assessment/StabilizationCourt Determination (397.6818, FS)
Clerk must determine whether person is represented by an attorney, and if not, whether an attorney should be appointed. If not represented, the court will appoint the Regional Conflict Counsel.
Based on a hearing or solely on petition and without an attorney, enter an ex parte order authorizing assessment & stabilization.
If court determines that person meets criteria, he/she may be admitted:
Up to 5 days to hospital, detox or ARF for assessment & stabilization, or
Less restrictive licensed setting for assessment only
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Assessment/StabilizationProcedures (394.6815, FS)
Upon receipt of petition and if a hearing is scheduled, a copy of petition and notice of hearing must be provided to:
Respondent, Attorney, Petitioner, Spouse or guardian, Parent of a minor, and Others as directed by the court
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Assessment/StabilizationProcedures (continued)
Summons issued to respondent and hearing scheduled within 10 days
Court may order law enforcement to transport to nearest appropriate licensed service provider.
Respondent must be present unless injurious and guardian advocate is appointed.
Court shall hear all relevant testimony at hearing.
Right to examination by court-appointed qualified professional.
Determination by court whether a reasonable basis to believe person meets involuntary admission criteria.
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Assessment/Stabilization
Hearing (continued)
Court may either enter an order authorizing assessment & stabilization or dismiss petition.
Court may initiate Baker Act if condition is due to mental illness other than or in addition to substance abuse
Respondent or court may choose provider
Order must include findings as to availability & appropriateness of least restrictive alternatives & need for attorney to represent respondent.
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Involuntary Assessment & Stabilization – Providers (397.6819, FS
Licensed provider may admit person for assessment without unnecessary delay, for a period of up to 5 days.
Assessment must be conducted by a “qualified professional”.
Assessment must be reviewed by a physician prior to end of assessment period.
Provider may request court to extend time for assessment & stabilization for 7 more days, if timely filed within the 5-day assessment period..
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Assessment/StabilizationDisposition (397.822, FS)
Based upon involuntary assessment, person may be:
ReleasedRemain voluntarilyRetained if a petition for involuntary treatment has been initiated.
Timely petition authorizes retention of client pending further order of the court.
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Provider & Client
Responsibilities
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Admission for Substance Abuse Treatment
Any person, including minors, may apply for voluntary admission.
Person on involuntary status must be admitted when sufficient evidence exists that:Person is substance abuse impaired
Is the least restrictive and most appropriate setting
Within licensed capacity
Medical & behavioral condition can be safely managed, and
Within financial means of person to pay (not applicable to licensed hospital for persons)
Non-Discrimination
Providers receiving state funds for substance abuse services can’t deny access based on inability to pay if space & sufficient state resources are available.
Access can’t be denied based on race, gender, ethnicity, age, sexual preference, HIV status, disability, use of prescribed medications, prior service departures against medical advice, or number of relapse episodes.
Access cannot be denied solely because a client takes medication prescribed by a physician.
Failure to have the original form initiating involuntary admission or an original signature on the form is not a basis for refusing an admission.
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Refusal of Admission(397.6751, FS)
If admission refused (in compliance with federal confidentiality regulations) the provider must:
1. Attempt to contact referral source to discuss circumstances and assist in arranging alternate intervention.
2. Provider must ,within 1 workday of refusal, report in writing to referral source:Basis for refusalDocumentation of provider’s efforts to contact the referral source and assist person to access more appropriate services.
3. If medical or behavioral safety can’t be managed, provider must discharge and assist to secure more appropriate services. Within 72 hours, report to referral source basis for discharge and provider’s efforts to assist client. 45
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Provider Responsibilities for Admissions & Refusal to Admit
(continued)
Persons on involuntarily status can only be placed in components of licensed service providers authorized to accept involuntary clients.
Providers accepting person on involuntary
status must provide a description of the eligibility and diagnostic criteria and the placement process to be followed for each
of the involuntary placement procedures Each person involuntarily admitted must
be assessed by a qualified professional to determine need for additional treatment and most appropriate services.
Decision to refuse to admit or to discharge shall be made only by a qualified professional.
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Client Responsibility for Cost of Services (397.431, FS)
Publicly funded providers:
Must have a fee system based upon a client’s ability to pay, and if space and sufficient state resources are available, may not deny a client access to services solely on the basis of client’s inability to pay.
Must disclose full cost and fee charged to client
Client (or guardian of minor) may be required to contribute toward costs, based on ability to pay
Guardian of minor is not liable if services provided without parent consent unless the guardian is court ordered to pay.
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Parental Participation in Minor’s Treatment (397.6759, FS)
A parent, legal guardian, or legal custodian who seeks involuntary admission of a minor to substance abuse treatment is required to participate in all aspects of treatment as determined appropriate by the director of the licensed service provider.
Release from Involuntary Admission and Treatment (397.6758, FS)
A client involuntarily admitted may be released without further order of the court only by a qualified professional.
A minor may only be released to:Parent, legal guardian or legal custodianTo DCF pursuant to s.39, FSTo DJJ pursuant to s.984, FS
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Discharge and Transfer Summaries (65E-30.004(22), FAC
Summaries required for all voluntary and involuntary departures from services.
Transfer Summary: A written d/c summary signed and dated by primary counselor must be completed for clients completing or leaving prior to completion including client’s involvement in services, reason for discharge, and services needed following discharge, including aftercare.
Discharge Summary: Completed immediately for clients transferring between components of same provider and within 5 calendar days when transferring to another provider. Entry must be made in record about circumstances of the transfer signed and dated by primary counselor.
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Emergency
Medical
Conditions
Emergency Medical Conditions & the Baker Act395, FS and EMTALA
An emergency medical condition means a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any one of the following:
Serious jeopardy to patient health
Serious impairment to bodily functions
Serious dysfunction of any bodily organ
Psychiatric and substance abuse emergencies are defined as emergency
medical conditions!
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EMTALA
Federal EMTALA takes precedence over state statutes, when in conflict
All hospitals must comply (not CSU’s, nursing homes or outpatient)
Appropriate transfer from ER based on:1. Medical screening for emergency medical
condition2. Stabilize for transfer (mechanical,
chemical or legal restraints?)3. Consent of person/representative
(receiving facilities) or certification by physician (non-receiving facilities)
4. Full disclosure / clinical records5. Prior approval by transfer destination6. Safe / appropriate method of transfer7. Community / state approved plans?8. Transfer based on paying status?
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Applicability of EMTALA
Applies to all licensed hospitals that provide services for emergency medical conditions, including psychiatric and substance abuse emergencies. Also to physicians responsible for exams, treatment or transfers, including on-call physicians.
Includes free-standing psychiatric hospitals that serve persons with acute mental health / substance abuse emergencies.
Excludes Crisis Stabilization Units (CSU’s), nursing homes, ALF’s, physician offices, outpatient clinics, etc. unless on premises of a hospital.
Failure to comply can result in up to $50,000 per event penalty and loss of Medicare and Medicaid certification ($10,000 state law) – separate from license and “standard of care” issues
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Medical Screening
3rd party payers authorize payment, not treatment – screening must be provided regardless of 3rd party approval.
Completed by medically qualified professional (documented in hospital bylaws or policies) and approved by physician.
Encompassing the full capability for which the facility is licensed, including ancillary services routinely available..
All patients presenting with similar complaints provided same care & testing, regardless of ability to pay.
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Medical Screening (continued)
Depending on symptoms, screening may range from simple process of brief hx / physical exam to complex process involving diagnostic procedures & lab testing.
Refusal to undergo medical screening should reflect documentation of person’s competency to refuse. If refusing, hospital must document in writing risks – benefits, reasons for refusal, description of the exam / tx that was refused, and steps taken to secure written, informed refusal.
Substitute decision-maker can consent on behalf of patient lacking capacity.
If documented medical screening reflects no emergency medical condition, EMTALA no longer applies.
Records maintained for 5 years
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Psychiatric & Substance AbuseEmergency Medical Conditions
To determine if person needs immediate psychiatric intervention, minimally a history & physical exam, including neurologic and assessment of risk to self or others.
Determined if dangerous to self or others (active or passive), especially those expressing suicidal or homicidal thoughts or gestures.
Some intoxicated persons may meet definition of emergency medical condition.
Some persons exhibiting psychiatric and substance abuse symptoms may also have unrecognized trauma or undiagnosed medical conditions.
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Stabilize for Transfer
"Stabilized" means, with respect to an emergency medical condition, that no material deterioration of the condition is likely, within reasonable medical probability, to result from the transfer of the patient from a hospital.
Determined at time of transfer / discharge
Stable for Discharge – outpatient follow-up
Stable for Transfer to another facility (prevent from injuring self or others)
Mechanical restraintsChemical restraints, or Legal Restraints? Involuntary Status
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Stabilize Pending Transfer
Prevent the person from leaving the ED using the least restrictive method. Methods some hospitals use include:
Examine, admit, transfer, or release for follow-up ASAP
Place into a gown – remove shoes
Locate person at back of ED, furthest from exit doors or in secured area or unit
Use color-coded ID band or gown that identifies wandering risk
Provide close observation
Provide 1 on 1 by trained staff if necessary
Provide video monitoring
Use chemical or mechanical restraints if warranted under the federal Conditions of Participation behavioral restraint standards.
JCAHO National Patient Safety Goals
Goal 15 Hospital identifies safety risks inherent in its patient population.
NPSG.15.01.01 The hospital identifies patients at risk for suicide.
Elements of Performance:
1 The risk assessment includes identification of specific patient factors and environmental features that may increase or decrease the risk for suicide.
2 The hospital addresses the patient’s immediate safety needs and most appropriate setting for treatment.
3 The hospital provides information such as a crisis hotline to individuals at risk for suicide and their family members.
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Consent for Transfer
Consent sought only after patient apprised of hospital’s obligations and risks of transfer.
Non-receiving facilities -- Certification by physician generally acceptable without consent at hospitals without capability.
Receiving facilities -- Consent always required at hospitals with capability.
Involuntary status not sufficient justification to transfer without consent. Person doesn’t lose rights under involuntary status – more protections apply.
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Full Disclosure / Clinical Records
Transferring hospital must send all medical records available at time of transfer, such as:
Available history
Nature of patient’s emergency medical condition
Signs / symptoms
Preliminary Diagnoses
Results of lab / diagnostic studies
Treatment provided
Informed written consent / certification
Written reports of lab and diagnostic studies not available at time of transfer must be sent later.
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Transfer Definitions "At service capacity" temporary inability of
a hospital to provide a service which is within the service capability of the hospital, due to maximum use of the service at the time of request for service.
"Service capability" means all services offered by the facility where identification of services offered is evidenced by the appearance of the service in a patient's medical record or itemized bill.
Transfers any movement outside the facility, including d/c, release, off-site dx testing, referrals to other physicians, etc.
"Medically necessary transfer" means transfer made necessary because person in immediate need of treatment for an emergency medical condition where facility lacks service capability/capacity.
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Prior Approval by Recipient Facility
No transfer is appropriate unless prior approval is given by recipient facility.
Recipient hospital’s decision must be based on it’s capability and capacity to meet the patient’s condition – not on patient’s ability to pay for care.
Demand for face sheet or pre-cert by insurer is seen by AHCA as de facto evidence of “reverse dumping” under EMTALA.
Sending hospital should be aware of what contracts destination hospitals have with various payers to reduce risk of patient having to undergo subsequent transfers for financial reasons.
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Hospital Licensing Statute
395.1041 Access to emergency services and care.–
(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.
Safe/Appropriate Method of Transfer
Transfers from one hospital to another must be by qualified personnel and transportation equipment
Responsibility of sending facility to arrange.
Law enforcement personnel not responsible for transfers to other hospitals for specialty care.
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Community/State Approved Plans
EMTALA preempts conflicting state laws dealing with psychiatric emergencies.
Once all EMTALA requirement have been met, state laws/procedures can be followed.
If state/local plans exist for certain facilities to treat persons with psychiatric emergencies, such as CSU’s for indigent persons or managed care plans that only pay in specified facilities, transfers can be made considering those plans.
Once a transfer has been requested by a patient or determined necessary by a facility, it doesn’t need to be made to the nearest facility, but rather to the most appropriate facility that can meet the person’s needs, considering programs, age, and ability / inability to pay.
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Transfer Based on Paying Status
No contract between a Managed Care Organization (MCO) can 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 plan requires prior authorization, a Medicare or Medicaid MCO can’t require prior authority for provision of emergency care.
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Hospital Licensing Statutes. 395.1041, F.S.
(h) A hospital may request and collect insurance information and other financial information from a patient, in accordance with federal law, if emergency services and care are not delayed. No hospital to which another hospital is transferring a person in need of emergency services and care may require the transferring hospital or any person or entity to guarantee payment for the person as a condition of receiving the transfer. In addition, a hospital may not require any contractual agreement, any type of preplanned transfer agreement, or any other arrangement to be made prior to or at the time of transfer as a condition of receiving an individual patient being transferred… 69
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Involuntary
Substance Abuse
Treatment(397.693, FS)
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Involuntary Treatment-CriteriaIn addition to meeting the criteria for all involuntary admissions, a person for whom a petition for involuntary placement is filed must have met additional conditions including: 1.Having been placed under protective custody within the previous 10 days;
2.Having been subject to an emergency admission within the previous 10 days,
3.Having been assessed by a qualified professional within the previous 5 days;
4.Having been subject to a court ordered involuntary assessment and stabilization within the previous 12 days
5.A minor having been subject to alternative involuntary admission within the previous 12 days.
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Involuntary TreatmentPetition (397.695, FS)
Adults: Petition may be filed by: Spouse Guardian Any relative Service provider, or Any 3 people having personal knowledge
of person’s impairment and prior course of assessment and treatment.
Minors: Petition may be filed by: A parent Legal guardian, or Service provider.
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Involuntary TreatmentContents of Petition (397.6951, FS)
Name of respondent
Name of petitioner(s)
Relationship between the respondent & petitioner
Name of respondent’s attorney
Statement of petitioner’s knowledge of respondent’s ability to afford an attorney
Findings & recommendations of the assessment performed by qualified professional
Factual allegations presented by the petitioner establishing need for involuntary treatment, including:
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Involuntary Treatment
Contents of Petition (continued)
Reason for petitioner’s belief that respondent is substance abuse impaired; and
Reason for petitioner’s belief that because of such impairment, respondent has lost power of self-control with respect to substance abuse; and either
a. Reason petitioner believes the respondent has inflicted or is likely to inflict physical harm on self/others unless admitted; or
b. Reason petitioner believes respondent’s refusal to voluntarily receive care is based on judgment so impaired by reason of substance abuse to be incapable of appreciating need for care and making a rational decision.
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Assessment Standardsfor Involuntary Treatment
Providers making assessments available to the court regarding hearings for involuntary treatment must define the process used to complete the assessment, including:
Specifying the protocol to be utilized,
Format and content of the report to the court, and
Internal procedures used to ensure that assessments are completed and submitted within legally specified timeframes.
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Assessment Standardsfor Involuntary Treatment
(continued)
For persons assessed under involuntary order, provider shall address:
Means by which the physician's review and signature for involuntary assessment and stabilization will be secured;
Means by which the signature of a qualified professional for involuntary assessments only, will be secured.
Process used to notify affected parties stipulated in the petition.
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Involuntary Treatment --Duties of Court (397.6955, FS)
Upon filing of petition with clerk of court, court shall immediately determine if respondent has attorney or if appointment of counsel is appropriate. If not represented, court will appoint the Regional Conflict Counsel.
Court scheduled hearing w/i 10 days.
Copy of petition and notice of hearing provided to respondent; attorney, spouse or guardian if applicable, petitioner, (parent, guardian or custodian of a minor), and other persons as the court may direct; and
Issue a summons to respondent.
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Involuntary TreatmentHearing (397.6957, FS)
All relevant evidence, including results of all involuntary interventions
Client to be present unless injurious – if so, court will appoint guardian advocate
Petitioner has burden of proving by clear & convincing evidence that all criteria for involuntary admission is met
Court will either dismiss petition or order client to involuntary treatment.
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Involuntary TreatmentBurden of Proof
Burden of Proof by Clear and Convincing Evidence:
Evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter at issue (Standard Jury Instructions – Criminal Cases, published by the Supreme Court of Florida, No. SC95832, June 15, 2000).
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Involuntary TreatmentOrder (397.697, FS)
Order for involuntary treatment by licensed provider up to 60 days
Order authorizes provider to require client to undergo treatment that will benefit.
Order must include court’s requirement for notification of proposed release.
Court may order Sheriff to transport
After 60-day involuntary treatment, client automatically discharged unless extension petition timely filed with court.
Court retains jurisdiction over case for further orders.
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Court Ordered Notification of Release
When a court ordering involuntary treatment includes requirement in court order for notification of proposed release, provider must notify the original referral source in writing.
Notification shall comply with legally defined conditions and timeframes and conform to federal and state confidentiality regulations.
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Involuntary Treatment Order – Early Release (397.6971, FS)
Client must be released when:
No longer in need of services
Basis for involuntary treatment no longer exist
Convert to voluntary upon informed consent
Client is beyond safe management of the provider
Further treatment won’t bring about further significant improvements
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Involuntary Treatment Order – Extension (397.6975, FS)
When criteria still exists, a renewal of involuntary treatment order may be requested at least 10 days prior to the end of the 60-day period.
Hearing scheduled w/i 15 days of filing
Copy of petition to all parties
If grounds exist, may be ordered for up to 90 additional days.
Further petitions for 90 day periods may be filed if grounds for involuntary treatment persist.
Person may be released by a qualified professional, without court order.
Release from Involuntary Treatment (continued)
Notice of release provided to applicant for a minor or to petitioner and court if court-ordered.
Release of minor must be to parent or guardian, DCF or DJJ.
An involuntarily admitted client may, upon giving written informed consent, be referred to a service provider for voluntary admission when the provider determines that the client no longer meets involuntary criteria.
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Habitual Abusers
Habitual Abuser means a person brought to attention of law enforcement for being substance impaired, who meets criteria for involuntary admission and who has been taken into custody for such impairment 3 or more times during previous 12 months.
No political subdivision may adopt a local ordinance making impairment in public in and of itself an offense. Local ordinances for the treatment of habitual abusers must provide:
For the construction and funding, of a licensed secure facility to be used exclusively for the treatment of habitual abusers who meet the criteria.
Habitual Abusers (continued)
When seeking treatment of a habitual abuser, the county or municipality, through an officer or agent specified in the ordinance, must file with the court a petition which alleges specified information about the alleged habitual abuser:
Person can be held up to 96 hours in a secure facility while a petition is prepared and filed.
Attorney to be appointed
Hearing conducted within 10 days.
May be ordered up to 90 days in treatment
Extensions of up to 180 days can be requested.
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Offender ReferralsTreatment-Based Courts
If any offender, including a minor, is charged with or convicted of a crime, the court may require the offender to receive services from a licensed service provider. If referred by the court, the referral shall be in addition to final adjudication, imposition of penalty or sentence, or other action.
The order must specify:The name of the offender, The name and address of the service provider to which the offender is referred,The date of the referral, The duration of the offender's sentence, and All conditions stipulated by the referral source.
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Offender ReferralsTreatment-Based Courts
The total amount of time the offender is required to receive treatment may not exceed the maximum length of sentence possible for the offense with which the offender is charged or convicted.
The director may refuse to admit any offender referred to the service provider, with the reason communicated immediately and in writing within 72 hours to the referral source
The director may discharge any offender referred when, in the judgment of the director, the offender is beyond the safe management capabilities of the service provider.
When an offender successfully completes treatment or when the time period during which the offender is required to receive treatment expires, the director shall communicate such fact to the referral source.
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Inmate Substance Abuse Programs
Inmate Substance Abuse Programs are provided within facilities housing only inmates and operated by or under contract with the Department of Corrections.
Inmate means any person committed by a court of competent jurisdiction to the custody of DOC, including transfers from federal and state agencies.
Inmate substance abuse services means any service provided directly by the DOC and licensed & regulated by DCF or provided through contract with a licensed service provider; or any self-help program or volunteer support group operating for inmates.
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Marchman Act
Client Rights397.501, FS
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Client Rights
Individual Dignity
Non-discriminatory Services
Quality Services
Communication
Care & Custody of Personal Effects
Education of Minors
Confidentiality
Counsel
Habeas Corpus
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Individual Dignity397.501(1), FS
Respect at all times, including when admitted, retained, or transported.
Cannot be placed in jail unless accused of
a crime except for protective custody (initiated by law enforcement) in strict accordance with the Marchman Act. (only adults may be placed in jail for protective custody)
Guaranteed the protection of all fundamental human, civil, constitutional, and statutory rights.
Must permit grievances to be filed for any reason
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Quality Services397.501(3), FS
Least restrictive and most appropriate services, based on needs and best interests of client.
Services suited to client’s needs, administered skillfully, safely, humanely, with full respect for dignity/integrity, and in compliance with all laws and requirements.
Methods used to control aggressive client behavior that pose an immediate threat to the client or others – used by staff trained & authorized to do so – in accordance with rule.
Opportunity to participate in formulation and review of individualized treatment / service plan.
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Communication397.501(4), FS
Free and private communication within limits imposed by provider policies.
Reasonable rules for mail, telephone & visitation to ensure the well-being of clients, staff and community.
Close supervision of all communication and correspondence is required.
Clients and families must be informed about provider rules related to communication and correspondence.
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Care & Custody of Personal Effects 397.501(5), FS
Right to possess clothing and other personal effects.
Provider may take temporary custody of personal effects only when required for medical or safety reasons.
If removed, reasons for taking custody and a list of the personal effects must be recorded in clinical record.
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Right to Counsel397.501(8), FS
Client must be informed of right to counsel at every stage of involuntary proceedings.
May be represented by counsel in any involuntary proceeding for assessment, stabilization or treatment.
Person (or guardian of a minor) may immediately apply to court to have attorney appointed, if unable to afford one. If not represented, the court will appoint the Regional Conflict Counsel.
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Habeas Corpus397.501(9), FS
Filed at any time and without notice by any client, regardless of age
Filed by client involuntarily retained or parent, guardian, custodian, or attorney on behalf of client
May petition for a writ to question cause and legality of retention and request the court to issue a writ for client’s release
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Confidentiality397.501(7), FS 42 CFR, Part 2, 45 CFR Parts 160 and
164 and HIPAA
Identity, diagnosis, prognosis, and service provision to any client is confidential.
Disclosure requires written consent of client, except:Medical personnel in emergencyProvider staff on “need to know” to carry out duties to client.DCF Secretary/designee for research (non-identifying)Audit or evaluation by federal, state, local governments, or 3rd party payorCourt order for good cause based on whether public interest/need for disclosure outweigh potential injury to client or provider to authorize disclosure but subpoena then required.to compel.
Confidentiality (continued)
Release to Law Enforcement directly related to commission of a crime on premises or against staff or threat to do so. Limited to:Client’s name and addressCircumstances of incidentClient statusClient’s last known whereabouts.
Court can authorize for criminal investigation or prosecution only if all the following criteria are met:Crime is extremely dangerousRecords will be of substantial valueNo other methods available or effectivePotential injury to client or program outweighed by public interest and need to know.
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Confidentiality & the Courts
Court order authorizes but does not compel disclosure of client identifying data.
Subpoena must then be issued to compel disclosure.
Client and provider must be given notice and opportunity to respond or to appear to provide evidence.
Oral argument, review of evidence or hearing in chambers.
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Confidentiality Restrictions inapplicable to reporting of
suspected child abuse.
Minor may consent to own disclosure – consent can only be given by the minor
If consent of guardian required to obtain services for minor, both minor & guardian must consent to disclosure
42 CFR (Code of Federal Regulations) and HIPAA also control how information can be released – most stringent prevails.
The regulations do not restrict a disclosure that an identified individual is not and has never received services [397.501(7)(d), FS]
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Duties of All Hospitals (continued)
.
395.3025 Patient and personnel records; copies; examination.--
(2) This section does not apply to records maintained at any licensed facility the primary function of which is to provide psychiatric care to its patients, or to records of treatment for any mental or emotional condition at any other licensed facility which are governed by the provisions of s. 394.4615.
(3) This section does not apply to records of substance abuse impaired persons, which are governed by s. 397.501.
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Unlawful Activities
Service provider personnel who violate or abuse any right or privilege of a client are liable for damages as determined by law.
Knowingly furnishing false information to obtain involuntary admission
Causing, securing or conspiring to secure involuntary procedures
Causing or conspiring or assisting another to deny a person rights
All misdemeanor of 1st degree, punishable as provided in s.775.082 and up to $5,000.
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Immunity.[397.501(10)(b), FS].
A law enforcement officer acting in good faith pursuant to the Marchman Act may not be held criminally or civilly liable for false imprisonment.[397.6775, FS)
All persons acting in good faith, reasonably, and without negligence in connection with the preparation of petitions, applications, certificates, or other documents or the apprehension, detention, discharge, examination, transportation or treatment under the Marchman Act shall be free from all liability, civil or criminal, by reason of such acts
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Case Law Related to Marchman Act
Department of Health and Rehabilitative Services v. Straight, Inc. Case No. BL-151 October 30, 1986. The 1st DCA upheld trial court by saying that the Chapter 397 does not by its express provisions or by implication prevent a parent from placing a minor child with a state licensed drug treatment facility or program without the consent of the child and without judicial review.
Steven Cole v. State of Florida (2nd DCA 1998) – Reversed due to failure to inform of right to counsel, prior notice of charges, trial not recorded. Court erroneously ordered specific modalities of treatment – this is authority of service provider. Indirect contempt of court for failure to comply with treatment inappropriate.
Case Law Related to Marchman Act (continued)
S.M.F. v Needle (Palm Beach 2000) – order for 60 days of treatment not merely 60 days after order signed.
Jennifer BLAIR, Plaintiff v. Bijou RAZILOU and the City of Naples, defendant (2010 WL 571980 M.D. Florida Fort Myers Division, Feb. 16, 2010). Defendant’s Motion for Summary Judgment granted. The parties didn’t dispute that the officer was acting within his discretionary authority and that plaintiff’s civil commitment, while not an arrest, was a seizure under the 4th amendment. Because the court found that the officer had arguable probable cause to civilly commit plaintiff, he was entitled to qualified immunity.
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Resources for Marchman Act
and
Baker Act
On-Line Training Opportunitieshttp://
www.dcf.state.fl.us/programs/samh/mentalhealth/training/bacourses.shtml
Marchman ActBaker Act & Marchman Act Compared
Introduction to the Baker ActLaw Enforcement & Baker Act
Emergency Medical and Baker ActLong-Term Care Facilities
Consent for MinorsRights of PersonsSuicide Prevention
Why People Die by SuicideTrauma Series
Seclusion and Restraints
No fee Certificate of Achievement
CE’s offered @ low or no cost108
DCF Marchman Act Websitehttp://www.myflfamilies.com/service-
programs/substance-abuse/marchman-
Click on Marchman Act.
2003 Marchman Act User Reference Guide that includes among other issues:
Statute & Rules History & Overview Marchman Act Model Forms Law Enforcement and Protective Custody Quick Reference Guide for Involuntary
Provisions Flow Charts for Involuntary Provisions Admission & Treatment of Minors Where to Go for Help Marchman Act Pamphlet Substance Abuse Program Standards Common Licensing Standards Marchman Act PowerPoint
Presentation109
DCF Baker Act Websitehttp://www.myflfamilies.com/service-
programs/mental-health/baker-act
Click on Baker Act. Contents include:
Copy of Baker Act law (394, Part I, FS) and rules (65E-5, FAC)
Baker Act forms – mandatory and recommended
Selected forms in Spanish & Creole 2014 Baker Act Handbook Baker Act monitoring/survey instruments Frequently Asked Questions (FAQ’s) on
21 subject areas List of all public and private receiving
facilities throughout the state Mental Health Advance Directives Other relevant materials
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SOUTHERN REGION CONTACTS
Yamile Diaz, LMFT, CAPDCF-SAMH Regional System of Care Coordinator
401 NW 2nd Ave, Suite N-812Miami, Florida 33128
Office Number: (786) 257-5191Fax Number: (305) 377-5144
Carol Caraballo, LCSW, MPAAdult System of Care Manager
South Florida Behavioral Health Network, 7205 Corporate Center Dr. Ste 200, Miami, FL 33126Office Number: (786) 507-7468 Fax: (305)860-4869
Habsi W. Kaba, MS, MFT, CMSProgram Coordinator/Liaison
Miami-Dade County Crisis Intervention Team (CIT) 11th Judicial Circuit Criminal Mental Health Project
1351 NW 12th St, Rm 226, Miami FL, 33123, office 305.548.5639
Martha Lenderman, MSW7268 Moffatt Lane, Pinellas Park, FL 33781
MIAMI DADE COUNTYCLERK OF COURTS
Juvenile & Adult Marchman Act Packages
can be found electronically:
http://www.miami-dadeclerk.com/families_probate.asp
Only for Miami-Dade County
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