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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between statutes enacted by the 2023 Regular Session of the General Assembly.
HOUSE ENROLLED ACT No. 1238
AN ACT to amend the Indiana Code concerning criminal law and
procedure.
Be it enacted by the General Assembly of the State of Indiana:
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
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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
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
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(B) that is accessible by calling a toll free telephone number.
(10) In consultation with the medical licensing board, a
forensic psychiatrist, and a forensic psychologist holding a
doctorate, establish a training program to certify:
(A) an advanced practice registered nurse with a
certification as a psychiatric mental health nurse
practitioner; or
(B) a physician assistant who specializes in psychiatry or
mental health;
as 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. The division
may adopt rules under IC 4-22-2 to implement this
subdivision.
(b) The division may adopt rules under IC 4-22-2 to establish
standards for residential care and supported housing for chronic
addiction when used as a recovery residence.
SECTION 2. IC 12-23-19-2, AS AMENDED BY P.L.114-2022,
SECTION 21, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 2. (a) An individual is eligible for mental health
and addiction forensic treatment services if:
(1) subject to subsection (d), the individual:
(A) is a member of a household with an annual income that
does not exceed two hundred percent (200%) of the federal
income poverty level;
(B) is a resident of Indiana;
(C) is:
(i) at least eighteen (18) years of age; or
(ii) subject to the approval of the Indiana commission to
combat substance use disorder, less than eighteen (18) years
of age and the individual is a defendant whose case is either
waived from juvenile court to adult court or directly filed in
adult court; and
(D) has entered the criminal justice system as a felon or with
a prior felony conviction or is ordered to be committed for
competency restoration services as described in
IC 35-36-3-1(b); IC 35-36-3-1(f); and
(2) subject to subsection (b), reimbursement for the service is not
available to the individual through any of the following:
(A) A policy of accident and sickness insurance (IC 27-8-5).
(B) A health maintenance organization contract (IC 27-13).
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(C) The Medicaid program (IC 12-15), excluding the Medicaid
rehabilitation program and the Behavioral and Primary Health
Coordination Program under Section 1915(i) of the Social
Security Act.
(D) The federal Medicare program or any other federal
assistance program.
(b) If an individual is not entitled to reimbursement from the sources
described in subsection (a)(2) of the full amount of the cost of the
mental health and addiction forensic treatment services, grants and
vouchers under this chapter may be used to provide those services to
the extent that the costs of those services exceed the reimbursement the
individual is entitled to receive from the sources described in
subsection (a)(2), excluding any copayment or deductible that the
individual is required to pay.
(c) The division shall determine the extent to which an individual
who is provided mental health and addiction forensic treatment
services under this chapter is entitled to receive reimbursement from
the sources described in subsection (a)(2).
(d) Notwithstanding subsection (a)(1)(D), subject to available
funding and on the recommendation of the justice reinvestment
advisory council (established by IC 33-38-9.5-2), the division may
operate a pilot program applying the eligibility criteria in this section
to individuals who are charged with a misdemeanor. If the division
operates a pilot program under this subsection, the division shall issue
annual reports to the justice reinvestment advisory council.
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. Each 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. An individual appointed under this subsection must be
competent and disinterested.
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(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)
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
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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
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.
SECTION 4. IC 35-36-3-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 3. (a) Within ninety
(90) days after:
(1) a defendant's admission to a state institution (as defined in
IC 12-7-2-184); or
(2) the initiation of competency restoration services to a defendant
by a third party contractor;
the superintendent of the state institution (as defined in IC 12-7-2-184)
or the director or medical director of the third party contractor, if the
division of mental health and addiction has entered into a contract for
the provision of competency restoration services by a third party, shall
certify to the proper court whether the defendant has a substantial
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probability of attaining the ability to understand the proceedings and
assist in the preparation of the defendant's defense within the
foreseeable future.
(b) If a party files a motion to dismiss, the court may dismiss the
charges against the defendant without prejudice if the:
(1) defendant has been diagnosed with:
(A) dementia;
(B) Alzheimer's disease; or
(C) a traumatic brain injury;
(2) defendant's diagnosis substantially impacts the
defendant's ability to understand the proceedings and assist
in the preparation of the defendant's defense within the
foreseeable future; and
(3) defendant is charged with a misdemeanor or a Level 6
felony.
(b) (c) If a defendant's charges are not dismissed under
subsection (b) and a substantial probability does not exist, the state
institution (as defined in IC 12-7-2-184) or the third party contractor
shall initiate regular commitment proceedings under IC 12-26. If a
substantial probability does exist, the state institution (as defined in
IC 12-7-2-184) or third party contractor shall retain the defendant:
(1) until the defendant attains the ability to understand the
proceedings and assist in the preparation of the defendant's
defense and is returned to the proper court for trial; or
(2) for six (6) months from the date of the:
(A) defendant's admission to a state institution (as defined in
IC 12-7-2-184); or
(B) initiation of competency restoration services by a third
party contractor;
whichever first occurs.
SECTION 5. IC 35-36-3-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 4. If a defendant who
was found under section 3 of this chapter to have had a substantial
probability of attaining the ability to understand the proceedings and
assist in the preparation of the defendant's defense:
(1) has not attained that ability within six (6) months after the date
of the:
(1) (A) defendant's admission to a state institution (as defined
in IC 12-7-2-184); or
(2) (B) initiation of competency restoration services by a third
party contractor; or
(2) has not had the criminal charges dismissed under section
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3(b) of this chapter;
the state institution (as defined in IC 12-7-2-184) or the third party
contractor, if the division of mental health and addiction has entered
into a contract for the provision of competency restoration services by
a third party, shall institute regular commitment proceedings under
IC 12-26.
HEA 1238 — Concur Speaker of the House of Representatives
President of the Senate
President Pro Tempore
Governor of the State of Indiana
Date: Time:
HEA 1238 — Concur