Second Regular Session
Seventy-third General Assembly
STATE OF COLORADO
REENGROSSED
This Version Includes All Amendments
Adopted in the House of Introduction
LLS NO. 22-1024.01 Michael Dohr x4347
HOUSE BILL 22-1386
House Committees Senate Committees
Judiciary
Appropriations
A BILL FOR AN ACT
C
ONCERNING MEASURES RELATED TO COMPETENCY TO
PROCEED, AND,101
IN CONNECTION THEREWITH , MAKING AN APPROPRIATION .102
Bill Summary
(Note: This summary applies to this bill as introduced and does
not reflect any amendments that may be subsequently adopted. If this bill
passes third reading in the house of introduction, a bill summary that
applies to the reengrossed version of this bill will be available at
http://leg.colorado.gov
.)
Under current law in a dispute over a defendant's competency, a
party may request a second evaluation of the defendant. The bill requires
that if a second evaluation is completed and restoration is ordered, the
court shall make the second evaluation available to the department of
human services (department).
The bill permits a defendant to be placed in the department's
HOUSE
3rd Reading Unamended
April 29, 2022
HOUSE
Amended 2nd Reading
April 28, 2022
HOUSE SPONSORSHIP
Amabile and Soper, Bacon, Bernett, Bird, Bockenfeld, Boesenecker, Cutter, Esgar,
Gonzales-Gutierrez, Herod, Hooton, Jodeh, Kipp, Lindsay, Lontine, McCluskie, McCormick,
Michaelson Jenet, Ricks, Weissman, Young
SENATE SPONSORSHIP
Hansen and Gardner,
Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.
Capital letters or bold & italic numbers indicate new material to be added to existing statute.
Dashes through the words indicate deletions from existing statute. custody for an inpatient competency evaluation if the court finds the
competency report provided by the department does not meet statutory
requirements.
For a defendant whose highest charge is a misdemeanor, with
some exceptions, the bill requires the court to order outpatient restoration
services and grant the defendant a personal recognizance bond unless the
defendant meets certification criteria or the court finds by clear and
convincing evidence that extraordinary circumstances exist that make
release inappropriate and that inpatient restoration services are
appropriate.
If the defendant is in custody and the recommendation is that
inpatient restoration services are not clinically appropriate to restore the
defendant to competency, the bill directs the court to consider releasing
the defendant on bond. The bill limits outpatient restoration services to a
defendant or juvenile who is a resident of Colorado and requires the
services be provided in Colorado.
The bill eliminates the requirement to opine on whether there is a
substantial probability that the defendant will be restored to competency
and remain competent with the use of medication or not remain
competent without the use of forced medication.
After the court has conducted at least 4 competency reviews, the
bill requires the court to conduct a competency review every 91 days. The
bill requires the court to dismiss the defendant's case if there is not a
substantial probability that the defendant will be restored to competency
in the reasonably foreseeable future.
Under current law when a court determines that an adult defendant
is incompetent to proceed and orders the defendant to undergo restoration
treatment, any claim of privilege or confidentiality by the defendant is
deemed waived. The bill creates the same waiver for a juvenile defendant
who is determined to be incompetent to proceed and is ordered to undergo
restoration treatment. A court may order a restoration progress review
hearing for a juvenile defendant at any time on the motion of any party or
the court. The bill requires that when a court orders a restoration to
competency evaluation for a juvenile that the evaluation be completed by
the department.
Be it enacted by the General Assembly of the State of Colorado:1
SECTION 1. In Colorado Revised Statutes, 16-8.5-103, amend2
(4) as follows:3
16-8.5-103. Determination of competency to proceed. (4) If a4
party requests a second evaluation, any pending requests for a hearing5
1386-2- must be continued until the receipt of the second evaluation report. The1
report of the expert conducting the second evaluation must be completed2
and filed with the court within thirty-five days after the court order3
allowing the second evaluation, unless the time period is extended by the4
court for good cause. I
F A SECOND EVALUATION IS COMPLETED AND5
RESTORATION IS ULTIMATELY ORDERED , THEN THE COURT SHALL MAKE6
THE SECOND EVALUATION AVAILABLE TO THE DEPARTMENT . If the second7
evaluation is requested by the court, it must be paid for by the court.8
SECTION 2. In Colorado Revised Statutes, 16-8.5-105, amend9
(1)(b)(II) as follows:10
16-8.5-105. Evaluations, locations, time frames, and report.11
(1) (b) Notwithstanding the provisions of subsection (1)(a) of this12
section, the court may order the defendant placed in the department's13
custody for the time necessary to conduct the inpatient competency14
evaluation if:15
(II) The court finds that an inadequate
THE competency evaluation16
and report has been completed PROVIDED BY THE DEPARTMENT IS17
INSUFFICIENT BECAUSE IT DOES NOT MEET STATUTORY REQUIREMENTS18
PURSUANT TO SUBSECTION (5) OF THIS SECTION or that two or more19
conflicting competency evaluations and reports have been completed; and20
the court finds that an inpatient evaluation is necessary; or21
SECTION 3. In Colorado Revised Statutes, 16-8.5-111, amend22
(2)(b)(II)(C), (2)(d), (2)(f)(I), (2)(f)(II)(A), and (2)(h)(I)(B); and add23
(2)(i) as follows:24
16-8.5-111. Procedure after determination of competency or25
incompetency. (2) If the final determination made pursuant to section26
16-8.5-103 is that the defendant is incompetent to proceed, the court has27
1386
-3- the following options:1
2
(b) (II) (C) When the defendant is in custody on a misdemeanor,3
petty offense, or traffic offense, the court, within seven days of the4
defendant being found incompetent to proceed, shall set a hearing on5
bond. At the bond hearing there is a presumption that the court shall order6
a personal recognizance bond AND OUTPATIENT RESTORATION SERVICES.7
If the court does not order a personal recognizance bond and the8
defendant is committed for inpatient restoration, the court must SHALL9
make findings of fact that extraordinary circumstances exist to overcome10
the presumption of a release and the clinical recommendation for11
outpatient treatment by clear and convincing evidence. IF THE COURT12
DENIES A PERSONAL RECOGNIZANCE BOND, THE COURT SHALL NOTIFY THE13
DEPARTMENT OF THE SPECIFIC FACTS AND FINDINGS WHICH IT RELIED UPON14
IN THE ORDER FOR RESTORATION TREATMENT .15
(d) If the court has ordered outpatient restoration services and the16
department determines that it is unable, within a reasonable time, to17
provide restoration services on an outpatient basis, the department shall18
notify the court within fourteen days after its determination, at which19
point the court shall review the case and determine what interim mental20
health services can be provided within the community by the department21
or other community provider. I
F A COURT LIAISON IS APPOINTED, the22
department shall report to the court liaison every ten
TWENTY-EIGHT days23
thereafter concerning the availability of restoration services on an24
outpatient basis.25
(f) (I) If the court has ordered inpatient restoration services, the26
department shall provide restoration services at an appropriate inpatient27
1386
-4- restoration services program. On and after July 1, 2019, the department1
shall offer tier 1 defendants admission for restoration services within2
seven days after receipt of the court order and collateral materials. On and3
after July 1, 2021, the department shall offer admission to tier 24
defendants within twenty-eight days after receipt of the court order and5
collateral materials. For tier 2 defendants, the department shall advise the6
court and,
IF A COURT LIAISON IS APPOINTED, the court liaison every ten
7
TWENTY-EIGHT days after the initial twenty-eight day period regarding the8
availability of a bed and when admission will be offered.9
(II) If the defendant is not offered admission and transported to10
the inpatient restoration services program within the time frames provided11
or in accordance with other court orders, the court may:12
(A) Review the case for consideration of outpatient restoration13
services and appropriate and necessary case management services14
coordinated with the department;
IF A COURT LIAISON IS APPOINTED, the15
court liaison; and pretrial services, if available; or16
(h) (I) If the defendant is receiving inpatient restoration services17
and the executive director concludes that community-based restoration18
services would be more clinically appropriate, the department shall:19
(B) Provide to the court information regarding the appropriate20
outpatient restoration services, developed in conjunction with the court21
liaison,
WHEN ASSIGNED, and the reasons why the defendant could be22
properly restored to competency on an outpatient basis.23
(i) FOR A DEFENDANT ALLOWED TO RESIDE OUT OF THE STATE OF24
COLORADO, THE DEPARTMENT MAY OFFER ASSISTANCE TO AN25
OUT-OF-STATE PROVIDER PROVIDING RESTORATION SERVICES TO THE26
DEFENDANT IN THE STATE WHERE THE DEFENDANT RESIDES .27
1386
-5- SECTION 4. In Colorado Revised Statutes, 16-8.5-116, amend1
(2)(a), (4), (5), (6) introductory portion, (8)(a)(I), and (10); and repeal2
(2)(b)(VI) as follows:3
16-8.5-116. Certification - reviews - termination of4
proceedings - rules. (2) (a) Within ninety-one days after the entry of the5
court's order of commitment
OR ORDER TO RECEIVE OUTPATIENT6
RESTORATION, the court shall review the case of a defendant who has7
been determined to be incompetent to proceed with regard to the8
probability that the defendant will eventually
be restored to competency9
WITHIN THE REASONABLY FORESEEABLE FUTURE and with regard to the10
justification for certification, or confinement, OR CONTINUED11
RESTORATION TREATMENT . The review may be held in conjunction with12
a restoration hearing held pursuant to section 16-8.5-113. However, if at13
the review hearing, there is a request by the defendant for a restoration14
hearing pursuant to section 16-8.5-113, the court shall set the restoration15
hearing within thirty-five days after the request pursuant to the provisions16
of section 16-8.5-113.17
(b) On and after July 1, 2020, at least ten days before each review,18
the individual or entity evaluating the defendant shall provide the court19
with a report describing:20
(VI) Whether there is a substantial probability that the defendant21
will be restored to competency and remain competent with the use of22
medications or will not remain competent without the use of forced23
medication;24
(4) After the fourth review, the court shall review the competency25
of the defendant every sixty-three NINETY-ONE days until the defendant26
is restored to competency or the court determines, based on available27
1386
-6- evidence, that there is not a substantial probability that the defendant will1
be restored to competency in the
REASONABLY foreseeable future. and in
2
that case. IF THE COURT DETERMINES BASED ON AVAILABLE EVIDENCE3
THERE IS NOT A SUBSTANTIAL PROBABILITY THAT THE DEFENDANT WILL BE4
RESTORED TO COMPETENCY IN TH E REASONABLY FORESEEABLE FUTURE ,5
the court shall dismiss the case
SUBJECT TO THE PROVISIONS OF6
SUBSECTION (10) OF THIS SECTION.7
(5) The court shall forward a copy of each report and summary8
received pursuant to subsections (2), (3), and (4) of this section to the9
county attorney or district attorney required to conduct proceedings10
pursuant to section 27-65-111 (6) for the county in which the case is11
pending and,
WHEN A COURT LIAISON IS APPOINTED, to the court liaison.12
(6) Notwithstanding the time periods provided in subsections (7),13
(8), and (9) of this section and to ensure compliance with relevant14
constitutional principles, for any offense for which the defendant remains
15
confined as a result of a determination of incompetency to proceed IS16
ORDERED TO RECEIVE COMPETENCY RESTORATION SERVICES IN AN17
INPATIENT OR OUTPATIENT SETTING , if the court determines, based on18
available evidence, that there is not a substantial probability that the19
defendant will be restored to competency within the reasonably20
foreseeable future, the court may order the defendant's release from21
commitment pursuant to this article 8.5 through one or more of the22
following means:23
24
(8) At any review hearing held concerning the defendant's25
competency to proceed, the court shall dismiss the charges against the26
defendant and release the defendant from confinement, subject to the27
1386
-7- provisions of subsection (10) of this section, if:1
(a) The defendant:2
(I) Is charged with a class 5 or class 6 felony, except for those3
offenses enumerated in section 24-4.1-302 (1), OR with a level 3 or level4
4 drug felony; or with any misdemeanor offense that is not included in5
subsection (7) of this section;6
7
(10) Prior to the dismissal of charges pursuant to subsection (1),8
(4), (6), (7), (8), or (9) of this section, the court shall identify whether the9
defendant meets the requirements for certification pursuant to article 6510
of title 27, or for the provision of services pursuant to article 10.5 of title11
27, or whether the defendant will agree to a voluntary commitment. If the12
court finds the requirements for certification or provision of services are13
met or the defendant does not agree to a voluntary commitment, the court14
may stay the dismissal for twenty-one days and notify the department and15
county attorney or district attorney required to conduct proceedings16
pursuant to section 27-65-111 (6) in the relevant jurisdiction of the17
pending dismissal so as to provide the department and the county attorney18
or district attorney with the opportunity to pursue certification19
proceedings or the provision of necessary services.20
SECTION 5. In Colorado Revised Statutes, add 16-8.5-123 as21
follows:22
16-8.5-123. Competency services - inpatient beds - funding -23
repeal. (1) THE GENERAL ASSEMBLY SHALL APPROPRIATE TO THE24
DEPARTMENT TWENTY-EIGHT MILLION FIVE HUNDRED SIXTY-TWO25
THOUSAND EIGHT HUNDRED TWENTY -EIGHT DOLLARS FROM THE26
ECONOMIC RECOVERY AND RELIEF CASH FUND CREATED IN SECTION27
1386
-8- 24-75-228 (2)(a) TO CONTRACT FOR ADDITIONAL INPATIENT BEDS FOR1
COMPETENCY SERVICES PROVIDED PURSUANT TO SECTION 16-8.5-111 OR2
FOR ADDITIONAL INPATIENT BEDS FOR INDIVIDUALS RECEIVING MENTAL3
HEALTH CARE AND TREATMENT PURSUANT TO ARTICLE 65 OF TITLE 27. IF4
ANY UNEXPENDED OR UNENCUMBERED MONEY APPROPRIATED FOR A5
FISCAL YEAR REMAINS AT THE END OF THAT FISCAL YEAR , THE6
DEPARTMENT MAY EXPEND THE MONEY FOR THE SAME PURPOSES IN THE7
NEXT FISCAL YEAR WITHOUT FURTHER APPROPRIATION .8
(2) THE GENERAL ASSEMBLY SHALL APPROPRIATE TO THE9
DEPARTMENT EIGHT HUNDRED T HOUSAND DOLLARS FROM THE10
BEHAVIORAL AND MENTAL HEALTH CASH FUND CREATED IN SECTION11
24-75-230 (2)(a) TO CONTRACT FOR A FEASIBILITY STUDY OF RENOVATING12
AND STAFFING A FACILITY IN ADAMS COUNTY TO PROVIDE INPATIENT BEDS13
FOR COMPETENCY SERVICES PROVIDED PURSUANT TO SECTION 16-8.5-11114
AND INDIVIDUALS RECEIVING MENTAL HEALTH CARE AND TREATMENT15
PURSUANT TO ARTICLE 65 OF TITLE 27. THE DEPARTMENT MUST RECEIVE16
THE RESULTS FROM THE FEASIBILITY STUDY ON OR BEFORE SEPTEMBER 15,17
2022.18
(3) THIS SECTION IS REPEALED, EFFECTIVE DECEMBER 31, 2024.19
SECTION 6. Appropriation. (1) For the 2022-23 state fiscal20
year, $28,562,828 is appropriated to the department of human services for21
use by the office of behavioral health. This appropriation is from the22
economic recovery and relief cash fund created in section 24-75-22823
(2)(a), C.R.S., and is of money the state received from the federal24
coronavirus state fiscal recovery fund. To implement this act, the office25
may use this appropriation for purchased inpatient bed capacity. Any26
money appropriated in this section not expended prior to July 1, 2023, is27
1386
-9- further appropriated to the office from July 1, 2023, through December1
30, 2024, for the same purpose.2
(2) For the 2022-23 state fiscal year, $800,000 is appropriated to3
the department of human services for use by the office of behavioral4
health. This appropriation is from the behavioral and mental health cash5
fund created in section 24-75-230 (2)(a), C.R.S., and is of money the state6
received from the federal coronavirus state fiscal recovery fund. To7
implement this act, the office may use this appropriation to contract for8
a feasibility study of renovating a facility in Adams county to provide9
inpatient beds for competency services provided pursuant to section10
16-18.5-111, C.R.S. Any money appropriated in this section not expended11
prior to July 1, 2023, is further appropriated to the office from July 1,12
2023, through December 30, 2024, for the same purpose.13
SECTION 7. Effective date. This act takes effect July 1, 2022.14
SECTION 8. Safety clause. The general assembly hereby finds,15
determines, and declares that this act is necessary for the immediate16
preservation of the public peace, health, or safety.17
18
1386
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