*HB1194.2*
February 2, 2023
HOUSE BILL No. 1194
_____
DIGEST OF HB 1194 (Updated February 1, 2023 3:02 pm - DI 140)
Citations Affected: IC 12-23; IC 35-36.
Synopsis: Competency to stand trial. Provides that certain licensed
individuals may examine a defendant and testify as to whether the
defendant can understand the criminal proceedings and assist in the
preparation of the defendant's defense. Allows a court to dismiss
criminal charges, without prejudice, upon motion by either party, if: (1)
a substantial probability does not exist that a defendant will attain
competency restoration or if the defendant has not attained competency
restoration after six months of restoration services; (2) the defendant
has a certain diagnosis; and (3) the defendant is charged with a
misdemeanor or Level 6 felony. Makes conforming changes.
Effective: July 1, 2023.
McNamara, Meltzer, Gore,
Ledbetter
January 10, 2023, read first time and referred to Committee on Courts and Criminal Code.
January 26, 2023, amended, reported — Do Pass. Referred to Committee on Ways and
Means pursuant to Rule 127.
February 2, 2023, reported — Do Pass.
HB 1194—LS 7095/DI 149 February 2, 2023
First Regular Session of the 123rd General Assembly (2023)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in this style type. Also, the
word NEW will appear in that style type in the introductory clause of each SECTION that adds
a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
between statutes enacted by the 2022 Regular Session of the General Assembly.
HOUSE BILL No. 1194
A BILL FOR AN ACT to amend the Indiana Code concerning
human services.
Be it enacted by the General Assembly of the State of Indiana:
1 SECTION 1. IC 12-23-19-2, AS AMENDED BY P.L.114-2022,
2 SECTION 21, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
3 JULY 1, 2023]: Sec. 2. (a) An individual is eligible for mental health
4 and addiction forensic treatment services if:
5 (1) subject to subsection (d), the individual:
6 (A) is a member of a household with an annual income that
7 does not exceed two hundred percent (200%) of the federal
8 income poverty level;
9 (B) is a resident of Indiana;
10 (C) is:
11 (i) at least eighteen (18) years of age; or
12 (ii) subject to the approval of the Indiana commission to
13 combat substance use disorder, less than eighteen (18) years
14 of age and the individual is a defendant whose case is either
15 waived from juvenile court to adult court or directly filed in
16 adult court; and
17 (D) has entered the criminal justice system as a felon or with
HB 1194—LS 7095/DI 149 2
1 a prior felony conviction or is ordered to be committed for
2 competency restoration services as described in
3 IC 35-36-3-1(b); IC 35-36-3-1(f); and
4 (2) subject to subsection (b), reimbursement for the service is not
5 available to the individual through any of the following:
6 (A) A policy of accident and sickness insurance (IC 27-8-5).
7 (B) A health maintenance organization contract (IC 27-13).
8 (C) The Medicaid program (IC 12-15), excluding the Medicaid
9 rehabilitation program and the Behavioral and Primary Health
10 Coordination Program under Section 1915(i) of the Social
11 Security Act.
12 (D) The federal Medicare program or any other federal
13 assistance program.
14 (b) If an individual is not entitled to reimbursement from the sources
15 described in subsection (a)(2) of the full amount of the cost of the
16 mental health and addiction forensic treatment services, grants and
17 vouchers under this chapter may be used to provide those services to
18 the extent that the costs of those services exceed the reimbursement the
19 individual is entitled to receive from the sources described in
20 subsection (a)(2), excluding any copayment or deductible that the
21 individual is required to pay.
22 (c) The division shall determine the extent to which an individual
23 who is provided mental health and addiction forensic treatment
24 services under this chapter is entitled to receive reimbursement from
25 the sources described in subsection (a)(2).
26 (d) Notwithstanding subsection (a)(1)(D), subject to available
27 funding and on the recommendation of the justice reinvestment
28 advisory council (established by IC 33-38-9.5-2), the division may
29 operate a pilot program applying the eligibility criteria in this section
30 to individuals who are charged with a misdemeanor. If the division
31 operates a pilot program under this subsection, the division shall issue
32 annual reports to the justice reinvestment advisory council.
33 SECTION 2. IC 35-36-3-1, AS AMENDED BY P.L.74-2022,
34 SECTION 16, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
35 JULY 1, 2023]: Sec. 1. (a) If at any time before the final submission of
36 any criminal case to the court or the jury trying the case, the court has
37 reasonable grounds for believing that the defendant lacks the ability to
38 understand the proceedings and assist in the preparation of a defense,
39 the court shall immediately fix a time for a hearing to determine
40 whether the defendant has that ability.
41 (b) When a court sets a hearing under subsection (a), the court
42 shall appoint two (2) or three (3) individuals who:
HB 1194—LS 7095/DI 149 3
1 (1) are competent and disinterested;
2 (2) have expertise in determining competency; and
3 (3) are licensed in any of the following professions:
4 (1) (A) psychiatrists; Psychiatrist.
5 (2) (B) psychologists Psychologist endorsed by the Indiana
6 state board of examiners in psychology as health service
7 providers in psychology. or
8 (3) (C) physicians; Physician.
9 who have expertise in determining competency.
10 (c) Beginning July 1, 2024, when a court sets a hearing under
11 subsection (a), the court shall appoint two (2) or three (3)
12 individuals who:
13 (1) meet the criteria of subsection (b); or
14 (2) are competent, are disinterested, have expertise in
15 determining competency, and are:
16 (A) licensed:
17 (i) under IC 25-23 as an advanced practice registered
18 nurse (APRN) with a certification as a psychiatric
19 mental health nurse practitioner; or
20 (ii) under IC 25-27.5 as a physician assistant specialized
21 in psychiatry and mental health; and
22 (B) certified by the division of mental health and addiction
23 as a competency evaluator.
24 (d) If both parties agree, only one (1) evaluation is required.
25 However, either party may reserve the right to one (1) or more
26 additional evaluations in further court proceedings.
27 (e) At least one (1) of the individuals appointed under this
28 subsection (b) or (c) must be a licensed psychiatrist or psychologist.
29 However, none may be an employee or a contractor of a state
30 institution (as defined in IC 12-7-2-184). The individuals who are
31 appointed shall examine the defendant and testify at the hearing as to
32 whether the defendant can understand the proceedings and assist in the
33 preparation of the defendant's defense.
34 (b) (f) At the hearing, other evidence relevant to whether the
35 defendant has the ability to understand the proceedings and assist in the
36 preparation of the defendant's defense may be introduced. If the court
37 finds that the defendant has the ability to understand the proceedings
38 and assist in the preparation of the defendant's defense, the trial shall
39 proceed. If the court finds that the defendant lacks this ability, it shall
40 delay or continue the trial and order the defendant committed to the
41 division of mental health and addiction. The division of mental health
42 and addiction shall provide competency restoration services or enter
HB 1194—LS 7095/DI 149 4
1 into a contract for the provision of competency restoration services by
2 a third party in the:
3 (1) location where the defendant currently resides; or
4 (2) least restrictive setting appropriate to the needs of the
5 defendant and the safety of the defendant and others.
6 However, if the defendant is serving an unrelated executed sentence in
7 the department of correction at the time the defendant is committed to
8 the division of mental health and addiction under this section, the
9 division of mental health and addiction shall provide competency
10 restoration services or enter into a contract for the provision of
11 competency restoration services by a third party at a department of
12 correction facility agreed upon by the division of mental health and
13 addiction or the third party contractor and the department of correction.
14 A contract entered into with a third party under this subsection may
15 confer to the third party all authority the division would have in
16 providing competency restoration services to the defendant at a state
17 institution (as defined in IC 12-7-2-184).
18 (c) (g) If the court makes a finding under subsection (b), (f), the
19 court shall transmit any information required by the office of judicial
20 administration to the office of judicial administration for transmission
21 to the NICS (as defined in IC 35-47-2.5-2.5) in accordance with
22 IC 33-24-6-3.
23 SECTION 3. IC 35-36-3-3 IS AMENDED TO READ AS
24 FOLLOWS [EFFECTIVE JULY 1, 2023]: Sec. 3. (a) Within ninety
25 (90) days after:
26 (1) a defendant's admission to a state institution (as defined in
27 IC 12-7-2-184); or
28 (2) the initiation of competency restoration services to a defendant
29 by a third party contractor;
30 the superintendent of the state institution (as defined in IC 12-7-2-184)
31 or the director or medical director of the third party contractor, if the
32 division of mental health and addiction has entered into a contract for
33 the provision of competency restoration services by a third party, shall
34 certify to the proper court whether the defendant has a substantial
35 probability of attaining the ability to understand the proceedings and
36 assist in the preparation of the defendant's defense within the
37 foreseeable future.
38 (b) If:
39 (1) a substantial probability does not exist under subsection
40 (a); or
41 (2) the defendant has received competency restoration
42 services for more than six (6) months and has not been
HB 1194—LS 7095/DI 149 5
1 restored to competency;
2 then either party may file a motion to dismiss the charges without
3 prejudice.
4 (c) If a motion to dismiss is filed under subsection (b), the court
5 may grant the motion and dismiss the charges against the
6 defendant without prejudice if:
7 (1) the defendant has been diagnosed with:
8 (A) dementia;
9 (B) Alzheimer's disease;
10 (C) a traumatic brain injury; or
11 (D) an intellectual or developmental disability;
12 (2) the defendant's diagnosis substantially impacts the
13 defendant's ability to understand the proceedings and assist
14 in the preparation of the defendant's defense within the
15 foreseeable future; and
16 (3) the defendant is charged with a misdemeanor or a Level 6
17 felony.
18 (b) (d) If a defendant's charges are not dismissed under
19 subsection (c) and a substantial probability does not exist, the state
20 institution (as defined in IC 12-7-2-184) or the third party contractor
21 shall initiate regular commitment proceedings under IC 12-26. If a
22 substantial probability does exist, the state institution (as defined in
23 IC 12-7-2-184) or third party contractor shall retain the defendant:
24 (1) until the defendant attains the ability to understand the
25 proceedings and assist in the preparation of the defendant's
26 defense and is returned to the proper court for trial; or
27 (2) for six (6) months from the date of the:
28 (A) defendant's admission to a state institution (as defined in
29 IC 12-7-2-184); or
30 (B) initiation of competency restoration services by a third
31 party contractor;
32 whichever first occurs.
33 SECTION 4. IC 35-36-3-4 IS AMENDED TO READ AS
34 FOLLOWS [EFFECTIVE JULY 1, 2023]: Sec. 4. If a defendant who
35 was found under section 3 of this chapter to have had a substantial
36 probability of attaining the ability to understand the proceedings and
37 assist in the preparation of the defendant's defense:
38 (1) has not attained that ability within six (6) months after the date
39 of the:
40 (1) (A) defendant's admission to a state institution (as defined
41 in IC 12-7-2-184); or
42 (2) (B) initiation of competency restoration services by a third
HB 1194—LS 7095/DI 149 6
1 party contractor; or
2 (2) has not had the criminal charges dismissed under section
3 3(c) of this chapter;
4 the state institution (as defined in IC 12-7-2-184) or the third party
5 contractor, if the division of mental health and addiction has entered
6 into a contract for the provision of competency restoration services by
7 a third party, shall institute regular commitment proceedings under
8 IC 12-26.
HB 1194—LS 7095/DI 149 7
COMMITTEE REPORT
Mr. Speaker: Your Committee on Courts and Criminal Code, to
which was referred House Bill 1194, has had the same under
consideration and begs leave to report the same back to the House with
the recommendation that said bill be amended as follows:
Page 2, line 3, delete "IC 35-36-3-1(e);" and insert "IC
35-36-3-1(f);".
Page 3, line 11, delete "appoint:" and insert "appoint".
Page 3, line 12, delete "(1)".
Page 3, line 12, delete "who meet the following" and insert "who:".
Page 3, run in lines 11 through 12.
Page 3, delete line 13.
Page 3, delete lines 14 through 23, begin a new line block indented
and insert:
"(1) meet the criteria of subsection (b); or
(2) are competent, are disinterested, have expertise in
determining competency, and are:
(A) licensed:
(i) under IC 25-23 as an advanced practice registered
nurse (APRN) with a certification as a psychiatric
mental health nurse practitioner; or
(ii) under IC 25-27.5 as a physician assistant specialized
in psychiatry and mental health; and
(B) certified by the division of mental health and addiction
as a competency evaluator.
(d) If both parties agree, only one (1) evaluation is required.
However, either party may reserve the right to one (1) or more
additional evaluations in further court proceedings.".
Page 3, line 24, delete "(d)" and insert "(e)".
Page 3, line 31, delete "(e)" and insert "(f)".
Page 4, line 15, delete "(f)" and insert "(g)".
Page 4, line 15, delete "(e)," and insert "(f),".
and when so amended that said bill do pass.
(Reference is to HB 1194 as introduced.)
MCNAMARA
Committee Vote: yeas 13, nays 0.
HB 1194—LS 7095/DI 149 8
COMMITTEE REPORT
Mr. Speaker: Your Committee on Ways and Means, to which was
referred House Bill 1194, has had the same under consideration and
begs leave to report the same back to the House with the
recommendation that said bill do pass.
(Reference is to HB 1194 as printed January 26, 2023.)
THOMPSON
Committee Vote: Yeas 15, Nays 1
HB 1194—LS 7095/DI 149