As Amended by House Committee
Session of 2023
HOUSE BILL No. 2010
By Representative Highberger
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AN ACT concerning crimes, punishment and criminal procedure; relating
to trials; persons found not guilty by reason of mental disease or defect;
jury instruction; housing; annual hearing on continued
commitment; amending K.S.A. 12-736 and K.S.A. 2022 Supp. 22-
3428 and 22-3428a and repealing the existing section sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 12-736 is hereby amended to read as follows: 12-
736. (a) It is hereby declared to be the policy of the state of Kansas
that persons with a disability shall not be excluded from the benefits of
single family residential surroundings by any municipal zoning
ordinance, resolution or regulation.
(b) For the purpose of this act:
(1) "Group home" means any dwelling occupied by not more
than 10 persons, including eight or fewer persons with a disability who
need not be related by blood or marriage and not to exceed two staff
residents who need not be related by blood or marriage to each other
or to the residents of the home, which dwelling is licensed by a
regulatory agency of this state;
(2) "municipality" means any township, city or county located in
Kansas;
(3) "disability" means, with respect to a person:
(A) A physical or mental impairment that substantially limits one
or more of such person's major life activities;
(B) a record of having such an impairment; or
(C) being regarded as having such an impairment. Such term
does not include current, illegal use of or addiction to a controlled
substance, as defined in section 102 of the controlled substance act, 21
U.S.C. § 802; and
(4) "licensed provider" means a person or agency who provides
mental health services and is licensed by:
(A) The Kansas department for aging and disability services
pursuant to K.S.A. 39-2001 et seq. or 65-425 et seq. or K.S.A. 39-2001
et seq., and amendments thereto; or
(B) the behavioral sciences regulatory board pursuant to K.S.A.
74-5301 et seq. or 75-5346 et seq. or 74-5301 et seq., and amendments
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thereto; or
(C) the state board of healing arts pursuant to K.S.A. 65-2801 et
seq., and amendments thereto.
(c) (1) No mentally ill person shall be eligible for placement in a
group home unless such person has been evaluated by a licensed
provider and such provider determines that the mentally ill person is
not dangerous to others and is suitable for group-home placement. A
group home shall not be a licensed provider for the purposes of
evaluating or approving for placement a mentally ill person in a group
home.
(2) No person shall be eligible for placement in a group home if
such person is: (A) Assigned to a community corrections program or a
diversion program; (B) on parole from a correctional institution or on
probation for a felony offense; or (C) in a state mental institution
following a finding of mental disease or defect excluding criminal
responsibility, pursuant to K.S.A. 22-3220 and 22-3221, and
amendments thereto, and K.S.A. 2022 Supp. 21-5209, and amendments
thereto.
(d) No person shall be placed in a group home under this act
unless such dwelling is licensed as a group home by the Kansas
department for aging and disability services or the department of
health and environment.
(e) No municipality shall prohibit the location of a group home in
any zone or area where single family dwellings are permitted. Any
zoning ordinance, resolution or regulation that prohibits the location
of a group home in such zone or area or that subjects group homes to
regulations not applicable to other single family dwellings in the same
zone or area is invalid. Notwithstanding the provisions of this act,
group homes shall be subject to all other regulations applicable to
other property and buildings located in the zone or area that are
imposed by any municipality through zoning ordinance, resolution or
regulation, its building regulatory codes, subdivision regulations or
other nondiscriminatory regulations.
(f) No person or entity shall contract or enter into a contract,
restrictive covenant, equitable servitude or such similar restriction
that would restrict group homes or their location in a manner
inconsistent with the provisions of subsection (e).
Section 1. Sec. 2. K.S.A. 2022 Supp. 22-3428 is hereby amended to
read as follows: 22-3428. (a) (1) When a defendant is acquitted and the
jury answers in the affirmative to the special question asked pursuant to
K.S.A. 22-3221, and amendments thereto, the defendant shall be
committed to the state security hospital or an appropriate secure facility for
safekeeping and treatment and the prosecuting attorney shall provide
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victim notification. A finding of not guilty and the jury answering in the
affirmative to the special question asked pursuant to K.S.A. 22-3221, and
amendments thereto, shall be prima facie evidence that the acquitted
defendant is presently likely to cause harm to self or others.
(2) Within 90 days of the defendant's admission, the chief medical
officer of the state security hospital or licensed psychologist at the
appropriate secure facility shall send to the court a written evaluation
report. Upon receipt of the report, the court shall set a hearing to determine
whether or not the defendant is currently a mentally ill person. The hearing
shall be held within 30 days after the receipt by the court of the chief
medical officer's report unless the court finds that exceptional
circumstances warrant delay of the hearing.
(3) The court shall give notice of the hearing to the chief medical
officer of the state security hospital or licensed psychologist at the
appropriate secure facility, the prosecuting attorney, the defendant and the
defendant's attorney. The prosecuting attorney shall provide victim
notification. The court shall inform the defendant that such defendant is
entitled to counsel and that counsel will be appointed to represent the
defendant if the defendant is not financially able to employ an attorney as
provided in K.S.A. 22-4503 et seq., and amendments thereto. The
defendant shall remain at the state security hospital pending the hearing.
(4) At the hearing, the defendant shall have the right to present
evidence and cross-examine witnesses. At the conclusion of the hearing, if
the court finds by clear and convincing evidence that the defendant is not
currently a mentally ill person, the court shall dismiss the criminal
proceeding and discharge the defendant, otherwise the court may commit
the defendant to the state security hospital or an appropriate secure facility
for treatment or may place the defendant on conditional release pursuant to
subsection (d). The prosecuting attorney shall provide victim notification
regarding the outcome of the hearing.
(b) Subject to the provisions of subsection (c):
(1) Whenever it appears to the chief medical officer of the state
security hospital or a licensed psychologist at the appropriate secure
facility that a person committed under subsection (a)(4) is not likely to
cause harm to other persons in a less restrictive hospital environment, the
officer may transfer the person to any state hospital, subject to the
provisions of subsection (c). At any time subsequent thereto during which
such person is still committed to a state hospital, if the chief medical
officer of that hospital or the licensed psychologist at the appropriate
secure facility finds that the person may be likely to cause harm or has
caused harm, to others, such officer may transfer the person back to the
state security hospital.
(2) Any person committed under subsection (a)(4) may be granted
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conditional release or discharge as an involuntary patient.
(c) Before transfer of a person from the state security hospital or
appropriate secure facility pursuant to subsection (b)(1) or conditional
release or discharge of a person pursuant to subsection (b)(2), the chief
medical officer of the state security hospital or the state hospital where the
patient is under commitment or the licensed psychologist at the
appropriate secure facility shall give notice to the district court of the
county from which the person was committed that transfer of the patient is
proposed or that the patient is ready for proposed conditional release or
discharge. Such notice shall include, but not be limited to: (1)
Identification of the patient; (2) the course of treatment; (3) a current
assessment of the defendant's mental illness; (4) recommendations for
future treatment, if any; and (5) recommendations regarding conditional
release or discharge, if any. Upon receiving notice, the district court shall
order that a hearing be held on the proposed transfer, conditional release or
discharge. The court shall give notice of the hearing to the appropriate
secure facility, state hospital or state security hospital where the patient is
under commitment, to the prosecuting attorney of the county from which
the person was originally ordered committed. The prosecuting attorney
shall provide victim notification regarding the hearing. The court shall
order the involuntary patient to undergo a mental evaluation by a person
designated by the court. A copy of all orders of the court shall be sent to
the involuntary patient and the patient's attorney. The report of the court
ordered mental evaluation shall be given to the prosecuting attorney, the
involuntary patient and the patient's attorney at least seven days prior to
the hearing. The hearing shall be held within 30 days after the receipt by
the court of the chief medical officer's notice unless the court finds that
exceptional circumstances warrant delay of the hearing. The involuntary
patient shall remain in the appropriate secure facility, state hospital or state
security hospital where the patient is under commitment until the hearing
on the proposed transfer, conditional release or discharge is to be held. At
the hearing, the court shall receive all relevant evidence, including the
written findings and recommendations of the chief medical officer of the
state security hospital or the state hospital or the licensed psychologist of
the appropriate secure facility where the patient is under commitment, and
shall determine whether the patient shall be transferred to a less restrictive
hospital environment or whether the patient shall be conditionally released
or discharged. The patient shall have the right to present evidence at such
hearing and to cross-examine any witnesses called by the prosecuting
attorney. At the conclusion of the hearing, if the court finds by clear and
convincing evidence that the patient will not be likely to cause harm to self
or others if transferred to a less restrictive hospital environment, the court
shall order the patient transferred. If the court finds by clear and
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convincing evidence that the patient is not currently a mentally ill person,
the court shall order the patient discharged or conditionally released;
otherwise, the court shall order the patient to remain in the state security
hospital or state hospital where the patient is under commitment. If the
court orders the conditional release of the patient in accordance with
subsection (d), the court may order as an additional condition to the release
that the patient continue to take prescribed medication and report as
directed to a person licensed to practice medicine and surgery to determine
whether or not the patient is taking the medication or that the patient
continue to receive periodic psychiatric or psychological treatment. The
prosecuting attorney shall notify any victims of the outcome of the
hearing.
(d) In order to ensure the safety and welfare of a patient who is to be
conditionally released and the citizenry of the state, the court may allow
the patient to remain in custody at a facility under the supervision of the
secretary for aging and disability services or the head of the appropriate
secure facility for a period of time not to exceed 45 days in order to permit
sufficient time for the secretary to prepare recommendations to the court
for a suitable reentry program for the patient and allow adequate time for
the prosecuting attorney to provide victim notification. The reentry
program shall be specifically designed to facilitate the return of the patient
to the community as a functioning, self-supporting citizen, and may
include appropriate supportive provisions for assistance in establishing
residency, securing gainful employment, undergoing needed vocational
rehabilitation, receiving marital and family counseling, and such other
outpatient services that appear beneficial. If a patient who is to be
conditionally released will be residing in a county other than the county
where the district court that ordered the conditional release is located, the
court shall transfer venue of the case to the district court of the other
county and send a copy of all of the court's records of the proceedings to
the other court. In all cases of conditional release the court shall:
(1) Order that the patient be placed under the temporary supervision
of district court probation and parole services, community treatment
facility or any appropriate private agency; and
(2) require as a condition precedent to the release that the patient
agree in writing to waive extradition in the event a warrant is issued
pursuant to K.S.A. 22-3428b, and amendments thereto.
(e) At any time during the conditional release period, a conditionally
released patient, through the patient's attorney, or the prosecuting attorney
of the county where the district court having venue is located may file a
motion for modification of the conditions of release, and the court shall
hold an evidentiary hearing on the motion within 14 days of its filing. The
court shall give notice of the time for the hearing to the patient and the
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prosecuting attorney. If the court finds from the evidence at the hearing
that the conditional provisions of release should be modified or vacated, it
shall so order. If at any time during the transitional period the designated
medical officer or supervisory personnel or the treatment facility informs
the court that the patient is not satisfactorily complying with the provisions
of the conditional release, the court, after a hearing for which notice has
been given to the prosecuting attorney and the patient, may make orders:
(1) For additional conditions of release designed to effect the ends of the
reentry program; (2) requiring the prosecuting attorney to file a petition to
determine whether the patient is a mentally ill person as provided in
K.S.A. 59-2957, and amendments thereto; or (3) requiring that the patient
be committed to the appropriate secure facility, state security hospital or
any state hospital. In cases where a petition is ordered to be filed, the court
shall proceed to hear and determine the petition pursuant to the care and
treatment act for mentally ill persons and that act shall apply to all
subsequent proceedings. If a patient is committed to any state hospital
pursuant to this act the prosecuting attorney shall provide victim
notification. The costs of all proceedings, the mental evaluation and the
reentry program authorized by this section shall be paid by the county
from which the person was committed.
(f) In any case in which the defense that the defendant lacked the
required mental state pursuant to K.S.A. 22-3220 2022 Supp. 21-5209, and
amendments thereto, is relied on, the court shall instruct the jury on the
substance of this section.
(g) As used in this section and K.S.A. 22-3428a, and amendments
thereto:
(1) "Likely to cause harm to self or others" means that the person is
likely, in the reasonably foreseeable future, to cause substantial physical
injury or physical abuse to self or others or substantial damage to another's
property, or evidenced by behavior causing, attempting or threatening such
injury, abuse or neglect.
(2) "Mentally ill person" means any person who:
(A) Is suffering from a severe mental disorder to the extent that such
person is in need of treatment; and
(B) is likely to cause harm to self or others.
(3) "Treatment facility" means any mental health center or clinic,
psychiatric unit of a medical care facility, psychologist, physician or other
institution or individual authorized or licensed by law to provide either
inpatient or outpatient treatment to any patient.
Sec. 3. K.S.A. 2022 Supp. 22-3428a is hereby amended to read as
follows: 22-3428a. (1) (a) Any person found not guilty, pursuant to
K.S.A. 22-3220 and 22-3221, and amendments thereto, and K.S.A. 2022
Supp. 21-5209, and amendments thereto, who remains in the state
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security hospital or a state hospital for over one year pursuant to a
commitment under K.S.A. 22-3428, and amendments thereto, shall be
entitled annually to request a hearing to determine whether or not the
person continues to be a mentally ill person. The request shall be
made in writing to the district court of the county where the person is
hospitalized and shall be signed by the committed person or the
person's counsel. When the request is filed, the court shall give notice
of the request to: (a) (1) The county or district attorney of the county
in which the person was originally ordered committed; and (b) (2) the
chief medical officer of the state security hospital or state hospital
where the person is committed. The chief medical officer receiving the
notice, or the officer's designee, shall conduct a mental examination of
the person and shall send to the district court of the county where the
person is hospitalized and to the county or district attorney of the
county in which the person was originally ordered committed a report
of the examination within 21 days from the date when notice from the
court was received. Within 14 days after receiving the report of the
examination, the county or district attorney receiving it may file a
motion with the district court that gave the notice, requesting the
court to change the venue of the hearing to the district court of the
county in which the person was originally committed, or the court that
gave the notice on its own motion may change the venue of the hearing
to the district court of the county in which the person was originally
committed. Upon receipt of that motion and the report of the mental
examination or upon the court's own motion, the court shall transfer
the hearing to the district court specified in the motion and send a
copy of the court's records of the proceedings to that court.
(2)(b) After the time in which a change of venue may be requested
has elapsed, the court having venue shall set a date for the hearing,
giving notice thereof to the county or district attorney of the county,
the committed person and the person's counsel. The county or district
attorney shall provide victim notification. If there is no counsel of
record, the court shall appoint a counsel for the committed person.
The committed person shall have the right to procure, at the person's
own expense, a mental examination by a physician or licensed
psychologist of the person's own choosing. If a committed person is
financially unable to procure such an examination, the aid to indigent
defendants provisions of article 45 of chapter 22 of the Kansas
Statutes Annotated, and amendments thereto, shall be applicable to
that person. A committed person requesting a mental examination
pursuant to K.S.A. 22-4508, and amendments thereto, may request a
physician or licensed psychologist of the person's own choosing and
the court shall request the physician or licensed psychologist to
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provide an estimate of the cost of the examination. If the physician or
licensed psychologist agrees to accept compensation in an amount in
accordance with the compensation standards set by the board of
supervisors of panels to aid indigent defendants, the judge shall
appoint the requested physician or licensed psychologist; otherwise,
the court shall designate a physician or licensed psychologist to
conduct the examination. Copies of each mental examination of the
committed person shall be filed with the court at least seven days prior
to the hearing and shall be supplied to the county or district attorney
receiving notice pursuant to this section and the committed person's
counsel.
(3)(c) At the hearing the committed person shall have the right to
present evidence and cross-examine the witnesses. The court shall receive
all relevant evidence, including the written findings and recommendations
of the chief medical officer of the state security hospital or state hospital
where the person is under commitment, and shall determine whether the
committed person continues to be a mentally ill person. At the hearing the
court may make any order that a court is empowered to make pursuant to
subsections (3), (4) and (5) of K.S.A. 22-3428(c), (d) and (e), and
amendments thereto. If the court finds by clear and convincing evidence
the committed person is not a mentally ill person, the court shall order the
person discharged; otherwise, the person shall remain committed or be
conditionally released. The county or district attorney shall provide victim
notification regarding the outcome of the hearing.
(4)(d) Costs of a hearing held pursuant to this section shall be
assessed against and paid by the county in which the person was
originally ordered committed.
Sec. 2. 4. K.S.A. 12-736 and K.S.A. 2022 Supp. 22-3428 is and 22-
3428a are hereby repealed.
Sec. 3. 5. This act shall take effect and be in force from and after its
publication in the statute book.
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