SB 5444 — Providing timely competency evaluations and restoration services to persons suffering from behavioral health disorders within the framework of the forensic mental health care system consistent with the requirements agreed to in the Trueblood settlement agreement.

S-2373.4SECONDZ-0347.2SENATE SUBSTITUTE SENATE BILL 5444State of Washington66th Legislature2019 Regular SessionBySenateSessionBySenators Ways & Means (originally sponsored by Senators Dhingra, O'Ban, Darneille, Wagoner, Frockt, Kuderer, and Nguyen;

by request of Office of the Governor)READGovernorRead FIRSTfirst TIMEtime 03/01/19.AN01/21/19.Referred to Committee on Health & Long Term Care.AN ACT Relating to providing timely competency evaluations and restoration services to persons suffering from behavioral health disorders within the framework of the forensic mental health care system consistent with the requirements agreed to in the Trueblood settlement agreement;

The legislature acknowledges that these reforms will require the support of a broad range of stakeholders, including local law enforcement, prosecuting attorneys, defense attorneys, community members, and health care providers.

A new section is added to chapter 10.77 RCW to read as follows:(1) Subject to the limitations described in this subsection, a court may appoint an impartial forensic navigator employedapproved by or contracted with the department to assist individuals who have been referred for competency evaluation.(2)evaluation Aor forensicrestoration navigator must assist the individual to both navigate the forensic legal process and to access servicesavailable relatedbehavioral tohealth diversionresources. and community outpatient competency restoration.

TheA forensiccourt navigatormay mustnot assistissue thean individual,order prosecutingappointing attorney,a defenseforensic attorney,navigator andunless thethere courtis toadequate understandforensic thenavigator optionscapacity available to theprovide individualthese andservices beat accountablethe astime anthe officerorder ofis theissued.(2) courtUnless forotherwise faithfuldirected executionby of the responsibilitiescourt, outlinedthe in this section.(3) The duties of the forensic navigator include, but are not limited to, the following:(a) To investigate and collect relevant information about the individual, including any relevant background, prior behavioral health serviceshistory, and supportsthe availablecircumstances that led to the individualcurrent thatmatter mightbefore supportthe placementcourt, inand outpatientreport restoration,that diversion,information orto somethe combinationcourt;(b) of these;(b) To meet with, interview, andor observe the individual;(c)individual, Toand presentreport information to the court inany orderviews toor assistpositions expressed by the individual on options pending before the court;(c) To monitor all court orders for compliance and to bring to the court's attention any change in understandingcircumstances that may require a modification of the court's order.(3) Forensic navigators may submit nonclinical recommendations to the court regarding treatment and restoration options availablefor tothe individual, which the individualcourt tomay supportconsider and weigh in conjunction with the entryrecommendations of ordersall of the parties.(4) Forensic navigators shall be deemed officers of the court for diversionthe purpose of immunity from civil liability.(5) Upon presentation of the court order of appointment by the forensic mentalnavigator, any agency, hospital, school organization, division or department of the state, doctor, nurse, or other health systemcare provider, psychologist, psychiatrist, police department, or forbehavioral communityhealth outpatientprovider competencyshall restoration;permit the forensic navigator to inspect and copy any records relating to the individual named in the order of appointment, without the consent of the individual.Sec.

and(d) When the individual is ordered to receive community outpatient restoration, to provide services to the individual including:(i) Assisting the individual with attending appointments and classes relating to outpatient competency restoration;(ii) Coordinating access to housing for the individual;(iii) Meeting with the individual on a regular basis;(iv) Providing information to the court concerning the individual's progress and compliance with court-ordered conditions of release, which may include appearing at court hearings to provide information to the court;(v) Coordinating the individual's access to community case management services and mental health services;(vi) Assisting the individual with obtaining prescribed medication and encouraging adherence with prescribed medication;(vii) Prior to the conclusion of outpatient restoration services, facilitating a coordinated transition of the individual to a case manager in the community behavioral health system;(viii) Following up with the individual to check whether the meeting with a community-based case manager took place;(ix) When the individual is a high utilizer, attempting to connect the individual with high utilizer services;

and(x) Checking up on the individual at least once per month for up to sixty days after coordinated transition to community behavioral health services, without duplicating the services of the community-based case manager.(4) Forensic navigators may submit nonclinical recommendations to the court regarding treatment and restoration options for the individual, which the court may consider and weigh in conjunction with the recommendations of all of the parties.(5) If, after the forensic navigator has advised the criminal court, the court does not order the individual into outpatient competency restoration services, the role of the navigator must end.(6) Forensic navigators shall be deemed officers of the court for the purpose of immunity from civil liability.(7) The signed order for competency evaluation from the court shall serve as authority for the forensic navigator to be given access to all records held by a behavioral health, educational, or law enforcement agency or a correctional facility that relates to an individual.

Information that is protected by state or federal law, including health information, shall not be entered into the court record without the consent of the individual or their defense attorney.(8) A prosecutor may dismiss charges against an individual whenever mental illness or competency to stand trial has become an issue.(9) A court may not issue an order appointing a forensic navigator unless the department certifies that there is adequate forensic navigator capacity to provide these services at the time the order is issued.Sec.

RCW 10.31.110 and 2014 c 225 s 57 are each amended to read as follows:(1) When a police officer has reasonable cause to believe that the individual has committed acts constituting a ((nonfelony))((nonfelony crime ((thatthat is not a serious offense as identified in RCW 10.77.092)),10.77.092))misdemeanor, gross misdemeanor, class C felony, or a class B felony that is not classified as violent under RCW 9.94A.030, excluding sex offenses under RCW 9.94A.030, and the individual is known by history or consultation with the behavioral health organization, managed care organization, or behavioral health administrative services organization,organization crisis hotline, or local crisis services providers to suffer from a mental disorder, the arresting officer may:(a) Take the individual to a crisis stabilization unit as defined in RCW 71.05.020(((6))).

The individual must be examined by a mental health professional within three hours of arrival;(c) Refer the individual to a mental health professional for evaluation for initial detention and proceeding under chapter 71.05 RCW;RCW, which may include detention pursuant to RCW 71.05.153 in facilities such as evaluation and treatment facilities, emergency departments of hospitals, or any other appropriate facilities;

or(d) Release the individual upon agreement to voluntary participation in outpatient treatment.(2) If the individual is released to the community, the mental health provider shall make reasonable efforts to inform the arresting officer of the planned release ((withinwithin a reasonable period of time after the))priorthe to release if the arresting officer has specifically requested notification and provided contact information to the provider.(3) In deciding whether to refer the individual to treatment under this section, the police officer ((shall))mustshall be guided by ((standards))localstandards lawmutually enforcementagreed diversionupon guidelineswith forthe behavioralprosecuting healthauthority, developedwhich address, at a minimum, the length, seriousness, and mutuallyrecency agreedof uponthe withknown criminal history of the prosecutingindividual, authority((,the which))withmental anhealth opportunityhistory forof consultationthe andindividual, comment((where))if byavailable, the defenseopinions barof a mental health professional, if available, and disabilitythe community.circumstances surrounding the commission of the alleged offense.

TheseThe guidelinesstandards must address,also atpermit aan minimum,officer theto length,refer seriousness,an andindividual recencyfor oftreatment thenotwithstanding known criminal history of the individual,existence the mental health history of theone individual,or ((where))ifmore available,outstanding thewarrants opinionsfor ofthat aindividual mentaland healthmust professional,address if available, and the circumstances surroundingunder thewhich commissionsuch ofa thereferral allegedis offense.permissible.

TheProsecuting guidelinesattorneys must includeprovide aan processopportunity for clearing outstanding warrants or referring the individualdefense forbar assistance in clearing outstanding warrants, if any, and issuingdisability acommunity new court date, if appropriate, without booking or incarcerating the individual or disqualifying him or her from referral to treatmentcomment underon this section, and define the circumstancesstandards underbefore whichthey suchare actionadopted.(4) is permissible.(4) Any agreement to participate in treatment shall not require individuals to stipulate to any of the alleged facts regarding the criminal activity as a prerequisite to participation in a mental health treatment alternative.

and(b) The original charges may be filed or referred to the prosecutor, as appropriate, and the matter may proceed accordingly.(6) The police officer is immune from liability for any good faith conduct under this section.(7) The Washington association of sheriffs and police chiefs shall collect and maintain a file of written local law enforcement diversion guidelines for behavioral health developed pursuant to subsection (3) of this section.Sec.

c 7 s 5 are each amended to read as follows:(1)(a)(i) If the defendant is charged with a felony and determined to be incompetent, until he or she has regained the competency necessary to understand the proceedings against him or her and assist in his or her own defense, but in any event for a period of no longer than ninety days, the court((:(A)))shallcourt:(A) Shall commit the defendant to the custody of the secretary ((whowho shall place such defendant in an appropriate facility of the department for evaluation((evaluation and treatment;treatment))inpatient competency restoration;

or(B) May alternatively order the defendant to undergo evaluation((evaluation and treatmenttreatment))outpatient competency restoration at some other facility or provider as determined by the department, or under the guidance and control of a professional person.

During((During the 2015-2017 fiscal biennium, the department may contract with one or more cities or counties to provide competency restoration services in a city or county jail if the city or county jail is willing and able to serve as a location for competency restoration services and if the secretary determines that there is an emergent need for beds and documents the justification, including a plan to address the emergency.

Patients receiving competency restoration services in a city or county jail must be physically separated from other populations at the jail and restoration treatment services must be provided as much as possible within a therapeutic environment.))forenvironment.))When competencyordering restoration.a defendant to undergo outpatient restoration, the court shall set appropriate conditions of release and shall enforce those conditions as necessary.

TheIf the court mayrevokes orderoutpatient theconditional defendantrelease toand receiveorders inpatientthat competencythe restorationtreatment orcontinue outpatientin competencya restorationfacility basedunder on(a)(i)(A) theof clinicalthis recommendationsubsection, in the competencytreatment evaluation.(A)period Tomay be eligible for anno orderlonger forthan outpatientthe competencyremaining restoration,time aperiod defendantauthorized mustin be:(I)the Adherentoriginal tocourt medicationsorder, ornot willingcounting totime receiveperiods prescribedin intravenouswhich medication;(II)the Abstinentdefendant was absent from alcoholthe ortreatment unprescribedprogram drugs;plus any additional periods authorized by this section.

and(III)The Clinicallycourt stable.(B)may Ifnot theissue courtan ordersorder inpatientto undergo outpatient competency restoration,restoration theunless departmentthere shallis placean theavailable defendantappropriate inoutpatient anrestoration appropriateprogram facilitythat ofhas adequate space for the departmentperson at the time the order is issued.(ii) The ninety day period for evaluation((evaluation and treatment.(C)treatment))competency Ifrestoration theunder courtthis orderssubsection outpatient(1) competencyincludes restoration,only the courttime shallthe modifydefendant conditionsis ofactually releaseat asthe neededfacility and is in addition to authorizereasonable thetime departmentfor transport to placeor from the personfacility.(b) inFor approveda housing,defendant whichwhose mayhighest includecharge accessis toa supportedclass housing,C affiliatedfelony, withor a contractedclass outpatientB felony that is not classified as violent under RCW 9.94A.030, the maximum time allowed for the initial period of commitment for competency restoration program.is forty-five days.

The department must establish conditions of participation in the outpatient competency restoration program which must include the defendant being subject to medication monitoring and daily urinalysis.

The outpatient competency restoration program shall monitor the defendant during the defendant's placement in the program and report any noncompliance or significant changes with respect to the defendant to the department and, if applicable, the forensic navigator.(D) If a defendant fails to comply with the restrictions of the outpatient restoration program, such that restoration is no longer possible in that setting, the department shall remove the defendant from the outpatient restoration program and place the defendant instead in an appropriate facility of the department for inpatient competency restoration.

The department shall promptly notify the court and parties and the forensic navigator, if applicable, of the change in placement.

The inpatient competency restoration period following a change in placement under this subsection must be for the time remaining on the current competency restoration order.(E) The court may not issue an order for outpatient competency restoration unless the department certifies that there is an available appropriate outpatient competency restoration program that has adequate space for the person at the time the order is issued.(ii) The ninety day period for ((evaluation and treatment))competency restoration under this subsection (1) includes only the time the defendant is actually at the facility and is in addition to reasonable time for transport to or from the facility.(b) For a defendant whose highest charge is a class C felony, or a class B felony that is not classified as violent under RCW 9.94A.030, the maximum time allowed for the initial period of commitment for competency restoration is forty-five days.

c 29 s 411 are each amended to read as follows:(1)(((a)))follows:(1)(a) If the defendant is charged with a nonfelony crime which is a serious offense as identified in RCW 10.77.092 and found by the court to be not competent, then the court:(a)court:(i) ShallMay dismiss the proceedings without prejudice and detain the defendant for sufficient time to allow the designated crisis responder to evaluate the defendant and consider initial detention proceedings under chapter 71.05 RCW,RCW. unless the prosecutor objects to the dismissal and provides notice of a motion for an order for competency restoration, in which case the court must schedule a hearing to determine whether to enter an order of competency restoration.(b) At the hearing, the prosecuting attorney must establish that there is a compelling state interest to order competency restoration treatment for the defendant.

The court must give notice to all parties at least twenty-four hours before the dismissal of any proceeding under this subsection, and provide an opportunity for a hearing on whether to dismiss the proceedings.

Unless the prosecuting attorney requests a hearing before the expiration of the twenty-four hour period, the charges shall be dismissed without prejudice.(ii) At the hearing on whether to dismiss the proceedings, the prosecuting attorney may present evidence of a compelling state interest in pursuing competency restoration treatment for the defendant.

If the prosecuting attorney proves by a preponderance of the evidence that there is a compelling state interest in ordering competency restoration, then the court shall order competency restoration in accordance with subsection (2)(a) of this section.(2)(a) If a court finds pursuant to subsection (1)(b)(1)(a)(ii) of this section that there is a compelling state interest in pursuing competency restoration treatment, then the court(((i)))shallcourt:(i) Shall commit the defendant to the custody of the secretary ((whowho shall place such defendant in an appropriate facility of the department for evaluation((evaluation and treatment;(ii)treatment))inpatient competency restoration;(ii) May alternatively order the defendant to undergo evaluation((evaluation and treatmenttreatment))outpatient competency restoration at some other facility or provider as determined by the department, or under the guidance and control of a professional person.

During((During the 2015-2017 fiscal biennium, the department may contract with one or more cities or counties to provide competency restoration services in a city or county jail if the city or county jail is willing and able to serve as a location for competency restoration services and if the secretary determines that there is an emergent need for beds and documents the justification, including a plan to address the emergency.

Patients receiving competency restoration services in a city or county jail must be physically separated from other populations at the jail and restoration treatment services must be provided as much as possible within a therapeutic environment.))forenvironment.))When competencyordering restoration.a defendant to undergo outpatient restoration, the court shall set appropriate conditions of release and shall enforce those conditions as necessary.

TheIf the court mayrevokes orderoutpatient theconditional defendantrelease toand receiveorders inpatientthat competencythe restorationtreatment orcontinue outpatientin competencya restorationfacility basedunder on(a)(i) theof clinicalthis recommendationsubsection, in the competencytreatment evaluation.(i)period Tomay be eligible for anno orderlonger forthan outpatientthe competencyremaining restoration,time aperiod defendantauthorized mustin be:(A)the Adherentoriginal tocourt medicationsorder. or willing to receive prescribed intravenous medication;(B) Abstinent from alcohol or unprescribed drugs;

and(C)The Clinicallyplacement stable.(ii)under If(a)(i) the court orders inpatient competency restoration, the department shall place the defendant in an appropriate facility of the department for evaluation and treatment(ii) under (b) of this subsection.(iii)subsection If the court orders outpatient competency restoration, the court shall modifynot conditionsexceed offourteen releasedays asin neededaddition to authorizeany theunused departmenttime toof place the personevaluation inunder approvedRCW housing,10.77.060. which may include access to supported housing, affiliated with a contracted outpatient competency restoration program.

The department shall establish conditions of participation in the outpatient competency restoration program which must include the defendant being subject to medication monitoring and daily urinalysis.

The outpatient competency restoration program shall monitor the defendant during the defendant's placement in the program and report any noncompliance or significant changes with respect to the defendant to the department and, if applicable, the forensic navigator.(iv) If a defendant fails to comply with the restrictions of the outpatient competency restoration program, such that restoration is no longer possible in that setting, the department shall remove the defendant from the outpatient restoration program and place the defendant instead in an appropriate facility of the department for inpatient competency restoration.

The department shall promptly notify the court and parties and the forensic navigator, if applicable, of the change in placement.

The inpatient competency restoration period following a change in placement under this subsection must be for the time remaining on the current competency restoration order.(v) The court may not issue an order for outpatient competency restoration unless the department certifies that there is an available appropriate outpatient restoration program that has adequate space for the person at the time the order is issued.(b) The placement under (a) (((i) and (ii))) of this subsection shall not exceed ((fourteen))twenty-nine days ((in addition to any unused time of the evaluation under RCW 10.77.060.

The fourteen-day period plus any unused time of the evaluation under RCW 10.77.060 shall))ifshall be considered to include only the time the defendant is orderedactually at the facility and shall be in addition to receivereasonable inpatienttime competencyfor restoration,transport to or shallfrom notthe exceedfacility;(iii) ninetyMay daysalternatively iforder that the defendant isbe orderedplaced on conditional release for up to receiveninety outpatientdays competencyfor restoration.mental health treatment and restoration of competency;

Theor(iv) May order any combination of this subsection.(b) If the court has determined ((or the parties agree)) that the defendant is unlikely to regain competency, the court may dismiss the charges without prejudice without ordering the defendant to undergo restoration treatment, in which case the court shall order anythat combinationthe defendant be referred for evaluation for civil commitment in the manner provided in (c) of this subsection.subsection.(c)(i) If the proceedings are dismissed under RCW 10.77.084 and the defendant was on conditional release at the time of dismissal, the court shall order the designated crisis responder within that county to evaluate the defendant pursuant to chapter 71.05 RCW.

This period must be considered to include only the time the defendant is actually at the facility and shall be in addition to reasonable time for transport to or from the facility((;(iii) May alternatively order that the defendant be placed on conditional release for up to ninety days for mental health treatment and restoration of competency;

or(iv) May order any combination of this subsection)).(((b)))(c) If the court has determined ((or the parties agree)) that the defendant is unlikely to regain competency, the court may dismiss the charges without prejudice without ordering the defendant to undergo restoration treatment, in which case the court shall order that the defendant be referred for evaluation for civil commitment in the manner provided in (((c)))(d) of this subsection.(((c)))(d)(i) If the proceedings are dismissed under RCW 10.77.084 and the defendant was on conditional release at the time of dismissal, the court shall order the designated crisis responder within that county to evaluate the defendant pursuant to chapter 71.05 RCW.