BILL REQ. #:  S-3940.1 



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SENATE BILL 6358
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State of Washington58th Legislature2004 Regular Session

By Senators Hargrove and Stevens

Read first time 01/19/2004.   Referred to Committee on Children & Family Services & Corrections.



     AN ACT Relating to improved communication regarding offenders with treatment orders; amending RCW 71.05.445; reenacting and amending RCW 71.05.390; adding a new section to chapter 71.05 RCW; adding a new section to chapter 10.77 RCW; creating new sections; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature makes the following findings:
     (1) In some cases, there is confusion over whether the cause of a person's mental disorder can make that person ineligible for involuntary treatment;
     (2) Some offenders under supervision in the community are concurrently subject to court ordered mental health or chemical dependency treatment;
     (3) Some offenders under supervision in the community are subject to department of corrections ordered mental health or substance abuse treatment;
     (4) The department of corrections frequently does not know that an offender is subject to court ordered treatment;
     (5) Treatment providers frequently do not know that a client is subject to department of corrections supervision;
     (6) There is confusion about the extent to which information about an offender subject to both treatment orders and supervision by the department of corrections may be shared;
     (7) When information is not shared, the lack of information creates gaps in enforcement both of the court order and the offender's conditions of supervision; and
     (8) When there are gaps in enforcement, there is an increased risk to public safety.
     Consequently, the legislature intends to clarify the standards for commitment and improve the coordination between the department of corrections and mental health and chemical dependency treatment providers to enhance public safety by improving compliance with treatment and supervision orders and by providing both treatment providers and the department of corrections with more current, complete information about the offender's status.

NEW SECTION.  Sec. 2   A new section is added to chapter 71.05 RCW to read as follows:
     When a county designated mental health professional has determined that a person has a mental disorder, the cause of the person's mental disorder shall not make the person ineligible for commitment under this chapter.

NEW SECTION.  Sec. 3   A new section is added to chapter 10.77 RCW to read as follows:
     When a county designated mental health professional or a professional person has determined that a person has a mental disorder, the cause of the person's mental disorder shall not make the person ineligible for commitment under chapter 71.05 RCW.

Sec. 4   RCW 71.05.445 and 2002 c 39 s 2 are each amended to read as follows:
     (1) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.
     (a) "Information related to mental health services" means all information and records compiled, obtained, or maintained in the course of providing services to either voluntary or involuntary recipients of services by a mental health service provider. This may include documents of legal proceedings under this chapter or chapter 71.34 or 10.77 RCW, or somatic health care information.
     (b) "Mental health service provider" means a public or private agency that provides services to persons with mental disorders as defined under RCW 71.05.020 and receives funding from public sources. This includes evaluation and treatment facilities as defined in RCW 71.05.020, community mental health service delivery systems, or community mental health programs as defined in RCW 71.24.025, and facilities conducting competency evaluations and restoration under chapter 10.77 RCW.
     (2) Information related to mental health services delivered to a person subject to chapter 9.94A or 9.95 RCW shall be released, upon request, by a mental health service provider to department of corrections personnel for whom the information is necessary to carry out the responsibilities of their office. The information must be provided only for the purpose of completing presentence investigations, supervision of an incarcerated ((person)) offender or offender under supervision, planning for and provision of supervision of ((a person)) an offender, or assessment of ((a person's)) an offender's risk to the community. The request ((shall be)) may be oral or in writing and shall not require the consent of the subject of the records. If an oral request is made, it must be confirmed by a written request. For purposes of this section, a written request includes requests made by e-mail or facsimile so long as the requesting person at the department of corrections is clearly identified.
     (3)(a) When a mental health service provider conducts its initial assessment for a person receiving court ordered treatment, the service provider shall inquire and shall be told whether the person is subject to supervision by the department of corrections.
     (b) When a person receiving court ordered treatment or treatment ordered by the department of corrections discloses to his or her mental health service provider that he or she is subject to supervision by the department of corrections, the treatment provider shall notify the department that he or she is treating the offender and shall notify the offender that his or her community corrections officer will be notified of the treatment. This disclosure shall not require consent of the offender.
     (c) When the department of corrections is determining an offender's risk management category for purposes of supervision in the community, the department shall inquire and shall be told whether the offender is subject to court ordered treatment for mental health services or chemical dependency services. An offender's failure to inform the department of corrections of court ordered treatment is a violation of the conditions of supervision if the offender is in the community and an infraction if the offender is in confinement, and is subject to sanctions.
     (d) When an offender discloses that he or she is subject to court ordered mental health or chemical dependency services, the department shall provide the mental health services provider or chemical dependency treatment provider with a written request for information. A single request shall be valid for the duration of the offender's supervision in the community. Disclosures made pursuant to a department of corrections request shall not require consent of the offender.
     (4) The information to be released to the department of corrections shall include all relevant records and reports, as defined by rule, necessary for the department of corrections to carry out its duties, including those records and reports identified in subsection (2) of this section.
     (((4))) (5) The department and the department of corrections, in consultation with regional support networks, mental health service providers as defined in subsection (1) of this section, mental health consumers, and advocates for persons with mental illness, shall adopt rules to implement the provisions of this section related to the type and scope of information to be released. These rules shall:
     (a) Enhance and facilitate the ability of the department of corrections to carry out its responsibility of planning and ensuring community protection with respect to persons subject to sentencing under chapter 9.94A or 9.95 RCW, including accessing and releasing or disclosing information of persons who received mental health services as a minor; and
     (b) Establish requirements for the notification of persons under the supervision of the department of corrections regarding the provisions of this section.
     (((5))) (6) The information received by the department of corrections under this section shall remain confidential and subject to the limitations on disclosure outlined in chapter 71.05 RCW, except as provided in RCW 72.09.585.
     (((6))) (7) No mental health service provider or individual employed by a mental health service provider shall be held responsible for information released to or used by the department of corrections under the provisions of this section or rules adopted under this section except under RCW 71.05.670 and 71.05.440.
     (((7))) (8) Whenever federal law or federal regulations restrict the release of information contained in the treatment records of any patient who receives treatment for alcoholism or drug dependency, the release of the information may be restricted as necessary to comply with federal law and regulations.
     (((8))) (9) This section does not modify the terms and conditions of disclosure of information related to sexually transmitted diseases under chapter 70.24 RCW.

Sec. 5   RCW 71.05.390 and 2000 c 94 s 9, 2000 c 75 s 6, and 2000 c 74 s 7 are each reenacted and amended to read as follows:
     Except as provided in this section, the fact of admission and all information and records compiled, obtained, or maintained in the course of providing services to either voluntary or involuntary recipients of services at public or private agencies shall be confidential.
     Information and records may be disclosed only:
     (1) In communications between qualified professional persons to meet the requirements of this chapter, in the provision of services or appropriate referrals, or in the course of guardianship proceedings. The consent of the patient, or his or her guardian, shall be obtained before information or records may be disclosed by a professional person employed by a facility unless provided to a professional person: (a) Employed by the facility; (b) who has medical responsibility for the patient's care; (c) who is a county designated mental health professional; (d) who is providing services under chapter 71.24 RCW; (e) who is employed by a state or local correctional facility where the person is confined; or (f) who is providing evaluation, treatment, or follow-up services under chapter 10.77 RCW.
     (2) When the communications regard the special needs of a patient and the necessary circumstances giving rise to such needs and the disclosure is made by a facility providing outpatient services to the operator of a care facility in which the patient resides.
     (3) When the person receiving services, or his or her guardian, designates persons to whom information or records may be released, or if the person is a minor, when his or her parents make such designation.
     (4) To the extent necessary for a recipient to make a claim, or for a claim to be made on behalf of a recipient for aid, insurance, or medical assistance to which he or she may be entitled.
     (5) For either program evaluation or research, or both: PROVIDED, That the secretary adopts rules for the conduct of the evaluation or research, or both. Such rules shall include, but need not be limited to, the requirement that all evaluators and researchers must sign an oath of confidentiality substantially as follows:

     "As a condition of conducting evaluation or research concerning persons who have received services from (fill in the facility, agency, or person) I, . . . . . . . . ., agree not to divulge, publish, or otherwise make known to unauthorized persons or the public any information obtained in the course of such evaluation or research regarding persons who have received services such that the person who received such services is identifiable.
     I recognize that unauthorized release of confidential information may subject me to civil liability under the provisions of state law.

 /s/ . . . . . . . . . . . . "

     (6) To the courts as necessary to the administration of this chapter or to a court ordering an evaluation or treatment under chapter 10.77 RCW solely for the purpose of preventing the entry of any evaluation or treatment order that is inconsistent with any order entered under this chapter.
     (7) To law enforcement officers, public health officers, or personnel of the department of corrections or the indeterminate sentence review board for persons who are the subject of the records and who are committed to the custody of the department of corrections or indeterminate sentence review board which information or records are necessary to carry out the responsibilities of their office. Except for dissemination of information released pursuant to RCW 71.05.445 for the purpose of completing presentence investigations, supervision of an incarcerated offender or offender under supervision, planning for and provision of supervision of an offender, or assessment of an offender's risk to the community, or pursuant to RCW 71.05.425 and 4.24.550, regarding persons committed under this chapter under RCW 71.05.280(3) and 71.05.320(2)(c) after dismissal of a sex offense as defined in RCW 9.94A.030, the extent of information that may be released is limited as follows:
     (a) Only the fact, place, and date of involuntary commitment, the fact and date of discharge or release, and the last known address shall be disclosed upon request; and
     (b) The law enforcement and public health officers or personnel of the department of corrections or indeterminate sentence review board shall be obligated to keep such information confidential in accordance with this chapter; and
     (c) Additional information shall be disclosed only after giving notice to said person and his or her counsel and upon a showing of clear, cogent, and convincing evidence that such information is necessary and that appropriate safeguards for strict confidentiality are and will be maintained. However, in the event the said person has escaped from custody, said notice prior to disclosure is not necessary and that the facility from which the person escaped shall include an evaluation as to whether the person is of danger to persons or property and has a propensity toward violence; and
     (d) Disclosure under this subsection is mandatory for the purposes of the health insurance portability and accountability act.
     (8) To the attorney of the detained person.
     (9) To the prosecuting attorney as necessary to carry out the responsibilities of the office under RCW 71.05.330(2) and 71.05.340(1)(b) and 71.05.335. The prosecutor shall be provided access to records regarding the committed person's treatment and prognosis, medication, behavior problems, and other records relevant to the issue of whether treatment less restrictive than inpatient treatment is in the best interest of the committed person or others. Information shall be disclosed only after giving notice to the committed person and the person's counsel.
     (10) To appropriate law enforcement agencies and to a person, when the identity of the person is known to the public or private agency, whose health and safety has been threatened, or who is known to have been repeatedly harassed, by the patient. The person may designate a representative to receive the disclosure. The disclosure shall be made by the professional person in charge of the public or private agency or his or her designee and shall include the dates of commitment, admission, discharge, or release, authorized or unauthorized absence from the agency's facility, and only such other information that is pertinent to the threat or harassment. The decision to disclose or not shall not result in civil liability for the agency or its employees so long as the decision was reached in good faith and without gross negligence.
     (11) To appropriate law enforcement agencies, upon request, all necessary and relevant information in the event of a crisis or emergent situation that poses a significant and imminent risk to the public. The decision to disclose or not shall not result in civil liability for the mental health service provider or its employees so long as the decision was reached in good faith and without gross negligence.
     (12) To the persons designated in RCW 71.05.425 for the purposes described in that section.
     (13) Civil liability and immunity for the release of information about a particular person who is committed to the department under RCW 71.05.280(3) and 71.05.320(2)(c) after dismissal of a sex offense as defined in RCW 9.94A.030, is governed by RCW 4.24.550.
     (14) To a patient's next of kin, guardian, or conservator, if any, in the event of death, as provided in RCW 71.05.400.
     (15) To the department of health for the purposes of determining compliance with state or federal licensure, certification, or registration rules or laws. However, the information and records obtained under this subsection are exempt from public inspection and copying pursuant to chapter 42.17 RCW.
     The fact of admission, as well as all records, files, evidence, findings, or orders made, prepared, collected, or maintained pursuant to this chapter shall not be admissible as evidence in any legal proceeding outside this chapter without the written consent of the person who was the subject of the proceeding except in a subsequent criminal prosecution of a person committed pursuant to RCW 71.05.280(3) or 71.05.320(2)(c) on charges that were dismissed pursuant to chapter 10.77 RCW due to incompetency to stand trial or in a civil commitment proceeding pursuant to chapter 71.09 RCW. The records and files maintained in any court proceeding pursuant to this chapter shall be confidential and available subsequent to such proceedings only to the person who was the subject of the proceeding or his or her attorney. In addition, the court may order the subsequent release or use of such records or files only upon good cause shown if the court finds that appropriate safeguards for strict confidentiality are and will be maintained.

NEW SECTION.  Sec. 6   (1) The department of social and health services and the department of corrections shall develop a training plan for department employees, contractors, and necessary mental health service providers and chemical dependency treatment providers covering the information sharing processes for offenders with treatment orders and terms of supervision in the community.
     (2) The department of corrections and the department of social and health services, together with the Washington association of prosecuting attorneys shall develop a model for multidisciplinary case management and release planning of offenders classified as having high resource needs in multiple service areas.

NEW SECTION.  Sec. 7   The department of social and health services shall assess the current and needed capacity for crisis response and ongoing treatment for persons in need of treatment for mental disorders and chemical dependency. In addition to considering the demand for persons with either a mental disorder or chemical dependency, the assessment shall consider the demand for services for mentally ill offenders, and persons with co-occurring disorders, mental disorders caused by traumatic brain injury or dementia, and drug induced psychosis. The department shall provide the appropriate committees of the legislature with its assessment by December 1, 2004.

NEW SECTION.  Sec. 8   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 9   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.

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