live baker act training part 2 transcription martha lenderman · blanking place, 15 seconds later,...

Training Date: 03/13/2014 1

Live Baker Act Training

Part 2

Transcription

Martha Lenderman: Let me go ahead and gets us started on the involuntary and of

course on our law enforcement in particular you probably thought that was what you

came here to hear about maybe many of the rest of you, but without hearing about the

voluntary first, the involuntary doesn’t, it is not as clear as it will need to be.

So, let’s start first in talking about the criteria for involuntary examination under the

Baker Act. Does everyone see in this very first line, the provision that requires probable

cause? No, no probable because, no preponderance of evidence, no clear and

convincing evidence, no beyond a reasonable doubt evidence, folks. It’s simply reason

to believe and I will tell you, we got two Tampa Police Department officers here who

may have exactly the same training, they may have very similar backgrounds, they may

have similar everything and they will they take diametrically opposed views as to

whether or not the criteria is met and which one of you is right? They can both be right

because this is going to address, and I’ll get more into reason to believe, that each and

every one of the criteria is met.

First, that a person as a mental illness as it’s defined in the Baker Act not in the

Diagnostic and Statistical Manuals or the ICD, I guess it’s 10 coming up. It has to with

the legal definition of mental illness in the Baker Act and because of mental illness that

definition in the Baker Act, the person is either refusing examination or unable to

determine the exam is needed. Now let me stop there, refusal you know what that

means. That means not now, not ever, am I going to PEMHS. That’s a no. Who are

these other people? Because we have folks out there well they have to refuse it in order

to be involuntary, well they’re wrong. The law says that if a person is unable to

determine the exam is needed, now who might they be? Remember Mr. Burch he

wanted to there because he thought it was in heaven. I’m sorry, he is not going to pass

a competency test, insight and judgment test involved in that. So he’s one, the guy that

might have been coerced into going because you either go with me voluntary or I’m

going to Baker Act you. They’re going to get there and that creates a huge amount of

problem for the receiving facility we’ll get to in a moment in terms of initiating. We have

folks who are, our teenagers in particular who will say, ok I’ll go, I’m not going to that

blanking place, 15 seconds later, oh alright I’ll go and, you know, they don’t know

whether, you know, what to do. I’ll clean that up. The point is they’re ambivalent, they’re

impulse controlled, they’re whatever, they are not voluntary. There’s those that you

found out hanging off of I-275 overpass by their fingernails saying help me, help me, I


want to live. In 5 more minutes after you peel them off that over pass, they’re running for

the overpass again while you’re standing there. There’s a point at which you make a

determination the person’s not capable of either understanding a need for it or following

through on it and you think it’s a major impairment that may lead them to a real safety

situation for themselves or others in this situation.

So, I remember getting a call one time, we’ll let me just say, a young woman, she had a

fight with her boyfriend and she said, “I’m going to kill myself” and so the boyfriend calls

law enforcement, law enforcement shows up and the officers says to her, “Did you really

say that?” she said, “well yeah I did but, I always say that when we have a fight.” And so

he said, “well don’t you think you need to talk to somebody?” and she said, “well yeah

but I, you know, I don’t where to go and I don’t have any way to get there.” And this

officer, good guy you know where this is going…”Can I give you a ride?” Gives her a

ride to the public receiving facility, it was not a local one, different area and she went in

because she’s so high level, she’s not in, appearing to be in any kind of crisis. They

keep taking the serious crisis first, she finally says, “Can I run next door and get a pack

of cigarettes?” they said, “Sure but come right back.” She went next door, took the

elevator to the 14th floor and jumped. What did the boyfriend do on behalf of their infant

child? Sue, of course he did. And I said absolutely I’ll testify for your officer under those

circumstances but I have to, part of my job is sometimes to ask them or point out where

they may have some exposure and in this case on what basis did they have her in a

locked vehicle, maybe in handcuffs without, no crime alleged and no safety statute

being implemented, no Marchman Act, no Baker Act.

So all I can say is there are in many people that are saying yes I want to go, who are

very appropriate for an involuntary examination. So that, in addition to that, there has to

be harm. That harm can be passive harm or active harm. Passive harm is serious self-

neglect and it has to pose a real, present and substantial harm to one’s wellbeing due to

mental illness. So, in this situation we often see it because of a person refusing dialysis.

Do they have the right to refuse dialysis and to die? Yeah. Federal, state law appellate

cases are clear on that issue. If a person’s competent to make those decisions. I will

always say, you know, I’m not capable of, has anyone ask the family members. Has this

person’s behavior changed recently? Have they started getting mentally confused?

Maybe a simple, what is it, blood test could determine if they, I’m making this up as I go

along, renal failure that may be causing them not to be making well-reasoned decisions.

So, I don’t think you, it’s never as easy as it appears. The yes and no. There’s always

but, or an exception.

So, or not just what you read in the newspaper about dangerous to self and others,

that’s not what it says. It says that sometime in the near future based upon recent

behavior the person is substantially likely to commit serious bodily harm. Doesn’t say

anything about property harm or other although, how quickly property harm can become


bodily harm when you start throwing bricks and that sort of a thing. I remember

spending about an hour and a half of a 5 hour deposition on this very issue of what’s

recent and what’s near future. And what do you say to, in response, if given the same

answer over, a rather extensive answer over and over. It can be based upon how

acutely dangerous this behavior was or what if my 16 year old daughter, every time she

does this small thing. Within hours she’s doing this huge thing and you, the officer

believes me then that could influence my decision or it’s going to come back to this

issue of reason to believe and in that situation we have people believing different things

or let me give you an example on that one.

It was in a crisis intervention class, you know, I had a CIT class I was teaching and it

wasn’t Pinellas but a different county and a deputy speaks up and says, in my first year

on the job, I was just, I was just on patrol and I see this guy standing next to a road but,

off on the easement and I just stopped and talked, chatted with him for a while and it

turned out to be 45 minutes and in the middle of the perfectly normal conversation this

fellow said, “You know was thinking about hanging myself on that phone pole” and

laughs type of thing. Well the deputy talked to him quite a bit longer, he checked, had

no belt, no rope whatever. He thought he was just one of those stupid, throw away

comments that people should not make of course it’s like talking about weapons in an

airport, you know, that’s really dumb. But the fact is, he ultimately left him. He gets

dispatched out, this was his first year on the job by the way, gets dispatched back out

about a half hour, 45 minutes and what was the call? A guy hanging from the phone poll

and he said, he looked at me and right in front of all his colleagues he said, “ever since

then, they so much as look at me funny, I Baker Act them.” Well is he wrong 15 years

ago or is he wrong now? I take the position he wasn’t wrong either, because in that

case, these are trick questions, you’ll learn that real quickly. But the point is, he, one

person, his reason to believe changed from black to white, night to day, in a heartbeat

where he, and I think he was probably exaggerating if they look at him funny he’d Baker

Act them. But the fact is he’s no longer willing to even consider autonomy and liberty

and all those kind of issues he’s safety, at all cost safety. And if he has reason to

believe then, and the same person not even two different officers, it can be a difference.

So what’s important is that the person meets all criteria. If they do not meet any one of

the criteria, they don’t meet the criteria. If they fail to have a mental illness, this is

defined in the Baker Act according to your reason to believe, or they won’t do what you

tell them to do, that happens fairly frequently, or they’re dangerous to self and others,

then they don’t meet the, if any one of those they don’t meet the criteria, it’s a package

deal. Now please be aware there’s some, a couple of “ors” but there’s “and” here as

well. Again they have to meet all criteria.

Now there’s only 3 ways to initiate an involuntary examination, just those 3. It’s a

circuit court judge, a certified law enforcement officer, or one of the authorized mental


health professionals, I’ll get to who those are in a moment. But while the criteria is

identical regardless to court, a law enforcement professional, or a mental health

professional, the criteria is identical. But there’s a couple of differences on this slide all

of you have to be aware of. One of them is a court may enter that order, there is no duty

for the court to even if any fool can see that the person meets criteria, there is no duty

for the court to do that, totally discretionary and a mental health professional may

execute it regardless of how well documented it is that the criteria is met and every

appellate case on this clearly says that there was no duty on the part of the mental

health professional to initiate. There is a duty once they get to a facility to keep them

safe while they’re at your facility but, the, as far as the initiation, it’s a “may”. What’s it

say for law enforcement, the word is “shall” and but, it’s only when that officer believes

the criteria to be met. So, it’s a different duty, and that I’ve always wondered why did it

say that and I don’t time to get into today but that duty issue provides enormous amount

of liability immunity to law enforcement to everything from warrantless entry, for under

what they call exigent circumstances to transport which, only law enforcement can do

according to an appellate case therefore, they’re immune to many, civil or criminal

liability and other things. So it’s a duty issue for law enforcement where it’s not a duty

for the court or mental health professionals.

Now the other the way in which it’s very different depending on which way it’s initiated is

how the process to be followed. And I’ll just very briefly, the, if anyone thinks to get a

court order you have to have a hearing, you’d be wrong. The individual, the petitioner

generally never sees the judge or in the case of let’s say the 13th circuit, the magistrate

on it, it’s called ex parte or sometimes people say ex parte which is one-sided

communication with the court. The petitioner goes and must give sworn testimony to the

clerk of the court on an application. I developed a 4 page petition form for that and I

think most of the courts use it although, they certainly entitled to modify any of these

forms. But most use it and it clearly identifies what the relationship is between the

petitioner and the patient, whether they called the police on each other, whether the

lawsuit, divorces, child custody, neighborhood disputes, those kinds of things have to be

disclosed on that. Then they must swear to the accuracy, the information to the best of

their knowledge and to their good faith in doing this and then the clerk of court will take

that into the judge and the judge depending, usually on what’s solely within the four

corners of the piece of paper will determine whether he or she believes the criteria to be

met. If they do, they may do the ex parte order and a pick-up order for usually the

sheriff’s office executes all those (15:00). It’s not a long process if they can find the

person that can mean just hours, from start to finish. On the other hand, it may take

longer if they can’t find them.

Now let me skip to the mental health professional first. Here the, no, the law

enforcement officer they are allowed to, they are not required to observe the behavior.


How many times have you heard law enforcement say, “I can’t do this unless I saw it for

myself,” they do not have to see it for them self. The law says you have to describe the

circumstances under which you took the person into custody. Now in working with law

enforcement for a long period of time, I always suggest that if they don’t initiate a Baker

Act, when it’s been a Baker Act call, they ought to document why at the time of their

decision making and document it in their incident report. So that if in 2 or 3 years a

lawsuit gets filed because there was a suicide or there was something else that

happened it was there, any reasonable officer could have determined the same under

that circumstance.

However, when they rely on third parties, hearsay which they are allowed to do because

they don’t have to observe it, I recommend that they use a witness affidavit form

because people are less likely to lie if they have to write it down and if they do lie and it

comes out later then it protects the officers good faith in having done that using the

witness affidavit form. However, in this case it never requires the officer to observe it for

himself or herself. However, if it’s one of these authorized mental health professionals

they have to actually personally examine the individual and they have to reach their

conclusion to the person appears to meet the criteria based upon their own

observations. Now the BA-52B form for the mental health professionals, the

professional certificate has a section on the top of the back of the form that allows for

that professional to include the other information they relied upon to reach, to meet the

criteria. It does not allow them to do that information for families, the emergency room

nurse, a case manager or something out there without having their own observations.

No matter how minimal they may be, they have to base it on their own, and that

examination has to take place no more than 48 hours prior to signing the form. That

causes people confusion, they think they can only keep them for 48 hours for exam. No

this is only the initiation of the exam.

So, if I am a school social worker, LCSW, the teacher sends me a student, I evaluate

that student, determine that student does meet criteria, but I determine that we’re going

to come up with a safety plan to wrap around this student to try to avoid a Baker Act. So

mom comes in, dad comes in, we come up with the plan. The next morning they call

and say everything went to heck in a hand basket. Then, I can go ahead and sign the

Baker Act form without seeing the child. Now if I determined that the child did not meet

criteria I would have to see the child again to have my own observations. That’s all the

48 hours means. This allows a clinical, professional, flexibility and prerogative there to

wait. In some cases, as opposed to the judge and to the law enforcement.

So I’ll deal with these a little bit more, I really, pretty much covered, I covered the issues

related to the ex parte court order. By the way law enforcement can execute these any

hour of the day and night, any day of the week, and can use whatever reasonable force

is needed to enter premises and take the person into custody. It’s a built it in warrant


basically signed by the judge, it’s part of the law and I built it right into the ex parte order

form. So that should be no problem there.

And in all cases, they have to go to the nearest receiving facility unless there is what’s

called a Transportation Exception Plan approved by the board of county commissioners

and the secretary of DCF. Many of you are here in Hillsborough County, you have a

Transportation Exception Plan where I think everyone under the Baker Act, except for

certain exceptions that we’ll cover, are taken to Gracepoint and that has been permitted.

In Pinellas there’s the same one about PEMHS for certain ages and not for others, not

for elders and children, or whatever. So, there’s certain ones and Polk County has one,

Manatee, Sarasota, Lee, Orange, Highlands has one for seniors, but for the most part

there are no other ones around the state. Why they haven’t done them? Because it

takes some negotiation with your peers and with law enforcement and others, but they

can be very helpful to get people where they need to be, but it can only be based on, it

cannot be based on their ability to pay, but it can be based on a near, a central

receiving facility or special capability of certain receiving facilities or here in Hillsborough

and in Sarasota they have one for the third and only third way which is the more

humane way of transporting people other than law enforcement. Again, law

enforcement may do it, but they, it allows others to do it on their behalf.

Under law enforcement again, I covered all these most of them. I do want to make a

point that you think you know who is a law enforcement officer, they’re wearing badges,

they have Tasers and guns, they’re law enforcement. You think you’d know but until

1996 it limited it to sheriff’s deputies, municipal police, highway patrol, university police,

and probation and parole officers. We had all these other kinds of law, we had FDLE for

many years now, but when the Baker Act was written we didn’t have an, Florida

Department of Law Enforcement they weren’t even authorized. So I got the legislature

to change the definition of a law enforcement officer as defined in Chapter 943.10. So at

the stroke of the governor’s pen FDLE, the capital police, the environmental protection,

the department of transportation, arson investigation , whatever. If they are certified by

the state of Florida as a law enforcement officer then they can do this.

Who does that exclude? Probation and parole. That wasn’t really intended, but it turned

out that way because they’re not defined as law enforcement, they’re defined as what

they are. How about those guys walking around with the little bug in their ear, FBI,

Secret Service? Unh uh. Parks Department, they cannot initiate. There’s actually three

different A.G., attorney general opinions, only one specific to Baker Act it says that no

they cannot initiate and they can’t do primary transport even the V.A police. They’re not

certified law enforcement officers in the state of Florida. So you need to be aware of

that, that there are certain people that cannot. But pretty much the same I’ve already

covered the rest. Let me, we’ll come back to a lot on law enforcement when we get to

transport.


So here, who are mental health professionals? You think you know who they are, you

probably, some of you’d be wrong. Where there’s a conflict between a general law like a

licensing statute and the Baker Act as the specific statute might limit how a mental

health professional could otherwise practice and you’re going to see a few of these as

we go through these definitions. Some of these are so old and there’s been a, I know a

effort made for nurse practitioners for what 3 or 4 years now and now even for physician

assistants, but they haven’t passed yet so we have problems. So we have psychiatrists

and physicians defined in Chapter 458 as medical doctors or 459 is osteopathic

physicians. So they have to be state licensed, but the physician simply has to have

experience in the diagnosis and treatment of mental and nervous disorders. Well first of

all, I don’t have a clue what a nervous disorder is anymore. It’s like huh? The other thing

is how long does it take an emergency physician to run into a person where they have

to diagnosis or treat a mental or nervous disorder? About 15 minutes. Yeah. So it’s not

a qualitative, it’s pretty much do they have a, it’s a yes/no question. They have it. Every

primary practice, a care doc has it. They’re dealing with these issues regularly. But we’ll

find emergency physicians who have no problem initiating an involuntary exam every

day of the week but they say, “oh but I’m not qualified to lift one” so to speak. Well I’m

sorry they become part of the problem we’re facing all over the state with putting people

that are goofy, Baker Acts at that point, well maybe they were fine when they started but

no longer. But they’re putting on the same list with those who desperately need to be

transferred to a receiving facility causing that terrible back log. So, there is an exception

for those at the V.A hospital and I’m try, I made recommendations to create a new

category of public receiving facilities, a public facility that would be both Veterans and

Department of Defense. Someone is here from Emerald Coast right? Emerald Coast,

where are you? There you, I knew that. They have all these doctors up there that are

associated with the Air Force, you know, Navy, everything. They can’t initiate these

because their licensed in another state but deployed in Florida.

Do we have any clinical psychologist, I think we do have at least one here. You have to

have 3 years of postdoctoral experience in the practice of clinical psychology to do

anything with the Baker Act and yet the license law for psychologists says you only

need 2 to get licensed. This needs to get rid of that phrase but as long as the 3 years is

in there the facilities need to be real careful about making sure people have the 3rd year

of it. The biggest one we have problem is here with psychiatric nurse when this was

defined there was no such thing as an ARNP an Advanced Registered Nurse

Practitioner so we’re stuck with this until it’s changed and it requires not only a license

as a nurse, but also requires that the nurse have a masters or doctorate in psychiatric

nursing. The problem is a lot of nursing schools don’t even have that on, as, they get

kind of a major, they get a specialty, they get a whatever, but it’s not a masters in

psychiatric nursing. They maybe ARNP’s, but they are not psychiatric nurses and yet

they’re initiating Baker Acts all the time on it. So there is the bill, but there’s also a


recommendation that I’ve made having to do with the National certification as a

psychiatric nurse in addition to ARNP. Some of our ARNP’s got grandfathered in with 2

year nursing degrees. Massive amounts of training and experience or with 4 year

degrees or even with masters, but not in psychiatric nursing and they don’t meet that

criteria. So all I can say is, it’s a nightmare.

Then we have these 491 license people, social workers, mental health counselors, and

marriage and family therapists. There are people in here who will say, “Why don’t they

have to have the supervised clinical experience like the others have?” Who’s licensed

under 491? Why don’t you have to have that? They have to have it before they can get

their license. Clear and simple, I love those definitions. It strips it down basically to

allowing the license and the standards for licensing to prevail and we need to do some

more of that on those other professionals. These are not a problem they can turn those

standards upside down and inside out and you’d still be qualified.

The last one I mentioned here is physician assistants are not authorized in the Baker

Act but the attorney general did an opinion back in 2008 saying they could initiate a

Baker Act simply because they’re licensed under 458 or 459. It didn’t go on to say they

could evaluate a person once there, or authorize their release, or do anything else

under the Baker Act that’s assigned to a physician. It did say they can do an initiation.

So now, so DCF takes a position if the attorney general says it’s so that they can

initiate. So you’re going to get some that come to your facilities and look really healthy,

a little box written on the form and written to next to it: physician assistant take it.

Now, one of the things I do want to mention here, does anyone here think you have to

have the original initiating form? No, it never said so in the law and it did make

reference, I wrote the rules and I, what can I say, in 2005 I went back and I eliminate,

did a simply little word fine for the word original, it no longer exists, you cannot refuse a

person because they come with a copy and I’d like to, and I’d hate to tell you really,

some of the horror stories of law enforcement officers having to travel all over a county

back and forth, trying to retrieve an original of a document when it’s not their job, it’s the

job of the receiving facility to accept and then work it out. But you don’t put the person in

jeopardy or send law enforcement officers out on a, you know, a little search for an

original document (30:00).

And transportation to the nearest facility, just because a doctor practices at a particular

hospital doesn’t mean that’s where the person is going to go. However, unless there is a

Transportation Exception Plan approved by your Board of County Commissioners and

the Secretary of DCF does allow people to be taken, doesn’t require it, but does allow

for them to be taken to specialty settings that may not be the nearest, but it’s a

formalized process.


This is one that I, I believe you have the entire, is Annette still here? Not here. She

does, if you haven’t met Dr. Annette Christy she is the Director of the Baker Act

reporting center where every Baker Act initiation is submitted in the state. And it’s very,

very hard to see up here but I always use my own version of it simply because my goes

back to ’99, but the, I can’t see that. What you will find is it’s gone up from 75,000 done

in 1999 to 157,000 in 2012 and didn’t she say this morning, 171,000 in 2013, that’s

when you heard me yelp. But what’s interesting about it, is the initiation type, whether

it’s by court, law enforcement or mental health professional, changes almost not a bit

from 1 year to the next. It all stays around 49% for law enforcement, 49% by mental

health professionals and about 2% for courts, ex parte orders. What is interesting is the

county by county and I have it for every county in the state as well. Is that you find

dramatic differences particularly with rural counties, they have very few mental health

professionals done, it’s almost all law enforcement and courts. Why would that be?

There are no mental health professionals there. So it gets kicked back, more urban

areas generally have more done by mental health professionals, less by law

enforcement. But the statewide, it stays right about the same. So you’ll see up on the

report it says, how many are done by harm only or harm and self-neglect or just self-

neglect and for most all of them it’s going to be like 65% you’ll see up here are for overt

harm to self and others, then add another 23% to it for those that are both self-

neglectful and harmful. So the huge majority are identified by officers, by mental health

professionals and courts as being overtly harmful and then of harm type whether it’s to

self, to self and others, to others only and so forth are there.

So it’s a little bit, the cover sheet that is done, in fact let me get to the next one. The

reporting to the Agency for Health Care Administration, most of it done directly to the

Baker Act reporting center, Dr. Christy, includes all of these initiation documents along

with a cover sheet that provides significant, additional information we do not want law

enforcement for example, filling out on the road. We want, we stick it to you guys that

work at the receiving facility instead for a lot of the demographic information about the

person including social security number, and that, we, it’s the only thing that allows us to

determine recidivism and that sort of a thing. And by the way, from this because of the

use of the social security, we found that in any one year, 75%, I’m sorry, 80% of the

people who have one involuntary never have a second one that year. Over a course of

7 years that these were studied, 75% did not have a second Baker Act in that course of

it. So, it’s the old 80/20 rule all over again. We need to be doing a whole lot better job

with the 20% that may have 50 or more Baker Acts within in a given year. We, you know

who they are in your communities.

All orders for involuntary inpatient or involuntary outpatient by law must be submitted

and that is spotty at best. In terms of your compliance with reporting on it, must go to

the Baker Act Reporting Center. In addition, those long-term care facilities licensed


under, as nursing homes, or whoops, or ALF’s have to also, you at receiving facilities

have to report them if they don’t, if they violate the voluntary/involuntary or transport

provisions of the Baker Act and if you don’t report them directly by certified mail to

AHCA then, you all could have a problem, you’re the ones obligated to do that, it almost

is never done I will tell you that, but the Chapter 400 & 429 requires that they comply.

Now transportation and this is part where I tell people this is where we get to, heavily

into law enforcement role. You can, I have this image by the way. I have it’s kind of a

vision, don’t people call it’s a hallucination of mine, it’s the brand new law enforcement

officer, you know, first week on the job and the first assignment he gets, he gets

dispatched out to pick up a little old lady and take her to a hospital and he says or she

says, “huh, why me, God, why is this a law enforcement responsibility?” Law

enforcement are only responsible for involuntaries not voluntary, they have no

responsibility under the law for voluntary. But for involuntary, you either have to be

refusing to go or be unable to give informed consent to go and so if I tried to do it being

a civilian it would be kidnapping, it would be abduction, false imprisonment, not to

mention battery. Ugly things. Only law enforcement, not only is authorized but it’s a duty

to provide that transport, primary transport to a, the nearest receiving facility or an

alternate one if there’s a Transportation Exception Plan approved. So I’m saying here is

that at, when we’ve had situations with the economy when it tanked some law

enforcement agencies said, “oh we’ve decided not to do Baker Act transports anymore”

and my response is “you decided what?” Or “we’re only going to do it if they’re actively

dangerous.” No, that’s not what the law says. That is a duty of law enforcement.

So what is not a duty, because it conflicts with the federal EMTALA law, has to do with

not primary transport but secondary transfers. So once you’re at a hospital or a

receiving facility their job is over in terms of transport. They have no responsibility for

secondary transfers from one facility to another. Although, there are a couple of sheriff’s

offices. I believe Lake County is here and I know Collier, they’re under certain

circumstances only when the public receiving facility calls and requests that transfer will

they do it knowing it’s not their job, but they do it as an accommodation. Always to the

nearest receiving facility and which law enforcement agency is up to your Board of

County Commissioners? It’s been in the Baker Act for decades now, that they decide

who does what part of the Baker Act, it’s almost always the sheriff’s office that does the

court orders. It’s the sheriff’s office who does the mental health professional certificates

in unincorporated areas or if it’s a municipality they contract with the sheriff’s office for

all transport, I’m sorry all law enforcement duties they do it there. Otherwise it’s the

municipal police department that’s responsible for it and the exceptions are important.

The law says that you cannot decline to transport, anyone under an involuntary unless

and then it spells out some exceptions, most of which don’t apply to most of the

situations you come into, but let me tell you about a few. One would be anytime the


officer believes for his or her safety or the safety of the person in their custody they can

call EMS and if they’re supposed to be some medical problem, EMS generally picks up

and takes the person. Please initiate, remember you had the duty to initiate it so try to

initiate the involuntary before they haul them off or follow and do it at the hospital. They

have no authority except that of your authority to take them against their will or without

consent. Plus if you leave it up to the doctor at her emergency department, he is or she

is not going to have seen what you’ve seen and may not initiate it at all and because

they don’t have all the information. So it’s very important for law enforcement to do that,

initiation and if you follow there and they tell you tear up your Baker Act. Are there any

officers in here who would tear up their Baker Act they had done? Oh no.

So the other one is any time a law enforcement officer believes that the person has an

emergency medical condition, then the officer can take them or have them taken to any

hospital regardless of whether it is a receiving facility. What’s an emergency medical

condition to a law enforcement professional, even the best trained one? Well let’s figure

it out. Does, PEMHS is here. Don’t you have a closet full of Band-Aids? Where are you

Maxine? There you are. Come on, they got a closet full. They do not do sutures though.

They’re gushing blood; they need an emergency department. If they, you know, have a

cut, they have the bruises, they have the whatever; PEMHS does a terrific job with

those, they do first aid, perfectly. They don’t need an E.D for first aid. How about they’re

having chest pain? That’s an emergency department, don’t worry about whether it’s an

anxiety attack or not, it’s not your problem, the person may die if they don’t get there

and it turns out to be that. They’ve been, you’ve been told they have had an overdose, I

use to say even of Tylenol now we’re saying especially if Tylenol. So if they believe to

have that then get them to an emergency department instead. They’re complaining of

severe pain, get them to an emergency department, not to a free standing facility. You

get, so drunk they can’t walk and talk, PEMHS detoxes people every day. Palm Royal

detoxes people I assume every day. And it’s fine, they do this safely, but if the person’s

so drunk and I’m not a lawyer or a doctor my rule of thumb is, if it ain’t walking and

talking don’t assume it’s just a level of intoxication. So, all I can say is if you think it’s an

emergency medical condition. Officers it is an emergency medical condition and get

them over there.

However, and I want to tell you a story about a, this would have been back, 20 years

ago. A St. Pete police officer called me and I was still with DCF, before my retirement,

and he said to me and I don’t even how he got my phone number and I’m really glad he

did, he was fit to be tied, he said “I’ve been between two different receiving facilities

three times and neither one will take them” and I said “which one are you closest to” and

he gave me the name of the hospital and I said “take him back there.” He said, “oh no

they won’t accept them.” I said, “oh yes they will” and I used language no real

professional has ever used before, [laughter] it was not pretty and they did accept them.


And about 3 years later I had the opportunity to, I was loaned to the legislature to help

rewrite parts of the law and I think probably my proudest moment in all these years has

been a one sentence paragraph we got put into the Baker Act. Facilities all hate it, but

the nearest receiving facility shall accept any person brought by law enforcement for

involuntary examination, period, end of paragraph. And it was, and I never caught that

officers name, never recorded it, I always thought he deserved a major award out there

for his contribution and never knew that it turned into that, but we cannot be having law

enforcement misused that way of going from place to place to place, trying to find it. We

as the health care facility, system have to accept and if we can’t meet their needs or

they don’t have needs that need to be meet by that point then, we release a transfer

ordinate, we don’t put them back in their car. So they get on, they bring me over to

Gracepoint and I’ve been perhaps singing loudly, rapidly, all the way over there then

they realize when walking around the car, wait a minute I haven’t heard from Martha in

a little while, opens the door, I fall out on the pavement not breathing. Gracepoint must

accept Martha, me. Did I say admit me? You’d be a goner if they admitted me because

that’s not what they do. But the officer would stand by, they’d call 911, they’d assist with

CPR, but they should never ever get asked to, or actually further transport a person for

medical clearance. You will call medically equipped and medically trained folks to

provide that (45:00) and if there’s game playing and I’m not saying it’s happening here

in Hillsborough, but it is happening in places in the state where if they can get them off

their property and then they won’t accept them back on a transfer, they would do that.

So it eliminates a lot of that stuff from going on, but you’ll stand by, because all I can tell

you, I’m not a lawyer, any lawyer much less your lawyer and I can tell you, you will

never dig your way out of the liability if in transferring them over to an emergency

department after being turned away from a facility that was legally required to accept

and something happens on the way, you’ll never dig your way out of it. So, again stand

by, call 911 and let the guys who do medical emergencies handle it from that point. All I

can say is it’s going to save a life, but don’t take them there to Grace Point if they can’t

get their breath, you know, and you know that. Any person, doesn’t take a law

enforcement professional with all the experience you have to do that, you know they’re

in crisis or could be and you take them there instead.

The, sometimes we hear about people saying, “oh we’re on divert status,” middle of

winter, everything, where you get them on to a premises of a hospital, they have to

accept doesn’t matter what “the diversion” status is. They still have to accept under

Federal law, that’s a courtesy to try to divert ambulances and they don’t necessarily

divert law enforcement on this. I don’t know what the basis is of that, but I’ve heard

some places using it. We need to probably look at that more.

The nearest facility I told you has to accept, let me tell you about this next one about

jails vs. receiving facilities. The Baker Act is actually quite prescriptive, it says if the


person is in your custody because of a minor criminal offense or a non-criminal, we’ll

assume ordinance, traffic, that sort of a thing and they meet the Baker Act criteria you

shall take them to the nearest receiving facility. It doesn’t mean that they’re off of their

criminal charge, it means that they are to be only release backed to law enforcement

when the facility, so make sure the facility knows there’s a law enforcement hold on it,

but they will call you, and versus a person who has been arrested for a felony offense

and is in your custody and has a Baker Act. In that case, it says they’re to be processed

the same as any other criminal suspect, but then the jail must contact the nearest public

receiving facility in order to have them examined and treated and in that case if the

facility on this felony charge can document that it doesn’t have sufficient security then

the public receiving facility will perform that exam and provide that treatment wherever

the individual is held, at jail or otherwise.

Now I want to go back for a moment. Now, there’s one misdemeanor charge that’s

really troublesome and that is domestic violence, that’s a misdemeanor generally, right?

Therefore, but you have public policy established, through law and otherwise about

preferred prosecution. I’m not telling you, follow your general counsels orders, your

policies and procedures, the state attorney, whatever, you know, follow that, but I’m

here to tell you that the Baker Act talks about how these things are handled.

So let me give you a quick, a couple of scenarios. My 50 year old sonny, son, Buddy

has schizophrenia and he went off his meds several weeks ago and he’s got more and

more and more agitated as time has gone on and I finally said to Buddy. “Buddy if you

don’t go to the hospital and get examined I’m going to have to call the police and what”

Person in crowd: And he broke your finger

Martha Lenderman: And he, and he broke it. Is that domestic violence?

Person in crowd: Nope

Martha Lenderman: A nope, a yep, a nope, a yep. How about my father who has

Alzheimer’s and I promised him all those years ago that I would never put him in a, one

of those places, so I have him at home, I’m giving him wonderful care, I feed him every

meal, every puréed spoon full, after spoon full, and he broke my wrist. Is that a domestic

violence? Oh no, it’s not domestic, I’ve got agreement. How about my son who has

autism and when he gets really agitated, he goes like a whirling dervish through the

house breaking everything in sight and I caught up with him and I grabbed him to stop

him from hurting himself and what did he do? And he pushed me against the wall and I

broke my, I fell and I broke my leg. Was that domestic violence? No. Let me just, and

I’m not telling you how to do your job. I’m simply saying that what these 3 scenarios

have in common is the exact same behavior and probably the same inability to form the

intent to commit a crime. Isn’t that one of the basic elements of a crime; is intent? Now


generally that’s figured out later, but when it’s absolutely staring you in the face at the

front. What is different about these 3, is the sympathy factor for the perpetrator of that

behavior. Whether it’s a great big guy, 50 year old with schizophrenia vs. someone, a

kid with autism vs. a person with Alzheimer’s and that means generally we are

criminalizing a diagnosis. So again, follow your policies and procedures, even better get

them changed with the work in collaboration with the state attorney that could allow you

to at least get them started at a receiving facility because there’s no one here, I don’t

think from a correctional setting that, from the registration list, but they get into your

facility, your jails, they stay forever, sometimes with very minor crimes because they

cannot, neither plead guilty nor not guilty because they are incompetent to proceed. But

it may be a misdemeanor charge so they can’t even get into the forensic system that

way unless it’s a felony. So there stuck, they’re the ones who and by the way there’s

only one group of people that I’m aware of, magistrate, that has an absolute

constitutional right to healthcare including mental healthcare and those are prisoners

and inmates in jails by constitutional law. And so all I’m saying is, get in there and

they’re the ones who are in paper gowns wiping feces all over themselves and all over

the walls and sometimes over the staff as well and what we have is people that get hurt,

they go to the hospital. Who pays for it? We do. Who pays when they sue because

they’ve been denied that? And I have carried around with me, I think it was a 5.6 million

dollar lawsuit by a person that was denied mental healthcare in a county jail. The point

is, we pay for those. So, if you can get them stabilized at a receiving facility first, where

they can consent to treatment and follow through on that, we’re more likely to have the

person be able to remain safely in the justice system if necessary.

Couple other things, if they tell you, sorry we don’t have any beds, we’re full. You’re

going to find a very nice way of saying, not my problem. You want to be careful, public

service and all. Their problem, accept, transfer, or manage their back door of the facility,

they can’t always manage the front door. They have, you have to stay with this person.

I’ll never forget one, I got a call from a training, Lieutenant of a training at a law

enforcement agency in Pinellas and said, “This hospital is telling us we have to stay,

where does it say in the Baker Act we can leave?” Our response was, “where did it say

in the Baker act that you have to stay?” The point is, if you have a person running for

the door or beating up on the staff or beating their head in the wall, law enforcement

officers it’s in their very nature they get involved in this and thank God for it, but the

point is, it’s their job to get out there and to be on patrol and responding to the bad guys,

not doing our job for us.

I would say that when you’ve just taken them out of all kinds of shackles and handcuffs

and until they get them into a safe, they should be responding quickly, but in some

cases they may be so agitated that they need you to hang out, it’ll be just a little longer,

don’t stay longer than you need, or you’ll be sorry for that at some point when things


happen. So and then when you come back because they call you and tell you that

everything went to heck in a hand basket you’re going to come quickly because things

have gotten beyond the point at which the staff may be able to handle it no matter how

well trained they may be.

Transfers, not your job. Not your job to stand there and wait while they do insurance

screening. Because you’re not going to do secondary transfers anyhow and the last one

up here has to do with a right under the Baker Act to not be held, a law enforcement to

use any kind of restraining you generally use on criminals to use on people with a

mental illness and I can look at, yeah I’m looking at these officers all look, saying, “oh

you know what.” Point is what does it say down here though? Except, underlined,

bolded for the protection of the person or others. I won’t forget nor will law enforcement

officers throughout the state of Florida particularly here Tampa. Remember Hank Earl

Carr, he murdered 3, two Tampa police offers and a highway patrol officer that day and

he wasn’t even mentally ill. Since that day, law enforcement agencies all over the

country changed their policies to cuff everyone in the back of a cruise or everyone in the

back of a cruiser with a criminal charge or left it to the discretion of the officer. I’m here

to tell you, you can’t have a policy that conflicts with the law, but before you use your

Tasers on me, who is the only person who can determine the need for protection? And

what percentage of people were, had Baker Acts initiated based on the dangerous,

active danger to self and others it was like, what was it? 63 plus whatever another 15

percent. Most of them that are Baker Act have already been determined by somebody

to be dangerous so while you want to deal with their need for individual, and right to

individual dignity that particular period between taking them into custody and getting

them to the Baker Act receiving facility is probably the most dangerous time that we

have and that is that law enforcement officer responsibility. And one of the things we

always talk about the safety of the person with mental illness, but those of us all have to

be first and foremost concern about the safety of the officer as well and they’re the only

ones that can determine it. So in this situation I just recommend, don’t rely just on your

policy, it says cuff everyone in the back of your cruiser, but rather I recommend if you

put on your incident report cuffed for protection. Then nobody could really question that

situation so it’s up to you.

Now, we have never had an escape from a hospital or receiving facility. Have we?

[Laughter]. What do we call them folks? Elopements. I’ve given you six different

scenarios here for when people elope from one of our facilities. Only one of them is in

the law and so these are different scenarios about legal status and where in the

involuntary status they may be. If only this one after a court has ordered the person to,

under involuntary inpatient placement that even mentions contacting law enforcement

and getting their help in finding the person and bringing them back. However, my

position is, and I would leave it to there’s a bunch of lawyers in the room, these are


endangered persons whether they fit one of these other ones or not and once they’ve

gotten off your premises I think you may make every effort to keep them from eloping,

but once they got off your premises really law enforcement is the only access we

generally have to recover these individuals and get them back. So again, I always tell

folks take them right back in that ED and tell them to transfer the way they should have

done it in the first place and that is always with the prior consent of the facility to which

the person would be transferred.

I want to talk about weapons and in this case we are not talking about the new weapons

prohibition, a law. We’re going to cover that actually when we come back from lunch

because it’s, that part has believe it or not nothing to do with law enforcement agencies

because you’re not confiscating weapons per say in that, but we are talking, in this

case, weapons the person may have on board or law enforcement weapon. What the

law actually says in this section is, except as authorized by law and by the way Chapter

790 and Chapter 943 both say that law enforcement officers can carry the weapons

anytime, anyplace or as, authorized by the hospital administrator. We have many

receiving facilities that are not hospitals they are licensed as crisis units (1:00:00). It is

unlawful to bring a fire arm or deadly weapon into a hospital providing mental health

services. I make these distinctions, bottom is work it out folks, locally. Many of the

nonhospital facilities are going to ask you to leave your weapons in your car or put them

in a lock box in the facility and they always had the right to ask that. Most, a lot of

facilities now have backed off of that and are basically leaving cops to make their own

decisions on what they need to carry. I believe PEMHS has pretty much done that and

this is when you’re bringing a person to a facility under the Baker Act. It’s somewhere

along the way and the attorney general needs to decide, does this apply to everybody

or just non law enforcement on it. That provision of law is not up to me. People have

had third world wars over this issue, locally and they’ve worked it out. So do whatever

fits your area. What is a firearm? I think legally it’s a gun. You know, it’s not a Taser. It is

not a chemical spray. It’s not a baton. It’s not even any of the little sharp objects you all

carry, I know you have them with you, somewhere. But the point is it’s none of those,

those are alternatives to a deadly weapon. So when they do ask you to drop your, leave

your gun out there. It really doesn’t apply to all those other kinds of things that are there,

but again you can negotiate those.

Paperwork, you must bring with you when you are part of the initiation or the transport

of a person not only the initiation form, whether its court order, a mental health

professional certificate, or your own law enforcement officers report and you have to

bring the Baker Act transport form. And I’m still finding around the state all these years

later that a lot of officers don’t understand that that separate transport form the 3100 is

mandatory by law. This isn’t just a good idea, it says there has to be report of the law

enforcement officer even for those where a mental health professional has initiated the


examination. Why that becomes very important and by the way if you initiated the

Tampa police officer, the BA-52A form and the very first question on the transport form

is I identified the circumstances on which the person was taken into custody well just

say see BA-52 because you’ve already done it. But if it was a court order or a mental

health professional, that hasn’t been answered and it says where and when the person

was picked up. It identifies anyone who is present at the time of the Baker Act initiation.

If receiving facilities were really smart they would be calling these individuals as

witnesses, state attorney and public defender at the time of the hearing so that they

can’t. Joe can’t be standing here saying “oh that’s hearsay.” You actually have fact

witness if necessary, to actually testify to what they saw and heard under oath. Even

more important it says who is, who are the people, the relatives, or a next of kin so that

they can be contacted to notify the person is in the facility and get involved in their

treatment planning, their discharged planning, their aftercare planning. So that we can

hopefully reduce some of the, of this horrible revolving door that we call them

noncompliant or frequent flyers, well get into that at the end of the day on discharge

planning. But when we’re not even making the real sincere effort to get them the

families involved where there’s a whole support system. So these are things that are

critically important. Now there’s some cases in which the, it’s so, they, you have almost

no information law enforcement to put on the form that’s understandable a John Doe

with whatever, but you, that’s important information. There’s other times in which you

have 50 of their closest friends, neighbors, family members pour out of their houses that

want to tell you the story while the person is kicking out your cruiser window. Nothing is

more important than safety, your safety, the patient’s safety, the neighbors’ safety,

whatever and then you may have to fill it, when you get at the hospital or receiving

facility. But I actually had an officer one time who said, oh I never complete these until I

get to the receiving facility well by then they’ve lost the opportunity to get that

information. So all I can say is, it’s really important not to mention statutorily required.

Now I’ve already mentioned the Transportation Exception Plan. You will find this

section, I’m going, I’m even on restraint seclusion this afternoon, I’m going to, the

information’s there I’m not going over it, you all if you have one you know it. If you don’t

have one, it’s irrelevant. So I’m going to skip over this now.

Transfers from one facility or another. Once the initial facility like an emergency

department that is not a receiving facility meets its EMTALA obligations they can

transfer. This is, the rest of it. It relayed from one receiving facility to another. I don’t

need to go through unless you have questions at the end of the section. There’s

different previsions from public to private, from private to public, and between private

receiving facilities. Slight differences, one of which I will tell you when a person is going

from a private to a public facility then it could be either by the person’s request or their

legal representative or requested by the private facility, but that does not, it’s not


included when it’s from public to private. Over the objections of the patient or their legal

representative and it’s not included when it’s from one private facility to another. We end

up with people saying, “oh but we have to because their insurance won’t pay here,”

that’s an oops, that’s an EMTALA thing. Insurance companies do not tell you, they’ll say

what they’re going to pay for, but they cannot tell you to transfer a person, that’s not

within the scope of their authority and you can still have an EMTALA violation based

upon that. So, what’s important here, we are trying to get if we can ever get the

legislature to listen I say we kind of a collective royal we, I guess to get this one section

added both to public to private and between private facilities. Once they meet, we want

people to be where their insurance will pay we do not want MHC now Gracepoint, sitting

there holding people whose insurance will pay at another facility, but not at that one, it

makes no sense. We need to have them transferred, so you all doing those transfers, I

know you are daily, but maybe not having any legal authority to so. It’s why I’m such a

huge advocate of using healthcare advance directives or proxies even in the absence of

an advance directive so that we can have, they can be the legal representative

requesting that transfer. They have that authority under the law.

There’s another kind of transfer and this is critically important for all of you at receiving

facilities once they arrive. You have people that walk into your facility, are brought into

your facility, or stagger into to your facility voluntarily and as soon as you all make a

determination, anyone, that this person does not appear to be competent to make these

decisions they have to start being treated as though with all the due process rights that

are on the involuntary provisions. That doesn’t mean you don’t accept them, you do and

you hold them and within probably 24 hours you want to get the psychiatrists to start a

first opinion on it perhaps. But you’re going, and that’s within the 2 working days you got

to get a filed report.

However, you often get people that come to you on an involuntary basis because what

the officer saw out on the street or what the emergency physicians saw in the ED may

be one thing by the time they get to you, the person has seen the light or more likely

their blood-alcohol level has reduced in some cases and the point is you want to convert

them to voluntary. The Baker Act says a person has the right to be converted to

voluntary, but the voluntary criteria have to be met and that would be; they have to have

the involuntary exam by a physician or psychologist, they have to be certified as

competent, and they have to apply by clear, by, for the voluntary admission if not they

cannot be converted to voluntary and their rights have to be preserved or released from

the facility. Now, the one thing I’ve added to here and were going to be talking about

this later that if they are going to be converted from involuntary to voluntary status, but

the physician determines that they are still imminently dangerous and were it not for the

request to convert to voluntary a petition would have been filed with the court or would

have been withdrawn from the court then we’re talking about filing work with the clerk of


court that’ll go to our FDLE people for submission to the national database on gun

ownership or purchases. So we’ll get to that part later.

Now, the involuntary exam. You all use the term all the time, “lifting a Baker Act”,

“rescinding a Baker Act”, we have, if your, anyone here from Broward? Broward

County? No? They “abrogate” Baker Acts, go check that in your dictionary, I had to. It

means the same thing, I had to look it up. But they talk about this that kind of gives the

impression of now you see it, now you don’t, it’s gone. Wrong. Once it’s initiated by any

one of the three methods then it has, the involuntarily exam has to be conducted and

now instead of all these people who have the authority to initiate, there’s only 2 folks

that can actually conduct that exam. One is a physician, the other is a psychologist and

it can only be at a hospital or receiving facility. So I’m hearing these stories about the

psychiatrist at the jail conducting exam and lifting a Baker Act in a couple places and I

say they’re doing what? Now if that psychiatrist was at a receiving facility or hospital

they could, but they only a receiving facility or hospital has that authority and it has to be

a physician even non-psychiatric is fine or a psychologist. And there’s even standards

although there’s no form for it, there’s a form for almost everything, not for that. But it

just has to document should somewhere and I find they almost always are there in

terms of the summary, admission summary, a discharge, or whatever. Something about

the person’s recent behavior, what got them there, that the transport form is in there

when assumed, so if it came in it was reviewed, the initiating documents would have

been done, a brief psych history done, and most important a face to face exam by the

physician or psychologist, timely, to determine if they meet the criteria for release. If it’s

a goofy Baker Act we want them outta there, they want to be outta there.

On the other hand, you do have up to 72 hours but every time I hear someone say, “oh

they came in on a 3 day hold” it makes me twitch, it’s up to 72 hours, but if it’s clear they

do not meet criteria then they should be released as quickly as possible. And then

within 72 hours of arrival, we’ve had people say “oh well it’s after admission to our

program.” No, it’s after arrival and if they’ve been sitting in an emergency department of

a hospital for many hours after their medical emergency has been stabilized those

hours are counted against the 72. Even before they reach your facility, it’s the patient’s

right not to have their liberty denied them for more than 72 hours for exam plus the

period of time for which a one or more medical emergencies within that 72 hours have

been declared in that case to stop the clock, the clock stops at that point. But it’s only

for a medical emergency. Not just because their being treated for a medical condition,

but rather for what his doctor has determined to be a medical emergency, that stops it.

And if they are at a receiving facility then the approval for the person’s release has to be

done by either a psychiatrist or psychologist unless it’s that, a receiving facility is a

general hospital in which you have an emergency department then that emergency

physician can also authorize the person’s release and that all has to happen within 72


hours that you can examine them. In that period, you either have to release them,

transfer them to voluntary status, or file the petition with the court. And in this situation, if

the person has criminal charges, you cannot transfer them to voluntary status under

current law and if you release them they can only be released back to (1:15:00) law

enforcement. However, the petition in this case I’m going to, again, how many ways can

you count to 72? If I, if a patient comes to you at 5 a.m., Monday morning, at 5 a.m.

you’d think you’d have until 5 a.m., Thursday morning that’s when the 72 hours would,

ah you’re good. No. You probably have to file it before the close of court on Wednesday

afternoon. The only time that you can delay the filing. It’s not the conduction of the

exam, that has to be done and documented within the 72 hours, but if that 72 hours

runs out on a weekend or legal holiday it must be filed on the next working day. So, a

weeknight is not a weekend or legal holiday. So, all I’m saying is I hate to give him

anymore space then we have to, to get things dismissed, but the point is you got to file

these things in a timely way and realize that you can’t just count to 72.

I’m going to talk a little bit about emergency medical conditions. We have different laws

that apply to emergency medical than Baker Act, but these people are not thoughtful

enough to come with just one at a time. So, we have to figure out how to make these

things work together. First, is a definition, what is an emergency medical condition? This

is the definition that the Baker Act refers to in the hospital license or law. It talks about

an acute symptoms that are sufficiently severe, including pain, that absence of

immediate medical attention could reasonably be expected to result in serious jeopardy

to their health, serious impairment to bodily functions, serious dysfunction of any bodily

organ and it does include psychiatric and substance abuse emergencies as emergency

medical conditions. That’s the federal definition, includes that specifically psych and

substance abuse. I have been retained in a number of cases for false imprisonment

allegations and battery kinds of things and one of the problems is and I don’t tell, I try

not to tell doctors how to practice medicine, but they are very quick to basically say this

emergency medical condition is cleared, that starts the clock going. When in fact, some

of these things still exist and the clock need not be clicking in some of these situations

because if they, they may be transferred out, discharged from the emergency

department onto a med surge unit and yet the condition still exist, but they’re going to a

telemetry ward or they’re going to whatever. So, you’re very, so much problem you

make for yourselves. It has to do with the physician, is the only one that can determine

whether there’s an emergency medical condition or not and just the, I’m going to give

you just the thumbnail sketch of EMTALA here.

First, remember whenever it’s in conflict with a state law, EMTALA takes precedence. It

does not apply to non-hospitals, like ALF, nursing homes, crisis stabilization units, any

of those kinds of things. However, if it is a, on the premises of a hospital even if it’s

outpatient or ambulatory and the public believes it to be part of that hospital there can


be some exposure on EMTALA, but if anyone comes onto the premises of that hospital

they must undergo a medical screening in order to determine if they have an

emergency. Park Royal where are you? Park Royal? There you are, or Windmoor’s

here too they have a PEMHS, or no it wouldn’t be a PEMHS anyhow. You have a

relatively limited ability to do that medical screening, but you have nurses that can do all

of the vital signs, they can get a little history, they can do, they can see if a person has a

history of whatever, seizures and blah, blah, blah, and so, but you may not be able to

have the full scale that Morton Plant can have with its entire array of medical diagnostic

and laboratory equipment. So, but you must do what you are able to do in that situation.

If they have no emergency then, EMTALA does not apply. If they have an emergency

even if a psych or substance abuse emergency then you cannot transfer them until they

have been stabile for transfer. That doesn’t mean that their condition is any better, it

simply means that they’re unlikely to experience a deterioration during or result of that

transfer, that secondary transfer. So you got to make them safe for the transfer and

what Robert Bitterman, who I have his book, he’s a not only an attorney, but an

emergency physician. But he wrote basically the bible on EMTALA and he has a huge

chapter on just behavior health conditions and I think it’s outstanding and what he says

is, sometimes it’s the safest that when you do a transfer if you have to use restraints or

seclusion and it’s warranted and sometimes even legal restraints which would be on an

involuntary basis so the transporter is not likely to let them off at the corner of what walk

and don’t walk because they demand to get out and they’re on voluntary status. I have

stories on that one too and ugly, ugly headlines.

So, the consent of the person has to be obtained if it’s from a receiving facility to a

receiving facility. Both are presumed that the real, only reason in most cases why

they’re being transferred is for financial reasons that can’t be the basis of a transfer over

the person’s objection. However, if you’re part of an emergency department of a

hospital, let’s say, that has no capability of providing psychiatric care then you can

transfer with simply the certification of the physician that the benefits to that transfer

outweigh the possible, the likely adverse effects of the transfer.

There has to be a full disclosure of records, I hate to tell you, you all have seen it from

facilities they get to you with no disclosure of serious medical conditions and they arrive

with their, I don’t know what I’m talking about, their electrolytes off the scale over here

and their blood pressure off the scale over here and no follow up on blood, the testing

for overdoses, oops. That would be a violation under EMTALA. Failing to get the prior

approval of the destination facility, you must have that prior approval before you

transport them.

And the sending facility is responsible by law for arranging for the safe and appropriate

method of transfer, whether that be medically in a full ALS or BLS kind of vehicle or like

in Pinellas I think they have a great plan, they’re through EMS but it’s an unmarked van,


cage van that provides it safely, works well and very cheap compared with anywhere

else. And in this case there are provisions for state and community based plans like

how you can do a lateral transfer or a downward substitution of care and not be out of

compliance, but it’s generally limited just too obstetrical on one hand and behavioral

health on the other. Our state has established crisis stabilization units non-hospital, non-

medical that otherwise would have been considered inappropriate under EMTALA

except for our planning. And I mentioned that last one based on paying status, try this in

if you’re at an emergency department make your first referrals immediately to those if

they have no insurance at all, do try to send them to the public receiving facilities. If they

have insurance you all try to keep, you always ask in the question as long as you don’t

delay or deny care about who insures them and for your own recovery of cost and so it’s

important just try to send them to the one that can bill their insurance if they have it. But

once you make the call, that hospital cannot say what is their insurance and then deny

it, the person, because the presumption is going to be because it was not a, no method

of payment, that can’t be the basis for it.

I give you two sections out of Chapter 395 that every hospital in the state of Florida is

governed by, having to do with this very issue. It says and this is even above and

beyond federal EMTALA, it says the person has to be transferred to the geographically

closest hospital, that’s one line, but it goes on to say that has both the capacity and

capability of dealing with that person’s emergency. Unless another prior arrangement is

in place and I’ve talked to the head of the Agency for Health Care Administration about

what is this prior arrangement her response was, it could be on a case by case, on a

systematic basis. They can make, as long as there’s a systematic, a plan in place it

does not need to be the nearest geographic. The other one that comes right out of

Florida hospital licensing laws is this one. It says, no hospital to which another hospital

is transferring a person in need of emergency services can require that sending hospital

or any other person to guarantee payment as the condition of receiving the transfer. In

addition, they can’t require any contractual agreement, any type of pre-planned 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. So, if you’re establishing any kind of real or

perceived barriers to that, based on inability to pay and this on the secondary transfer

then you’re going to have a problem. Eventually it’s going to catch up with you, very

expensive one. And every hospital is required as I mentioned earlier to protect the rights

of persons under the Baker Act if they’re held under the terms of the Baker Act.

The final part of this section has to do with how you bring the federal EMTALA and the

state Baker Act back together again because again you have to meet the EMTALA first.

An in this case the Baker Act says that a person who is brought to a medical hospital

that’s under a Baker Act for the examination or treatment of an emergency medical

condition, that the 72 hours starts when the person arrives at the emergency


department and only stops when the physician documents that the person has an

emergency medical condition. Well I have been in a lot of emergency departments over

the years, I have never yet heard a doctor, you know, yell out stop the clock we have an

emergency! There’s almost a presumption in any emergency department, anyone who

walks in the door has an emergency medical condition and until it’s documented they do

not. So my feeling is, it starts pretty much when the doctor declares the person clear,

stable from an emergency in reality.

They can conduct the exam by either any physician or psychologist and release the

person directly from that emergency department, but they never ever do it because they

say, “oh I don’t want the liability” and yet we have people backed up and you talk about

liability if they walk out of that emergency department because we can’t get them in to a

receiving facility because there’s so many people waiting. But within 2 hours of the end

of that medical emergency the notice to a receiving facility has got to be provided by

that hospital and the person must be transferred to a receiving facility within 12 hours

not 72, 12 hours after the end of that medical emergency. So, and people say “well what

the 72 hours ran out what do we do now?” You should have been asking that when it

ran out at 12 hours, not 72 and document, document every, if they’re your transfer log

it’s your emergency department, everything that’s been done to try, when did you talk to

them, the date, the time, who you talked to, and what did they say? If they said what’s

your insurance? No insurance. Sorry we don’t take uninsured people or all our Medicaid

beds are filled or whatever, big, big problem on it.

So, I’ve given you a list of things you’ll see on there. It does not suggest, I don’t

recommend any of them. I just say this is what I find. How people get folks not to walk

away from an emergency department. I’m perfectly willing to answer any questions you

have on it. A lot of times when people put on medical units and so on, on a Baker Act,

you know they’re still responsible for the safety of that individual.

Finally, if you can’t transfer them there’s this myth out there that you have to report it,

the emergency departments to DCF. Wrong, I made that up years ago to AHCA and

DCF. But AHCA finally put the pressure on and said don’t call us, but we still have folks.

Where is the lady from Lutheran Services? Lutheran services where are you? There

you are. They and also I understand that, I know down in Miami at the, I think it’s the

managing entity as well, have individuals that actually assist with accessing receiving

facilities and I believe these emergency departments can contact you, 1:30:00 you’re

24/7. That doesn’t mean they’re taking them home with them to sleep in the spare

bedroom or that they can create a bed, but they are in a position of trying to assist the

hospitals in finding a place where individuals can go. The, but I do suggest that it does

not need to be to the nearest receiving facility, it’s the only place in the law that doesn’t

make reference to it, it’s to any receiving facility that can manage the person’s residual

medical condition. And also, I suggest you report to DCF, they do have the ability to


check a census to see if in fact all the beds were filled. They also have the chance to

say, take a look and see if there’s some kind of artificial barriers being placed into that.

And she is a great advocate for both the facilities as well as for the patients they serve

and balances that well.

The, as I said earlier we do not have any of the long-term care facilities with us today

so I’m going to skip over this section. I would tell you that the appendix in the

handbook has a whole section on it having to do with ways that good nursing homes

at least, would avoid an inappropriate Baker Act and would suggest to use it

(1:31:34).

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