Marchman Act Florida

1
Marchman ActFloridas Substance Abuse
Impairment Law

• South Florida
• Behavioral Health Network
• June 19, 2015

2

• Agenda
• Background Alternative Laws
• Voluntary Admissions
• Involuntary Admissions
• Emergency Medical Conditions (EMTALA)
• Provider Client Responsibilities
• Involuntary Substance Abuse Treatment
• Client Rights
• Appellate Cases
• Resources
• Questions and Discussion about
• Baker Act
• Firearm Prohibitions
• Other Issues

3
Alternatives to the Marchman Act

• Substance Abuse Impairment Only
• Baker Act, Chapter 394
• Psychiatric Not Medical
• Emergency Examination Treatment
  ofIncapacitated Persons Act, Chapter 401
• Federal EMTALA Emergency Medical Treatment and
  Active Labor Act States Access to Emergency
  Services Care, 395.1041, F.S.
• Probate Rule 5.900 Expedited Judicial
  Intervention Concerning Medical Treatment
  Procedures
• Intervention Alternatives
• Adult Protective Services, Chapter 415 
• Guardianship, Chapter 744
• Advance Directives Act/Health Care Surrogate
  Proxy, Chapter 765  

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History of theMarchman Act

• Myers Act (396, FS)
• Drug Dependency Act (397, FS)
• Hal S. Marchman Alcohol Other Drug Services Act
  of 1993 -- addresses the entire array of
  substance abuse impairment issues.
• Not just the substance abuse version of the Baker
  Act!!

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• Substance Abuse Defined
• 397.311, FS
• Substance Abuse means
• Use of any substance if such use is unlawful or
• if such use is detrimental to the user or to
  others, but is not unlawful.
• Substance Abuse Impairment
• A condition involving the use of alcohol or any
  psychoactive or mood-altering substance in such a
  manner as to induce
• mental, or
• emotional, or
• physical problems, and
• Cause socially dysfunctional behavior

6
Service Definitions

• Hospital Licensed by AHCA under chapter 395, FS
• Detox Center uses medical and psychological
  procedures and supportive counseling to manage
  toxicity and withdrawing/stabilizing from effects
  of substance abuse.
• Addiction Receiving Facility (ARF) state
  contracted and designated secure acute care
  residential facility providing intensive level of
  care capable of handling aggressive behavior and
  deter elopements for persons meeting involuntary
  assessment / treatment
• Juvenile Addiction Receiving Facility (JARF)
  Same as above, but for minors

7
Service ProvidersDefined Exempt (397.405, FS)

• Public agencies,
• Private for-profit or not-for-profit agencies,
• Specified private practitioners,
• Hospitals,
• DCF licensed or exempt from licensure under the
  Marchman Act.
• Exempt from licensure hospitals, nursing homes,
  federal facilities, physicians (458/459),
  psychologists, chapter 491 professionals, DD
  facilities, churches under certain circumstances,
  and substance abuse education programs
  (s.1003.42) generally limited to voluntary
  services only.

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ARF/JARF Facilities

• CHI Community Health of South Florida 
• (Inpatient Detox- 1.46 funded beds)
• 10300 SW 216th St, Miami 305-252-4865
•  
• Citrus Health Network (JARF- 5.30 funded beds)
  4175 West 20th Ave, Hialeah,
• 305-825-0300 x12353
•  
• Jackson CMHC (ARF Inpatient Detox 5.39 funded
  beds) 15055 NW 27th Ave, Opa-Locka 786-466-2834
•  
• Banyan Community Health Center (ARF- 2 funded
  beds) 3850 West Flagler St, Miami
  305-774-3600
•  
• Guidance Care Center (ARF Inpatient Detox
  2.48 funded beds)
• 3000 41 Street Ocean, Marathon 305-434-7660

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Residential ProvidersAssessment -- Available
With Appointment

• Central Intake No Appointment Needed
• M-F 8 a.m. 4 p.m. 786-466-3020
• 3140 NW 76 St., Miami
• South Florida Jail Ministries, Inc. d/b/a Agape
  Family Ministry
• 22790 SW 112th  Ave., Miami, 305-235-2616
•  
• Betterway of Miami
• 800 NW 28th  St., Miami 305-634-3409
•  
• Camillus House 726 NE 1st Ave., Miami
• 305-374-1065
•  
• Catholic Charities  St. Lukes Recovery
• 7707 NW 2nd Ave., Miami 305-795-0077
•  
• Concept House 162 NE 49th St., Miami
  305-751-6501

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Residential ProvidersAssessment -- Available
With Appointment (continued)

• Heres Help, Inc. 15100 NW 27th Ave. Opa Locka
  305-685-8201
• Jessie Trice Community Health Center
• 2985 NW 54 Street Miami 305-685-8201
•  
• Banyan Community Health Center  Casa Nueva Vida
  1560 SW 1st St., Miami 305-644-2667
•  
• Banyan Community Health Center Dade Chase 140 NW
  59 St., Miami 305-759-8888 
•  
• Miami Dade County Community Action and Human
  Services Department New Directions
• 3140 NW 76 St., Miami 305-693-3251
•  
• The Village South 3180 Biscayne Blvd.
• Miami, 305-341-1718
•  

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• Admissions

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Admission Types

• I. Voluntary Admissions
• II. Involuntary Admissions
• Non-Court Involved
• Protective Custody Law Enforcement
• Emergency Physician Certificate
• Alternative Involuntary Assessment for minors
  to JARF by parents
• Court Involved
• Involuntary Assessment/Stabilization
• Involuntary Treatment

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Voluntary Admissions397.601, FS

• Any person, regardless of age, who wishes to
  enter substance abuse treatment may apply to a
  service provider for voluntary admission if
  meeting diagnostic criteria for substance abuse
  related disorders..
• Setting must be least restrictive setting
  appropriate to persons treatment needs.
• Upon giving written informed consent, a person on
  involuntary status may be referred to a service
  provider for voluntary admission when the
  provider determines person no longer meets
  involuntary criteria.
• Disability of minority (under 18) removed solely
  for purpose of voluntary admission, but not for
  involuntary when parental participation may be
  required by the court.

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Involuntary AdmissionsCriteria (397.675, FS)

• Good faith reason to believe person is substance
  abuse impaired
• A condition involving the use of alcohol or any
  psychoactive or mood-altering substance in such a
  manner as to induce mental, or emotional, or
  physical problems, and cause socially
  dysfunctional behavior
• and because of the impairment
• Has lost power of self-control over substance
  use and either
• Has inflicted, or threatened or attempted to
  inflict, or unless admitted is likely to inflict,
  physical harm on self or others, or
• Is in need of substance abuse services and, by
  reason of substance abuse impairment, his/her
  judgment has been so impaired the person is
  incapable of appreciating need for services and
  of making a rational decision in regard thereto.
  (Mere refusal to receive services not evidence of
  lack of judgment)

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Protective Custody(397.677, FS)

• Law enforcement officers acting in good faith
  pursuant to the Marchman Act may not be held
  criminally or civilly liable for false
  imprisonment.
• Law enforcement may implement for individuals who
  are in a public place or is brought to attention
  of LEO.
• For adults or minors when involuntary admission
  criteria appears to be met.
• If a minor, the nearest relative must be notified
  by the law enforcement officer of the protective
  custody, as must the nearest relative of an
  adult, unless the adult requests that there be no
  notification.

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Juvenile JusticeRelease or delivery from
custody985.115(2)FS

• (c) If the child is believed to be suffering from
  a serious physical condition which requires
  either prompt diagnosis / treatment, a law
  enforcement officer who shall deliver the child
  to a hospital .
• (d) If the child is believed to be mentally ill
  as defined in s. 394.463(1), a law enforcement
  officer shall take the child to a designated
  public receiving facility for examination under
  s. 394.463.
• (e) If the child appears to be intoxicated and
  has threatened, attempted, or inflicted physical
  harm on himself or herself or another, or is
  incapacitated by substance abuse, a law
  enforcement officer shall deliver the child to a
  hospital, addictions receiving facility, or
  treatment resource.
•  

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Protective CustodyWith Consent

• Person may consent to LEO assistance to
• home, or
• hospital, or
• licensed detox center, or
• addictions receiving facility,
• whichever the LEO determines is most appropriate.
• Nearest relative of a minor must be notified by
  the law enforcement officer of the protective
  custody, as must the nearest relative of an
  adult, unless the adult requests that there be no
  notification.

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Protective CustodyWithout Consent

• Law enforcement officer may take person (after
  considering wishes of person) to a
• Hospital, or
• Detox, or
• Addiction Receiving Facility (ARF), or
• An adult may be taken to jail. Not an arrest and
  no record made.

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Jail Responsibility

• Jail must notify nearest appropriate licensed
  provider within 8 hours and shall arrange
  transport to provider with an available bed.
• Must be assessed by jails attending physician
  without unnecessary delay but within 72-hours

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Release fromProtective Custody

• Must be released by a qualified professional
  when
• Client no longer meets the involuntary admission
  criteria, or
• The 72-hour period has elapsed or
• Client has consented to remain voluntarily, or
• Petition for involuntary assessment or treatment
  has been initiated. Timely filing of petition
  authorizes retention of client pending further
  order of the court.

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Qualified Professional Defined(397.311(26), FS)

• Physician licensed under 458 or 459
• Professional licensed under chapter 490 or 491
  (Psychologist, Clinical SW, Marriage Family
  Therapist or Mental Health Counselor) or
• Person certified through a DCF recognized
  certification process for substance abuse
  treatment services and holds, at a minimum, a
  bachelors degree.
• Reciprocity with other states meet Florida
  requirements within 1 year.
• Grandfather Clause certified in Florida prior
  to 1/1/95.

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Emergency Admissions(397.679, FS)

• A person meeting involuntary admission criteria
  may be admitted to
• A hospital, or
• A licensed detox, or
• An ARF , or
• A less intensive component of a licensed service
  provider for assessment only
• for emergency assessment and stabilization upon
  receipt of a completed application with an
  attached completed physicians certificate

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Emergency AdmissionInitiation

• An application for emergency admission may be
  initiated
• For a minor by the parent, guardian or legal
  custodian.
• For adults
• Certifying physician
• Spouse or guardian
• Any relative
• Any other responsible adult who has personal
  knowledge of the persons substance abuse
  impairment.

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Physicians Certificate

• Physicians Certificate must include
• Name of client
• Relationship between client and physician
• Relationship between physician and provider
• Statement that exam assessment occurred within
  5 days of application date, and

25
Physicians Certificate (Continued)

• Factual allegations about the need for emergency
  admission
• Reasons for physicians belief the person meets
  each criteria for involuntary admission
• Must recommend the least restrictive type of
  service
• Must be signed by the physician
• Must state if transport assistance is required
  and specify the type needed.
• Must accompany the person and be in chart with
  signed copy of application.

26
Emergency AdmissionTransportation

• Transportation may be provided by
• An applicant for a persons emergency admission,
  or
• Spouse or guardian, or
• Law enforcement officer, or
• Health officer
• Federal EMTALA governs medical screening and
  transfer of persons with emergency medical
  conditions (includes substance abuse and
  psychiatric emergencies) from hospitals to other
  hospitals.

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Emergency Admission Disposition

• Within 72 hours after emergency residential
  admission, client must be assessed by attending
  doctor to determine need for further services (5
  days in OP).
• Based on assessment, a qualified professional
  must
• Release the client / refer
• Retain the client voluntarily
• Retain the client and file a petition for
  involuntary assessment or treatment (authorizes
  retention pending court order).
• See next slide for Disposition Options

28
ED Options for Referral

• Hospitals are subject to EMTALA. Emergency
  substance abuse conditions are Emergency Medical
  Conditions.
• All rights of patients and responsibilities of
  hospitals apply as long as emergency lasts.
• Once emergency is over, release with referral for
  follow-up services (not detox) can be made. See
  previous list of Miami-Dade providers
• Addiction Receiving Facilities
• Juvenile Addiction Receiving Facilities
• Detox Centers
• Assessment Centers

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Alternative InvoluntaryAssessment
Minors(397.6798, FS)

• Admission to Juvenile Addiction Receiving
  Facility (JARF) for minors meeting involuntary
  criteria upon application from
• Parent,
• Guardian, or
• Legal custodian
• Application must establish need for immediate
  admission and contain specific information,
  including reasons why applicant believes criteria
  is met.

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Alternative InvoluntaryAssessment -- Minors

• Assessment by qualified professional within 72
  hours to determine need for further services.
• Physician can extend to total of 5 days if
  further services are needed.
• Minor must be timely released or referred for
  further voluntary or involuntary treatment,
  whichever is most appropriate to minors needs.

31
Involuntary Assessment Stabilization - General
Provisions(397. 681, FS)

• Petitions filed with Clerk of Court in county
  where person is located.
• Circuit court has jurisdiction
• Chief judge may appoint general or special
  magistrate.
• Person has right to counsel at every stage of a
  petition for involuntary assessment or treatment.
• Court will appoint counsel if requested or if
  needed and person cannot afford to pay (Regional
  Conflict Counsel).
• Un-represented minor must have court-appointed
  guardian ad litem to act on the minors behalf.

32
Assessment/StabilizationPetition (397.6811, FS)

• Adult petition may be filed by
• Spouse,
• Guardian,
• Any relative,
• Private practitioner,
• Any three adults having personal knowledge of
  persons condition, or
• Service provider director/designee,.
• Minor petition may be filed by
• Parent
• Legal guardian
• Legal custodian, or
• Licensed service provider.

33
Provider Initiated Petitionsfor Involuntary
Admissions

• Providers may initiate petitions for
• involuntary assessment and stabilization, or
• involuntary treatment
• When that provider has direct knowledge of the
  respondent's substance abuse impairment or when
  an extension of the involuntary admission period
  is needed.

34
Provider Initiated Petitionsfor Involuntary
Admissions(continued)

• Providers must have policies and procedures that
  specify the
• Circumstances under which a petition will be
  initiated and
• Means by which petitions will be drafted,
  presented to the court, and monitored through the
  process in conformance with federal and state
  confidentiality requirements.
• Forms used and methods employed to ensure
  adherence to legal timeframes must be included in
  procedures.

35
Assessment/StabilizationContent of Petition
(397.6814, FS)

• Petition must contain
• Name of applicants and respondent
• Relationship between them
• Name of attorney, if known
• Ability to afford an attorney
• Facts to support the need for involuntary
  admission, including why petitioner believes
  person meets each criteria for involuntary
  intervention.

36
Assessment/StabilizationCourt Determination
(397.6818, FS)

• Clerk must determine whether person is
  represented by an attorney, and if not, whether
  an attorney should be appointed. If not
  represented, the court will appoint the Regional
  Conflict Counsel.
• Based on a hearing or solely on petition and
  without an attorney, enter an ex parte order
  authorizing assessment stabilization.
• If court determines that person meets criteria,
  he/she may be admitted
• Up to 5 days to hospital, detox or ARF for
  assessment stabilization, or
• Less restrictive licensed setting for assessment
  only

37
Assessment/StabilizationProcedures (394.6815, FS)

• Upon receipt of petition and if a hearing is
  scheduled, a copy of petition and notice of
  hearing must be provided to
•  
• Respondent,
• Attorney,
• Petitioner,
• Spouse or guardian,
• Parent of a minor, and
• Others as directed by the court

38
Assessment/StabilizationProcedures (continued)

• Summons issued to respondent and hearing
  scheduled within 10 days
• Court may order law enforcement to transport to
  nearest appropriate licensed service provider.
• Respondent must be present unless injurious and
  guardian advocate is appointed.
• Court shall hear all relevant testimony at
  hearing.
• Right to examination by court-appointed qualified
  professional.
• Determination by court whether a reasonable basis
  to believe person meets involuntary admission
  criteria.

39
Assessment/StabilizationHearing (continued)

• Court may either enter an order authorizing
  assessment stabilization or dismiss petition.
• Court may initiate Baker Act if condition is due
  to mental illness other than or in addition to
  substance abuse
• Respondent or court may choose provider
• Order must include findings as to availability
  appropriateness of least restrictive alternatives
  need for attorney to represent respondent.

40
Involuntary Assessment Stabilization
Providers (397.6819, FS

• Licensed provider may admit person for assessment
  without unnecessary delay, for a period of up to
  5 days.
• Assessment must be conducted by a qualified
  professional.
• Assessment must be reviewed by a physician prior
  to end of assessment period.
• Provider may request court to extend time for
  assessment stabilization for 7 more days, if
  timely filed within the 5-day assessment period..

41
Assessment/StabilizationDisposition (397.822, FS)

• Based upon involuntary assessment, person may be
• Released
• Remain voluntarily
• Retained if a petition for involuntary
  treatment has been initiated.
• Timely petition authorizes retention of client
  pending further order of the court.

42

• Provider Client
• Responsibilities

43
Admission for Substance Abuse Treatment

• Any person, including minors, may apply for
  voluntary admission.
• Person on involuntary status must be admitted
  when sufficient evidence exists that
• Person is substance abuse impaired
• Is the least restrictive and most appropriate
  setting
• Within licensed capacity
• Medical behavioral condition can be safely
  managed, and
• Within financial means of person to pay (not
  applicable to licensed hospital for persons)

44
Non-Discrimination

• Providers receiving state funds for substance
  abuse services cant deny access based on
  inability to pay if space sufficient state
  resources are available.
• Access cant be denied based on race, gender,
  ethnicity, age, sexual preference, HIV status,
  disability, use of prescribed medications, prior
  service departures against medical advice, or
  number of relapse episodes.
• Access cannot be denied solely because a client
  takes medication prescribed by a physician.
• Failure to have the original form initiating
  involuntary admission or an original signature on
  the form is not a basis for refusing an
  admission.

45
Refusal of Admission(397.6751, FS)

• If admission refused (in compliance with federal
  confidentiality regulations) the provider must
• 1. Attempt to contact referral source to discuss
  circumstances and assist in arranging alternate
  intervention.
• 2. Provider must ,within 1 workday of refusal,
  report in writing to referral source
• Basis for refusal
• Documentation of providers efforts to contact
  the referral source and assist person to access
  more appropriate services.
• 3. If medical or behavioral safety cant be
  managed, provider must discharge and assist to
  secure more appropriate services. Within 72
  hours, report to referral source basis for
  discharge and providers efforts to assist client.

46
Provider Responsibilities for Admissions
Refusal to Admit(continued)

• Persons on involuntarily status can only be
  placed in components of licensed service
  providers authorized to accept involuntary
  clients.
• Providers accepting person on involuntary status
  must provide a description of the eligibility and
  diagnostic criteria and the placement process to
  be followed for each of the involuntary placement
  procedures
• Each person involuntarily admitted must be
  assessed by a qualified professional to determine
  need for additional treatment and most
  appropriate services.
• Decision to refuse to admit or to discharge shall
  be made only by a qualified professional.

47
Client Responsibility for Cost of Services
(397.431, FS)

• Publicly funded providers
• Must have a fee system based upon a clients
  ability to pay, and if space and sufficient state
  resources are available, may not deny a client
  access to services solely on the basis of
  clients inability to pay.
• Must disclose full cost and fee charged to client
• Client (or guardian of minor) may be required to
  contribute toward costs, based on ability to pay
• Guardian of minor is not liable if services
  provided without parent consent unless the
  guardian is court ordered to pay.

48
Parental Participation in Minors Treatment
(397.6759, FS)

• A parent, legal guardian, or legal custodian who
  seeks involuntary admission of a minor to
  substance abuse treatment is required to
  participate in all aspects of treatment as
  determined appropriate by the director of the
  licensed service provider.

49
Release from Involuntary Admission and Treatment
(397.6758, FS)

• A client involuntarily admitted may be released
  without further order of the court only by a
  qualified professional.
• A minor may only be released to
• Parent, legal guardian or legal custodian
• To DCF pursuant to s.39, FS
• To DJJ pursuant to s.984, FS

50
Discharge and Transfer Summaries (65E-30.004(22),
FAC

• Summaries required for all voluntary and
  involuntary departures from services.
• Transfer Summary A written d/c summary signed
  and dated by primary counselor must be completed
  for clients completing or leaving prior to
  completion including clients involvement in
  services, reason for discharge, and services
  needed following discharge, including aftercare.
• Discharge Summary Completed immediately for
  clients transferring between components of same
  provider and within 5 calendar days when
  transferring to another provider. Entry must be
  made in record about circumstances of the
  transfer signed and dated by primary counselor.

51

• Emergency
• Medical
• Conditions

52
Emergency Medical Conditions the Baker Act395,
FS and EMTALA

• An emergency medical condition means a medical
  condition manifesting itself by acute symptoms of
  sufficient severity, which may include severe
  pain, such that the absence of immediate medical
  attention could reasonably be expected to result
  in any one of the following
• Serious jeopardy to patient health
• Serious impairment to bodily functions
• Serious dysfunction of any bodily organ
• Psychiatric and substance abuse emergencies are
  defined as emergency medical conditions!

53
EMTALA

• Federal EMTALA takes precedence over state
  statutes, when in conflict 
• All hospitals must comply (not CSUs, nursing
  homes or outpatient)
• Appropriate transfer from ER based on
• Medical screening for emergency medical condition
• Stabilize for transfer (mechanical, chemical or
  legal restraints?)
• Consent of person/representative (receiving
  facilities) or certification by physician
  (non-receiving facilities)
• Full disclosure / clinical records
• Prior approval by transfer destination
• Safe / appropriate method of transfer
• Community / state approved plans?
• Transfer based on paying status?

54
Applicability of EMTALA

• Applies to all licensed hospitals that provide
  services for emergency medical conditions,
  including psychiatric and substance abuse
  emergencies. Also to physicians responsible for
  exams, treatment or transfers, including on-call
  physicians.
• Includes free-standing psychiatric hospitals that
  serve persons with acute mental health /
  substance abuse emergencies.
• Excludes Crisis Stabilization Units (CSUs),
  nursing homes, ALFs, physician offices,
  outpatient clinics, etc. unless on premises of a
  hospital.
• Failure to comply can result in up to 50,000 per
  event penalty and loss of Medicare and Medicaid
  certification (10,000 state law) separate from
  license and standard of care issues

55
Medical Screening

• 3rd party payers authorize payment, not treatment
  screening must be provided regardless of 3rd
  party approval.
• Completed by medically qualified professional
  (documented in hospital bylaws or policies) and
  approved by physician.
• Encompassing the full capability for which the
  facility is licensed, including ancillary
  services routinely available..
• All patients presenting with similar complaints
  provided same care testing, regardless of
  ability to pay.

56
Medical Screening (continued)

• Depending on symptoms, screening may range from
  simple process of brief hx / physical exam to
  complex process involving diagnostic procedures
  lab testing.
• Refusal to undergo medical screening should
  reflect documentation of persons competency to
  refuse. If refusing, hospital must document in
  writing risks benefits, reasons for refusal,
  description of the exam / tx that was refused,
  and steps taken to secure written, informed
  refusal.
• Substitute decision-maker can consent on behalf
  of patient lacking capacity.
• If documented medical screening reflects no
  emergency medical condition, EMTALA no longer
  applies.
• Records maintained for 5 years

57
Psychiatric Substance AbuseEmergency Medical
Conditions

• To determine if person needs immediate
  psychiatric intervention, minimally a history
  physical exam, including neurologic and
  assessment of risk to self or others.
• Determined if dangerous to self or others (active
  or passive), especially those expressing suicidal
  or homicidal thoughts or gestures.
• Some intoxicated persons may meet definition of
  emergency medical condition.
• Some persons exhibiting psychiatric and substance
  abuse symptoms may also have unrecognized trauma
  or undiagnosed medical conditions.

58
Stabilize for Transfer

• "Stabilized" means, with respect to an emergency
  medical condition, that no material deterioration
  of the condition is likely, within reasonable
  medical probability, to result from the transfer
  of the patient from a hospital.
• Determined at time of transfer / discharge
• Stable for Discharge outpatient follow-up
• Stable for Transfer to another facility (prevent
  from injuring self or others)
• Mechanical restraints
• Chemical restraints, or
• Legal Restraints? Involuntary Status

59
Stabilize Pending Transfer

• Prevent the person from leaving the ED using the
  least restrictive method. Methods some hospitals
  use include
• Examine, admit, transfer, or release for
  follow-up ASAP
• Place into a gown remove shoes
• Locate person at back of ED, furthest from exit
  doors or in secured area or unit
• Use color-coded ID band or gown that identifies
  wandering risk
• Provide close observation
• Provide 1 on 1 by trained staff if necessary
• Provide video monitoring
• Use chemical or mechanical restraints if
  warranted under the federal Conditions of
  Participation behavioral restraint standards.

60
JCAHO National Patient Safety Goals

• Goal 15 Hospital identifies safety risks
  inherent in its patient population.
• NPSG.15.01.01 The hospital identifies patients at
  risk for suicide.
• Elements of Performance
• 1 The risk assessment includes identification of
  specific patient factors and environmental
  features that may increase or decrease the risk
  for suicide.
• 2 The hospital addresses the patients immediate
  safety needs and most appropriate setting for
  treatment.
• 3 The hospital provides information such as a
  crisis hotline to individuals at risk for suicide
  and their family members.

61
Consent for Transfer

• Consent sought only after patient apprised of
  hospitals obligations and risks of transfer.
• Non-receiving facilities -- Certification by
  physician generally acceptable without consent at
  hospitals without capability.
• Receiving facilities -- Consent always required
  at hospitals with capability.
• Involuntary status not sufficient justification
  to transfer without consent. Person doesnt lose
  rights under involuntary status more
  protections apply.

62
Full Disclosure / Clinical Records

• Transferring hospital must send all medical
  records available at time of transfer, such as
• Available history
• Nature of patients emergency medical condition
• Signs / symptoms
• Preliminary Diagnoses
• Results of lab / diagnostic studies
• Treatment provided
• Informed written consent / certification
• Written reports of lab and diagnostic studies not
  available at time of transfer must be sent later.

63
Transfer Definitions

• "At service capacity" temporary inability of a
  hospital to provide a service which is within the
  service capability of the hospital, due to
  maximum use of the service at the time of request
  for service.
• "Service capability" means all services offered
  by the facility where identification of services
  offered is evidenced by the appearance of the
  service in a patient's medical record or itemized
  bill.
• Transfers any movement outside the facility,
  including d/c, release, off-site dx testing,
  referrals to other physicians, etc.
• "Medically necessary transfer" means transfer
  made necessary because person in immediate need
  of treatment for an emergency medical condition
  where facility lacks service capability/capacity.
  

64
Prior Approval by Recipient Facility

• No transfer is appropriate unless prior approval
  is given by recipient facility.
• Recipient hospitals decision must be based on
  its capability and capacity to meet the
  patients condition not on patients ability to
  pay for care.
• Demand for face sheet or pre-cert by insurer is
  seen by AHCA as de facto evidence of reverse
  dumping under EMTALA.
• Sending hospital should be aware of what
  contracts destination hospitals have with various
  payers to reduce risk of patient having to
  undergo subsequent transfers for financial
  reasons.

65
Hospital Licensing Statute

• 395.1041  Access to emergency services and care.
  
• (e)  Except as otherwise provided by law, all
  medically necessary transfers shall be made to
  the geographically closest hospital with the
  service capability, unless another prior
  arrangement is in place or the geographically
  closest hospital is at service capacity. When the
  condition of a medically necessary transferred
  patient improves so that the service capability
  of the receiving hospital is no longer required,
  the receiving hospital may transfer the patient
  back to the transferring hospital and the
  transferring hospital shall receive the patient
  within its service capability.

66
Safe/Appropriate Method of Transfer

• Transfers from one hospital to another must be by
  qualified personnel and transportation equipment
• Responsibility of sending facility to arrange.
• Law enforcement personnel not responsible for
  transfers to other hospitals for specialty care.

67
Community/State Approved Plans

• EMTALA preempts conflicting state laws dealing
  with psychiatric emergencies.
• Once all EMTALA requirement have been met, state
  laws/procedures can be followed.
• If state/local plans exist for certain facilities
  to treat persons with psychiatric emergencies,
  such as CSUs for indigent persons or managed
  care plans that only pay in specified facilities,
  transfers can be made considering those plans.
• Once a transfer has been requested by a patient
  or determined necessary by a facility, it doesnt
  need to be made to the nearest facility, but
  rather to the most appropriate facility that can
  meet the persons needs, considering programs,
  age, and ability / inability to pay.

68
Transfer Based on Paying Status

• No contract between a Managed Care Organization
  (MCO) can excuse a hospital from its EMTALA
  obligations.
• MCOs cannot deny a hospital permission to treat
  its enrollees -- it can only refuse to pay.
• Even if plan requires prior authorization, a
  Medicare or Medicaid MCO cant require prior
  authority for provision of emergency care.

69
Hospital Licensing Statutes. 395.1041, F.S.

• (h)  A hospital may request and collect insurance
  information and other financial information from
  a patient, in accordance with federal law, if
  emergency services and care are not delayed. No
  hospital to which another hospital is
  transferring a person in need of emergency
  services and care may require the transferring
  hospital or any person or entity to guarantee
  payment for the person as a condition of
  receiving the transfer. In addition, a hospital
  may not require any contractual agreement, any
  type of preplanned transfer agreement, or any
  other arrangement to be made prior to or at the
  time of transfer as a condition of receiving an
  individual patient being transferred

70

• Involuntary
• Substance Abuse
• Treatment
• (397.693, FS)

71
Involuntary Treatment-Criteria

• In addition to meeting the criteria for all
  involuntary admissions, a person for whom a
  petition for involuntary placement is filed must
  have met additional conditions including
•  
• Having been placed under protective custody
  within the previous 10 days
• Having been subject to an emergency admission
  within the previous 10 days,
• Having been assessed by a qualified professional
  within the previous 5 days
• Having been subject to a court ordered
  involuntary assessment and stabilization within
  the previous 12 days
• A minor having been subject to alternative
  involuntary admission within the previous 12
  days.

72
Involuntary TreatmentPetition (397.695, FS)

• Adults Petition may be filed by
• Spouse
• Guardian
• Any relative
• Service provider, or
• Any 3 people having personal knowledge of
  persons impairment and prior course of
  assessment and treatment.
• Minors Petition may be filed by
• A parent
• Legal guardian, or
• Service provider.

73
Involuntary TreatmentContents of Petition
(397.6951, FS)

• Name of respondent
• Name of petitioner(s)
• Relationship between the respondent petitioner
• Name of respondents attorney
• Statement of petitioners knowledge of
  respondents ability to afford an attorney
• Findings recommendations of the assessment
  performed by qualified professional
• Factual allegations presented by the petitioner
  establishing need for involuntary treatment,
  including

74
Involuntary TreatmentContents of Petition
(continued)

• Reason for petitioners belief that respondent is
  substance abuse impaired and
• Reason for petitioners belief that because of
  such impairment, respondent has lost power of
  self-control with respect to substance abuse and
  either
• a. Reason petitioner believes the respondent has
  inflicted or is likely to inflict physical harm
  on self/others unless admitted or
• b. Reason petitioner believes respondents
  refusal to voluntarily receive care is based on
  judgment so impaired by reason of substance abuse
  to be incapable of appreciating need for care and
  making a rational decision.

75
Assessment Standardsfor Involuntary Treatment

• Providers making assessments available to the
  court regarding hearings for involuntary
  treatment must define the process used to
  complete the assessment, including
• Specifying the protocol to be utilized,
• Format and content of the report to the court,
  and
• Internal procedures used to ensure that
  assessments are completed and submitted within
  legally specified timeframes.

76
Assessment Standardsfor Involuntary
Treatment(continued)

• For persons assessed under involuntary order,
  provider shall address
• Means by which the physician's review and
  signature for involuntary assessment and
  stabilization will be secured
• Means by which the signature of a qualified
  professional for involuntary assessments only,
  will be secured.
• Process used to notify affected parties
  stipulated in the petition.

77
Involuntary Treatment --Duties of Court
(397.6955, FS)

• Upon filing of petition with clerk of court,
  court shall immediately determine if respondent
  has attorney or if appointment of counsel is
  appropriate. If not represented, court will
  appoint the Regional Conflict Counsel.
• Court scheduled hearing w/i 10 days.
• Copy of petition and notice of hearing provided
  to respondent attorney, spouse or guardian if
  applicable, petitioner, (parent, guardian or
  custodian of a minor), and other persons as the
  court may direct and
• Issue a summons to respondent.

78
Involuntary TreatmentHearing (397.6957, FS)

• All relevant evidence, including results of all
  involuntary interventions
• Client to be present unless injurious if so,
  court will appoint guardian advocate
• Petitioner has burden of proving by clear
  convincing evidence that all criteria for
  involuntary admission is met
• Court will either dismiss petition or order
  client to involuntary treatment.

79
Involuntary TreatmentBurden of Proof

• Burden of Proof by Clear and Convincing Evidence
  
• Evidence that is precise, explicit, lacking in
  confusion, and of such weight that it produces a
  firm belief or conviction, without hesitation,
  about the matter at issue (Standard Jury
  Instructions Criminal Cases, published by the
  Supreme Court of Florida, No. SC95832, June 15,
  2000).

80
Involuntary TreatmentOrder (397.697, FS)

• Order for involuntary treatment by licensed
  provider up to 60 days
• Order authorizes provider to require client to
  undergo treatment that will benefit.
• Order must include courts requirement for
  notification of proposed release.
• Court may order Sheriff to transport
• After 60-day involuntary treatment, client
  automatically discharged unless extension
  petition timely filed with court.
• Court retains jurisdiction over case for further
  orders.

81
Court Ordered Notification of Release

• When a court ordering involuntary treatment
  includes requirement in court order for
  notification of proposed release, provider must
  notify the original referral source in writing.
• Notification shall comply with legally defined
  conditions and timeframes and conform to federal
  and state confidentiality regulations.

82
Involuntary Treatment Order Early Release
(397.6971, FS)

• Client must be released when
• No longer in need of services
• Basis for involuntary treatment no longer exist
• Convert to voluntary upon informed consent
• Client is beyond safe management of the provider
• Further treatment wont bring about further
  significant improvements

83
Involuntary Treatment Order Extension
(397.6975, FS)

• When criteria still exists, a renewal of
  involuntary treatment order may be requested at
  least 10 days prior to the end of the 60-day
  period.
• Hearing scheduled w/i 15 days of filing
• Copy of petition to all parties
• If grounds exist, may be ordered for up to 90
  additional days.
• Further petitions for 90 day periods may be filed
  if grounds for involuntary treatment persist.
• Person may be released by a qualified
  professional, without court order.

84
Release from Involuntary Treatment (continued)

• Notice of release provided to applicant for a
  minor or to petitioner and court if
  court-ordered.
• Release of minor must be to parent or guardian,
  DCF or DJJ.
• An involuntarily admitted client may, upon giving
  written informed consent, be referred to a
  service provider for voluntary admission when the
  provider determines that the client no longer
  meets involuntary criteria.

85
Habitual Abusers

• Habitual Abuser means a person brought to
  attention of law enforcement for being substance
  impaired, who meets criteria for involuntary
  admission and who has been taken into custody for
  such impairment 3 or more times during previous
  12 months.
• No political subdivision may adopt a local
  ordinance making impairment in public in and of
  itself an offense. Local ordinances for the
  treatment of habitual abusers must provide
• For the construction and funding, of a licensed
  secure facility to be used exclusively for the
  treatment of habitual abusers who meet the
  criteria.

86
Habitual Abusers (continued)

• When seeking treatment of a habitual abuser, the
  county or municipality, through an officer or
  agent specified in the ordinance, must file with
  the court a petition which alleges specified
  information about the alleged habitual abuser
• Person can be held up to 96 hours in a secure
  facility while a petition is prepared and filed.
• Attorney to be appointed
• Hearing conducted within 10 days.
• May be ordered up to 90 days in treatment
• Extensions of up to 180 days can be requested.

87
Offender ReferralsTreatment-Based Courts

• If any offender, including a minor, is charged
  with or convicted of a crime, the court may
  require the offender to receive services from a
  licensed service provider. If referred by the
  court, the referral shall be in addition to final
  adjudication, imposition of penalty or sentence,
  or other action.
• The order must specify
• The name of the offender,
• The name and address of the service provider to
  which the offender is referred,
• The date of the referral,
• The duration of the offender's sentence, and
• All conditions stipulated by the referral source.

88
Offender ReferralsTreatment-Based Courts

• The total amount of time the offender is required
  to receive treatment may not exceed the maximum
  length of sentence possible for the offense with
  which the offender is charged or convicted.
• The director may refuse to admit any offender
  referred to the service provider, with the reason
  communicated immediately and in writing within 72
  hours to the referral source
• The director may discharge any offender referred
  when, in the judgment of the director, the
  offender is beyond the safe management
  capabilities of the service provider.
• When an offender successfully completes treatment
  or when the time period during which the offender
  is required to receive treatment expires, the
  director shall communicate such fact to the
  referral source.

89
Inmate Substance Abuse Programs

• Inmate Substance Abuse Programs are provided
  within facilities housing only inmates and
  operated by or under contract with the Department
  of Corrections.
• Inmate means any person committed by a court of
  competent jurisdiction to the custody of DOC,
  including transfers from federal and state
  agencies.
• Inmate substance abuse services means any service
  provided directly by the DOC and licensed
  regulated by DCF or provided through contract
  with a licensed service provider or any
  self-help program or volunteer support group
  operating for inmates.

90

• Marchman Act
• Client Rights
• 397.501, FS

91
Client Rights

• Individual Dignity
• Non-discriminatory Services
• Quality Services
• Communication
• Care Custody of Personal Effects
• Education of Minors
• Confidentiality
• Counsel
• Habeas Corpus

92
Individual Dignity397.501(1), FS

• Respect at all times, including when admitted,
  retained, or transported.
• Cannot be placed in jail unless accused of a
  crime except for protective custody (initiated by
  law enforcement) in strict accordance with the
  Marchman Act. (only adults may be placed in jail
  for protective custody)
• Guaranteed the protection of all fundamental
  human, civil, constitutional, and statutory
  rights.
• Must permit grievances to be filed for any reason

93
Quality Services397.501(3), FS

• Least restrictive and most appropriate services,
  based on needs and best interests of client.
• Services suited to clients needs, administered
  skillfully, safely, humanely, with full respect
  for dignity/integrity, and in compliance with all
  laws and requirements.
• Methods used to control aggressive client
  behavior that pose an immediate threat to the
  client or others used by staff trained
  authorized to do so in accordance with rule.
• Opportunity to participate in formulation and
  review of individualized treatment / service
  plan.

94
Communication397.501(4), FS

• Free and private communication within limits
  imposed by provider policies.
• Reasonable rules for mail, telephone visitation
  to ensure the well-being of clients, staff and
  community.
• Close supervision of all communication and
  correspondence is required.
• Clients and families must be informed about
  provider rules related to communication and
  correspondence.

95
Care Custody of Personal Effects 397.501(5), FS

• Right to possess clothing and other personal
  effects.
• Provider may take temporary custody of personal
  effects only when required for medical or safety
  reasons.
• If removed, reasons for taking custody and a list
  of the personal effects must be recorded in
  clinical record.

96
Right to Counsel397.501(8), FS

• Client must be informed of right to counsel at
  every stage of involuntary proceedings.
• May be represented by counsel in any involuntary
  proceeding for assessment, stabilization or
  treatment.
• Person (or guardian of a minor) may immediately
  apply to court to have attorney appointed, if
  unable to afford one. If not represented, the
  court will appoint the Regional Conflict Counsel.

97
Habeas Corpus397.501(9), FS

• Filed at any time and without notice by any
  client, regardless of age
• Filed by client involuntarily retained or parent,
  guardian, custodian, or attorney on behalf of
  client
• May petition for a writ to question cause and
  legality of retention and request the court to
  issue a writ for clients release

98
Confidentiality397.501(7), FS 42 CFR, Part 2, 45
CFR Parts 160 and 164 and HIPAA

• Identity, diagnosis, prognosis, and service
  provision to any client is confidential.
• Disclosure requires written consent of client,
  except
• Medical personnel in emergency
• Provider staff on need to know to carry out
  duties to client.
• DCF Secretary/designee for research
  (non-identifying)
• Audit or evaluation by federal, state, local
  governments, or 3rd party payor
• Court order for good cause based on whether
  public interest/need for disclosure outweigh
  potential injury to client or provider to
  authorize disclosure but subpoena then
  required.to compel.

99
Confidentiality (continued)

• Release to Law Enforcement directly related to
  commission of a crime on premises or against
  staff or threat to do so. Limited to
• Clients name and address
• Circumstances of incident
• Client status
• Clients last known whereabouts.
• Court can authorize for criminal investigation or
  prosecution only if all the following criteria
  are met
• Crime is extremely dangerous
• Records will be of substantial value
• No other methods available or effective
• Potential injury to client or program outweighed
  by public interest and need to know.

100
Confidentiality the Courts

• Court order authorizes but does not compel
  disclosure of client identifying data.
• Subpoena must then be issued to compel
  disclosure.
• Client and provider must be given notice and
  opportunity to respond or to appear to provide
  evidence.
• Oral argument, review of evidence or hearing in
  chambers.

101
Confidentiality

• Restrictions inapplicable to reporting of
  suspected child abuse.
• Minor may consent to own disclosure consent can
  only be given by the minor
• If consent of guardian required to obtain
  services for minor, both minor guardian must
  consent to disclosure
• 42 CFR (Code of Federal Regulations) and HIPAA
  also control how information can be released
  most stringent prevails.
• The regulations do not restrict a disclosure that
  an identified individual is not and has never
  received services 397.501(7)(d), FS

102
Duties of All Hospitals (continued)

• .
• 395.3025  Patient and personnel records copies
  examination.--
• (2) This section does not apply to records
  maintained at any licensed facility the primary
  function of which is to provide psychiatric care
  to its patients, or to records of treatment for
  any mental or emotional condition at any other
  licensed facility which are governed by the
  provisions of s. 394.4615.
• (3) This section does not apply to records of
  substance abuse impaired persons, which are
  governed by s. 397.501.

103
Unlawful Activities

• Service provider personnel who violate or abuse
  any right or privilege of a client are liable for
  damages as determined by law.
• Knowingly furnishing false information to obtain
  involuntary admission
• Causing, securing or conspiring to secure
  involuntary procedures
• Causing or conspiring or assisting another to
  deny a person rights
• All misdemeanor of 1st degree, punishable as
  provided in s.775.082 and up to 5,000.

104
Immunity.397.501(10)(b), FS.

• A law enforcement officer acting in good faith
  pursuant to the Marchman Act may not be held
  criminally or civilly liable for false
  imprisonment.397.6775, FS)
• All persons acting in good faith, reasonably, and
  without negligence in connection with the
  preparation of petitions, applications,
  certificates, or other documents or the
  apprehension, detention, discharge, examination,
  transportation or treatment under the Marchman
  Act shall be free from all liability, civil or
  criminal, by reason of such acts

105
Case Law Related to Marchman Act

• Department of Health and Rehabilitative Services
  v. Straight, Inc. Case No. BL-151 October 30,
  1986. The 1st DCA upheld trial court by saying
  that the Chapter 397 does not by its express
  provisions or by implication prevent a parent
  from placing a minor child with a state licensed
  drug treatment facility or program without the
  consent of the child and without judicial review.
• Steven Cole v. State of Florida (2nd DCA 1998)
  Reversed due to failure to inform of right to
  counsel, prior notice of charges, trial not
  recorded. Court erroneously ordered specific
  modalities of treatment this is authority of
  service provider. Indirect contempt of court for
  failure to comply with treatment inappropriate.

106
Case Law Related to Marchman Act (continued)

• S.M.F. v Needle (Palm Beach 2000) order for 60
  days of treatment not merely 60 days after order
  signed.
• Jennifer BLAIR, Plaintiff v. Bijou RAZILOU and
  the City of Naples, defendant (2010 WL 571980
  M.D. Florida Fort Myers Division, Feb. 16, 2010).
  Defendants Motion for Summary Judgment granted.
  The parties didnt dispute that the officer was
  acting within his discretionary authority and
  that plaintiffs civil commitment, while not an
  arrest, was a seizure under the 4th amendment.
  Because the court found that the officer had
  arguable probable cause to civilly commit
  plaintiff, he was entitled to qualified immunity.
  

107

• Resources for Marchman Act
• and
• Baker Act

108
On-Line Training Opportunities

• http//www.dcf.state.fl.us/programs/samh/mentalhea
  lth/training/bacourses.shtml
• Marchman Act
• Baker Act Marchman Act Compared
• Introduction to the Baker Act
• Law Enforcement Baker Act
• Emergency Medical and Baker Act
• Long-Term Care Facilities
• Consent for Minors
• Rights of Persons
• Suicide Prevention
• Why People Die by Suicide
• Trauma Series
• Seclusion and Restraints
• No fee
• Certificate of Achievement
• CEs offered _at_ low or no cost

109
DCF Marchman Act Websitehttp//www.myflfamilies.c
om/service-programs/substance-abuse/marchman-

• Click on Marchman Act.
• 2003 Marchman Act User Reference Guide that
  includes among other issues
• Statute Rules
• History Overview
• Marchman Act Model Forms
• Law Enforcement and Protective Custody
• Quick Reference Guide for Involuntary Provisions
• Flow Charts for Involuntary Provisions
• Admission Treatment of Minors
• Where to Go for Help
• Marchman Act Pamphlet
• Substance Abuse Program Standards
• Common Licensing Standards
• Marchman Act PowerPoint Presentation

110
DCF Baker Act Websitehttp//www.myflfamilies.com/
service-programs/mental-health/baker-act

• Click on Baker Act. Contents include
• Copy of Baker Act law (394, Part I, FS) and rules
  (65E-5, FAC)
• Baker Act forms mandatory and recommended
• Selected forms in Spanish Creole
• 2014 Baker Act Handbook
• Baker Act monitoring/survey instruments
• Frequently Asked Questions (FAQs) on 21 subject
  areas
• List of all public and private receiving
  facilities throughout the state
• Mental Health Advance Directives
• Other relevant materials

111
SOUTHERN REGION CONTACTS

• Yamile Diaz, LMFT, CAP
• DCF-SAMH Regional System of Care Coordinator
• 401 NW 2nd Ave, Suite N-812
• Miami, Florida 33128
• Office Number [phone]
• Fax Number [phone]
• Yamile.Diaz_at_myflfamilies.com
•  
• Carol Caraballo, LCSW, MPA
• Adult System of Care Manager
• South Florida Behavioral Health Network,
• 7205 Corporate Center Dr. Ste 200, Miami, FL 
  33126
• Office Number [phone] Fax [phone]
• ccaraballo_at_sfbhn.org
•  
• Habsi W. Kaba, MS, MFT, CMS
• Program Coordinator/Liaison

112
MIAMI DADE COUNTYCLERK OF COURTSJuvenile
Adult Marchman Act Packages can be found
electronicallyhttp//www.miami-dadeclerk.com/fa
milies_probate.aspOnly for Miami-Dade County