Competency Evaluation and Restoration.
In a criminal proceeding where there is a doubt as to the defendant's competency to stand trial, the court may order a competency evaluation only if the court first reviews the allegations of incompetency and makes a determination that there are sufficient facts to form a genuine doubt as to competency based on information provided by counsel, judicial colloquy, or direct observation of the defendant.  Nothing in this process requires waiver of attorney-client privilege.  Defense counsel may file a declaration stating a belief that competency evaluation is necessary, and stating the basis on which the defendant is believed to be incompetent, without further detail required.  

If an evaluation is ordered for a defendant charged with a serious traffic offense or felony version of a serious traffic offense, the prosecutor may move to modify the defendant's conditions of release to prohibit the defendant from driving during the pendency of the competency evaluation period.  If the charges are stayed based on the defendant's incompetency, the court may enter an order for the Department of Licensing (DOL) to revoke the defendant's driver's license for one year.  When the court finds that competency has been restored, the court must enter an order for the DOL to reinstate the defendant's driver's license.  Upon motion of the defendant, the court may order reinstatement of the defendant's driver's license before the end of one year for good cause. 

A competency evaluation report must include an opinion as to restorability if the defendant suffers from an intellectual or developmental disability, traumatic brain injury, or dementia.  If an individual is found incompetent due to an intellectual or developmental disability or dementia, the evaluator must notify the DSHS, which must refer the individual to the Developmental Disabilities Administration (DDA) or Aging and Long-Term Support Administration (ALTSA) for review of eligibility for services, and information about available services must be provided to the forensic navigator.

If an expert or professional person is unable to complete a competency evaluation after two scheduling attempts, the DSHS must submit a report to the court and parties and include a date and time for another evaluation at least four weeks later.  The court must provide the defendant with notice of the date and time of the evaluation, and if the defendant fails to appear, the court must issue a warrant for failure to appear and recall the order for competency evaluation.

Competency restoration procedures for a defendant charged with a "qualifying class C felony" are revised.  "Qualifying class C felony" means any class C felony except:  Assault in the third degree where bodily harm occurred; felony Physical Control of a Vehicle; felony Hit and Run—Injury; and any class C felony offense with a domestic violence designation.  When a person charged with a qualifying class C felony is found incompetent and the court finds that there is a diversion program recommended by a forensic navigator, the court must dismiss the charges without prejudice and refer the person to the diversion program, except that if the court has previously determined that a diversion program is not appropriate, the forensic navigator does not recommend diversion, or the prosecutor objects to the dismissal, then the court must schedule a hearing within seven days to determine if there is a compelling state interest in ordering competency restoration.

 
If the court finds a compelling state interest, the court must order the defendant to receive outpatient competency restoration consistent with the recommendation of the forensic navigator, unless the court finds that an order for outpatient competency restoration is inappropriate, in which case the court shall order inpatient restoration.  For a defendant charged with a qualifying class C felony the maximum time allowed for competency restoration is 45 days if the defendant is referred for inpatient competency restoration, or 90 days if the defendant is referred for outpatient competency restoration.

For any defendant with a felony charge admitted for competency restoration with a court order for involuntary medication in place, if the defendant is found incompetent to stand trial following that period of restoration, charges must be dismissed without prejudice and the defendant must be committed to the DSHS for evaluation under the ITA. 

The nonfelony offenses included as "serious offenses" for purposes of eligibility for competency restoration services and involuntary medication orders are limited to:  any gross misdemeanor offense with a domestic violence designation or a sexual motivation allegation; and gross misdemeanor violations of Driving Under the Influence or Physical Control of a Vehicle.  If a defendant charged with a nonfelony offense is found incompetent to stand trial, and the defendant is subject to an order under the ITA or proceedings under the ITA have been initiated, there is a rebuttable presumption that the state's compelling interest in competency restoration has been satisfied.  If a compelling state interest in pursuing competency restoration is found, the court must order outpatient competency restoration consistent with the forensic navigator's recommendations unless the court finds outpatient competency restoration inappropriate.
 
If the court orders inpatient competency restoration, the court's order must specify whether the DSHS has authority to change the defendant's placement to a step-down facility or an OCRP if clinically appropriate given the defendant's progress in restoration services.  If a court orders a commitment for competency restoration or civil conversion, the commitment is to the DSHS for placement in a facility operated by or contracted by the DSHS, rather than to a state hospital. 

Outpatient competency restoration programs must include access to a prescriber. 

Forensic Navigators.
The duties of a forensic navigator are expanded to include:  assessing the individual for appropriateness for assisted outpatient treatment (AOT); and providing regular updates to the court and parties on the status of the individual's participation in diversion services, and responding to inquiries of the parties about treatment status.  When an individual is ordered to receive community outpatient restoration, the forensic navigator must assess the individual for the appropriateness of AOT under the ITA, and coordinate the initiation of an AOT order if appropriate as part of a diversion program plan.  If the individual is an American Indian or Alaska Native who receives medical, behavioral health, or other supportive services from a Washington tribe, the forensic navigator must notify and coordinate with the tribe and Indian health care providers.
 
In counties with a forensic navigator program, the court must appoint a forensic navigator for any defendant charged with a qualifying class C felony or a nonfelony who has had two or more competency evaluations in the preceding 24 months on separate charges or cause numbers.  The forensic navigator must meet, interview, and observe the defendant and determine the defendant's willingness to engage with diversion services.  Where diversion is recommended, the forensic navigator must provide a diversion program plan to the parties, which may include a referral for AOT.  If the parties agree on the diversion program, the prosecutor must request dismissal of the charges.  If the parties do not agree, the defense may move for an order dismissing the charges and referring the defendant to services in the diversion plan.  The court must grant the motion if it finds that the defendant is amenable to the services and can safely receive services in the community.  A forensic navigator must be assigned to assist the person for up to six months while engaging in the services, and the forensic navigator must provide monthly status updates to the court and the parties. 
 
Clinical Intervention Specialists and Jails.
Jails must allow clinical intervention specialists to have access to individuals who are referred to receive competency evaluation or restoration services, and to all records related to the health or conduct of the person while incarcerated.  A clinical intervention specialist is a licensed professional with prescribing authority who is employed or contracted by the DSHS to provide direct services, oversight, and monitoring of the behavioral health status of in-custody defendants referred for competency evaluation or restoration services. 
 
Clinical intervention specialists must work collaboratively with jail health services to ensure appropriate prescriptions, medication compliance monitoring, and access to supportive behavioral health services for the person.  Clinical intervention specialists must also coordinate with forensic navigators and the DSHS to assist in making recommendations for appropriate placements, including participation in an OCRP or diversion program.  A clinical intervention specialist must notify the DSHS if an individual appears to have stabilized and a new competency evaluation is appropriate to reassess the individual's need for competency restoration treatment.

A jail or juvenile detention facility may not discontinue any drug prescribed to a person to treat a serious mental illness by a state hospital, other state facility, behavioral health agency, or medical provider, if the individual is medically stable on the drug.  The jail may not substitute a different drug in the same therapeutic class unless:  the drug is a generic version of a name brand drug which is chemically identical to the name brand drug; or the drug cannot be prescribed due to a drug recall or removal from the market, or medical evidence indicating the drug has no therapeutic effect.  This includes situations in which the person returns to a jail or juvenile detention facility directly after undergoing treatment in a state hospital, behavioral health agency, OCRP, or prison.  The DSHS must establish a program to reimburse jails or juvenile detention facilities for the costs of any drugs the jail or juvenile detention facility does not otherwise have available and must continue prescribing for a person who is medically stable on the drug.

When the DSHS seeks a court order authorizing involuntary medication for purposes of competency restoration, the petition must also seek authorization to continue involuntary medication for purposes of maintaining the level of restoration in the jail or juvenile detention facility following the restoration period.

Individuals with an Intellectual or Developmental Disability, Dementia, or Traumatic Brain Injury.
An individual found incompetent to stand trial and not restorable due to an intellectual or developmental disability, dementia, or traumatic brain injury, must not be referred for competency restoration services unless the highest current criminal charge is a violent offense or sex offense.  The DSHS must develop a process for connecting these individuals to available wraparound services and residential supports.  Requirements are specified for individuals who are current clients of the DDA or ALTSA, and for individuals who are not current clients, including connecting the person with the forensic navigator to determine if the person is eligible for any diversion, supportive housing, or case management programs as a Trueblood class member.

The DSHS must offer to transition the individual in services either directly from the jail or as soon as practicable without keeping the person in an inpatient facility for longer than clinically necessary.  If appropriate, the DSHS may return the person to their home or another less restrictive setting, which may include provision of supportive services to help the person remain stable.  The individual is not required to accept DDA, ALTSA, or other diversionary services as a condition of having the criminal case dismissed without prejudice, provided the individual meets the criteria.

Subject to specific funding for this purpose, the DSHS must develop a program with wraparound services and housing supports for persons who have had involvement in the criminal justice system and been found incompetent to stand trial and not restorable based on an intellectual or developmental disability, dementia, or a traumatic brain injury and who do not meet criteria under other programs. 

Other.

Subject to specific funding for this purpose, the Health Care Authority must require programs it contracts with to increase compensation for staff in OCRPs to provide competitive compensation levels to improve recruitment and allow for full implementation of OCRPs.
 
The DSHS must coordinate with cities, counties, hospitals, and other entities to identify locations that may be commissioned or renovated for use in treating persons committed to the DSHS for competency evaluation or restoration, civil conversion, or treatment following acquittal by reason of insanity.  The DSHS may provide capital grants to entities to accomplish these purposes, subject to funding provided for this specific purpose. 

The DSHS must collect data so that information can be retrieved based on unique individuals, their complete Washington criminal history, and referrals for forensic services.

(In support) The state is experiencing a crisis with the Trueblood population.  The goal of the bill is to try to prevent people from becoming Trueblood class members, including by ensuring there is a sufficient basis for ordering an evaluation and by looking at diverting people both prior to competency services or during that process, including by using AOT as an off-ramp from the system.  It also provides options to transfer a person who is in a state hospital to a step-down facility.
 
The forensic system is significantly stressed and the state hospitals are at a crisis point with people on the wait list in larger numbers than ever before seen.  The Legislature has made significant investments, including investing over $2 billion to support forensic beds, forensic navigators, diversion, and other programs.  Yet referrals and wait lists are growing faster than available resources.  It is impossible to keep up with the demand without significant policy changes.  The Governor strongly supports advancing additional diversion and treatment options rather than pursuing competency and further overstressing the system. 
 
Clinical intervention specialists will allow for ongoing behavioral healthcare for folks who are not getting adequate care while waiting in jail.  Prohibiting jails from discontinuing or substituting medications after folks have been stabilized will help avoid repeat cycling through the competency system.  Expansion of the forensic navigator program and incorporating AOT with the competency system will help move people out of the criminal system into an appropriate care model.
 
This bill makes some positive changes, but it will not break loose the log jam of defendants waiting to receive restoration services.  Restoration care is intended to help people stand trial; it does not provide them with comprehensive behavioral healthcare.  Creative strategies are needed to provide appropriate person-centered care to reduce unconstitutional wait times in crowded jails.  It may be necessary to consider changes to the types and levels of offense subject to restoration.

(Opposed) Much more must be done to make a meaningful impact on current restoration wait times.  Class members ordered into restoration are waiting 10 and 11 months or more, and they are experiencing profound suffering on a day-to-day basis.  This crisis is the subject of an upcoming contempt hearing in federal court in which the judge may order significant fines and serious limitations on inpatient restoration.  This bill does not address the demand for restoration services on the front end nor increase capacity for services on the back end.  The state must prioritize who receives inpatient restoration to only the more serious felony cases.  Ordering restoration on a misdemeanor or a low-level felony does not protect public safety nor promote long-term stability.  Requiring a defendant who lacks competence to have an open colloquy on the record risks violating the defendant's constitutional rights.

(Other) Competency restoration is not treatment and does not lead to long-term recovery.  What is needed is diversion of people out of the criminal system and into treatment programs so they do not continue to cycle through the system.  Ending or severely reducing the number of misdemeanor restorations would be a good step.  A significant portion of jail populations are people awaiting competency evaluations or transport for inpatient competency restoration.  Local governments are partners with the state in this process and will need real resources to make this bill implementable at the local level. 
 
Clinical intervention specialists working in the jails are a good change, but the Legislature should make sure that jails do not become co-defendants in the Trueblood lawsuit.  Requiring jails to maintain the same medication the state provides could be extraordinarily expensive.  The state should either provide the medication to the person through the jail or pay for it entirely.  The statute authorizing involuntary medication orders should be amended so that they also apply when the person is transferred to jail.
 
The provision requiring a finding of a genuine doubt as to competency violates the constitutional rights of the accused and defense counsel's obligations.  The license revocation provision has nothing to do with the title of the bill and is in violation of the single subject doctrine.  It also violates equal protection by treating those with mental illness differently.  The bill does not address diverting cases and reducing the number of people undergoing competency restoration services.  Increased availability of OCRPs and diversion programs are needed.