HOUSE BILL 23-1138
BY REPRESENTATIVE(S) Amabile and Soper, Bacon, Bird,
Boesenecker, Brown, deGruy Kennedy, Dickson, Epps, Froelich,
Gonzales-Gutierrez, Herod, Lieder, Lindsay, Mabrey, McCormick,
McLachlan, Michaelson Jenet, Ricks, Sirota, Snyder, Story, Weissman,
Young, McCluskie, English, Garcia, Joseph, Sharbini, Valdez;
also SENATOR(S) Rodriguez, Buckner, Coleman, Cutter, Kolker, Moreno.
C
ONCERNING PROCEDURES RELATED TO ADULT COMPETENCY PROCEEDINGS .
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. In Colorado Revised Statutes, 16-8.5-105, amend (4)
and (5)(h) as follows:
16-8.5-105. Evaluations, locations, time frames, and report.
(4) A written report of the evaluation shall
MUST be prepared in triplicate
and delivered to the clerk of the court that ordered it. The clerk shall
provide a copy of the report both to the prosecuting attorney and the counsel
for the defendant. T
HE DEPARTMENT MAY UTILIZE THE E-FILING SYSTEM TO
DELIVER THE REPORT TO THE COURT AND SERVE IT UPON THE PARTIES
.
W
ITHOUT REDUCING ANY OTHER TIMELINES SET FORTH IN THIS ARTICLE 8.5,
THE COMPETENCY EVALUATOR SHALL PROVIDE THE WRI TTEN REPORT TO THE
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. COURT WITHIN FOURTEEN DAYS AFTER FINISHING MEETING OR ATTEMPTING
TO MEET WITH THE RESPONDENT TO EVALUATE THE RESPONDENT
'S
COMPETENCY
.
(5) On and after July 1, 2020, the competency evaluation and report
must include, but need not be limited to:
(h) The competency evaluator's opinion
AND THE INFORMATION AND
FACTORS CONSIDERED IN MAKING DETERMINATIONS
as to whether the
defendant: meets the criteria for certification pursuant to article 65 of title
27 or whether the defendant is eligible for services pursuant to article 10 of
title 25.5 or article 10.5 of title 27, including the factors considered in
making either determination.
(I) MEETS THE CRITERIA FOR AN EMERGENCY MENTAL HEALTH HOLD
PURSUANT TO SECTION
27-65-106;
(II) M
EETS THE CRITERIA FOR A CERTIFICATION FOR SHORT -TERM
TREATMENT PURSUANT TO SECTION
27-65-108.5 OR 27-65-109 AND, IF THE
DEFENDANT MEETS SUCH CRITERIA
, WHETHER THE EVALUATOR BELIEVES
THE DEFENDANT COULD BE TREATED ON AN OUTPATIENT BASIS PURSUANT
TO SECTION
27-65-111. IN ASSESSING WHETHER THE DEFENDANT WITH A
PENDING CRIMINAL CHARGE IS A DANGER TO SELF OR OTHERS OR IS GRAVELY
DISABLED
, IF THE PERSON IS INCARCERATED, THE COMPETENCY EVALUATOR
OR PROFESSIONAL PERSON
, AS DEFINED IN SECTION 27-65-102, AND THE
COURT SHALL NOT RELY ON THE FACT THAT THE DEFENDANT IS
INCARCERATED OR IS AN INPATIENT IN A MEDICAL FACILITY TO ESTABLISH
THAT THE DEFENDANT IS NOT A DANGER TO SELF OR OTHERS OR IS NOT
GRAVELY DISABLED
. IF IT IS THE EVALUATOR 'S OPINION THAT THE
DEFENDANT MEETS CRITERIA FOR CERTIFICATION FOR SHORT
-TERM
TREATMENT PURSUANT TO SECTION
27-65-108.5 OR 27-65-109, THE
EVALUATOR IS NOT REQUIRED TO REQUEST A PETITION FOR CERTIFICATION
FOR SHORT
-TERM TREATMENT OF THE DEFENDANT IN A COURT WITH
JURISDICTION PURSUANT TO SECTION
16-8.5-111 (2)(a).
(III) H
AS AN INTELLECTUAL AND DEVELOPMENTAL DISABILITY , AS
DEFINED IN SECTION
25.5-10-202, AND IF THE DEFENDANT DOES HAVE SUCH
A DISABILITY
, WHETHER THE DEFENDANT MAY BE ELIGIBLE FOR ANY
ADDITIONAL SERVICES PURSUANT TO ARTICLE
10 OF TITLE 25.5 OR ARTICLE
10.5 OF TITLE 27.
PAGE 2-HOUSE BILL 23-1138 SECTION 2. In Colorado Revised Statutes, 16-8.5-111, amend
(2)(a) and (2)(b)(II)(B); and add (2)(a.2) and (2)(a.3) 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:
(a) U
PON A REQUEST FROM THE DISTRICT ATTORNEY , A
PROFESSIONAL PERSON
, AS DEFINED IN SECTION 27-65-102, A
REPRESENTATIVE OF THE BEHAVIORAL HEALTH ADMINISTRATION IN THE
DEPARTMENT
, OR A REPRESENTATIVE OF THE OFFICE OF CIVIL AND FORENSIC
MENTAL HEALTH
, if the defendant is charged with an offense as outlined in
section 16-8.5-116 (7) and the competency evaluation has determined that
the defendant meets the standard for civil certification pursuant to article 65
of title 27, the court may forgo any order of restoration and immediately
order that proceedings be initiated by the county attorney or district attorney
required to conduct proceedings pursuant to section 27-65-113 (6) for the
civil certification of the defendant and dismiss the charges without
prejudice in the interest of justice once civil certification proceedings have
been initiated OR THE PROSECUTING ATTORNEY AGREES , AND THE COURT
FINDS REASONABLE GROUNDS TO BELIEVE THE DEFENDANT MEETS THE
STANDARD FOR A CERTIFICATION FOR SHORT
-TERM TREATMENT PURSUANT
TO SECTION
27-65-108.5 OR 27-65-109, THE COURT MAY ORDER THAT ,
PURSUANT TO THIS SUBSECTION (2) OR SECTION 16-8.5-116, THE
REQUESTING PARTY INITIATE A PETITION FOR A CERTIFICATION FOR
SHORT
-TERM TREATMENT OF THE DEFENDANT IN A COURT WITH
JURISDICTION
. THE COURT SHALL HEAR AND CONSIDER ANY OBJECTIONS
FROM THE DEFENDANT PRIOR TO ORDERING THE REFERRING PARTY TO
INITIATE SUCH PROCEEDINGS
. THE PROSECUTING ATTORNEY AND
DEPARTMENT SHALL TRANSMIT ANY NECESSARY INFORMATION
, INCLUDING
MEDICAL RECORDS
, COMPETENCY EVALUATIONS , MATERIALS USED IN THE
COMPETENCY PROCESS
, AND RESTORATION RECORDS, AND COOPERATE WITH
THE REQUESTING PARTY IN FILING A PETITION PURSUANT TO SECTION
27-65-108.5. WITH THE DEFENDANT'S CONSENT, THE DEFENSE ATTORNEY
REPRESENTING THE DEFENDANT MAY TRANSMIT ANY INFORMATION AND
COOPERATE IN THE SHORT
-TERM CERTIFICATION PROCESS. THE REQUESTING
PARTY SHALL FILE NOTICE IN THE CRIMINAL CASE WHEN THE CERTIFICATION
FOR SHORT
-TERM TREATMENT IS FILED . UPON THE FILING OF A
CERTIFICATION FOR SHORT
-TERM TREATMENT PURSUANT TO SECTION
PAGE 3-HOUSE BILL 23-1138 27-65-108.5, THE BEHAVIORAL HEALTH ADMINISTRATION IN THE
DEPARTMENT SHALL
, DIRECTLY OR THROUGH A CONTRACT , PROVIDE CARE
COORDINATION SERVICES PURSUANT TO SECTION
27-65-108.
(a.2) T
HE COURT MAY FORGO ANY ORDER OF RESTORATION AND
DISMISS THE CHARGES WITHOUT PREJUDICE IN THE INTEREST OF JUSTICE
WHEN A CERTIFICATION FOR SHORT
-TERM TREATMENT PROCEEDINGS IS
INITIATED AND WHEN ALL OF THE DEFENDANT
'S CHARGES ARE SUBJECT TO
SECTION
16-8.5-116 (7).
(a.3) I
F THE COURT ORDERS THE INITIATION OF CERTIFICATION FOR
SHORT
-TERM TREATMENT PROCEEDINGS AND ANY CHARGE AGAINST THE
DEFENDANT IS NOT SUBJECT TO SECTION
16-8.5-116 (7) OR THE COURT DOES
NOT ORDER DISMISSAL OF THE CASE PURSUANT TO SUBSECTION
(1) OF THIS
SECTION
, WITH AGREEMENT OF THE PARTIES , THE COURT MAY STAY THE
RESTORATION ORDER TO ALLOW CERTIFICATION FOR SHORT
-TERM
TREATMENT PROCEEDINGS TO OCCUR AND TO ALLOW THE DISTRICT
ATTORNEY TO CONSIDER WHETHER DISMISSAL OF THE CASE IS APPROPRIATE
.
T
O ENABLE EVALUATION OF WHETHER DISMISSAL IS APPROPRIATE WHILE THE
CRIMINAL MATTER IS PENDING
, THE DEFENDANT, THE DEFENDANT'S
ATTORNEY IN THE CRIMINAL MATTER
, AND THE PROSECUTING ATTORNEY IN
THE CRIMINAL MATTER IN WHICH COMPETENCY IS PENDING SHALL HAVE
ACCESS TO THE FOLLOWING LIMITED INFORMATION ABOUT ANY
PROCEEDINGS PURSUANT TO SECTION
27-65-108.5, 27-65-109, 27-65-110,
OR 27-65-111. THE INFORMATION MUST BE KEPT CONFIDENTIAL UNLESS
DISCLOSURE IS OTHERWISE AUTHORIZED BY LAW
. THE COURT SHALL NOT
EXTEND THE CRIMINAL CASE PAST THE TIME LIMITS SET FORTH IN SECTION
16-8.5-116, AND INFORMATION MUST NOT BE SHARED PURSUANT TO THIS
SUBSECTION
(2)(a.3) AFTER DISMISSAL OF THE CRIMINAL CASE UNLESS
OTHERWISE ALLOWED BY SECTION
27-65-123 OR OTHER LAW. THE LIMITED
INFORMATION ALLOWED TO BE SHARED WITH THE DEFENDANT
, THE
DEFENDANT
'S CRIMINAL ATTORNEY , OR THE PROSECUTING ATTORNEY
PURSUANT TO THIS SUBSECTION
(2)(a.3) INCLUDES:
(I) W
HETHER CIVIL PROCEEDINGS ARE PENDING OR ONGOING ;
(II) W
HETHER THE DEFENDANT IS SUBJECT TO A CERTIFICATION FOR
SHORT
-TERM OR LONG-TERM TREATMENT AND WHETHER THE DEFENDANT IS
BEING TREATED IN AN INPATIENT OR OUTPATIENT SETTING
;
PAGE 4-HOUSE BILL 23-1138 (III) WHEN PROCEEDINGS ARE OCCURRING , EVEN IF THE
PROCEEDINGS ARE CONFIDENTIAL OR CLOSED TO THE PROSECUTING
ATTORNEY OR DEFENDANT
'S CRIMINAL ATTORNEY; AND
(IV) THE ULTIMATE OUTCOME OF THE PROCEEDING .
(b) (II) (B) As a condition of bond, the court shall order that the
restoration take place on an outpatient basis. Pursuant to section 27-60-105,
the behavioral health administration in the
department is the entity
responsible for the oversight of restoration education and coordination of
all competency restoration services. As a condition of release for outpatient
restoration services, the court may require pretrial services, if available, to
work with the behavioral health administration
THE DEPARTMENT and the
restoration services provider under contract with the behavioral health
administration to assist in securing appropriate support and care
management services, which may include housing resources. The individual
agency responsible for providing outpatient restoration services for the
defendant shall notify the court or other designated agency within
twenty-one days if restoration services have not commenced
AND SHALL
NOTIFY THE COURT OF EFFORTS THAT HAVE BEEN MADE TO ENGAGE THE
DEFENDANT IN SERVICES
.
SECTION 3. In Colorado Revised Statutes, 16-8.5-116, amend
(2)(b)(IV), (6)(b), and (10); and add (2)(b)(IV.3) and (2)(b)(IV.5) as
follows:
16-8.5-116. Certification - reviews - termination of proceedings
- rules. (2) (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:
(IV) Whether the defendant meets the requirements for certification
set forth in article 65 of title 27 or is eligible for services pursuant to article
10.5 of title 27 MEETS THE CRITERIA FOR AN EMERGENCY MENTAL HEALTH
HOLD PURSUANT TO SECTION
27-65-106;
(IV.3) W
HETHER THE DEFENDANT M EETS THE CRITERIA FOR A
CERTIFICATION FOR SHORT
-TERM TREATMENT PURSUANT TO SECTION
27-65-108.5 OR 27-65-109 AND, IF THE DEFENDANT MEETS SUCH CRITERIA,
WHETHER THE EVALUATOR BELIEVES THE DEFENDANT COULD BE TREATED
PAGE 5-HOUSE BILL 23-1138 ON AN OUTPATIENT BASIS PURSUANT TO SECTION 27-65-111. IN ASSESSING
WHETHER A DEFENDANT WITH A PENDING CRIMINAL CHARGE IS A DANGER TO
SELF OR OTHERS OR IS GRAVELY DISABLED
, IF THE PERSON IS INCARCERATED,
THE EVALUATOR SHALL NOT RELY ON THE FACT THAT THE DEFENDANT IS
INCARCERATED OR IS AN INPATIENT IN A MEDICAL FACILITY TO ESTABLISH
THE DEFENDANT IS NOT A DANGER TO SELF OR OTHERS OR IS NOT GRAVELY
DISABLED
.
(IV.5) W
HETHER THE DEFENDANT HAS AN INTELLECTUAL AND
DEVELOPMENTAL DISABILITY
, AS DEFINED IN SECTION 25.5-10-202, AND IF
THE DEFENDANT DOES HAVE SUCH A DISABILITY
, WHETHER THE DEFENDANT
MAY BE ELIGIBLE FOR ANY ADDITIONAL SERVICES PURSUANT TO ARTICLE
10
OF TITLE 25.5 OR ARTICLE 10.5 OF TITLE 27.
(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 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:
(b) I
F THE COURT FINDS REASONABLE GROUNDS TO BELIEVE THE
DEFENDANT MEETS CRITERIA FOR A CERTIFICATION FOR SHORT
-TERM
TREATMENT PURSUANT TO SECTION
27-65-108.5 OR 27-65-109, the court
may in coordination with the county attorney or district attorney required to
conduct proceedings pursuant to section 27-65-113 (6) for the county in
which the defendant is charged, order the commencement of certification
proceedings pursuant to the provisions of article 65 of title 27 if the
defendant meets the requirements for certification pursuant to article 65 of
title 27 ORDER THE DISTRICT ATTORNEY , OR UPON REQUEST FROM THE
DISTRICT ATTORNEY
, A PROFESSIONAL PERSON, AS DEFINED IN SECTION
27-65-102, A REPRESENTATIVE OF THE BEHAVIORAL HEALTH
ADMINISTRATION IN THE DEPARTMENT
, OR A REPRESENTATIVE OF THE OFFICE
OF CIVIL AND FORENSIC MENTAL HEALTH TO INITIATE
, IN A COURT WITH
JURISDICTION
, A PROCEEDING FOR A CERTIFICATION FOR SHORT -TERM
TREATMENT OF THE DEFENDANT PURSUANT TO SECTION
27-65-108.5 OR
27-65-109;
PAGE 6-HOUSE BILL 23-1138 (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 UNLESS THE
COURT HAS ALREADY ORDERED A PERSON TO INITIATE PROCEEDINGS FOR A
CERTIFICATION FOR SHORT
-TERM TREATMENT, THE COURT SHALL MAKE
FINDINGS WHETHER THERE ARE REASONABLE GROUNDS TO BELIEVE THE
PERSON MEETS THE STANDARD FOR A CERTIFICATION FOR SHORT
-TERM
TREATMENT
. If the court finds the requirements for certification orprovision of services are met or the defendant does not agree to a voluntary
commitment THERE ARE REASONABLE GROUNDS , the court may stay the
dismissal for twenty-one THIRTY-FIVE days and notify the department and
county attorney or district attorney required to conduct proceedings
pursuant to section 27-65-113 (6) in the relevant jurisdiction of the pending
dismissal so as to provide the department and the county attorney or district
attorney with the ANY PROFESSIONAL PERSON , AS DEFINED IN SECTION
27-65-102, A REPRESENTATIVE OF THE BEHAVIORAL HEALTH
ADMINISTRATION IN THE DEPARTMENT
, OR A REPRESENTATIVE OF THE OFFICE
OF CIVIL AND FORENSIC MENTAL HEALTH WHO HAS RECENTLY TREATED OR
INTERACTED WITH THE DEFENDANT THAT THERE ARE REAS ONABLE GROUNDS
FOR SHORT
-TERM TREATMENT AND AFFORD THE PERSON AN opportunity to
pursue certification proceedings or the provision of
TO ARRANGE necessary
services.
SECTION 4. In Colorado Revised Statutes, 19-2.5-704, amend
(2)(b) as follows:
19-2.5-704. Procedure after determination of competency or
incompetency. (2) (b) Pursuant to section 27-60-105, the behavioral health
administration in the department of human services is the entity responsible
for the oversight of restoration education and coordination of services
necessary to competency restoration.
SECTION 5. In Colorado Revised Statutes, add 27-65-108.5 as
follows:
27-65-108.5. Court-ordered certification for short-term
treatment for incompetent defendants in a criminal matter - contents
of petition - procedure to contest petition - commitment to behavioral
PAGE 7-HOUSE BILL 23-1138 health administration - definition. (1) U PON PETITION OF THE DISTRICT
ATTORNEY
, A PROFESSIONAL PERSON, A REPRESENTATIVE OF THE BHA, OR
A REPRESENTATIVE OF THE OFFICE OF CIVIL AND FORENSIC MENTAL HEALTH
,
A COURT MAY CERTIFY A PERSON FOR SHORT -TERM TREATMENT FOR NOT
MORE THAN THREE MONTHS UNDER THE FOLLOWING CONDITIONS
:
(a) T
HE PERSON IS A RESPONDENT IN A CRIMINAL MATTER IN WHICH
THE PERSON HAS BEEN FOUND INCOMPETENT TO PROCEED
;
(b) T
HE COURT HEARING THE CRIMINAL MATTER REFERRED THE
MATTER FOR FILING OF A PETITION PURSUANT TO SECTION
16-8.5-111 OR
16-8.5-116;
(c) T
HE PERSON HAS BEEN ADVISED OF THE AVAILABILITY OF , BUT
HAS NOT ACCEPTED
, VOLUNTARY TREATMENT, OR, IF REASONABLE GROUNDS
EXIST TO BELIEVE THAT THE PERSON WILL NOT REMAIN IN A VOLUNTARY
TREATMENT PROGRAM
, THE PERSON'S ACCEPTANCE OF VOLUNTARY
TREATMENT DOES NOT PRECLUDE CERTIFICATION
;
(d) T
HE FACILITY OR COMMUNITY PROVIDER THAT WILL PROVIDE
SHORT
-TERM TREATMENT HAS BEEN DESIGNATED OR APPROVED BY THE
COMMISSIONER TO PROVIDE SUCH TREATMENT
; AND
(e) THE PERSON, THE PERSON'S LEGAL GUARDIAN, AND THE PERSON'S
LAY PERSON
, IF APPLICABLE, HAVE BEEN ADVISED OF THE PERSON'S RIGHT TO
AN ATTORNEY AND TO CONTEST THE CERTIFICATION FOR SHORT
-TERM
TREATMENT
.
(2) T
HE PETITION FILED PURSUANT TO SUBSECTION (1) OF THIS
SECTION MUST
:
(a) S
TATE SUFFICIENT FACTS TO ESTABLISH REASONABLE GROUNDS
THAT THE RESPONDENT HAS A MENTAL HEALTH DISORDER AND
, AS A RESULT
OF THE MENTAL HEALTH DISORDER
, IS A DANGER TO THE RESPONDENT'S SELF
OR OTHERS OR IS GRAVELY DISABLED
;
(b) B
E ACCOMPANIED BY A REPORT OF THE COMPETENCY
EVALUATOR OR PROFESSIONAL PERSON WHO HAS EVALUATED THE
RESPONDENT WITHIN FIFTY
-SIX DAYS BEFORE SUBMISSION OF THE PETITION,
UNLESS THE RESPONDENT WHOSE CERTIFICATION IS SOUGHT HAS REFUSED
PAGE 8-HOUSE BILL 23-1138 TO SUBMIT TO AN EVALUATION OR THE RESPONDENT CANNOT BE EVALUATED
DUE TO THE RESPONDENT
'S CONDITION;
(c) B
E FILED WITHIN FOURTEEN DAYS AFTER THE INITIATING PARTY
RECEIVED THE COURT ORDER FROM THE CRIMINAL COURT INITIATING THE
PROCESS
;
(d) B
E FILED WITH THE COURT IN THE COUNTY WHERE THE
RESPONDENT RESIDED OR WAS PHYSICALLY PRESENT IMMEDIATELY PRIOR TO
THE FILING OF THE PETITION
; EXCEPT THAT IF THE PERSON WAS ARRESTED
FOR THE PRIOR CASE AND HELD IN CUSTODY
, THE PETITION MAY BE FILED IN
THE COUNTY WHERE THE RESPONDENT RESIDED OR WAS PHYSICALLY
PRESENT IMMEDIATELY PRIOR TO THE RESPONDENT
'S ARREST; AND
(e) PROVIDE RECOMMENDATIONS IF ANY CERTIFICATION SHOULD
OCCUR ON AN INPATIENT OR OUTPATIENT BASIS
.
(3) W
ITHIN TWENTY-FOUR HOURS AFTER CERTIFICATION, COPIES OF
THE CERTIFICATION MUST BE PERSONALLY DELIVERED TO THE RESPONDENT
,
THE BHA, OR THE OFFICE OF CIVIL AND FORENSIC MENTAL HEALTH . THE
DEPARTMENT SHALL RETAIN A COPY AS PART OF THE RESPONDENT
'S RECORD.
I
F THE CRIMINAL CASE IS PENDING, OR NOT YET DISMISSED, NOTICE OF THE
FILING OF THE PETITION SHOULD BE GIVEN BY THE PETITIONING PARTY TO
THE CRIMINAL COURT
, WHICH SHALL PROVIDE SUCH NOTICE TO THE
PROSECUTING AND DEFENSE ATTORNEYS IN THE CRIMINAL CASE AND ANY
ATTORNEY APPOINTED PURSUANT TO SECTION
27-65-113. THE COURT SHALL
ASK THE RESPONDENT TO DESIGNATE ONE OTHER PERSON WHOM THE
RESPONDENT WANTS TO BE INFORMED REGARDING THE PETITION
. IF THE
RESPONDENT IS INCAPABLE OF MAKING SUCH A DESIGNATION AT THE TIME
THE PETITION IS DELIVERED
, THE COURT MAY ASK THE RESPONDENT TO
DESIGNATE SUCH PERSON AS SOON AS THE RESPONDENT IS CAPABLE
.
(4) W
HENEVER A PETITION IS FILED PURSUANT TO THIS SECTION, THE
COURT SHALL IMMEDIATELY APPOINT AN ATTORNEY TO REPRESENT THE
RESPONDENT
. THE COURT SHALL PROVIDE THE RESPONDENT WITH A WRITTEN
NOTICE THAT THE RESPONDENT HAS A RIGHT TO A HEARING ON THE PETITION
AND MAY MAKE A WRITTEN REQUEST FOR A JURY TRIAL
. THE RESPONDENT
HAS THE RIGHT TO AN ATTORNEY FOR ALL PROCEEDINGS CONDUCTED
PURSUANT TO THIS SECTION
, INCLUDING ANY APPEALS. THE ATTORNEY
REPRESENTING THE RESPONDENT MUST BE PROVIDED WITH A COPY OF THE
PAGE 9-HOUSE BILL 23-1138 PETITION AND ANY SUPPORTING MATERIALS IMMEDIATELY UPON THE
ATTORNEY
'S APPOINTMENT. THE RESPONDENT MAY ONLY WAIVE COUNSEL
WHEN THE RESPONDENT MAKES A KNOWING AND VOLUNTARY WAIVER IN
FRONT OF THE COURT
.
(5) U
PON THE FILING OF THE PETITION PURSUANT TO THIS SECTION
AND AFFORDING THE RESPONDENT A CHANCE TO CONTEST THE PETITION
, THE
COURT MAY GRANT OR DENY CERTIFICATION BASED ON THE FACTS
ESTABLISHED IN THE PETITION
, SUBJECT TO THE COURT'S FURTHER REVIEW
OR A JURY TRIAL
.
(6) W
ITHIN FOURTEEN DAYS AFTER RECEIPT OF THE PETITION FILED
PURSUANT TO THIS SECTION
, THE RESPONDENT, OR THE RESPONDENT'S
ATTORNEY
, MAY REQUEST A JURY TRIAL BY FILING A WRITTEN MOTION WITH
THE COURT
.
(7) T
HE RESPONDENT MAY KNOWINGLY AND VOLUNTARILY CONSENT
IN WRITING TO THE PETITION
.
(8) T
HE RESPONDENT OR THE RESPONDENT 'S ATTORNEY MAY, AT ANY
TIME
, FILE A WRITTEN REQUEST FOR THE COURT TO REVIEW SHORT -TERM
CERTIFICATION OR REQUEST THAT INPATIENT CERTIFICATION BE CHANGED
TO OUTPATIENT TREATMENT
. IF THE REVIEW IS REQUESTED, THE COURT
SHALL HEAR THE MATTER WITHIN FOURTEEN DAYS AFTER THE REQUEST
, AND
THE COURT SHALL GIVE NOTICE TO THE RESPONDENT
, THE RESPONDENT'S
ATTORNEY
, THE DEPARTMENT, AND THE COMMUNITY OR FACILITY PROVIDER
WHO IS OR WILL PROVIDE TREATMENT
. THE HEARING MUST BE HELD IN
ACCORDANCE WITH SECTION
27-65-113. AT THE CONCLUSION OF THE
HEARING
, THE COURT MAY ENTER OR CONFIRM THE CERTIFICATION FOR
SHORT
-TERM TREATMENT, DISCHARGE THE RESPONDENT , OR ENTER ANY
OTHER APPROPRIATE ORDER
.
(9) S
ECTION 27-65-109 (7) TO (10) APPLIES TO PROCEEDINGS HELD
PURSUANT TO THIS SECTION
.
(10) I
N ASSESSING WHETHER THE RESPONDENT WITH A PENDING
CRIMINAL CHARGE IS A DANGER TO SELF OR OTHERS OR IS GRAVELY
DISABLED
, IF THE PERSON IS INCARCERATED, THE PROFESSIONAL PERSON AND
COURT SHALL NOT RELY UPON THE FACT THAT THE PERSON IS INCARCERATED
TO ESTABLISH THAT THE RESPONDENT IS NOT A DANGER TO SELF OR OTHERS
PAGE 10-HOUSE BILL 23-1138 OR IS NOT GRAVELY DISABLED.
(11) A
N EMERGENCY MENTAL HEALTH HOLD PURSUANT TO SECTION
27-65-106 IS NOT A PREREQUISITE TO A PROCEEDING PURSUANT TO THIS
SECTION
.
(12) F
OR THE PURPOSES OF THIS SECTION ONLY , "RESPONDENT"
MEANS THE DEFENDANT IN THE REFERRING CRIMINAL MATTER .
SECTION 6. In Colorado Revised Statutes, 13-5-142, amend (1)(c)
as follows:
13-5-142. National instant criminal background check system -
reporting. (1) On and after March 20, 2013, the state court administrator
shall send electronically the following information to the Colorado bureau
of investigation created pursuant to section 24-33.5-401, referred to in this
section as the "bureau":
(c) The name of each person with respect to whom the court has
entered an order for involuntary certification for short-term treatment of a
mental health disorder pursuant to section 27-65-108.5
OR 27-65-109, for
extended certification for treatment of a mental health disorder pursuant to
section 27-65-109 (10), or for long-term care and treatment of a mental
health disorder pursuant to section 27-65-110.
SECTION 7. In Colorado Revised Statutes, 13-5-142.5, amend
(2)(a)(III) as follows:
13-5-142.5. National instant criminal background check system
- judicial process for awarding relief from federal prohibitions -
legislative declaration. (2) Eligibility. A person may petition for relief
pursuant to this section if:
(a) (III) The court has entered an order for the person's involuntary
certification for short-term treatment of a mental health disorder pursuant
to section 27-65-108.5
OR 27-65-109, for extended certification for
treatment of a mental health disorder pursuant to section 27-65-109 (10), or
for long-term care and treatment of a mental health disorder pursuant to
section 27-65-110; and
PAGE 11-HOUSE BILL 23-1138 SECTION 8. In Colorado Revised Statutes, amend 13-5-142.8 as
follows:
13-5-142.8. Notice by professional persons. Under sections
13-9-123 (1), 13-9-124 (2), 13-5-142 (1), and 13-5-142.5 (2), an order for
involuntary certification for short-term treatment of a mental health disorder
pursuant to section 27-65-108.5
OR 27-65-109 must also include a notice
filed by a professional person pursuant to section 27-65-108.5
OR
27-65-109, and an order for extended certification for treatment of a mental
health disorder pursuant to section 27-65-109 (10) must also include a
notice filed by a professional person pursuant to section 27-65-109 (10).
SECTION 9. In Colorado Revised Statutes, 13-9-123, amend (1)(c)
as follows:
13-9-123. National instant criminal background check system -
reporting. (1) On and after March 20, 2013, the state court administrator
shall send electronically the following information to the Colorado bureau
of investigation created pursuant to section 24-33.5-401, referred to in this
section as the "bureau":
(c) The name of each person with respect to whom the court has
entered an order for involuntary certification for short-term treatment of a
mental health disorder pursuant to section 27-65-108.5
OR 27-65-109, for
extended certification for treatment of a mental health disorder pursuant to
section 27-65-109 (10), or for long-term care and treatment of a mental
health disorder pursuant to section 27-65-110.
SECTION 10. In Colorado Revised Statutes, 13-9-124, amend
(2)(a)(III) as follows:
13-9-124. National instant criminal background check system -
judicial process for awarding relief from federal prohibitions -
legislative declaration. (2) Eligibility. A person may petition for relief
pursuant to this section if:
(a) (III) The court has entered an order for the person's involuntary
certification for short-term treatment of a mental health disorder pursuant
to section 27-65-108.5
OR 27-65-109, for extended certification for
treatment of a mental health disorder pursuant to section 27-65-109 (10), or
PAGE 12-HOUSE BILL 23-1138 for long-term care and treatment of a mental health disorder pursuant to
section 27-65-110; and
SECTION 11. In Colorado Revised Statutes, 25-3-102.1, amend
(1)(c) as follows:
25-3-102.1. Deemed status for certain facilities. (1) (c) Upon
submission of a completed application for license renewal, the department
of public health and environment shall accept proof of the accreditation in
lieu of licensing inspections or other requirements. Nothing in this section
exempts an accredited health facility from inspections or from other forms
of oversight by the department as necessary to ensure public health and
safety. Nothing in this section prevents the department of public health and
environment from conducting an inspection of a hospital or other health
facility described in section 25-3-101 to investigate a complaint regarding
the provisions of section 27-65-106, 27-65-107, 27-65-108.5, 27-65-109,
27-65-110, or 27-65-119 to the extent the complaint is applicable to health
facilities licensed by the department of public health and environment.
SECTION 12. In Colorado Revised Statutes, 26-20-103, amend (3)
as follows:
26-20-103. Basis for use of restraint or seclusion. (3) In addition
to the circumstances described in subsection (1) of this section, a facility,
as defined in section 27-65-102, that is designated by the commissioner of
the behavioral health administration in the state department to provide
treatment pursuant to section 27-65-106, 27-65-108, 27-65-108.5,
27-65-109, or 27-65-110 to an individual with a mental health disorder, as
defined in section 27-65-102, may use seclusion to restrain an individual
with a mental health disorder when the seclusion is necessary to eliminate
a continuous and serious disruption of the treatment environment.
SECTION 13. In Colorado Revised Statutes, amend as it will
become effective July 1, 2024, 27-65-108 as follows:
27-65-108. Care coordination for persons certified or in need of
ongoing treatment. (1) A facility designated by the commissioner shall
notify and engage the BHA prior to terminating or transferring a person
certified pursuant to section 27-65-108.5, 27-65-109, 27-65-110, or
27-65-111. The BHA may provide care coordination services to support a
PAGE 13-HOUSE BILL 23-1138 person whose certification is terminated but who is in need of ongoing
treatment and services.
(2) The BHA shall, directly or through
A contract, provide care
coordination services to a person certified pursuant to section 27-65-108.5,
27-65-109, 27-65-110, or 27-65-111 and determined by the designated
facility and the BHA to need care coordination services.
SECTION 14. In Colorado Revised Statutes, 27-65-111, amend as
it will become effective July 1, 2024, (1) introductory portion and (5)(a)(I)
as follows:
27-65-111. Certification on an outpatient basis - short-term and
long-term care. (1) Any respondent certified pursuant to section
27-65-108.5, 27-65-109, or 27-65-110 may be provided treatment on an
outpatient basis. The outpatient treatment provider shall develop a treatment
plan for the respondent receiving treatment on an outpatient basis with the
goal of the respondent finding and sustaining recovery. The treatment plan
must include measures to keep the respondent or others safe, as informed
by the respondent's need for certification. The treatment plan may include,
but is not limited to:
(5) (a) In addition to any other limitation on liability, a person
providing care to a respondent placed on short-term or long-term
certification on an outpatient basis is only liable for harm subsequently
caused by or to a respondent who:
(I) Has been terminated from certification despite meeting statutory
criteria for certification pursuant to section 27-65-108.5, 27-65-109, or
27-65-110; or
SECTION 15. In Colorado Revised Statutes, 27-65-112, amend as
it will become effective July 1, 2024, (1) as follows:
27-65-112. Termination of certification for short-term and
long-term treatment. (1) An original or extended certification for
short-term treatment issued pursuant to section 27-65-108.5
OR 27-65-109,
or an order or extension for certification for long-term care and treatment
pursuant to section 27-65-110 terminates as soon as the professional person
in charge of treatment of the respondent and the BHA determine the
PAGE 14-HOUSE BILL 23-1138 respondent has received sufficient benefit from the treatment for the
respondent to end involuntary treatment. Whenever a certification or
extended certification is terminated pursuant to this section, the professional
person in charge of providing treatment shall notify the court in writing
within five days after the termination.
SECTION 16. In Colorado Revised Statutes, 27-65-113, amend
(1), (5)(a), and (5)(b) as follows:
27-65-113. Hearing procedures - jurisdiction. (1) Hearings before
the court pursuant to section 27-65-108.5, 27-65-109, or 27-65-110 are
conducted in the same manner as other civil proceedings before the court.
The burden of proof is on the person or facility seeking to detain the
respondent. The court or jury shall determine that the respondent is in need
of care and treatment only if the court or jury finds by clear and convincing
evidence that the respondent has a mental health disorder and, as a result of
the mental health disorder, is a danger to the respondent's self or others or
is gravely disabled.
(5) (a) In the event that a respondent or a person found not guilty by
reason of impaired mental condition pursuant to section 16-8-103.5 (5), or
by reason of insanity pursuant to section 16-8-105 (4) or 16-8-105.5, refuses
to accept medication, the court having jurisdiction of the action pursuant to
subsection (4) of this section, the court committing the person or defendant
to the custody of the BHA
DEPARTMENT pursuant to section 16-8-103.5 (5),
16-8-105 (4), or 16-8-105.5, or the court of the jurisdiction in which the
designated facility treating the respondent or person is located has
jurisdiction and venue to accept a petition by a treating physician and to
enter an order requiring that the respondent or person accept such treatment
or, in the alternative, that the medication be forcibly administered to the
respondent or person. The court of the jurisdiction in which the designated
facility is located shall not exercise its jurisdiction without the permission
of the court that committed the person to the custody of the BHA
DEPARTMENT. Upon the filing of such a petition, the court shall appoint an
attorney, if one has not been appointed, to represent the respondent or
person and hear the matter within ten days.
(b) In any case brought pursuant to subsection (5)(a) of this section
in a court for the county in which the treating facility is located, the county
where the proceeding was initiated pursuant to subsection (4) of this section
PAGE 15-HOUSE BILL 23-1138 or the court committing the person to the custody of the BHA DEPARTMENT
pursuant to section 16-8-103.5 (5), 16-8-105 (4), or 16-8-105.5 shall either
reimburse the county in which the proceeding pursuant to this subsection
(5) was filed and in which the proceeding was held for the reasonable costs
incurred in conducting the proceeding or conduct the proceeding itself using
its own personnel and resources, including its own district or county
attorney, as the case may be.
SECTION 17. In Colorado Revised Statutes, 27-65-119, amend as
it will become effective July 1, 2023, (1) introductory portion as follows:
27-65-119. Rights of respondents certified for short-term
treatment or long-term care and treatment. (1) Each
EACH respondent
certified for short-term treatment or long-term care and treatment on an
inpatient basis pursuant to sections 27-65-108.5, 27-65-109, and 27-65-110
has the following rights and shall be advised of such rights by the facility:
SECTION 18. In Colorado Revised Statutes, 27-66.5-102, amend
(3)(a)(II) as follows:
27-66.5-102. Definitions. As used in this article 66.5, unless the
context otherwise requires:
(3) "High-risk individual" means a person who:
(a) Has a significant mental health or substance use disorder, as
evidenced by:
(II) A certification for short-term treatment or extended short-term
treatment pursuant to section 27-65-108.5
OR 27-65-109;
SECTION 19. In Colorado Revised Statutes, 27-80-303, amend
(3)(c) as follows:
27-80-303. Office of ombudsman for behavioral health access to
care - creation - appointment of ombudsman - duties. (3) The
ombudsman shall:
(c) Receive and assist consumers and providers in reporting
concerns and filing complaints with appropriate regulatory or oversight
PAGE 16-HOUSE BILL 23-1138 agencies relating to inappropriate care, a procedure for an emergency
mental health hold pursuant to section 27-65-106, a certification for
short-term treatment pursuant to section 27-65-108.5
OR 27-65-109, or a
certification for long-term care and treatment pursuant to section 27-65-110;
SECTION 20. In Colorado Revised Statutes, 27-65-123, add (6) as
follows:
27-65-123. Records. (6) N
OTHING IN THIS SECTION PROHIBITS THE
LIMITED DISCLOSURE OF NECESSARY INFORMATION TO THE PROSECUTING
ATTORNEY AND CRIMINAL DEFENSE COUNSEL IF A CRIMINAL CASE IS STILL
PENDING AGAINST THE PERSON
.
SECTION 21. Act subject to petition - effective date. This act
takes effect July 1, 2024; except that, if a referendum petition is filed
pursuant to section 1 (3) of article V of the state constitution against this act
or an item, section, or part of this act within the ninety-day period after final
adjournment of the general assembly, then the act, item, section, or part will
not take effect unless approved by the people at the general election to be
PAGE 17-HOUSE BILL 23-1138 held in November 2024 and, in such case, will take effect on the date of the
official declaration of the vote thereon by the governor.
____________________________ ____________________________
Julie McCluskie 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 18-HOUSE BILL 23-1138