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Risks & Responsibilities Baker Act

& Marchman Act

Baptist HealthSouth Florida

October 8, 20152

Agenda

� Introduction to related laws

� Criteria for and initiation of:

�Baker Act Involuntary Examinations

�Marchman Act Involuntary Admissions

� Emergency Medical Conditions

� Rights of Persons

� Training Resources

� Questions & Answers

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Alternatives to the Baker ActMental Illness Only� Marchman Act, Chapter 397� Developmental Disabilities, Chapter 393

Psychiatric – Not Medical � Emergency Examination & Treatment of

Incapacitated Persons, Chapter 401� Federal EMTALA – Emergency Medical

Treatment and Active Labor Act & State’s Access to Emergency Services & Care, 395.1041, F.S.

� Florida Medical Consent Law 766.103 � Expedited Judicial Intervention

Concerning Medical Treatment Procedures Probate Rule 5.900

Intervention Alternatives� Adult Protective Services, Chapter 415� Guardianship, Chapter 744� Advance Directives Act/Health Care

Surrogate & Proxy, Chapter 765

Not a Discharge Destination� Nursing Homes/Assisted Living Facilities

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Receiving Facilities

Unless designated by DCF, facilities are not permitted to hold or treat persons for mental illness against their will or without their express and informed consent, except as required under federal EMTALA law.

Receiving Facility: Any public or private facility designated by DCF to receive and hold involuntary patients under emergency conditions for psychiatric evaluation and to provide short-term treatment (excludes jails, ALF’s and nursing homes.

Receiving Facilities must:

� Provide onsite emergency reception, screening & inpatient treatment services 24 hours a day, 7 days a week, regardless of ability to pay

� Accept persons of all ages

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Private Receiving Facilities

Aventura Hospital and Medical Center20900 Biscayne Blvd, Miami

Jackson South Community Hospital9333 Southwest 152nd St, Miami

Kendall Regional Medical Center11750 SW 40th Street, Miami

Larkin Community Hospital7031 Southwest 62nd Ave, South Miami

Mercy Hospital3663 S Miami Ave., Miami

Miami Children's Hospital3100 Southwest 62nd Ave, Miami

Mount Sinai Medical Center4300 Alton Rd, Miami Beach

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Private Receiving Facilities

Mount Sinai ED2845 Aventura Blvd, Miami Beach

North Shore Medical Center1100 Northwest. 95th St, Miami

Palmetto General Hospital2001 West 68th St, Hialeah

Southern Winds Hospital4225 West 20th Ave, Hialeah

University of Miami Hospital (Cedars)1400 NW 12th Avenue, Miami

Westchester General Hospital2500 Southwest 75th Ave, Miami

VA Medical Center (eligible veterans only)1201 N.W. 16th Street, Miami

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Public Receiving Facilities

Citrus Health Network - Adult & Child (CSU) 4175 West 20th Ave, Hialeah

Community Health Cr of South FL- CSU10300 Southwest 216th St, Miami

Jackson Behavioral Health Hospital1695 NW 9th Avenue, Miami

Miami Behavioral Health Center - CSU3850 West Flagler St, Miami

New Horizons CMHC -CSU1455 Northwest 36th St, Miami

Public Health Trust of Miami-Dade County - Jackson North CMHC15055 NW 27 Avenue, Opa Locka7 8

Miami-Dade County Transportation Exception Plan

Applies to primary transport of persons on Baker Act involuntary status only – not to secondary transfers from ED’s. Otherwise, take to nearest receiving facility, except:

� Emergent medical – nearest ER� Non-emergent medical – nearest receiving facility

in general hospital� Age 60+ Jackson North, Kendall, Larkin, Mercy, Mt.

Sinai, Palmetto, Southern Winds, UM Hospital, Westchester

� Age O-17: nearest of Miami Children’s, Citrus, Jackson, Southern Winds (adolescents only)

� Deaf or hard of hearing – all ages -- Jackson Memorial Hospital

� Jail Diversion – nearest facility to residence or site of arrest

� Plan approved by County Commission & DCF Secretary.

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Baker Act

Voluntary Admissions

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Voluntary Admission

ADULTS :� Have a mental illness� Be competent to provide express and

informed consent

� Be suitable for treatment

MINORS:� Have a mental illness

� Guardian applies by express and informed consent for minor’s admission

� Judicial hearing conducted in advance of admission to confirm voluntariness

� Be suitable for treatment

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Mental Illness Means…394.455(18), FS

� Impairment of the mental or emotional processes that exercise conscious control of one’s actions or of the ability to perceive or understand reality.

� Impairment substantially interferes with a person’s ability to meet the ordinary demands of living,

� Except for developmental disabilities defined in chapter 393, intoxication, or conditions manifested only by antisocial behavior or substance abuse impairment.

Co-occurring Disorders?

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Express and Informed Consent Means…394.455(9), FS

� 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.

Incompetent to Consent to Treatment Means…

394.455(15), FS

� When a person’s judgment is so affected by his or her mental illness that he/she lacks the capacity

� To make a well-reasoned, willful and knowing decision concerning his or her medical or mental health treatment.

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Voluntary AdmissionSelected Procedures

394.4625, FS and 65E-5.270, FAC

� Incapacitated or incompetent with a guardian or a health care surrogate / proxy making decisions -- must be involuntary

� Competence to consent certified by a physician within 24 hours of arrival at receiving facility – if not, convert to involuntary.

� Refusal of treatment or request for discharge -- release within 24 hours or convert to involuntary.

� Petition for involuntary placement filed by receiving facility with circuit court within 2 court working days after request for discharge is made.

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Baker ActInvoluntary Examinations

& Transportation

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Involuntary Examination Criteria394.463(1),FS

Reason to believe the person has a mental illness and because of mental illness, he/she has refused or is unable to determine examination is necessary,

and either :Without care or treatment, is likely to suffer from neglect or refuse to care for self, and such neglect or refusal poses a real and present threat of substantial harm to one’s well-being and it is not apparent that such harm may be avoided through the help of willing family members, friends, or the provision of other services; or

There is substantial likelihood that without treatment he/she will cause in the near future serious bodily harm to self/others, as evidenced by recent behavior.

Must meet all criteria

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Initiating Involuntary Examinations384.463(2), FS and 65E-5.280, FAC

When person appears to meet criteria for involuntary examination, the exam may be initiated by any one of the following three means:

1.Court Order - the circuit court mayenter an ex parte order; or

2.A law enforcement officer shall take into custody a person who appears to meet the criteria describing circumstances ; or

3.A mental health professional mayexecute a certificate stating that s/he has examined the person within the preceding 48 hours and found the person met the criteria and stating the observations upon which that conclusion is based.

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Certificate of a Mental Health Professional

394.455(2), (4), (21), (23) and (24), FS

Mental Health Professional defined…Psychiatrist : A medical practitioner licensed under chapter 458 or 459 who has primarily diagnosed/treated mental/nervous disorders for a period of not less than 3 years, inclusive of psychiatric residency.

Physician : A medical practitioner licensed under chapter 458 or 459 who has experience in the diagnosis/treatment of mental and nervous disorders or a physician employed by a facility operated by the U.S. Dept of Veterans Affairs which qualifies as a receiving or treatment facility.

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Clinical Psychologist : A psychologist as defined in s. 490.003(7) with 3 years of postdoctoral experience in the practice of clinical psychology, inclusive of the experience required for licensure, or a psychologist employed by a facility operated by the United States Department of Veterans Affairs that qualifies as a receiving or treatment facility.

Psychiatric Nurse : an ARNP certified under s.464.012 with a master’s or doctoral degree in psychiatric nursing, holds a national advanced practice certification as a psychiatric mental health advance practice nurse, and has 2 years of post-master’s clinical experience under the supervision of a physician.

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Clinical Social Worker: A person licensed as a clinical social worker under chapter 491.

Licensed Mental Health Counselor : Means a mental health counselor licensed under chapter 491, F.S.

Licensed Marriage and Family Therapist : Means a marriage and family therapist licensed under chapter 491, F.S.

(Physician Assistants not eligible in statute, but recognized by Florida Attorney General in May 08 Opinion to initiate involuntary exam but not

to perform other duties of a physician)

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Certificate of a MH Professional384.463(2)(a)3, FS and 65E-5.280(3), FAC

� Examination within 48 hours prior to completing form

� Signed by authorized professional

� Citing observations of the professional on which his/her conclusion is based

� Diagnosis reflects legal definition of mental illness in Baker Act law

� Observations must relate to the legal criteria

� Certificate of a Professional Initiating Involuntary Examination (BA-52b)

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Baker Act Involuntary Examinations

Dade Monroe State1999 5,805 470 75,9452000 7,133 449 80,8882001 8,797 455 81,5682002 10,391 408 100,1582003 10,940 518 104,6002004 11,580 494 110,6972005 12,334 469 122,2062006 13,145 443 120,5062007 13,792 459 122,4542008 15,585 480 132,0662009 16,672 469 136,1202010 16,456 432 143,3472011 15,652 465 150,4662012 17,650 475 157,3522013 22,150 484 171,744Rate1,000 8.6 6.6 8.0Court 3% 1% 2%MHP 48% 72% 49%LEO 49% 28% 49%

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Transportation394.462, FS and 65E-5.260, FAC

� Mandated duty of law enforcement for allprimary transports for Involuntary exams,regardless of how initiated (court, lawenforcement or MH professional), exceptsecondary transfers from hospitals.

� Exceptions/delegation of responsibility

� Nearest facility must accept (394, 395, and EMTALA)

- Emergency medical conditions!

- Medical clearance?

� Facility at capacity? Divert status?

� Security at facilities?

� Insurance or medical screening at ER?

� Transfers from hospital ER’s

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Involuntary Examination394.463(2)(f)and 65E-5.2801(1), FAC

A “Baker Act” is not lifted, rescinded, overturned, reversed, or abrogated!

� Once an Involuntary Exam is initiated, the Initial Mandatory Involuntary Examination must be conducted without unnecessary delay by a physician or psychologist at a receiving facility or a hospital and documented in the clinical record

� Psychiatric Nurse authorized, as of 7/1/15, to perform the exam in any receiving facility under protocol with a psychiatrist, but cannot approve release from a hospital if the exam was initiated by a psychiatrist.

• Minimum standards for Initial Mandatory Involuntary Examination… 24

Minimum Standards for Initial Mandatory Involuntary Examination

394.463(2)(f), FS 65E-5.2801, FAC

� Review of person’s recent behavior;

� Review “Transportation to Receiving Facility” form (#3100) and

� Review one of the following:

� “Ex Parte Order for Involuntary Examination” or

� “Report of Law Enforcement Officer Initiating involuntary Examination” or

� “Certificate of Professional Initiating Involuntary Examination”

� Conduct brief psychiatric history; and

� Conduct face-to-face examination by physician or psychologist, in timely manner to determine if person meets criteria for release .

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Discharge or ReleaseInvoluntary Examination

394.463(2)(I), FS

Within the 72-hour examination period, a Designated Receiving Facility must :

� Release person, unless charged with a crime. If so, returned to law enforcement, or

� Transfer to Voluntary status if person is willing/able to give express and informed consent, unless charged with a crime, or

� Receiving Facility files a Petition for involuntary placement with Clerk of Circuit Court and, if after hearing is conducted, an order is entered, can be placed up to 6 months.

� A hospital (not designated) required to transfer or release a person within 12 hours after medical stabilization – see later slide).

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Baker Act Immunity394.459 (10), 394.4615(8), and 394.460, FS

Any person who acts in good faith in compliance with the Baker Act is immune from civil or criminal liability for his or her actions in connection with the admission, diagnosis, treatment, or discharge of a person to or from a facility. However, this section does not relieve any person from liability if such person commits negligence.

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Marchman Act

The Florida

Substance Abuse

Impairment Act

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Marchman Act � Myers Act (396, FS)� Drug Dependency Act (397, FS)

Replaced with the 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!! Totally different requirements except for applicability of federal EMTALAto emergency substance abuse conditions

Substance Abuse Impairment means:A condition involving the use of alcohol or any psychoactive or mood-altering substance in such a manner as to induce:mental, emotional, or physical problems and cause socially dysfunctional behavior

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Involuntary AdmissionsCriteria

� Good faith reason to believe person is substance abuse impaired 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 the need for services and of making a rational decision in regard thereto. (Mere refusal to receive services is not evidence of lack of judgment)

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Involuntary AdmissionsInitiation

Non-Court Involved Admissions� Protective Custody – law enforcement� Emergency Admission - physician� Alternative Involuntary Assessment for

Minors – parent or legal guardian to secure Juvenile Addiction Receiving Facility

Court Involved Admissions:� Involuntary Assessment & Stabilization� Involuntary Treatment

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Emergency Admissions

A person meeting involuntary admission criteria may be admitted to:

� A hospital or � A licensed detoxification program

for emergency assessment and stabilization upon receipt of a physician’scertificate and completion of an application.

Application can be filed for minor by parent or guardian or for an adult by:

� Certifying physician , or� Person's spouse or guardian, or� Any relative of the person, or � Any other responsible adult who has

personal knowledge of the person's

substance abuse impairment.32

Physician’s Certificate

Physician’s Certificate must include:

�Name of client

�Relationship between client and physician

�Relationship between physician & provider

�Statement that exam & assessment occurred within 5 days of application date,

�Factual allegations about the need for emergency admission:

�Reasons for physician’s belief each criteria for involuntary admission is met

�Recommend the least restrictive service�Must be signed by the physician�Must state if transport assistance is

required and specify the type needed.�Must accompany the person and be in

chart with signed copy of application.

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Emergency Admission Disposition

Within 72 hours after emergency admission, client must be assessed by attending doctor to determine need for further services.

Based on assessment, a qualified professional* must:

� Release the person / refer

� Retain the person voluntarily

� Retain person and file petition for involuntary assessment or treatment with Clerk of Court (authorizes retention pending court order).

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Qualified ProfessionalDecision to refuse to admit or to discharge can only be made by a “qualified professional”, defined as:

� Physician a person licensed under chapter 458 or 459, and may include, if the context so indicates, an intern or resident enrolled in an intern or resident training program affiliated with an approved medical school, hospital, or other facility through which training programs are normally conducted.

� A professional licensed under chapter 490 or 491 (Psychologist, LCSW, LMFT, or LMHC; or

� Person certified through DCF recognized certification process for substance abuse treatment services and who holds, at a minimum, a bachelor’s degree.

� Reciprocity with other states – meet Florida requirements within 1 year.

� Grandfather Clause – certified in Florida prior to 1/1/95.

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Transfer for Substance Abuse Treatment

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– generally limited to voluntary services.Person must be admitted to provider 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 person with emergency substance abuse condition) 36

Marchman Act Immunity

All persons acting in good faith, reasonably, and without negligence in connection with the preparation of petitions, applications, certificates, or other documents or the apprehension, detention, discharge, examination, transportation or treatment under the Marchman Act shall be free from all liability, civil or criminal, by reason of such acts.

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Addiction Receiving Facilities (ARFs)

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 NeededM-F 8 a.m. – 4 p.m. 786-466-30203140 NW 76 St., Miami

South Florida Jail Ministries, Inc. d/b/a Agape Family Ministry22790 SW 112th Ave., Miami, 305-235-2616

Betterway of Miami 800 NW 28th St., Miami; 305-634-3409

Camillus House; 726 NE 1st Ave., Miami; 305-374-1065

Catholic Charities: St. Luke’s Recovery7707 NW 2nd Ave., Miami; 305-795-0077

Concept House ; 162 NE 49th St., Miami; 305-751-6501 38

Residential ProvidersAssessment -- Available With Appointment (continued)

Here’s Help, Inc. 15100 NW 27th Ave. Opa Locka; 305-685-8201

Jessie Trice Community Health Center2985 NW 54 Street; Miami; 305-685-8201

Banyan Community Health Center: Casa Nueva Vida 1560 SW 1st St., Miami; 305-644-2667

Banyan Community Health Center: Dade Chase 140 NW 59 St., Miami; 305-759-8888

Miami Dade County Community Action and Human Services Department: New Directions3140 NW 76 St., Miami; 305-693-3251

The Village South; 3180 Biscayne Blvd.Miami, 305-341-1718

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Emergency

Medical

Conditions

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Emergency Medical Conditions & the Baker Act

395, FS and EMTALA

An emergency medical condition means a medical condition manifesting itself by acute symptoms of sufficient severity…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

Centers for Medicare & Medicaid Services (CMS) defines psychiatric and substance abuse emergencies as “emergency medical conditions” .

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EMTALA

Federal EMTALA takes precedence over state statutes, when in conflict. If not in conflict, both federal and state laws apply.

Appropriate transfer based on:1. Medical screening for emergency

medical condition2. Stabilize for transfer (mechanical,

chemical or legal restraints?)3. Consent of person / representative

(receiving facilities) or certification by physician (non-receiving facilities)

4. Full disclosure / clinical records5. Prior approval by transfer destination6. Safe/appropriate method of transfer7. Community / state approved plans8. Transfer based on paying status

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Applicability of EMTALA� Applies to all licensed hospitals that

provide services for emergency medical conditions, including psychiatric and substance abuse emergencies, until emergency is stabilized..

� Includes free-standing psychiatric hospitals that serve persons with acute mental health emergencies.

� Applies also to physicians responsible for exams, treatment or transfers, including on-call physicians. Excludes Crisis Stabilization Units (CSU’s), nursing homes, ALF’s, physician offices, outpatient clinics, etc.

� Failure to comply can result in up to $50,000 per event penalty and loss of Medicare and Medicaid certification ($10,000 state law) – separate from license and “standard of care” issues

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Medical Screening

�3rd party payers authorize payment, not treatment – screening must be provided regardless of 3rd party approval.

�Completed by medically qualified professional (documented in hospital bylaws or policies) and approved by physician.

�Encompassing the full capability for which the facility is licensed, including ancillary services routinely available..

�All patients presenting with similar complaints provided same care & testing, regardless of ability to pay.

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Medical Screening (continued)

� Depending on symptoms, screening may range from simple process of brief hx / physical exam to complex process involving diagnostic procedures & lab testing.

� Refusal to undergo medical screening should reflect documentation of person’s competency to refuse. If refusing, hospital must document in writing risks – benefits, reasons for refusal, description of the exam / tx that was refused, and steps taken to secure written, informed refusal.

� Substitute decision-maker can consent on behalf of patient lacking capacity.

� If documented medical screening reflects no emergency medical condition exists, EMTALA no longer applies.

� Records maintained for 5 years

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Psychiatric & Substance AbuseEmergency Medical Conditions

� To determine if person needs immediate psychiatric intervention, minimally a history & physical exam, including neurologic and assessment of risk to self or others.

� Determined if dangerous to self or others (active or passive), especially those expressing suicidal or homicidal thoughts or gestures.

� Some intoxicated persons may meet definition of emergency medical condition.

� Some persons exhibiting psychiatric and substance abuse symptoms may also have unrecognized trauma or undiagnosed medical conditions.

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The Joint CommissionPatient Safety Goals

Goal 15 The hospital identifies safety risks inherent in its patient population.

NPSG.15.01.01 The hospital identifies patients at risk for suicide.

Elements of Performance:

1 The risk assessment includes identification of specific patient factors and environmental features that may increase or decrease the risk for suicide.

2 The hospital addresses the patient’s immediate safety needs and most appropriate setting for treatment.

3 The hospital provides information such as a crisis hotline to individuals at risk for suicide and their family members.

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Transfer Definitions� Transfers include any movement outside

the facility, including discharge, release, off-site diagnostic testing, referrals to other physicians, etc.

� "Medically necessary transfer " means transfer made necessary because person is in immediate need of treatment for an emergency medical condition for which the facility lacks service capability or is at service capacity.

� "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

� "At service capacity" means the 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 the request for the service.

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Stabilize for Transfer

� Stabilized means, with respect to an emergency medical condition, that no material deterioration of the condition is likely, within reasonable medical probability, to result from the transfer of the patient from a hospital.

� Determined at time of transfer / discharge

� Stable for Discharge – outpatient follow-up

� Stable for Transfer to another facility(prevent from injuring self or others)

� Mechanical restraints� Chemical restraints, or � Legal Restraints? Involuntary Status

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Consent for Transfer

� Consent sought only after patient apprised of hospital’s obligations and risks of transfer.

� Non-receiving facilities -- Certification by physician generally acceptable without consent at hospitals without capability.

� Receiving facilities -- Consent always required at hospitals with capability and capacity.

� Involuntary status not sufficient justification to transfer without consent. Person doesn’t lose rights under involuntary status – more protections apply.

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Stabilize Pending TransferPrevent the person from leaving the ED or medical unit 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.

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Full Disclosure / Clinical Records

Transferring hospital must send all medical records available at time of transfer, such as:

� Available history

� Nature of patient’s emergency medical condition

� Signs / symptoms

� Preliminary Diagnoses

� Results of lab / diagnostic studies

� Treatment provided

� Informed written consent / certification

Written reports of lab and diagnostic studies not available at time of transfer must be sent later.

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Prior Approval by Recipient Facility

� No transfer is appropriate unless prior approval is given by recipient facility.

� Recipient hospital’s decision must be based on it’s capability and capacity to meet the patient’s emergency condition –not on patient’s ability to pay for care.

� Demand by Baker Act receiving facility for face sheet or pre-cert by insurer is seen by AHCA as de facto evidence of “reverse dumping” under EMTALA.

� Sending hospital should be aware of what contracts destination hospitals have with various payers to reduce risk of patient having to undergo subsequent transfers for financial reasons.

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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 secondary transfers to other hospitals for specialty care. Generally, law enforcement would not be considered a “safe and appropriate” method of transferring a patient with an “emergency medical condition” even of a psychiatric or substance abuse nature.

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Hospital Licensing Statute

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

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Community/State Approved Plans

� EMTALA preempts conflicting state laws dealing with psychiatric emergencies.

� Once all EMTALA requirement have been met, state laws / procedures can be followed.

� If state/local plans exist for certain facilities to treat persons with psychiatric emergencies, such as CSU’s for indigent persons or managed care plans that only pay in specified facilities, transfers can be made considering those plans.

� Once a transfer has been requested by a patient or determined necessary by a facility, it doesn’t need to be made to the nearest facility, but rather to the most appropriate facility that can meet the person’s needs, considering programs, age, and ability / inability to pay.

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Transfer based on paying status

� No contract between a Managed Care Organization (MCO) can excuse a hospital from its EMTALA obligations.

� MCO’s cannot deny a hospital permission to treat its enrollees -- it can only refuse to pay.

� Even if plan requires prior authorization, a Medicare or Medicaid MCO can’t require prior authority for provision of emergency care.

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Hospital Licensing Statutes. 395.1041, F.S.

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

Emergency Medical Conditions394.463(2)(g) and (h), FS

At hospital providing evaluation or treatment of an emergency medical condition:

� 72-hour clock starts at arrival, stops for emergency medical condition, starts again when person is stabilized

� Examination can be conducted by a physician, psychologist, or psychiatric nurse.

� Direct release approved by physician or clinical psychologist (or psychiatric nurse under some conditions) (#3101) or

� Transfer to a designated receiving facility able to provide needed medical care:�Notice to receiving facility – 2 Hours

(#3102)

�Transfer to or examination by receiving facility – within 12 hours

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Inability to Transfer

� Examination & release by ED physician if Mandatory Initial Involuntary Exam is conducted and person doesn’t meet criteria for involuntary placement.

� Contract with psychologist to conduct exams at ED and release.

� Transfer to “a” designated receiving facility able to manage person’s medical condition

� Retain for medical treatment with psychiatric care by receiving facility or hospital’s consulting psychiatrist.

� Have a receiving facility file a petition with court for involuntary placement if person can’t be transferred due to medical condition, but meets involuntary placement criteria.

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Inability to Transfer� If unable to transfer to a willing BA

receiving facility within the 12 hourperiod, report self to local DCF MH Program or Managing Entity & request assistance in transferring.

� Document date / time of every call, person talked to, and response received. This documents hospital’s good faith effort to comply with the law.

� DCF can verify accuracy of census in each receiving facility and confirm that no preferential treatment provided to paying patients.

� Do not stack one BA-52 on top of another one. Patient’s right not to be held more than 72 hours for psychiatric examination.

� Do not allow patient to depart the hospital if still meeting criteria!!

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Patient Rights

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Rights of Persons394.459, FS and 65E-5.140, FAC

� Individual dignity

� Treatment

� Participation in treatment & discharge planning

� Express and informed consent

� Emergency orders

� Communication & abuse reporting

� Care and custody of personal affects

� Voting in public elections

� Habeas corpus

� Separation of children from adults

� Sexual misconduct prohibited

� Florida Patient’s Bill of Rights

� Confidentiality

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Duties of All HospitalsCondition of Licensure

395.003(5)(a) Adherence to patient rights, standards of care, and examination and placement procedures provided under Baker Act shall be a condition of licensure for hospitals providing voluntary or involuntary medical or psychiatric observation, evaluation, diagnosis, or treatment.

395.003(5)(b) Any hospital that provides psychiatric treatment to persons under 18 years of age who have emotional disturbances shall comply with the procedures pertaining to the rights of patients prescribed in part I of chapter 394.

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Duties of All Hospitals (continued)

395.1041(6) Rights of persons being treated.--A hospital providing emergency services and care to a person who is being involuntarily examined under the provisions of s. 394.463 shall adhere to the rights of patients specified in the Baker Act and the involuntary examination procedures, regardless of whether the hospital, or any part thereof, is designated as a receiving or treatment facility and regardless of whether the person is admitted to the hospital.

395.1055(5) AHCA shall enforce Baker Act law and rules, with respect to the rights, standards of care, and examination-placement procedures voluntarily or involuntarily admitted to hospitals providing psychiatric observation, evaluation, diagnosis, or treatment.

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.

- - - - - - - - - - - - - - - - - - - - - - - - - - -

Provide written copy of rights to all patients / families held under Baker Act ASAP & document this in medical record� Signed by person if possible� Copies to significant others

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Communication, Abuse Reporting & Visitation

394.459(5), FS and 65E-5.190, FAC

Guaranteed regardless of age but facility shall establish reasonable rules governing visitors and use of telephones

Visits : Immediate access by family, guardian, or attorney, unless detrimental

Telephone :� Free local calls / Access to long-distance � Private and confidential communication� Unlimited telephone for abuse reporting, or

attorney

Restriction of Communication (#3049)

Written notice with reasons to person, attorney, guardian, and reviewed every 7 days

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Care & Custody of Personal Effects394.459(6), FS and 65E-5.200, FAC

Right to possess clothing / personal effects except for medical and safety reasons

Facilities should develop policies and procedures governing:�What will be removed for reasons of

personal or unit safety�How items will be safely retained by the

facility�How/when items will be returned �How contraband will be addressed when

not returned

Inventory:�Witnessed by person and two staff�At time of admission and when amended

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Medical Consent

� Neither Baker nor Marchman Act authorize medical examination & treatment, including lab & dx testing. Must rely on Florida’s Medical Consent Act or other alternative laws for authority.

� No psychiatric medications can be administered without the express and informed consent of a competent adult patient or legally authorized decision-maker, unless there is documentation in medical record of the nature and extent of immediate danger. In such situations an Emergency Treatment Order can be written for up to 24 hours. If a 2nd ETO is written, a petition must be filed with the Clerk of Court for appointment of a Guardian Advocate.

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Express and Informed Consent394.455(9), FS

� 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 .

Incompetent to Consent to Treatment Means…

394.455(15), FS

� When a person’s judgment is so affected by his or her mental illness that he/she lacks the capacity

� To make a well-reasoned, willful and knowing decision concerning his or her medical or mental health treatment.

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Health Care Surrogate/Proxy765 FS and 65E-5.2301, FAC

Advance Directive : instruction given by a person expression his/her desires about health care, including the designation of a health care surrogate

Surrogate : Selected by the person, when competent, in an advance directive. Person can designate a separate surrogate for mental health than one for other medical care

Proxy : In the absence of an advance directive, selected in priority order from statutory list:� Guardian� Spouse� Adult child� Parent

� Adult sibling� Adult relative� Close friend*� Clinical Social Worker*

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Incapacity may not be inferred from the person’s voluntary or involuntary hospitalization for mental illness or retardation.

Policy : On interim basis, between time person is determined by a physician to be incapacitated to consent to treatment and time guardian advocate is appointed by court to provide express and informed consent to treatment, a health care

surrogate or proxy may provide consent.

Health Care Surrogate / Proxy

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Authority :To make all health care decisions, including mental health, based on the decisions the person would have made if competent to do so – “Substitute Judgment”� Apply for benefits� Access person’s clinical record� Authorize release of information and

clinical records� Authorize transfer to another facility.

Prohibited Procedures :� Voluntary admission to MH facility � Consent to treatment for persons on

voluntary status� ECT� Experimental treatment not approved by

IRB� Sterilization� Abortion� Psychosurgery

Health Care Surrogate & Proxy

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Health Care Surrogate and Proxy

�Process :�Attending physician documents

incapacity of person�Surrogate or proxy notified in writing

that authority has commenced (#3122)

�Proxy signs Affidavit (#3123)

�Authority in effect until determination that person has regained capacity

�Ensure surrogate or proxy talkswith person and physician

�Surrogate or proxy given full disclosure prior to requesting authorization for treatment

�Advance Directives can be revoked at any time by a competent person

�Decisions of a health care surrogate or proxy may be reviewed by a judge at the request of the persons’ family, the facility, or physician, or other interested person

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Confidentiality394.4615, FS and 65E-5.250, FAC

Variety of Federal and State laws must be considered:

� Duty to report abuse, neglect and exploitation of children and vulnerable adults

� HIPAA (treatment, operations, and payment exempted)

� Substance abuse

� Communicable diseases

� Foreign nationals / dual citizenships

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Baker Act Confidentiality ‘394.4615, FS and 65E-5.250, FAC

Unless person, guardian, guardian advocate or surrogate/proxy waives by express and informed consent, the confidentiality of the record shall not be lost.

Information from record can be released:

� Court order after good cause hearing for BA records–not other psychiatric records

� Declaration of intent to harm – may release sufficient information to adequately warn person threatened

� Tarasoff? No

� Confessions of past crimes? No

� Testimony for criminal conviction? No

� Testimony for civil commitment? Yes

� Missing Persons?

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Baker Act Confidentiality –Access to Record

Person has right of reasonable access to own clinical record unless determined by physician to be harmful. If restricted:

� Recorded, with reasons, in clinical record

� Notice to person, attorney, and others� Expires in 7 days but can be renewed

Facility policies should identify:

� What is reasonable access?

� Is this all “persons” – minors? incapacitated?

� Who will review for harmfulness?

� How, where & with whom actual review will take place?

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Marchman Act Confidentiality

Identity, diagnosis, prognosis, and service provision is confidential. Response to requests for information can’t reveal that person was ever a client. Disclosure requires written consent of client, except:

Release to Law Enforcement:

Provider can release when related to client’s commission of a crime on premises of the provider or against provider personnel or to a threat to commit such crime.

Limited to:

� Circumstances of incident

� Client status

� Client name/address &

� Client’s last known whereabouts.

Florida Patient’s Bill of Rights381.026, FS

The Medical Practice Act states that failure to provide patients with information about their rights and how to file a complaint are grounds for disciplinary action against physicians . [458.331(1)(mm), FS]

Patients have the right to:� Be treated with courtesy and respect,

with appreciation of his/her individual dignity, & with protection of his or her need for privacy.

� Know who is providing medical services & who is responsible for his/her care.

� Be given information concerning diagnosis, planned course of treatment, alternatives, risks, & prognosis.

� A prompt & reasonable response to questions & requests.

� Refuse any treatment, except as otherwise provided by law.

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Florida Patient’s Bill of Rights(continued)

� Impartial access to medical treatment or accommodations, regardless of race, national origin, religion, handicap, or source of payment.

�Treatment for any emergency medical condition that will deteriorate from failure to provide treatment.

�Know if medical treatment is for purposes of experimental research & to give his/her consent or refusal to participate in such experimental research.

�Know what patient support services are available, including whether an interpreter is available if he/she does not speak English.

�Know what rules regulations apply to his/her conduct.

�Express grievances through the grievance procedure of the health care provider or health care facility which served him/her & to the appropriate state licensing agency.

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Resources for Baker Act &

Marchman Act

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Online Training Opportunitieshttp://www.dcf.state.fl.us/programs/samh/me

ntalhealth/training/bacourses.shtmlOn demand - at your convenience

Up-to-date materialNo fee

Certificate of Achievement

� Introduction to the Baker Act� Emergency Medical Conditions & the

Baker Act� Law Enforcement & the Baker Act� Long-term Care & the Baker Act� Consent for Minors � Rights of Persons in Mental Health

Facilities� Guardian Advocacy� Seclusion & Restraint� Suicide Prevention� Why People Die by Suicide� Trauma Series

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DCF Websitehttp://www.myflfamilies.com/service-programs/mental-health/baker-act/

Click on Baker Act . Contents include:

� Copy of Baker Act law (394, Part I, FS) and rules (65E-5, FAC)

� Baker Act forms – mandatory and recommended

� Selected forms in Spanish & Creole� 2014 Baker Act Handbook� Baker Act monitoring/survey instruments� Frequently Asked Questions (FAQ’s) on

21 subject areas� List of all public and private receiving

facilities throughout the state� Mental Health Advance Directives� Other relevant materials

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DCF Websitehttp://www.myflfamilies.com/service-

programs/substance-abuse/marchman-act/

Click on Marchman Act . Contents include:2003 Marchman Act User Reference Guide

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

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Baker Act&

Marchman Act

Martha Lenderman

7268 Moffatt LanePinellas Park, FL 33781lendmar@verizon.net