LEGISLATIVE SERVICES AGENCY
OFFICE OF FISCAL AND MANAGEMENT ANALYSIS
200 W. Washington St., Suite 301
Indianapolis, IN 46204
(317) 233-0696
iga.in.gov
FISCAL IMPACT STATEMENT
LS 6970 NOTE PREPARED: Feb 23, 2024
BILL NUMBER: HB 1238 BILL AMENDED: Feb 22, 2024
SUBJECT: Competency to Stand Trial.
FIRST AUTHOR: Rep. McNamara BILL STATUS: CR Adopted - 2
nd
House
FIRST SPONSOR: Sen. Brown L
FUNDS AFFECTED:XGENERAL IMPACT: State & Local
DEDICATED
FEDERAL
Summary of Legislation: This bill has the following provisions:
A. Competency Evaluator Certification Program – It 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.
B. Licensed Individuals – It 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.
C. Dismissal of Criminal Charges – It 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.
D. It makes conforming changes.
Effective Date: July 1, 2024.
Explanation of State Expenditures: (Revised) Competency Evaluator Certification Program – The
Division of Mental Health and Addiction (DMHA) indicates that its existing resources will be sufficient to
establish a competency certification training program for certain advanced practice registered nurses
(APRN’s) and physician assistants (PA’s) to certify that they are qualified to determine competency to either
stand trial or appear at a juvenile adjudication.
HB 1238 1 Explanation of State Revenues: Dismissal of Criminal Charges – Cases that are dismissed would cause a
minor revenue loss to state General Fund and the State User Fee Fund.
Additional Information - The maximum fine for a misdemeanor depends on the class of the offense and
ranges between $500 and $5,000. The maximum fine for all felony levels is $10,000. Criminal fines are
deposited into the Common School Fund. The total fee revenue per case would range between $113 and
$135. The amount of court fees deposited will vary depending on whether the case is filed in a court of
record or a municipal court. The following linked document describes the fees and distribution of the
revenue: Court fees imposed in criminal, juvenile, and civil violation cases.
Explanation of Local Expenditures: Competency Evaluator – Currently, a minimum two or three
physicians, psychiatrists, or psychologists are needed to serve as expert witnesses to evaluate and testify
about a defendant’s competency to stand trial in all criminal cases.
Under this bill, if a person is charged with either a misdemeanor or Level 6 felony, a psychiatrist or a
psychologist who is endorsed by the Indiana State Board of Examiners would make the initial evaluation to
determine a defendant’s competency to stand trial. After this initial evaluation, either party can request up
to two additional evaluations which could be performed by another psychiatrist, psychologist or an APRN
or PA who is certified by the DMHA as a competency evaluator.
For persons charged with either murder or a Level 1 through 5 felony, two or three evaluations by either a
psychiatrist or a psychologist would still be required. Physicians without a psychiatric background would
not be permitted to perform competency evaluations.
These changes in competency evaluations for misdemeanors and Level 6 felonies could allow a county to
spend less on these evaluations or reduce its pretrial population in county jails in one of three ways.
1. Fee payments for expert witnesses could be reduced if evaluators charge a lower fee because they
are not physicians, psychiatrists, or psychologists. Currently, hourly rates range between $200 and
$300 for psychologists and between $200 and $375 for psychiatrists. No information is available
about potential hourly rates that either APRNs or PAs would charge.
2. If one evaluation is sufficient to determine a defendant’s competency status in cases in which a
person is charged with either a misdemeanor or Level 6 felony, the payments to expert witnesses
could be reduced.
3. If more than one evaluation is needed, PAs and APRNs could substitute as one of the evaluators in
competency examinations. Competency hearings could be scheduled sooner reducing the time that
defendants are held pretrial in county jails, if these certified PA’s and APRN’s expand the pool of
persons who qualify to perform these evaluations.
For the 1,536 unduplicated competency cases filed between January 2016, and November 2023, the average
time between when the criminal charge is filed and when a competency hearing is scheduled is 327 days.
Dismissal of Criminal Charges – DMHA reports that persons who are diagnosed with certain developmental
disabilities, dementia, or traumatic brain injuries may not be able to have their competency restored even
though they are required by state law to be committed to the state psychiatric hospital system for competency
restoration. As proposed, a court may dismiss cases without prejudice against defendants who are charged
HB 1238 2 with misdemeanors or Level 6 felonies and have been diagnosed with dementia, Alzheimer's disease or a
traumatic brain injury. (Cases dismissed without prejudice can be filed again at some point.)
Since misdemeanors and Level 6 felonies comprise 66% of all competency hearings between CY 2018 and
2022 (shown in the following table) this could reduce both court time and the number of persons who are
committed to DMHA psychiatric hospitals.
Additional Information– As an illustration of the number of cases where a competency hearing occurred, the
following table provides the time between filing dates and hearing dates for competency filings between
January 2016 and December 2023 where information on competency hearings as an event was available from
the Indiana Supreme Court. [This table includes criminal cases in which a court reported that a competency
hearing was held between January 2016 and November 2023. It does not include all cases where a
psychiatrist or psychologist evaluated a person to determine whether they were competent to represent
themselves in a criminal trial.]
Unduplicated Competency Filings Between January 2016 and November 2023
Type of Case
Number of
Cases
Share of Total
Cases
Average Days between
Filing to Hearing
Misdemeanor 464 30% 284
Juvenile Delinquency 1 0% 348
Level 6 Felony 550 36% 322
Level 5 Felony 251 16% 349
Level 4 Felony 92 6% 408
Level 3 Felony 77 5% 371
Level 2 Felony 21 1% 505
Level 1 felony 49 3% 342
Murder 31 2% 382
Total 1,536 100% 327
Over 40% of these cases were filed in the following counties during this period: Allen, Marion, Clark,
Monroe, Vigo, LaPorte, Bartholomew, and Floyd Counties.
Competency Evaluator – Based on surveys completed during the 2021 license renewal cycle, a total of 569
APRN’s reported an employment specialty in psychiatry. From the surveys that were completed during the
2020 renewal cycle, a total of 16 PA’s reported that the employment specialty of their supervising physician
was in psychiatry. There is no available information concerning how many of these individuals have
expertise in determining competency or would wish to gain certification for determining competency.
The average cost per day is approximately $64.53 based on the per diem payments reported by U.S. Marshals
to house federal prisoners in 11 county jails across Indiana during CY 2021.
Explanation of Local Revenues: Dismissal of Criminal Charges – Cases that are dismissed would cause
a minor revenue loss to local funds.
Additional Information - If the case is filed in a court of record, the county general fund will receive $47.40
and qualifying municipalities will receive a share of $3.60. If the case is filed in a municipal court, the county
receives $30, and the municipality will receive $46. The following linked document describes the fees and
HB 1238 3 distribution of the revenue: Court fees imposed in criminal, juvenile, and civil violation cases.
State Agencies Affected: Division of Mental Health and Addiction; Professional Licensing Agency
Local Agencies Affected: Trial Courts with criminal jurisdiction; prosecuting attorneys; county sheriffs.
Information Sources: Division of Mental Health and Addiction; Indiana Supreme Court; U.S.
Department of Justice Marshals Service; Professional Licensing Agency
Fiscal Analyst: Mark Goodpaster, 317-232-9852.
HB 1238 4