Introduced Version
HOUSE BILL No. 1238
_____
DIGEST OF INTRODUCED BILL
Citations Affected: IC 12-23-19-2; IC 35-36-3.
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 if the defendant has a certain
diagnosis and the defendant is charged with a misdemeanor or Level
6 felony. Makes conforming changes.
Effective: July 1, 2024.
McNamara, Meltzer, Steuerwald,
Gore
January 9, 2024, read first time and referred to Committee on Courts and Criminal Code.
2024 IN 1238—LS 6970/DI 151 Introduced
Second Regular Session of the 123rd General Assembly (2024)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
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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 2023 Regular Session of the General Assembly.
HOUSE BILL No. 1238
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
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, 2024]: 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
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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(e); 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, 2024]: 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) competent, disinterested: one (1)
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1 individual who:
2 (1) psychiatrists;
3 (1) is a:
4 (A) psychiatrist; or
5 (2) psychologists (B) psychologist endorsed by the Indiana
6 state board of examiners in psychology as health service
7 providers in psychology; or
8 (3) physicians;
9 (2) is competent and disinterested; and
10 (3) has expertise in determining competency.
11 who have expertise in determining competency.
12 (c) Upon request of either party, the court shall appoint at least
13 one (1), but not more than two (2) additional individuals to assist
14 the court in determining competency. An individual appointed
15 under this subsection may be an individual:
16 (1) described in subsection (b); or
17 (2) who is competent and disinterested, has expertise in
18 determining competency, and is:
19 (A) licensed:
20 (i) under IC 25-23 as an advanced practice registered
21 nurse (APRN) with a certification as a psychiatric
22 mental health nurse practitioner; or
23 (ii) under IC 25-27.5 as a physician assistant who
24 specializes in psychiatry or mental health;
25 (iii) under IC 25-22.5 as a physician who specializes in
26 psychiatry or mental health; and
27 (B) certified by the division of mental health and addiction
28 as a competency evaluator.
29 (d) At least one (1) of the individuals appointed under this
30 subsection must be a psychiatrist or psychologist. However, none An
31 individual appointed under this section may not be an employee or
32 a contractor of a state institution (as defined in IC 12-7-2-184). The
33 individuals who are appointed shall examine the defendant and testify
34 at the hearing as to whether the defendant can understand the
35 proceedings and assist in the preparation of the defendant's defense.
36 (b) (e) At the hearing, other evidence relevant to whether the
37 defendant has the ability to understand the proceedings and assist in the
38 preparation of the defendant's defense may be introduced. If the court
39 finds that the defendant has the ability to understand the proceedings
40 and assist in the preparation of the defendant's defense, the trial shall
41 proceed. If the court finds that the defendant lacks this ability, it shall
42 delay or continue the trial and order the defendant committed to the
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1 division of mental health and addiction. The division of mental health
2 and addiction shall provide competency restoration services or enter
3 into a contract for the provision of competency restoration services by
4 a third party in the:
5 (1) location where the defendant currently resides; or
6 (2) least restrictive setting appropriate to the needs of the
7 defendant and the safety of the defendant and others.
8 However, if the defendant is serving an unrelated executed sentence in
9 the department of correction at the time the defendant is committed to
10 the division of mental health and addiction under this section, the
11 division of mental health and addiction shall provide competency
12 restoration services or enter into a contract for the provision of
13 competency restoration services by a third party at a department of
14 correction facility agreed upon by the division of mental health and
15 addiction or the third party contractor and the department of correction.
16 A contract entered into with a third party under this subsection may
17 confer to the third party all authority the division would have in
18 providing competency restoration services to the defendant at a state
19 institution (as defined in IC 12-7-2-184).
20 (c) (f) If the court makes a finding under subsection (b), (e), the
21 court shall transmit any information required by the office of judicial
22 administration to the office of judicial administration for transmission
23 to the NICS (as defined in IC 35-47-2.5-2.5) in accordance with
24 IC 33-24-6-3.
25 SECTION 3. IC 35-36-3-3 IS AMENDED TO READ AS
26 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 3. (a) Within ninety
27 (90) days after:
28 (1) a defendant's admission to a state institution (as defined in
29 IC 12-7-2-184); or
30 (2) the initiation of competency restoration services to a defendant
31 by a third party contractor;
32 the superintendent of the state institution (as defined in IC 12-7-2-184)
33 or the director or medical director of the third party contractor, if the
34 division of mental health and addiction has entered into a contract for
35 the provision of competency restoration services by a third party, shall
36 certify to the proper court whether the defendant has a substantial
37 probability of attaining the ability to understand the proceedings and
38 assist in the preparation of the defendant's defense within the
39 foreseeable future.
40 (b) If a party files a motion to dismiss, the court may dismiss the
41 charges against the defendant without prejudice if the:
42 (1) defendant has been diagnosed with:
2024 IN 1238—LS 6970/DI 151 5
1 (A) dementia;
2 (B) Alzheimer's disease; or
3 (C) a traumatic brain injury;
4 (2) defendant's diagnosis substantially impacts the
5 defendant's ability to understand the proceedings and assist
6 in the preparation of the defendant's defense within the
7 foreseeable future; and
8 (3) defendant is charged with a misdemeanor or a Level 6
9 felony.
10 (b) (c) If a defendant's charges are not dismissed under
11 subsection (b) and a substantial probability does not exist, the state
12 institution (as defined in IC 12-7-2-184) or the third party contractor
13 shall initiate regular commitment proceedings under IC 12-26. If a
14 substantial probability does exist, the state institution (as defined in
15 IC 12-7-2-184) or third party contractor shall retain the defendant:
16 (1) until the defendant attains the ability to understand the
17 proceedings and assist in the preparation of the defendant's
18 defense and is returned to the proper court for trial; or
19 (2) for six (6) months from the date of the:
20 (A) defendant's admission to a state institution (as defined in
21 IC 12-7-2-184); or
22 (B) initiation of competency restoration services by a third
23 party contractor;
24 whichever first occurs.
25 SECTION 4. IC 35-36-3-4 IS AMENDED TO READ AS
26 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 4. If a defendant who
27 was found under section 3 of this chapter to have had a substantial
28 probability of attaining the ability to understand the proceedings and
29 assist in the preparation of the defendant's defense:
30 (1) has not attained that ability within six (6) months after the date
31 of the:
32 (1) (A) defendant's admission to a state institution (as defined
33 in IC 12-7-2-184); or
34 (2) (B) initiation of competency restoration services by a third
35 party contractor; or
36 (2) has not had the criminal charges dismissed under section
37 3(b) of this chapter;
38 the state institution (as defined in IC 12-7-2-184) or the third party
39 contractor, if the division of mental health and addiction has entered
40 into a contract for the provision of competency restoration services by
41 a third party, shall institute regular commitment proceedings under
42 IC 12-26.
2024 IN 1238—LS 6970/DI 151