Indiana 2023 Regular Session

Indiana House Bill HB1194 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	HB1194.2
2		-	~~February 2~~, 2023
	1	+	HB1194.1
	2	+	January 26, 2023
3	3		HOUSE BILL No. 1194
4	4		_____
5		-	DIGEST OF HB 1194 (Updated ~~February 1~~, 2023 3:02 pm - DI ~~140~~)
	5	+	DIGEST OF HB 1194 (Updated January 25, 2023 12:22 pm - DI 106)
6	6		Citations Affected: IC 12-23; IC 35-36.
7	7		Synopsis: Competency to stand trial. Provides that certain licensed
8	8		individuals may examine a defendant and testify as to whether the
9	9		defendant can understand the criminal proceedings and assist in the
10	10		preparation of the defendant's defense. Allows a court to dismiss
11	11		criminal charges, without prejudice, upon motion by either party, if: (1)
12	12		a substantial probability does not exist that a defendant will attain
13	13		competency restoration or if the defendant has not attained competency
14	14		restoration after six months of restoration services; (2) the defendant
15	15		has a certain diagnosis; and (3) the defendant is charged with a
16	16		misdemeanor or Level 6 felony. Makes conforming changes.
17	17		Effective: July 1, 2023.
18		-	McNamara, Meltzer, Gore,
19		-	Ledbetter
	18	+	McNamara
20	19		January 10, 2023, read first time and referred to Committee on Courts and Criminal Code.
21	20		January 26, 2023, amended, reported — Do Pass. Referred to Committee on Ways and
22	21		Means pursuant to Rule 127.
23		-	February 2, 2023, reported — Do Pass.
24		-	HB 1194—LS 7095/DI 149 February 2, 2023
	22	+	HB 1194—LS 7095/DI 149 January 26, 2023
25	23		First Regular Session of the 123rd General Assembly (2023)
26	24		PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
27	25		Constitution) is being amended, the text of the existing provision will appear in this style type,
28	26		additions will appear in this style type, and deletions will appear in this style type.
29	27		Additions: Whenever a new statutory provision is being enacted (or a new constitutional
30	28		provision adopted), the text of the new provision will appear in this style type. Also, the
31	29		word NEW will appear in that style type in the introductory clause of each SECTION that adds
32	30		a new provision to the Indiana Code or the Indiana Constitution.
33	31		Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
34	32		between statutes enacted by the 2022 Regular Session of the General Assembly.
35	33		HOUSE BILL No. 1194
36	34		A BILL FOR AN ACT to amend the Indiana Code concerning
37	35		human services.
38	36		Be it enacted by the General Assembly of the State of Indiana:
39	37		1 SECTION 1. IC 12-23-19-2, AS AMENDED BY P.L.114-2022,
40	38		2 SECTION 21, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
41	39		3 JULY 1, 2023]: Sec. 2. (a) An individual is eligible for mental health
42	40		4 and addiction forensic treatment services if:
43	41		5 (1) subject to subsection (d), the individual:
44	42		6 (A) is a member of a household with an annual income that
45	43		7 does not exceed two hundred percent (200%) of the federal
46	44		8 income poverty level;
47	45		9 (B) is a resident of Indiana;
48	46		10 (C) is:
49	47		11 (i) at least eighteen (18) years of age; or
50	48		12 (ii) subject to the approval of the Indiana commission to
51	49		13 combat substance use disorder, less than eighteen (18) years
52	50		14 of age and the individual is a defendant whose case is either
53	51		15 waived from juvenile court to adult court or directly filed in
54	52		16 adult court; and
55	53		17 (D) has entered the criminal justice system as a felon or with
56	54		HB 1194—LS 7095/DI 149 2
57	55		1 a prior felony conviction or is ordered to be committed for
58	56		2 competency restoration services as described in
59	57		3 IC 35-36-3-1(b); IC 35-36-3-1(f); and
60	58		4 (2) subject to subsection (b), reimbursement for the service is not
61	59		5 available to the individual through any of the following:
62	60		6 (A) A policy of accident and sickness insurance (IC 27-8-5).
63	61		7 (B) A health maintenance organization contract (IC 27-13).
64	62		8 (C) The Medicaid program (IC 12-15), excluding the Medicaid
65	63		9 rehabilitation program and the Behavioral and Primary Health
66	64		10 Coordination Program under Section 1915(i) of the Social
67	65		11 Security Act.
68	66		12 (D) The federal Medicare program or any other federal
69	67		13 assistance program.
70	68		14 (b) If an individual is not entitled to reimbursement from the sources
71	69		15 described in subsection (a)(2) of the full amount of the cost of the
72	70		16 mental health and addiction forensic treatment services, grants and
73	71		17 vouchers under this chapter may be used to provide those services to
74	72		18 the extent that the costs of those services exceed the reimbursement the
75	73		19 individual is entitled to receive from the sources described in
76	74		20 subsection (a)(2), excluding any copayment or deductible that the
77	75		21 individual is required to pay.
78	76		22 (c) The division shall determine the extent to which an individual
79	77		23 who is provided mental health and addiction forensic treatment
80	78		24 services under this chapter is entitled to receive reimbursement from
81	79		25 the sources described in subsection (a)(2).
82	80		26 (d) Notwithstanding subsection (a)(1)(D), subject to available
83	81		27 funding and on the recommendation of the justice reinvestment
84	82		28 advisory council (established by IC 33-38-9.5-2), the division may
85	83		29 operate a pilot program applying the eligibility criteria in this section
86	84		30 to individuals who are charged with a misdemeanor. If the division
87	85		31 operates a pilot program under this subsection, the division shall issue
88	86		32 annual reports to the justice reinvestment advisory council.
89	87		33 SECTION 2. IC 35-36-3-1, AS AMENDED BY P.L.74-2022,
90	88		34 SECTION 16, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
91	89		35 JULY 1, 2023]: Sec. 1. (a) If at any time before the final submission of
92	90		36 any criminal case to the court or the jury trying the case, the court has
93	91		37 reasonable grounds for believing that the defendant lacks the ability to
94	92		38 understand the proceedings and assist in the preparation of a defense,
95	93		39 the court shall immediately fix a time for a hearing to determine
96	94		40 whether the defendant has that ability.
97	95		41 (b) When a court sets a hearing under subsection (a), the court
98	96		42 shall appoint two (2) or three (3) individuals who:
99	97		HB 1194—LS 7095/DI 149 3
100	98		1 (1) are competent and disinterested;
101	99		2 (2) have expertise in determining competency; and
102	100		3 (3) are licensed in any of the following professions:
103	101		4 (1) (A) psychiatrists; Psychiatrist.
104	102		5 (2) (B) psychologists Psychologist endorsed by the Indiana
105	103		6 state board of examiners in psychology as health service
106	104		7 providers in psychology. or
107	105		8 (3) (C) physicians; Physician.
108	106		9 who have expertise in determining competency.
109	107		10 (c) Beginning July 1, 2024, when a court sets a hearing under
110	108		11 subsection (a), the court shall appoint two (2) or three (3)
111	109		12 individuals who:
112	110		13 (1) meet the criteria of subsection (b); or
113	111		14 (2) are competent, are disinterested, have expertise in
114	112		15 determining competency, and are:
115	113		16 (A) licensed:
116	114		17 (i) under IC 25-23 as an advanced practice registered
117	115		18 nurse (APRN) with a certification as a psychiatric
118	116		19 mental health nurse practitioner; or
119	117		20 (ii) under IC 25-27.5 as a physician assistant specialized
120	118		21 in psychiatry and mental health; and
121	119		22 (B) certified by the division of mental health and addiction
122	120		23 as a competency evaluator.
123	121		24 (d) If both parties agree, only one (1) evaluation is required.
124	122		25 However, either party may reserve the right to one (1) or more
125	123		26 additional evaluations in further court proceedings.
126	124		27 (e) At least one (1) of the individuals appointed under this
127	125		28 subsection (b) or (c) must be a licensed psychiatrist or psychologist.
128	126		29 However, none may be an employee or a contractor of a state
129	127		30 institution (as defined in IC 12-7-2-184). The individuals who are
130	128		31 appointed shall examine the defendant and testify at the hearing as to
131	129		32 whether the defendant can understand the proceedings and assist in the
132	130		33 preparation of the defendant's defense.
133	131		34 (b) (f) At the hearing, other evidence relevant to whether the
134	132		35 defendant has the ability to understand the proceedings and assist in the
135	133		36 preparation of the defendant's defense may be introduced. If the court
136	134		37 finds that the defendant has the ability to understand the proceedings
137	135		38 and assist in the preparation of the defendant's defense, the trial shall
138	136		39 proceed. If the court finds that the defendant lacks this ability, it shall
139	137		40 delay or continue the trial and order the defendant committed to the
140	138		41 division of mental health and addiction. The division of mental health
141	139		42 and addiction shall provide competency restoration services or enter
142	140		HB 1194—LS 7095/DI 149 4
143	141		1 into a contract for the provision of competency restoration services by
144	142		2 a third party in the:
145	143		3 (1) location where the defendant currently resides; or
146	144		4 (2) least restrictive setting appropriate to the needs of the
147	145		5 defendant and the safety of the defendant and others.
148	146		6 However, if the defendant is serving an unrelated executed sentence in
149	147		7 the department of correction at the time the defendant is committed to
150	148		8 the division of mental health and addiction under this section, the
151	149		9 division of mental health and addiction shall provide competency
152	150		10 restoration services or enter into a contract for the provision of
153	151		11 competency restoration services by a third party at a department of
154	152		12 correction facility agreed upon by the division of mental health and
155	153		13 addiction or the third party contractor and the department of correction.
156	154		14 A contract entered into with a third party under this subsection may
157	155		15 confer to the third party all authority the division would have in
158	156		16 providing competency restoration services to the defendant at a state
159	157		17 institution (as defined in IC 12-7-2-184).
160	158		18 (c) (g) If the court makes a finding under subsection (b), (f), the
161	159		19 court shall transmit any information required by the office of judicial
162	160		20 administration to the office of judicial administration for transmission
163	161		21 to the NICS (as defined in IC 35-47-2.5-2.5) in accordance with
164	162		22 IC 33-24-6-3.
165	163		23 SECTION 3. IC 35-36-3-3 IS AMENDED TO READ AS
166	164		24 FOLLOWS [EFFECTIVE JULY 1, 2023]: Sec. 3. (a) Within ninety
167	165		25 (90) days after:
168	166		26 (1) a defendant's admission to a state institution (as defined in
169	167		27 IC 12-7-2-184); or
170	168		28 (2) the initiation of competency restoration services to a defendant
171	169		29 by a third party contractor;
172	170		30 the superintendent of the state institution (as defined in IC 12-7-2-184)
173	171		31 or the director or medical director of the third party contractor, if the
174	172		32 division of mental health and addiction has entered into a contract for
175	173		33 the provision of competency restoration services by a third party, shall
176	174		34 certify to the proper court whether the defendant has a substantial
177	175		35 probability of attaining the ability to understand the proceedings and
178	176		36 assist in the preparation of the defendant's defense within the
179	177		37 foreseeable future.
180	178		38 (b) If:
181	179		39 (1) a substantial probability does not exist under subsection
182	180		40 (a); or
183	181		41 (2) the defendant has received competency restoration
184	182		42 services for more than six (6) months and has not been
185	183		HB 1194—LS 7095/DI 149 5
186	184		1 restored to competency;
187	185		2 then either party may file a motion to dismiss the charges without
188	186		3 prejudice.
189	187		4 (c) If a motion to dismiss is filed under subsection (b), the court
190	188		5 may grant the motion and dismiss the charges against the
191	189		6 defendant without prejudice if:
192	190		7 (1) the defendant has been diagnosed with:
193	191		8 (A) dementia;
194	192		9 (B) Alzheimer's disease;
195	193		10 (C) a traumatic brain injury; or
196	194		11 (D) an intellectual or developmental disability;
197	195		12 (2) the defendant's diagnosis substantially impacts the
198	196		13 defendant's ability to understand the proceedings and assist
199	197		14 in the preparation of the defendant's defense within the
200	198		15 foreseeable future; and
201	199		16 (3) the defendant is charged with a misdemeanor or a Level 6
202	200		17 felony.
203	201		18 (b) (d) If a defendant's charges are not dismissed under
204	202		19 subsection (c) and a substantial probability does not exist, the state
205	203		20 institution (as defined in IC 12-7-2-184) or the third party contractor
206	204		21 shall initiate regular commitment proceedings under IC 12-26. If a
207	205		22 substantial probability does exist, the state institution (as defined in
208	206		23 IC 12-7-2-184) or third party contractor shall retain the defendant:
209	207		24 (1) until the defendant attains the ability to understand the
210	208		25 proceedings and assist in the preparation of the defendant's
211	209		26 defense and is returned to the proper court for trial; or
212	210		27 (2) for six (6) months from the date of the:
213	211		28 (A) defendant's admission to a state institution (as defined in
214	212		29 IC 12-7-2-184); or
215	213		30 (B) initiation of competency restoration services by a third
216	214		31 party contractor;
217	215		32 whichever first occurs.
218	216		33 SECTION 4. IC 35-36-3-4 IS AMENDED TO READ AS
219	217		34 FOLLOWS [EFFECTIVE JULY 1, 2023]: Sec. 4. If a defendant who
220	218		35 was found under section 3 of this chapter to have had a substantial
221	219		36 probability of attaining the ability to understand the proceedings and
222	220		37 assist in the preparation of the defendant's defense:
223	221		38 (1) has not attained that ability within six (6) months after the date
224	222		39 of the:
225	223		40 (1) (A) defendant's admission to a state institution (as defined
226	224		41 in IC 12-7-2-184); or
227	225		42 (2) (B) initiation of competency restoration services by a third
228	226		HB 1194—LS 7095/DI 149 6
229	227		1 party contractor; or
230	228		2 (2) has not had the criminal charges dismissed under section
231	229		3 3(c) of this chapter;
232	230		4 the state institution (as defined in IC 12-7-2-184) or the third party
233	231		5 contractor, if the division of mental health and addiction has entered
234	232		6 into a contract for the provision of competency restoration services by
235	233		7 a third party, shall institute regular commitment proceedings under
236	234		8 IC 12-26.
237	235		HB 1194—LS 7095/DI 149 7
238	236		COMMITTEE REPORT
239	237		Mr. Speaker: Your Committee on Courts and Criminal Code, to
240	238		which was referred House Bill 1194, has had the same under
241	239		consideration and begs leave to report the same back to the House with
242	240		the recommendation that said bill be amended as follows:
243	241		Page 2, line 3, delete "IC 35-36-3-1(e);" and insert "IC
244	242		35-36-3-1(f);".
245	243		Page 3, line 11, delete "appoint:" and insert "appoint".
246	244		Page 3, line 12, delete "(1)".
247	245		Page 3, line 12, delete "who meet the following" and insert "who:".
248	246		Page 3, run in lines 11 through 12.
249	247		Page 3, delete line 13.
250	248		Page 3, delete lines 14 through 23, begin a new line block indented
251	249		and insert:
252	250		"(1) meet the criteria of subsection (b); or
253	251		(2) are competent, are disinterested, have expertise in
254	252		determining competency, and are:
255	253		(A) licensed:
256	254		(i) under IC 25-23 as an advanced practice registered
257	255		nurse (APRN) with a certification as a psychiatric
258	256		mental health nurse practitioner; or
259	257		(ii) under IC 25-27.5 as a physician assistant specialized
260	258		in psychiatry and mental health; and
261	259		(B) certified by the division of mental health and addiction
262	260		as a competency evaluator.
263	261		(d) If both parties agree, only one (1) evaluation is required.
264	262		However, either party may reserve the right to one (1) or more
265	263		additional evaluations in further court proceedings.".
266	264		Page 3, line 24, delete "(d)" and insert "(e)".
267	265		Page 3, line 31, delete "(e)" and insert "(f)".
268	266		Page 4, line 15, delete "(f)" and insert "(g)".
269	267		Page 4, line 15, delete "(e)," and insert "(f),".
270	268		and when so amended that said bill do pass.
271	269		(Reference is to HB 1194 as introduced.)
272	270		MCNAMARA
273	271		Committee Vote: yeas 13, nays 0.
274		-	HB 1194—LS 7095/DI 149 8
275		-	COMMITTEE REPORT
276		-	Mr. Speaker: Your Committee on Ways and Means, to which was
277		-	referred House Bill 1194, has had the same under consideration and
278		-	begs leave to report the same back to the House with the
279		-	recommendation that said bill do pass.
280		-	(Reference is to HB 1194 as printed January 26, 2023.)
281		-	THOMPSON
282		-	Committee Vote: Yeas 15, Nays 1
283	272		HB 1194—LS 7095/DI 149