Transcript Miami Dade 2015 - South Florida Behavioral Health Network

Marchman Act
Florida’s Substance
Abuse Impairment
Law
South Florida
Behavioral Health Network
June 19, 2015
1
Agenda
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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 Act
 Firearm Prohibitions
 Other Issues
2
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
3
History of the
Marchman 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!!
 4
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
5
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
6
Service Providers
Defined & 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.
7
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; (ARF2 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; 305434-7660
8
Residential Providers
Assessment -- Available
With Appointment
Central Intake – No Appointment Needed
M-F 8 a.m. – 4 p.m. 786-466-3020
3140 NW 76 St., Miami
South Florida Jail Ministries, Inc. d/b/a
Agape Family Ministry
22790 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 Recovery
7707 NW 2nd Ave., Miami; 305-795-0077
Concept House; 162 NE 49th St., Miami;
305-751-6501
9
Residential Providers
Assessment -- Available
With Appointment (continued)
Here’s Help, Inc. 15100 NW 27th Ave.
Opa Locka;
305-685-8201
Jessie Trice Community Health Center
2985 NW 54 Street; Miami; 305-685-8201
Banyan Community Health Center: Casa
Nueva Vida 1560 SW 1st St., Miami; 305-6442667
Banyan Community Health Center: Dade
Chase 140 NW 59 St., Miami; 305-759-8888
Miami Dade County Community Action and
Human Services Department: New
Directions
3140 NW 76 St., Miami; 305-693-3251
The Village South; 3180 Biscayne Blvd.
Miami, 305-341-1718
10
Admissions
11
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
12
Voluntary Admissions
397.601, 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
Involuntary Admissions
Criteria (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, or
Is 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)
14
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.
15
Juvenile Justice
Release 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.
16
Protective Custody
With 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.
17
Protective Custody
Without Consent
Law enforcement officer may take person
(after considering wishes of person) to a:
 Hospital, or
 Detox, or
 Addiction Receiving Facility (ARF), or
An adult may be taken to jail. Not an
arrest and no record made.
18
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
19
Release from
Protective 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.
20
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.
21
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
22
Emergency Admission
Initiation
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.
23
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
24
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.
25
Emergency Admission
Transportation
Transportation may be provided by:
 An applicant for a person’s emergency
admission, or
 Spouse or guardian, or
 Law enforcement officer, or
 Health 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.
26
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 voluntarily
 Retain the client and file a petition for
involuntary assessment or treatment
(authorizes retention pending court order).
* See next slide for Disposition Options
27
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 MiamiDade providers:
 Addiction Receiving Facilities
 Juvenile Addiction Receiving Facilities
 Detox Centers
 Assessment Centers
28
Alternative Involuntary
Assessment – 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.
29
Alternative Involuntary
Assessment -- 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.
30
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.
31
Assessment/Stabilization
Petition (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.
32
Provider Initiated Petitions
for Involuntary Admissions
Providers may initiate petitions for:
 involuntary assessment and
stabilization, or
 involuntary 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.
33
Provider Initiated Petitions
for 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.
34
Assessment/Stabilization
Content 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.
35
Assessment/Stabilization
Court 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
36
Assessment/Stabilization
Procedures (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:

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

Respondent,
Attorney,
Petitioner,
Spouse or guardian,
Parent of a minor, and
Others as directed by the court
37
Assessment/Stabilization
Procedures (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.
38
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.
39
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 5day assessment period..
40
Assessment/Stabilization
Disposition (397.822, FS)
Based upon involuntary assessment,
person may be:
 Released
 Remain voluntarily
 Retained if a petition for involuntary
treatment has been initiated.
Timely petition authorizes retention of client
pending further order of the court.
41
Provider & Client
Responsibilities
42
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)
43
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.
44
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 refusal
 Documentation 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
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.
46
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.
47
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.
48
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 custodian
 To DCF pursuant to s.39, FS
 To DJJ pursuant to s.984, FS
49
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.
50
Emergency
Medical
Conditions
51
Emergency Medical Conditions
& the Baker Act
395, 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!
52
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
condition
2. 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 records
5. Prior approval by transfer destination
6. Safe / appropriate method of transfer
7. Community / state approved plans?
8. Transfer based on paying status?
53
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
54
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.
55
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
56
Psychiatric & Substance Abuse
Emergency 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.
57
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 followup
 Stable for Transfer to another facility
(prevent from injuring self or others)
Mechanical restraints
Chemical restraints, or
Legal Restraints? Involuntary Status
58
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.
59
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.
60
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.
61
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.
62
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.
63
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.
64
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.
65
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.
66
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.
67
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.
68
Hospital Licensing Statute
s. 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
Involuntary
Substance Abuse
Treatment
(397.693, FS)
70
Involuntary Treatment-Criteria
In 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.
71
Involuntary Treatment
Petition (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.
72
Involuntary Treatment
Contents 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:
73
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.
74
Assessment Standards
for 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.
75
Assessment Standards
for 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.
76
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.
77
Involuntary Treatment
Hearing (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.
78
Involuntary Treatment
Burden 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).
79
Involuntary Treatment
Order (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.
80
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.
81
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
82
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.
83
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.
84
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.
85
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.
86
Offender Referrals
Treatment-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.
87
Offender Referrals
Treatment-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.
88
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.
89
Marchman Act
Client Rights
397.501, FS
90
Client Rights
 Individual Dignity
 Non-discriminatory Services
 Quality Services
 Communication
 Care & Custody of Personal Effects
 Education of Minors
 Confidentiality
 Counsel
 Habeas Corpus
91
Individual Dignity
397.501(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
92
Quality Services
397.501(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.
93
Communication
397.501(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.
94
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.
95
Right to Counsel
397.501(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.
96
Habeas Corpus
397.501(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
97
Confidentiality
397.501(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 emergency
 Provider 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 payor
 Court 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.
98
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 address
 Circumstances of incident
 Client status
 Client’s last known whereabouts.
Court can authorize for criminal
investigation or prosecution only if all the
following criteria are met:
 Crime is extremely dangerous
 Records will be of substantial value
 No other methods available or effective
 Potential injury to client or program
outweighed by public interest and need to
know.
99
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.
100
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]
101
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.
102
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.
103
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
104
Case Law Related to
Marchman Act
Department of Health and Rehabilitative
Services v. Straight, Inc. Case No. BL151 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.
105
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.
106
Resources for
Marchman Act
and
Baker Act
107
On-Line Training Opportunities
http://www.dcf.state.fl.us/programs/samh/
mentalhealth/training/bacourses.shtml
Marchman Act
Baker Act & Marchman Act Compared
Introduction to the Baker Act
Law Enforcement & Baker Act
Emergency Medical and Baker Act
Long-Term Care Facilities
Consent for Minors
Rights of Persons
Suicide Prevention
Why People Die by Suicide
Trauma Series
Seclusion and Restraints
No fee
Certificate of Achievement
CE’s offered @ low or no cost
108
DCF Marchman Act Website
http://www.myflfamilies.com/serviceprograms/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
Presentation
109
DCF Baker Act Website
http://www.myflfamilies.com/serviceprograms/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
110
SOUTHERN REGION CONTACTS
Yamile Diaz, LMFT, CAP
DCF-SAMH Regional System of Care Coordinator
401 NW 2nd Ave, Suite N-812
Miami, Florida 33128
Office Number: (786) 257-5191
Fax Number: (305) 377-5144
[email protected]
Carol Caraballo, LCSW, MPA
Adult System of Care Manager
South Florida Behavioral Health Network,
7205 Corporate Center Dr. Ste 200, Miami, FL 33126
Office Number: (786) 507-7468 Fax: (305)860-4869
[email protected]
Habsi W. Kaba, MS, MFT, CMS
Program 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
[email protected]
Martha Lenderman, MSW
7268 Moffatt Lane, Pinellas Park, FL 33781
[email protected]
111
MIAMI DADE COUNTY
CLERK OF COURTS
Juvenile & Adult Marchman Act
Packages
can be found electronically:
http://www.miami-dadeclerk.com/families_probate.asp
Only for Miami-Dade County
112