HOUSE BILL 22-1386
BY REPRESENTATIVE(S) 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;
also SENATOR(S) Hansen and Gardner, Gonzales, Lee, Moreno, Pettersen,
Rankin, Fenberg.
C
ONCERNING MEASURES RELATED TO COMPETENCY TO PROCEED , AND, IN
CONNECTION THEREWITH
, MAKING AN APPROPRIATION.
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. In Colorado Revised Statutes, 16-8.5-103, amend (4)
as follows:
16-8.5-103. Determination of competency to proceed. (4) If a
party requests a second evaluation, any pending requests for a hearing must
be continued until the receipt of the second evaluation report. The report of
the expert conducting the second evaluation must be completed and filed
with the court within thirty-five days after the court order allowing the
second evaluation, unless the time period is extended by the court for good
cause. I
F A SECOND EVALUATION IS COMPLETED AND RESTORATION IS
NOTE: This bill has been prepared for the signatures of the appropriate legislative
officers and the Governor. To determine whether the Governor has signed the bill
or taken other action on it, please consult the legislative status sheet, the legislative
history, or the Session Laws.
________
Capital letters or bold & italic numbers indicate new material added to existing law; dashes
through words or numbers indicate deletions from existing law and such material is not part of
the act. ULTIMATELY ORDERED , THEN THE COURT SHALL MAKE THE SECOND
EVALUATION AVAILABLE TO THE DEPARTMENT
. If the second evaluation is
requested by the court, it must be paid for by the court.
SECTION 2. In Colorado Revised Statutes, 16-8.5-105, amend
(1)(b)(II) as follows:
16-8.5-105. Evaluations, locations, time frames, and report.
(1) (b) Notwithstanding the provisions of subsection (1)(a) of this section,
the court may order the defendant placed in the department's custody for the
time necessary to conduct the inpatient competency evaluation if:
(II) The court finds that an inadequate
THE competency evaluation
and report has been completed PROVIDED BY THE DEPARTMENT IS
INSUFFICIENT BECAUSE IT DOES NOT MEET STATUTORY REQUIREMENTS
PURSUANT TO SUBSECTION
(5) OF THIS SECTION or that two or more
conflicting competency evaluations and reports have been completed; and
the court finds that an inpatient evaluation is necessary; or
SECTION 3. In Colorado Revised Statutes, 16-8.5-111, amend
(2)(b)(II)(C), (2)(d), (2)(f)(I), (2)(f)(II)(A), and (2)(h)(I)(B); and add (2)(i)
as follows:
16-8.5-111. Procedure after determination of competency or
incompetency. (2) If the final determination made pursuant to section
16-8.5-103 is that the defendant is incompetent to proceed, the court has the
following options:
(b) (II) (C) When the defendant is in custody on a misdemeanor,
petty offense, or traffic offense, the court, within seven days of the
defendant being found incompetent to proceed, shall set a hearing on bond.
At the bond hearing there is a presumption that the court shall order a
personal recognizance bond
AND OUTPATIENT RESTORATION SERVICES . If
the court does not order a personal recognizance bond and the defendant is
committed for inpatient restoration, the court must
SHALL make findings of
fact that extraordinary circumstances exist to overcome the presumption of
a
release and the clinical recommendation for outpatient treatment by clear
and convincing evidence. I
F THE COURT DENIES A PERSONAL RECOGNIZANCE
BOND
, THE COURT SHALL NOTIFY THE DEPARTMENT OF THE SPECIFIC FACTS
AND FINDINGS WHICH IT RELIED UPON IN THE ORDER FOR RESTORATION
PAGE 2-HOUSE BILL 22-1386 TREATMENT.
(d) If the court has ordered outpatient restoration services and the
department determines that it is unable, within a reasonable time, to provide
restoration services on an outpatient basis, the department shall notify the
court within fourteen days after its determination, at which point the court
shall review the case and determine what interim mental health services can
be provided within the community by the department or other community
provider. I
F A COURT LIAISON IS APPOINTED, the department shall report to
the court liaison every ten
TWENTY-EIGHT days thereafter concerning the
availability of restoration services on an outpatient basis.
(f) (I) If the court has ordered inpatient restoration services, the
department shall provide restoration services at an appropriate inpatient
restoration services program. On and after July 1, 2019, the department
shall offer tier 1 defendants admission for restoration services within seven
days after receipt of the court order and collateral materials. On and after
July 1, 2021, the department shall offer admission to tier 2 defendants
within twenty-eight days after receipt of the court order and collateral
materials. For tier 2 defendants, the department shall advise the court and,
IF A COURT LIAISON IS APPOINTED, the court liaison every ten
TWENTY-EIGHT
days after the initial twenty-eight day period regarding the availability of a bed and when admission will be offered.
(II) If the defendant is not offered admission and transported to the
inpatient restoration services program within the time frames provided or
in accordance with other court orders, the court may:
(A) Review the case for consideration of outpatient restoration
services and appropriate and necessary case management services
coordinated with the department;
IF A COURT LIAISON IS APPOINTED, the
court liaison; and pretrial services, if available; or
(h) (I) If the defendant is receiving inpatient restoration services and
the executive director concludes that community-based restoration services
would be more clinically appropriate, the department shall:
(B) Provide to the court information regarding the appropriate
outpatient restoration services, developed in conjunction with the court
liaison,
WHEN ASSIGNED, and the reasons why the defendant could be
PAGE 3-HOUSE BILL 22-1386 properly restored to competency on an outpatient basis.
(i) F
OR A DEFENDANT ALLOWED TO RESIDE OUT OF THE STATE OF
COLORADO, THE DEPARTMENT MAY OFFER ASSISTANCE TO AN OUT -OF-STATE
PROVIDER PROVIDING RESTORATION SERVICES TO THE DEFENDANT IN THE
STATE WHERE THE DEFENDANT RESIDES
.
SECTION 4. In Colorado Revised Statutes, 16-8.5-116, amend
(2)(a), (4), (5), (6) introductory portion, (8)(a)(I), and (10); and repeal
(2)(b)(VI) as follows:
16-8.5-116. Certification - reviews - termination of proceedings
- rules. (2) (a) Within ninety-one days after the entry of the court's order of
commitment
OR ORDER TO RECEIVE OUTPATIENT RESTORATION , the court
shall review the case of a defendant who has been determined to be
incompetent to proceed with regard to the probability that the defendant will
eventually
be restored to competency WITHIN THE REASONABLY
FORESEEABLE FUTURE
and with regard to the justification for certification,
or
confinement, OR CONTINUED RESTORATION TREATMENT . The review may
be held in conjunction with a restoration hearing held pursuant to section
16-8.5-113. However, if at the review hearing, there is a request by the
defendant for a restoration hearing pursuant to section 16-8.5-113, the court
shall set the restoration hearing within thirty-five days after the request
pursuant to the provisions of section 16-8.5-113.
(b) On and after July 1, 2020, at least ten days before each review,
the individual or entity evaluating the defendant shall provide the court with
a report describing:
(VI) Whether there is a substantial probability that the defendant
will be restored to competency and remain competent with the use of
medications or will not remain competent without the use of forced
medication;
(4) After the fourth review, the court shall review the competency
of the defendant every sixty-three NINETY-ONE days until the defendant is
restored to competency or the court determines, based on available
evidence, that there is not a substantial probability that the defendant will
be restored to competency in the
REASONABLY foreseeable future. and in
that case, IF THE COURT DETERMINES BASED ON AVAILABLE EVIDENCE THERE
PAGE 4-HOUSE BILL 22-1386 IS NOT A SUBSTANTIAL PROBABILITY THAT THE DEFENDANT WILL BE
RESTORED TO COMPETENCY IN TH E REASONABLY FORESEEABLE FUTURE
, the
court shall dismiss the case
SUBJECT TO THE PROVISIONS OF SUBSECTION
(10) OF THIS SECTION.
(5) The court shall forward a copy of each report and summary
received pursuant to subsections (2), (3), and (4) of this section to the
county attorney or district attorney required to conduct proceedings
pursuant to section 27-65-111 (6) for the county in which the case is
pending and,
WHEN A COURT LIAISON IS APPOINTED, to the court liaison.
(6) Notwithstanding the time periods provided in subsections (7),
(8), and (9) of this section and to ensure compliance with relevant
constitutional principles, for any offense for which the defendant remains
confined as a result of a determination of incompetency to proceed IS
ORDERED TO RECEIVE COMPETENCY RESTORATION SERVICES IN AN
INPATIENT OR OUTPATIENT SETTING
, if the court determines, based on
available evidence, that there is not a substantial probability that the
defendant will be restored to competency within the reasonably foreseeable
future, the court may order the defendant's release from commitment
pursuant to this article 8.5 through one or more of the following means:
(8) At any review hearing held concerning the defendant's
competency to proceed, the court shall dismiss the charges against the
defendant and release the defendant from confinement, subject to the
provisions of subsection (10) of this section, if:
(a) The defendant:
(I) Is charged with a class 5 or class 6 felony, except for those
offenses enumerated in section 24-4.1-302 (1),
OR with a level 3 or level 4
drug felony; or with any misdemeanor offense that is not included in
subsection (7) of this section;
(10) Prior to the dismissal of charges pursuant to subsection (1), (4),
(6), (7), (8), or (9) of this section, the court shall identify whether the
defendant meets the requirements for certification pursuant to article 65 of
title 27, or for the provision of services pursuant to article 10.5 of title 27,
or whether the defendant will agree to a voluntary commitment. If the court
finds the requirements for certification or provision of services are met or
PAGE 5-HOUSE BILL 22-1386 the defendant does not agree to a voluntary commitment, the court may stay
the dismissal for twenty-one days and notify the department and county
attorney or district attorney required to conduct proceedings pursuant to
section 27-65-111 (6) in the relevant jurisdiction of the pending dismissal
so as to provide the department and the county attorney or district attorney
with the opportunity to pursue certification proceedings or the provision of
necessary services.
SECTION 5. In Colorado Revised Statutes, add 16-8.5-123 as
follows:
16-8.5-123. Competency services - inpatient beds - funding -
repeal. (1) T
HE GENERAL ASSEMBLY SHALL APPROPRIATE TO THE
DEPARTMENT TWENTY
-EIGHT MILLION FIVE HUNDRED SIXTY-TWO THOUSAND
EIGHT HUNDRED TWENTY
-EIGHT DOLLARS FROM THE ECONOMIC RECOVERY
AND RELIEF CASH FUND CREATED IN SECTION
24-75-228 (2)(a) TO CONTRACT
FOR ADDITIONAL INPATIENT BEDS FOR COMPETENCY SERVICES PROVIDED
PURSUANT TO SECTION
16-8.5-111 OR FOR ADDITIONAL INPATIENT BEDS FOR
INDIVIDUALS RECEIVING MENTAL HEALTH CARE AND TREATMENT PURSUANT
TO ARTICLE
65 OF TITLE 27. IF ANY UNEXPENDED OR UNENCUMBERED
MONEY APPROPRIATED FOR A FISCAL YEAR REMAINS AT THE END OF THAT
FISCAL YEAR
, THE DEPARTMENT MAY EXPEND THE MONEY FOR THE SAME
PURPOSES IN THE NEXT FISCAL YEAR WITHOUT FURTHER APPROPRIATION
.
(2) T
HE GENERAL ASSEMBLY SHALL APPROPRIATE TO THE
DEPARTMENT EIGHT HUNDRED THOUSAND DOLLARS FROM THE BEHAVIORAL
AND MENTAL HEALTH CASH FUND CREATED IN SECTION
24-75-230 (2)(a) TO
CONTRACT FOR A FEASIBILITY STUDY OF RENOVATING AND STAFFING A
FACILITY IN
ADAMS COUNTY TO PROVIDE INPATIENT BEDS FOR COMPETENCY
SERVICES PROVIDED PURSUANT TO SECTION
16-8.5-111 AND INDIVIDUALS
RECEIVING MENTAL HEALTH CARE AND TREATMENT PURSUANT TO ARTICLE
65 OF TITLE 27. THE DEPARTMENT MUST RECEIVE THE RESULTS FROM THE
FEASIBILITY STUDY ON OR BEFORE
SEPTEMBER 15, 2022.
(3) T
HIS SECTION IS REPEALED, EFFECTIVE DECEMBER 31, 2024.
SECTION 6. Appropriation. (1) For the 2022-23 state fiscal year,
$28,562,828 is appropriated to the department of human services for use by
the office of behavioral health. This appropriation is from the economic
recovery and relief cash fund created in section 24-75-228 (2)(a), C.R.S.,
PAGE 6-HOUSE BILL 22-1386 and is of money the state received from the federal coronavirus state fiscal
recovery fund. To implement this act, the office may use this appropriation
for purchased inpatient bed capacity. Any money appropriated in this
section not expended prior to July 1, 2023, is further appropriated to the
office from July 1, 2023, through December 30, 2024, for the same purpose.
(2) For the 2022-23 state fiscal year, $800,000 is appropriated to the
department of human services for use by the office of behavioral health.
This appropriation is from the behavioral and mental health cash fund
created in section 24-75-230 (2)(a), C.R.S., and is of money the state
received from the federal coronavirus state fiscal recovery fund. To
implement this act, the office may use this appropriation to contract for a
feasibility study of renovating a facility in Adams county to provide
inpatient beds for competency services provided pursuant to section
16-18.5-111, C.R.S. Any money appropriated in this section not expended
prior to July 1, 2023, is further appropriated to the office from July 1, 2023,
through December 30, 2024, for the same purpose.
SECTION 7. Effective date. This act takes effect July 1, 2022.
PAGE 7-HOUSE BILL 22-1386 SECTION 8. Safety clause. The general assembly hereby finds,
determines, and declares that this act is necessary for the immediate
preservation of the public peace, health, or safety.
____________________________ ____________________________
Alec Garnett Steve Fenberg
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Robin Jones Cindi L. Markwell
CHIEF CLERK OF THE HOUSE SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
(Date and Time)
_________________________________________
Jared S. Polis
GOVERNOR OF THE STATE OF COLORADO
PAGE 8-HOUSE BILL 22-1386