Behavioral Health Services.
The Health Care Authority (HCA) provides medical care services to eligible low-income state residents and their families, primarily through the Medicaid program. While some clients receive services through the HCA on a fee-for-service basis, the large majority receive coverage for medical services through managed care systems. Managed care is a prepaid, comprehensive system for delivering a complete medical benefits package that is available for eligible families, children under age 19, low-income adults, certain disabled individuals, and pregnant women. Since January 1, 2020, all behavioral health services and medical care services have been fully integrated in a managed care health system for most Medicaid clients.
While most Medicaid clients receive behavioral health services through a managed health care system, behavioral health administrative service organizations (BHASO) administer certain behavioral health services that are not covered by the managed health care system within a specific regional service area. There are 10 BHASOs in Washington. The services provided by a BHASO include maintaining continuously available crisis response services, administering services related to the involuntary commitment of adults and minors, coordinating planning for persons transitioning from long-term commitments, maintaining an adequate network of evaluation and treatment services, and providing services to non-Medicaid clients in accordance with contract criteria.
Offenses and Penalties in the Uniform Controlled Substances Act and Related Provisions.
The Uniform Controlled Substances Act regulates the manufacture, distribution, and dispensation of controlled substances. It also criminalizes and prohibits certain conduct related to controlled substances and counterfeit substances. The criminal penalties and infractions for violating the Uniform Controlled Substances Act depend upon the nature of the violation and the type of substance.
A "controlled substance" means a drug or substance included in Schedules I through V, with some exceptions. Drugs and substances are placed on schedules based on their potential for abuse, medical use, and safety. Substances in Schedule I are the most tightly controlled, while those in Schedule V are the least tightly controlled. A "counterfeit substance" is a controlled substance which has been altered to look like a substance produced or distributed by a manufacturer, distributor, or dispenser. Related provisions regulate legend drugs (prescription drugs).
Among others, crimes contained in the Uniform Controlled Substances Act and related provisions include:
State v. Blake.
Under the Uniform Controlled Substances Act, possession of a controlled substance is a strict liability offense, meaning that no mens rea (guilty state of mind) element must be proven in order to convict a person of the offense. In State v. Blake, the Washington Supreme Court held that the strict liability nature of the offense violates the due process clauses of the state and federal constitutions and exceeds the state's police power. The Court invalidated the portion of the statute creating the simple possession crime.
Alternatives to Arrest for Persons with Behavioral Health Disorders.
When a police officer has reasonable cause to believe that an individual has committed a crime, and the individual is known by history or consultation with relevant behavioral health professionals to suffer from a mental disorder, as an alternative to arrest, the arresting officer is authorized and encouraged to take certain actions to facilitate the person receiving treatment services. The officer may take the individual to a crisis stabilization unit or triage facility, or refer the individual to a mental health professional, for evaluation for possible civil commitment proceedings. The officer may also release the individual upon the individual's agreement to voluntarily participate in outpatient treatment. The officer's decision as to whether to refer the individual to treatment in lieu of arrest must be guided by the local law enforcement diversion guidelines for behavioral health developed and mutually agreed upon with the prosecuting authority. If an individual violates an agreement to participate in treatment in place of arrest, and the treatment is no longer appropriate, the provider must inform the law enforcement agency and the original charges may be filed or referred to the prosecutor.
Basic Law Enforcement Training.
The Criminal Justice Training Commission provides basic law enforcement training and educational programs for law enforcement, corrections officers, and other public safety professionals in Washington. Basic law enforcement officer training is required of all law enforcement personnel, with the exception of volunteers and reserve officers. The Basic Law Enforcement Academy consists of a 720-hour program covering a variety of subjects including: criminal law and procedures; traffic enforcement; cultural awareness; communication and writing skills; emergency vehicle operations; firearms; crisis intervention; patrol procedures; criminal investigation; and defensive tactics.
Court Commissioners.
The Washington Constitution authorizes the superior courts to appoint up to three court commissioners in each county. Court commissioners appointed by constitutional authority have the power to perform all the duties of a superior court judge that do not require a trial by jury, and other duties provided by law to aid in the administration of justice. The Legislature has authorized superior courts to appoint additional commissioners who are limited to the authority that they are expressly granted in statute. Criminal commissioners may be appointed in counties with a population of more than 400,000. These commissioners have authority to preside over a variety of preliminary matters in adult criminal cases including arraignments, probable cause determinations, and bail determinations, among other matters.
Release from Confinement.
No person serving a sentence and committed to the custody of the Department of Corrections may leave the confines of the correctional facility, or be released prior to the expiration of the sentence, except under statutorily prescribed circumstances. For example, an incarcerated person may be released prior to the expiration of his or her sentence if the person earns early release time, is given an extraordinary medical placement, or is pardoned.
Substance Use Disorder Services.
Substance Use Recovery Services Plan.
The Health Care Authority (HCA) must establish a substance use recovery services plan (plan) to implement measures that assist persons with substance use disorder in accessing outreach, treatment, and recovery support services. The plan must articulate the manner in which continual, rapid, and widespread access to a comprehensive continuum of care is provided to all persons with substance use disorder.
The HCA must establish the Substance Use Recovery Services Advisory Committee (Advisory Committee) and collaborate with it when developing and implementing the plan. The membership of the Advisory Committee must be reflective of the persons living with substance use disorders. The Advisory Committee membership includes: the Director of the HCA, or the Director's designee to serve as chair and convene the Advisory Committee; four legislators; at least one adult and one youth in recovery from substance use disorder who has experienced criminal legal consequences due to substance use; one expert from the Addictions, Drug, and Alcohol Institute at the University of Washington; one outreach services provider; one substance use disorder treatment provider; one peer recovery services provider; one recovery housing provider; one expert in serving persons with co-occurring substance use disorders and mental health conditions; one expert in anti-racism and equity in health care delivery systems; one employee who provides substance use disorder treatment or services as a member of a labor union representing workers in the behavioral health field; one representative of the Association of Washington Health Plans; one expert in diversion from the criminal legal system to community-based care for persons with substance use disorder; one representative of public defenders; one representative of prosecutors; one representative of sheriffs and police chiefs; one representative of a federally-recognized tribe; and one representative of local governments.
In developing the plan, the HCA must give due consideration to the recommendations of the Advisory Committee. If the HCA finds that any of the recommendations are not feasible, it must notify the Advisory Committee and request refinement or modification of the recommendations. The Advisory Committee is also responsible for monitoring the implementation of the plan.
The plan must consider:
The plan must give due consideration to persons with co-occurring substance use disorders and mental health conditions, the needs of youth, and include specified substance use disorder services. The services must be made available in or accessible to all jurisdictions, must be equitably distributed across urban and rural settings, and, if possible, made available on-demand through innovative rapid response models.
The HCA must submit a preliminary report to the Governor and the Legislature by December 1, 2021, and the final plan by December 1, 2022. The HCA must adopt rules in accordance with the Advisory Committee's recommendations and enter into contracts with providers to implement the plan by December 1, 2023. In consultation with the Advisory Committee, the HCA must submit a report on the implementation of the plan to the Legislature and the Governor by December 1 of each year, beginning in 2023.
Recovery Navigator Program.
Each behavioral health administrative services organization (BHASO) must establish a recovery navigator program to provide community-based outreach, intake, assessment, connection to services, and, as appropriate, long-term intensive case management and recovery coaching services to youth and adults with substance use disorder, including persons with co-occurring substance use disorder and mental health conditions, who are referred to the recovery navigator program. Subject to appropriated amounts, the HCA must provide funding to BHASOs to develop their recovery navigator programs according to plans developed by each BHASO. The HCA must establish uniform standards for each BHASO to follow in establishing its recovery navigator program. Recovery navigator program standards must be modelled upon the law enforcement assisted diversion program and address project management, field engagement, biopsychosocial assessment, intensive case management and care coordination, stabilization housing, and legal system coordination. The recovery navigator program must accept referrals from a range of sources, beyond only law enforcement, including self-referrals, family members, emergency department personnel, persons engaged with homeless individuals living unsheltered or in encampments, fire department personnel, emergency medical service personnel, community-based organizations, the business community, harm reduction program personnel, faith-based organizations, and other sources within the criminal legal system. Each BHASO must have a substance use disorder regional administrator to manage its recovery navigator program, including maintaining sufficient staff with appropriate training.
Enhanced Substance Use Disorder Services.
Subject to appropriated amounts, the HCA must establish several funding programs.
The HCA must establish a grant program that provides: (1) treatment services to low-income individuals with substance use disorder who are not eligible for medical assistance, with priority to very low-income individuals; and (2) treatment services that are not eligible for federal matching funds to individuals enrolled in medical assistance. Under the grant program, the HCA must consult with BHASOs, managed care organizations, and regional behavioral health providers to adopt regional standards to meet the region's need for opioid use disorder treatment programs, low-barrier buprenorphine clinics, outpatient substance use disorder treatment, withdrawal management services, secure withdrawal management and stabilization services, inpatient substance use disorder treatment service, inpatient co-occurring disorder treatment services, and behavioral health crisis walk-in and drop-off services. The grants must be used to reimburse providers for services and may be used to provide assistance to organizations to establish or expand services to meet regional standards. The HCA must establish the regional standards, subject to appropriated amounts, by January 1, 2023, and begin distributing funds no later than March 1, 2023.
The HCA must establish a program to provide funds to increase access to recovery support services for persons in recovery from substance use disorder including persons with co-occurring substance use disorders and mental health conditions. Under the program, the HCA must consult with BHASOs, managed care organizations, regional behavioral health providers, and regional community organizations that support individuals in recovery from substance use disorder to adopt a regional expanded recovery plan. The plan must provide sufficient access for youth and adults to meet the region's need for recovery housing; employment pathways, support, and training; education pathways; recovery coaching and substance use disorder peer support; social connectedness initiatives; family support services; technology-based recovery support services; transportation assistance; and legal support services. The funds must be used to reimburse providers for services and may be used to provide assistance to organizations to establish or expand services to meet regional standards. The HCA must establish the regional standards, subject to appropriated amounts, by January 1, 2023, and begin distributing funds no later than March 1, 2023.
The HCA must establish a homeless outreach stabilization transition program to expand access to modified assertive community treatment services to people who are experiencing homelessness and are living with serious substance use disorders or co-occurring substance use disorders and mental health conditions that are at an acuity level that creates a barrier to accessing and receiving conventional behavioral health services and outreach models. The funds must be used to reimburse organizations for the provision of outreach services and may be used to assist organizations to establish or expand services to create a homeless outreach stabilization transition program. The HCA must establish one or more homeless outreach stabilization transition programs by January 1, 2024, and begin distributing funds no later than March 1, 2024.
The HCA must establish a project for psychiatric outreach to the homeless program to expand access to behavioral health medical services for people who are experiencing homelessness or are living in permanent supportive housing and would be at risk of homelessness without access to appropriate services. The funds must be used to reimburse organizations for the provision of medical services to individuals who are living in recovery from substance use disorders, co-occurring substance use and mental health conditions, or other behavioral and physical health conditions. The HCA must establish one or more projects for psychiatric outreach to the homeless programs by January 1, 2024, and begin distributing funds no later than March 1, 2024.
The HCA must administer a competitive grant process to broaden existing local community coalition efforts to prevent substance misuse by increasing protective factors and decreasing risk factors.
The HCA must increase contingency management resources for opioid treatment networks that serve people with co-occurring stimulant use and opioid disorders.
In addition, the HCA must to develop a plan for implementing a comprehensive substance misuse prevention effort by January 1, 2024.
Offenses and Penalties in the Uniform Controlled Substances Act and Related Provisions.
Possession of Controlled Substances, Counterfeit Substances, and Legend Drugs.
In order to be convicted of possession of a controlled substance, possession of a counterfeit substance, or possession of a legend drug, the person must have knowingly been in possession of the substance or drug.
Until July 1, 2023, possession of a controlled substance is reclassified from a class C felony to a misdemeanor, and possession of a counterfeit substance is reclassified from a class B or C felony to a misdemeanor. Prosecutors are encouraged to divert cases of possession of a controlled substance, possession of a counterfeit substance, and possession of a legend drug for assessment, treatment, and other services.
On July 1, 2023, the changes to the offenses of possession of a controlled substance, possession of a counterfeit substance, and possession of a legend drug expire, and current law is reinstated.
Drug Paraphernalia.
Use or delivery of drug paraphernalia is no longer a criminal offense if the use or delivery is for the purpose of injecting, ingesting, inhaling, or otherwise introducing a controlled substance into the human body, or for testing, analyzing, packing, or storing the substance.
Alternatives to Arrest.
When law enforcement encounters a person who would otherwise be subject to arrest for possession of a controlled substance, possession of a counterfeit substance, or possession of a legend drug, in lieu of jail booking and referral to the prosecutor, the officer must offer a referral to available assessment and services. If law enforcement agency records reflect that the individual has been diverted to referral for assessment and services at least twice, officers may, but are not required to, make additional diversion efforts.
The provisions outlining alternatives to arrest for persons with mental health disorders are modified to also expressly apply to persons with substance use disorder. Community health providers are among those who may consult with law enforcement about a contacted individual's history. When the officer refers a person for an involuntary treatment evaluation, the person must be examined by a designated crisis responder, rather than a mental health professional. When the officer takes the person to a crisis stabilization unit or triage facility, the person may be examined by either a mental health professional or a substance use disorder professional. In addition to existing referral options, the officer may refer the individual to youth, adult, or geriatric mobile crisis response services, as appropriate, or to an available on-demand provider responsible to receive referrals in lieu of legal system involvement.
The local law enforcement diversion guidelines must take into account the substance use disorder history of the individual and the opinions of a substance use disorder professional, if available. Protocols following violation of an agreement to participate in treatment in place of arrest are changed in several ways, including conditioning the provider's requirement to report a violation to law enforcement upon such referral being consistent with the terms of the program and applicable law, and stating that the case may proceed accordingly unless filing or referring charges is inconsistent with the program.
Basic Law Enforcement Training.
Beginning July 1, 2022, as part of basic law enforcement training, all law enforcement personnel must receive training on law enforcement interaction with persons with substance use disorders, including referral to treatment and recovery services. The training must also be made available to law enforcement agencies, through electronic means, for in-service training.
The training must be developed by the Criminal Justice Training Commission (CJTC) in collaboration with the University of Washington Behavioral Health Institute and agencies that have expertise working with persons with substance use disorders. The CJTC must also examine existing courses that relate to persons with a substance use disorder, and should draw on existing training partnerships with the Washington Association of Sheriffs and Police Chiefs.
The training must replicate field situations as much as possible and must include core instruction in:
State v. Blake-Related Proceedings.
In addition to the purposes authorized in current law, criminal commissioners appointed by superior courts may conduct resentencing hearings and vacate convictions related to the State v. Blake decision. Superior courts may appoint criminal commissioners for this purpose regardless of the population of the county served by the court.
An amended judgment and sentence issued pursuant to State v. Blake is exempt from the general requirement that the defendant's fingerprints are affixed to the judgment and sentence when: (1) there are no additional offenses of conviction from the original judgment and sentence; and (2) the defendant is in custody in a correctional facility. In these circumstances, the amended judgment and sentence must reference the original judgment and sentence and the previously affixed fingerprints.
Release from Confinement.
An incarcerated person may be released from Department of Corrections confinement pursuant to a court order if he or she is entitled to vacation of a conviction or the recalculation of his or her offender score pursuant to State v. Blake and has already served a period of confinement that exceeds his or her new standard range. This provision is deemed not to create a right to release from confinement prior to resentencing.
State v. Blake Reimbursement Account.
The State v. Blake reimbursement account is created. Expenditures from the account may be used only for state and local government costs resulting from the State v. Blake decision and to reimburse individuals for legal financial obligations paid in connection with sentences that have been invalidated as a result of the decision.
Appropriations.
Provides appropriations for the HCA, the Department of Commerce (Commerce), the Administrative Office of the Courts (Office) and the CJTC as follows:
(In support) None.
(Opposed) The current bill draft maintains criminalizing drug possession and there is no need to criminalized drug crimes as society has shown that both criminalization and jailing have led to today's addiction problems. In addition, law enforcement officers do not know the difference between a felony and a misdemeanor offense and will continue to have negative interactions with people.
The medical and religious use of certain drugs has been shown to be helpful to drug addiction. The United States Supreme Court has already ruled that religious protections for some drugs are valid and therefore, it may be beneficial for Washington to include religious protections such as those in law rather than having to come back to relitigate them in the future.
Lastly, it is recommended that an inclusive workgroup be developed to: (1) focus on behavioral health treatment; (2) establish personal use amounts of drug possession; (3) establish an outcome that ensures the least amount of law enforcement contact for certain incidents; and (4) make drug possession an infraction instead of a misdemeanor offense. It is believed that under the bill as written that the people who need the most help will be the most harmed.
(Other) Washington's cities and towns play an essential role in keeping citizens safe, but substance abuse has impacted many communities throughout the state. Washington must make investments that provide more pathways into treatment programs. Science and evidence have shown that incarcerating people for substance abuse disorders does not help and can make situations worse. This bill provides significant investments in treatment however it also creates additional costs and burdens to cities. Currently, municipal and district courts do not have a diversion system and are not set up to act as therapeutic courts. As a result, it is suggested that the increased impacts upon the municipal court system be taken into consideration and fully funded. Other options for consideration include possibly expanding the use of drug courts for serious drug issues or extending the jurisdiction of superior courts until such time municipal courts can develop the expertise, adequate infrastructure, and get the necessary resources deployed to handle this new misdemeanor population.
Simple drug possession should be handled as a public health problem and not as a legal problem. Although some individuals may need treatment many do not. The bill should be revised to allow personalized action in order to ensure treatment placement is available for those individuals that need it. In addition, it is recommended that the bill is amended to require the Health Care Authority to: (1) develop a comprehensive statewide prevention plan; and (2) administer local community coalition prevention grants. Treatment is not an intervention, but a service provided after the fact when a person and their family has already suffered from the results of addiction. This Legislature must ensure that prevention, intervention, and recovery services are available in communities, and that law enforcement officers are empowered to make meaningful responses to the presence of controlled substances in our communities.
It is appreciated that a uniform drug policy has been crafted for the state; however, criminalizing drug possession by young people is likely to be applied in a racially skewed way. It is recommended that criminal penalties not be reinstituted for young people. However, to the extent that drug possession remains a crime, the diversion language in the bill needs to be adjusted to allow for pre-booking diversion to help alleviate some of the court costs and capacity concerns. In addition, like the felony driving under the influence statutes, it is recommended that a progression of measures for drug crimes be made resulting in possible fourth and subsequent offenses being penalized as felony offenses. Lastly, it is imperative that the state provides sufficient funding to respond to the State v. Blake decision for not only court costs but to also help in providing legal financial obligation refunds.