*HB1238.2* January 30, 2024 HOUSE BILL No. 1238 _____ DIGEST OF HB 1238 (Updated January 30, 2024 10:29 am - DI 134) Citations Affected: IC 12-21; IC 12-23; IC 35-36. Synopsis: Competency evaluation. Requires the division of mental health and addiction to establish a training program to certify a competency evaluator to assist a court in determining competency. 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. January 25, 2024, amended, reported — Do Pass. Referred to Committee on Ways and Means pursuant to Rule 127. January 30, 2024, amended, reported — Do Pass. HB 1238—LS 6970/DI 151 January 30, 2024 Second Regular Session of the 123rd General Assembly (2024) 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 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 12-21-5-1.5, AS AMENDED BY P.L.162-2023, 2 SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE 3 JULY 1, 2024]: Sec. 1.5. (a) The division shall do the following: 4 (1) Adopt rules under IC 4-22-2 to establish and maintain criteria 5 to determine patient eligibility and priority for publicly supported 6 mental health and addiction services. The rules must include 7 criteria for patient eligibility and priority based on the following: 8 (A) A patient's income. 9 (B) A patient's level of daily functioning. 10 (C) A patient's prognosis. 11 (2) Within the limits of appropriated funds, contract with a 12 network of providers to provide services in an appropriate setting 13 that is the least restrictive to individuals who qualify for the 14 services. 15 (3) Require the providers of services funded directly by the 16 division to be in good standing with an appropriate accrediting 17 body as required by rules adopted under IC 4-22-2 by the HB 1238—LS 6970/DI 151 2 1 division. 2 (4) Develop a provider profile that must be used to evaluate the 3 performance of a provider. A provider's profile must include input 4 from consumers, citizens, and representatives of the mental health 5 ombudsman program (IC 12-27-9) regarding the provider's: 6 (A) information provided to the patient on patient rights before 7 treatment; 8 (B) accessibility, acceptability, and continuity of services 9 provided or requested; and 10 (C) total cost of care per individual, using state administered 11 funds. 12 (5) Ensure compliance with all other performance criteria set 13 forth in a provider contract. In addition to the requirements set 14 forth in IC 12-21-2-7, a provider contract must include the 15 following: 16 (A) A requirement that the standards and criteria used in the 17 evaluation of care plans be available and accessible to the 18 patient. 19 (B) A requirement that the provider involve the patient in the 20 choice of and preparation of the treatment plan to the greatest 21 extent feasible. 22 (C) A provision encouraging the provider to intervene in a 23 patient's situation as early as possible, balancing the patient's 24 right to liberty with the need for treatment. 25 (D) A requirement that the provider set up and implement an 26 internal appeal process for the patient. 27 (6) Establish a toll free telephone number that operates during 28 normal business hours for individuals to make comments to the 29 division in a confidential manner regarding services or service 30 providers. 31 (7) Develop a confidential system to evaluate complaints and 32 patient appeals received by the division of mental health and 33 addiction and to take appropriate action regarding the results of 34 an investigation. A provider is entitled to request and to have a 35 hearing before information derived from the investigation is 36 incorporated into the provider's profile. Information contained 37 within the provider profile is subject to inspection and copying 38 under IC 5-14-3-3. 39 (8) Ensure that providers of services of residential care and 40 supported housing for chronic addiction, when used as a recovery 41 residence that receives reimbursement from the office, acquire 42 and maintain the certification required in IC 12-21-2-3(14). HB 1238—LS 6970/DI 151 3 1 (9) Establish and maintain a help line: 2 (A) to provide confidential emotional support and referrals to 3 behavioral health resources to individuals who call the help 4 line; and 5 (B) that is accessible by calling a toll free telephone number. 6 (10) In consultation with: 7 (A) the medical licensing board; 8 (B) a forensic psychiatrist or a forensic psychologist 9 holding a doctorate; or 10 (C) both the medical licensing board and a forensic 11 psychiatrist or a forensic psychologist holding a doctorate; 12 establish a training program to certify a competency 13 evaluator who may assist a criminal or juvenile court in 14 determining competency to stand trial or appear at a juvenile 15 adjudication. The training program must consist of at least 16 forty (40) hours of instruction. 17 (b) The division may adopt rules under IC 4-22-2 to establish 18 standards for residential care and supported housing for chronic 19 addiction when used as a recovery residence. 20 SECTION 2. IC 12-23-19-2, AS AMENDED BY P.L.114-2022, 21 SECTION 21, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE 22 JULY 1, 2024]: Sec. 2. (a) An individual is eligible for mental health 23 and addiction forensic treatment services if: 24 (1) subject to subsection (d), the individual: 25 (A) is a member of a household with an annual income that 26 does not exceed two hundred percent (200%) of the federal 27 income poverty level; 28 (B) is a resident of Indiana; 29 (C) is: 30 (i) at least eighteen (18) years of age; or 31 (ii) subject to the approval of the Indiana commission to 32 combat substance use disorder, less than eighteen (18) years 33 of age and the individual is a defendant whose case is either 34 waived from juvenile court to adult court or directly filed in 35 adult court; and 36 (D) has entered the criminal justice system as a felon or with 37 a prior felony conviction or is ordered to be committed for 38 competency restoration services as described in 39 IC 35-36-3-1(b); IC 35-36-3-1(f); and 40 (2) subject to subsection (b), reimbursement for the service is not 41 available to the individual through any of the following: 42 (A) A policy of accident and sickness insurance (IC 27-8-5). HB 1238—LS 6970/DI 151 4 1 (B) A health maintenance organization contract (IC 27-13). 2 (C) The Medicaid program (IC 12-15), excluding the Medicaid 3 rehabilitation program and the Behavioral and Primary Health 4 Coordination Program under Section 1915(i) of the Social 5 Security Act. 6 (D) The federal Medicare program or any other federal 7 assistance program. 8 (b) If an individual is not entitled to reimbursement from the sources 9 described in subsection (a)(2) of the full amount of the cost of the 10 mental health and addiction forensic treatment services, grants and 11 vouchers under this chapter may be used to provide those services to 12 the extent that the costs of those services exceed the reimbursement the 13 individual is entitled to receive from the sources described in 14 subsection (a)(2), excluding any copayment or deductible that the 15 individual is required to pay. 16 (c) The division shall determine the extent to which an individual 17 who is provided mental health and addiction forensic treatment 18 services under this chapter is entitled to receive reimbursement from 19 the sources described in subsection (a)(2). 20 (d) Notwithstanding subsection (a)(1)(D), subject to available 21 funding and on the recommendation of the justice reinvestment 22 advisory council (established by IC 33-38-9.5-2), the division may 23 operate a pilot program applying the eligibility criteria in this section 24 to individuals who are charged with a misdemeanor. If the division 25 operates a pilot program under this subsection, the division shall issue 26 annual reports to the justice reinvestment advisory council. 27 SECTION 3. IC 35-36-3-1, AS AMENDED BY P.L.74-2022, 28 SECTION 16, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE 29 JULY 1, 2024]: Sec. 1. (a) If at any time before the final submission of 30 any criminal case to the court or the jury trying the case, the court has 31 reasonable grounds for believing that the defendant lacks the ability to 32 understand the proceedings and assist in the preparation of a defense, 33 the court shall immediately fix a time for a hearing to determine 34 whether the defendant has that ability. 35 (b) This subsection applies to a defendant charged with murder 36 or a Level 1, Level 2, Level 3, Level 4, or Level 5 felony. When a 37 court sets a hearing under subsection (a), the court shall appoint 38 two (2) or three (3) individuals to determine the defendant's 39 competency. Each of the appointed individuals must be a 40 psychiatrist, or a psychologist endorsed by the Indiana state board 41 of examiners in psychology as a health service provider in 42 psychology. HB 1238—LS 6970/DI 151 5 1 An individual appointed under this subsection must be competent 2 and disinterested. 3 (c) This subsection applies to a defendant charged with a 4 misdemeanor or a Level 6 felony. When a court sets a hearing 5 under subsection (a), the court shall appoint two (2) or three (3) 6 competent, disinterested: one (1) individual who: 7 (1) psychiatrists; 8 (1) is a: 9 (A) psychiatrist; or 10 (2) psychologists (B) psychologist endorsed by the Indiana 11 state board of examiners in psychology as a health service 12 providers provider in psychology; or 13 (3) physicians; 14 (2) is competent and disinterested; and 15 (3) has expertise in determining competency. 16 who have expertise in determining competency. 17 (d) In addition to the psychiatrist or psychologist appointed 18 under subsection (c), the court may appoint not more than two (2) 19 additional individuals to assist the court in determining 20 competency. Upon request of either party, the court shall appoint 21 at least one (1), but not more than two (2), additional individuals 22 to assist the court in determining competency. An individual 23 appointed under this subsection may be an individual: 24 (1) described in subsection (c); or 25 (2) who is competent and disinterested, has expertise in 26 determining competency, and is: 27 (A) licensed: 28 (i) under IC 25-23 as an advanced practice registered 29 nurse (APRN) with a certification as a psychiatric 30 mental health nurse practitioner; 31 (ii) under IC 25-27.5 as a physician assistant who 32 specializes in psychiatry or mental health; or 33 (iii) under IC 25-22.5 as a physician who specializes in 34 psychiatry or mental health; and 35 (B) certified by the division of mental health and addiction 36 as a competency evaluator. 37 (e) At least one (1) of the individuals appointed under this 38 subsection must be a psychiatrist or psychologist. However, none An 39 individual appointed under this section may not be an employee or 40 a contractor of a state institution (as defined in IC 12-7-2-184). The 41 individuals who are appointed shall examine the defendant and testify 42 at the hearing as to whether the defendant can understand the HB 1238—LS 6970/DI 151 6 1 proceedings and assist in the preparation of the defendant's defense. 2 (b) (f) At the hearing, other evidence relevant to whether the 3 defendant has the ability to understand the proceedings and assist in the 4 preparation of the defendant's defense may be introduced. If the court 5 finds that the defendant has the ability to understand the proceedings 6 and assist in the preparation of the defendant's defense, the trial shall 7 proceed. If the court finds that the defendant lacks this ability, it shall 8 delay or continue the trial and order the defendant committed to the 9 division of mental health and addiction. The division of mental health 10 and addiction shall provide competency restoration services or enter 11 into a contract for the provision of competency restoration services by 12 a third party in the: 13 (1) location where the defendant currently resides; or 14 (2) least restrictive setting appropriate to the needs of the 15 defendant and the safety of the defendant and others. 16 However, if the defendant is serving an unrelated executed sentence in 17 the department of correction at the time the defendant is committed to 18 the division of mental health and addiction under this section, the 19 division of mental health and addiction shall provide competency 20 restoration services or enter into a contract for the provision of 21 competency restoration services by a third party at a department of 22 correction facility agreed upon by the division of mental health and 23 addiction or the third party contractor and the department of correction. 24 A contract entered into with a third party under this subsection may 25 confer to the third party all authority the division would have in 26 providing competency restoration services to the defendant at a state 27 institution (as defined in IC 12-7-2-184). 28 (c) (g) If the court makes a finding under subsection (b), (f), the 29 court shall transmit any information required by the office of judicial 30 administration to the office of judicial administration for transmission 31 to the NICS (as defined in IC 35-47-2.5-2.5) in accordance with 32 IC 33-24-6-3. 33 SECTION 4. IC 35-36-3-3 IS AMENDED TO READ AS 34 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 3. (a) Within ninety 35 (90) days after: 36 (1) a defendant's admission to a state institution (as defined in 37 IC 12-7-2-184); or 38 (2) the initiation of competency restoration services to a defendant 39 by a third party contractor; 40 the superintendent of the state institution (as defined in IC 12-7-2-184) 41 or the director or medical director of the third party contractor, if the 42 division of mental health and addiction has entered into a contract for HB 1238—LS 6970/DI 151 7 1 the provision of competency restoration services by a third party, shall 2 certify to the proper court whether the defendant has a substantial 3 probability of attaining the ability to understand the proceedings and 4 assist in the preparation of the defendant's defense within the 5 foreseeable future. 6 (b) If a party files a motion to dismiss, the court may dismiss the 7 charges against the defendant without prejudice if the: 8 (1) defendant has been diagnosed with: 9 (A) dementia; 10 (B) Alzheimer's disease; or 11 (C) a traumatic brain injury; 12 (2) 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) defendant is charged with a misdemeanor or a Level 6 17 felony. 18 (b) (c) If a defendant's charges are not dismissed under 19 subsection (b) 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 5. IC 35-36-3-4 IS AMENDED TO READ AS 34 FOLLOWS [EFFECTIVE JULY 1, 2024]: 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 1238—LS 6970/DI 151 8 1 party contractor; or 2 (2) has not had the criminal charges dismissed under section 3 3(b) 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 1238—LS 6970/DI 151 9 COMMITTEE REPORT Mr. Speaker: Your Committee on Courts and Criminal Code, to which was referred House Bill 1238, 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 1, between the enacting clause and line 1, begin a new paragraph and insert: "SECTION 1. IC 12-21-5-1.5, AS AMENDED BY P.L.162-2023, SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 1.5. (a) The division shall do the following: (1) Adopt rules under IC 4-22-2 to establish and maintain criteria to determine patient eligibility and priority for publicly supported mental health and addiction services. The rules must include criteria for patient eligibility and priority based on the following: (A) A patient's income. (B) A patient's level of daily functioning. (C) A patient's prognosis. (2) Within the limits of appropriated funds, contract with a network of providers to provide services in an appropriate setting that is the least restrictive to individuals who qualify for the services. (3) Require the providers of services funded directly by the division to be in good standing with an appropriate accrediting body as required by rules adopted under IC 4-22-2 by the division. (4) Develop a provider profile that must be used to evaluate the performance of a provider. A provider's profile must include input from consumers, citizens, and representatives of the mental health ombudsman program (IC 12-27-9) regarding the provider's: (A) information provided to the patient on patient rights before treatment; (B) accessibility, acceptability, and continuity of services provided or requested; and (C) total cost of care per individual, using state administered funds. (5) Ensure compliance with all other performance criteria set forth in a provider contract. In addition to the requirements set forth in IC 12-21-2-7, a provider contract must include the following: (A) A requirement that the standards and criteria used in the evaluation of care plans be available and accessible to the HB 1238—LS 6970/DI 151 10 patient. (B) A requirement that the provider involve the patient in the choice of and preparation of the treatment plan to the greatest extent feasible. (C) A provision encouraging the provider to intervene in a patient's situation as early as possible, balancing the patient's right to liberty with the need for treatment. (D) A requirement that the provider set up and implement an internal appeal process for the patient. (6) Establish a toll free telephone number that operates during normal business hours for individuals to make comments to the division in a confidential manner regarding services or service providers. (7) Develop a confidential system to evaluate complaints and patient appeals received by the division of mental health and addiction and to take appropriate action regarding the results of an investigation. A provider is entitled to request and to have a hearing before information derived from the investigation is incorporated into the provider's profile. Information contained within the provider profile is subject to inspection and copying under IC 5-14-3-3. (8) Ensure that providers of services of residential care and supported housing for chronic addiction, when used as a recovery residence that receives reimbursement from the office, acquire and maintain the certification required in IC 12-21-2-3(14). (9) Establish and maintain a help line: (A) to provide confidential emotional support and referrals to behavioral health resources to individuals who call the help line; and (B) that is accessible by calling a toll free telephone number. (10) In consultation with: (A) the medical licensing board; (B) a forensic psychiatrist or a psychologist holding a doctorate; or (C) both the medical licensing board and a forensic psychiatrist or a psychologist holding a doctorate; establish a training program to certify a competency evaluator who may assist a criminal or juvenile court in determining competency to stand trial or appear at a juvenile adjudication. The training program must consist of at least forty (40) hours of instruction. (b) The division may adopt rules under IC 4-22-2 to establish HB 1238—LS 6970/DI 151 11 standards for residential care and supported housing for chronic addiction when used as a recovery residence.". Page 2, line 3, delete "IC 35-36-3-1(e);" and insert "IC 35-36-3-1(f);". Page 2, delete lines 33 through 42, begin a new paragraph and insert: "SECTION 3. IC 35-36-3-1, AS AMENDED BY P.L.74-2022, SECTION 16, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 1. (a) If at any time before the final submission of any criminal case to the court or the jury trying the case, the court has reasonable grounds for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of a defense, the court shall immediately fix a time for a hearing to determine whether the defendant has that ability. (b) This subsection applies to a defendant charged with murder or a Level 1, Level 2, Level 3, Level 4, or Level 5 felony. When a court sets a hearing under subsection (a), the court shall appoint two (2) or three (3) individuals to determine the defendant's competency. One (1) of the appointed individuals must be a psychiatrist, or a psychologist endorsed by the Indiana state board of examiners in psychology as a health service provider in psychology. The remaining one (1) or two (2) individuals may be: (1) a psychiatrist; (2) a psychologist endorsed by the Indiana state board of examiners in psychology as a health service provider in psychology; or (3) an individual: (A) licensed: (i) under IC 25-23 as an advanced practice registered nurse (APRN) with a certification as a psychiatric mental health nurse practitioner; (ii) under IC 25-27.5 as a physician assistant who specializes in psychiatry or mental health; or (iii) under IC 25-22.5 as a physician who specializes in psychiatry or mental health; and (B) certified by the division of mental health and addiction as a competency evaluator. An individual appointed under this subsection must be competent and disinterested. (c) This subsection applies to a defendant charged with a misdemeanor or a Level 6 felony. When a court sets a hearing under subsection (a), the court shall appoint two (2) or three (3) HB 1238—LS 6970/DI 151 12 competent, disinterested: one (1) individual who: (1) psychiatrists; (1) is a: (A) psychiatrist; or (2) psychologists (B) psychologist endorsed by the Indiana state board of examiners in psychology as a health service providers provider in psychology; or (3) physicians; (2) is competent and disinterested; and (3) has expertise in determining competency. who have expertise in determining competency. (d) In addition to the psychiatrist or psychologist appointed under subsection (c), the court may appoint not more than two (2) additional individuals to assist the court in determining competency. Upon request of either party, the court shall appoint at least one (1), but not more than two (2), additional individuals to assist the court in determining competency. An individual appointed under this subsection may be an individual: (1) described in subsection (c); or (2) who is competent and disinterested, has expertise in determining competency, and is: (A) licensed: (i) under IC 25-23 as an advanced practice registered nurse (APRN) with a certification as a psychiatric mental health nurse practitioner; (ii) under IC 25-27.5 as a physician assistant who specializes in psychiatry or mental health; or (iii) under IC 25-22.5 as a physician who specializes in psychiatry or mental health; and (B) certified by the division of mental health and addiction as a competency evaluator. (e) At least one (1) of the individuals appointed under this subsection must be a psychiatrist or psychologist. However, none An individual appointed under this section may not be an employee or a contractor of a state institution (as defined in IC 12-7-2-184). The individuals who are appointed shall examine the defendant and testify at the hearing as to whether the defendant can understand the proceedings and assist in the preparation of the defendant's defense. (b) (f) At the hearing, other evidence relevant to whether the defendant has the ability to understand the proceedings and assist in the preparation of the defendant's defense may be introduced. If the court finds that the defendant has the ability to understand the proceedings HB 1238—LS 6970/DI 151 13 and assist in the preparation of the defendant's defense, the trial shall proceed. If the court finds that the defendant lacks this ability, it shall delay or continue the trial and order the defendant committed to the division of mental health and addiction. The division of mental health and addiction shall provide competency restoration services or enter into a contract for the provision of competency restoration services by a third party in the: (1) location where the defendant currently resides; or (2) least restrictive setting appropriate to the needs of the defendant and the safety of the defendant and others. However, if the defendant is serving an unrelated executed sentence in the department of correction at the time the defendant is committed to the division of mental health and addiction under this section, the division of mental health and addiction shall provide competency restoration services or enter into a contract for the provision of competency restoration services by a third party at a department of correction facility agreed upon by the division of mental health and addiction or the third party contractor and the department of correction. A contract entered into with a third party under this subsection may confer to the third party all authority the division would have in providing competency restoration services to the defendant at a state institution (as defined in IC 12-7-2-184). (c) (g) If the court makes a finding under subsection (b), (f), the court shall transmit any information required by the office of judicial administration to the office of judicial administration for transmission to the NICS (as defined in IC 35-47-2.5-2.5) in accordance with IC 33-24-6-3.". Delete page 3. Page 4, delete lines 1 through 24. Renumber all SECTIONS consecutively. and when so amended that said bill do pass. (Reference is to HB 1238 as introduced.) MCNAMARA Committee Vote: yeas 12, nays 0. HB 1238—LS 6970/DI 151 14 COMMITTEE REPORT Mr. Speaker: Your Committee on Ways and Means, to which was referred House Bill 1238, 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 3, line 8, delete "a psychologist" and insert "a forensic psychologist". Page 3, line 11, delete "a psychologist" and insert "a forensic psychologist". Page 4, line 39, delete "One (1)" and insert "Each". Page 4, line 42, delete "The remaining one (1) or two (2) individuals may be:". Page 5, delete lines 1 through 15. and when so amended that said bill do pass. (Reference is to HB 1238 as printed January 25, 2024.) THOMPSON Committee Vote: yeas 20, nays 0. HB 1238—LS 6970/DI 151