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; amending RCW 10.31.110, 10.77.086, and 10.77.088; adding new sections to chapter 10.77 RCW; and creating a new section.

NEW SECTION. Sec. 1. The legislature recognizes that there has been a nationwide increase in the number of individuals with behavioral health disorders in the criminal justice system. The legislature also recognizes that reforms must be made to our own behavioral health systems and services to meet the increasing demands in our state, to provide timely competency evaluations and restoration services, and to comply with federal court orders issued in A.B., by and through Trueblood, et al., v. DSHS, et al., No. 15-35462 ("Trueblood"). 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. The legislature further acknowledges the significant efforts of the parties to the Trueblood litigation to establish a roadmap and framework within their settlement agreement for proposed systemic reforms to the forensic mental health care system. It is the intent of the legislature to enact appropriate reforms consistent with the goals agreed to in the Trueblood settlement agreement, to continue to engage with stakeholders and community partners to address the needs of this vulnerable population, and to ensure that the public safety needs of our communities are met.

(2) A forensic navigator must assist the individual to navigate the legal process and to access available behavioral health resources. During pending criminal proceedings, the forensic navigator must assist the individual, prosecuting attorney, defense attorney, and the court to understand the options available to the individual and be accountable as an officer of the court for faithful execution of the responsibilities outlined in this section.

(a) To collect relevant information about the individual, including any relevant background, prior behavioral health history, prior records of competency evaluation and restoration treatment, the circumstances of the individual leading up to the current matter before the court, and services available to the individual that would support placement in outpatient restoration, diversion, or some combination of these;

(6) 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's connections to community resources, criminal history, and other relevant information necessary for the development of treatment and restoration options for 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 the individual's defense attorney. Any information collected and shared with parties by the forensic navigator shall be used solely for the purposes of assessing an individual's appropriateness for outpatient restoration, diversion, or some combination of these.

(1) When a police officer has reasonable cause to believe that the individual has committed acts constituting a ((nonfelony)) crime ((that is not a serious offense as identified in RCW 10.77.092)), and the individual is known by history or consultation with the behavioral health organization, managed care organization, behavioral health administrative services 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))). Individuals delivered to a crisis stabilization unit pursuant to this section may be held by the facility for a period of up to twelve hours. The individual must be examined by a mental health professional within three hours of arrival;

(b) Take the individual to a triage facility as defined in RCW 71.05.020. An individual delivered to a triage facility which has elected to operate as an involuntary facility may be held up to a period of twelve hours. The individual must be examined by a mental health professional within three hours of arrival;

(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 ((within a reasonable period of time after the))prior 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))must be guided by ((standards))local law enforcement diversion guidelines for behavioral health developed and mutually agreed upon with the prosecuting authority((, which))with an opportunity for consultation and comment by the defense bar and disability community. These guidelines must address, at a minimum, the length, seriousness, and recency of the known criminal history of the individual, the mental health history of the individual, ((where))if available, the opinions of a mental health professional, if available, and the circumstances surrounding the commission of the alleged offense. The guidelines must include a process for clearing outstanding warrants or referring the individual for assistance in clearing outstanding warrants, if any, and issuing a new court date, if appropriate, without booking or incarcerating the individual or disqualifying him or her from referral to treatment under this section, and define the circumstances under which such action 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. The agreement is inadmissible in any criminal or civil proceeding. The agreement does not create immunity from prosecution for the alleged criminal activity.

(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)))(i) Shall commit the defendant to the custody of the secretary who shall place such defendant in an appropriate facility of the department for ((evaluation and treatment))a period of up to ninety days for inpatient competency restoration, which 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; or

(((B)))(ii) May alternatively order the defendant to undergo ((evaluation and treatment))outpatient competency restoration at some other facility or provider as determined by the department, or under the guidance and control of a professional person. The facilities or providers may include community mental health providers or other local facilities that contract with the department and are willing and able to provide treatment under this section. ((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.

(B) If the court orders outpatient competency restoration, the court shall modify conditions of release as needed to authorize the department to place the person in approved housing, which may include access to supported housing, affiliated with a contracted outpatient competency restoration program. 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. The period for outpatient competency restoration must be for up to sixty days, notwithstanding (b) of this subsection.

(C) If the defendant fails to comply with the terms and conditions of his or her conditional release or is in need of additional care and treatment such that outpatient restoration treatment is no longer appropriate, the department shall remove the defendant from the outpatient restoration program and place the defendant in an appropriate facility of the department for inpatient competency restoration. The department shall notify the court and parties of the change in placement before the close of the next judicial day. The court shall schedule a hearing within five days to determine whether the court should reinstate or modify the defendant's conditional release or order the defendant into inpatient competency restoration. The standard of proof at the hearing shall be a preponderance of the evidence. To order a defendant to inpatient competency restoration, the court shall consider:

(D) If after a hearing, the court finds that outpatient competency restoration treatment is no longer an appropriate placement for the defendant, the court shall commit the defendant to the custody of the secretary who shall place such defendant in an appropriate facility of the department for inpatient competency restoration treatment for no longer than the remaining time period authorized in the original court order, in addition to reasonable time for transport to or from the facility.

(E) If after a hearing, the court finds that outpatient competency restoration treatment continues to be an appropriate placement for the defendant, the defendant shall be released to continue his or her outpatient competency restoration treatment for no longer than the remaining time period authorized in the original court order, in addition to reasonable time for transport to or from the facility.

(F) Nothing in this section shall prevent an outpatient competency restoration treatment provider from referring a defendant to a mental health professional for evaluation and treatment for initial detention proceedings under chapter 71.05 RCW. The provider shall immediately notify the parties if the defendant is detained under chapter 71.05 RCW.

(G) 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, or the court has identified an appropriate professional person who will provide guidance and control for outpatient restoration.

(b) Except as provided in (a)(ii)(B) of this subsection, 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. The forty-five day period 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.

(c) If the court determines 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 subsection (4) of this section.

(3) If the court finds by a preponderance of the evidence that a defendant charged with a felony is incompetent, the court shall have the option of extending the order of commitment or alternative treatment for an additional period of ninety days, but the court must at the time of extension set a date for a prompt hearing to determine the defendant's competency before the expiration of the second restoration period. The defendant, the defendant's attorney, or the prosecutor has the right to demand that the hearing be before a jury. No extension shall be ordered for a second or third restoration period as provided in subsection (4) of this section if the defendant's incompetence has been determined by the secretary to be solely the result of a developmental disability which is such that competence is not reasonably likely to be regained during an extension. The ninety-day period 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.

(4) For persons charged with a felony, at the hearing upon the expiration of the second restoration period or at the end of the first restoration period in the case of a defendant with a developmental disability, if the jury or court finds that the defendant is incompetent, or if the court or jury at any stage finds that the defendant is incompetent and the court determines that the defendant is unlikely to regain competency, the charges shall be dismissed without prejudice, and the court shall order the defendant be committed to a state hospital as defined in RCW 72.23.010 for up to seventy-two hours starting from admission to the facility, excluding Saturdays, Sundays, and holidays, for evaluation for the purpose of filing a civil commitment petition under chapter 71.05 RCW. The criminal charges shall not be dismissed if the court or jury finds that: (a) The defendant (i) is a substantial danger to other persons; or (ii) presents a substantial likelihood of committing criminal acts jeopardizing public safety or security; and (b) there is a substantial probability that the defendant will regain competency within a reasonable period of time. In the event that the court or jury makes such a finding, the court may extend the period of commitment for up to an additional six months. The six-month period 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.

(a) Shall dismiss proceedings 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, unless the prosecutor objects to the dismissal and provides notice of a motion for an order for competency restoration. 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 within five days on whether to dismiss the proceedings. The prosecuting attorney must serve upon the defendant's attorney any evidence within twenty-four hours of requesting a hearing.

(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 may consider prior criminal history, prior history in treatment, prior history of violence, the quality and severity of the pending charges, and any history that suggests whether or not competency restoration treatment is likely to be successful. If the prosecuting attorney proves by a preponderance of the evidence that there is a compelling state interest in ordering restoration, then the court shall order competency restoration in accordance with subsection (2)(a) of this section.

(ii) May alternatively order the defendant to undergo ((evaluation and treatment))outpatient competency restoration at some other facility or provider as determined by the department, or under the guidance and control of a professional person. The facilities or providers may include community mental health providers or other local facilities that contract with the department and are willing and able to provide treatment under this section. ((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.))

(D) If after a hearing, the court finds that outpatient competency restoration treatment is no longer an appropriate placement for the defendant, the court shall commit the defendant to the custody of the secretary who shall place such defendant in an appropriate facility of the department for inpatient competency restoration treatment. The inpatient competency restoration period following a change in placement under this subsection must be the same length as if the defendant had been initially placed into inpatient competency restoration and any time periods spent in outpatient competency restoration must be disregarded.

(b) Except as provided in (a)(ii)(B) of this subsection, 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 court shall compute this total period and include its computation in the order. The fourteen-day period plus any unused time of the evaluation under RCW 10.77.060 shall)). 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((;

(((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. The evaluation may be conducted in any location chosen by the professional.

(ii) If the defendant was in custody and not on conditional release at the time of dismissal, the defendant shall be detained and sent to an evaluation and treatment facility for up to seventy-two hours, excluding Saturdays, Sundays, and holidays, for evaluation for purposes of filing a petition under chapter 71.05 RCW. The seventy-two hour period shall commence upon the next nonholiday weekday following the court order and shall run to the end of the last nonholiday weekday within the seventy-two-hour period.

The court may stay or dismiss proceedings 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. 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.

The department must collaborate with the health care authority to ensure that intensive services consistent with section 2(3) of this act are available for individuals involved with the criminal justice system in every county or region in which a forensic navigator is contracted or employed to provide services, on a timeline consistent with the phased implementation of the settlement agreement in A.B., by and through Trueblood, et al., v. DSHS, et al., No. 15-35462 ("Trueblood").