NY State Senate Bill 2021-S9133

Senate Bill S9133

2021-2022 Legislative Session

Establishes a 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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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 10, 2022	referred to codes

2021-S9133 (ACTIVE) - Details

See Assembly Version of this Bill:: A7061
Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§730.10 & 730.60, CP L
Versions Introduced in Other Legislative Sessions:: 2023-2024: A1561
2025-2026: A2322

2021-S9133 (ACTIVE) - Summary

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.

2021-S9133 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S9133

SPONSOR: MANNION
 
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:

New Bill.

 
FISCAL IMPLICATIONS:

NONE

 
EFFECTIVE DATE:
This act shall take effect immediately.

2021-S9133 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9133
 
                             I N  S E N A T E
 
                               May 10, 2022
                                ___________
 
 Introduced  by  Sen. MANNION -- read twice and ordered printed, and when
   printed to be committed 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:
 
   Section  1.  Subdivision 9 of section 730.10 of the criminal procedure
 law, as added by section 1 of part Q of chapter 56 of the laws of  2012,
 is amended to read as follows:
   9.  "Appropriate  institution"  means:  (a) a hospital operated by the
 office of mental health or a developmental center operated by the office
 for people with developmental disabilities; or (b) a  hospital  licensed
 by  the  department of health which operates a psychiatric unit licensed
 by the office of  mental  health,  as  determined  by  the  commissioner
 provided,  however,  that  any such hospital that is not operated by the
 state shall qualify as an "appropriate institution" only pursuant to the
 terms of an agreement between the  commissioner  and  the  hospital,  OR
 BETWEEN  THE COMMISSIONER AND A JAIL-BASED FACILITY PURSUANT TO SUBDIVI-
 SION SEVEN OF SECTION 730.60 OF THIS ARTICLE.  Nothing in  this  article
 shall  be construed as requiring a hospital to consent to providing care
 and treatment to an incapacitated person at such hospital.
   § 2.  Subdivisions 1 and 2 of section 730.60 of the criminal procedure
 law, subdivision 1 as amended by chapter 231 of the  laws  of  2008  and
 subdivision  2 as amended by chapter 57 of the laws of 1984, are amended
 and a new subdivision 7 is added to read as follows:
   1. When a local criminal court issues a final or  temporary  order  of
 observation  or an order of commitment, it must forward such order and a
 copy of the examination reports and the  accusatory  instrument  to  the
 commissioner, and, if available, a copy of the pre-sentence report. Upon
 receipt thereof, the commissioner must designate an appropriate institu-
 tion  operated  by  the  department of mental hygiene, OR A COUNTY JAIL-
 BASED COMPETENCY RESTORATION PROGRAM PURSUANT TO  SUBDIVISION  SEVEN  OF
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD10685-01-1
 S. 9133                             2
 
 THIS SECTION, in which the defendant is to be placed, provided, however,
 that  the  commissioner may designate an appropriate hospital for place-
 ment of a defendant for whom a  final  order  of  observation  has  been
 issued,  where  such hospital is licensed by the office of mental health
 and has agreed to accept, upon referral by the commissioner,  defendants
 subject  to  final  orders of observation issued under this subdivision.
 The sheriff must hold the defendant in custody pending such  designation
 by  the  commissioner, and when notified of the designation, the sheriff
 must deliver the defendant to the superintendent  of  such  institution.
 The  superintendent must promptly inform the appropriate director of the
 mental hygiene legal service of the defendant's admission to such insti-
 tution. If a defendant escapes from the custody of the commissioner, the
 escape shall interrupt the period prescribed in any  order  of  observa-
 tion,  commitment  or  retention,  and  such interruption shall continue
 until the defendant is returned to the custody of the commissioner.
   2. Except as otherwise provided in subdivisions four and five OF  THIS
 SECTION, when a defendant is in the custody of the commissioner pursuant
 to  a  temporary  order  of  observation or an order of commitment or an
 order of  retention,  OR  A  COUNTY  JAIL-BASED  COMPETENCY  RESTORATION
 PROGRAM  PURSUANT  TO  SUBDIVISION  SEVEN  OF THIS SECTION, the criminal
 action pending against the defendant in the court that issued such order
 is suspended until the superintendent of the institution  in  which  the
 defendant is confined OR A CLINICAL PSYCHIATRIST FOR A COUNTY JAIL-BASED
 COMPETENCY  RESTORATION  PROGRAM  PURSUANT  TO SUBDIVISION SEVEN OF THIS
 SECTION determines that he is no longer an incapacitated person. In that
 event, the court that issued such order  and  the  appropriate  district
 attorney  must  be  notified,  in  writing, by the superintendent of his
 determination. The court must thereupon proceed in accordance  with  the
 provisions  of subdivision two of section 730.30 of this [chapter] ARTI-
 CLE; provided, however, if the court is  satisfied  that  the  defendant
 remains  an  incapacitated  person, and upon consent of all parties, the
 court may order the return of the defendant to the institution in  which
 he  had  been  confined for such period of time as was authorized by the
 prior order of commitment or order of retention. Upon such  return,  the
 defendant   shall  have  all  rights  and  privileges  accorded  by  the
 provisions of this article.
   7. (A) THE OFFICE OF MENTAL HEALTH SHALL PROMULGATE  RULES  AND  REGU-
 LATIONS FOR THE DEVELOPMENT AND IMPLEMENTATION OF A PROGRAM ALLOWING FOR
 COUNTY  JAILS  TO  PROVIDE COMPETENCY RESTORATION SERVICES TO INMATES OF
 SUCH FACILITIES IN NO MORE THAN FIVE COUNTIES  IN  THE  STATE.    COUNTY
 PARTICIPATION IN A JAIL-BASED RESTORATION PROGRAM SHALL BE VOLUNTARY.
   (B)  EACH  COUNTY  MAY  PROVIDE COMPETENCY RESTORATION SERVICES EITHER
 DIRECTLY OR THROUGH CONTRACT.
   (C) COUNTIES PARTICIPATING IN A  JAIL-BASED  RESTORATION  PROGRAM  MAY
 APPOINT A WORKING GROUP TO DEVELOP RULES, GUIDANCE AND POLICIES FOR SUCH
 PROGRAM.  THE WORKGROUP MAY INCLUDE THE FOLLOWING:
   (1) ONE MEMBER WHO IS A SHERIFF;
   (2) ONE MEMBER WHO REPRESENTS A LOCAL MENTAL HEALTH AUTHORITY;
   (3)  ONE MEMBER WHO IS A COUNTY COMMISSIONER, COUNTY JUDGE, OR ELECTED
 COUNTY OFFICER;
   (4) ONE MEMBER WHO IS A DISTRICT  ATTORNEY  OR  COUNTY  ATTORNEY  WITH
 CRIMINAL JURISDICTION;
   (5) ONE MEMBER WHO IS A DEFENSE ATTORNEY;
   (6)  ONE  MEMBER WHO IS A JUDGE OF A DISTRICT CRIMINAL COURT OR COUNTY
 CRIMINAL COURT;
   (7) TWO MEMBERS WHO ARE MENTAL HEALTH ADVOCATES; AND
 S. 9133                             3
 
   (8) ANY OTHER MEMBER THE DEPARTMENT CONSIDERS APPROPRIATE  TO  APPOINT
 TO THE STAKEHOLDER WORKGROUP.
   (D) PROVIDERS OF JAIL-BASED RESTORATION SERVICES MUST:
   (1)  HAVE  PROVIDED  SUCH SERVICES IN JAIL-BASED SETTINGS FOR AT LEAST
 TWO YEARS; AND
   (2) BE A  LOCAL  MENTAL  HEALTH  ORGANIZATION  WITH  PRIOR  EXPERIENCE
 PROVIDING SUCH SERVICES.
   (E) A JAIL-BASED RESTORATION PROGRAM MUST:
   (1)  USE  A  MULTIDISCIPLINARY  TEAM INCLUDING AN ADVANCED PSYCHIATRIC
 PROVIDER, A QUALIFIED FORENSIC EXAMINER, MENTAL HEALTH PROFESSIONAL, AND
 COMPETENCY EDUCATOR;
   (2) BE DIRECTED TOWARD THE GOAL OF RESTORING A DEFENDANT'S FITNESS  TO
 STAND TRIAL; AND
   (3) PROVIDE SERVICES SIMILAR TO THOSE PROVIDED IN A HOSPITAL.
   (F) A COUNTY PARTICIPATING IN A JAIL-BASED RESTORATION PROGRAM SHALL:
   (1)  ENSURE THE SAFETY OF DEFENDANTS WHO PARTICIPATE IN THE JAIL-BASED
 RESTORATION OF COMPETENCY PILOT PROGRAM;
   (2) DESIGNATE A SEPARATE SPACE IN THE JAIL FOR THE PROVIDER TO CONDUCT
 THE PILOT PROGRAM;
   (3) PROVIDE THE SAME BASIC CARE TO THE PARTICIPANTS AS IS PROVIDED  TO
 OTHER INMATES OF A JAIL;
   (4)   SUPPLY   CLINICALLY   APPROPRIATE  PSYCHOACTIVE  MEDICATIONS  AS
 WARRANTED; AND
   (5) HAVE IN PLACE AN AGREEMENT WITH  A  HOSPITAL  POSSESSING  A  VALID
 OPERATING  CERTIFICATE  ISSUED  PURSUANT  TO ARTICLE TWENTY-EIGHT OF THE
 PUBLIC HEALTH LAW THAT CAN PETITION THE COURT FOR AND ENFORCE  TREATMENT
 OVER OBJECTION FOR INDIVIDUALS COURT ORDERED TO RESTORATION SERVICES WHO
 REFUSE MEDICATION.
   (G)  IF  AT  ANY  TIME DURING A DEFENDANT'S PARTICIPATION IN THE JAIL-
 BASED RESTORATION PILOT PROGRAM THE PSYCHIATRIST OR PSYCHOLOGIST FOR THE
 PROVIDER DETERMINES THAT THE DEFENDANT HAS ATTAINED FITNESS TO PROCEED:
   (1) THE PSYCHIATRIST OR PSYCHOLOGIST FOR THE PROVIDER  SHALL  PROMPTLY
 ISSUE AND SEND TO THE COURT A REPORT DEMONSTRATING THAT FACT; AND
   (2)  THE  COURT  SHALL CONSIDER THAT REPORT AS THE REPORT OF AN EXPERT
 STATING AN OPINION THAT THE DEFENDANT HAS BEEN RESTORED TO FITNESS.
   (H) IF AT ANY TIME DURING A DEFENDANT'S  PARTICIPATION  IN  THE  JAIL-
 BASED RESTORATION PILOT PROGRAM THE PSYCHIATRIST OR PSYCHOLOGIST FOR THE
 PROVIDER  DETERMINES  THAT  THE  DEFENDANT'S  FITNESS  TO STAND TRIAL IS
 UNLIKELY TO BE RESTORED IN THE FORESEEABLE FUTURE, THE  PSYCHIATRIST  OR
 PSYCHOLOGIST FOR THE PROVIDER SHALL PROMPTLY ISSUE AND SEND TO THE COURT
 A REPORT DEMONSTRATING THAT FACT.
   (I)  IF  THE  PSYCHIATRIST OR PSYCHOLOGIST FOR THE PROVIDER DETERMINES
 THAT A DEFENDANT ORDERED TO PARTICIPATE IN THE  PILOT  PROGRAM  HAS  NOT
 BEEN  RESTORED  TO  FITNESS, BUT IS BELIEVED TO BE RESTORABLE TO FITNESS
 WITH ADDITIONAL TREATMENT BY THE END OF THE NINETIETH DAY AFTER THE DATE
 THE DEFENDANT BEGAN TO PARTICIPATE IN THE PILOT PROGRAM,  THE  DEFENDANT
 SHALL  BE TRANSFERRED, WITHOUT UNNECESSARY DELAY, TO THE FIRST AVAILABLE
 FACILITY THAT IS APPROPRIATE FOR THAT DEFENDANT PURSUANT TO  SUBDIVISION
 NINE OF SECTION 730.10 OF THIS ARTICLE.
   § 3.  This act shall take effect immediately.

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