S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1561
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             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:
 
   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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04890-01-3
              

 A. 1561                             2
 
 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
 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;
 A. 1561                             3
 
   (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
   (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.