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History and Overview
In the early 1970’s, the federal government enacted laws creating formula grants for states to develop continuums of care for individuals and families affected by substance abuse. The laws resulted in separate funding streams and requirements for alcoholism and drug abuse. In response to the laws, the Florida Legislature enacted Chapter 396 (alcohol) and Chapter 397 (drug abuse) of the Florida Statutes (F.S.). Key provisions in Chapter 396, F.S., included decriminalization of public inebriation and procedures for involuntary commitment. Key features in Chapter 397, F.S., included funding for programs for individuals involved in the criminal justice system and licensing requirements for drug abuse programs. Each of these laws governed different aspects of addiction and thus, had different Florida Administrative Code (or rules) promulgated by the state to fully implement the respective pieces of legislation. Since persons with substance abuse issues often don’t restrict their misuse to one substance or another, having two separate laws dealing with the prevention and treatment of addiction was cumbersome and did not adequately address the problems faced by Florida’s citizens.
In 1993 Representative Steven Wise of Jacksonville introduced legislation to combine Chapters 396 and 397, F.S., into a single law (Chapter 397) that clearly spelled out legislative intent, licensure of service providers, client rights, voluntary and involuntary admissions, offender and inmate programs, service coordination, and children’s substance abuse services. The statute was named the “Hal S. Marchman Alcohol and Other Drug Services Act of 1993” -generally referred to as the Marchman Act. The Act was named after Rev. Hal. S. Marchman, a tireless advocate for persons who suffer from alcoholism and drug abuse.
To implement the new statute, the Florida Department of Health and Rehabilitative Services (HRS) created Chapter 65D-30 of the Florida Administrative Code. This administrative rule contains licensing and other credentialing standards for provider agencies and individual practitioners serving persons with addictions.
Legislative Intent
The 1993 Florida Legislature studied the issues surrounding the use and abuse of alcohol and other drugs and made provisions in the Marchman Act for:
Development, within available resources, of a full continuum of substance abuse prevention, intervention, and treatment services. The system will emphasize access to the least restrictive environment of optimum care, appropriate to the individual in need.
Protection and respect for the rights of clients, especially for involuntary admissions.
Services shall be purchased through community-based private not-for-profit providers working with local governmental programs and involving a wide range of agencies from both the public and private sectors.
Assistance for substance abuse impaired persons, primarily through health and other rehabilitative services. Services will be designed to relieve the police, courts, correctional institutions, and other criminal justice agencies of the additional burden of care that interferes with their ability to protect people, apprehend offenders, and maintain safe and orderly communities.
Related Legislation The Marchman Act most closely resembles the Florida Mental Health Act or “Baker Act” which was enacted in 1971. The Baker Act is Florida’s mental health statute and contains provisions for voluntary and involuntary placements for assessment, stabilization, and treatment for persons with mental health disorders. The definition of mental illness in the Baker Act specifically excludes intoxication and substance abuse impairment. This created the need for similar legislation for substance abuse and impairment. Historically, there has been a significant difference between the use of Baker Act and the use of Marchman Act placements for involuntary care. For example, in 2006 there were 82,414 individuals admitted for involuntary examination under the Baker Act due to mental illness. During a similar timeframe, there were 4,186 individuals admitted to involuntary assessment, stabilization, or treatment due to substance abuse or impairment. Placement in a Baker Act facility is typically done by law enforcement (nearly 50 percent) and is reflective of the criminal justice system’s greater familiarity and understanding of the Baker Act. In addition, there is a greater availability of secure evaluation and treatment settings for those with primary mental health disorders, than for those with substance abuse disorders. Some Baker Act placements are due to signs and symptoms of active substance abuse or withdrawal that resemble those of mental health disorders – anxiousness, hallucinations, disorientation, or flat affect. Training for law enforcement, the judicial system and the community is often needed to expand knowledge and use of the Marchman Act as a means for involuntary service placements. Marchman Act Placement Criteria- Involuntary Admissions The Marchman Act encourages persons to seek treatment on a voluntary basis and to be actively involved in planning their own services with the assistance of qualified professionals. However, denial of addiction is a common symptom, raising a barrier to early intervention and treatment. As a result, treatment often comes as a result of a spouse, employer, doctor, judge or other person with influence over the addicted individual’s life making the intervention needed for substance abuse services. The Marchman Act establishes a variety of methods under which substance abuse assessment, stabilization and treatment can be obtained on an involuntary basis. There are five involuntary admission procedures. Three of the procedures do not involve the court, while two require direct petitions to the circuit court. The three non-court procedures are: Protective Custody Emergency Admission Alternative Involuntary Assessment for Minors The law also offers two court-related procedures, including: Involuntary Assessment and Stabilization Involuntary Treatment Regardless of the court-involved or non-court involved nature of the proceedings, the same criteria for involuntary admission apply. To be eligible for involuntary service placement an individual must meet the following criteria for admission: There is good faith reason to believe the person is substance abuse impaired and, because of such impairment has lost the power of self-control with respect to substance use; and either has inflicted, or threatened or attempted to inflict, or unless admitted is likely to inflict, physical harm on himself or herself or another; or Is in need of substance abuse services and, by reason of substance abuse impairment, his or her judgment has been so impaired that the person is incapable of appreciating his or her need for such services. The individual’s refusal for care does not mean that he or she is unable to make rational decisions with regard to care. Protective Custody Protective custody is used by law enforcement officers when a person is substance-impaired or intoxicated in public and is brought to the attention of the officer. The purpose is to allow the person to be taken to a safe environment for observation and assessment to determine the need for treatment. A law enforcement officer may take the individual to their residence, to a hospital, a detoxification center, or addiction receiving facility, or in certain circumstances, to jail. Minors, however, cannot be taken to jail. Emergency Admission This procedure permits a person who appears to meet the criteria for involuntary admission to be admitted to a hospital, an addiction receiving facility or a detoxification facility for emergency assessment and stabilization. A physician, spouse, guardian, relative, or any responsible adult who has personal knowledge of the individual may initiate this procedure. In the case of a minor, a parent, legal guardian or legal custodian may initiate the procedure for emergency admission. Individuals admitted for involuntary assessment and stabilization under this provision must have a physician’s certificate for admission, demonstrating the need for this type of placement and recommending the least restrictive type of service that is appropriate to the needs of the individual. Alternative Involuntary Assessment for Minors This procedure provides a way for a parent, legal guardian or legal custodian to have a minor admitted to an addiction receiving facility to assess the minor’s need for treatment by a qualified professional. Following the initial 72-hour evaluation period, the attending physician may extend the minor’s stay by 48 hours, with the total placement not to exceed 5 days. Upon conclusion of this timeframe, the minor must be either referred for further treatment or discharged. Involuntary Assessment & Stabilization This procedure involves filing a petition with the Clerk of Court. The person’s spouse, guardian, any relative, a private practitioner, the director of a licensed service provider, or any three adults with knowledge of the person may file the petition. If the person is a minor, a parent, a legal guardian, a legal custodian, or a licensed service provider may file the petition. The court can schedule a hearing to take place within 10 days or can issue an ex parte order immediately. The person can be admitted to a hospital, an addictions receiving facility or a detoxification facility for assessment and stabilization for up to 72 hours to determine the person’s need for treatment. Involuntary Treatment This procedure involves filing a petition with the Clerk of Court after the person has been involved in at least one of the four previously mentioned procedures. The person’s spouse, guardian, any relative, a private practitioner, the director of a licensed service provider, or any three adults with knowledge of the person may file the petition. The individual may be admitted to treatment for a period not to exceed 60 days. If the need for treatment is anticipated to be longer, renewal of the order may be petitioned prior to the expiration of the initial 60-day period. visions of Protective Custody. This means individuals placed in treatment under a Marchman Act may voluntarily leave treatment at any time and the only legal recourse, in the absence of a criminal offense, is for a judge to issue a contempt of court charge and impose brief jail time. The lack of secure capacity creates a “revolving door” of individuals through the legal and treatment systems. Improving Capacity: Florida’s substance abuse system of care has limited resources, further diminished through state budget reductions in recent years. An overall lack of services including assessment, stabilization and treatment, even for those under a Marchman Act, makes placements difficult. The Department of Children and Families is exploring opportunities to create regionalized or statewide Marchman Act facilities. The facilities would be secure and staffed with adequate resources to meet the needs of individuals requiring involuntary placements. This option, while expensive, would help improve client outcomes and reduce costs to the system of care through decreases in hospitalizations and treatment episodes. Use of “regional” or “statewide” facilities would draw on the resources of several communities and ensure a utilization rate sufficient to make the facility financially viable. There would be logistical challenges, including transportation for the individual to and from the facility and linkages to step-down treatment and support in their home community following discharge from a Marchman Act facility. Additional funding for the Department of Children and Families would be needed to develop and purchase this capacity. Extending Length of Care: Another option is extending assessment and stabilization period from 72 hours to 120 hours. Since the average length of time to properly stabilize an addicted individual is at least 5 days, this extended time would allow for opportunities to provide motivational enhancement for individuals to encourage treatment following stabilization and case management efforts to locate appropriate placement. Co-occurring Capacity: The Department of Children and Families currently has three assessment and stabilization centers for adolescents that are a combination of Crisis Stabilization Units (mental health) and Addiction Receiving Facilities (substance abuse). These facilities were not financially viable as separate units and lacked the capacity to effectively assess and treat children and adolescents that presented with co-morbid conditions. These facilities can be accessed through voluntary and involuntary placements pursuant to either the Baker Act or the Marchman Act. As part of the Department’s Florida System of Care initiative, all Baker Act and Marchman Act programs will be developing co-occurring capabilities through self-assessment, enhanced training, and integration of care. The Department is examining all policies, protocols, and guidelines to produce a necessary “shift” to assessing and treating co-morbid disorders through integrated care settings. This will change the focus of assessment, stabilization and treatment to become more welcoming and engaging, regardless of an individual’s point of entry into the system of care. Portions of this article were adapted from the Florida Department of Children and Families’ Marchman Act Handbook 2003, developed by Phil Emenheiser and Martha Lenderman. Baker Act data was taken from the 2006 Florida Mental Health Act (The Baker Act) Report by the University of South Florida, Louis De La Parte Florida Mental Health Institute. Voluntary Admissions A person, whether adult or minor, who wishes to enter treatment for substance abuse may apply to a service provider for voluntary admission. Within the financial and space capabilities of the service provider, a person of any age must be admitted to treatment when sufficient evidence exists that the person is impaired by substance abuse and the medical and behavioral conditions of the person are not beyond the safe management capabilities of the service provider. Client Rights The Marchman Act provides an array of statutorily protected rights of persons seeking and or receiving substance abuse services as well as due process rights of those persons for whom involuntary interventions are sought. These include: Individual Dignity – client must be respected at all times and cannot be deprived of constitutional rights. Nondiscriminatory Services – service providers cannot deny access to care on the basis of race, gender, ethnicity, age, sexual preference, disability, or severity of substance abuse history. Quality Services – services must be suited to the individual’s needs in the least restrictive available environment, with opportunity for the individual to actively participate in planning his/her treatment. Communication – all clients have the right to contact with family/friends via telephone, mail, or in-person. Care and Custody of Personal Effects – all clients have the right to possess clothing and personal effects. Providers may take temporary custody of personal effects for medical or safety reasons. Education of Minors – all minors in a residential treatment/care setting shall be provided education and/or training appropriate to their needs. Confidentiality of Records – all records that pertain to the identity, diagnosis, prognosis and service provision to the client shall be confidential in accordance with the Health Insurance Portability and Accountability Act (HIPAA) and 42 Code of Federal Regulations, Part II. Counsel – all clients have the right to counsel for involuntary proceedings for assessment, stabilization and/or treatment. Habeas Corpus – a client in involuntary status may have their parent, guardian or attorney petition the court for a writ of habeas corpus to question the cause and legality of such retention and request release of the individual. Liability and Immunity – service provider staff that violate or abuse rights or privileges of clients are liable for damages. Staff acting in good faith, reasonably and without negligence are free from liability, civil or criminal. Improving the Process There are several strategies under consideration to improve the capacity and utilization of Marchman Act beds for assessment, stabilization, and treatment in Florida. Each approach, despite its many benefits, has its own unique set of challenges, especially in times of economic uncertainty. Secure Placements: Marchman Act placements are typically handled through civil court proceedings rather than criminal proceedings which limits the use of secure or “locked” placements that keep an individual from leaving care prematurely and against medical advice. The use of secure beds to physically hold an individual in treatment presents a variety of legal, ethical and financial issues. Florida has limited “secure” placement options for involuntary placements.
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