Indiana 2024 Regular Session

Indiana House Bill HB1238 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
	1	+	EH1238.1
	2	+	February 23, 2024
	3	+	ENGROSSED
	4	+	HOUSE BILL No. 1238
	5	+	_____
	6	+	DIGEST OF HB 1238 (Updated February 20, 2024 1:22 pm - DI 106)
	7	+	Citations Affected: IC 12-21; IC 12-23; IC 35-36.
	8	+	Synopsis: Competency evaluation. Requires the division of mental
	9	+	health and addiction to establish a training program to certify a
	10	+	competency evaluator to assist a court in determining competency.
	11	+	Provides that certain licensed individuals may examine a defendant and
	12	+	testify as to whether the defendant can understand the criminal
	13	+	proceedings and assist in the preparation of the defendant's defense.
	14	+	Allows a court to dismiss criminal charges, without prejudice if the
	15	+	defendant has a certain diagnosis and the defendant is charged with a
	16	+	misdemeanor or Level 6 felony. Makes conforming changes.
	17	+	Effective: July 1, 2024.
	18	+	McNamara, Meltzer, Steuerwald,
	19	+	Gore
	20	+	(SENATE SPONSORS — BROWN L, MESSMER, CRIDER)
	21	+	January 9, 2024, read first time and referred to Committee on Courts and Criminal Code.
	22	+	January 25, 2024, amended, reported — Do Pass. Referred to Committee on Ways and
	23	+	Means pursuant to Rule 127.
	24	+	January 30, 2024, amended, reported — Do Pass.
	25	+	February 1, 2024, read second time, ordered engrossed. Engrossed.
	26	+	February 5, 2024, read third time, passed. Yeas 97, nays 0.
	27	+	SENATE ACTION
	28	+	February 12, 2024, read first time and referred to Committee on Corrections and Criminal
	29	+	Law.
	30	+	February 22, 2024, amended, reported favorably — Do Pass.
	31	+	EH 1238—LS 6970/DI 151 February 23, 2024
1	32		Second Regular Session of the 123rd General Assembly (2024)
2	33		PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
3	34		Constitution) is being amended, the text of the existing provision will appear in this style type,
4	35		additions will appear in this style type, and deletions will appear in this style type.
5	36		Additions: Whenever a new statutory provision is being enacted (or a new constitutional
6	37		provision adopted), the text of the new provision will appear in this style type. Also, the
7	38		word NEW will appear in that style type in the introductory clause of each SECTION that adds
8	39		a new provision to the Indiana Code or the Indiana Constitution.
9	40		Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
10	41		between statutes enacted by the 2023 Regular Session of the General Assembly.
11		-	HOUSE ENROLLED ACT No. 1238
12		-	AN ACT to amend the Indiana Code concerning criminal law and
13		-	procedure.
	42	+	ENGROSSED
	43	+	HOUSE BILL No. 1238
	44	+	A BILL FOR AN ACT to amend the Indiana Code concerning
	45	+	criminal law and procedure.
14	46		Be it enacted by the General Assembly of the State of Indiana:
15		-	SECTION 1. IC 12-21-5-1.5, AS AMENDED BY P.L.162-2023,
	47	+	1 SECTION 1. IC 12-21-5-1.5, AS AMENDED BY P.L.162-2023,
	48	+	2 SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
	49	+	3 JULY 1, 2024]: Sec. 1.5. (a) The division shall do the following:
	50	+	4 (1) Adopt rules under IC 4-22-2 to establish and maintain criteria
	51	+	5 to determine patient eligibility and priority for publicly supported
	52	+	6 mental health and addiction services. The rules must include
	53	+	7 criteria for patient eligibility and priority based on the following:
	54	+	8 (A) A patient's income.
	55	+	9 (B) A patient's level of daily functioning.
	56	+	10 (C) A patient's prognosis.
	57	+	11 (2) Within the limits of appropriated funds, contract with a
	58	+	12 network of providers to provide services in an appropriate setting
	59	+	13 that is the least restrictive to individuals who qualify for the
	60	+	14 services.
	61	+	15 (3) Require the providers of services funded directly by the
	62	+	16 division to be in good standing with an appropriate accrediting
	63	+	17 body as required by rules adopted under IC 4-22-2 by the
	64	+	EH 1238—LS 6970/DI 151 2
	65	+	1 division.
	66	+	2 (4) Develop a provider profile that must be used to evaluate the
	67	+	3 performance of a provider. A provider's profile must include input
	68	+	4 from consumers, citizens, and representatives of the mental health
	69	+	5 ombudsman program (IC 12-27-9) regarding the provider's:
	70	+	6 (A) information provided to the patient on patient rights before
	71	+	7 treatment;
	72	+	8 (B) accessibility, acceptability, and continuity of services
	73	+	9 provided or requested; and
	74	+	10 (C) total cost of care per individual, using state administered
	75	+	11 funds.
	76	+	12 (5) Ensure compliance with all other performance criteria set
	77	+	13 forth in a provider contract. In addition to the requirements set
	78	+	14 forth in IC 12-21-2-7, a provider contract must include the
	79	+	15 following:
	80	+	16 (A) A requirement that the standards and criteria used in the
	81	+	17 evaluation of care plans be available and accessible to the
	82	+	18 patient.
	83	+	19 (B) A requirement that the provider involve the patient in the
	84	+	20 choice of and preparation of the treatment plan to the greatest
	85	+	21 extent feasible.
	86	+	22 (C) A provision encouraging the provider to intervene in a
	87	+	23 patient's situation as early as possible, balancing the patient's
	88	+	24 right to liberty with the need for treatment.
	89	+	25 (D) A requirement that the provider set up and implement an
	90	+	26 internal appeal process for the patient.
	91	+	27 (6) Establish a toll free telephone number that operates during
	92	+	28 normal business hours for individuals to make comments to the
	93	+	29 division in a confidential manner regarding services or service
	94	+	30 providers.
	95	+	31 (7) Develop a confidential system to evaluate complaints and
	96	+	32 patient appeals received by the division of mental health and
	97	+	33 addiction and to take appropriate action regarding the results of
	98	+	34 an investigation. A provider is entitled to request and to have a
	99	+	35 hearing before information derived from the investigation is
	100	+	36 incorporated into the provider's profile. Information contained
	101	+	37 within the provider profile is subject to inspection and copying
	102	+	38 under IC 5-14-3-3.
	103	+	39 (8) Ensure that providers of services of residential care and
	104	+	40 supported housing for chronic addiction, when used as a recovery
	105	+	41 residence that receives reimbursement from the office, acquire
	106	+	42 and maintain the certification required in IC 12-21-2-3(14).
	107	+	EH 1238—LS 6970/DI 151 3
	108	+	1 (9) Establish and maintain a help line:
	109	+	2 (A) to provide confidential emotional support and referrals to
	110	+	3 behavioral health resources to individuals who call the help
	111	+	4 line; and
	112	+	5 (B) that is accessible by calling a toll free telephone number.
	113	+	6 (10) In consultation with the medical licensing board, a
	114	+	7 forensic psychiatrist, and a forensic psychologist holding a
	115	+	8 doctorate, establish a training program to certify:
	116	+	9 (A) an advanced practice registered nurse with a
	117	+	10 certification as a psychiatric mental health nurse
	118	+	11 practitioner; or
	119	+	12 (B) a physician assistant who specializes in psychiatry or
	120	+	13 mental health;
	121	+	14 as a competency evaluator who may assist a criminal or
	122	+	15 juvenile court in determining competency to stand trial or
	123	+	16 appear at a juvenile adjudication. The training program must
	124	+	17 consist of at least forty (40) hours of instruction. The division
	125	+	18 may adopt rules under IC 4-22-2 to implement this
	126	+	19 subdivision.
	127	+	20 (b) The division may adopt rules under IC 4-22-2 to establish
	128	+	21 standards for residential care and supported housing for chronic
	129	+	22 addiction when used as a recovery residence.
	130	+	23 SECTION 2. IC 12-23-19-2, AS AMENDED BY P.L.114-2022,
	131	+	24 SECTION 21, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
	132	+	25 JULY 1, 2024]: Sec. 2. (a) An individual is eligible for mental health
	133	+	26 and addiction forensic treatment services if:
	134	+	27 (1) subject to subsection (d), the individual:
	135	+	28 (A) is a member of a household with an annual income that
	136	+	29 does not exceed two hundred percent (200%) of the federal
	137	+	30 income poverty level;
	138	+	31 (B) is a resident of Indiana;
	139	+	32 (C) is:
	140	+	33 (i) at least eighteen (18) years of age; or
	141	+	34 (ii) subject to the approval of the Indiana commission to
	142	+	35 combat substance use disorder, less than eighteen (18) years
	143	+	36 of age and the individual is a defendant whose case is either
	144	+	37 waived from juvenile court to adult court or directly filed in
	145	+	38 adult court; and
	146	+	39 (D) has entered the criminal justice system as a felon or with
	147	+	40 a prior felony conviction or is ordered to be committed for
	148	+	41 competency restoration services as described in
	149	+	42 IC 35-36-3-1(b); IC 35-36-3-1(f); and
	150	+	EH 1238—LS 6970/DI 151 4
	151	+	1 (2) subject to subsection (b), reimbursement for the service is not
	152	+	2 available to the individual through any of the following:
	153	+	3 (A) A policy of accident and sickness insurance (IC 27-8-5).
	154	+	4 (B) A health maintenance organization contract (IC 27-13).
	155	+	5 (C) The Medicaid program (IC 12-15), excluding the Medicaid
	156	+	6 rehabilitation program and the Behavioral and Primary Health
	157	+	7 Coordination Program under Section 1915(i) of the Social
	158	+	8 Security Act.
	159	+	9 (D) The federal Medicare program or any other federal
	160	+	10 assistance program.
	161	+	11 (b) If an individual is not entitled to reimbursement from the sources
	162	+	12 described in subsection (a)(2) of the full amount of the cost of the
	163	+	13 mental health and addiction forensic treatment services, grants and
	164	+	14 vouchers under this chapter may be used to provide those services to
	165	+	15 the extent that the costs of those services exceed the reimbursement the
	166	+	16 individual is entitled to receive from the sources described in
	167	+	17 subsection (a)(2), excluding any copayment or deductible that the
	168	+	18 individual is required to pay.
	169	+	19 (c) The division shall determine the extent to which an individual
	170	+	20 who is provided mental health and addiction forensic treatment
	171	+	21 services under this chapter is entitled to receive reimbursement from
	172	+	22 the sources described in subsection (a)(2).
	173	+	23 (d) Notwithstanding subsection (a)(1)(D), subject to available
	174	+	24 funding and on the recommendation of the justice reinvestment
	175	+	25 advisory council (established by IC 33-38-9.5-2), the division may
	176	+	26 operate a pilot program applying the eligibility criteria in this section
	177	+	27 to individuals who are charged with a misdemeanor. If the division
	178	+	28 operates a pilot program under this subsection, the division shall issue
	179	+	29 annual reports to the justice reinvestment advisory council.
	180	+	30 SECTION 3. IC 35-36-3-1, AS AMENDED BY P.L.74-2022,
	181	+	31 SECTION 16, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
	182	+	32 JULY 1, 2024]: Sec. 1. (a) If at any time before the final submission of
	183	+	33 any criminal case to the court or the jury trying the case, the court has
	184	+	34 reasonable grounds for believing that the defendant lacks the ability to
	185	+	35 understand the proceedings and assist in the preparation of a defense,
	186	+	36 the court shall immediately fix a time for a hearing to determine
	187	+	37 whether the defendant has that ability.
	188	+	38 (b) This subsection applies to a defendant charged with murder
	189	+	39 or a Level 1, Level 2, Level 3, Level 4, or Level 5 felony. When a
	190	+	40 court sets a hearing under subsection (a), the court shall appoint
	191	+	41 two (2) or three (3) individuals to determine the defendant's
	192	+	42 competency. Each of the appointed individuals must be a
	193	+	EH 1238—LS 6970/DI 151 5
	194	+	1 psychiatrist, or a psychologist endorsed by the Indiana state board
	195	+	2 of examiners in psychology as a health service provider in
	196	+	3 psychology.
	197	+	4 An individual appointed under this subsection must be competent
	198	+	5 and disinterested.
	199	+	6 (c) This subsection applies to a defendant charged with a
	200	+	7 misdemeanor or a Level 6 felony. When a court sets a hearing
	201	+	8 under subsection (a), the court shall appoint two (2) or three (3)
	202	+	9 competent, disinterested: one (1) individual who:
	203	+	10 (1) psychiatrists;
	204	+	11 (1) is a:
	205	+	12 (A) psychiatrist; or
	206	+	13 (2) psychologists (B) psychologist endorsed by the Indiana
	207	+	14 state board of examiners in psychology as a health service
	208	+	15 providers provider in psychology; or
	209	+	16 (3) physicians;
	210	+	17 (2) is competent and disinterested; and
	211	+	18 (3) has expertise in determining competency.
	212	+	19 who have expertise in determining competency.
	213	+	20 (d) In addition to the psychiatrist or psychologist appointed
	214	+	21 under subsection (c), the court may appoint not more than two (2)
	215	+	22 additional individuals to assist the court in determining
	216	+	23 competency. Upon request of either party, the court shall appoint
	217	+	24 at least one (1), but not more than two (2), additional individuals
	218	+	25 to assist the court in determining competency. An individual
	219	+	26 appointed under this subsection may be an individual:
	220	+	27 (1) described in subsection (c); or
	221	+	28 (2) who is competent and disinterested, has expertise in
	222	+	29 determining competency, and is:
	223	+	30 (A) licensed:
	224	+	31 (i) under IC 25-23 as an advanced practice registered
	225	+	32 nurse (APRN) with a certification as a psychiatric
	226	+	33 mental health nurse practitioner;
	227	+	34 (ii) under IC 25-27.5 as a physician assistant who
	228	+	35 specializes in psychiatry or mental health; or
	229	+	36 (iii) under IC 25-22.5 as a physician who specializes in
	230	+	37 psychiatry or mental health; and
	231	+	38 (B) certified by the division of mental health and addiction
	232	+	39 as a competency evaluator.
	233	+	40 (e) At least one (1) of the individuals appointed under this
	234	+	41 subsection must be a psychiatrist or psychologist. However, none An
	235	+	42 individual appointed under this section may not be an employee or
	236	+	EH 1238—LS 6970/DI 151 6
	237	+	1 a contractor of a state institution (as defined in IC 12-7-2-184). The
	238	+	2 individuals who are appointed shall examine the defendant and testify
	239	+	3 at the hearing as to whether the defendant can understand the
	240	+	4 proceedings and assist in the preparation of the defendant's defense.
	241	+	5 (b) (f) At the hearing, other evidence relevant to whether the
	242	+	6 defendant has the ability to understand the proceedings and assist in the
	243	+	7 preparation of the defendant's defense may be introduced. If the court
	244	+	8 finds that the defendant has the ability to understand the proceedings
	245	+	9 and assist in the preparation of the defendant's defense, the trial shall
	246	+	10 proceed. If the court finds that the defendant lacks this ability, it shall
	247	+	11 delay or continue the trial and order the defendant committed to the
	248	+	12 division of mental health and addiction. The division of mental health
	249	+	13 and addiction shall provide competency restoration services or enter
	250	+	14 into a contract for the provision of competency restoration services by
	251	+	15 a third party in the:
	252	+	16 (1) location where the defendant currently resides; or
	253	+	17 (2) least restrictive setting appropriate to the needs of the
	254	+	18 defendant and the safety of the defendant and others.
	255	+	19 However, if the defendant is serving an unrelated executed sentence in
	256	+	20 the department of correction at the time the defendant is committed to
	257	+	21 the division of mental health and addiction under this section, the
	258	+	22 division of mental health and addiction shall provide competency
	259	+	23 restoration services or enter into a contract for the provision of
	260	+	24 competency restoration services by a third party at a department of
	261	+	25 correction facility agreed upon by the division of mental health and
	262	+	26 addiction or the third party contractor and the department of correction.
	263	+	27 A contract entered into with a third party under this subsection may
	264	+	28 confer to the third party all authority the division would have in
	265	+	29 providing competency restoration services to the defendant at a state
	266	+	30 institution (as defined in IC 12-7-2-184).
	267	+	31 (c) (g) If the court makes a finding under subsection (b), (f), the
	268	+	32 court shall transmit any information required by the office of judicial
	269	+	33 administration to the office of judicial administration for transmission
	270	+	34 to the NICS (as defined in IC 35-47-2.5-2.5) in accordance with
	271	+	35 IC 33-24-6-3.
	272	+	36 SECTION 4. IC 35-36-3-3 IS AMENDED TO READ AS
	273	+	37 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 3. (a) Within ninety
	274	+	38 (90) days after:
	275	+	39 (1) a defendant's admission to a state institution (as defined in
	276	+	40 IC 12-7-2-184); or
	277	+	41 (2) the initiation of competency restoration services to a defendant
	278	+	42 by a third party contractor;
	279	+	EH 1238—LS 6970/DI 151 7
	280	+	1 the superintendent of the state institution (as defined in IC 12-7-2-184)
	281	+	2 or the director or medical director of the third party contractor, if the
	282	+	3 division of mental health and addiction has entered into a contract for
	283	+	4 the provision of competency restoration services by a third party, shall
	284	+	5 certify to the proper court whether the defendant has a substantial
	285	+	6 probability of attaining the ability to understand the proceedings and
	286	+	7 assist in the preparation of the defendant's defense within the
	287	+	8 foreseeable future.
	288	+	9 (b) If a party files a motion to dismiss, the court may dismiss the
	289	+	10 charges against the defendant without prejudice if the:
	290	+	11 (1) defendant has been diagnosed with:
	291	+	12 (A) dementia;
	292	+	13 (B) Alzheimer's disease; or
	293	+	14 (C) a traumatic brain injury;
	294	+	15 (2) defendant's diagnosis substantially impacts the
	295	+	16 defendant's ability to understand the proceedings and assist
	296	+	17 in the preparation of the defendant's defense within the
	297	+	18 foreseeable future; and
	298	+	19 (3) defendant is charged with a misdemeanor or a Level 6
	299	+	20 felony.
	300	+	21 (b) (c) If a defendant's charges are not dismissed under
	301	+	22 subsection (b) and a substantial probability does not exist, the state
	302	+	23 institution (as defined in IC 12-7-2-184) or the third party contractor
	303	+	24 shall initiate regular commitment proceedings under IC 12-26. If a
	304	+	25 substantial probability does exist, the state institution (as defined in
	305	+	26 IC 12-7-2-184) or third party contractor shall retain the defendant:
	306	+	27 (1) until the defendant attains the ability to understand the
	307	+	28 proceedings and assist in the preparation of the defendant's
	308	+	29 defense and is returned to the proper court for trial; or
	309	+	30 (2) for six (6) months from the date of the:
	310	+	31 (A) defendant's admission to a state institution (as defined in
	311	+	32 IC 12-7-2-184); or
	312	+	33 (B) initiation of competency restoration services by a third
	313	+	34 party contractor;
	314	+	35 whichever first occurs.
	315	+	36 SECTION 5. IC 35-36-3-4 IS AMENDED TO READ AS
	316	+	37 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 4. If a defendant who
	317	+	38 was found under section 3 of this chapter to have had a substantial
	318	+	39 probability of attaining the ability to understand the proceedings and
	319	+	40 assist in the preparation of the defendant's defense:
	320	+	41 (1) has not attained that ability within six (6) months after the date
	321	+	42 of the:
	322	+	EH 1238—LS 6970/DI 151 8
	323	+	1 (1) (A) defendant's admission to a state institution (as defined
	324	+	2 in IC 12-7-2-184); or
	325	+	3 (2) (B) initiation of competency restoration services by a third
	326	+	4 party contractor; or
	327	+	5 (2) has not had the criminal charges dismissed under section
	328	+	6 3(b) of this chapter;
	329	+	7 the state institution (as defined in IC 12-7-2-184) or the third party
	330	+	8 contractor, if the division of mental health and addiction has entered
	331	+	9 into a contract for the provision of competency restoration services by
	332	+	10 a third party, shall institute regular commitment proceedings under
	333	+	11 IC 12-26.
	334	+	EH 1238—LS 6970/DI 151 9
	335	+	COMMITTEE REPORT
	336	+	Mr. Speaker: Your Committee on Courts and Criminal Code, to
	337	+	which was referred House Bill 1238, has had the same under
	338	+	consideration and begs leave to report the same back to the House with
	339	+	the recommendation that said bill be amended as follows:
	340	+	Page 1, between the enacting clause and line 1, begin a new
	341	+	paragraph and insert:
	342	+	"SECTION 1. IC 12-21-5-1.5, AS AMENDED BY P.L.162-2023,
16	343		SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
17	344		JULY 1, 2024]: Sec. 1.5. (a) The division shall do the following:
18	345		(1) Adopt rules under IC 4-22-2 to establish and maintain criteria
19	346		to determine patient eligibility and priority for publicly supported
20	347		mental health and addiction services. The rules must include
21	348		criteria for patient eligibility and priority based on the following:
22	349		(A) A patient's income.
23	350		(B) A patient's level of daily functioning.
24	351		(C) A patient's prognosis.
25	352		(2) Within the limits of appropriated funds, contract with a
26	353		network of providers to provide services in an appropriate setting
27	354		that is the least restrictive to individuals who qualify for the
28	355		services.
29	356		(3) Require the providers of services funded directly by the
30	357		division to be in good standing with an appropriate accrediting
31	358		body as required by rules adopted under IC 4-22-2 by the
32	359		division.
33	360		(4) Develop a provider profile that must be used to evaluate the
34	361		performance of a provider. A provider's profile must include input
35	362		from consumers, citizens, and representatives of the mental health
36		-	HEA 1238 — Concur 2
37	363		ombudsman program (IC 12-27-9) regarding the provider's:
38	364		(A) information provided to the patient on patient rights before
39	365		treatment;
40	366		(B) accessibility, acceptability, and continuity of services
41	367		provided or requested; and
42	368		(C) total cost of care per individual, using state administered
43	369		funds.
44	370		(5) Ensure compliance with all other performance criteria set
45	371		forth in a provider contract. In addition to the requirements set
46	372		forth in IC 12-21-2-7, a provider contract must include the
47	373		following:
48	374		(A) A requirement that the standards and criteria used in the
49	375		evaluation of care plans be available and accessible to the
	376	+	EH 1238—LS 6970/DI 151 10
50	377		patient.
51	378		(B) A requirement that the provider involve the patient in the
52	379		choice of and preparation of the treatment plan to the greatest
53	380		extent feasible.
54	381		(C) A provision encouraging the provider to intervene in a
55	382		patient's situation as early as possible, balancing the patient's
56	383		right to liberty with the need for treatment.
57	384		(D) A requirement that the provider set up and implement an
58	385		internal appeal process for the patient.
59	386		(6) Establish a toll free telephone number that operates during
60	387		normal business hours for individuals to make comments to the
61	388		division in a confidential manner regarding services or service
62	389		providers.
63	390		(7) Develop a confidential system to evaluate complaints and
64	391		patient appeals received by the division of mental health and
65	392		addiction and to take appropriate action regarding the results of
66	393		an investigation. A provider is entitled to request and to have a
67	394		hearing before information derived from the investigation is
68	395		incorporated into the provider's profile. Information contained
69	396		within the provider profile is subject to inspection and copying
70	397		under IC 5-14-3-3.
71	398		(8) Ensure that providers of services of residential care and
72	399		supported housing for chronic addiction, when used as a recovery
73	400		residence that receives reimbursement from the office, acquire
74	401		and maintain the certification required in IC 12-21-2-3(14).
75	402		(9) Establish and maintain a help line:
76	403		(A) to provide confidential emotional support and referrals to
77	404		behavioral health resources to individuals who call the help
78	405		line; and
79		-	HEA 1238 — Concur 3
80	406		(B) that is accessible by calling a toll free telephone number.
81		-	(10) In consultation with the medical licensing board, a
82		-	forensic psychiatrist, and a forensic psychologist holding a
83		-	doctorate, establish a training program to certify:
84		-	(A) an advanced practice registered nurse with a
85		-	certification as a psychiatric mental health nurse
86		-	practitioner; or
87		-	(B) a physician assistant who specializes in psychiatry or
88		-	mental health;
89		-	as a competency evaluator who may assist a criminal or
90		-	juvenile court in determining competency to stand trial or
91		-	appear at a juvenile adjudication. The training program must
92		-	consist of at least forty (40) hours of instruction. The division
93		-	may adopt rules under IC 4-22-2 to implement this
94		-	subdivision.
	407	+	(10) In consultation with:
	408	+	(A) the medical licensing board;
	409	+	(B) a forensic psychiatrist or a psychologist holding a
	410	+	doctorate; or
	411	+	(C) both the medical licensing board and a forensic
	412	+	psychiatrist or a psychologist holding a doctorate;
	413	+	establish a training program to certify a competency
	414	+	evaluator who may assist a criminal or juvenile court in
	415	+	determining competency to stand trial or appear at a juvenile
	416	+	adjudication. The training program must consist of at least
	417	+	forty (40) hours of instruction.
95	418		(b) The division may adopt rules under IC 4-22-2 to establish
	419	+	EH 1238—LS 6970/DI 151 11
96	420		standards for residential care and supported housing for chronic
97		-	addiction when used as a recovery residence.
98		-	SECTION 2. IC 12-23-19-2, AS AMENDED BY P.L.114-2022,
99		-	SECTION 21, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
100		-	JULY 1, 2024]: Sec. 2. (a) An individual is eligible for mental health
101		-	and addiction forensic treatment services if:
102		-	(1) subject to subsection (d), the individual:
103		-	(A) is a member of a household with an annual income that
104		-	does not exceed two hundred percent (200%) of the federal
105		-	income poverty level;
106		-	(B) is a resident of Indiana;
107		-	(C) is:
108		-	(i) at least eighteen (18) years of age; or
109		-	(ii) subject to the approval of the Indiana commission to
110		-	combat substance use disorder, less than eighteen (18) years
111		-	of age and the individual is a defendant whose case is either
112		-	waived from juvenile court to adult court or directly filed in
113		-	adult court; and
114		-	(D) has entered the criminal justice system as a felon or with
115		-	a prior felony conviction or is ordered to be committed for
116		-	competency restoration services as described in
117		-	IC 35-36-3-1(b); IC 35-36-3-1(f); and
118		-	(2) subject to subsection (b), reimbursement for the service is not
119		-	available to the individual through any of the following:
120		-	(A) A policy of accident and sickness insurance (IC 27-8-5).
121		-	(B) A health maintenance organization contract (IC 27-13).
122		-	HEA 1238 — Concur 4
123		-	(C) The Medicaid program (IC 12-15), excluding the Medicaid
124		-	rehabilitation program and the Behavioral and Primary Health
125		-	Coordination Program under Section 1915(i) of the Social
126		-	Security Act.
127		-	(D) The federal Medicare program or any other federal
128		-	assistance program.
129		-	(b) If an individual is not entitled to reimbursement from the sources
130		-	described in subsection (a)(2) of the full amount of the cost of the
131		-	mental health and addiction forensic treatment services, grants and
132		-	vouchers under this chapter may be used to provide those services to
133		-	the extent that the costs of those services exceed the reimbursement the
134		-	individual is entitled to receive from the sources described in
135		-	subsection (a)(2), excluding any copayment or deductible that the
136		-	individual is required to pay.
137		-	(c) The division shall determine the extent to which an individual
138		-	who is provided mental health and addiction forensic treatment
139		-	services under this chapter is entitled to receive reimbursement from
140		-	the sources described in subsection (a)(2).
141		-	(d) Notwithstanding subsection (a)(1)(D), subject to available
142		-	funding and on the recommendation of the justice reinvestment
143		-	advisory council (established by IC 33-38-9.5-2), the division may
144		-	operate a pilot program applying the eligibility criteria in this section
145		-	to individuals who are charged with a misdemeanor. If the division
146		-	operates a pilot program under this subsection, the division shall issue
147		-	annual reports to the justice reinvestment advisory council.
148		-	SECTION 3. IC 35-36-3-1, AS AMENDED BY P.L.74-2022,
	421	+	addiction when used as a recovery residence.".
	422	+	Page 2, line 3, delete "IC 35-36-3-1(e);" and insert
	423	+	"IC 35-36-3-1(f);".
	424	+	Page 2, delete lines 33 through 42, begin a new paragraph and
	425	+	insert:
	426	+	"SECTION 3. IC 35-36-3-1, AS AMENDED BY P.L.74-2022,
149	427		SECTION 16, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
150	428		JULY 1, 2024]: Sec. 1. (a) If at any time before the final submission of
151	429		any criminal case to the court or the jury trying the case, the court has
152	430		reasonable grounds for believing that the defendant lacks the ability to
153	431		understand the proceedings and assist in the preparation of a defense,
154	432		the court shall immediately fix a time for a hearing to determine
155	433		whether the defendant has that ability.
156	434		(b) This subsection applies to a defendant charged with murder
157	435		or a Level 1, Level 2, Level 3, Level 4, or Level 5 felony. When a
158	436		court sets a hearing under subsection (a), the court shall appoint
159	437		two (2) or three (3) individuals to determine the defendant's
160		-	competency. ~~Each~~ of the appointed individuals must be a
	438	+	competency. One (1) of the appointed individuals must be a
161	439		psychiatrist, or a psychologist endorsed by the Indiana state board
162	440		of examiners in psychology as a health service provider in
163		-	psychology. An individual appointed under this subsection must be
164		-	competent and disinterested.
165		-	HEA 1238 — Concur 5
	441	+	psychology. The remaining one (1) or two (2) individuals may be:
	442	+	(1) a psychiatrist;
	443	+	(2) a psychologist endorsed by the Indiana state board of
	444	+	examiners in psychology as a health service provider in
	445	+	psychology; or
	446	+	(3) an individual:
	447	+	(A) licensed:
	448	+	(i) under IC 25-23 as an advanced practice registered
	449	+	nurse (APRN) with a certification as a psychiatric
	450	+	mental health nurse practitioner;
	451	+	(ii) under IC 25-27.5 as a physician assistant who
	452	+	specializes in psychiatry or mental health; or
	453	+	(iii) under IC 25-22.5 as a physician who specializes in
	454	+	psychiatry or mental health; and
	455	+	(B) certified by the division of mental health and addiction
	456	+	as a competency evaluator.
	457	+	An individual appointed under this subsection must be competent
	458	+	and disinterested.
166	459		(c) This subsection applies to a defendant charged with a
167	460		misdemeanor or a Level 6 felony. When a court sets a hearing
168	461		under subsection (a), the court shall appoint two (2) or three (3)
	462	+	EH 1238—LS 6970/DI 151 12
169	463		competent, disinterested: one (1) individual who:
170	464		(1) psychiatrists;
171	465		(1) is a:
172	466		(A) psychiatrist; or
173	467		(2) psychologists (B) psychologist endorsed by the Indiana
174	468		state board of examiners in psychology as a health service
175	469		providers provider in psychology; or
176	470		(3) physicians;
177	471		(2) is competent and disinterested; and
178	472		(3) has expertise in determining competency.
179	473		who have expertise in determining competency.
180	474		(d) In addition to the psychiatrist or psychologist appointed
181	475		under subsection (c), the court may appoint not more than two (2)
182	476		additional individuals to assist the court in determining
183	477		competency. Upon request of either party, the court shall appoint
184	478		at least one (1), but not more than two (2), additional individuals
185	479		to assist the court in determining competency. An individual
186	480		appointed under this subsection may be an individual:
187	481		(1) described in subsection (c); or
188	482		(2) who is competent and disinterested, has expertise in
189	483		determining competency, and is:
190	484		(A) licensed:
191	485		(i) under IC 25-23 as an advanced practice registered
192	486		nurse (APRN) with a certification as a psychiatric
193	487		mental health nurse practitioner;
194	488		(ii) under IC 25-27.5 as a physician assistant who
195	489		specializes in psychiatry or mental health; or
196	490		(iii) under IC 25-22.5 as a physician who specializes in
197	491		psychiatry or mental health; and
198	492		(B) certified by the division of mental health and addiction
199	493		as a competency evaluator.
200	494		(e) At least one (1) of the individuals appointed under this
201	495		subsection must be a psychiatrist or psychologist. However, none An
202	496		individual appointed under this section may not be an employee or
203	497		a contractor of a state institution (as defined in IC 12-7-2-184). The
204	498		individuals who are appointed shall examine the defendant and testify
205	499		at the hearing as to whether the defendant can understand the
206	500		proceedings and assist in the preparation of the defendant's defense.
207	501		(b) (f) At the hearing, other evidence relevant to whether the
208		-	HEA 1238 — Concur 6
209	502		defendant has the ability to understand the proceedings and assist in the
210	503		preparation of the defendant's defense may be introduced. If the court
211	504		finds that the defendant has the ability to understand the proceedings
	505	+	EH 1238—LS 6970/DI 151 13
212	506		and assist in the preparation of the defendant's defense, the trial shall
213	507		proceed. If the court finds that the defendant lacks this ability, it shall
214	508		delay or continue the trial and order the defendant committed to the
215	509		division of mental health and addiction. The division of mental health
216	510		and addiction shall provide competency restoration services or enter
217	511		into a contract for the provision of competency restoration services by
218	512		a third party in the:
219	513		(1) location where the defendant currently resides; or
220	514		(2) least restrictive setting appropriate to the needs of the
221	515		defendant and the safety of the defendant and others.
222	516		However, if the defendant is serving an unrelated executed sentence in
223	517		the department of correction at the time the defendant is committed to
224	518		the division of mental health and addiction under this section, the
225	519		division of mental health and addiction shall provide competency
226	520		restoration services or enter into a contract for the provision of
227	521		competency restoration services by a third party at a department of
228	522		correction facility agreed upon by the division of mental health and
229	523		addiction or the third party contractor and the department of correction.
230	524		A contract entered into with a third party under this subsection may
231	525		confer to the third party all authority the division would have in
232	526		providing competency restoration services to the defendant at a state
233	527		institution (as defined in IC 12-7-2-184).
234	528		(c) (g) If the court makes a finding under subsection (b), (f), the
235	529		court shall transmit any information required by the office of judicial
236	530		administration to the office of judicial administration for transmission
237	531		to the NICS (as defined in IC 35-47-2.5-2.5) in accordance with
238		-	IC 33-24-6-3.
239		-	SECTION 4. IC 35-36-3-3 IS AMENDED TO READ AS
240		-	FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 3. (a) Within ninety
241		-	(90) days after:
242		-	(1) a defendant's admission to a state institution (as defined in
243		-	IC 12-7-2-184); or
244		-	(2) the initiation of competency restoration services to a defendant
245		-	by a third party contractor;
246		-	the superintendent of the state institution (as defined in IC 12-7-2-184)
247		-	or the director or medical director of the third party contractor, if the
248		-	division of mental health and addiction has entered into a contract for
249		-	the provision of competency restoration services by a third party, shall
250		-	certify to the proper court whether the defendant has a substantial
251		-	HEA 1238 — Concur 7
252		-	probability of attaining the ability to understand the proceedings and
253		-	assist in the preparation of the defendant's defense within the
254		-	foreseeable future.
255		-	(b) If a party files a motion to dismiss, the court may dismiss the
256		-	charges against the defendant without prejudice if the:
257		-	(1) defendant has been diagnosed with:
258		-	(A) dementia;
259		-	(B) Alzheimer's disease; or
260		-	(C) a traumatic brain injury;
261		-	(2) defendant's diagnosis substantially impacts the
262		-	defendant's ability to understand the proceedings and assist
263		-	in the preparation of the defendant's defense within the
264		-	foreseeable future; and
265		-	(3) defendant is charged with a misdemeanor or a Level 6
266		-	felony.
267		-	(b) (c) If a defendant's charges are not dismissed under
268		-	subsection (b) and a substantial probability does not exist, the state
269		-	institution (as defined in IC 12-7-2-184) or the third party contractor
270		-	shall initiate regular commitment proceedings under IC 12-26. If a
271		-	substantial probability does exist, the state institution (as defined in
272		-	IC 12-7-2-184) or third party contractor shall retain the defendant:
273		-	(1) until the defendant attains the ability to understand the
274		-	proceedings and assist in the preparation of the defendant's
275		-	defense and is returned to the proper court for trial; or
276		-	(2) for six (6) months from the date of the:
277		-	(A) defendant's admission to a state institution (as defined in
278		-	IC 12-7-2-184); or
279		-	(B) initiation of competency restoration services by a third
280		-	party contractor;
281		-	whichever first occurs.
282		-	SECTION 5. IC 35-36-3-4 IS AMENDED TO READ AS
283		-	FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 4. If a defendant who
284		-	was found under section 3 of this chapter to have had a substantial
285		-	probability of attaining the ability to understand the proceedings and
286		-	assist in the preparation of the defendant's defense:
287		-	(1) has not attained that ability within six (6) months after the date
288		-	of the:
289		-	(1) (A) defendant's admission to a state institution (as defined
290		-	in IC 12-7-2-184); or
291		-	(2) (B) initiation of competency restoration services by a third
292		-	party contractor; or
293		-	(2) has not had the criminal charges dismissed under section
294		-	HEA 1238 — Concur 8
295		-	3(b) of this chapter;
296		-	the state institution (as defined in IC 12-7-2-184) or the third party
297		-	contractor, if the division of mental health and addiction has entered
298		-	into a contract for the provision of competency restoration services by
299		-	a third party, shall institute regular commitment proceedings under
300		-	IC 12-26.
301		-	HEA 1238 — Concur Speaker of the House of Representatives
302		-	President of the Senate
303		-	President Pro Tempore
304		-	Governor of the State of Indiana
305		-	Date: Time:
306		-	HEA 1238 — Concur
	532	+	IC 33-24-6-3.".
	533	+	Delete page 3.
	534	+	Page 4, delete lines 1 through 24.
	535	+	Renumber all SECTIONS consecutively.
	536	+	and when so amended that said bill do pass.
	537	+	(Reference is to HB 1238 as introduced.)
	538	+	MCNAMARA
	539	+	Committee Vote: yeas 12, nays 0.
	540	+	EH 1238—LS 6970/DI 151 14
	541	+	COMMITTEE REPORT
	542	+	Mr. Speaker: Your Committee on Ways and Means, to which was
	543	+	referred House Bill 1238, has had the same under consideration and
	544	+	begs leave to report the same back to the House with the
	545	+	recommendation that said bill be amended as follows:
	546	+	Page 3, line 8, delete "a psychologist" and insert "a forensic
	547	+	psychologist".
	548	+	Page 3, line 11, delete "a psychologist" and insert "a forensic
	549	+	psychologist".
	550	+	Page 4, line 39, delete "One (1)" and insert "Each".
	551	+	Page 4, line 42, delete "The remaining one (1) or two (2) individuals
	552	+	may be:".
	553	+	Page 5, delete lines 1 through 15.
	554	+	and when so amended that said bill do pass.
	555	+	(Reference is to HB 1238 as printed January 25, 2024.)
	556	+	THOMPSON
	557	+	Committee Vote: yeas 20, nays 0.
	558	+	_____
	559	+	COMMITTEE REPORT
	560	+	Madam President: The Senate Committee on Corrections and
	561	+	Criminal Law, to which was referred House Bill No. 1238, has had the
	562	+	same under consideration and begs leave to report the same back to the
	563	+	Senate with the recommendation that said bill be AMENDED as
	564	+	follows:
	565	+	Page 3, delete lines 6 through 16, begin a new line block indented
	566	+	and insert:
	567	+	"(10) In consultation with the medical licensing board, a
	568	+	forensic psychiatrist, and a forensic psychologist holding a
	569	+	doctorate, establish a training program to certify:
	570	+	(A) an advanced practice registered nurse with a
	571	+	certification as a psychiatric mental health nurse
	572	+	practitioner; or
	573	+	(B) a physician assistant who specializes in psychiatry or
	574	+	mental health;
	575	+	as a competency evaluator who may assist a criminal or
	576	+	juvenile court in determining competency to stand trial or
	577	+	EH 1238—LS 6970/DI 151 15
	578	+	appear at a juvenile adjudication. The training program must
	579	+	consist of at least forty (40) hours of instruction. The division
	580	+	may adopt rules under IC 4-22-2 to implement this
	581	+	subdivision.".
	582	+	and when so amended that said bill do pass.
	583	+	(Reference is to HB 1238 as printed January 30, 2024.)
	584	+	FREEMAN, Chairperson
	585	+	Committee Vote: Yeas 7, Nays 1.
	586	+	EH 1238—LS 6970/DI 151