By Michael G Holler MA NCC CCMHC CFMHE CCCE LMHC Past President Parliamentarian amp Ethics Committee Chair Florida Mental Health Counselors Association FMHCA Introduction Housekeeping ID: 935242
Download Presentation The PPT/PDF document "3 Hour Laws & Rules Updates and Refr..." is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Slide1
3 Hour Laws & Rules Updates and Refresher Course
By
Michael G. Holler, MA, NCC, CCMHC, CFMHE, CCCE, LMHC
Past President, Parliamentarian & Ethics Committee Chair: Florida Mental Health Counselors Association (FMHCA)
Slide2Introduction
Housekeeping
&
Announcements
Slide3Introduction
Learning Objectives
This course fulfills the requirements for Registered Mental Health Counselor Interns Registered Clinical Social Worker and Registered Marriage & Family Therapist who are required by Chapter 491 and are seeking licensure renewal in Florida, for the 3-Hour Laws and Rules Refresher Course.
GOALS
The purpose of this course is to provide basic knowledge of the laws and rules governing the practice of mental health in Florida in order to increase compliance and improve client care. Upon completion of this course, you should be able to:
1. Articulate the laws and rules associated with confidentiality and record keeping for mental health professionals.
2. Understand the legal and ethical boundaries established for supervision in the mental health professions.
3. Recognize the challenging issues that may arise in the psychotherapist-client relationship.
4. Discuss the clinical standards of practice for mental health professionals in Florida.
5. Comprehend the disciplinary actions that may be taken against mental health professionals who violate state laws.
6. Become aware of the revisions in the Laws & rules over the last three years.
Slide4This course fulfills the requirement of the Florida Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling and are seeking initial licensure in Florida, who are required by Chapter 491 by the Florida Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling to complete and 8 hour Laws & Rules Course regarding state laws and rules governing the aforementioned professions.
Course Provider Number: 50-3859
CE Broker Tracking Number: 20-796358
Grievance Policy
All grievances and inquiries will be handled on an individual basis and evaluated on their merit. Individuals, companies and/or organizations wishing to file a grievance or a complaint will be asked to submit such grievance in writing to MENTAL HEALTH COUNSELORS ASSOCIATION OF PALM BEACH at the office address: 502 NW. 14th St., Delray Beach, FL 33444.
Trainees are encouraged to first discuss the issue with the trainer and/or staff.
Slide5Instructor’s Credentials:
Michael G. Holler, MA, NCC, CCMHC, CFMHE, CCCE, LMHC
Master of Arts Degree in Professional Psychology
Licensed Mental Health Counselor in Florida
National Certified Counselor and Certified Clinical Mental Health Counselor through the National Board of Certified Counselors
Florida Supreme Court Certified Family & County Mediator
Maintains a private practice in Tavernier (Upper Keys)
Qualified Parenting Coordinator
Qualified Clinical Supervisor
Certified Child Custody Evaluator
Certified Forensic Mental Health Evaluator.
Leadership positions:
Past President, Florida Mental Health Counselors Association
Ethics Committee Chair, Florida Mental Health Counselors Association.
Slide6Related Laws and Rules
http://floridasmentalhealthprofessions.gov/licensing/licensed-mental-health-counselor/
Florida Statutes
Chapter 491, F.S.: Clinical, Counseling, and Psychotherapy Services
Chapter 456, F.S. Part II: Health Professions and Occupations:
General Provisions
Chapter 39, F.S.: Proceedings Related to Children
Chapter 90.503, F.S.: Evidence Code
Chapter 394, F.S.: Mental Health (Part I Florida Mental Health Act)
Chapter 397, F.S.: Substance Abuse Services
Chapter 415, F.S.: Adult Protective Services
Florida Administrative Code (F.A.C.)
Rules: Chapter 64B4, F.A.C.: Board of Clinical Social Work, Marriage & Family Therapy & Mental Health Counseling
Slide7Introduction:
Course CoverageStatutes
Chapter 491, F.S.: Clinical, Counseling, and Psychotherapy Services
Chapter 456, F.S. Part II: Health Professions and Occupations: General Provisions
Chapter 39, F.S.: Proceedings Related to Children
Chapter 90.503, F.S.: Evidence Cod
Chapter 394, F.S.: Mental Health (Part I Florida Mental Health Act
Chapter 397, F.S.: Substance Abuse Service
Chapter 415, F.S.: Adult Protective Services
Florida Administrative Code (F.A.C.) Rule 64B4 (“the Rules”)
Statutes in their entirety Location:
http://
floridasmentalhealthprofessions.gov
/resources
Slide8Introduction:
Course CoverageBasic Ethical & Legal Conceptual Paradigms
Ethical Thinking
Liability/Legality Thinking
Impropriety
Appearance of Impropriety
Reasonably Prudent Person Concept
Facts, Deductive Reasoning and Opinions
Personal Opinions
Professional Opinions
Re: Children:
Reunification
“Least Restrictive Environment”
Slide9Introduction: Knowledge
of the the lawDo Lawyers
Know
the Law?
Slide10Introduction: Knowledge
of the the law
YES
Slide11Introduction: Knowledge
of the the law
YES
&
NO
Slide12do lawyers know the law?
Lawyers Are
“Familiar”
With the Law
Slide13What does this mean?
They know where
to look things up.
Slide14Introduction:
Course CoverageBasic Ethical & Legal Conceptual Paradigms
Familiarity with Statutes & Rules (Knowing where to look things up)
Privilege vs Confidentiality
Lawsuit vs DOH Complaint
Subpoenas
Duces Tecum
When in Doubt — Consult!
Slide15ETHICAL THINKING
What are “Ethics?”
Slide16Themes of the Course
Framework
or Paradigm
or
Background Thinking
For This Course
Slide17ETHICAL THINKING
What are “Ethics?”Rules of behavior
based on ideas
about what is
morally good and bad
Ref: Merriam- Webster Dictionary
Slide18ETHICAL THINKING
FIRST –
DO NO HARM
Slide19LEGAL THINKING
Definition: “Legal”
Of, based on, or
concerned with the law.
Slide20LEGAL THINKING
Definition: “Liability”The state of being
responsible for something,
especially by law.
Slide21LEGAL THINKING
Basis of the Law:
Reasonably Prudent Person
Concept
Slide22CHANGES IN THE LAWS
Requirements of keeping abreast of Statutory Changes
Recent Changes:
Effective July 1, 2016, the Medical Error Prevention Course is NO LONGER REQUIRED FOR INITIAL LICENSURE. It is still required for license renewal.
Effective April 17, 2017 an active Intern will have
5 years to complete the internship process and INTERNSHIPS MAY NOT BE RENEWED.
Supervision may use certain electronic/distance methods for up to 50% of supervision.
Slide23CHANGES IN THE LAWS
Training to be a qualified supervisor has been reduced from 16 hours to 12 hours; however, a new 4-hour supervision course must be taken every second biennium (every 6 years). (The 491 Board is currently working on what the course content should consist of.)— See 64B4-6.0025 — Approved Continuing Education Course for Supervisory Training.
Slide24CHANGES IN THE LAWS
A licensed mental health professional must be on the premises when clinical services are provided by a registered intern in a private practice setting, and a registered intern may not receive compensation from clients for providing services in a private practice setting.
Summary of change to Rule in 64B4 for Registered Mental Health Counseling Interns: Effective Date: July 1, 2016 revises Registered Mental Health Counseling Interns registration requirements, which includes requirements for supervision, deleting specific education requirements and establishing a validity and expiration period. Requires a licensed mental health professional be on the premises when clinical services are provided by a registered intern in a private practice setting:
Slide25CHANGES IN THE LAWS
CS/HB 373 — Mental Health Counseling Interns — The bill
requires that a clinical social work, marriage and family, or mental health counseling intern practice under the supervision of a licensed clinical social worker, marriage and family therapist, or mental health counselor, as applicable, at all times. It clarifies that an intern may only practice if the supervising or another licensed mental health professional is onsite
.
The bill limits the duration of a registered internship to five years, with a grandfathering provision for licenses issued before April 1, 2017. These intern registrations expire March 31, 2022, and may not be renewed or reissued.
The internship may only be renewed if the registration is issued after April 1, 2017, and the intern has passed the theory and practice examination required for full licensure. The bill prohibits a person who has held a provisional license from applying for an intern registration in the same profession.
Took effect July 1, 2016
.
Slide26CHANGES IN THE LAWS
Effective October, 2012 failure to report suspicion of abuse moved from a misdemeanor to a 3rd degree felony.
The law now mandates that you take a 3-hour Laws & Rules Review Course every 3rd biennium (every 6 years) for license renewal.
A 2-hour Domestic Violence course is also mandated every 3rd biennium (every 6 years).
A 2-hour
TeleMental
Health course is also mandated every 3rd biennium (every 6 years).
Effective October 1, 2012 colleges and universities that "knowingly and willfully" fail to report known or suspected child abuse or prevent another person from doing so will be fined $1 million for each failure.
Slide27CHANGES IN THE LAWS
Effective October 1, 2012 colleges and universities that "knowingly and willfully" fail to report known or suspected child abuse or prevent another person from doing so will be fined $1 million for each failure.
Slide28CHANGES IN THE LAWS
RE: NOTIFICATION OF SEXUAL OR NEEDLE-SHARING PARTNERS OF AN HIV+ PATIENT/CLIENT: Chapter 456.061 — We MAY notify under certain conditions, providing we follow protocols of Florida Dept. of Health. We will not be held civilly or criminally liable if we do not tell and will not be held liable if we do tell, as long as we follow the Dept. of Heath protocols. Document!
Slide29CHANGES IN THE LAWS
The law now mandates that any online Laws & Rules Course must contain an interactive component.
LMHC, LMFT, & LCSW are all allowed to initiate the Baker Act
Slide30CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
What Professions are Covered by Chapter 491
Licensed Mental Health Counselors
Licensed Marriage & Family Therapists
Licensed Clinical Social Workers
Subjects Covered in 491
Training Requirements
HIV
AIDS
Domestic Violence
Definitions
All three Disciplines
S
ocial
Work
Marriage & Family Therapy
M
ental
Health Counseling
Slide31CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
A
ssessment
D
iagnosis
Treatment
Psychotherapy
Additional Training Required for:
Hypnotherapy
Juvenile S
ex
O
ffender
Therapy,
S
ex
Therapy
Slide32CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Structure of the Board
2 members shall be licensed practicing clinical social workers;
2 members shall be licensed practicing marriage and family therapists;
2 members shall be licensed practicing mental health counselors; and
3 members shall be citizens of the state who are not and have never been licensed in a mental health-related profession and who are in no way connected with the practice of any such profession:
“
consumer members”
Slide33CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Definitions:
Diagnose & Treat
491.003
(9)(c)
The terms “diagnose” and “treat,” as used in this chapter, when considered in isolation or in conjunction with any provision of the rules of the board, shall not be construed to permit the performance of any act which clinical social workers are not educated and trained to perform, including, but not limited to, admitting persons to hospitals for treatment of the foregoing conditions, treating persons in hospitals without medical supervision, prescribing medicinal drugs as defined in chapter 465, authorizing clinical laboratory procedures pursuant to chapter 483, or radiological procedures, or use of electroconvulsive therapy.
In addition, this definition shall not be construed to permit any person licensed, provisionally licensed, registered, or certified pursuant to this chapter to describe or label any test, report, or procedure as “psychological,” except to relate specifically to the definition of practice authorized in this subsection.
Slide34CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Definition: Mental Health Counseling:
The use of scientific and applied behavioral science theories, methods, and techniques for the purpose of describing, preventing, and treating undesired behavior and enhancing mental health and human development and is based on the person-in-situation perspectives derived from research and theory in personality, family, group, and organizational dynamics and development, career planning, cultural diversity, human growth and development, human sexuality, normal and abnormal behavior, psychopathology, psychotherapy, and rehabilitation. The practice of mental health counseling includes methods of a psychological nature used to evaluate, assess, diagnose,
Slide35CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Definition: Mental Health Counseling: Cont’d
and treat emotional and mental dysfunctions or disorders (whether cognitive, affective, or behavioral), behavioral disorders, interpersonal relationships, sexual dysfunction, alcoholism, and substance abuse. The practice of mental health counseling includes, but is not limited to, psychotherapy, hypnotherapy, and sex therapy. The practice of mental health counseling also includes counseling, behavior modification, consultation, client-centered advocacy, crisis intervention, and the provision of needed information and education to clients, when using methods of a psychological nature to evaluate, assess, diagnose, treat, and prevent emotional and mental disorders and dysfunctions (whether cognitive, affective, or behavioral), behavioral disorders, sexual dysfunction, alcoholism, or substance
Slide36CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Definition: Mental Health Counseling: Cont’d
abuse. The practice of mental health counseling may also include clinical research into more effective psychotherapeutic modalities for the treatment and prevention of such conditions.
(a) Mental health counseling may be rendered to individuals, including individuals affected by the termination of marriage, and to couples, families, groups, organizations, and communities.
(b) The use of specific methods, techniques, or modalities within the practice of mental health counseling is restricted to mental health counselors appropriately trained in the use of such methods, techniques, or modalities.
Slide37CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Definition: Clinical Social Work:
The use of scientific and applied knowledge, theories, and methods for the purpose of describing, preventing, evaluating, and treating individual, couple, marital, family, or group behavior, based on the person-in-situation perspective
of psychosocial development, normal and abnormal behavior, psychopathology, unconscious motivation, interpersonal relationships, environmental stress, differential assessment, differential planning, and data gathering. The purpose of such services is the prevention and treatment of undesired behavior and enhancement of mental health.
Slide38CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Definition: Clinical Social Work: Cont’d
The practice of clinical social work includes methods of a psychological nature used to evaluate, assess, diagnose, treat, and prevent emotional and mental disorders and dysfunctions (whether cognitive, affective, or behavioral), sexual dysfunction, behavioral disorders, alcoholism, and substance abuse. The practice of clinical social work includes, but is not limited to, psychotherapy, hypnotherapy, and sex therapy. The practice of clinical social work also includes counseling, behavior modification, consultation, client-centered advocacy, crisis intervention, and the provision of needed information and education to clients, when using methods of a psychological nature to evaluate, assess, diagnose, treat, and prevent emotional and mental disorders and dysfunctions (whether
Slide39CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Definition: Practice of Clinical Social Work: Continued
cognitive, affective, or behavioral), sexual dysfunction, behavioral disorders, alcoholism, or substance abuse. The practice of clinical social work may also include clinical research into more effective psychotherapeutic modalities for the treatment and prevention of such conditions.
(a) Clinical social work may be rendered to individuals, including individuals affected by the termination of marriage, and to marriages, couples, families, groups, organizations, and communities.
(b) The use of specific methods, techniques, or modalities within the practice of clinical social work is restricted to clinical social workers appropriately trained in the use of such methods, techniques, or modalities.
Slide40CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Definition: Practice of Clinical Social Work: Continued
(b) The use of specific methods, techniques, or modalities within the practice of clinical social work is restricted to clinical social workers appropriately trained in the use of such methods, techniques, or modalities.
Slide41CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Definition: Practice of Marriage & Family Therapy:
The use of scientific and applied marriage and family theories, methods, and procedures for the purpose of describing, evaluating, and modifying marital, family, and individual behavior, within the context of marital and family systems, including the context of marital formation and dissolution, and is based on marriage and family systems theory, marriage and
Slide42CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Definition: Practice of Marriage & Family Therapy:
family development, human development, normal and abnormal behavior, psychopathology, human sexuality, psychotherapeutic and marriage and family therapy theories and techniques. The practice of marriage and family therapy includes methods of a psychological nature used to evaluate, assess, diagnose,
Slide43CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Definition: Practice of Marriage & Family Therapy: Cont’d
treat, and prevent emotional and mental disorders or dysfunctions (whether cognitive, affective, or behavioral), sexual dysfunction, behavioral disorders, alcoholism, and substance abuse. The practice of marriage and family therapy includes, but is not limited to, marriage and family therapy, psychotherapy, including behavioral family therapy, hypnotherapy, and sex therapy. The
Slide44CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Definition: Practice of Marriage & Family Therapy: Cont’d
practice of marriage and family therapy also includes counseling, behavior modification, consultation, client-centered advocacy, crisis intervention, and the provision of needed information and education to clients, when using methods of a psychological nature to evaluate, assess, diagnose, treat, and prevent emotional and mental disorders and dysfunctions (whether cognitive, affective, or behavioral), sexual dysfunction,
Slide45CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Definition: Practice of Marriage & Family Therapy: Cont’d
behavioral disorders, alcoholism, or substance abuse. The practice of marriage and family therapy may also include clinical research into more effective psychotherapeutic modalities for the treatment and prevention of such conditions.
(a) Marriage and family therapy may be rendered to individuals, including individuals affected by termination of marriage, to couples, whether married or unmarried, to families, or to groups..
Slide46CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Definition: Practice of Marriage & Family Therapy: Cont’d
(b) The use of specific methods, techniques, or modalities within the practice of marriage and family therapy is restricted to marriage and family therapists appropriately trained in the use of such methods, techniques, or modalities for the treatment and prevention of such conditions.
Slide47CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Definition: Practice of Marriage & Family Therapy: Cont’d
(a) Marriage and family therapy may be rendered to individuals, including individuals affected by termination of marriage, to couples, whether married or unmarried, to families, or to groups.
(b) The use of specific methods, techniques, or modalities within the practice of marriage and family therapy is restricted to marriage and family therapists appropriately trained in the use of such methods, techniques, or modalities.
Slide48CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Limitations/Preclusions:
Admission to Hospitals for Treatment
Treating Persons in Hospitals Without Medical S
upervision
P
rescrib
ing
Medication
Authorizing Laboratory or Radiological Procedures or the use of electroconvulsive therapy.
We may not describe or label any test, report, or procedure as “psychological.”
Slide49CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Re: Limitations/Preclusions:
Side Note:
We may not describe or label any test, report, or procedure as “psychological.”
Does this mean we cannot do testing?
IT DOES NOT!
Section 491.009 (3) states, ”
The practice of mental health counseling includes methods of a psychological nature used to evaluate, assess, diagnose and treat emotional and mental dysfunctions or disorders (whether cognitive, affective or behavioral)
.”
Slide50CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Nowhere in Chapter 491 or 490 (Psychologists Licensing Statute) does it say that we are not allowed to do testing!
Nowhere in Chapter 491 or 490 does it say that only psychologists can do testing!
BUT
– We must have the proper training before we can do any testing.
Slide51CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Intern Registrations & Requirements
An individual must:
Register as an intern prior to commencing the post-master’s experience requirement;
Complete an application form and remit a fee; Complete education requirements; Identify a qualified supervisor; and Must remain under supervision until he or she is in receipt of a license or a letter from the department stating that he or she is licensed to practice the profession for which he or she applied;
Effective July 1, 2016, the Medical Error Prevention Course is NO LONGER REQUIRED FOR INITIAL LICENSURE. It is still required for license renewal.
Effective April 17, 2017 an active Intern will have 5 years to complete the internship process. Internships may not be renewed.
Slide52CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Provisional Licensure
An individual applying for licensure by examination or by
endorsement who has satisfied the clinical experience requirements but not all of the educational requirements may be issued a provisional license.
Must work under supervision.
Expires 24 months from the date it was issued.
The provisional licensee, like the registered intern, must remain under supervision until a license is received.
A provisional licensee may not renew.
The provisional licensee must complete any missing educational requirements within 24 months of receiving the provisional license.
Slide53CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Licensure by E
xamination
A
pplication
,
F
ee
E
ducational
Requirements From an Accredited Graduate School, (the new upcoming standard will be a CACREP accredited School)
Field placement
Post-graduate Supervised Clinical Experience.
Supervised experience requirement for all 3 disciplines
If the registered intern provides services in a private practice setting, a licensed mental health professional, as determined by the board, must physically be on the premises at the same time the intern is providing services.
Slide54CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Dual Licensure (LMHC/LMFT)
The department shall license as a marriage and family therapist any person who demonstrates to the board that he or she:
Holds a valid, active license as a psychologist under chapter 490 or as a clinical social worker or mental health counselor under this chapter, or is certified under s. 464.012 as an advanced registered nurse practitioner who has been determined by the Board of Nursing as a specialist in psychiatric mental health.
Has held a valid, active license for at least 3 years.
Has passed the examination provided by the department for marriage and family therapy.
Slide55CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Inactive Status; Reactivation of Licenses; Fees
License Renewal Choices:
Inactive $50.00 fee (by choice)
Requirements
Continuing E
ducation
Requirements – Same as licensed
Slide56Slide57Slide58Slide59Slide60Slide61Slide62Slide63Slide64Slide65Slide66Slide67AGGRAVATING & MITIGATING CIRCUMSTANCES
Slide68CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Practice of Hypnosis
Therapeutic
Non-Therapeutic
2011 change in law regarding requirements for practice of hypnosis.
Florida
Administrative
Code
: Before practicing hypnosis for any therapeutic purpose, a clinical social worker, marriage and family therapist, or mental health counselor shall have successfully completed at least 50 hours of instruction in:
Concepts of and misconceptions of hypnosis induction techniques
Contraindications to hypnosis
Relationships of personality dynamics, psychopathology and ethical issues to hypnosis.
An intern may not practice hypnosis unless practicing under the supervision of a qualified supervisor who has met the requirements to practice hypnosis.
When practice of hypnosis is prohibited. “
…
so long as such person does not hold herself or himself out to the public as possessing a license issued pursuant to this chapter or use a title protected by this chapter.”
Slide69CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Practice of Sex Therapy
Only a person licensed by this chapter who meets the qualifications set by the board may hold herself or himself out as a sex therapist.
Q
ualifications
shall be defined by rule by the board.
Slide70CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Practice of Juvenile Sex Offender Therapy
Only a person licensed by this chapter who meets the qualifications set by the board may hold him or herself out as a juvenile sexual offender therapist.
Slide71CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Certified master social worker.—
Mainly focuses on case management
Qualifications
Slide72CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Confidentiality and Privilege:
Interactive Discussion
What are they?
What is the difference between them?
Who “owns” each, and what does that mean?
Side Note:
What is “Fiduciary Duty?
A
Fiduciary Duty
is an obligation to act
in the best interest of another party.
Slide73CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Confidentiality and Privilege:
Interactive Discussion
You see a 12 year old child in therapy. The parents are divorced. The mother brings the child in for individual therapy. The father calls & wants you to tell him what the child is saying in sessions and wants the notes. What do you do? What don’t you do?
Slide74456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
Any health care practitioner licensed by the department or a board within the department who makes a physical or mental examination of, or administers treatment or dispenses legend drugs to, any person shall, upon request of such person or the person’s legal representative, furnish, in a timely manner, without delays for legal review, copies of all reports and records relating to such examination or treatment, including X rays and insurance information.
However, when a patient’s psychiatric, chapter 490 psychological, or chapter 491 psychotherapeutic records are requested by the patient or the patient’s legal representative, the health care practitioner may provide a report of examination and treatment in lieu of copies of records. Upon a patient’s written request, complete copies of the patient’s psychiatric records shall be provided directly to a subsequent treating psychiatrist. The furnishing of such report or copies shall not be conditioned upon payment of a fee for services rendered.
(My emphasis)
CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS
CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Slide75CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Confidentiality and Privileged Communications
Any communication between any person licensed or certified under this chapter and her or his patient or client shall be confidential. This secrecy may be waived under the following conditions:
(1) When the person licensed or certified under this chapter is a party defendant to a civil, criminal, or disciplinary action arising from a complaint filed by the patient or client, in which case the waiver shall be limited to that action.
Slide76CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Confidentiality and Privileged Communications, Continued
(2) When the patient or client agrees to the waiver, in writing, or,
when more than one person in a family is receiving therapy, when each family member agrees to the waiver, in writing.
(3) When, in the clinical judgment of the person licensed or certified under this chapter, there is a clear and immediate probability of physical harm to the patient or client, to other individuals, or to society and the person licensed or certified
Slide77CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Confidentiality and Privileged Communications, Continued
under this chapter communicates the information only to the potential victim, appropriate family member, or law enforcement or other appropriate authorities.
There shall be no liability on the part of, and no cause of action of any nature shall arise against, a person licensed or certified under this chapter for the disclosure of otherwise confidential communications under this subsection.
Slide78CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Records
Requirement to maintain records.
Each psychotherapist who provides services as defined in this chapter shall maintain records. The board may adopt rules defining the minimum requirements for records and reports, including content, length of time records shall be maintained, and transfer of either the records or a report of such records to a subsequent treating practitioner or other individual with written consent of the client or clients.
Rules defining the minimum requirements for records and reports, including:
C
ontent
,
Length of time records shall be maintained – (7 years)
Transfer of either the records or a report of such records to a subsequent treating practitioner or other individual with written consent of the client or clients.
See Rule 64B4
Slide79CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Records
Requirement to maintain records.
Each psychotherapist who provides services as defined in this chapter shall maintain records. The board may adopt rules defining the minimum requirements for records and reports, including content, length of time records shall be maintained, and transfer of either the records or a report of such records to a subsequent treating practitioner or other individual with written consent of the client or clients.
Rules defining the minimum requirements for records and reports, including:
C
ontent
,
Length of time records shall be maintained – (7 years)
Transfer of either the records or a report of such records to a subsequent treating practitioner or other individual with written consent of the client or clients.
See Rule 64B4
Slide80CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Display of License;
Use of Professional Title on Promotional Materials
A person licensed under this chapter as a clinical social worker, marriage and family therapist, or mental health counselor, or certified as a master social worker shall conspicuously display the valid license issued by the department or a true copy thereof at each location at which the licensee practices his or her profession.
Requirements to use titles & credentials
Slide81CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Display of License;
Use of Professional Title on Promotional Materials
A licensed clinical social worker shall include the words “licensed clinical social worker” or the letters “LCSW” on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the licensee.
2. A licensed marriage and family therapist shall include the words “licensed marriage and family therapist” or the letters “LMFT” on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the licensee.
3. A licensed mental health counselor shall include the words “licensed mental health counselor” or the letters “LMHC” on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the licensee.
Slide82CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Display of License;
Use of Professional Title on Promotional Materials
A person registered under this chapter as a clinical social worker intern, marriage and family therapist intern, or mental health counselor intern shall conspicuously display the valid registration issued by the department or a true copy thereof at each location at which the registered intern is completing the experience requirements.
(b) A registered clinical social worker intern shall include the words “registered clinical social worker intern,” a registered marriage and family therapist intern shall include the words “registered marriage and family therapist intern,” and a registered mental health counselor intern shall include the words “registered mental health counselor intern” on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the registered intern.
An intern may NOT use the letters (ex: RMHI) as if it were a credential.
Slide83CHAPTER 491 - REGULATION OF PROFESSIONS AND OCCUPATIONS CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES
Display of License;
Use of Professional Title on Promotional Materials
Use of Titles and Prohibitions regarding use of titles & credentials
It is a First degree misdemeanor to use the title/credentials unless the practitioner qualifies as having that license.
Slide84CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
Definitions:
Board
Consumer member(3)
Department
Health care practitioner
License
Licensee
Profession
Slide85CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
Legislative Intent:
Need to preserve the health, safety and welfare of the public.
Requirements
General licensing provisions,
Limited licenses,
Educational requirements,
Active and inactive licenses,
Confidentiality in connection with HIV/AIDS,
Impaired practitioners, and discipline.
How and why the various professions are regulated
Whether there is a need to continue regulation, and to what degree;
Whether or not consumer protection is adequate, and how it can be improved;
Whether there is consistency between the various practice acts;
Whether unlicensed activity is adequately enforced.
Requirement for post-licensure 2-hour course in domestic violence
Requirement for post-licensure 3-hour course in the FL Laws & Rules Review (beginning in 2019) to be required every 3rd biennium.
Note
: Many sections in Chapter 456 do not pertain to us,
Slide86CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.015 Limited licenses.
456.016 Use of professional testing services
456.017 Examinations.
456.018 Penalty for theft or reproduction of an examination
456.024 Members of Armed Forces in good standing with administrative boards or the department; spouses; licensure
456.0241 Temporary certificate for active duty military health care practitioners
456.025 Fees; receipts; disposition
456.027 Education; accreditation
456.029 Education; substituting demonstration of competency for clock-hour requirements
Slide87CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.031 Requirement for instruction on domestic violence
456.033 Requirement for instruction for certain licensees on HIV and AIDS
456.035 Address of record
456.036 Licenses; active and inactive status; delinquency
456.0361 Compliance with continuing education requirements
456.038 Renewal and cancellation notices
456.041 Practitioner profile; creation
456.041 Practitioner profile; creation.
456.042 Practitioner profiles; update.
456.043 Practitioner profiles; data storage.
456.046 Practitioner profiles; confidentiality.
456.052 Disclosure of financial interest by production.
Slide88CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.054 Kickbacks prohibited.
—
(1) As used in this section, the term “kickback” means a remuneration or payment, by or on behalf of a provider of health care services or items, to any person as an incentive or inducement to refer patients for past or future services or items, when the payment is not tax deductible as an ordinary and necessary expense.
(2) It is unlawful for any health care provider or any provider of health care services to offer, pay, solicit, or receive a kickback, directly or indirectly, overtly or covertly, in cash or in kind, for referring or soliciting patients.
(3) Violations of this section shall be considered patient brokering and shall be punishable as provided in s. 817.505.
Slide89CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
As used in this section, the term “records owner” means any health care practitioner who generates a medical record after making a physical or mental examination of, or administering treatment or dispensing legend drugs to, any person; any health care practitioner to whom records are transferred by a previous records owner; or any health care practitioner’s employer, including, but not limited to, group practices and staff-model health maintenance organizations, provided the employment contract or agreement between the employer and the health care practitioner designates the employer as the records owner.
Slide90CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
As used in this section, the term “records custodian” means any person or entity that:
(a) Maintains documents that are authorized in subsection (2); or
(b) Obtains medical records from a records owner.
(4) Any health care practitioner’s employer who is a records owner and any records custodian shall maintain records or documents as provided under the confidentiality and disclosure requirements of this section.
Slide91CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
Any health care practitioner licensed by the department or a board within the department who makes a physical or mental examination of, or administers treatment or dispenses legend drugs to, any person shall, upon request of such person or the person’s legal representative, furnish, in a timely manner, without delays for legal review, copies of all reports and records relating to such examination or treatment, including X rays and insurance information. However, when a patient’s psychiatric, chapter 490 psychological, or chapter 491 psychotherapeutic records
Slide92CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
are requested by the patient or the patient’s legal representative, the health care practitioner may provide a report of examination and treatment in lieu of copies of records. Upon a patient’s written request, complete copies of the patient’s psychiatric records shall be provided directly to a subsequent treating psychiatrist. The furnishing of such report or copies shall not be conditioned upon payment of a fee for services rendered
.
Slide93CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
Except as otherwise provided in this section and in s. 440.13(4)(c), such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient, the patient’s legal representative, or other health care practitioners and providers involved in the patient’s care or treatment, except upon written authorization from the patient. However, such records may be furnished without written authorization under the following circumstances:
1. To any person, firm, or corporation that has procured or furnished such care or treatment with the patient’s consent.
Slide94CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
When compulsory physical examination is made pursuant to Rule 1.360, Florida Rules of Civil Procedure, in which case copies of the medical records shall be furnished to both the defendant and the plaintiff.
3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.
4. For statistical and scientific research, provided the information is abstracted in such a way as to protect the identity of the patient or provided written permission is received from the patient or the patient’s legal representative.
Slide95CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
Information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient is confidential and may be disclosed only to other health care practitioners and providers involved in the care or treatment of the patient, if allowed by written authorization from the patient, or if compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.
Slide96CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
Notwithstanding paragraphs (a)-(c), information disclosed by a patient to a health care practitioner or provider or records created by the practitioner or provider during the course of care or treatment of the patient may be disclosed:
1. In a medical negligence action or administrative proceeding if the health care practitioner or provider is or reasonably expects to be named as a defendant;
2. Pursuant to s. 766.106(6)(b)5.;
3. As provided for in the authorization for release of protected health information filed by the patient pursuant to s. 766.1065; or
Slide97CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
To the health care practitioner’s or provider’s attorney during a consultation if the health care practitioner or provider reasonably expects to be deposed, to be called as a witness, or to receive formal or informal discovery requests in a medical negligence action,
presuit
investigation of medical negligence, or administrative proceeding.
Slide98CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
If the medical liability insurer of a health care practitioner or provider described in this subparagraph represents a defendant or prospective defendant in a medical negligence action:
(I) The insurer for the health care practitioner or provider may not contact the health care practitioner or provider to recommend that the health care practitioner or provider seek legal counsel relating to a particular matter.
(II) The insurer may not select an attorney for the practitioner or the provider. However, the insurer may recommend attorneys who do not represent a defendant or prospective defendant in the matter if the practitioner or provider contacts an insurer relating to the
Slide99CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
practitioner or provider contacts an insurer relating to the practitioner’s or provider’s potential involvement in the matter.
(III) The attorney selected by the practitioner or the provider may not, directly or indirectly, disclose to the insurer any information relating to the representation of the practitioner or the provider other than the categories of work performed or the amount of time applicable to each category for billing or reimbursement purposes. The attorney selected by the practitioner or the provider may represent the insurer or other
insureds
of the insurer in an unrelated matter.
Slide100CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
The department may obtain patient records and insurance information pursuant to a subpoena without written authorization from the patient if the department and the probable cause panel of the appropriate board, if any, find reasonable cause to believe that a health care practitioner has provided inadequate medical care based on termination of insurance and also find that appropriate, reasonable attempts were made to obtain a patient release.
The department may obtain patient records, billing records, insurance information, provider contracts, and all attachments thereto pursuant
Slide101CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
to a subpoena without written authorization from the patient if the department and probable cause panel of the appropriate board, if any, find reasonable cause to believe that a health care practitioner has submitted a claim, statement, or bill using a billing code that would result in payment greater in amount than would be paid using a billing code that accurately describes the services performed, requested payment for services that were not performed by that health care practitioner or from another person, solicited patients fraudulently, received a kickback as defined in s. 456.054,
Slide102CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
violated the patient brokering provisions of s. 817.505, or presented or caused to be presented a false or fraudulent insurance claim within the meaning of s. 817.234(1)(a), and also find that, within the meaning of s. 817.234(1)(a)
Slide103CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
Notwithstanding subparagraphs 1.-3., when the department investigates a professional liability claim or undertakes action pursuant to s. 456.049 or s. 627.912, the department may obtain patient records pursuant to a subpoena without written authorization from the patient if the patient refuses to cooperate or if the department attempts to obtain a patient release and the failure to obtain the patient records would be detrimental to the investigation.
(b) Patient records, billing records, insurance information, provider contracts, and all attachments thereto obtained by the department pursuant to this subsection shall be used solely for the purpose of the
Slide104CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
department and the appropriate regulatory board in disciplinary proceedings. This section does not limit the assertion of the psychotherapist-patient privilege under s. 90.503 in regard to records of treatment for mental or nervous disorders by a medical practitioner licensed pursuant to chapter 458 or chapter 459 who has primarily diagnosed and treated mental and nervous disorders for a period of not less than 3 years, inclusive of psychiatric residency. However, the health care practitioner shall release records of treatment for medical conditions even if the health care practitioner has also treated the patient for mental or nervous disorders. If the department has found
Slide105CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
department and the appropriate regulatory board in disciplinary proceedings. This section does not limit the assertion of the psychotherapist-patient privilege under s. 90.503 in regard to records of treatment for mental or nervous disorders by a medical practitioner licensed pursuant to chapter 458 or chapter 459 who has primarily diagnosed and treated mental and nervous disorders for a period of not less than 3 years, inclusive of psychiatric residency. However, the health care practitioner shall release records of treatment for medical conditions even if the health care practitioner has also treated the patient for mental or nervous disorders. If the department has found
Slide106CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
reasonable cause under this section and the psychotherapist-patient privilege is asserted, the department may petition the circuit court for an in camera review of the records by expert medical practitioners appointed by the court to determine if the records or any part thereof are protected under the psychotherapist-patient privilege.
Note
: “In Camera” means: In the judge’s chambers and for the Judge to determine whom can see the information.
Slide107CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
All records owners shall develop and implement policies, standards, and procedures to protect the confidentiality and security of the medical record. Employees of records owners shall be trained in these policies, standards, and procedures.
(11) Records owners are responsible for maintaining a record of all disclosures of information contained in the medical record to a third party, including the purpose of the disclosure request. The record of disclosure may be maintained in the medical record. The third party to whom information is disclosed is prohibited from further disclosing any information in the medical record without the expressed written consent of the patient or the patient’s legal representative.
Slide108CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
Notwithstanding the provisions of s. 456.058, records owners shall place an advertisement in the local newspaper or notify patients, in writing, when they are terminating practice, retiring, or relocating, and no longer available to patients, and offer patients the opportunity to obtain a copy of their medical record.
Notwithstanding the provisions of s. 456.058, records owners shall notify the appropriate board office when they are terminating practice, retiring, or relocating, and no longer available to patients, specifying who the new records owner is and where medical records can be found.
Slide109CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
Whenever a records owner has turned records over to a new records owner, the new records owner shall be responsible for providing a copy of the complete medical record, upon written request, of the patient or the patient’s legal representative.
Licensees in violation of the provisions of this section shall be disciplined by the appropriate licensing authority.
The Attorney General is authorized to enforce the provisions of this section for records owners not otherwise licensed by the state, through injunctive relief and fines not to exceed $5,000 per violation.
Slide110CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
A health care practitioner or records owner furnishing copies of reports or records or making the reports or records available for digital scanning pursuant to this section shall charge no more than the actual cost of copying, including reasonable staff time, or the amount specified in administrative rule by the appropriate board, or the department when there is no board.
Nothing in this section shall be construed to limit health care practitioner consultations, as necessary.
Slide111CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
A records owner shall release to a health care practitioner who, as an employee of the records owner, previously provided treatment to a patient, those records that the health care practitioner actually created or generated when the health care practitioner treated the patient. Records released pursuant to this subsection shall be released only upon written request of the health care practitioner and shall be limited to the notes, plans of care, and orders and summaries that were actually generated by the health care practitioner requesting the record.
We cannot release other info that was not generated directly by us.
Slide112CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.
—
The board with department approval, or the department when there is no board, may temporarily or permanently appoint a person or entity as a custodian of medical records in the event of the death of a practitioner, the mental or physical incapacitation of a practitioner, or the abandonment of medical records by a practitioner. Such custodian shall comply with this section. The department may contract with a third party to provide these services under the confidentiality and disclosure requirements of this section.
Slide113CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.0575 Duty to notify patients.
—
Every licensed health care practitioner shall inform each patient, or an individual identified pursuant to s. 765.401(1), in person about adverse incidents that result in serious harm to the patient. Notification of outcomes of care that result in harm to the patient under this section does not constitute an acknowledgment of admission of liability, nor can such notifications be introduced as evidence.
Slide114CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.0575 Duty to notify patients.
—
Upon request by a patient, before providing nonemergency medical services in a facility licensed under chapter 395, a health care practitioner shall provide, in writing or by electronic means, a good faith estimate of reasonably anticipated charges to treat the patient’s condition at the facility. The health care practitioner shall provide the estimate to the patient within 7 business days after receiving the request and is not required to adjust the estimate for any potential insurance coverage.
Slide115CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.0575 Duty to notify patients.
—
The health care practitioner shall inform the patient that the patient may contact his or her health insurer or health maintenance organization for additional information concerning cost-sharing responsibilities. The health care practitioner shall provide information to uninsured patients and insured patients for whom the practitioner is not a network provider or preferred provider which discloses the practitioner’s financial assistance policy, including the application process, payment plans, discounts, or other available assistance, and the practitioner’s charity care policy and collection procedures.
Slide116CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.0575 Duty to notify patients.
—
Such estimate does not preclude the actual charges from exceeding the estimate. Failure to provide the estimate in accordance with this subsection, without good cause, shall result in disciplinary action against the health care practitioner and a daily fine of $500 until the estimate is provided to the patient. The total fine may not exceed $5,000
Slide117CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.058 Disposition of records of deceased practitioners or practitioners relocating or terminating practice.
—
Each board created under the provisions of chapter 457, chapter 458, chapter 459, chapter 460, chapter 461, chapter 463, part I of chapter 464, chapter 465, chapter 466, part I of chapter 484, chapter 486, chapter 490, or chapter 491, and the department under the provisions of chapter 462, shall provide by rule for the disposition, under that chapter, of the medical records or records of a psychological nature of practitioners which are in existence at the time the practitioner dies, terminates practice, or relocates and is no longer available to patients and which records pertain to the practitioner’s patients. The rules shall provide that the records be retained for at least 2 years after the practitioner’s death, termination of practice, or relocation. In the case of the death of the practitioner, the rules shall provide for the disposition of such records by the estate of the practitioner.
Slide118CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.061 Practitioner disclosure of confidential information; immunity from civil or criminal liability.
—
(1) A practitioner regulated through the Division of Medical Quality Assurance of the department shall not be civilly or criminally liable for the disclosure of otherwise confidential information to a sexual partner or a needle-sharing partner under the following circumstances:
(a) If a patient of the practitioner who has tested positive for human immunodeficiency virus discloses to the practitioner the identity of a sexual partner or a needle-sharing partner;
(b) The practitioner recommends the patient notify the sexual partner or the needle-sharing partner of the positive test and refrain from engaging in sexual or drug activity in a manner likely to transmit the virus and the patient refuses, and the practitioner informs the patient of his or her intent to inform the sexual partner or needle-sharing partner; and
Slide119CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.061 Practitioner disclosure of confidential information; immunity from civil or criminal liability.
—
Cont’d
(c) If pursuant to a perceived civil duty or the ethical guidelines of the profession, the practitioner reasonably and in good faith advises the sexual partner or the needle-sharing partner of the patient of the positive test and facts concerning the transmission of the virus.
However, any notification of a sexual partner or a needle-sharing partner pursuant to this section shall be done in accordance with protocols developed pursuant to rule of the Department of Health.
(2) Notwithstanding the foregoing, a practitioner regulated through the Division of Medical Quality Assurance of the department shall not be civilly or criminally liable for failure to disclose information relating to a positive test result for human immunodeficiency virus of a patient to a sexual partner or a needle-sharing partner.
Slide120CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.062 Advertisement by a health care practitioner of free or discounted services; required statement.
—
In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care practitioner licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 464, chapter 465, chapter 466, chapter 467, chapter 478, chapter 483, part I of chapter 484, chapter 486, chapter 490, or chapter 491, the following statement shall appear in capital letters clearly distinguishable from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT THAT IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT. However, the required statement shall not be necessary as an accompaniment to an advertisement of a licensed health care practitioner defined by this section if the advertisement appears in a classified directory the primary purpose of which is to provide products and services at free, reduced, or discounted prices to consumers and in which the statement prominently appears in at least one place.
Slide121CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.062 Advertisement by a health care practitioner of free or discounted services; required statement.
—
In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care practitioner licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 464, chapter 465, chapter 466, chapter 467, chapter 478, chapter 483, part I of chapter 484, chapter 486, chapter 490, or chapter 491, the following statement shall appear in capital letters clearly distinguishable from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT THAT IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT. However, the required statement shall not be necessary as an accompaniment to an advertisement of a licensed health care practitioner defined by this section if the advertisement appears in a classified directory the primary purpose of which is to provide products and services at free, reduced, or discounted prices to consumers and in which the statement prominently appears in at least one place.
Slide122CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.062 Advertisement by a health care practitioner of free or discounted services; required statement.
—
Continued ---
However, the required statement shall not be necessary as an accompaniment to an advertisement of a licensed health care practitioner defined by this section if the advertisement appears in a classified directory the primary purpose of which is to provide products and services at free, reduced, or discounted prices to consumers and in which the statement prominently appears in at least one place.
Slide123CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.063 Sexual misconduct; disqualification for license, certificate, or registration.
—
(1) Sexual misconduct in the practice of a health care profession means violation of the professional relationship through which the health care practitioner uses such relationship to engage or attempt to engage the patient or client, or an immediate family member, guardian, or representative of the patient or client in, or to induce or attempt to induce such person to engage in, verbal or physical sexual activity outside the scope of the professional practice of such health care profession. Sexual misconduct in the practice of a health care profession is prohibited.
(2) Each board within the jurisdiction of the department, or the department if there is no board, shall refuse to admit a candidate to any examination and refuse to issue a license, certificate, or registration to any applicant if the candidate or applicant has:
Slide124CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.063 Sexual misconduct; disqualification for license, certificate, or registration.
—
Cont’d
(a) Had any license, certificate, or registration to practice any profession or occupation revoked or surrendered based on a violation of sexual misconduct in the practice of that profession under the laws of any other state or any territory or possession of the United States and has not had that license, certificate, or registration reinstated by the licensing authority of the jurisdiction that revoked the license, certificate, or registration; or
(b) Committed any act in any other state or any territory or possession of the United States which if committed in this state would constitute sexual misconduct.
Slide125CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.063 Sexual misconduct; disqualification for license, certificate, or registration.
—
Cont’d
For purposes of this subsection, a licensing authority’s acceptance of a candidate’s relinquishment of a license which is offered in response to or in anticipation of the filing of administrative charges against the candidate’s license constitutes the surrender of the license.
(3) Licensed health care practitioners shall report allegations of sexual misconduct to the department, regardless of the practice setting in which the alleged sexual misconduct occurred.
Slide126CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.0635 Health care fraud; disqualification for license, certificate, or registration.
—
(1) Health care fraud in the practice of a health care profession is prohibited.
(2) Each board within the jurisdiction of the department, or the department if there is no board,
shall refuse to admit a candidate to any examination and refuse to issue a license, certificate, or registration to any applicant if the candidate or applicant or any principal, officer, agent, managing employee, or affiliated person of the applicant:
If they have been convicted, or are in the process of prosecution for fraud.
(4) Licensed health care practitioners shall report allegations of health care fraud to the department, regardless of the practice setting in which the alleged health care fraud occurred.
Slide127CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.0635 Health care fraud; disqualification for license, certificate, or registration.
—
(5) The acceptance by a licensing authority of a licensee’s relinquishment of a license which is offered in response to or anticipation of the filing of administrative charges alleging health care fraud or similar charges constitutes the permanent revocation of the license.
Slide128CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.065 Unlicensed practice of a health care profession; intent; cease and desist notice; penalties; enforcement; citations; fees; allocation and disposition of moneys collected.
—
(1) It is the intent of the Legislature that vigorous enforcement of licensure regulation for all health care professions is a state priority in order to protect Florida residents and visitors from the potentially serious and dangerous consequences of receiving medical and health care services from unlicensed persons whose professional education and training and other relevant qualifications have not been approved through the issuance of a license by the appropriate regulatory board or the department when there is no board. The unlicensed practice of a health care profession or the performance or delivery of medical or health care services to patients in this state without a valid, active license to practice that profession, regardless of the means of the performance or delivery of such services, is strictly prohibited.
Slide129CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.065 Unlicensed practice of a health care profession; intent; cease and desist notice; penalties; enforcement; citations; fees; allocation and disposition of moneys collected.
—
(1) It is the intent of the Legislature that vigorous enforcement of licensure regulation for all health care professions is a state priority in order to protect Florida residents and visitors from the potentially serious and dangerous consequences of receiving medical and health care services from unlicensed persons whose professional education and training and other relevant qualifications have not been approved through the issuance of a license by the appropriate regulatory board or the department when there is no board.
Slide130CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.065 Unlicensed practice of a health care profession; intent; cease and desist notice; penalties; enforcement; citations; fees; allocation and disposition of moneys collected.
—
The unlicensed practice of a health care profession or the performance or delivery of medical or health care services to patients in this state without a valid, active license to practice that profession, regardless of the means of the performance or delivery of such services, is strictly prohibited.
Slide131CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.065 Unlicensed practice of a health care profession; intent; cease and desist notice; penalties; enforcement; citations; fees; allocation and disposition of moneys collected.
—
Continued --
(b) In addition to the remedies under paragraph (a), the department may impose by citation an administrative penalty not to exceed $5,000 per incident.
…
The penalty shall be a fine of not less than $500 nor more than $5,000 as established by rule of the department.
Slide132CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.065 Unlicensed practice of a health care profession; intent; cease and desist notice; penalties; enforcement; citations; fees; allocation and disposition of moneys collected.
—
Cont’d
(2) The penalties for unlicensed practice of a health care profession shall include the following:
(a) When the department has probable cause to believe that any person not licensed by the department, or the appropriate regulatory board within the department, has violated any provision of this chapter or any statute that relates to the practice of a profession regulated by the department, or any rule adopted pursuant thereto, the department may issue and deliver to such person a notice to cease and desist from such violation. In addition, the department may issue and deliver a notice to cease and desist to any person who aids and abets the unlicensed practice of a profession by employing such unlicensed person.
(b) In addition to the remedies under paragraph (a), the department may impose by citation an administrative penalty not to exceed $5,000 per incident.
…
The penalty shall be a fine of not less than $500 nor more than $5,000 as established by rule of the department.
Slide133CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.065 Unlicensed practice of a health care profession; intent; cease and desist notice; penalties; enforcement; citations; fees; allocation and disposition of moneys collected.
—
Cont’d
Each day that the unlicensed practice continues after issuance of a notice to cease and desist constitutes a separate violation. The department shall be entitled to recover the costs of investigation and prosecution in addition to the fine levied pursuant to the citation. Service of a citation may be made by personal service or by mail to the subject at the subject’s last known address or place of practice. If the department is required to seek enforcement of the cease and desist or agency order, it shall be entitled to collect its attorney’s fees and costs.
(c) In addition to or in lieu of any other administrative remedy, the department may seek the imposition of a civil penalty through the circuit court for any violation for which the department may issue a notice to cease and desist. The civil penalty shall be no less than $500 and no more than $5,000 for each offense. The court may also award to the prevailing party court costs and reasonable attorney fees and, in the event the department prevails, may also award reasonable costs of investigation and prosecution.
Slide134CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.065 Unlicensed practice of a health care profession; intent; cease and desist notice; penalties; enforcement; citations; fees; allocation and disposition of moneys collected.
—
Cont’d
(d) In addition to the administrative and civil remedies under paragraphs (b) and (c) and in addition to the criminal violations and penalties listed in the individual health care practice acts:
1. It is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, to practice, attempt to practice, or offer to practice a health care profession without an active, valid Florida license to practice that profession. Practicing without an active, valid license also includes practicing on a suspended, revoked, or void license, but does not include practicing, attempting to practice, or offering to practice with an inactive or delinquent license for a period of up to 12 months which is addressed in subparagraph 3. Applying for employment for a position that requires a license without notifying the employer that the person does not currently possess a valid, active license to practice that profession shall be deemed to be an attempt or offer to practice that health care profession without a license.
Slide135CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.065 Unlicensed practice of a health care profession; intent; cease and desist notice; penalties; enforcement; citations; fees; allocation and disposition of moneys collected.
—
Cont’d
Holding oneself out, regardless of the means of communication, as able to practice a health care profession or as able to provide services that require a health care license shall be deemed to be an attempt or offer to practice such profession without a license. The minimum penalty for violating this subparagraph shall be a fine of $1,000 and a minimum mandatory period of incarceration of 1 year.
3. It is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, to practice, attempt to practice, or offer to practice a health care profession with an inactive or delinquent license for any period of time up to 12 months. However, practicing, attempting to practice, or offering to practice a health care profession when that person’s license has been inactive or delinquent for a period of time of 12 months or more shall be a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The minimum penalty for violating this subparagraph shall be a term of imprisonment of 30 days and a fine of $500.
Slide136CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.065 Unlicensed practice of a health care profession; intent; cease and desist notice; penalties; enforcement; citations; fees; allocation and disposition of moneys collected.
—
Cont’d
(3) Because all enforcement costs should be covered by professions regulated by the department, the department shall impose, upon initial licensure and each licensure renewal, a special fee of $5 per licensee to fund efforts to combat unlicensed activity.
456.066
Prosecution
of
criminal
violations
.
—The
department
or
the
appropriate
board
shall
report
any
criminal
violation
of
any
statute
relating
to
the
practice
of
a
profession
regulated
by
the
department
or
appropriate
board
to
the
proper
prosecuting
authority
for prompt
prosecution
.
Slide137CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.072 Grounds for discipline; penalties; enforcement.
—
(1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
(a) Making misleading, deceptive, or fraudulent representations in or related to the practice of the licensee’s profession.
(b) Intentionally violating any rule adopted by the board or the department, as appropriate.
(c) Being convicted or found guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee’s profession.
(e) Failing to comply with the educational course requirements for human immunodeficiency virus and acquired immune deficiency syndrome.
(f) Having a license or the authority to practice any regulated profession revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation that would constitute a violation under Florida law. (g) Having been found liable in a civil proceeding for knowingly filing a false report or complaint with the department against another licensee.
Slide138CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.072 Grounds for discipline; penalties; enforcement.
—
Cont’d
(h) Attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or the board.
(
i
) Except as provided in s. 465.016,
failing to report to the department any person who the licensee knows is in violation of this chapter, the chapter regulating the alleged violator, or the rules of the department or the board.
(j) Aiding, assisting, procuring, employing, or advising any unlicensed person or entity to practice a profession contrary to this chapter, the chapter regulating the profession, or the rules of the department or the board.
Slide139CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.072 Grounds for discipline; penalties; enforcement.
—
Cont’d
(k) Failing to perform any statutory or legal obligation placed upon a licensee.
For purposes of this section, failing to repay a student loan issued or guaranteed by the state or the Federal Government in accordance with the terms of the loan or failing to comply with service scholarship obligations shall be considered a failure to perform a statutory or legal obligation, and the minimum disciplinary action imposed shall be a suspension of the license until new payment terms are agreed upon or the scholarship obligation is resumed, followed by probation for the duration of the student loan or remaining scholarship obligation period, and a fine equal to 10 percent of the defaulted loan amount. Fines collected shall be deposited into the Medical Quality Assurance Trust Fund.
2(1)(k).
Slide140CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.072 Grounds for discipline; penalties; enforcement.
—
Cont’d
(l) Making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, or willfully impeding or obstructing another person to do so. Such reports or records shall include only those that are signed in the capacity of a licensee.
(m) Making deceptive, untrue, or fraudulent representations in or related to the practice of a profession or employing a trick or scheme in or related to the practice of a profession.
Slide141CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.072 Grounds for discipline; penalties; enforcement.
—
Cont’d
(n) Exercising influence on the patient or client for the purpose of financial gain of the licensee or a third party.
(o) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities the licensee knows, or has reason to know, the licensee is not competent to perform.
(p)
Delegating or contracting for the performance of professional responsibilities by a person when the licensee delegating or contracting for performance of the responsibilities knows, or has reason to know, the person is not qualified by training, experience, and authorization when required to perform them.
Slide142CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.072 Grounds for discipline; penalties; enforcement.
—
Cont’d
(q) Violating a lawful order of the department or the board, or failing to comply with a lawfully issued subpoena of the department.
(r) Improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding.
(s) Failing to comply with the educational course requirements for domestic violence.
(t) Failing to identify through written notice, which may include the wearing of a name tag, or orally to a patient the type of license under which the practitioner is practicing. Any advertisement for health care services naming the practitioner must identify the type of license the practitioner holds. This paragraph does not apply to a practitioner while the practitioner is providing services in a facility licensed under chapter 394, chapter 395, chapter 400, or chapter 429.
(u) Failing to comply with the requirements of ss. 381.026 and 381.0261 to provide patients with information about their patient rights and how to file a patient complaint.
Slide143CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.072 Grounds for discipline; penalties; enforcement.
—
Cont’d
(v) Engaging or attempting to engage in sexual misconduct as defined and prohibited in s. 456.063(1).
(w) Failing to comply with the requirements for profiling and credentialing, including, but not limited to, failing to provide initial information, failing to timely provide updated information, or making misleading, untrue, deceptive, or fraudulent representations on a profile, credentialing, or initial or renewal licensure application.
(x) Failing to
report to the board, or the department if there is no board, in writing within 30 days after the licensee has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction
.
(z) Being unable to practice with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.
…
A licensee or
certificateholder
affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he or she can resume the competent practice of his or her profession with reasonable skill and safety to patients.
Slide144CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.072 Grounds for discipline; penalties; enforcement.
—
Cont’d
(
aa
) Testing positive for any drug, as defined in s. 112.0455, on any confirmed
preemployment
or employer-ordered drug screening when the practitioner does not have a lawful prescription and legitimate medical reason for using the drug.
(
dd
) Violating any provision of this chapter, the applicable practice act, or any rules adopted pursuant thereto.
(
ee
) With respect to making a personal injury protection claim as required by s. 627.736, intentionally submitting a claim, statement, or bill that has been “
upcoded
” as defined in s. 627.732.
(Service Animal Certification)
(
ff
) With respect to making a personal injury protection claim as required by s. 627.736, intentionally submitting a claim, statement, or bill for payment of services that were not rendered.
(
hh
) Being terminated from a treatment program for impaired practitioners, which is overseen by an impaired practitioner consultant as described in s. 456.076, for failure to comply, without good cause, with the terms of the monitoring or treatment contract entered into by the licensee, or for not successfully completing any drug treatment or alcohol treatment program.
Slide145CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.072 Grounds for discipline; penalties; enforcement.
—
Cont’d
(ii) Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, under 18 U.S.C. s. 669, ss. 285-287, s. 371, s. 1001, s. 1035, s. 1341, s. 1343, s. 1347, s. 1349, or s. 1518, or 42 U.S.C. ss. 1320a-7b
, relating to the Medicaid program
.
(
jj
) Failing to remit the sum owed to the state for an overpayment from the Medicaid program pursuant to a final order, judgment, or stipulation or settlement.
(
kk
) Being terminated from the state Medicaid program pursuant to s. 409.913, any other state Medicaid program, or the federal Medicare program, unless eligibility to participate in the program from which the practitioner was terminated has been restored.
(
ll
) Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, a crime in any jurisdiction
which relates to health care fraud
.
Slide146CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.072 Grounds for discipline; penalties; enforcement.
—
Cont’d
(2) When the board, or the department when there is no board, finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice act which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties:
(a) Refusal to certify, or to certify with restrictions, an application for a license.
(b) Suspension or permanent revocation of a license.
(c) Restriction of practice or license, including, but not limited to, restricting the licensee from practicing in certain settings, restricting the licensee to work only under designated conditions or in certain settings, restricting the licensee from performing or providing designated clinical and administrative services, restricting the licensee from practicing more than a designated number of hours, or any other restriction found to be necessary for the protection of the public health, safety, and welfare.
Slide147CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.072 Grounds for discipline; penalties; enforcement.
—
Cont’d
(2) When the board, or the department when there is no board, finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice act which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties:
(a) Refusal to certify, or to certify with restrictions, an application for a license.
(b) Suspension or permanent revocation of a license.
(c) Restriction of practice or license, including, but not limited to, restricting the licensee from practicing in certain settings, restricting the licensee to work only under designated conditions or in certain settings, restricting the licensee from performing or providing designated clinical and administrative services, restricting the licensee from practicing more than a designated number of hours, or any other restriction found to be necessary for the protection of the public health, safety, and welfare.
Slide148CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.072 Grounds for discipline; penalties; enforcement.
—
Cont’d
In determining what action is appropriate, the board, or department when there is no board, must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the practitioner. All costs associated with compliance with orders issued under this subsection are the obligation of the practitioner.
(3)(a) Notwithstanding subsection (2), if the ground for disciplinary action is the first-time failure of the licensee to satisfy continuing education requirements established by the board, or by the department if there is no board, the board or department, as applicable, shall issue a citation in accordance with s. 456.077 and assess a fine, as determined by the board or department by rule. In addition, for each hour of continuing education not completed or completed late, the board or department, as applicable, may require the licensee to take 1 additional hour of continuing education for each hour not completed or completed late.
violating
s. 456.072(1)(k).
Slide149CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
(6)
If the board, or the department when there is no board, determines that revocation of a license is the appropriate penalty, the revocation shall be permanent
. However, the board may establish by rule requirements for reapplication by applicants whose licenses have been permanently revoked. The requirements may include, but are not limited to, satisfying current requirements for an initial license.
Slide150CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.0721
Practitioners
in
default
on
student
loan
or
scholarship
obligations
;
investigation
; report.
—
The Department
of
Health
shall
obtain
from
the
United States Department
of
Health and Human Services
information
necessary
to
investigate
and
prosecute
health
care
practitioners
for
failing
to
repay
a student
loan
or
comply
with
scholarship
service
obligations
pursuant
to s. 456.072(1)(k). The
department
shall
obtain
from
the
United States Department
of
Health and Human Services a list
of
default
health
care
practitioners
each
month
,
along
with
the
information
necessary
to
investigate
a
complaint
in
accordance
with
s. 456.073. The
department
may
obtain
evidence
to support
the
investigation
and
prosecution
from
any
financial
institution
or
educational
institution
involved
in providing
the
loan
or
education
to
the
practitioner
. The
department
shall
report to
the
Legislature
as part
of
the
annual
report
required
by s. 456.026,
the
number
of
practitioners
in
default
,
along
with
the
results
of
the
department’s
investigations
and
prosecutions
, and
the
amount
of
fines
collected
from
practitioners
prosecuted
for
violating
s. 456.072(1)(k).
Slide151CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.073 Disciplinary proceedings.
— Cont’d
In order to determine legal sufficiency, the department may require supporting information or documentation. The department may investigate, and
the department or the appropriate board may take appropriate final action on, a complaint even though the original complainant withdraws it or otherwise indicates a desire not to cause the complaint to be investigated or prosecuted to completion
.
The department may investigate an anonymous complaint if the complaint is in writing and is legally sufficient, if the alleged violation of law or rules is substantial, and if the department has reason to believe, after preliminary inquiry, that the violations alleged in the complaint are true
. The department may investigate a complaint made by a confidential informant if the complaint is legally sufficient, if the alleged violation of law or rule is substantial, and if the department has reason to believe, after preliminary inquiry, that the allegations of the complainant are true
.
Slide152CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.074 Certain health care practitioners; immediate suspension of license.
—
Cont’d
(4) Upon receipt of information that a Florida-licensed health care practitioner has defaulted on a student loan issued or guaranteed by the state or the Federal Government, the department shall notify the licensee by certified mail that he or she shall be subject to immediate suspension of license unless, within 45 days after the date of mailing, the licensee provides proof that new payment terms have been agreed upon by all parties to the loan. The department shall issue an emergency order suspending the license of any licensee who, after 45 days following the date of mailing from the department, has failed to provide such proof. Production of such proof shall not prohibit the department from proceeding with disciplinary action against the licensee pursuant to s. 456.073.
Slide153CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.074 Certain health care practitioners; immediate suspension of license.
—
Cont’d
The department may issue an emergency order suspending or restricting the license of any health care practitioner as defined in s. 456.001(4) who tests positive for any drug on any government or private sector pre-employment or employer-ordered confirmed drug test, as defined in s. 112.0455, when the practitioner does not have a lawful prescription and legitimate medical reason for using such drug. The practitioner shall be given 48 hours from the time of notification to the practitioner of the confirmed test result to produce a lawful prescription for the drug before an emergency order is issued.
Slide154CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.072 Grounds for discipline; penalties; enforcement.
—
Continues with all of the provisions in detail as to what will happen if we do not play by the rules.
Remember – Lawyers are familiar with the law, and know where to look things up. You need to know too!
Slide155CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.41 Complementary or alternative health care treatments.
—
(1) LEGISLATIVE INTENT.—It is the intent of the Legislature that citizens be able to make informed choices for any type of health care they deem to be an effective option for treating human disease, pain, injury, deformity, or other physical or mental condition. It is the intent of the Legislature that citizens be able to choose from all health care options, including the prevailing or conventional treatment methods as well as other treatments designed to complement or substitute for the prevailing or conventional treatment methods. It is the intent of the Legislature that health care practitioners be able to offer complementary or alternative health care treatments with the same requirements, provisions, and liabilities as those associated with the prevailing or conventional treatment methods.
(2) DEFINITIONS.—As used in this section, the term:
(a) “Complementary or alternative health care treatment” means any treatment that is designed to provide patients with an effective option to the prevailing or conventional treatment methods associated with the services provided by a health care practitioner. Such a treatment may be provided in addition to or in place of other treatment options.
Slide156CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.41 Complementary or alternative health care treatments.
—
Cont’d
(b) “Health care practitioner” means any health care practitioner as defined in s. 456.001(4).
(3)
COMMUNICATION OF TREATMENT ALTERNATIVES.—A health care practitioner who offers to provide a patient with a complementary or alternative health care treatment must inform the patient of the nature of the treatment and must explain the benefits and risks associated with the treatment to the extent necessary for the patient to make an informed and prudent decision regarding such treatment option
. In compliance with this subsection:
(a) The health care practitioner must inform the patient of the practitioner’s education, experience, and credentials in relation to the complementary or alternative health care treatment option.
(b) The health care practitioner may, in his or her discretion, communicate the information orally or in written form directly to the patient or to the patient’s legal representative.
Slide157CHAPTER 456 -
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
456.41 Complementary or alternative health care treatments.
—
Cont’d
(c)
The health care practitioner may, in his or her discretion and without restriction, recommend any mode of treatment that is, in his or her judgment, in the best interests of the patient, including complementary or alternative health care treatments, in accordance with the provisions of his or her license.
(4) RECORDS.—Every health care practitioner providing a patient with a complementary or alternative health care treatment must indicate in the patient’s care record the method by which the requirements of subsection (3) were met.
(5) EFFECT.—This section does not modify or change the scope of practice of any licensees of the department, nor does it alter in any way the provisions of the individual practice acts for those licensees, which require licensees to practice within their respective standards of care and which prohibit fraud and exploitation of patients.
Slide158CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.001 Purposes and intent; personnel standards and screening.
—
(1) PURPOSES OF CHAPTER.—The purposes of this chapter are:
(a) To provide for the care, safety, and protection of children in an environment that fosters healthy social, emotional, intellectual, and physical development; to ensure secure and safe custody; to promote the health and well-being of all children under the state’s care; and to prevent the occurrence of child abuse, neglect, and abandonment.
(b)
To recognize that most families desire to be competent caregivers and providers for their children and that children achieve their greatest potential when families are able to support and nurture the growth and development of their children. Therefore, the Legislature finds that policies and procedures that provide for prevention and intervention through the department’s child protection system should be based on the following principles:
Slide159CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.001 Purposes and intent; personnel standards and screening.
—
Cont’d
1. The health and safety of the children served shall be of paramount concern.
2. The prevention and intervention should engage families in constructive, supportive, and
nonadversarial
relationships.
3. The prevention and intervention should intrude as little as possible into the life of the family, be focused on clearly defined objectives, and keep the safety of the child or children as the paramount concern.
4. The prevention and intervention should be based upon outcome evaluation results that demonstrate success in protecting children and supporting families.
(c) To provide a child protection system that reflects a partnership between the department, other agencies, the courts, law enforcement agencies, service providers, and local communities.
Slide160CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.001 Purposes and intent; personnel standards and screening.
—
Cont’d
To provide a child protection system that is sensitive to the social and cultural diversity of the state.
(e) To provide procedures which allow the department to respond to reports of child abuse, abandonment, or neglect in the most efficient and effective manner that ensures the health and safety of children and the integrity of families.
(f)
To preserve and strengthen the child’s family ties whenever possible, removing the child from parental custody only when his or her welfare cannot be adequately safeguarded without such removal.
(g) To ensure that the parent or legal custodian from whose custody the child has been taken assists the department to the fullest extent possible in locating relatives suitable to serve as caregivers for the child and provides all medical and educational information, or consent for access thereto, needed to help the child.
(h)
To ensure that permanent placement with the biological or adoptive family is achieved as soon as possible for every child in foster care and that no child remains in foster care longer than 1 year.
Slide161CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.001 Purposes and intent; personnel standards and screening.
—
Cont’d
(
i
) To secure for the child, when removal of the child from his or her own family is necessary, custody, care, and discipline as nearly as possible equivalent to that which should have been given by the parents; and to ensure, in all cases in which a child must be removed from parental custody, that the child is placed in an approved relative home, licensed foster home, adoptive home, or independent living program that provides the most stable and potentially permanent living arrangement for the child, as determined by the court. All placements shall be in a safe environment where drugs and alcohol are not abused.
(j) To ensure that, when reunification or adoption is not possible, the child will be prepared for alternative permanency goals or placements, to include, but not be limited to, long-term foster care, independent living, custody to a relative on a permanent basis with or without legal guardianship, or custody to a foster parent or legal custodian on a permanent basis with or without legal guardianship.
Slide162CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.001 Purposes and intent; personnel standards and screening.
—
Cont’d
(k)
To make every possible effort, if two or more children who are in the care or under the supervision of the department are siblings, to place the siblings in the same home; and in the event of permanent placement of the siblings, to place them in the same adoptive home or, if the siblings are separated while under the care or supervision of the department or in a permanent placement, to keep them in contact with each other.
(l) To provide judicial and other procedures to assure due process through which children, parents, and guardians and other interested parties are assured fair hearings by a respectful and respected court or other tribunal and the recognition, protection, and enforcement of their constitutional and other legal rights, while ensuring that public safety interests and the authority and dignity of the courts are adequately protected.
(m) To ensure that children under the jurisdiction of the courts are provided equal treatment with respect to goals, objectives, services, and case plans, without regard to the location of their placement. It is the further intent of the Legislature that, when children are removed from their homes, disruption to their education be minimized to the extent possible.
Slide163CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.001 Purposes and intent; personnel standards and screening.
—
Cont’d
(3)GENERAL PROTECTIONS FOR CHILDREN.—It is a purpose of the Legislature that the children of this state be provided with the following protections:
(a) Protection from abuse, abandonment, neglect, and exploitation.
(b) A permanent and stable home.
(c) A safe and nurturing environment which will preserve a sense of personal dignity and integrity.
(d) Adequate nutrition, shelter, and clothing.
(e) Effective treatment to address physical, social, and emotional needs, regardless of geographical location.
(f) Access to sufficient supports and services for medically complex children to allow them to remain in the least restrictive and most nurturing environment, which includes services in an amount and scope comparable to those services the child would receive in out-of-home care placement.
(g) Equal opportunity and access to quality and effective education, which will meet the individual needs of each child, and to recreation and other community resources to develop individual abilities.
(h) Access to preventive services.
(
i
) An independent, trained advocate, when intervention is necessary and a skilled guardian or caregiver in a safe environment when alternative placement is necessary.
Slide164CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.001 Purposes and intent; personnel standards and screening.
—
Cont’d
(
i
) An independent, trained advocate, when intervention is necessary and a skilled guardian or caregiver in a safe environment when alternative placement is necessary.
(4) SERVICES FOR MEDICALLY COMPLEX CHILDREN.—The department shall maintain a program of family-centered services and supports for medically complex children. The purpose of the program is to prevent abuse and neglect of medically complex children while enhancing the capacity of families to provide for their children’s needs. Program services must include outreach, early intervention, and the provision of other supports and services to meet the child’s needs. The department shall collaborate with all relevant state and local agencies to provide needed services.
Slide165CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.001 Purposes and intent; personnel standards and screening.
—
Cont’d
(5) SEXUAL EXPLOITATION SERVICES.—
(a) The Legislature recognizes that child sexual exploitation is a serious problem nationwide and in this state. The children at greatest risk of being sexually exploited are runaways and throwaways. Many of these children have a history of abuse and neglect. The vulnerability of these children starts with isolation from family and friends. Traffickers maintain control of child victims through psychological manipulation, force, drug addiction, or the exploitation of economic, physical, or emotional vulnerability. Children exploited through the sex trade often find it difficult to trust adults because of their abusive experiences. These children make up a population that is difficult to serve and even more difficult to rehabilitate.
Slide166CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.001 Purposes and intent; personnel standards and screening.
—
Cont’d
(b) The Legislature establishes the following goals for the state related to the status and treatment of sexually exploited children in the dependency process:
1. To ensure the safety of children.
2. To provide for the treatment of such children as dependent children rather than as delinquents.
3. To sever the bond between exploited children and traffickers and to reunite these children with their families or provide them with appropriate guardians.
4. To enable such children to be willing and reliable witnesses in the prosecution of traffickers.
(c) The Legislature finds that sexually exploited children need special care and services in the dependency process, including counseling, health care, substance abuse treatment, educational opportunities, and a safe environment secure from traffickers.
Slide167CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.001 Purposes and intent; personnel standards and screening.
—
Cont’d
(d) The Legislature further finds that sexually exploited children need the special care and services described in paragraph (c) independent of their citizenship, residency, alien, or immigrant status. It is the intent of the Legislature that this state provide such care and services to all sexually exploited children in this state who are not otherwise receiving comparable services, such as those under the federal Trafficking Victims Protection Act, 22 U.S.C. ss. 7101 et seq.
(6) MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES.—
(a) The Legislature recognizes that early referral and comprehensive treatment can help combat mental illnesses and substance abuse disorders in families and that treatment is cost-effective.
Slide168CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.001 Purposes and intent; personnel standards and screening.
—
Cont’d
b) The Legislature establishes the following goals for the state related to mental illness and substance abuse treatment services in the dependency process:
1. To ensure the safety of children.
2. To prevent and remediate the consequences of mental illnesses and substance abuse disorders on families involved in protective supervision or foster care and reduce the occurrences of mental illnesses and substance abuse disorders, including alcohol abuse or related disorders, for families who are at risk of being involved in protective supervision or foster care.
3.
To expedite permanency for children and reunify healthy, intact families, when appropriate.
4. To support families in recovery.
Slide169CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.001 Purposes and intent; personnel standards and screening.
—
Cont’d
Goes on to recognize that mental health services and other kinds of health care services will be necessary and should be provided
…
(7)
PARENTAL, CUSTODIAL, AND GUARDIAN RESPONSIBILITIES.—Parents, custodians, and guardians are deemed by the state to be responsible for providing their children with sufficient support, guidance, and supervision. The state further recognizes that the ability of parents, custodians, and guardians to fulfill those responsibilities can be greatly impaired by economic, social, behavioral, emotional, and related problems. It is therefore the policy of the Legislature that it is the state’s responsibility to ensure that factors impeding the ability of caregivers to fulfill their responsibilities are identified through the dependency process and that appropriate recommendations and services to address those problems are considered in any judicial or nonjudicial proceeding.
Slide170CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.001 Purposes and intent; personnel standards and screening.
—
Cont’d
(8) LEGISLATIVE INTENT FOR THE PREVENTION OF ABUSE, ABANDONMENT, AND NEGLECT OF CHILDREN…
(9) OFFICE OF ADOPTION AND CHILD PROTECTION.—
(a) For purposes of establishing a comprehensive statewide approach for the promotion of adoption, support of adoptive families, and prevention of child abuse, abandonment, and neglect, the Office of Adoption and Child Protection is created within the Executive Office of the Governor.
(1) The case record of every child under the supervision of or in the custody of the department, the department’s authorized agents, or providers contracting with the department, including community-based care lead agencies and their subcontracted providers, must be maintained in a complete and accurate manner.
The case record must contain, at a minimum, the child’s case plan required under part VII of this chapter and the full name and street address of all shelters, foster parents, group homes, treatment facilities, or locations where the child has been placed.
(2)
Notwithstanding any other provision of this chapter, all records in a child’s case record must be made available for inspection, upon request, to the child who is the subject of the case record and to the child’s caregiver, guardian ad litem, or attorney.
Slide171CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.00145 Records concerning children.
—
Cont’d
(a)
A complete and accurate copy of any record in a child’s case record must be provided, upon request and at no cost, to the child who is the subject of the case record and to the child’s caregiver, guardian ad litem, or attorney.
(b) The department shall release the information in a manner and setting that are appropriate to the age and maturity of the child and the nature of the information being released, which may include the release of information in a therapeutic setting, if appropriate. This paragraph does not deny the child access to his or her records.
(c) If a child or the child’s caregiver, guardian ad litem, or attorney requests access to the child’s case record, any person or entity that fails to provide any record in the case record under assertion of a claim of exemption from the public records requirements of chapter 119, or fails to provide access within a reasonable time, is subject to sanctions and penalties under s. 119.10.
Slide172CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.00145 Records concerning children.
—
Cont’d
(a) A complete and accurate copy of any record in a child’s case record must be provided, upon request and at no cost, to the child who is the subject of the case record and to the child’s caregiver, guardian ad litem, or attorney.
(b) The department shall release the information in a manner and setting that are appropriate to the age and maturity of the child and the nature of the information being released, which may include the release of information in a therapeutic setting, if appropriate. This paragraph does not deny the child access to his or her records.
(c) If a child or the child’s caregiver, guardian ad litem, or attorney requests access to the child’s case record, any person or entity that fails to provide any record in the case record under assertion of a claim of exemption from the public records requirements of chapter 119, or fails to provide access within a reasonable time, is subject to sanctions and penalties under s. 119.10.
Note: 42CFR (Code of Federal Regulations)
Slide173CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.0016 Education of abused, neglected, and abandoned children; agency agreements; children having or suspected of having a disability
(1) DEFINITIONS.—As used in this section, the term:
(a) “Children known to the department” means children who are found to be dependent or children in shelter care.
(b) “Department” means the Department of Children and Families or a community-based care lead agency acting on behalf of the Department of Children and Families, as appropriate.
(c)
“Surrogate parent” means an individual appointed to act in the place of a parent in educational
decisionmaking
and in safeguarding a child’s rights under the Individuals with Disabilities Education Act and this section
.
(b) The department shall enter into agreements with district school boards or other local educational entities regarding education and related services for children known to the department who are of school age and children known to the department who are younger than school age but who would otherwise qualify for services from the district school board. …
with the goal of minimal disruption of education.
Slide174CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.0016 Education of abused, neglected, and abandoned children; agency agreements; children having or suspected of having a disability – Cont’d
(b)1. Each district school superintendent or dependency court must appoint a surrogate parent for a child known to the department who has or is suspected of having a disability, as defined in s. 1003.01(3), when:
a. After reasonable efforts, no parent can be located; or
b. A court of competent jurisdiction over a child under this chapter has determined that no person has the authority under the Individuals with Disabilities Education Act, including the parent or parents subject to the dependency action, or that no person has the authority, willingness, or ability to serve as the educational decisionmaker for the child without judicial action.
2. A surrogate parent appointed by the district school superintendent or the court must be at least 18 years old and have no personal or professional interest that conflicts with the interests of the student to be represented. Neither the district school superintendent nor the court may appoint an employee of the Department of Education, the local school district, a community-based care provider, the Department of Children and Families, or any other public or private agency involved in the education or care of the child as appointment of those persons is prohibited by federal law. This prohibition includes group home staff and therapeutic foster parents.
Slide175CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.0016 Education of abused, neglected, and abandoned children; agency agreements; children having or suspected of having a disability – Cont’d
However, a person who acts in a parental role to a child, such as a foster parent or relative caregiver, is not prohibited from serving as a surrogate parent if he or she is employed by such agency, willing to serve, and knowledgeable about the child and the exceptional student education process. The surrogate parent may be a court-appointed guardian ad litem or a relative or nonrelative adult who is involved in the child’s life regardless of whether that person has physical custody of the child. Each person appointed as a surrogate parent must have the knowledge and skills acquired by successfully completing training using materials developed and approved by the Department of Education to ensure adequate representation of the child.
Slide176CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.0016 Education of abused, neglected, and abandoned children; agency agreements; children having or suspected of having a disability – Cont’d
3. If a guardian ad litem has been appointed for a child, the district school superintendent must first consider the child’s guardian ad litem when appointing a surrogate parent. The district school superintendent must accept the appointment of the court if he or she has not previously appointed a surrogate parent. Similarly, the court must accept a surrogate parent duly appointed by a district school superintendent.
4. A surrogate parent appointed by the district school superintendent or the court must be accepted by any subsequent school or school district without regard to where the child is receiving residential care so that a single surrogate parent can follow the education of the child during his or her entire time in state custody. Nothing in this paragraph or in rule shall limit or prohibit the continuance of a surrogate parent appointment when the responsibility for the student’s educational placement moves among and between public and private agencies.
Slide177CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.0016 Education of abused, neglected, and abandoned children; agency agreements; children having or suspected of having a disability – Cont’d
5. For a child known to the department, the responsibility to appoint a surrogate parent resides with both the district school superintendent and the court with jurisdiction over the child
…
6. The surrogate parent shall continue in the appointed role until one of the following occurs:
a. The child is determined to no longer be eligible or in need of special programs...
b. The child achieves permanency through adoption or legal guardianship and is no longer in the custody of the department.
c. The parent who was previously unknown becomes known, whose whereabouts were unknown is located, or who was unavailable is determined by the court to be available.
d. The appointed surrogate no longer wishes to represent the child or is unable to represent the child.
Slide178CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.0016 Education of abused, neglected, and abandoned children; agency agreements; children having or suspected of having a disability – Cont’d
e. The superintendent of the school district in which the child is attending school, the Department of Education contract designee, or the court that appointed the surrogate determines that the appointed surrogate parent no longer adequately represents the child.
f. The child moves to a geographic location that is not reasonably accessible to the appointed surrogate.
…
8. The person appointed as a surrogate parent under this paragraph must:
a. Be acquainted with the child and become knowledgeable about his or her disability and educational needs.
b. Represent the child in all matters relating to identification, evaluation, and educational placement and the provision of a free and appropriate education to the child.
c. Represent the interests and safeguard the rights of the child in educational decisions that affect the child.
Slide179CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.0016 Education of abused, neglected, and abandoned children; agency agreements; children having or suspected of having a disability – Cont’d
9. The responsibilities of the person appointed as a surrogate parent shall not extend to the care, maintenance, custody, residential placement, or any other area not specifically related to the education of the child, unless the same person is appointed by the court for such other purposes.
10. A person appointed as a surrogate parent shall enjoy all of the procedural safeguards afforded a parent with respect to the identification, evaluation, and educational placement of a student with a disability or a student who is suspected of having a disability.
11. A person appointed as a surrogate parent shall not be held liable for actions taken in good faith on behalf of the student in protecting the special education rights of the child.
Slide180CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.0016 Education of abused, neglected, and abandoned children; agency agreements; children having or suspected of having a disability – Cont’d
(4) TRAINING.—The department shall incorporate an education component into all training programs of the department regarding children known to the department. Such training shall be coordinated with the Department of Education and the local school districts. The department shall offer opportunities for education personnel to participate in such training.
The department training components shall include:
(a) Training for surrogate parents to include how an ability to learn of a child known to the department is affected by abuse, abandonment, neglect, and removal from the home.
(b) Training for parents in cases in which reunification is the goal, or for
preadoptive
parents when adoption is the goal, so that such parents learn how to access the services the child known to the department needs and the importance of their involvement in the education of the child known to the department.
Slide181CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.01 Definitions.
—
(1) “Abandoned” or “abandonment”
(2) “Abuse”
NOTE: Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child
….
(4) “Adjudicatory hearing”
(6) “Adoption”
(7) “Juvenile sexual abuse”
For purposes of this subsection, the following definitions apply:
(a) “Coercion” means the exploitation of authority or the use of bribes, threats of force, or intimidation to gain cooperation or compliance.
(b) “Equality” means two participants operating with the same level of power in a relationship, neither being controlled nor coerced by the other.
(c) “Consent” means an agreement, including all of the following:
1. Understanding what is proposed based on age, maturity, developmental level, functioning, and experience.
Slide182CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.01 Definitions.
—
Continued
2. Knowledge of societal standards for what is being proposed.
3. Awareness of potential consequences and alternatives.
4. Assumption that agreement or disagreement will be accepted equally.
5. Voluntary decision.
6. Mental competence.
Juvenile sexual behavior ranges from noncontact sexual behavior such as making obscene phone calls, exhibitionism, voyeurism, and the showing or taking of lewd photographs to varying degrees of direct sexual contact, such as frottage, fondling, digital penetration, rape, fellatio, sodomy, and various other sexually aggressive acts.
Slide183CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.01 Definitions.
—
Cont’d
(8) “Arbitration” means a process whereby a neutral third person or panel, called an arbitrator or an arbitration panel, considers the facts and arguments presented by the parties and renders a decision which may be binding or nonbinding
….
(10) “Caregiver” means the parent, legal custodian, permanent guardian, adult household member, or other person responsible for a child’s welfare as defined in subsection (47).
(11) “Case plan” means a document, as described in s. 39.6011, prepared by the department with input from all parties. The case plan follows the child from the provision of voluntary services through any dependency, foster care, or termination of parental rights proceeding or related activity or process.
(12) “Child” or “youth” means any unmarried person under the age of 18 years who has not been emancipated by order of the court.
Slide184CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.01 Definitions.
—
Cont’d
(13) “Child protection team” means a team of professionals established by the Department of Health to receive referrals from the protective investigators and protective supervision staff of the department and to provide specialized and supportive services to the program in processing child abuse, abandonment, or neglect cases. A child protection team shall provide consultation to other programs of the department and other persons regarding child abuse, abandonment, or neglect cases.
15) “Child who is found to be dependent” means a child who, pursuant to this chapter, is found by the court:
(a) To have been abandoned, abused, or neglected by the child’s parent or parents or legal custodians;
(b) To have been surrendered to the department, the former Department of Health and Rehabilitative Services, or a licensed child-placing agency for purpose of adoption;
Slide185CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
(13) “Child protection team” means a team of professionals established by the Department of Health to receive referrals from the protective investigators and protective supervision staff of the department and to provide specialized and supportive services to the program in processing child abuse, abandonment, or neglect cases. A child protection team shall provide consultation to other programs of the department and other persons regarding child abuse, abandonment, or neglect cases.
15) “Child who is found to be dependent”
(18) “Comprehensive assessment” or “assessment”
19) “Concurrent planning” means establishing a permanency goal in a case plan that uses reasonable efforts to reunify the child with the parent, while at the same time establishing another goal
(22) “Diligent efforts by a parent”
(23) “Diligent efforts of social service agency”
(24) “Diligent search”
(25) “Disposition hearing”
26) “Expedited termination of parental rights”
…
(30) “Harm”
Slide186CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
(13) “Child protection team” means a team of professionals established by the Department of Health to receive referrals from the protective investigators and protective supervision staff of the department and to provide specialized and supportive services to the program in processing child abuse, abandonment, or neglect cases. A child protection team shall provide consultation to other programs of the department and other persons regarding child abuse, abandonment, or neglect cases.
15) “Child who is found to be dependent”
(18) “Comprehensive assessment” or “assessment”
19) “Concurrent planning” means establishing a permanency goal in a case plan that uses reasonable efforts to reunify the child with the parent, while at the same time establishing another goal
(22) “Diligent efforts by a parent”
(23) “Diligent efforts of social service agency”
(24) “Diligent search”
(25) “Disposition hearing”
26) “Expedited termination of parental rights”
…
(30) “Harm”
(31) “Impending danger”
Slide187CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.01 Definitions.
—
Cont’d
(32) “Institutional child abuse or neglect”
…
(39) “Likely to injure others” …
(41) “Medical neglect”
(42) “Mental injury
(43) “Necessary medical treatment”
(44) “Neglect”…
(52) “Permanency goal”
(53) “Permanency plan”
(54) “Permanent guardian”
(55) “Permanent guardianship of a dependent child”…
58) “Preliminary screening”
(59) “Present danger”
(60) “Preventive services”
Slide188CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.01 Definitions.
—
Cont’d
(61) “Prospective parent”
(62) “Protective investigation”
(63) “Protective investigator”
(64) “Protective supervision” …
(66) “Relative”
(This term does not include a stepparent.)
(67) “Reunification services”
(68) “Safety plan”
…
70) “Sexual abuse of a child”
(73) “Sibling”
Slide189CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.01 Definitions.
—
Cont’d
Interactive Exercise
You are working with a family, but the identified patient is 15 year old adolescent. The parents are minimally compliant with your recommended interventions in parenting. The parents inform you that the child went over to spend the night with a friend, against their wishes, and now the child will not return home. They tell you they have simply given up.
Do you call the hotline?
Is this abandonment?
Is this neglect?
Slide190CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.0139 Visitation or other contact; restrictions.
—
(2) LEGISLATIVE FINDINGS AND INTENT.—
(a) The Legislature finds that:
1. For some children who are abused, abandoned, or neglected by a parent or other caregiver, abuse may include sexual abuse.
2. These same children are at risk of suffering from further harm during visitation or other contact.
3. Visitation or other contact with the child may be used to influence the child’s testimony.
(b) It is the intent of the Legislature to protect children and reduce the risk of further harm to children who have been sexually abused or exploited by a parent or other caregiver by placing additional requirements on judicial determinations related to contact between a parent or caregiver who meets the criteria under paragraph (3)(a) and a child victim in any proceeding pursuant to this chapter.
Slide191CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.201 Mandatory reports of child abuse, abandonment, or neglect; mandatory reports of death; central abuse hotline.
—
(1)(a) Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care
shall
report such knowledge or suspicion to the department in the manner prescribed in subsection (2).
(b) Any person who knows, or who has reasonable cause to suspect, that a child is abused by an adult other than a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter,
shall
report such knowledge or suspicion to the department in the manner prescribed in subsection (2).
Slide192CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.201 Mandatory reports of child abuse, abandonment, or neglect; mandatory reports of death; central abuse hotline.
—
(1)(a) Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care
shall
report such knowledge or suspicion to the department in the manner prescribed in subsection (2).
(b) Any person who knows, or who has reasonable cause to suspect, that a child is abused by an adult other than a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter,
shall
report such knowledge or suspicion to the department in the manner prescribed in subsection (2).
Slide193CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.201 Mandatory reports of child abuse, abandonment, or neglect; mandatory reports of death; central abuse hotline.
—
Cont’d
The names of reporters shall be entered into the record of the report, but shall be held confidential and exempt as provided in s. 39.202.
(e) A professional who is hired by or enters into a contract with the department for the purpose of treating or counseling any person, as a result of a report of child abuse, abandonment, or neglect,
is not required
to again report to the central abuse hotline the abuse, abandonment, or neglect that was the subject of the referral for treatment.
(f) An officer or employee of the judicial branch
is not required
to again provide notice of reasonable cause to suspect child abuse, abandonment, or neglect when that child is currently being investigated by the department, there is an existing dependency case, or the matter has previously been reported to the department, provided there is reasonable cause to believe the information is already known to the department. This paragraph applies only when the information has been provided to the officer or employee in the course of carrying out his or her official duties.
Slide194CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.201 Mandatory reports of child abuse, abandonment, or neglect; mandatory reports of death; central abuse hotline.
—
Cont’d
The
names of reporters shall
be entered into the record of the report, but shall
be held confidential and exempt as provided in s. 39.202
.
(e) A professional who is hired by or enters into a contract with the department for the purpose of treating or counseling any person, as a result of a report of child abuse, abandonment, or neglect, is
not required to again report
to the central abuse hotline the abuse, abandonment, or neglect that was the subject of the referral for treatment.
(f) An officer or employee of the judicial branch is
not required to again provide notice
of reasonable cause to suspect child abuse, abandonment, or neglect when that child is currently being investigated by the department, there is an existing dependency case, or the matter has previously been reported to the department, provided there is reasonable cause to believe the information is already known to the department. This paragraph applies only when the information has been provided to the officer or employee in the course of carrying out his or her official duties.
Slide195CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.201 Mandatory reports of child abuse, abandonment, or neglect; mandatory reports of death; central abuse hotline.
—
Cont’d
(2)(a) Each report of known or suspected child abuse, abandonment, or neglect by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare as defined in this chapter, except those solely under s. 827.04(3), and each report that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall be made immediately to the department’s central abuse hotline. Such reports may be made on the single statewide toll-free telephone number or via fax, web-based chat, or web-based report. Personnel at the department’s central abuse hotline shall determine if the report received meets the statutory definition of child abuse, abandonment, or neglect. Any report meeting one of these definitions shall be accepted for the protective investigation pursuant to part III of this chapter. Any call received from a parent or legal custodian seeking assistance for
Slide196CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.201 Mandatory reports of child abuse, abandonment, or neglect; mandatory reports of death; central abuse hotline.
—
Cont’d
himself or herself which does not meet the criteria for being a report of child abuse, abandonment, or neglect may be accepted by the hotline for response to ameliorate a potential future risk of harm to a child. If it is determined by a child welfare professional that a need for community services exists, the department shall refer the parent or legal custodian for appropriate voluntary community services.
(b) Each report of known or suspected child abuse by an adult other than a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, shall be made immediately to the department’s central abuse hotline. Such reports may be made on the single statewide toll-free telephone number or via fax, web-based chat, or web-based report. Such reports or calls shall be immediately electronically transferred to the appropriate county sheriff’s office by the central abuse hotline.
Slide197CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.201 Mandatory reports of child abuse, abandonment, or neglect; mandatory reports of death; central abuse hotline.
—
Interactive Exercise
Who is a Mandated Reporter?
Can a Mandated Reporter do investigation of the allegations?
Can a Mandated Reporter interview the child?
Can a Mandated Reporter do ANY investigation?
Slide198CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.201 Mandatory reports of child abuse, abandonment, or neglect; mandatory reports of death; central abuse hotline.
—
Cont’d
(c) Reports involving juvenile sexual abuse or a child who has exhibited inappropriate sexual behavior shall be made and received by the department. An alleged incident of juvenile sexual abuse involving a child who is in the custody of or protective supervision of the department shall be reported to the department’s central abuse hotline.
1. The central abuse hotline shall immediately electronically transfer the report or call to the county sheriff’s office. The department shall conduct an assessment and assist the family in receiving appropriate services pursuant to s. 39.307, and send a written report of the allegation to the appropriate county sheriff’s office within 48 hours after the initial report is made to the central abuse hotline.
Slide199CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.201 Mandatory reports of child abuse, abandonment, or neglect; mandatory reports of death; central abuse hotline.
—
Cont’d
(c) Reports involving juvenile sexual abuse or a child who has exhibited inappropriate sexual behavior shall be made and received by the department. An alleged incident of juvenile sexual abuse involving a child who is in the custody of or protective supervision of the department shall be reported to the department’s central abuse hotline.
1. The central abuse hotline shall immediately electronically transfer the report or call to the county sheriff’s office. The department shall conduct an assessment and assist the family in receiving appropriate services pursuant to s. 39.307, and send a written report of the allegation to the appropriate county sheriff’s office within 48 hours after the initial report is made to the central abuse hotline.
…
Slide200CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.202 Confidentiality of reports and records in cases of child abuse or neglect.
—
(1) In order to protect the rights of the child and the child’s parents or other persons responsible for the child’s welfare, all records held by the department concerning reports of child abandonment, abuse, or neglect, including reports made to the central abuse hotline and all records generated as a result of such reports, shall be confidential and exempt from the provisions of s. 119.07(1) and shall not be disclosed except as specifically authorized by this chapter. Such exemption from s. 119.07(1) applies to information in the possession of those entities granted access as set forth in this section.
(2) Except as provided in subsection (4), access to such records, excluding the name of the reporter which shall be released only as provided in subsection (5), shall be granted only to the following persons, officials, and agencies:
(Left open to be discussed) Are your reports confidential?
Slide201CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.204 Abrogation of privileged communications in cases involving child abuse, abandonment, or neglect.
—
The privileged quality of communication
between husband and wife and between any professional person and his or her patient or client, and any other privileged communication except that between attorney and client or the privilege provided in s. 90.505, as such communication relates both to the competency of the witness and to the exclusion of confidential communications,
shall not apply
to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect and shall not constitute grounds for failure to report as required by s. 39.201 regardless of the source of the information requiring the report, failure to cooperate with law enforcement or the department in its activities pursuant to this chapter, or failure to give evidence in any judicial proceeding relating to child abuse, abandonment, or neglect.
Slide202CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.204 Abrogation of privileged communications in cases involving child abuse, abandonment, or neglect.
—
The privileged quality of communication
between husband and wife and between any professional person and his or her patient or client, and any other privileged communication except that between attorney and client or the privilege provided in s. 90.505, as such communication relates both to the competency of the witness and to the exclusion of confidential communications,
shall not apply
to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect and shall not constitute grounds for failure to report as required by s. 39.201 regardless of the source of the information requiring the report, failure to cooperate with law enforcement or the department in its activities pursuant to this chapter, or failure to give evidence in any judicial proceeding relating to child abuse, abandonment, or neglect.
Slide203CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.205 Penalties relating to reporting of child abuse, abandonment, or neglect.
—
(1) A person who is required to report known or suspected child abuse, abandonment, or neglect and who knowingly and willfully fails to do so, or who knowingly and willfully prevents another person from doing so, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A judge subject to discipline pursuant to s. 12, Art. V of the Florida Constitution shall not be subject to criminal prosecution when the information was received in the course of official duties.
(2) Unless the court finds that the person is a victim of domestic violence or that other mitigating circumstances exist, a person who is 18 years of age or older and lives in the same house or living unit as a child who is known or suspected to be a victim of child abuse, neglect of a child, or aggravated child abuse, and knowingly and willfully fails to report the child abuse commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Slide204CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.206 Administrative fines for false report of abuse, abandonment, or neglect of a child; civil damages.
—
(1) In addition to any other penalty authorized by this section, chapter 120, or other law, the department may impose a fine, not to exceed $10,000 for each violation, upon a person who knowingly and willfully makes a false report of abuse, abandonment, or neglect of a child, or a person who counsels another to make a false report.
(2) If the department alleges that a person has filed a false report with the central abuse hotline, the department must file a Notice of Intent which alleges the name, age, and address of the individual, the facts constituting the allegation that the individual made a false report, and the administrative fine the department proposes to impose on the person.
Each time that a false report is made constitutes a separate violation.
(3) The Notice of Intent to impose the administrative fine must be served upon the person alleged to have filed the false report and the person’s legal counsel, if any. Such Notice of Intent must be given by certified mail, return receipt requested.
Slide205CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.206 Administrative fines for false report of abuse, abandonment, or neglect of a child; civil damages.
—
Cont’d
(4) Any person alleged to have filed the false report is entitled to an administrative hearing, pursuant to chapter 120, before the imposition of the fine becomes final. The person must request an administrative hearing within 60 days after receipt of the Notice of Intent by filing a request with the department. Failure to request an administrative hearing within 60 days after receipt of the Notice of Intent constitutes a waiver of the right to a hearing, making the administrative fine final.
(5)
At the administrative hearing, the department must prove by a preponderance of the evidence
that the person filed a false report with the central abuse hotline. The administrative hearing officer shall advise any person against whom a fine may be imposed of that person’s right to be represented by counsel at the administrative hearing.
Slide206CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.206 Administrative fines for false report of abuse, abandonment, or neglect of a child; civil damages.
—
Cont’d
(9)
A person who is determined to have filed a false report of abuse, abandonment, or neglect is not entitled to confidentiality
. Subsequent to the conclusion of all administrative or other judicial proceedings concerning the filing of a false report, the name of the false reporter and the nature of the false report shall be made public, pursuant to s. 119.01(1).
Such information shall be admissible in any civil or criminal proceeding.
(10)
A person who knowingly and willfully makes a false report of abuse, abandonment, or neglect of a child, or a person who counsels another to make a false report may be civilly liable for damages suffered, including reasonable attorney fees and costs
, as a result of the filing of the false report. If the name of the person who filed the false report or counseled another to do so has not been disclosed under subsection (9), the department as custodian of the records may
Slide207CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.206 Administrative fines for false report of abuse, abandonment, or neglect of a child; civil damages.
—
Cont’d
be named as a party in the suit until the dependency court determines in a written order upon an in camera inspection of the records and report that there is a reasonable basis for believing that the report was false and that the identity of the reporter may be disclosed for the purpose of proceeding with a lawsuit for civil damages resulting from the filing of the false report. The alleged perpetrator may submit witness affidavits to assist the court in making this initial determination.
(11)
Any person making a report who is acting in good faith is immune from any liability under this section and shall continue to be entitled to have the confidentiality of their identity maintained.
Slide208CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.307 Reports of child-on-child sexual abuse.
—
(1) Upon receiving a report alleging juvenile sexual abuse or inappropriate sexual behavior as defined in s. 39.01, the department shall assist the family, child, and caregiver in receiving appropriate services to address the allegations of the report.
(a) The department shall ensure that information describing the child’s history of child sexual abuse is included in the child’s electronic record. This record must also include information describing the services the child has received as a result of his or her involvement with child sexual abuse.
(b) Placement decisions for a child who has been involved with child sexual abuse must include consideration of the needs of the child and any other children in the placement.
(c) The department shall monitor the occurrence of child sexual abuse and the provision of services to children involved in child sexual abuse or juvenile sexual abuse, or who have displayed inappropriate sexual behavior.
Slide209CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.307 Reports of child-on-child sexual abuse.
—
(1) Upon receiving a report alleging juvenile sexual abuse or inappropriate sexual behavior as defined in s. 39.01, the department shall assist the family, child, and caregiver in receiving appropriate services to address the allegations of the report.
(a) The department shall ensure that information describing the child’s history of child sexual abuse is included in the child’s electronic record. This record must also include information describing the services the child has received as a result of his or her involvement with child sexual abuse.
(b) Placement decisions for a child who has been involved with child sexual abuse must include consideration of the needs of the child and any other children in the placement.
(c) The department shall monitor the occurrence of child sexual abuse and the provision of services to children involved in child sexual abuse or juvenile sexual abuse, or who have displayed inappropriate sexual behavior.
Slide210CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.6011 Case plan development.
—
(1) The department shall prepare a draft of the case plan for each child receiving services under this chapter. A parent of a child may not be threatened or coerced with the loss of custody or parental rights for failing to admit in the case plan of abusing, neglecting, or abandoning a child. Participating in the development of a case plan is not an admission to any allegation of abuse, abandonment, or neglect, and it is not a consent to a finding of dependency or termination of parental rights. The case plan shall be developed subject to the following requirements:
(a) The case plan must be developed in a face-to-face conference with the parent of the child, any court-appointed guardian ad litem, and, if appropriate, the child and the temporary custodian of the child.
(b) The parent may receive assistance from any person or social service agency in preparing the case plan. The social service agency, the department, and the court, when applicable, shall inform the parent of the right to receive such assistance, including the right to assistance of counsel.
Slide211CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.6011 Case plan development.
—
Cont’d
(c) If a parent is unwilling or unable to participate in developing a case plan, the department shall document that unwillingness or inability to participate. The documentation must be provided in writing to the parent when available for the court record, and the department shall prepare a case plan conforming as nearly as possible with the requirements set forth in this section. The unwillingness or inability of the parent to participate in developing a case plan does not preclude the filing of a petition for dependency or for termination of parental rights. The parent, if available, must be provided a copy of the case plan and be advised that he or she may, at any time before the filing of a petition for termination of parental rights, enter into a case plan and that he or she may request judicial review of any provision of the case plan with which he or she disagrees at any court hearing set for the child.
Slide212CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.6011 Case plan development.
—
Cont’d
2) The case plan must be written simply and clearly in English and, if English is not the principal language of the child’s parent, to the extent possible in the parent’s principal language. Each case plan must contain:
(a) A description of the identified problem being addressed, including the parent’s behavior or acts resulting in risk to the child and the reason for the intervention by the department.
(b) The permanency goal.
(c) If concurrent planning is being used, a description of the permanency goal of reunification with the parent or legal custodian in addition to a description of one of the remaining permanency goals described in s. 39.01.
Case Planning details & elements – a whole other course.
Slide213CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.6231 Permanent placement with a fit and willing relative.
—
(1) If a court finds that reunification or adoption are not in the best interests of a child, the court may place the child with a fit and willing relative as a permanency option
39.6241 Another planned permanent living arrangement.
—
(1) If a court finds that reunification is not in the best interests of a child, the court may approve placement of the child in another planned permanent living arrangement
Slide214CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.6231 Permanent placement with a fit and willing relative.
—
(1) If a court finds that reunification or adoption are not in the best interests of a child, the court may place the child with a fit and willing relative as a permanency option
39.6241 Another planned permanent living arrangement.
—
(1) If a court finds that reunification is not in the best interests of a child, the court may approve placement of the child in another planned permanent living arrangement
Slide215CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.804 Penalties for false statements of paternity.
—Any male person or any mother of a dependent child who knowingly and willfully makes a false statement concerning the paternity of a child in conjunction with a petition to terminate parental rights under this chapter and causes such false statement of paternity to be filed with the court commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A person who makes a statement claiming paternity in good faith is immune from criminal liability under this section.
Interactive discussion moment --
Why would anyone do this?
Slide216CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.806 Grounds for termination of parental rights.
—
(1) Grounds for the termination of parental rights may be established under any of the following circumstances:
(a) When the parent or parents have voluntarily executed a written surrender of the child and consented to the entry of an order giving custody of the child to the department for subsequent adoption and the department is willing to accept custody of the child.
1. The surrender document must be executed before two witnesses and a notary public or other person authorized to take acknowledgments.
2. The surrender and consent may be withdrawn after acceptance by the department only after a finding by the court that the surrender and consent were obtained by fraud or under duress.
(b) Abandonment as defined in s. 39.01(1) or when the identity or location of the parent or parents is unknown and cannot be ascertained by diligent search within 60 days.
Slide217CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.806 Grounds for termination of parental rights.
—
Cont’d
(c) When the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that services were provided through a previous plan or offered as a case plan from a child welfare agency.
(d) When the parent of a child is incarcerated and either:
1. The period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child’s minority. When determining whether the period of time is significant, the court shall consider the child’s age and the child’s need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration;
Slide218CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.806 Grounds for termination of parental rights.
—
Cont’d
2. The incarcerated parent has been determined by the court to be a violent career criminal as defined in s. 775.084, a habitual violent felony offender as defined in s. 775.084, or a sexual predator as defined in s. 775.21; has been convicted of first degree or second degree murder in violation of s. 782.04 or a sexual battery that constitutes a capital, life, or first degree felony violation of s. 794.011; or has been convicted of an offense in another jurisdiction which is substantially similar to one of the offenses listed in this paragraph. As used in this section, the term “substantially similar offense” means any offense that is substantially similar in elements and penalties to one of those listed in this subparagraph, and that is in violation of a law of any other jurisdiction, whether that of another state, the District of Columbia, the United States or any possession or territory thereof, or any foreign jurisdiction; or
Slide219CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.806 Grounds for termination of parental rights.
—
Cont’d
3. The court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and, for this reason, that termination of the parental rights of the incarcerated parent is in the best interest of the child. When determining harm, the court shall consider the following factors:
a. The age of the child.
b. The relationship between the child and the parent.
c. The nature of the parent’s current and past provision for the child’s developmental, cognitive, psychological, and physical needs.
d. The parent’s history of criminal behavior, which may include the frequency of incarceration and the unavailability of the parent to the child due to incarceration.
e. Any other factor the court deems relevant.
Slide220CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.806 Grounds for termination of parental rights.
—
Cont’d
(e) When a child has been adjudicated dependent, a case plan has been filed with the court, and:
1. The child continues to be abused, neglected, or abandoned by the parent or parents. The failure of the parent or parents to substantially comply with the case plan for a period of 12 months after an adjudication of the child as a dependent child or the child’s placement into shelter care, whichever occurs first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the parent’s lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child. The 12-month period begins to run only after the child’s placement into shelter care or the entry of a disposition order placing the custody of the child with the department or a person other than the parent and the court’s approval of a case plan having the goal of reunification with the parent, whichever occurs first; or
Slide221CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.806 Grounds for termination of parental rights.
—
Cont’d
2. The parent or parents have materially breached the case plan. Time is of the essence for permanency of children in the dependency system. In order to prove the parent or parents have materially breached the case plan, the court must find by clear and convincing evidence that the parent or parents are unlikely or unable to substantially comply with the case plan before time to comply with the case plan expires.
3. The child has been in care for any 12 of the last 22 months and the parents have not substantially complied with the case plan so as to permit reunification under s. 39.522(2) unless the failure to substantially comply with the case plan was due to the parent’s lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child.
Slide222CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.806 Grounds for termination of parental rights.
—
Cont’d
(f) The parent or parents engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child or the child’s sibling. Proof of a nexus between egregious conduct to a child and the potential harm to the child’s sibling is not required.
1. As used in this subsection, the term “sibling” means another child who resides with or is cared for by the parent or parents regardless of whether the child is related legally or by consanguinity.
2. As used in this subsection, the term “egregious conduct” means abuse, abandonment, neglect, or any other conduct that is deplorable, flagrant, or outrageous by a normal standard of conduct. Egregious conduct may include an act or omission that occurred only once but was of such intensity, magnitude, or severity as to endanger the life of the child.
Slide223CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.806 Grounds for termination of parental rights.
—
Cont’d
(g) The parent or parents have subjected the child or another child to aggravated child abuse as defined in s. 827.03, sexual battery or sexual abuse as defined in s. 39.01, or chronic abuse.
(h) The parent or parents have committed the murder, manslaughter, aiding or abetting the murder, or conspiracy or solicitation to murder the other parent or another child, or a felony battery that resulted in serious bodily injury to the child or to another child. Proof of a nexus between the murder, manslaughter, aiding or abetting the murder, or conspiracy or solicitation to murder the other parent or another child, or a felony battery to a child and the potential harm to a child or another child is not required.
(
i
) The parental rights of the parent to a sibling of the child have been terminated involuntarily.
Slide224CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.806 Grounds for termination of parental rights.
—
Cont’d
(j) The parent or parents have a history of extensive, abusive, and chronic use of alcohol or a controlled substance which renders them incapable of caring for the child, and have refused or failed to complete available treatment for such use during the 3-year period immediately preceding the filing of the petition for termination of parental rights.
(k) A test administered at birth that indicated that the child’s blood, urine, or meconium contained any amount of alcohol or a controlled substance or metabolites of such substances, the presence of which was not the result of medical treatment administered to the mother or the newborn infant, and the biological mother of the child is the biological mother of at least one other child who was adjudicated dependent after a finding of harm to the child’s health or welfare due to exposure to a controlled substance or alcohol as defined in s. 39.01, after which the biological mother had the opportunity to participate in substance abuse treatment.
Slide225CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.806 Grounds for termination of parental rights.
—
Cont’d
(l) On three or more occasions the child or another child of the parent or parents has been placed in out-of-home care pursuant to this chapter, and the conditions that led to the child’s out-of-home placement were caused by the parent or parents.
(m) The court determines by clear and convincing evidence that the child was conceived as a result of an act of sexual battery made unlawful pursuant to s. 794.011, or pursuant to a similar law of another state, territory, possession, or Native American tribe where the offense occurred. It is presumed that termination of parental rights is in the best interest of the child if the child was conceived as a result of the unlawful sexual battery. A petition for termination of parental rights under this paragraph may be filed at any time. The court must accept a guilty plea or conviction of unlawful sexual battery pursuant to s. 794.011 as conclusive proof that the child was conceived by a violation of criminal law as set forth in this subsection.
Slide226CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.806 Grounds for termination of parental rights.
—
Cont’d
(n) The parent is convicted of an offense that requires the parent to register as a sexual predator under s. 775.21.
(2) Reasonable efforts to preserve and reunify families are not required if a court of competent jurisdiction has determined that any of the events described in paragraphs (1)(b)-(d) or paragraphs (1)(f)-(m) have occurred.
(3) If a petition for termination of parental rights is filed under subsection (1), a separate petition for dependency need not be filed and the department need not offer the parents a case plan having a goal of reunification, but may instead file with the court a case plan having a goal of termination of parental rights to allow continuation of services until the termination is granted or until further orders of the court are issued.
(4) If an expedited termination of parental rights petition is filed, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child.
…
Slide227CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.810 Manifest best interests of the child.
—
In a hearing on a petition for termination of parental rights, the court shall consider the manifest best interests of the child. This consideration shall not include a comparison between the attributes of the parents and those of any persons providing a present or potential placement for the child. For the purpose of determining the manifest best interests of the child, the court shall consider and evaluate all relevant factors, including, but not limited to:
(1) Any suitable permanent custody arrangement with a relative of the child. However, the availability of a
nonadoptive
placement with a relative may not receive greater consideration than any other factor weighing on the manifest best interest of the child and may not be considered as a factor weighing against termination of parental rights. If a child has been in a stable or
preadoptive
placement for not less than 6 months, the availability of a different placement, including a placement with a relative, may not be considered as a ground to deny the termination of parental rights.
Slide228CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.810 Manifest best interests of the child.
—
In a hearing on a petition for termination of parental rights, the court shall consider the manifest best interests of the child. This consideration shall not include a comparison between the attributes of the parents and those of any persons providing a present or potential placement for the child. For the purpose of determining the manifest best interests of the child, the court shall consider and evaluate all relevant factors, including, but not limited to:
(1) Any suitable permanent custody arrangement with a relative of the child. However, the availability of a
nonadoptive
placement with a relative may not receive greater consideration than any other factor weighing on the manifest best interest of the child and may not be considered as a factor weighing against termination of parental rights. If a child has been in a stable or
preadoptive
placement for not less than 6 months, the availability of a different placement, including a placement with a relative, may not be considered as a ground to deny the termination of parental rights.
Slide229CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
39.810 Manifest best interests of the child.
—
Cont’d
(2) The ability and disposition of the parent or parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under state law instead of medical care, and other material needs of the child.
(3) The capacity of the parent or parents to care for the child to the extent that the child’s safety, well-being, and physical, mental, and emotional health will not be endangered upon the child’s return home.
(4) The present mental and physical health needs of the child and such future needs of the child to the extent that such future needs can be ascertained based on the present condition of the child.
(5) The love, affection, and other emotional ties existing between the child and the child’s parent or parents, siblings, and other relatives, and the degree of harm to the child that would arise from the termination of parental rights and duties.
(6) The likelihood of an older child remaining in long-term foster care upon termination of parental rights, due to emotional or behavioral problems or any special needs of the child.
Slide230CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
GUARDIANS AD LITEM AND GUARDIAN ADVOCATES
39.820 Definitions.
—
(1) “Guardian ad litem” as referred to in any civil or criminal proceeding includes the following: a certified guardian ad litem program, a duly certified volunteer, a staff attorney, contract attorney, or certified pro bono attorney working on behalf of a guardian ad litem or the program; staff members of a program office; a court-appointed attorney; or a responsible adult who is appointed by the court to represent the best interests of a child in a proceeding as provided for by law, including, but not limited to, this chapter, who is a party to any judicial proceeding as a representative of the child, and who serves until discharged by the court.
(2) “Guardian advocate” means a person appointed by the court to act on behalf of a drug dependent newborn pursuant to the provisions of this part.
Slide231CHAPTER 39
PROCEEDINGS RELATING TO CHILDREN
GUARDIANS AD LITEM AND GUARDIAN ADVOCATES
39.822 Appointment of guardian ad litem for abused, abandoned, or neglected child.
—
(1) A guardian ad litem shall be appointed by the court at the earliest possible time to represent the child in any child abuse, abandonment, or neglect judicial proceeding, whether civil or criminal. Any person participating in a civil or criminal judicial proceeding resulting from such appointment shall be presumed prima facie to be acting in good faith and in so doing shall be immune from any liability, civil or criminal, that otherwise might be incurred or imposed.
…
(3) Upon presentation by a guardian ad litem of a court order appointing the guardian ad litem:
(a)
An agency, as defined in chapter 119, shall allow the guardian ad litem to inspect and copy records related to the best interests of the child
who is the subject of the appointment, including, but not limited to, records made confidential or exempt from s. 119.07(1) or
Slide232The Evidence Code & Testifying in court could be a course all its own. We will summarize the parts relevant to our profession here.
90.401 Definition of relevant evidence.
—Relevant evidence is evidence tending to prove or disprove a material fact.
90.402 Admissibility of relevant evidence.
—All relevant evidence is admissible, except as provided by law.
(The judge is the finder of fact and ultimately determines what is relevant.
90.501 Privileges recognized only as provided.
—Except as otherwise provided by this chapter, any other statute, or the Constitution of the United States or of the State of Florida, no person in a legal proceeding has a privilege to:
(1) Refuse to be a witness.
(2) Refuse to disclose any matter.
(3) Refuse to produce any object or writing.
(4) Prevent another from being a witness, from disclosing any matter, or from producing any object or writing.
CHAPTER 90
florida
evidence code
Slide233CHAPTER 90
florida evidence code
90.503 Psychotherapist-patient privilege.
—
(1) For purposes of this section:
(a) A “psychotherapist” is:
1. A person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, who is engaged in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction;
2. A person licensed or certified as a psychologist under the laws of any state or nation, who is engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction;
3. A person licensed or certified as a clinical social worker, marriage and family therapist, or mental health counselor under the laws of this state, who is engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction;
Slide234CHAPTER 90
florida evidence code
90.503 Psychotherapist-patient privilege.
—
Cont’d
4. Treatment personnel of facilities licensed by the state pursuant to chapter 394, chapter 395, or chapter 397, of facilities designated by the Department of Children and Family Services pursuant to chapter 394 as treatment facilities, or of facilities defined as community mental health centers pursuant to s. 394.907(1), who are engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction; or
5. An advanced registered nurse practitioner certified under s. 464.012, whose primary scope of practice is the diagnosis or treatment of mental or emotional conditions, including chemical abuse, and limited only to actions performed in accordance with part I of chapter 464.
(b) A “patient” is a person who consults, or is interviewed by, a psychotherapist for purposes of diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction.
Slide235CHAPTER 90
florida evidence code
90.503 Psychotherapist-patient privilege.
—
Cont’d
(c) A communication between psychotherapist and patient is “confidential” if it is not intended to be disclosed to third persons other than:
1. Those persons present to further the interest of the patient in the consultation, examination, or interview.
2. Those persons necessary for the transmission of the communication.
3. Those persons who are participating in the diagnosis and treatment under the direction of the psychotherapist.
(2)
A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition
, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship
. (My emphasis)
Slide236CHAPTER 90
florida evidence code
90.503 Psychotherapist-patient privilege.
—
Cont’d
(3) The privilege may be claimed by:
(a) The patient or the patient’s attorney on the patient’s behalf.
(b) A guardian or conservator of the patient.
(c) The personal representative of a deceased patient.
(d) The psychotherapist, but only on behalf of the patient. The authority of a psychotherapist to claim the privilege is presumed in the absence of evidence to the contrary.
(4) There is no privilege under this section:
(a) For communications relevant to an issue in proceedings to compel hospitalization of a patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has reasonable cause to believe the patient is in need of hospitalization.
Slide237CHAPTER 90
florida evidence code
90.503 Psychotherapist-patient privilege.
—
Cont’d
(b) For communications made in the course of a court-ordered examination of the mental or emotional condition of the patient.
(c) For communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense.
Slide238CHAPTER 90
florida evidence code
90.5035 Sexual assault counselor-victim privilege.
—
(3) The privilege may be claimed by:
(a) The victim or the victim’s attorney on his or her behalf.
(b) A guardian or conservator of the victim.
(c) The personal representative of a deceased victim.
(d) The sexual assault counselor or trained volunteer, but only on behalf of the victim. The authority of a sexual assault counselor or trained volunteer to claim the privilege is presumed in the absence of evidence to the contrary.
Slide239CHAPTER 90
florida evidence code
90.5035 Sexual assault counselor-victim privilege.
—
(3) The privilege may be claimed by:
(a) The victim or the victim’s attorney on his or her behalf.
(b) A guardian or conservator of the victim.
(c) The personal representative of a deceased victim.
(d) The sexual assault counselor or trained volunteer, but only on behalf of the victim. The authority of a sexual assault counselor or trained volunteer to claim the privilege is presumed in the absence of evidence to the contrary.
Slide240CHAPTER 90
florida evidence code
90.5036 Domestic violence advocate-victim privilege.
—
(1) For purposes of this section:
(a) A “domestic violence center” is any public or private agency that offers assistance to victims of domestic violence, as defined in s. 741.28, and their families.
(b) A “domestic violence advocate” means any employee or volunteer who has 30 hours of training in assisting victims of domestic violence and is an employee of or volunteer for a program for victims of domestic violence whose primary purpose is the rendering of advice, counseling, or assistance to victims of domestic violence.
(c) A “victim” is a person who consults a domestic violence advocate for the purpose of securing advice, counseling, or assistance concerning a mental, physical, or emotional condition caused by an act of domestic violence, an alleged act of domestic violence, or an attempted act of domestic violence.
Slide241CHAPTER 90
florida evidence code
90.5036 Domestic violence advocate-victim privilege.
—
Cont’d
(d) A communication between a domestic violence advocate and a victim is “confidential” if it relates to the incident of domestic violence for which the victim is seeking assistance and if it is not intended to be disclosed to third persons other than:
1. Those persons present to further the interest of the victim in the consultation, assessment, or interview.
2. Those persons to whom disclosure is reasonably necessary to accomplish the purpose for which the domestic violence advocate is consulted.
(2) A victim has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made by the victim to a domestic violence advocate or any record made in the course of advising, counseling, or assisting the victim. The privilege applies to confidential communications made between the victim and the domestic violence advocate and to records of those communications only if the advocate is registered under s. 39.905 at
Slide242CHAPTER 90
florida evidence code
90.504 Husband-wife privilege.
—
(1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.
(2) The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence.
(3) There is no privilege under this section:
(a) In a proceeding brought by or on behalf of one spouse against the other spouse.
(b) In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either.
(c) In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.
Slide243CHAPTER 90
florida evidence code
90.507 Waiver of privilege by voluntary disclosure.
—A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person, or the person’s predecessor while holder of the privilege, voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication. This section is not applicable when the disclosure is itself a privileged communication.
90.604 Lack of personal knowledge.
—Except as otherwise provided in s. 90.702, a witness may not testify to a matter unless evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may be given by the witness’s own testimony.
(Ex: Hearsay)
Slide244CHAPTER 90
florida evidence code
90.613 Refreshing the memory of a witness.
—When a witness uses a writing or other item to refresh memory while testifying, an adverse party is entitled to have such writing or other item produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce it, or, in the case of a writing, to introduce those portions which relate to the testimony of the witness, in evidence. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the judge shall examine the writing
in camera
, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objection shall be preserved and made available to the appellate court in the event of an appeal. If a writing or other item is not produced or delivered pursuant to order under this section, the testimony of the witness concerning those matters shall be stricken.
Be careful what you bring to court!
Slide245CHAPTER 90
florida evidence code
90.616 Exclusion of witnesses.
— (“Invoking the Rule”)
(1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2).
(2) A witness may not be excluded if the witness is:
(a) A party who is a natural person.
(b) In a civil case, an officer or employee of a party that is not a natural person. The party’s attorney shall designate the officer or employee who shall be the party’s representative.
(c) A person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s cause.
(d) In a criminal case, the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial.
Slide246CHAPTER 90
florida evidence code
90.701 Opinion testimony of lay witnesses.
—If a witness is not testifying as an expert, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when:
(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.
Slide247CHAPTER 90
florida evidence code
Hint: “In my Professional Opinion
…”
702 Testimony by experts.
—If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
Slide248CHAPTER 90
florida evidence code
90.704 Basis of opinion testimony by experts.
—The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
Slide249CHAPTER 90
florida evidence code
90.705 Disclosure of facts or data underlying expert opinion.
—
(1) Unless otherwise required by the court, an expert may testify in terms of opinion or inferences and give reasons without prior disclosure of the underlying facts or data. On cross-examination the expert shall be required to specify the facts or data.
(2) Prior to the witness giving the opinion, a party against whom the opinion or inference is offered may conduct a
voir
dire examination of the witness
directed to the underlying facts or data for the witness’s opinion. If the party establishes
prima facie (on the face of it)
evidence
that the expert does not have a sufficient basis for the opinion, the opinions and inferences of the expert are inadmissible unless the party offering the testimony establishes the underlying facts or data.
Slide250CHAPTER 90
florida evidence code
90.801 Hearsay; definitions; exceptions.
—
(1) The following definitions apply under this chapter:
(a) A “statement” is:
1. An oral or written assertion; or
2. Nonverbal conduct of a person if it is intended by the person as an assertion.
(b) A “declarant” is a person who makes a statement.
(c) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
(a) Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
Slide251CHAPTER 90
florida evidence code
90.801 Hearsay; definitions; exceptions.
—
Cont’d
(b) Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; or
(c) One of identification of a person made after perceiving the person.
90.802 Hearsay rule.
—Except as provided by statute, hearsay evidence is inadmissible.
Slide252CHAPTER 90
florida evidence code
90.803 Hearsay exceptions; availability of declarant immaterial.
—
The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
(1) SPONTANEOUS STATEMENT.—A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.
(2) EXCITED UTTERANCE.—A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
Slide253CHAPTER 90
florida evidence code
90.803 Hearsay exceptions; availability of declarant immaterial.
—
Cont’d
(3) THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION.—
(a) A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:
1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2. Prove or explain acts of subsequent conduct of the declarant.
Slide254CHAPTER 90
florida evidence code
90.803 Hearsay exceptions; availability of declarant immaterial.
—
Cont’d
(3) THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION.—
(a) A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:
1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2. Prove or explain acts of subsequent conduct of the declarant.
Slide255CHAPTER 90
florida evidence code
90.803 Hearsay exceptions; availability of declarant immaterial.
—
Cont’d
(b) However, this subsection does not make admissible:
1. An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant’s will.
2. A statement made under circumstances that indicate its lack of trustworthiness.
Slide256CHAPTER 90
florida evidence code
90.803 Hearsay exceptions; availability of declarant immaterial.
—
Cont’d
(4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT.—Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.
Slide257CHAPTER 90
florida evidence code
90.803 Hearsay exceptions; availability of declarant immaterial.
—
Cont’d
(4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT.—Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.
Slide258CHAPTER 90
florida evidence code
90.803 Hearsay exceptions; availability of declarant immaterial.
—
Cont’d
(23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM.—
1(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 16 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
Slide259CHAPTER 90
florida evidence code
90.803 Hearsay exceptions; availability of declarant immaterial.
—
Cont’d
1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and
2. The child either:
a. Testifies; or
b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child’s participation
Slide260CHAPTER 90
florida evidence code
90.803 Hearsay exceptions; availability of declarant immaterial.
—
Cont’d
in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1).
(b) In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child’s statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.
(c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection
.
Slide261CHAPTER 90
florida evidence code
90.803 Hearsay exceptions; availability of declarant immaterial.
—
Cont’d
(24) HEARSAY EXCEPTION; STATEMENT OF ELDERLY PERSON OR DISABLED ADULT.—
(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by an elderly person or disabled adult, as defined in s. 825.101, describing any act of abuse or neglect, any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any other violent act on the declarant elderly person or disabled adult, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of
Slide262CHAPTER 90
florida evidence code
90.803 Hearsay exceptions; availability of declarant immaterial.
—
Cont’d
the elderly person or disabled adult, the nature and duration of the abuse or offense, the relationship of the victim to the offender, the reliability of the assertion, the reliability of the elderly person or disabled adult, and any other factor deemed appropriate; and
2. The elderly person or disabled adult either:
a. Testifies; or
b. Is unavailable as a witness, provided that there is corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the elderly person’s or disabled adult’s participation in the trial or proceeding would result in a substantial likelihood of severe emotional, mental, or physical harm, in addition to findings pursuant to s. 90.804(1).
(b) In a criminal action, the defendant shall be notified no later than 10 days before the trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at
Slide263CHAPTER 90
florida evidence code
90.803 Hearsay exceptions; availability of declarant immaterial.
—
Cont’d
trial. The notice shall include a written statement of the content of the elderly person’s or disabled adult’s statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.
(c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.
Slide264CHAPTER 90
florida evidence code
90.803 Hearsay exceptions; availability of declarant immaterial.
—
Cont’d
90.806 Attacking and supporting credibility of declarant.
—
(1) When a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time inconsistent with the declarant’s hearsay statement is admissible, regardless of whether or not the declarant has been afforded an opportunity to deny or explain it.
(2) If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
Slide265CHAPTER 90
florida evidence code
394.455 Definitions.
(Some of them)
(1) “Access center” means a facility that has medical, mental health, and substance abuse professionals to provide emergency screening and evaluation for mental health or substance abuse disorders and may provide transportation to an appropriate facility if an individual is in need of more intensive services.
(2) “Addictions receiving facility” is a secure, acute care facility that, at a minimum, provides emergency screening, evaluation, detoxification, and stabilization services; is operated 24 hours per day, 7 days per week; and is designated by the department to serve individuals found to have substance abuse impairment who qualify for services under this part.
(8) “Community facility” means a community service provider that contracts with the department to furnish substance abuse or mental health services under part IV of this chapter.
(9) “Community mental health center or clinic” means a publicly funded, not-for-profit center that contracts with the department for the provision of inpatient, outpatient, day treatment, or emergency services.
Slide266394.455 Definitions.
(Some of them) --
Cont’d
(13) “Detoxification facility” means a facility licensed to provide detoxification services under chapter 397.
(15) “Express and informed consent” means consent voluntarily given in writing, by a competent person, after sufficient explanation and disclosure of the subject matter involved to enable the person to make a knowing and willful decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion.
17) “Guardian” means the natural guardian of a minor, or a person appointed by a court to act on behalf of a ward’s person if the ward is a minor or has been adjudicated incapacitated.
(18) “Guardian advocate” means a person appointed by a court to make decisions regarding mental health treatment on behalf of a patient who has been found incompetent to consent to treatment pursuant to this part.
CHAPTER 394 mental health
Slide267CHAPTER 394 mental health
394.455 Definitions.
(Some of them) --
Cont’d
(20) “Incapacitated” means that a person has been adjudicated incapacitated pursuant to part V of chapter 744 and a guardian of the person has been appointed.
(21) “Incompetent to consent to treatment” means a state in which a person’s judgment is so affected by a mental illness or a substance abuse impairment that he or she lacks the capacity to make a well-reasoned, willful, and knowing decision concerning his or her medical, mental health, or substance abuse treatment.
(22) “Involuntary examination” means an examination performed under s. 394.463, s. 397.6772, s. 397.679, s. 397.6798, or s. 397.6811 to determine whether a person qualifies for involuntary services.
(23) “Involuntary services” means court-ordered outpatient services or inpatient placement for mental health treatment pursuant to s. 394.4655 or s. 394.467.
Slide268CHAPTER 394 mental health
394.455 Definitions.
(Some of them) --
Cont’d
(30) “Mobile crisis response service” means a nonresidential crisis service available 24 hours per day, 7 days per week which provides immediate intensive assessments and interventions, including screening for admission into a mental health receiving facility, an addictions receiving facility, or a detoxification facility, for the purpose of identifying appropriate treatment services.
(39) “Receiving facility” means a public or private facility or hospital designated by the department to receive and hold or refer, as appropriate, involuntary patients under emergency conditions for mental health or substance abuse evaluation and to provide treatment or transportation to the appropriate service provider. The term does not include a county jail.
Slide269CHAPTER 394 mental health
394.4572 Screening of mental health personnel.
—
(1)(a) The department and the Agency for Health Care Administration shall require level 2 background screening pursuant to chapter 435 for mental health personnel.
Slide270CHAPTER 394 mental health
394.459 Rights of patients.
—
(1) RIGHT TO INDIVIDUAL DIGNITY.
(2) RIGHT TO TREATMENT.—
(3) RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT. (4) QUALITY OF TREATMENT
(5) COMMUNICATION, ABUSE REPORTING, AND VISITS.
(6) CARE AND CUSTODY OF PERSONAL EFFECTS OF PATIENTS.
(7) VOTING IN PUBLIC ELECTIONS.
(8) HABEAS CORPUS.
(11) RIGHT TO PARTICIPATE IN TREATMENT AND DISCHARGE PLANNING
(12) POSTING OF NOTICE OF RIGHTS OF PATIENTS.
(9) VIOLATIONS. (10) LIABILITY FOR VIOLATIONS.
Slide271CHAPTER 394 mental health
394.4593 Sexual misconduct prohibited; reporting required; penalties.
—
(1) As used in this section, the term:
(a) “Employee” includes any paid staff member, volunteer, or intern of the department; any person under contract with the department; and any person providing care or support to a client on behalf of the department or its providers.
(b) “Sexual activity” means:
1. Fondling the genital area, groin, inner thighs, buttocks, or breasts of a person.
2. The oral, anal, or vaginal penetration by or union with the sexual organ of another or the anal or vaginal penetration of another by any other object.
3. Intentionally touching in a lewd or lascivious manner the breasts, genitals, the genital area, or buttocks, or the clothing covering them, of a person, or forcing or enticing a person to touch the perpetrator.
4. Intentionally masturbating in the presence of another person.
Slide272CHAPTER 394 mental health
394.4593 Sexual misconduct prohibited; reporting required; penalties.
—
Cont’d
5. Intentionally exposing the genitals in a lewd or lascivious manner in the presence of another person.
6. Intentionally committing any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity in the presence of a victim.
(c) “Sexual misconduct” means any sexual activity between an employee and a patient, regardless of the consent of the patient. The term does not include an act done for a bona fide medical purpose or an internal search conducted in the lawful performance of duty by an employee.
(2) An employee who engages in sexual misconduct with a patient who:
Slide273CHAPTER 394 mental health
394.4593 Sexual misconduct prohibited; reporting required; penalties.
—
Cont’d
(a) Is in the custody of the department; or
(b) Resides in a receiving facility or a treatment facility, as those terms are defined in s. 394.455,
commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. An employee may be found guilty of violating this subsection without having committed the crime of sexual battery.
(3) The consent of the patient to sexual activity is not a defense to prosecution under this section.
(4) This section does not apply to an employee who:
(a) Is legally married to the patient; or
(b) Has no reason to believe that the person with whom the employee engaged in sexual misconduct is a patient receiving services as described in subsection (2).
Slide274CHAPTER 394 mental health
394.4593 Sexual misconduct prohibited; reporting required; penalties.
—
Cont’d
(5) An employee who witnesses sexual misconduct, or who otherwise knows or has reasonable cause to suspect that a person has engaged in sexual misconduct, shall immediately report the incident to the department’s central abuse hotline and to the appropriate local law enforcement agency. Such employee shall also prepare, date, and sign an independent report that specifically describes the nature of the sexual misconduct, the location and time of the incident, and the persons involved. The employee shall deliver the report to the supervisor or program director, who is responsible for providing copies to the department’s inspector general. The inspector general shall immediately conduct an appropriate administrative investigation, and, if there is probable cause to believe that sexual misconduct has occurred, the inspector general shall notify the state attorney in the circuit in which the incident occurred.
Slide275CHAPTER 394 mental health
394.4593 Sexual misconduct prohibited; reporting required; penalties.
—
Cont’d
(6)(a) Any person who is required to make a report under this section and who knowingly or willfully fails to do so, or who knowingly or willfully prevents another person from doing so, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(b) Any person who knowingly or willfully submits inaccurate, incomplete, or untruthful information with respect to a report required under this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c) Any person who knowingly or willfully coerces or threatens any other person with the intent to alter testimony or a written report regarding an incident of sexual misconduct commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(7) The provisions and penalties set forth in this section are in addition to any other civil, administrative, or criminal action provided by law which may be applied against an employee.
Slide276CHAPTER 394 mental health
394.4598 Guardian advocate.
—
(1) The administrator may petition the court for the appointment of a guardian advocate based upon the opinion of a psychiatrist that the patient is incompetent to consent to treatment. If the court finds that a patient is incompetent to consent to treatment and has not been adjudicated incapacitated and a guardian with the authority to consent to mental health treatment appointed, it shall appoint a guardian advocate.
… (
The person has regular courtroom rights.) (The Guardian Advocate must meet certain criteria.)
Slide277CHAPTER 394 mental health
394.4598 Guardian advocate.
—
Cont’d
6) In selecting a guardian advocate, the court shall give preference to a health care surrogate, if one has already been designated by the patient. If the patient has not previously selected a health care surrogate, except for good cause documented in the court record, the selection shall be made from the following list in the order of listing:
(a) The patient’s spouse.
(b) An adult child of the patient.
(c) A parent of the patient.
(d) The adult next of kin of the patient.
(e) An adult friend of the patient.
(f) An adult trained and willing to serve as guardian advocate for the patient.
(7) If a guardian with the authority to consent to medical treatment has not already been appointed or if the patient has not already designated a health care surrogate, the court may authorize the guardian advocate to consent to medical treatment, as well as
Slide278CHAPTER 394 mental health
394.4598 Guardian advocate.
—
Cont’d
6) In selecting a guardian advocate, the court shall give preference to a health care surrogate, if one has already been designated by the patient. If the patient has not previously selected a health care surrogate, except for good cause documented in the court record, the selection shall be made from the following list in the order of listing:
(a) The patient’s spouse.
(b) An adult child of the patient.
(c) A parent of the patient.
(d) The adult next of kin of the patient.
(e) An adult friend of the patient.
(f) An adult trained and willing to serve as guardian advocate for the patient.
(7) If a guardian with the authority to consent to medical treatment has not already been appointed or if the patient has not already designated a health care surrogate, the court may authorize the guardian advocate to consent to medical treatment, as well as
Slide279CHAPTER 394 mental health
394.4598 Guardian advocate.
—
Cont’d
mental health treatment. Unless otherwise limited by the court, a guardian advocate with authority to consent to medical treatment shall have the same authority to make health care decisions and be subject to the same restrictions as a proxy appointed under part IV of chapter 765. Unless the guardian advocate has sought and received express court approval in proceeding separate from the proceeding to determine the competence of the patient to consent to medical treatment, the guardian advocate may not consent to:
(a) Abortion.
(b) Sterilization.
(c) Electroconvulsive treatment.
(d) Psychosurgery.
(e) Experimental treatments that have not been approved by a federally approved institutional review board in accordance with 45 C.F.R. part 46 or 21 C.F.R. part 56.
Slide280CHAPTER 394 mental health
394.4598 Guardian advocate.
—
Cont’d
The court must base its decision on evidence that the treatment or procedure is essential to the care of the patient and that the treatment does not present an unreasonable risk of serious, hazardous, or irreversible side effects. The court shall follow the procedures set forth in subsection (1) of this section.
(8) The guardian advocate shall be discharged when the patient is discharged from an order for involuntary outpatient placement or involuntary inpatient placement or when the patient is transferred from involuntary to voluntary status. The court or a hearing officer shall consider the competence of the patient pursuant to subsection (1) and may consider an involuntarily placed patient’s competence to consent to treatment at any hearing. Upon sufficient evidence, the court may restore, or the hearing officer may recommend that the court restore, the patient’s competence. A copy of the order restoring competence or the certificate of discharge containing the restoration of competence shall be provided to the patient and the guardian advocate.
Slide281CHAPTER 394 mental health
394.4615 Clinical records; confidentiality.
—
(1) A clinical record shall be maintained for each patient. The record shall include data pertaining to admission and such other information as may be required under rules of the department. A clinical record is confidential and exempt from the provisions of s. 119.07(1). Unless waived by express and informed consent, by the patient or the patient’s guardian or guardian advocate or, if the patient is deceased, by the patient’s personal representative or the family member who stands next in line of intestate succession, the confidential status of the clinical record shall not be lost by either authorized or unauthorized disclosure to any person, organization, or agency.
Slide282CHAPTER 394 mental health
394.4615 Clinical records; confidentiality.— Cont’d
(2) The clinical record
shall
be released when:
(a) The patient or the patient’s guardian authorizes the release. The guardian or guardian advocate shall be provided access to the appropriate clinical records of the patient. The patient or the patient’s guardian or guardian advocate may authorize the release of information and clinical records to appropriate persons to ensure the continuity of the patient’s health care or mental health care.
(b) The patient is represented by counsel and the records are needed by the patient’s counsel for adequate representation.
(c) The court orders such release. In determining whether there is good cause for disclosure, the court shall weigh the need for the information to be disclosed against the possible harm of disclosure to the person to whom such information pertains.
Slide283CHAPTER 394 mental health
394.4615 Clinical records; confidentiality.
—
Cont’d
d) The patient is committed to, or is to be returned to, the Department of Corrections from the Department of Children and Families, and the Department of Corrections requests such records. These records shall be furnished without charge to the Department of Corrections.
(3) Information from the clinical record may be released in the following circumstances:
(a) When a patient has declared an intention to harm other persons. When such declaration has been made, the administrator may authorize the release of sufficient information to provide adequate warning to the person threatened with harm by the patient.
(b) When the administrator of the facility or secretary of the department deems release to a qualified researcher as defined in administrative rule, an aftercare treatment provider, or an employee or agent of the department is necessary for treatment of the patient, maintenance of adequate records, compilation of treatment data,
Slide284CHAPTER 394 mental health
394.4615 Clinical records; confidentiality.
—
Cont’d
aftercare planning, or evaluation of programs.
For the purpose of determining whether a person meets the criteria for involuntary outpatient placement or for preparing the proposed treatment plan pursuant to s. 394.4655, the clinical record may be released to the state attorney, the public defender or the patient’s private legal counsel, the court, and to the appropriate mental health professionals, including the service provider identified in s. 394.4655(7)(b)2., in accordance with state and federal law.
(4) Information from clinical records may be used for statistical and research purposes if the information is abstracted in such a way as to protect the identity of individuals.
(5) Information from clinical records may be used by the Agency for Health Care Administration, the department, and the Florida advocacy councils for the purpose of monitoring facility activity and complaints concerning facilities.
Slide285CHAPTER 394 mental health
394.4615 Clinical records; confidentiality.
—
Cont’d
(6) Clinical records relating to a Medicaid recipient shall be furnished to the Medicaid Fraud Control Unit in the Department of Legal Affairs, upon request.
(7) Any person, agency, or entity receiving information pursuant to this section shall maintain such information as confidential and exempt from the provisions of s. 119.07(1).
(8) Any facility or private mental health practitioner who acts in good faith in releasing information pursuant to this section is not subject to civil or criminal liability for such release.
(9) Nothing in this section is intended to prohibit the parent or next of kin of a person who is held in or treated under a mental health facility or program from requesting and receiving information limited to a summary of that person’s treatment plan and current physical and mental condition. Release of such information shall be in accordance with the code of ethics of the profession involved.
Slide286CHAPTER 394 mental health
394.4615 Clinical records; confidentiality.
—
Cont’d
(10) Patients shall have reasonable access to their clinical records, unless such access is determined by the patient’s physician to be harmful to the patient. If the patient’s right to inspect his or her clinical record is restricted by the facility, written notice of such restriction shall be given to the patient and the patient’s guardian, guardian advocate, attorney, and representative. In addition, the restriction shall be recorded in the clinical record, together with the reasons for it. The restriction of a patient’s right to inspect his or her clinical record shall expire after 7 days but may be renewed, after review, for subsequent 7-day periods.
(11) Any person who fraudulently alters, defaces, or falsifies the clinical record of any person receiving mental health services in a facility subject to this part, or causes or procures any of these offenses to be committed, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
Slide287CHAPTER 394 mental health
394.4625 Voluntary admissions.
—
(1) AUTHORITY TO RECEIVE PATIENTS.—
(a) A facility may receive for observation, diagnosis, or treatment any person 18 years of age or older making application by express and informed consent for admission or any person age 17 or under for whom such application is made by his or her guardian. If found to show evidence of mental illness, to be competent to provide express and informed consent, and to be suitable for treatment, such person 18 years of age or older may be admitted to the facility. A person age 17 or under may be admitted only after a hearing to verify the voluntariness of the consent.
Slide288CHAPTER 394 mental health
394.4625 Voluntary admissions.
— Cont’d
(1) AUTHORITY TO RECEIVE PATIENTS.—
(a) A facility may receive for observation, diagnosis, or treatment any person 18 years of age or older making application by express and informed consent for admission or any person age 17 or under for whom such application is made by his or her guardian. If found to show evidence of mental illness, to be competent to provide express and informed consent, and to be suitable for treatment, such person 18 years of age or older may be admitted to the facility. A person age 17 or under may be admitted only after a hearing to verify the voluntariness of the consent.
Slide289CHAPTER 394 mental health
394.4625 Voluntary admissions.
— Cont’d
(b) A mental health overlay program or a mobile crisis response service or a licensed professional who is authorized to initiate an involuntary examination pursuant to s. 394.463 and is employed by a community mental health center or clinic must, pursuant to district procedure approved by the respective district administrator, conduct an initial assessment of the ability of the following persons to give express and informed consent to treatment before such persons may be admitted voluntarily:
1. A person 60 years of age or older for whom transfer is being sought from a nursing home, assisted living facility, adult day care center, or adult family-care home, when such person has been diagnosed as suffering from dementia.
2. A person 60 years of age or older for whom transfer is being sought from a nursing home pursuant to s. 400.0255(12).
3. A person for whom all decisions concerning medical treatment are currently being lawfully made by the health care surrogate or proxy designated under chapter 765.
Slide290CHAPTER 394 mental health
394.463 Involuntary examination.
—
(1) CRITERIA.—A person may be taken to a receiving facility for involuntary examination if there is reason to believe that the person has a mental illness and because of his or her mental illness:
(a)1. The person has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination; or
2. The person is unable to determine for himself or herself whether examination is necessary; and
(b)1. Without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself; such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services; or
2. There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior.
Slide291CHAPTER 394 mental health
(2) INVOLUNTARY EXAMINATION.—
(a) An involuntary examination may be initiated by any one of the following means:
1. A circuit or county court may enter an ex
parte
order stating that a person appears to meet the criteria for involuntary examination and specifying the findings on which that conclusion is based. The ex
parte
order for involuntary examination must be based on written or oral sworn testimony that includes specific facts that support the findings. If other less restrictive means are not available, such as voluntary appearance for outpatient evaluation, a law enforcement officer, or other designated agent of the court, shall take the person into custody and deliver him or her to an appropriate, or the nearest, facility within the designated receiving system pursuant to s. 394.462 for involuntary examination. The order of the court shall be made a part of the patient’s clinical record. A fee may not be charged for the filing of an order under this subsection. A facility accepting the patient based on this order must send a copy of the order to the department
Slide292CHAPTER 394 mental health
(2) INVOLUNTARY EXAMINATION.— Cont’d
the next working day. The order may be submitted electronically through existing data systems, if available. The order shall be valid only until the person is delivered to the facility or for the period specified in the order itself, whichever comes first. If no time limit is specified in the order, the order shall be valid for 7 days after the date that the order was signed.
2. A law enforcement officer shall take a person who appears to meet the criteria for involuntary examination into custody and deliver the person or have him or her delivered to an appropriate, or the nearest, facility within the designated receiving system pursuant to s. 394.462 for examination. The officer shall execute a written report detailing the circumstances under which the person was taken into custody, which must be made a part of the patient’s clinical record. Any facility accepting the patient based on this report must send a copy of the report to the department the next working day.
3. A physician, clinical psychologist, psychiatric nurse, mental health
Slide293CHAPTER 394 mental health
(2) INVOLUNTARY EXAMINATION.— Cont’d
counselor, marriage and family therapist, or clinical social worker may execute a certificate stating that he or she has examined a person within the preceding 48 hours and finds that the person appears to meet the criteria for involuntary examination and stating the observations upon which that conclusion is based. If other less restrictive means, such as voluntary appearance for outpatient evaluation, are not available, a law enforcement officer shall take into custody the person named in the certificate and deliver him or her to the appropriate, or nearest, facility within the designated receiving system pursuant to s. 394.462 for involuntary examination. The law enforcement officer shall execute a written report detailing the circumstances under which the person was taken into custody. The report and certificate shall be made a part of the patient’s clinical record. Any facility accepting the patient based on this certificate must send a copy of the certificate to the department the next working day. The document may be submitted electronically through existing data systems, if applicable.
Slide294CHAPTER 394 mental health
394.467 Involuntary inpatient placement.
—
(1) CRITERIA.—A person may be ordered for involuntary inpatient placement for treatment upon a finding of the court by clear and convincing evidence that:
(a) He or she has a mental illness and because of his or her mental illness:
1.a. He or she has refused voluntary inpatient placement for treatment after sufficient and conscientious explanation and disclosure of the purpose of inpatient placement for treatment; or
b. He or she is unable to determine for himself or herself whether inpatient placement is necessary; and
2.a. He or she is incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, is likely to suffer from neglect or refuse to care for himself or herself, and such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; or
Slide295CHAPTER 394 mental health
394.467 Involuntary inpatient placement.
—
b. There is substantial likelihood that in the near future he or she will inflict serious bodily harm on self or others, as evidenced by recent behavior causing, attempting, or threatening such harm; and
(b) All available less restrictive treatment alternatives that would offer an opportunity for improvement of his or her condition have been judged to be inappropriate.
Slide296CHAPTER 394 mental health
CHAPTER 394 -- MENTAL HEALTH
FINAL SUMMARY
PART I -- FLORIDA MENTAL HEALTH ACT
(ss. 394.451-394.47892)
PART II -- INTERSTATE COMPACT ON MENTAL HEALTH
(ss. 394.479-394.484)
PART III -- COMPREHENSIVE CHILD AND ADOLESCENT MENTAL HEALTH
SERVICES
(ss. 394.490-394.4995)
PART IV -- COMMUNITY SUBSTANCE ABUSE AND MENTAL HEALTH
SERVICES
(ss. 394.65-394.9085)
PART V -- INVOLUNTARY CIVIL COMMITMENT OF SEXUALLY VIOLENT
PREDATORS
(ss. 394.910-394.932)
Slide297CHAPTER 397
substance abuse services
397.305 Legislative findings, intent, and purpose.
—
(1) Substance abuse is a major health problem that affects multiple service systems and leads to such profoundly disturbing consequences as serious impairment, chronic addiction, criminal behavior, vehicular casualties, spiraling health care costs, AIDS, and business losses, and significantly affects the culture, socialization, and learning ability of children within our schools and educational systems. Substance abuse impairment is a disease which affects the whole family and the whole society and requires a system of care that includes prevention, intervention, clinical treatment, and recovery support services that support and strengthen the family unit. Further, it is the intent of the Legislature to require the collaboration of state agencies, service systems, and program offices to achieve the goals of this chapter and address the needs of the public; to establish a comprehensive system of care for substance abuse; and to reduce duplicative requirements across state agencies. This chapter is designed to provide for substance abuse services.
Slide298CHAPTER 397
substance abuse services
(2) It is the goal of the Legislature to discourage substance abuse by promoting healthy lifestyles; healthy families; and drug-free schools, workplaces, and communities.
(3) It is the purpose of this chapter to provide for a comprehensive continuum of accessible and quality substance abuse prevention, intervention, clinical treatment, and recovery support services in the least restrictive environment which promotes long-term recovery while protecting and respecting the rights of individuals, primarily through community-based private not-for-profit providers working with local governmental programs involving a wide range of agencies from both the public and private sectors.
(4) It is the intent of the Legislature that licensed, qualified health professionals be authorized to practice to the full extent of their education and training in the performance of professional functions necessary to carry out the intent of this chapter.
Slide299CHAPTER 397
substance abuse services
397.311 Definitions.
— (Some of them):
(1) “Ancillary services” are services that include, but are not limited to, special diagnostic, prenatal and postnatal, other medical, mental health, legal, economic, vocational, employment, and educational services.
(2) “Authorized agent of the department” means a person designated by the department to conduct any audit, inspection, monitoring, evaluation, or other duty imposed upon the department pursuant to this chapter. An authorized agent must be qualified by expertise and experience to perform these functions.
(3) “Beyond the safe management capabilities of the service provider” refers to an individual who is in need of:
(a) Supervision;
(b) Medical care; or
(c) Services,
beyond that which the service provider or service component can deliver.
(15) “Habitual abuser” means a person who is brought to the attention of law enforcement for being substance impaired, who meets the criteria for involuntary admission in s. 397.675, and who has been taken into custody for such impairment three or more times during the preceding 12 months.
Slide300CHAPTER 397
substance abuse services
397.311 Definitions.
—
(Some of them): Cont’d
4. “Detoxification” is a service involving
subacute
care that is provided on an inpatient or an outpatient basis to assist individuals to withdraw from the physiological and psychological effects of substance abuse and who meet the placement criteria for this component.
5. “Intensive inpatient treatment” includes a planned regimen of evaluation, observation, medical monitoring, and clinical protocols delivered through an interdisciplinary team approach provided 24 hours per day, 7 days per week, in a highly structured, live-in environment.
6. “Intensive outpatient treatment” is a service that provides individual or group counseling in a more structured environment, is of higher intensity and duration than outpatient treatment, and is provided to individuals who meet the placement criteria for this component.
7. “Medication-assisted treatment for opiate addiction” is a service that uses methadone or other medication as authorized by state and federal law, in combination with medical, rehabilitative, and counseling services in the treatment of individuals who are dependent on opioid drugs.
Slide301CHAPTER 397
substance abuse services
397.311 Definitions.
—
(Some of them): Cont’d
8. “Outpatient treatment” is a service that provides individual, group, or family counseling by appointment during scheduled operating hours for individuals who meet the placement criteria for this component.
9. “Residential treatment” is a service provided in a structured live-in environment within a nonhospital setting on a 24-hours-per-day, 7-days-per-week basis, and is intended for individuals who meet the placement criteria for this component.
(b) “Intervention” means structured services directed toward individuals or groups at risk of substance abuse and focused on reducing or impeding those factors associated with the onset or the early stages of substance abuse and related problems.
…
(26) “Medication-assisted treatment (MAT)” is the use of medications approved by the United States Food and Drug Administration, in combination with counseling and behavioral therapies, to provide a holistic approach to the treatment of substance abuse.
…
Slide302CHAPTER 397
substance abuse services
397.311 Definitions.
—
(Some of them): Cont’d
8. “Outpatient treatment” is a service that provides individual, group, or family counseling by appointment during scheduled operating hours for individuals who meet the placement criteria for this component.
9. “Residential treatment” is a service provided in a structured live-in environment within a nonhospital setting on a 24-hours-per-day, 7-days-per-week basis, and is intended for individuals who meet the placement criteria for this component.
(b) “Intervention” means structured services directed toward individuals or groups at risk of substance abuse and focused on reducing or impeding those factors associated with the onset or the early stages of substance abuse and related problems.
…
(26) “Medication-assisted treatment (MAT)” is the use of medications approved by the United States Food and Drug Administration, in combination with counseling and behavioral therapies, to provide a holistic approach to the treatment of substance abuse.
…
Slide303CHAPTER 397
substance abuse services
397.311 Definitions.
—
(Some of them): Cont’d
(35) “Recovery” means a process of personal change through which individuals achieve abstinence from alcohol or drug use and improve health, wellness, and quality of life.
(36) “Recovery residence” means a residential dwelling unit, or other form of group housing, that is offered or advertised through any means, including oral, written, electronic, or printed means, by any person or entity as a residence that provides a peer-supported, alcohol-free, and drug-free living environment.
…
(40) “Secure facility,” except where the context indicates a correctional system facility, means a provider that has the authority to deter the premature departure of involuntary individuals whose leaving constitutes a violation of a court order or community-based supervision as provided by law. The term “secure facility” includes addictions receiving facilities and facilities authorized by local ordinance for the treatment of habitual abusers.
(41) “Service component” or “component” means a discrete operational entity within a service provider which is subject to licensing as defined by rule. Service components include prevention, intervention, and clinical treatment described in subsection (25).
…
Slide304CHAPTER 397
substance abuse services
397.311 Definitions.
—
(Some of them): Cont’d
(44) “Stabilization” means:
(a) Alleviation of a crisis condition; or
(b) Prevention of further deterioration,
and connotes short-term emergency treatment.
(45) “Substance abuse” means the misuse or abuse of, or dependence on alcohol, illicit drugs, or prescription medications. As an individual progresses along this continuum of misuse, abuse, and dependence, there is an increased need for substance abuse intervention and treatment to help abate the problem.
…
(48) “Treatment plan” means an immediate and a long-range plan based upon an individual’s assessed needs and used to address and monitor an individual’s recovery from substance abuse.
Slide305CHAPTER 397
substance abuse services
397.334 Treatment-based drug court programs.
—
(1) Each county may fund a treatment-based drug court program under which persons in the justice system assessed with a substance abuse problem will be processed in such a manner as to appropriately address the severity of the identified substance abuse problem through treatment services tailored to the individual needs of the participant. It is the intent of the Legislature to encourage the Department of Corrections, the Department of Children and Families, the Department of Juvenile Justice, the Department of Health, the Department of Law Enforcement, the Department of Education, and such agencies, local governments, law enforcement agencies, other interested public or private sources, and individuals to support the creation and establishment of these problem-solving court programs. Participation in the treatment-based drug court programs does not divest any public or private agency of its responsibility for a child or adult, but enables these agencies to better meet their needs through shared responsibility and resources.
Slide306CHAPTER 397
substance abuse services
397.334 Treatment-based drug court programs.
—
(2) Entry into any pretrial treatment-based drug court program shall be voluntary. When neither s. 948.08(6)(a)1. nor 2. applies, the court may order an individual to enter into a pretrial treatment-based drug court program only upon written agreement by the individual, which shall include a statement that the individual understands the requirements of the program and the potential sanctions for noncompliance.
(3)(a) Entry into any
postadjudicatory
treatment-based drug court program as a condition of probation or community control pursuant to s. 948.01, s. 948.06, or s. 948.20 must be based upon the sentencing court’s assessment of the defendant’s criminal history, substance abuse screening outcome, amenability to the services of the program, total sentence points, the recommendation of the state attorney and the victim, if any, and the defendant’s agreement to enter the program.
Slide307CHAPTER 397
substance abuse services
397.334 Treatment-based drug court programs.
—
Cont’d
(b) An offender who is sentenced to a
postadjudicatory
drug court program and who, while a drug court participant, is the subject of a violation of probation or community control under s. 948.06 shall have the violation of probation or community control heard by the judge presiding over the
postadjudicatory
drug court program. The judge shall dispose of any such violation, after a hearing on or admission of the violation, as he or she deems appropriate if the resulting sentence or conditions are lawful.
(4) The treatment-based drug court programs shall include therapeutic jurisprudence principles and adhere to the following 10 key components, recognized by the Drug Courts Program Office of the Office of Justice Programs of the United States Department of Justice and adopted by the Florida Supreme Court Treatment-Based Drug Court Steering Committee:
(a) Drug court programs integrate alcohol and other drug
treatment services with justice system case processing.
Slide308CHAPTER 397
substance abuse services
397.334 Treatment-based drug court programs.
—
Cont’d
(b) Using a
nonadversarial
approach, prosecution and defense counsel promote public safety while protecting participants’ due process rights.
(c) Eligible participants are identified early and promptly placed in the drug court program.
(d) Drug court programs provide access to a continuum of alcohol, drug, and other related treatment and rehabilitation services.
(e) Abstinence is monitored by frequent testing for alcohol and other drugs.
(f) A coordinated strategy governs drug court program responses to participants’ compliance.
(g) Ongoing judicial interaction with each drug court program participant is essential.
(h) Monitoring and evaluation measure the achievement of program goals and gauge program effectiveness.
(
i
) Continuing interdisciplinary education promotes effective drug court program planning, implementation, and operations.
Slide309CHAPTER 397
substance abuse services
397.334 Treatment-based drug court programs.
—
Cont’d
(j) Forging partnerships among drug court programs, public agencies, and community-based organizations generates local support and enhances drug court program effectiveness.
(5) Treatment-based drug court programs may include pretrial intervention programs as provided in ss. 948.08, 948.16, and 985.345, treatment-based drug court programs authorized in chapter 39,
postadjudicatory
programs as provided in ss. 948.01, 948.06, and 948.20, and review of the status of compliance or noncompliance of sentenced offenders through a treatment-based drug court program. While enrolled in a treatment-based drug court program, the participant is subject to a coordinated strategy developed by a drug court team under subsection (4). The coordinated strategy may include a protocol of sanctions that may be imposed upon the participant for noncompliance with program rules. The protocol of sanctions may include, but is
Slide310CHAPTER 397
substance abuse services
397.334 Treatment-based drug court programs.
—
Cont’d
not limited to, placement in a substance abuse treatment program offered by a licensed service provider as defined in s. 397.311 or in a jail-based treatment program or serving a period of secure detention under chapter 985 if a child or a period of incarceration within the time limits established for contempt of court if an adult. The coordinated strategy must be provided in writing to the participant before the participant agrees to enter into a treatment-based drug court program.
Slide311CHAPTER 397
substance abuse services
397.401 License required; penalty; injunction; rules waivers.
—
(1) It is unlawful for any person or agency to act as a substance abuse service provider unless it is licensed or exempt from licensure under this chapter.
(2) A violation of subsection (1) is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
Slide312CHAPTER 397
substance abuse services
397.416 Substance abuse treatment services; qualified professional.
—Notwithstanding any other provision of law, a person who was certified through a certification process recognized by the former Department of Health and Rehabilitative Services before January 1, 1995, may perform the duties of a qualified professional with respect to substance abuse treatment services as defined in this chapter, and need not meet the certification requirements contained in s. 397.311(33).
Slide313CHAPTER 397
substance abuse services
397.416 Substance abuse treatment services; qualified professional.
—Notwithstanding any other provision of law, a person who was certified through a certification process recognized by the former Department of Health and Rehabilitative Services before January 1, 1995, may perform the duties of a qualified professional with respect to substance abuse treatment services as defined in this chapter, and need not meet the certification requirements contained in s. 397.311(33).
Slide314CHAPTER 397
substance abuse services
397.427 Medication-assisted treatment service providers; rehabilitation program; needs assessment and provision of services; persons authorized to issue takeout medication; unlawful operation; penalty.
—
(1) Providers of medication-assisted treatment services for opiate addiction may not be licensed unless they provide supportive rehabilitation programs. Supportive rehabilitation programs include, but are not limited to, counseling, therapy, and vocational rehabilitation.
Are we licensed to do this?
Slide315CHAPTER 397
substance abuse services
397.427 Medication-assisted treatment service providers; rehabilitation program; needs assessment and provision of services; persons authorized to issue takeout medication; unlawful operation; penalty.
—
(1) Providers of medication-assisted treatment services for opiate addiction may not be licensed unless they provide supportive rehabilitation programs. Supportive rehabilitation programs include, but are not limited to, counseling, therapy, and vocational rehabilitation.
Are we licensed to do this?
No, we are not physicians.
But we are part of the picture.
Slide316CHAPTER 397
substance abuse services
397.501 Rights of individuals.
—Individuals receiving substance abuse services from any service provider are guaranteed protection of the rights specified in this section, unless otherwise expressly provided, and service providers must ensure the protection of such rights.
(1) RIGHT TO INDIVIDUAL DIGNITY.
(2) RIGHT TO NONDISCRIMINATORY SERVICES.
(3) RIGHT TO QUALITY SERVICES.
(4) RIGHT TO COMMUNICATION.
(5) RIGHT TO CARE AND CUSTODY OF PERSONAL EFFECTS.
(6) RIGHT TO EDUCATION OF MINORS.
(7) RIGHT TO CONFIDENTIALITY OF INDIVIDUAL RECORDS.
(8) RIGHT TO COUNSEL.
(9) RIGHT TO HABEAS CORPUS.
(10) LIABILITY AND IMMUNITY.
Slide317CHAPTER 397
substance abuse services
397.675 Criteria for involuntary admissions, including protective custody, emergency admission, and other involuntary assessment, involuntary treatment, and alternative involuntary assessment for minors, for purposes of assessment and stabilization, and for involuntary treatment.
—A person meets the criteria for involuntary admission if there is good faith reason to believe that the person is substance abuse impaired or has a co-occurring mental health disorder and, because of such impairment or disorder:
(1) Has lost the power of self-control with respect to substance abuse; and
(2)(a) Is in need of substance abuse services and, by reason of substance abuse impairment, his or her judgment has been so impaired that he or she is incapable of appreciating his or her need for such services and of making a rational decision in that regard, although mere refusal to receive such services does not constitute evidence of lack of judgment with respect to his or her need for such services; or
Slide318CHAPTER 397
substance abuse services
397.675 Criteria for involuntary admissions, including protective custody, emergency admission, and other involuntary assessment, involuntary treatment, and alternative involuntary assessment for minors, for purposes of assessment and stabilization, and for involuntary treatment. --Cont’d
(b) Without care or treatment, is likely to suffer from neglect or refuse to care for himself or herself; that such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and that it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services, or there is substantial likelihood that the person has inflicted, or threatened to or attempted to inflict, or, unless admitted, is likely to inflict, physical harm on himself, herself, or another.
Slide319CHAPTER 397
substance abuse services
397.6752 Referral of involuntarily admitted individual for voluntary treatment.
—Upon giving his or her written informed consent, an involuntarily admitted individual may be referred to a service provider for voluntary admission when the service provider determines that the individual no longer meets involuntary criteria.
397.6759 Parental participation in treatment.
—A parent, legal guardian, or legal custodian who seeks involuntary admission of a minor pursuant to ss. 397.675-397.6977 is required to participate in all aspects of treatment as determined appropriate by the director of the licensed service provider.
Slide320CHAPTER 397
substance abuse services
397.677 Protective custody; circumstances justifying.
—A law enforcement officer may implement protective custody measures as specified in this part when a minor or an adult who appears to meet the involuntary admission criteria in s. 397.675 is:
(1) Brought to the attention of law enforcement; or
(2) In a public place.
History
.
—s. 6,
ch.
93-39.
397.6771
Protective
custody
with
consent
.
—A person in
circumstances
which
justify
protective
custody
, as
described
in s. 397.677,
may
consent
to be
assisted
by a law
enforcement
officer
to
his
or
her
home
, to a
hospital
,
or
to a
licensed
detoxification
or
addictions
receiving
facility
,
whichever
the
officer
determines
is
most
appropriate
.
Slide321CHAPTER 397
substance abuse services
397.6772 Protective custody without consent.
—
(1) If a person in circumstances which justify protective custody as described in s. 397.677 fails or refuses to consent to assistance and a law enforcement officer has determined that a hospital or a licensed detoxification or addictions receiving facility is the most appropriate place for the person, the officer may, after giving due consideration to the expressed wishes of the person:
(a) Take the person to a hospital or to a licensed detoxification or addictions receiving facility against the person’s will but without using unreasonable force. The officer shall use the standard form developed by the department pursuant to s. 397.321 to execute a written report detailing the circumstances under which the person was taken into custody. The written report shall be included in the patient’s clinical record; or
(b) In the case of an adult, detain the person for his or her own protection in any municipal or county jail or other appropriate detention facility.
Slide322CHAPTER 397
substance abuse services
397.6772 Protective custody without consent.
—
Cont’d
Such detention is not to be considered an arrest for any purpose, and no entry or other record may be made to indicate that the person has been detained or charged with any crime. The officer in charge of the detention facility must notify the nearest appropriate licensed service provider within the first 8 hours after detention that the person has been detained. It is the duty of the detention facility to arrange, as necessary, for transportation of the person to an appropriate licensed service provider with an available bed. Persons taken into protective custody must be assessed by the attending physician within the 72-hour period and without unnecessary delay, to determine the need for further services.
(2) The nearest relative of a minor in protective custody must be notified by the law enforcement officer, as must the nearest relative of an adult, unless the adult requests that there be no notification.
Slide323CHAPTER 397
substance abuse services
397.6773 Dispositional alternatives after protective custody.
—
(1) An individual who is in protective custody must be released by a qualified professional when:
(a) The individual no longer meets the involuntary admission criteria in s. 397.675;
(b) The 72-hour period has elapsed; or
(c) The individual has consented to remain voluntarily at the licensed service provider.
(2) An individual may only be retained in protective custody beyond the 72-hour period when a petition for involuntary assessment or treatment has been initiated. The timely filing of the petition authorizes the service provider to retain physical custody of the individual pending further order of the court.
Slide324CHAPTER 397
substance abuse services
397.6773 Dispositional alternatives after protective custody.
—
(1) An individual who is in protective custody must be released by a qualified professional when:
(a) The individual no longer meets the involuntary admission criteria in s. 397.675;
(b) The 72-hour period has elapsed; or
(c) The individual has consented to remain voluntarily at the licensed service provider.
(2) An individual may only be retained in protective custody beyond the 72-hour period when a petition for involuntary assessment or treatment has been initiated. The timely filing of the petition authorizes the service provider to retain physical custody of the individual pending further order of the court.
Slide325CHAPTER 397
substance abuse services
397.6798 Alternative involuntary assessment procedure for minors.
—
(1) In addition to protective custody, emergency admission, and involuntary assessment and stabilization, an addictions receiving facility may admit a minor for involuntary assessment and stabilization upon the filing of an application to an addictions receiving facility by the minor’s parent, guardian, or legal custodian. The application must establish the need for involuntary assessment and stabilization based on the criteria for involuntary admission in s. 397.675. Within 72 hours after involuntary admission of a minor, the minor must be assessed to determine the need for further services. Assessments must be performed by a qualified professional. If, after the 72-hour period, it is determined by the attending physician that further services are necessary, the minor may be kept for a period of up to 5 days, inclusive of the 72-hour period.
(2) An application for alternative involuntary assessment for a minor must establish the need for immediate involuntary admission and contain the name of the minor to be admitted, the name and
Slide326CHAPTER 397
substance abuse services
397.6798 Alternative involuntary assessment procedure for minors.
—
signature of the applicant, the relationship between the minor to be admitted and the applicant, and factual allegations with respect to:
(a) The reason for the applicant’s belief that the minor is substance abuse impaired; and
(b) The reason for the applicant’s belief that because of such impairment the minor has lost the power of self-control with respect to substance abuse; and either
(c)1. The reason the applicant believes that the minor has inflicted or is likely to inflict physical harm on himself or herself or others unless admitted; or
2. The reason the applicant believes that the minor’s refusal to voluntarily receive substance abuse services is based on judgment so impaired by reason of substance abuse that he or she is incapable of appreciating his or her need for such services and of making a rational decision regarding his or her need for services.
Slide327CHAPTER 397
substance abuse services
397.6799 Disposition of minor upon completion of alternative involuntary assessment.
—A minor who has been assessed pursuant to s. 397.6798 must, within the time specified, be released or referred for further voluntary or involuntary treatment, whichever is most appropriate to the needs of the minor.
Slide328CHAPTER 397
substance abuse services
397.6978 Guardian advocate; patient incompetent to consent; substance abuse disorder.
—
(1) The administrator of a receiving facility or an addictions receiving facility may petition the court for the appointment of a guardian advocate based upon the opinion of a qualified professional that the patient is incompetent to consent to treatment. If the court finds that a patient is incompetent to consent to treatment and has not been adjudicated incapacitated and that a guardian with the authority to consent to substance abuse treatment has not been appointed, it may appoint a guardian advocate. The patient has the right to have an attorney represent him or her at the hearing. If the person is indigent, the court shall appoint the office of criminal conflict and civil regional counsel to represent him or her at the hearing. The patient has the right to testify, cross-examine witnesses, and present witnesses. The proceeding shall be recorded electronically or
stenographically
, and testimony must be provided under oath. One of the qualified professionals authorized to give an opinion in support of a petition for involuntary services, as described in s. 397.693, must testify. A guardian advocate must meet the qualifications of a guardian contained in part IV of chapter 744. The person who is appointed as a guardian advocate must agree to the appointment.
Slide329CHAPTER 397
substance abuse services
415.102 Definitions of terms used in ss. 415.101-415.113.
—As used in ss. 415.101-415.113, the term:
(1) “Abuse” means any willful act or threatened act by a relative, caregiver, or household member which causes or is likely to cause significant impairment to a vulnerable adult’s physical, mental, or emotional health. Abuse includes acts and omissions.
(2) “Activities of daily living” means functions and tasks for self-care, including ambulation, bathing, dressing, eating, grooming, toileting, and other similar tasks.
(3) “Alleged perpetrator” means a person who has been named by a reporter as the person responsible for abusing, neglecting, or exploiting a vulnerable adult.
(4) “Capacity to consent” means that a vulnerable adult has sufficient understanding to make and communicate responsible decisions regarding the vulnerable adult’s person or property, including whether or not to accept protective services offered by the department.
Slide330CHAPTER 397
substance abuse services
415.102 Definitions of terms used in ss. 415.101-415.113.
—
Cont’d
(5) “Caregiver” means a person who has been entrusted with or has assumed the responsibility for frequent and regular care of or services to a vulnerable adult on a temporary or permanent basis and who has a commitment, agreement, or understanding with that person or that person’s guardian that a caregiver role exists. “Caregiver” includes, but is not limited to, relatives, household members, guardians, neighbors, and employees and volunteers of facilities as defined in subsection (9). For the purpose of departmental investigative jurisdiction, the term “caregiver” does not include law enforcement officers or employees of municipal or county detention facilities or the Department of Corrections while acting in an official capacity.
(6) “Deception” means a misrepresentation or concealment of a material fact relating to services rendered, disposition of property, or the use of property intended to benefit a vulnerable adult.
Slide331CHAPTER 397
substance abuse services
415.102 Definitions of terms used in ss. 415.101-415.113.
—
Cont’d
(8)(a) “Exploitation” means a person who:
1. Stands in a position of trust and confidence with a vulnerable adult and knowingly, by deception or intimidation, obtains or uses, or endeavors to obtain or use, a vulnerable adult’s funds, assets, or property with the intent to temporarily or permanently deprive a vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult; or
2. Knows or should know that the vulnerable adult lacks the capacity to consent, and obtains or uses, or endeavors to obtain or use, the vulnerable adult’s funds, assets, or property with the intent to temporarily or permanently deprive the vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult.
Slide332CHAPTER 415 Adult protective services
415.102 Definitions of terms used in ss. 415.101-415.113.
—
Cont’d
(8)(a) “Exploitation” means a person who:
1. Stands in a position of trust and confidence with a vulnerable adult and knowingly, by deception or intimidation, obtains or uses, or endeavors to obtain or use, a vulnerable adult’s funds, assets, or property with the intent to temporarily or permanently deprive a vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult; or
2. Knows or should know that the vulnerable adult lacks the capacity to consent, and obtains or uses, or endeavors to obtain or use, the vulnerable adult’s funds, assets, or property with the intent to temporarily or permanently deprive the vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult.
Slide333CHAPTER 415 Adult protective services
415.102 Definitions of terms used in ss. 415.101-415.113.
—
Cont’d
(b) “Exploitation” may include, but is not limited to:
1. Breaches of fiduciary relationships, such as the misuse of a power of attorney or the abuse of guardianship duties, resulting in the unauthorized appropriation, sale, or transfer of property;
2. Unauthorized taking of personal assets;
3. Misappropriation, misuse, or transfer of moneys belonging to a vulnerable adult from a personal or joint account; or
4. Intentional or negligent failure to effectively use a vulnerable adult’s income and assets for the necessities required for that person’s support and maintenance.
…
Slide334CHAPTER 415 Adult protective services
415.102 Definitions of terms used in ss. 415.101-415.113.
—
Cont’d
(10) “False report” means a report of abuse, neglect, or exploitation of a vulnerable adult to the central abuse hotline which is not true and is maliciously made for the purpose of:
(a) Harassing, embarrassing, or harming another person;
(b) Personal financial gain for the reporting person;
(c) Acquiring custody of a vulnerable adult; or
(d) Personal benefit for the reporting person in any other private dispute involving a vulnerable adult.
The term “false report” does not include a report of abuse, neglect, or exploitation of a vulnerable adult which is made in good faith to the central abuse hotline.
Slide335CHAPTER 415 Adult protective services
415.102 Definitions of terms used in ss. 415.101-415.113.
—
Cont’d
12) “Guardian” means a person who has been appointed by a court to act on behalf of a person; a preneed guardian, as provided in chapter 744; or a health care surrogate expressly designated as provided in chapter 765.
(13) “In-home services” means the provision of nursing, personal care, supervision, or other services to vulnerable adults in their own homes.
(14) “Intimidation” means the communication by word or act to a vulnerable adult that that person will be deprived of food, nutrition, clothing, shelter, supervision, medicine, medical services, money, or financial support or will suffer physical violence.
(15) “Lacks capacity to consent” means a mental impairment that causes a vulnerable adult to lack sufficient understanding or capacity to make or communicate responsible decisions concerning person or property, including whether or not to accept protective services.
Slide336CHAPTER 415 Adult protective services
415.102 Definitions of terms used in ss. 415.101-415.113.
—
Cont’d
(16) “Neglect” means the failure or omission on the part of the caregiver or vulnerable adult to provide the care, supervision, and services necessary to maintain the physical and mental health of the vulnerable adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, which a prudent person would consider essential for the well-being of a vulnerable adult. The term “neglect” also means the failure of a caregiver or vulnerable adult to make a reasonable effort to protect a vulnerable adult from abuse, neglect, or exploitation by others. “Neglect” is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death.
Slide337CHAPTER 415 Adult protective services
415.102 Definitions of terms used in ss. 415.101-415.113.
—
Cont’d
(17) “Obtains or uses” means any manner of:
(a) Taking or exercising control over property;
(b) Making any use, disposition, or transfer of property;
(c) Obtaining property by fraud, willful misrepresentation of a future act, or false promise; or
(d)1. Conduct otherwise known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception; or
2. Other conduct similar in nature.
…
Slide338CHAPTER 415 Adult protective services
415.102 Definitions of terms used in ss. 415.101-415.113.
—
Cont’d
(17) “Obtains or uses” means any manner of:
(a) Taking or exercising control over property;
(b) Making any use, disposition, or transfer of property;
(c) Obtaining property by fraud, willful misrepresentation of a future act, or false promise; or
(d)1. Conduct otherwise known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception; or
2. Other conduct similar in nature.
…
Slide339CHAPTER 415 Adult protective services
415.102 Definitions of terms used in ss. 415.101-415.113.
—
Cont’d
(19) “Position of trust and confidence” with respect to a vulnerable adult means the position of a person who:
(a) Is a parent, spouse, adult child, or other relative by blood or marriage;
(b) Is a joint tenant or tenant in common;
(c) Has a legal or fiduciary relationship, including, but not limited to, a court-appointed or voluntary guardian, trustee, attorney, or conservator; or
(d) Is a caregiver or any other person who has been entrusted with or has assumed responsibility for the use or management of the vulnerable adult’s funds, assets, or property.
…
Slide340CHAPTER 415 Adult protective services
415.102 Definitions of terms used in ss. 415.101-415.113.
—
Cont’d
(24) “Psychological injury” means an injury to the intellectual functioning or emotional state of a vulnerable adult as evidenced by an observable or measurable reduction in the vulnerable adult’s ability to function within that person’s customary range of performance and that person’s behavior.
(25) “Records” means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, videotapes, or other material, regardless of physical form or characteristics, made or received pursuant to a protective investigation.
(26) “Sexual abuse” means acts of a sexual nature committed in the presence of a vulnerable adult without that person’s informed consent. “Sexual abuse” includes, but is not limited to, the acts defined in s. 794.011(1)(h), fondling, exposure of a vulnerable adult’s sexual organs, or the use of a vulnerable adult to solicit for or engage in prostitution or sexual performance. “Sexual abuse” does not include any act intended for a valid medical purpose or any act that may reasonably be construed to be normal caregiving action or appropriate display of affection.
Slide341CHAPTER 415 Adult protective services
415.102 Definitions of terms used in ss. 415.101-415.113.
—
Cont’d
(24) “Psychological injury” means an injury to the intellectual functioning or emotional state of a vulnerable adult as evidenced by an observable or measurable reduction in the vulnerable adult’s ability to function within that person’s customary range of performance and that person’s behavior.
(25) “Records” means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, videotapes, or other material, regardless of physical form or characteristics, made or received pursuant to a protective investigation.
(26) “Sexual abuse” means acts of a sexual nature committed in the presence of a vulnerable adult without that person’s informed consent. “Sexual abuse” includes, but is not limited to, the acts defined in s. 794.011(1)(h), fondling, exposure of a vulnerable adult’s sexual organs, or the use of a vulnerable adult to solicit for or engage in prostitution or sexual performance. “Sexual abuse” does not include any act intended for a valid medical purpose or any act that may reasonably be construed to be normal caregiving action or appropriate display of affection.
Slide342CHAPTER 415 Adult protective services
415.1034 Mandatory reporting of abuse, neglect, or exploitation of vulnerable adults; mandatory reports of death.
—
(1) MANDATORY REPORTING.—
(a) Any person, including, but not limited to, any:
1. Physician, osteopathic physician, medical examiner, chiropractic physician, nurse, paramedic, emergency medical technician, or hospital personnel engaged in the admission, examination, care, or treatment of vulnerable adults;
2. Health professional or mental health professional other than one listed in subparagraph 1.;
3. Practitioner who relies solely on spiritual means for healing;
4. Nursing home staff; assisted living facility staff; adult day care center staff; adult family-care home staff; social worker; or other professional adult care, residential, or institutional staff;
Slide343CHAPTER 415 Adult protective services
415.1034 Mandatory reporting of abuse, neglect, or exploitation of vulnerable adults; mandatory reports of death.
—
5. State, county, or municipal criminal justice employee or law enforcement officer;
6. Employee of the Department of Business and Professional Regulation conducting inspections of public lodging establishments under s. 509.032;
7. Florida advocacy council or Disability Rights Florida member or a representative of the State Long-Term Care Ombudsman Program; or
8. Bank, savings and loan, or credit union officer, trustee, or employee,
who knows, or has reasonable cause to suspect, that a vulnerable adult has been or is being abused, neglected, or exploited shall immediately report such knowledge or suspicion to the central abuse hotline.
Slide344CHAPTER 415 Adult protective services
415.1036 Immunity.
—
(1) Any person who participates in making a report under s. 415.1034 or participates in a judicial proceeding resulting therefrom is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, is immune from any liability, civil or criminal, that otherwise might be incurred or imposed. This section does not grant immunity, civil or criminal, to any person who is suspected of having abused, neglected, or exploited, or committed any illegal act upon or against, a vulnerable adult. Further, a resident or employee of a facility that serves vulnerable adults may not be subjected to reprisal or discharge because of the resident’s or employee’s actions in reporting abuse, neglect, or exploitation pursuant to s. 415.1034.
Slide345CHAPTER 415 Adult protective services
415.1036 Immunity.
—
Cont’d
(2) Any person who makes a report under s. 415.1034 has a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of the reporting party by reason of the reporting party’s making the report. Any detrimental change made in the residency or employment status of such a person, such as, but not limited to, discharge, termination, demotion, transfer, or reduction in pay or benefits or work privileges, or negative evaluations, within 120 days after the report is made establishes a rebuttable presumption that the detrimental action was retaliatory.
Slide346CHAPTER 415 Adult protective services
415.105 Provision of protective services with consent; withdrawal of consent; interference.
—
(1) PROTECTIVE SERVICES WITH CONSENT.—If the department determines through its investigation that a vulnerable adult demonstrates a need for protective services or protective supervision, the department shall immediately provide, or arrange for the provision of, protective services or protective supervision, including in-home services, provided that the vulnerable adult consents. A vulnerable adult in need of services as defined in s. 415.102 shall be referred to the community care for disabled adults program, or to the community care for the elderly program administered by the Department of Elderly Affairs.
Slide347CHAPTER 415 Adult protective services
415.105 Provision of protective services with consent; withdrawal of consent; interference.
— Cont’d
(2) WITHDRAWAL OF CONSENT.—If the vulnerable adult withdraws consent to the receipt of protective services or protective supervision, the services may not be provided, except pursuant to s. 415.1051.
(3) INTERFERENCE WITH THE PROVISION OF PROTECTIVE SERVICES.—When any person refuses to allow the provision of protective services to a vulnerable adult who has the capacity to consent to services, the department shall petition the court for an order enjoining the person from interfering with the provision of protective services. The petition must allege specific facts sufficient to show that the vulnerable adult is in need of protective services and that the person refuses to allow the provision of such services. If the court finds by clear and convincing evidence that the vulnerable adult is in need of protective services and that the person refuses to allow the provision of such services, the court may issue an order enjoining the person from interfering with the provision of protective services to the vulnerable adult.
Slide348CHAPTER 415 Adult protective services
415.1051 Protective services interventions when capacity to consent is lacking;
nonemergencies
; emergencies; orders; limitations.
—
(1) NONEMERGENCY PROTECTIVE SERVICES INTERVENTIONS.—If the department has reasonable cause to believe that a vulnerable adult or a vulnerable adult in need of services is being abused, neglected, or exploited and is in need of protective services but lacks the capacity to consent to protective services, the department shall petition the court for an order authorizing the provision of protective services.
(a)
Nonemergency protective services petition.
—The petition must state the name, age, and address of the vulnerable adult, allege specific facts sufficient to show that the vulnerable adult is in need of protective services and lacks the capacity to consent to them, and indicate the services needed.
Slide349CHAPTER 415 Adult protective services
415.1051 Protective services interventions when capacity to consent is lacking;
nonemergencies
; emergencies; orders; limitations.
—
Cont’d
(c)
Hearing.
—
1. The court shall set the case for hearing within 14 days after the filing of the petition. The vulnerable adult and any person given notice of the filing of the petition have the right to be present at the hearing. The department must make reasonable efforts to ensure the presence of the vulnerable adult at the hearing.
2. The vulnerable adult has the right to be represented by legal counsel at the hearing. The court shall appoint legal counsel to represent a vulnerable adult who is without legal representation.
Slide350CHAPTER 415 Adult protective services
415.1051 Protective services interventions when capacity to consent is lacking;
nonemergencies
; emergencies; orders; limitations.
—
Cont’d
(2) EMERGENCY PROTECTIVE SERVICES INTERVENTION.—If the department has reasonable cause to believe that a vulnerable adult is suffering from abuse or neglect that presents a risk of death or serious physical injury to the vulnerable adult and that the vulnerable adult lacks the capacity to consent to emergency protective services, the department may take action under this subsection. If the vulnerable adult has the capacity to consent and refuses consent to emergency protective services, emergency protective services may not be provided.
Slide351CHAPTER 415 Adult protective services
415.1051 Protective services interventions when capacity to consent is lacking;
nonemergencies
; emergencies; orders; limitations.
—
Cont’d
(a)
Emergency entry of premises.
—If, upon arrival at the scene of the incident, consent is not obtained for access to the alleged victim for purposes of conducting a protective investigation under this subsection and the department has reason to believe that the situation presents a risk of death or serious physical injury, a representative of the department and a law enforcement officer may forcibly enter the premises. If, after obtaining access to the alleged victim, it is determined through a personal assessment of the situation that no emergency exists and there is no basis for emergency protective services intervention under this subsection, the department shall terminate the emergency entry.
Slide352CHAPTER 415 Adult protective services
415.1051 Protective services interventions when capacity to consent is lacking;
nonemergencies
; emergencies; orders; limitations.
—
Cont’d
(b)
Emergency removal from premises.
—If it appears that the vulnerable adult lacks the capacity to consent to emergency protective services and that the vulnerable adult, from the personal observations of the representative of the department and specified medical personnel or law enforcement officers, is likely to incur a risk of death or serious physical injury if such person is not immediately removed from the premises, then the representative of the department shall transport or arrange for the transportation of the vulnerable adult to an appropriate medical or protective services facility in order to provide emergency protective services. Law enforcement personnel have a duty to transport when medical transportation is not available or needed and the vulnerable adult presents a threat of injury to self or others.
Slide353CHAPTER 415 Adult protective services
415.1051 Protective services interventions when capacity to consent is lacking;
nonemergencies
; emergencies; orders; limitations.
—
Cont’d
(c)
Emergency medical treatment.
—If, upon admission to a medical facility, it is the opinion of the medical staff that immediate medical treatment is necessary to prevent serious physical injury or death, and that such treatment does not violate a known health care advance directive prepared by the vulnerable adult, the medical facility may proceed with treatment to the vulnerable adult. If a person with legal authority to give consent for the provision of medical treatment to a vulnerable adult has not given or has refused to give such consent, examination and treatment must be limited to reasonable examination of the patient to determine the medical condition of the patient and treatment reasonably necessary to alleviate the emergency medical condition or to stabilize the patient pending court determination of the department’s petition authorizing emergency protective services. Any person may seek an expedited judicial intervention under rule 5.900 of the Florida Probate Rules concerning medical treatment procedures.
Slide354EXERCISE 1: RECOMMENDATIONS FOR CUSTODY OR VISITATION CASE:
You have been retained by an attorney to consult on a case involving a 14-year-old female, whose mother has died, and is currently living with her paternal uncle and his wife. The attorney represents the biological father who has not seen his daughter in several years because the mother absconded with her. You have done an evaluation on the father and found that, while he is a bit odd, he is not an unfit parent. The father has not seen the daughter for seven years. It is also note that the paternal uncle had not seen the child for seven years either. The aunt has taken the child to the local community mental health center, where she has seen a female therapist. The father is suing to get custody of his daughter back from the aunt and uncle, neither of whom have been assigned legal custody by the court. The current suit is for the court to decide who should have custody of the child. The therapist from the community mental health center has submitted to the court the following letter:
Slide355EXERCISE 1: RECOMMENDATIONS FOR CUSTODY OR VISITATION CASE:
(Community Mental Health Center Official Looking Letterhead)
To whom it may concern,
The following letter is based on the professional recommendations for Jane Doe: Jane Doe, (14 years old), began receiving individual therapy sessions from the Community Mental Health Center on June 30, 2012. The client’s current caregiver, Clara Barton, (Jane Doe’s aunt) requested therapeutic services on behalf of Jane, due to concerns that the child was experiencing emotional distress. After evaluating the client and participating in two individual counseling sessions, it is my professional opinion that severe mental distress could be experienced of the client was to return to the care of her biological father. The client reported on several occasions to the therapist, “I don’t feel safe around him. I’m scared to be alone with him, because I never know what he is going to do.”
Slide356EXERCISE 1: RECOMMENDATIONS FOR CUSTODY OR VISITATION CASE:
(Community Mental Health Center Official Looking Letterhead)
Cont’d
As her therapist, my primary concern is for her safety, and my main goal is the improvement of her overall mental health status. I fear that, at this time, returning Jane Doe to the care of her father could produce increased distress for the child.
Sincerely,
Janet Smith, MSW IHOSS (In Home Onsite Services) Clinical Therapist
Slide357EXERCISE 1: RECOMMENDATIONS FOR CUSTODY OR VISITATION CASE:
Is there any problem with this case?
What would you tell the attorney who hired you about this letter?
Did the therapist do anything wrong, or is this legitimate?
Slide358EXERCISE 1: RECOMMENDATIONS FOR CUSTODY OR VISITATION CASE:
Ref: 64B4-7.006 Requirements for Evaluations of Minors for the Purpose of Addressing Custody, Residence or Visitation Disputes. -- Cont’d
(2) When providing such evaluation of a minor, the licensee shall:
(a) Be impartial, act in the best interest of the child, avoid conflicts of interest, and not have been the treating psychotherapist nor had a prior relationship with any of the parties to the evaluation; and
(b) Use multiple avenues of data gathering, including testing and interviewing methods, and shall involve all persons central to the child in question, including, at a minimum, communication with the child, the parties seeking custody or visitation, any treating mental health professional, family physician, and relatives of the immediate families.
Specific Authority 491.004(5) FS. Law Implemented 491.009(2)(s) FS. History–New 12-21-97.
Slide359EXERCISE 1: RECOMMENDATIONS FOR CUSTODY OR VISITATION CASE:
Ref: 64B4-7.006 Requirements for Evaluations of Minors for the Purpose of Addressing Custody, Residence or Visitation Disputes.
-- Cont’d
(2) When providing such evaluation of a minor, the licensee shall:
(a) Be impartial, act in the best interest of the child, avoid conflicts of interest, and not have been the treating psychotherapist nor had a prior relationship with any of the parties to the evaluation; and
(b) Use multiple avenues of data gathering, including testing and interviewing methods, and shall involve all persons central to the child in question, including, at a minimum, communication with the child, the parties seeking custody or visitation, any treating mental health professional, family physician, and relatives of the immediate families.
Specific Authority 491.004(5) FS. Law Implemented 491.009(2)(s) FS. History–New 12-21-97.
Slide360EXERCISE 2: SIGNING OFF ON OTHER PEOPLE’S WORK CASE EXAMPLE:
You are working in a community mental health center as a Licensed Mental Health Counselor. You perform individual family, marital/couples and group therapy. You are also aware that the community mental health center has groups that are run by paraprofessionals and nonprofessionals. (For the purposes of this exercise, we are divining paraprofessionals as people who have a bachelors degree in some psychology, counseling or social work field. We are defining nonprofessionals as those who do not have bachelors degrees in anything, or may have a bachelor's degree in a non-related field.)You are also aware that they have several people working doing substance abuse evaluations, intake evaluations, mental health evaluations involving forming diagnostic hypotheses, possibly providing diagnoses from the DSM-5 and conducting individual, family and group therapy. You are also aware that there are non-licensed people with masters degrees conducting the same processes. The administrator, who is your boss approaches you and asks you to sign off on the psychotherapy sessions conducted by the paraprofessionals and nonprofessionals.
Slide361EXERCISE 2: SIGNING OFF ON OTHER PEOPLE’S WORK CASE EXAMPLE:
You ask your boss if these sessions you're being asked to sign off on will be audited by any state or federal organization or structure, and/or if your signature will be used for the purposes of third-party billing to insurance companies. Your boss tells you that the cases will possibly be audited, but might not. Your boss also tells you that they will be billing third-party insurance companies for these sessions conducted by non-licensed people. You are concerned that if you do not comply with this request you will lose your job. You have a family that you need to support, and you feel you cannot afford to lose your job.
Slide362EXERCISE 2: SIGNING OFF ON OTHER PEOPLE’S WORK CASE EXAMPLE:
Do you sign off on these sessions?
Do you confront your boss?
Do you report these activities?
Can you NOT report these activities
?
Slide363EXERCISE 3: MARITAL THERAPY RECORDS CASE EXAMPLE:
Last year you conducted marital therapy with a couple. After termination, you were not quite sure as to whether or not the couple would stay married.
An attorney representing the wife sends you a subpoena
duces
tecum
for records and/or deposition in a divorce case, at which point you learn that the couple is going through a divorce. The attorney is requesting/demanding records for the therapy you conducted, with threats of possible contempt of court, with accompanying penalties if you do not comply, and has included a signed release from the husband, but not the wife.
Slide364EXERCISE 3: MARITAL THERAPY RECORDS CASE EXAMPLE:
What do you do?
Do you ignore the subpoena?
Can you release the records?
Do you attend the deposition and provide all the records?
Can you release part of the records?
What records, if any, CAN you release?
How does this reconcile with HIPAA?
What are your responsibilities?
Are you required to contact the other party and get a signed consent and release the records?
Slide365EXERCISE 3: SEXUAL MISCONDUCT CASE EXAMPLE:
You are a female Licensed Mental Health Counselor working with a male client. You have seen him for three sessions, when he makes it known to you that he is very attracted to you. While you have had this happen before with previous clients, you realize that you are very attracted to him as well. Given the presence of the countertransference you refer him to another clinician, informing him that you cannot have a sexual or romantic relationship with him. He verbalizes understanding and apologizes for putting you in an untenable position, very graciously agreeing to the referral. This serves to only make him more attractive to you. Wishing to remain ethical and legal you turn down his offers to date you after the referral. Six months later he begins to contact you and give you information on his progress. While this makes you feel uncomfortable you feel like the empathetic thing to do would be to encourage him in his progress and praise him for doing well. He then asks you out. You inform him
Slide366EXERCISE 3: SEXUAL MISCONDUCT CASE EXAMPLE: Cont’d
that this would be inappropriate, but find that you're still thinking about him. He accepts your judgment that this would be inappropriate, but informs you of his progress every now and then through email and/or texts.
Wishing to remain ethical and legal you turn down his offers to date you after the referral. Six months later he begins to contact you and give you information on his progress. While this makes you feel uncomfortable you feel like the empathetic thing to do would be to encourage him in his progress and praise him for doing well. He then asks you out. You inform him that this would be inappropriate, but find that you're still thinking about him. He accepts your judgment that this would be inappropriate, but informs you of his progress every now and then through email and/or texts. This goes on for about a year and a half, at which the contacts fade. Four years later he calls you up out of the blue, informing you that he has broken up with a woman
Slide367EXERCISE 3: SEXUAL MISCONDUCT CASE -- Cont’d
who was not good for him. He thanks you for the help you gave him in
the short time he was with you and the encouragement you gave him afterwards. He also thanks you for the excellent referral, stating that the therapist helped him a lot with issues of codependency and self-esteem. He tells you that he would like to take you to dinner to thank you for how you've changed his life. You agree to go to dinner, with the caveat that you would pay for your own dinner, because you do not want to be beholden to him in any way. During dinner you realize that the sexual and romantic attraction to him has never gone away. You have a few drinks, and end up going home and having sex with him.
Slide368EXERCISE 3: SEXUAL MISCONDUCT CASE -- Cont’d
who was not good for him. He thanks you for the help you gave him in
the short time he was with you and the encouragement you gave him afterwards. He also thanks you for the excellent referral, stating that the therapist helped him a lot with issues of codependency and self-esteem. He tells you that he would like to take you to dinner to thank you for how you've changed his life. You agree to go to dinner, with the caveat that you would pay for your own dinner, because you do not want to be beholden to him in any way. During dinner you realize that the sexual and romantic attraction to him has never gone away. You have a few drinks, and end up going home and having sex with him.
Slide369EXERCISE 3: SEXUAL MISCONDUCT CASE -- Cont’d
Is there anything wrong with this relationship?
Is this sexual misconduct under Florida law?
If not, why not?
If so, why?
Slide370EXERCISE 3: SEXUAL MISCONDUCT CASE -- Cont’d
Is there anything wrong with this relationship?
Is this sexual misconduct under Florida law?
If not, why not?
If so, why?
What if I were to tell you this is not legally sexual misconduct?
Slide371EXERCISE 3: SEXUAL MISCONDUCT CASE EXAMPLE: Cont’d
Is there anything wrong with this relationship?
Is this sexual misconduct under Florida law?
If not, why not?
If so, why?
What if I were to tell you this is not legally sexual misconduct?
If it is not sexual misconduct under Florida law, is there anything wrong with your continuing contact with him, engaging in a romantic relationship, or engaging in a sexual relationship? (Legally or Ethically)
Slide372EXERCISE 3: SEXUAL MISCONDUCT CASE -- Cont’d
Ref: 64B4-10.002 Definition of Sexual Misconduct.(1) It is sexual misconduct for a psychotherapist to engage, attempt to engage, or offer to engage a client in sexual behavior, or any behavior, whether verbal or physical, which is intended to be sexually arousing, including kissing; sexual intercourse, either genital or anal; cunnilingus; fellatio; or the touching by either the psychotherapist or the client of the other’s breasts, genital areas, buttocks, or thighs, whether clothed or unclothed.
Slide373EXERCISE 3: SEXUAL MISCONDUCT CASE -- Cont’d
2) It is sexual misconduct for a psychotherapist to encourage the client to engage in sexual conduct with a third party unless:
(a) Such encouragement is consistent with the planned treatment of the client’s specifically diagnosed mental, social, or sexual dysfunctions or disorders; and
(b) Treatment is provided in accordance with generally accepted professional standards for psychotherapy in this State.
Slide374Client/Clinician Relationship
Common ErrorsMarketing IssuesReferrals
Consent
Dual Relationships
Related Laws and Rules
Methodologies & Clinical Standards
Slide375Psychotherapist-Client Relationship
A psychotherapist-client relationship is established… once a psychotherapist renders, or purports to render, clinical social work, marriage and family therapy or mental health services including, but not limited to, psychotherapy, counseling, assessment or treatment to that person. A formal contractual relationship, the scheduling of professional appointments, or payment of a fee for services are not necessary conditions for the establishment of a psychotherapist-client relationship
, although each of these may be evidence that such a relationship exists.
Slide376Definition of Sexual Misconduct
(1) It is sexual misconduct for a psychotherapist to engage, attempt to engage, or offer to engage a client in sexual behavior, or any behavior, whether verbal or physical, which is intended to be sexually arousing, including kissing; sexual intercourse, either genital or anal; cunnilingus; fellatio; or the touching by either the psychotherapist or the client of the other’s breasts, genital areas, buttocks, or thighs, whether clothed or unclothed.
(2) It is sexual misconduct for a psychotherapist to encourage the client to engage in sexual conduct with a third party unless:
(a) Such encouragement is consistent with the planned treatment of the client’s specifically diagnosed mental, social, or sexual dysfunctions or disorders; and
(b) Treatment is provided in accordance with generally accepted professional standards for psychotherapy in this State.
Slide377Definition of Sexual Misconduct, continued
(1) Sexual misconduct, as defined in Rule 64B4-10.002, F.A.C., with a client is prohibited.(2) For purposes of determining the existence of sexual misconduct the psychotherapist-client relationship, once established, is deemed to continue for a minimum of 2 years after termination
of psychotherapy or the date of the last professional contact with the client. However, beyond that 2 year time period, the mere passage of time since the client’s last visit with the psychotherapist is not the sole determinative of whether or not the psychotherapist-client relationship has been terminated. Some of the factors considered by the Board in determining whether the psychotherapist-client relationship has terminated include, but are not limited to, the following:
(a) Formal termination procedures;
(b) Transfer of the client’s case to another psychotherapist;
(c) The length of the professional relationship;
(d) The extent to which the client has confided personal or private information to the psychotherapist;
(e) The nature of the client’s problem; and
(f) The degree of emotional dependence that the client has on the psychotherapist.
Slide378Definition of Sexual Misconduct, continued
(3) The psychotherapist shall not engage in or request sexual contact with a former client at any time if engaging with that client would be exploitative, abusive or detrimental to that client’s welfare or if the sexual contact is a result of the exploitation of trust, knowledge, influence or emotions, derived from the professional relationship.
(4) A client’s consent to, initiation of, or participation in sexual behavior or involvement with a psychotherapist does not change the nature of the conduct nor lift the prohibition.
Slide379Confidentiality and Record Keeping
Common ErrorsHIPPADisclosure
Mandatory Reporting
Required Content
Billing
Security & Maintenance
Related Laws and Rules
Slide380Requirements for Client Records
(1) … records shall remain confidential except as provided by law or as allowed pursuant to a written and signed authorization by the client…(2) A full record of services shall be maintained for 7 years after the date of the last contact with the client or user.
(3) … termination or relocation …published in the newspaper of greatest general circulation in the county …a notice which shall contain the date of termination or relocation and an address at which the licensee’s client or user records are available to the client, user, or to a licensed mental health professional designated by the client or user. The notice shall appear at least once a week for 4 consecutive weeks. The records shall be retained for 2 years after the termination or relocation of the practice.
(4) If the termination was due to the
death of a licensee
, records… maintained at least two years after the licensee’s death. At the conclusion… the executor, administrator, personal representative, or survivor shall cause to be published… a notice indicating to the clients or users of the deceased licensee that the licensee’s records will be disposed of or destroyed 4 weeks or later from the last day of the final week of publication of the notice.
Slide381What’s in there?
Psychotherapy is for the client and all records constructed shall respect the integrity and privacy of that relationship.(1) A psychotherapy report is a summary of information derived from the psychotherapy records
which addresses a specific request as authorized by the client.
(2) A psychotherapy record shall contain basic information about the client including
name, address and telephone number, dates of therapy sessions, treatment plan and results achieved, diagnosis if applicable, and financial transactions between therapist and client including fees assessed and collected.
A record shall also include
notes or documentation of the client’s consent to all aspects of treatment, copies of all client authorizations for release of information, any legal forms pertaining to the client, and documentation of any contact the therapist has with other professionals regarding the client.
(3) Regardless of who pays for the services of the psychotherapist, a client is that individual who, by virtue of private consultation with the psychotherapist, has reason to expect that the individual’s communication with the psychotherapist during that private consultation will remain confidential.
Slide382Confidentiality and privileged information
Confidentiality and privileged communications.—Any communication between any person licensed or certified under this chapter and her or his patient or client shall be confidential. This secrecy may be waived under the following conditions:(1) When the person licensed or certified under this chapter is a party defendant to a civil, criminal, or disciplinary action arising from a complaint filed by the patient or client, in which case the waiver shall be limited to that action.
(2) When the patient or client agrees to the waiver, in writing, or, when more than one person in a family is receiving therapy, when each family member agrees to the waiver, in writing. Continued…
Slide383Confidentiality and privileged information, continued
(3) When, in the clinical judgment of the person licensed or certified under this chapter, there is a clear and immediate probability of physical harm to the patient or client, to other individuals, or to society and the person licensed or certified under this chapter communicates the information only to the potential victim, appropriate family member, or law enforcement or other appropriate authorities. There shall be no liability on the part of, and no cause of action of any nature shall arise against, a person licensed or certified under this chapter for the disclosure of otherwise confidential communications under this subsection.
Slide384Marketing and such
The terms “diagnose” and “treat,” as used in this chapter, when considered in isolation or in conjunction with any provision of the rules of the board, shall not be construed to permit the performance of any act… In addition, this definition shall not be construed to permit any person licensed, provisionally licensed, registered, or certified pursuant to this chapter to describe or label
any test, report, or procedure as “psychological,” except to relate specifically to the definition of practice authorized in this subsection.
Slide385Display of license; use of professional title on promotional materials
It is unlawful and a violation of this chapter for any person to :… Use the following titles or any combination thereof, unless… [an LMFT]… :1. “Licensed marriage and family therapist.”
2. “Marriage and family therapist.”
3.
“Marriage counselor.”
4. “Marriage consultant.”
5. “Family therapist.”
6.
“Family counselor.”
7. “Family consultant.”
… Use the following titles or any combination thereof, unless… [an LMHC]…:
1. “Licensed mental health counselor.”
2. “Mental health counselor.”
3. “Mental health
therapist.”
4. “Mental health consultant.”
Slide386RMHCI: What’s up with
A registered clinical social worker intern shall include the words “registered clinical social worker intern,” a registered marriage and family therapist intern shall include the words “registered marriage and family therapist intern,” and a registered mental health counselor intern shall include the words “registered mental health counselor intern”
on all
promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the registered intern.
Slide387Display of license; use of professional title on promotional materials
A licensed mental health counselor shall include the words “licensed mental health counselor” or the letters “LMHC” on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the licensee.
Slide388Dual licensure
Dual licensure as a marriage and family therapist.—The department shall license as a marriage and family therapist any person who demonstrates to the board that he or she:(1) Holds a valid, active license as a psychologist under chapter 490 or as a clinical social worker or mental health counselor under this chapter, or is certified under s. 464.012 as an advanced registered nurse practitioner who has been determined by the Board of Nursing as a specialist in psychiatric mental health.
(2) Has held a valid, active license for at
least 3 years
.
(3) Has
passed the examination
provided by the department for marriage and family therapy.
Slide389Clinical Standards
Common ErrorsBest Practices: Methodologies/ApproachesAssessment
Credentialing
Related Laws and Rules
ACA (as example)
http://www.counseling.org/knowledge-center/ethics/code-of-ethics-resources
AMHCA (as example)
http://www.amhca.org/assets/content/AMHCA_Standards_1-26-2012.pdf
http://www.amhca.org/about/codetoc.aspx
NBCC (as example)
http://www.nbcc.org/Assets/Ethics/NBCCCodeofEthics.pdf
http://www.nbcc.org/Assets/Ethics/NBCCPolicyRegardingPracticeofDistanceCounselingBoard.pdf
Slide390Continuing Education
(2) A licensee shall not be required to complete continuing education for the first renewal of licensure. For each subsequent renewal:(a) A licensee must complete 30 hours of approved continuing education credit including: two hours on the prevention of medical errors; three hours relating to professional ethics and boundary issues during the two-year period
ending on the last day of the biennial renewal period.
(b)
A maximum of six
(6) of the required thirty (30) hours of continuing education may be accrued for credit during one biennium by attending programs designed for the purpose of enhancing the licensee’s administrative, office management, or
other non-clinical skills
.
(3) Within six (6) months of initial licensure and
every third renewal thereafter, a licensee must complete a 2 hour continuing education course on domestic violence.
(4)
Every third
biennum
after initial licensure, a licensee must complete 3 hour laws and rules continuing education units.
(5) Continuing education hours earned by a licensee to satisfy any disciplinary action shall be in addition to those required for renewal for each biennium.
Slide391(d) Programs offered by providers approved by the Board under Rule 64B4-6.004, F.A.C.1. Credit
for hypnosis training will be given only for a program that clearly advertised it met the requirements of Rule 64B4-7.002, F.A.C., and was offered by an approved provider for hypnosis training as determined by Rule 64B4-6.006, F.A.C.
2. Credit
for sex therapy
training will be given only for a program that clearly advertised it met the requirements of Rule 64B4-7.004, F.A.C., and was offered by
an approved provider
for sex therapy training as determined by Rule 64B4-6.005, F.A.C.
(e) Continuing education programs offered and approved by the following entities as long as such entities impose requirements similar to or more stringent than those imposed by the Board in subparagraphs 64B4-6.004(2)(a)1.-5., F.A.C.:
1. National Board of Certified Counselors (NBCC);
2. American Association of Sex Educators Counselors and Therapists (AASECT);
3. American Society of Clinical Hypnosis (ASCH);
4. National Association of Social Work (NASW);
5. American Psychological Association (APA);
6. Clinical Social Work Federation (CSWF);
7. Association of Social Work Boards (ASWB);
8. American Board of Professional Psychology (ABPP);
9. American Psychiatric Association;
10. International Association of Marriage and Family Therapy Counselors (AMFC);
11. American Association of State Counseling Boards (AASCB);
12. American Counseling Association (ACA);
13. American Mental Health Counseling Association (AMHCA);
14. American Association for Marriage and Family Therapy (AAMFT); and
15. Association of Marital and Family Therapy Regulatory Boards (AMFTRB).
Slide392To practice hypnosis
64B4-7.002 Qualifications Necessary for Clinical Social Workers, Marriage and Family Therapists and Mental Health Counselors to Practice Hypnosis.(1) Before practicing hypnosis for any therapeutic purpose, a clinical social worker, marriage and family therapist, or mental health counselor shall have successfully completed at least 50 hours of instruction in concepts of and misconceptions of hypnosis induction techniques, contraindications to hypnosis, and the relationships of personality dynamics, psychopathology and ethical issues to hypnosis. Such instruction must have met the standards for approval of continuing education courses set forth in Rule 64B4-6.002, F.A.C., and in addition must have been taught by qualified teachers as defined in Rule 64B4-7.003, F.A.C.
(2) An intern may not practice hypnosis unless practicing under the supervision of a qualified supervisor who has met the requirements to practice hypnosis.
Slide393To practice “sex therapy”
… Any [491 provider] who holds himself out as a sex therapist shall have completed:(a) A minimum of 120 hours of approved education which meets the continuing education requirements of Rule Chapter 64B4-6, F.A.C., from twelve (12) of the following areas with a minimum of 10 hours in each area taken:
1. Sexual and reproductive anatomy and physiology, 2. Developmental sexuality,
3. Gender-identity issues, 4. Socio-cultural factors in sexual values and behavior, 5. Medical factors related to sexuality and sexual functioning, 6. Interaction between sexuality and dynamics of interpersonal and family relationships, 7. Sexual offender treatment, 8. Diagnosis of sexual dysfunctions, disorders, and deviancy, 9. Treatment of sexual dysfunctions, disorders, and deviancy, 10. Legal, ethical, and forensic issues in sex therapy, 11. Sexually transmitted diseases, 12. Risk assessment with sex offenders, 13. Psychopharmacological therapy with sexual dysfunctions, disorders and deviancy, 14. Research on sexual dysfunctions, disorders and deviancy, 15. Sexual abuse treatment, 16.
Victimology
/victim therapy, 17. Group therapy in treatment of sexual dysfunctions, disorders, and deviancy; and
(b) As of January 1, 1997, in addition to the minimum hours in paragraph (2)(a) of this rule, the following shall apply:
1. A minimum of 40 client contact hours in the clinical practice of sex therapy during a minimum period of time of six months;
2. A minimum of 20 hours of supervision, where each supervisory session is no more than one and one-half hours in length, by a qualified supervisor as set forth in Rule 64B4-7.004, F.A.C., during a minimum period of time of six months.
Slide394Requirements for Evaluations of Minors for the Purpose of Addressing Custody, Residence or Visitation Disputes
(1) To perform evaluations of minors for the purpose of making a recommendation regarding custody, residence or visitation, the licensee shall have:(a) Competence in performing assessments of a psychological nature on children and families;
(b) Education and training in the areas of child and family development, child and family psychopathology, and the impact of divorce on children and families; and
(c) Knowledge of the legal standards and procedures governing divorce and child custody.
(2) When providing such evaluation of a minor, the licensee shall:
(a) Be impartial, act in the best interest of the child, avoid conflicts of interest, and not have been the treating psychotherapist nor had a prior relationship with any of the parties to the evaluation; and
(b) Use multiple avenues of data gathering, including testing and interviewing methods, and shall involve all persons central to the child in question, including, at a minimum, communication with the child, the parties seeking custody or visitation, any treating mental health professional, family physician, and relatives of the immediate families.
Slide395Requirement to Hold Oneself Out as Qualified to Practice Juvenile Sex Offender Therapy
Effective October 1, 2000, in order for a licensed clinical social worker, marriage and family therapist or mental health counselor to hold oneself out as one qualified to practice juvenile sex offender therapy the licensee must have:
(1) Completed education and training through course work which meets the standards for approval as set forth in Rule 64B4-6.002, F.A.C., in the following subject areas:
(a) Theories of child and adolescent development and psychopathology;
(b) Developmental sexuality, including sexual and reproductive anatomy and physiology, gender and sexual identity, and sexual diversity;
(c) Interaction between sexuality and the dynamics of interpersonal and family relationships;
(d) Sexual arousal patterns, including both typical and deviant fantasy patterns;
(e) Sexual dysfunctions, disorders, and deviancy, including sexual abuse patterns and the thinking errors that support the cycle of abuse;
(f) Victim empathy and
victimology
;
(g) Use and misuse of defense mechanisms;
(h) Dynamics of power and control;
(i) Compulsivity management, arousal control, anger regulation, and relapse prevention;
(j) Social resilience, competence and interpersonal effectiveness of juveniles;
(k) Group therapy and biomedical approaches in treating sexual dysfunctions, disorders and deviancy;
(l) Legal, ethical, and forensic issues in treating juvenile sex offenders.
(2) Complete 20 hours of continuing education credits each license renewal biennium in any of the above subject areas or subject areas stated in paragraph 64B4-7.004(2)(a), F.A.C.
Slide396Requirements to be a Qualified Practitioner for Completing Risk Assessments and Treatment of Sexual Offenders
(1) Licensees employed or contracted as Behavioral Specialists for the Florida Department of Corrections (DOC) and credentialed to conduct screenings and counseling for sexual disorders; or approved by the United States Probation Office to complete risk assessments and treat sexual offenders; or who were a clinical member of the Association for the Treatment of Sexual Abusers (ATSA) or the Florida Association for the Treatment of Sexual Abusers (FATSA), on or before June 30, 2010, shall be deemed to be qualified practitioners.
(2) In order to be a qualified practitioner for completing risk assessments and/or providing treatment for sexual offenders, one must hold an active license as a clinical social worker, marriage and family therapist, or mental health counselor under Chapter 491, F.S.
(3) A qualified practitioner under this rule shall possess 60 hours of post degree graduate coursework or post degree continuing education in all of the following core areas with a minimum of three (3) hours per area:
(a) Etiology of sexual deviance;
(b) Evaluation/risk assessment and treatment of adult and adolescent sexual offenders that have established scientific bases;
(c) Evaluation/risk assessment and treatment of specialized populations of sexual offenders;
(d) Physiological measures of sexual arousal;
(e) Sexual offender and current DSM diagnosis;
(f) Safety planning/Family Safety planning;
(g) Report writing;
(h) Legal and ethical issues in the evaluation and treatment of sexual offenders;
(i) Co-morbidity and substance abuse issues; and
(j) Relapse prevention.
(4) Have documented 2,000 hours of post degree experience in the evaluation and treatment of sexual offenders.
(5) A qualified practitioner under this rule must complete 20 hours of board approved biennial continuing education in the assessment, evaluation and treatment of sexual offenders; relapse prevention; experience and training in working with victims; and related legal and ethical issues.
Slide397Supervision
Common Errors1. Supervising Standards2. Methodologies3. Record Keeping
Related Laws and Rules
ACES (as example)
http://www.acesonline.net/
AMHCA (as example)
http://www.amhca.org/assets/content/AMHCA_Standards_1-26-2012.pdf
Slide398Who can be a supervisor
(2) Qualified supervisors who provide supervision in Florida for interns and trainees must meet the equivalency standards of subsection (1) and have:(a) Completed five (5) years of clinical experience, two (2) years of which can be earned during a post-masters clinical internship with the remaining three (3) years of experience earned post-licensure; and
(b) Completed, subsequent to licensure as a mental health counselor, training in supervision in one of the following:
1. A graduate level academic course in supervision which meets the requirements of Rule 64B4-6.0025, F.A.C.; or
2. A continuing education course in supervisory training which meets the requirements of Rule 64B4-6.0025, F.A.C.; or
3. A post-graduate training course for field instructors in clinical social work; or
4. Is designated an Approved Clinical Supervisor (ACS) by The Center for Credentialing and Education, Inc. (CCE), or
5. Is designated an Approved Supervisor by the AAMFT….
Slide399Change of Supervisors
64B4-3.0085 Intern Registration.(1) An individual who intends to practice in Florida to satisfy the post-master’s experience must register as an intern by submitting a completed application to the Board on Form DH-MQA 1175, Intern Registration Application (Revised 02/13), hereby adopted and incorporated by reference, which can be obtained from http://www.flrules.org/Gateway/reference.asp?No=Ref-02395 or the web at www.doh.state.fl.us/mqa/491. The application shall be accompanied by the application fee specified in Rule 64B4-4.015, F.A.C., which is non-refundable.
(2) An intern is required to identify a qualified supervisor by requesting that the supervisor submit a letter to the Board with the applicant’s name, supervisor’s name, supervisor’s license number, and a statement that he or she has agreed to provide supervision while the applicant is a registered intern.
(3) Prior to changing or adding another qualified supervisor, the registered intern must:
(a) Request that the new supervisor must submit a letter to the Board with the registered intern’s name, the intern’s license number, the supervisor’s name, the supervisor’s license number, and a statement that he or she has agreed to provide supervision to the registered intern; and
(b) Receive a communication from the Board indicating its approval of the new supervisor.
(4) Experience obtained under the supervision of the new qualified supervisor will not count toward completion of the experience requirement until the registered intern has received board approval of their new qualified supervisor.
Slide400Recording Hours
64B4-2.002 Definition of “Supervision” for Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling.… Supervision is face-to-face contact between an intern and a supervisor … (1) An intern shall be credited for the time of supervision required by Section 491.005, F.S., if the supervision consisted of the following:
(a) At least 100 hours of supervision per 1500 hours of psychotherapy face-to-face with clients provided by the intern;
(b) At least 1 hour of supervision every two weeks;
(c) At least 1 hour of supervision per 15 hours of psychotherapy, with a minimum of 1 hour of supervision every 2 weeks;
(d) Focus on the raw data from the intern’s clinical work, which is made directly available to the supervisor through such means as written clinical materials, direct observation and video and audio recordings;
(e) A process which is distinguishable from personal psychotherapy, or didactic instruction;
(2) If an intern obtains group supervision, each hour of group supervision must alternate with an hour of individual supervision. For the purpose of this section, individual supervision is defined as one supervisor supervising no more than two (2) interns and group supervision is defined as one supervisor supervising more than 2 but a maximum of 6 interns in the group.
Slide401LMHC v. LCSW v. LMFT
(c) Has had not less than 2 years of clinical experience in mental health counseling, which must be at the post-master’s level under the supervision of a licensed mental health counselor or the equivalent who is a qualified supervisor as determined by the board. An individual who intends to practice in Florida to satisfy the clinical experience requirements must register pursuant to s. 491.0045 prior to commencing practice. If a graduate has a master’s degree with a major related to the practice of mental health counseling that did not include all the coursework required under sub-subparagraphs (b)1.a.-b., credit for the post-master’s level clinical experience shall not commence until the applicant has completed a minimum of seven of the courses required under sub-subparagraphs…
… (c) Is licensed as a clinical social worker or marriage and family therapist in Florida or in the state in which the supervision took place and can demonstrate a three semester or four quarter hour graduate level course in three of the following six content areas: counseling theories, counseling practice, assessment, career counseling, substance abuse, or legal, ethical, and professional standards from a clinical counseling program in an institution fully accredited by an accrediting body recognized by the Council for Higher Education Accreditation and/or the U.S. Department of Education;
d) Is licensed as a psychologist in Florida or in the state where the supervision took place and completed a minimum of three years of experience providing psychotherapy, consisting of a minimum of 750 hours of direct client contact per year; …
Slide402Can we date our supervisees?
NOPE64B4-10.004 Sexual Misconduct Not Involving Client Contact.(1) It is sexual misconduct for a supervisor to engage a supervisee in sexual behavior as defined in Rule 64B4-10.00, F.A.C., during the period a supervisory relationship exists.
(2) It is sexual misconduct for a psychotherapist to engage in sexual behavior as defined in Rule 64B4-10.002, F.A.C., with any immediate family member or guardian of a client during the period of time psychotherapeutic services are being provided to the client.
(3) “Immediate family” shall be defined as spouse, child, parents, parent-in-laws, siblings, grandchild, grandparents, and other household members.
Slide403What’s a Premises
The clinical experience requirement may be met by work performed on or off the premises of the supervising mental health counselor or the equivalent, provided the off-premises work is not the independent private practice rendering of services that does not have a licensed mental health professional, as determined by the board, on the premises
at the same time the intern is providing services.
Slide404When do they no longer need supervision?
An individual registered under this section must remain under supervision until he or she is in receipt of a license or a letter from the department stating that he or she is licensed to practice the profession for which he or she applied.
A
provisional license
expires 24 months after the date it is issued and may not be renewed or reissued.
Licensure or certification
by endorsement
.—
Remitting the appropriate fee
Demonstrated knowledge of the laws and rules
Holds an active license in another state for 3 of the last 5 years immediately preceding licensure.
Meets the education requirements
Passed the licensing examination
Not under investigation
Slide405FMHCA/Amhca update
Private PracticeYears as a Registered Intern
Portability
Slide406Discipline
Related Laws and Rules Change of SupervisorProcessesRisk Management
Liability Insurance
Professional Associations
Slide407FEE SCHEDULE
64B4-4.005 Biennial Licensure Fee.The biennial licensure fee for a clinical social worker license, marriage and family therapist license and mental health counselor license shall be $125 each.
64B4-4.0051 Reactivation Fee.
The fee for reactivating an inactive status license shall be $50.
64B4-4.0052 Renewal of Inactive Status Fee.
The fee for the biennial renewal of an inactive status is $50.
64B4-4.0053 Retired Status Fee.
The fee for an active or inactive status licensee who chooses retired status is $50.
64B4-4.006 Change of Status Fee.
The fee for processing a licensee’s request to change licensure status at any time other than at the beginning of a licensure cycle shall be $105.
64B4-4.007 Delinquency Fee.
The fee for a delinquent status licensee applying for active or inactive status shall be $105.
64B4-4.018 Registered Intern Delinquency Fee.
The fee for a delinquent status registered intern applying for active or inactive status shall be $25.
64B4-4.019 Duplicate License Fee.
The fee for a duplicate license shall be $25.
Slide40864B4-5.001 Disciplinary Guidelines
When the Board finds an applicant, licensee, registered intern, provisional licensee, or certificate holder whom it regulates under Chapter 491, F.S., has committed any of the acts set forth in Section 456.072(1) or 491.009(2), F.S., it shall issue a final order imposing appropriate penalties as recommended in the following disciplinary guidelines.
Slide409Conclusion
Beyond the benefit to the public, periodically reviewing the laws, rules and clinical standards that govern the professions can help to safeguard against:
Disciplinary action;
Litigation;
Termination resulting from unauthorized, inappropriate, erroneous, unethical, or illegal behavior or practice.
Slide410Questions
?