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A01561 Summary:

BILL NOA01561
 
SAME ASNo Same As
 
SPONSORMcDonald
 
COSPNSRWeprin, Woerner
 
MLTSPNSR
 
Amd §§730.10 & 730.60, CP L
 
Establishes a five-county, three-year pilot program enabling counties to opt-in to allow county jails to operate jail-based competency restoration services for inmates deemed unfit for trial due to mental incapacity.
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A01561 Actions:

BILL NOA01561
 
01/17/2023referred to codes
01/03/2024referred to codes
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A01561 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A1561
 
SPONSOR: McDonald
  TITLE OF BILL: An act to amend the criminal procedure law, in relation to establishing a five-county, three-year pilot program enabling counties to opt-in to allow county jails to operate jail-based competency restoration services for inmates deemed unfit for trial due to mental incapacity   PURPOSE: To allow county jails to operate jail-based competency restoration services for inmates deemed unfit for trial due to mental incapacity.   SUMMARY OF PROVISIONS: Section one amends section 730.10 of the criminal procedure law to add jail-based facilities to the definition of "appropriate institution." Section two amends subdivisions 1 and 2 of section 730.60 of the crimi- nal procedure law and adds a new subdivision 7 to allow a county jail- based competency restoration program to be an option to place a defend- ant. The section also allows the office of mental health to promulgate rules and regulations for the development of a program to allow county jails to provide competency restoration services and allow the counties to a create a working group to develop rules, guidance, and policies for the program. Section three establishes the effective date.   JUSTIFICATION: Jail-Based Competency Restoration (JBR) is the practice of psychiat- rically stabilizing and/or educating individuals found unfit to proceed in a jail-based setting. It is an alternative to New York State's current system of competency restoration in which inmates are sent to state facilities for restoration services. JBR efforts consist of a combination of medication, legal education, individualized inter- ventions, and cognitive remediation. Since 2020, the State of New York has required counties to cover 100% of the cost of sending inmates to state correctional hospitals for restora- tion services. This figure is up from the previous 50% cost-sharing model. As counties face an unprecedented budget crisis due to the COVID-19 pandemic, shouldering 100% of the cost burden is devastating to many counties' fiscal situations. Beyond the fact that JBR enhances patient outcomes and is a criminal justice reform, it is a way for coun- ties to save significant financial resources as JBR reduces the cost of restoration services on average by 60%-90% per patient. At present, individuals found unfit to proceed have two options for restoration treatment: 1) In an outpatient restoration program, or 2) At a state psychiatric facility. Because most prosecutors are reluctant to support option 1, the majority of individuals facing felony charges are admitted to a state hospital. However, but for the criminal charges, most individuals otherwise would not qualify for hospital-level care. Adding JBR as a third option in the continuum of restoration services allows for the majority of individuals found unfit to be restored on-site, while maintaining the option to transition JBR participants to more- or less-intensive restoration programs as needed. The goal of NYS legislation allowing for JBR is to create a 5-county, three-year pilot program enabling counties to opt-in to JBR. There would be no mandate.   LEGISLATIVE HISTORY: 2021-2022: A.7061   FISCAL IMPLICATIONS: NONE   EFFECTIVE DATE: This act shall take effect immediately.
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A01561 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1561
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 17, 2023
                                       ___________
 
        Introduced  by  M.  of  A.  McDONALD,  WEPRIN,  WOERNER -- read once and
          referred to the Committee on Codes
 
        AN ACT to amend the criminal procedure law, in relation to  establishing
          a five-county, three-year pilot program enabling counties to opt-in to
          allow  county  jails  to  operate  jail-based  competency  restoration
          services for inmates deemed unfit for trial due to mental incapacity
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Subdivision 9 of section 730.10 of the criminal procedure
     2  law, as added by section 1 of part Q of chapter 56 of the laws of  2012,
     3  is amended to read as follows:
     4    9.  "Appropriate  institution"  means:  (a) a hospital operated by the
     5  office of mental health or a developmental center operated by the office
     6  for people with developmental disabilities; or (b) a  hospital  licensed
     7  by  the  department of health which operates a psychiatric unit licensed
     8  by the office of  mental  health,  as  determined  by  the  commissioner
     9  provided,  however,  that  any such hospital that is not operated by the
    10  state shall qualify as an "appropriate institution" only pursuant to the
    11  terms of an agreement between the  commissioner  and  the  hospital,  or
    12  between  the commissioner and a jail-based facility pursuant to subdivi-
    13  sion seven of section 730.60 of this article.  Nothing in  this  article
    14  shall  be construed as requiring a hospital to consent to providing care
    15  and treatment to an incapacitated person at such hospital.
    16    § 2.  Subdivisions 1 and 2 of section 730.60 of the criminal procedure
    17  law, subdivision 1 as amended by chapter 231 of the  laws  of  2008  and
    18  subdivision  2 as amended by chapter 57 of the laws of 1984, are amended
    19  and a new subdivision 7 is added to read as follows:
    20    1. When a local criminal court issues a final or  temporary  order  of
    21  observation  or an order of commitment, it must forward such order and a
    22  copy of the examination reports and the  accusatory  instrument  to  the
    23  commissioner, and, if available, a copy of the pre-sentence report. Upon
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04890-01-3

        A. 1561                             2
 
     1  receipt thereof, the commissioner must designate an appropriate institu-
     2  tion  operated  by  the  department of mental hygiene, or a county jail-
     3  based competency restoration program pursuant to  subdivision  seven  of
     4  this section, in which the defendant is to be placed, provided, however,
     5  that  the  commissioner may designate an appropriate hospital for place-
     6  ment of a defendant for whom a  final  order  of  observation  has  been
     7  issued,  where  such hospital is licensed by the office of mental health
     8  and has agreed to accept, upon referral by the commissioner,  defendants
     9  subject  to  final  orders of observation issued under this subdivision.
    10  The sheriff must hold the defendant in custody pending such  designation
    11  by  the  commissioner, and when notified of the designation, the sheriff
    12  must deliver the defendant to the superintendent  of  such  institution.
    13  The  superintendent must promptly inform the appropriate director of the
    14  mental hygiene legal service of the defendant's admission to such insti-
    15  tution. If a defendant escapes from the custody of the commissioner, the
    16  escape shall interrupt the period prescribed in any  order  of  observa-
    17  tion,  commitment  or  retention,  and  such interruption shall continue
    18  until the defendant is returned to the custody of the commissioner.
    19    2. Except as otherwise provided in subdivisions four and five of  this
    20  section, when a defendant is in the custody of the commissioner pursuant
    21  to  a  temporary  order  of  observation or an order of commitment or an
    22  order of  retention,  or  a  county  jail-based  competency  restoration
    23  program  pursuant  to  subdivision  seven  of this section, the criminal
    24  action pending against the defendant in the court that issued such order
    25  is suspended until the superintendent of the institution  in  which  the
    26  defendant is confined or a clinical psychiatrist for a county jail-based
    27  competency  restoration  program  pursuant  to subdivision seven of this
    28  section determines that he is no longer an incapacitated person. In that
    29  event, the court that issued such order  and  the  appropriate  district
    30  attorney  must  be  notified,  in  writing, by the superintendent of his
    31  determination. The court must thereupon proceed in accordance  with  the
    32  provisions  of subdivision two of section 730.30 of this [chapter] arti-
    33  cle; provided, however, if the court is  satisfied  that  the  defendant
    34  remains  an  incapacitated  person, and upon consent of all parties, the
    35  court may order the return of the defendant to the institution in  which
    36  he  had  been  confined for such period of time as was authorized by the
    37  prior order of commitment or order of retention. Upon such  return,  the
    38  defendant   shall  have  all  rights  and  privileges  accorded  by  the
    39  provisions of this article.
    40    7. (a) The office of mental health shall promulgate  rules  and  regu-
    41  lations for the development and implementation of a program allowing for
    42  county  jails  to  provide competency restoration services to inmates of
    43  such facilities in no more than five counties  in  the  state.    County
    44  participation in a jail-based restoration program shall be voluntary.
    45    (b)  Each  county  may  provide competency restoration services either
    46  directly or through contract.
    47    (c) Counties participating in a  jail-based  restoration  program  may
    48  appoint a working group to develop rules, guidance and policies for such
    49  program.  The workgroup may include the following:
    50    (1) one member who is a sheriff;
    51    (2) one member who represents a local mental health authority;
    52    (3)  one member who is a county commissioner, county judge, or elected
    53  county officer;
    54    (4) one member who is a district  attorney  or  county  attorney  with
    55  criminal jurisdiction;
    56    (5) one member who is a defense attorney;

        A. 1561                             3
 
     1    (6)  one  member who is a judge of a district criminal court or county
     2  criminal court;
     3    (7) two members who are mental health advocates; and
     4    (8)  any  other member the department considers appropriate to appoint
     5  to the stakeholder workgroup.
     6    (d) Providers of jail-based restoration services must:
     7    (1) have provided such services in jail-based settings  for  at  least
     8  two years; and
     9    (2)  be  a  local  mental  health  organization  with prior experience
    10  providing such services.
    11    (e) A jail-based restoration program must:
    12    (1) use a multidisciplinary team  including  an  advanced  psychiatric
    13  provider, a qualified forensic examiner, mental health professional, and
    14  competency educator;
    15    (2)  be directed toward the goal of restoring a defendant's fitness to
    16  stand trial; and
    17    (3) provide services similar to those provided in a hospital.
    18    (f) A county participating in a jail-based restoration program shall:
    19    (1) ensure the safety of defendants who participate in the  jail-based
    20  restoration of competency pilot program;
    21    (2) designate a separate space in the jail for the provider to conduct
    22  the pilot program;
    23    (3)  provide the same basic care to the participants as is provided to
    24  other inmates of a jail;
    25    (4)  supply  clinically  appropriate   psychoactive   medications   as
    26  warranted; and
    27    (5)  have  in  place  an  agreement with a hospital possessing a valid
    28  operating certificate issued pursuant to  article  twenty-eight  of  the
    29  public  health law that can petition the court for and enforce treatment
    30  over objection for individuals court ordered to restoration services who
    31  refuse medication.
    32    (g) If at any time during a defendant's  participation  in  the  jail-
    33  based restoration pilot program the psychiatrist or psychologist for the
    34  provider determines that the defendant has attained fitness to proceed:
    35    (1)  the  psychiatrist or psychologist for the provider shall promptly
    36  issue and send to the court a report demonstrating that fact; and
    37    (2) the court shall consider that report as the report  of  an  expert
    38  stating an opinion that the defendant has been restored to fitness.
    39    (h)  If  at  any  time during a defendant's participation in the jail-
    40  based restoration pilot program the psychiatrist or psychologist for the
    41  provider determines that the  defendant's  fitness  to  stand  trial  is
    42  unlikely  to  be restored in the foreseeable future, the psychiatrist or
    43  psychologist for the provider shall promptly issue and send to the court
    44  a report demonstrating that fact.
    45    (i) If the psychiatrist or psychologist for  the  provider  determines
    46  that  a  defendant  ordered  to participate in the pilot program has not
    47  been restored to fitness, but is believed to be  restorable  to  fitness
    48  with additional treatment by the end of the ninetieth day after the date
    49  the  defendant  began to participate in the pilot program, the defendant
    50  shall be transferred, without unnecessary delay, to the first  available
    51  facility  that is appropriate for that defendant pursuant to subdivision
    52  nine of section 730.10 of this article.
    53    § 3.  This act shall take effect immediately.
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