HF 3156

as introduced - 92nd Legislature (2021 - 2022) Posted on 02/03/2022 03:31pm

A bill for an act
relating to human services; establishing requirements for petitions for commitment
following a finding of incompetency to stand trial; establishing requirements for
the provisional discharge of patients found to be incompetent; providing for the
revocation of provisional discharge for certain patients found to be incompetent;
amending Minnesota Statutes 2020, sections 253B.07, subdivision 2a; 253B.15.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2020, section 253B.07, subdivision 2a, is amended to read:

Subd. 2a.

Petition originating from criminal proceedings.

(a) If criminal charges are
pending against a defendant, the court shall order simultaneous competency and civil
commitment examinations in accordance with Minnesota Rules of Criminal Procedure, rule
20.04, when the following conditions are met:

(1) the prosecutor or defense counsel doubts the defendant's competency and a motion
is made challenging competency, or the court on its initiative raises the issue under rule
20.01; and

(2) the prosecutor and defense counsel agree simultaneous examinations are appropriate.

No additional examination under subdivision 3 is required in a subsequent civil commitment
proceeding unless a second examination is requested by defense counsel appointed following
the filing of any petition for commitment.

(b) Only a court examiner may conduct an assessment as described in Minnesota Rules
of Criminal Procedure, rules 20.01, subdivision 4, and 20.02, subdivision 2.

(c) Where a county is ordered to consider civil commitment following a determination
of incompetency under Minnesota Rules of Criminal Procedure, rule 20.01, the county in
which the criminal matter is pending is responsible to conduct prepetition screening and, if
statutory conditions for commitment are satisfied, to file the commitment petition in that
county. new text begin The petition must state that it is being filed following a determination of
incompetency. new text end By agreement between county attorneys, prepetition screening and filing
the petition may be handled in the county of financial responsibility or the county where
the proposed patient is present.

(d) Following an acquittal of a person of a criminal charge under section 611.026, the
petition shall be filed by the county attorney of the county in which the acquittal took place
and the petition shall be filed with the court in which the acquittal took place, and that court
shall be the committing court for purposes of this chapter. When a petition is filed pursuant
to subdivision 2 with the court in which acquittal of a criminal charge took place, the court
shall assign the judge before whom the acquittal took place to hear the commitment
proceedings unless that judge is unavailable.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 2.

Minnesota Statutes 2020, section 253B.15, is amended to read:

253B.15 PROVISIONAL DISCHARGE; PARTIAL INSTITUTIONALIZATION.

Subdivision 1.

Provisional discharge.

(a) The head of the treatment facility,
state-operated treatment program, or community-based treatment program may provisionally
discharge any patient without discharging the commitment, unless the patient was found
by the committing court to be a person who has a mental illness and is dangerous to the
public, a sexually dangerous person, or a sexual psychopathic personality. new text begin Provisional
discharge of a patient who was committed to the commissioner following a determination
of incompetency under Minnesota Rules of Criminal Procedure, rule 20.01, must comply
with the requirements in subdivision 1b.
new text end

(b) When a patient committed to the commissioner becomes ready for provisional
discharge before being placed in a state-operated treatment program, the head of the treatment
facility or community-based treatment program where the patient is placed pending transfer
to the commissioner may provisionally discharge the patient pursuant to this subdivision.

(c) Each patient released on provisional discharge shall have a written provisional
discharge plan developed with input from the patient and the designated agency which
specifies the services and treatment to be provided as part of the provisional discharge plan,
the financial resources available to pay for the services specified, the expected period of
provisional discharge, the precise goals for the granting of a final discharge, and conditions
or restrictions on the patient during the period of the provisional discharge. The provisional
discharge plan shall be provided to the patient, the patient's attorney, and the designated
agency.

(d) The provisional discharge plan shall be reviewed on a quarterly basis by the patient,
designated agency and other appropriate persons. The provisional discharge plan shall
contain the grounds upon which a provisional discharge may be revoked. The provisional
discharge shall terminate on the date specified in the plan unless specific action is taken to
revoke or extend it.

Subd. 1a.

Representative of designated agency.

Before a provisional discharge is
granted, a representative of the designated agency must be identified to ensure continuity
of care by being involved with the treatment facility, state-operated treatment program, or
community-based treatment program and the patient prior to the provisional discharge. The
representative of the designated agency shall coordinate plans for and monitor the patient's
aftercare program. new text begin Monitoring a patient who was committed to the commissioner following
a determination of incompetency under Minnesota Rules of Criminal Procedure, rule 20.01,
must include the supervision, meetings, and reports required under subdivision 1b. new text end When
the patient is on a provisional discharge, the representative of the designated agency shall
provide the treatment report to the court required under section 253B.12, subdivision 1.

new text begin Subd. 1b. new text end

new text begin Provisional discharge and supervision of patients found to be
incompetent. new text end

new text begin (a) The provisional discharge plan for a patient who was committed to the
commissioner following a determination of incompetency under Minnesota Rules of Criminal
Procedure, rule 20.01, must include services, treatment, supervision, and conditions or
restrictions designed to protect public safety and restore the patient to competency. The
plan shall state that failing to comply with any portion of the plan may result in revocation
of provisional discharge and shall clearly state that the designated agency may initiate
revocation of the provisional discharge without considering other alternatives if the patient
violates any of the conditions described in paragraph (b).
new text end

new text begin (b) Each provisional discharge plan developed under this subdivision must require that
the patient:
new text end

new text begin (1) not commit any misdemeanor, gross misdemeanor, or felony offense;
new text end

new text begin (2) maintain regular contact with the identified representative of the designated agency,
including at least one face-to-face contact per week;
new text end

new text begin (3) abstain from the use of controlled substances except when used according to the
terms of a prescription issued for the patient in accordance with sections 152.11 and 152.12;
and
new text end

new text begin (4) give the identified representative of the designated agency written notice of any
change in the patient's primary address at least five days before the patient starts living at
a new primary address.
new text end

new text begin (c) If a patient violates any of the conditions required under paragraph (b), the identified
representative of the designated agency must notify the commissioner within 24 hours of
discovering the violation.
new text end

new text begin (d) The identified representative of the designated agency supervising a patient under
this subdivision must provide a weekly report to the commissioner in a format approved by
the commissioner. The report must describe the patient's participation in treatment and
services, progress toward having competency restored, and compliance with the conditions
required under paragraph (b). The expense of the weekly meeting required under paragraph
(b), clause (2), and the report required under this paragraph shall be paid by the commissioner.
new text end

new text begin (e) If the commissioner receives notice that a patient supervised under this subdivision
has violated any portion of the provisional discharge plan, the commissioner shall take the
steps necessary to bring the patient into compliance with the plan or initiate revocation of
the provisional discharge.
new text end

Subd. 2.

Revocation of provisional discharge.

(a) The new text begin commissioner or the new text end designated
agency may initiate with the court a revocation of a provisional discharge if revocation is
the least restrictive alternative and either:

(1) the patient has violated material conditions of the provisional discharge, and the
violation creates the need to return the patient to a more restrictive setting or more intensive
community services; or

(2) there exists a serious likelihood that the safety of the patient or others will be
jeopardized, in that either the patient's need for food, clothing, shelter, or medical care are
not being met, or will not be met in the near future, or the patient has attempted or threatened
to seriously physically harm self or others.

new text begin (b) The commissioner or the designated agency may initiate with the court a revocation
of a provisional discharge if a patient who was committed to the commissioner following
a determination of incompetency under Minnesota Rules of Criminal Procedure, rule 20.01,
has violated any of the requirements under subdivision 1b, paragraph (b).
new text end

deleted text begin (b) deleted text end new text begin (c) new text end Any interested person may request that the new text begin commissioner or the new text end designated agency
revoke the patient's provisional discharge. Any person making a request shall provide the
new text begin commissioner or the new text end designated agency with a written report setting forth the specific facts,
including witnesses, dates and locations, supporting a revocation, demonstrating that every
effort has been made to avoid revocation and that revocation is the least restrictive alternative
available.

Subd. 3.

Procedure; notice.

Revocation shall be commenced by the new text begin commissioner's or
the new text end designated agency's written notice of intent to revoke provisional discharge given or
sent to the patient, the patient's attorney, the facility or program from which the patient was
provisionally discharged, and the current community services provider. The notice shall set
forth the grounds upon which the intention to revoke is based, and shall inform the patient
of the rights of a patient under this chapter.

Subd. 3a.

Report to the court.

new text begin (a) new text end Within 48 hours, excluding weekends and legal
holidays, of giving notice to deleted text begin the deleted text end new text begin a new text end patient new text begin other than a patient described in paragraph (b) new text end ,
the new text begin commissioner or the new text end designated agency shall file with the court a copy of the notice and
a report setting forth the specific facts, including witnesses, dates and locations, which (1)
support revocation, (2) demonstrate that revocation is the least restrictive alternative available,
and (3) show that specific efforts were made to avoid revocation.

new text begin (b) Within 48 hours, excluding weekends and legal holidays, of giving notice to a patient
who was committed to the commissioner following a determination of incompetency under
Minnesota Rules of Criminal Procedure, rule 20.01, and who violated any of the conditions
required under subdivision 1b, paragraph (b), the commissioner or the designated agency
shall file with the court a copy of the notice and a report setting forth the specific facts,
including witnesses, dates, and locations, which support revocation. The notice may also
demonstrate that revocation is the least restrictive alternative available and show that specific
efforts were made to avoid revocation.
new text end

new text begin (c) new text end The new text begin commissioner or the new text end designated agency shall provide copies of the report to the
patient, the patient's attorney, the county attorney, and the treatment facility or program
from which the patient was provisionally discharged within 48 hours of giving notice to the
patient under subdivision 3.

Subd. 3b.

Review.

The patient or patient's attorney may request judicial review of the
intended revocation by filing a petition for review and an affidavit with the committing
court. The affidavit shall state specific grounds for opposing the revocation. If the patient
does not file a petition for review within five days of receiving the notice under subdivision
3, revocation of the provisional discharge is final and the court, without hearing, may order
the patient into a facility or program from which the patient was provisionally discharged,
another treatment facility, state-operated treatment program, or community-based treatment
program that consents to receive the patient, or more intensive community treatment. If the
patient files a petition for review, the court shall review the petition and determine whether
a genuine issue exists as to the propriety of the revocation. The burden of proof is on the
new text begin commissioner or the new text end designated agency to show that no genuine issue exists as to the
propriety of the revocation. If the court finds that no genuine issue exists as to the propriety
of the revocation, the revocation of the provisional discharge is final.

Subd. 3c.

Hearing.

(a) If the court finds under subdivision 3b that a genuine issue exists
as to the propriety of the revocation, the court shall hold a hearing on the petition within
three days after the patient files the petition. The court may continue the review hearing for
an additional five days upon any party's showing of good cause. At the hearing, the burden
of proof is on the new text begin commissioner or the new text end designated agency to show a factual basis for the
revocation. At the conclusion of the hearing, the court shall make specific findings of fact.

new text begin (b) new text end The court shall affirm the revocation new text begin of a patient other than a patient described in
subdivision 3a, paragraph (b), new text end if it finds:

(1) a factual basis for revocation due to:

(i) a violation of the material conditions of the provisional discharge that creates a need
for the patient to return to a more restrictive setting or more intensive community services;
or

(ii) a probable danger of harm to the patient or others if the provisional discharge is not
revoked; and

(2) that revocation is the least restrictive alternative available.

new text begin (c) The court shall affirm the revocation of a patient described in subdivision 3a,
paragraph (b), if it finds a factual basis for revocation due to a violation of the conditions
required under subdivision 1b, paragraph (b).
new text end

deleted text begin (b) deleted text end new text begin (d) new text end If the court does not affirm the revocation, the court shall order the patient returned
to provisional discharge status.

Subd. 5.

Return to facility.

When new text begin the commissioner or new text end the designated agency gives or
sends notice of the intent to revoke a patient's provisional discharge, deleted text begin it deleted text end new text begin the commissioner
or the designated agency new text end may also apply to the committing court for an order directing that
the patient be returned to the facility or program from which the patient was provisionally
discharged or another treatment facility, state-operated treatment program, or
community-based treatment program that consents to receive the patient. The court may
order the patient returned to a facility or program prior to a review hearing only upon finding
that immediate return is necessary because there is a serious likelihood that the safety of
the patient or others will be jeopardized, in that (1) the patient's need for food, clothing,
shelter, or medical care is not being met, or will not be met in the near future, or (2) the
patient has attempted or threatened to seriously harm self or others. If a voluntary return is
not arranged, the head of the treatment facility, state-operated treatment program, or
community-based treatment program may request a health officer or a peace officer to return
the patient to the facility or program from which the patient was released or to any other
treatment facility, state-operated treatment program, or community-based treatment program
that consents to receive the patient. If necessary, the head of the treatment facility,
state-operated treatment program, or community-based treatment program may request the
committing court to direct a health officer or peace officer in the county where the patient
is located to return the patient to the facility or program or to another treatment facility,
state-operated treatment program, or community-based treatment program that consents to
receive the patient. The expense of returning the patient to a state-operated treatment program
shall be paid by the commissioner unless paid by the patient or the patient's relatives. If the
court orders the patient to return to the facility or program, or if a health officer or peace
officer returns the patient to the facility or program, and the patient wants judicial review
of the revocation, the patient or the patient's attorney must file the petition for review and
affidavit required under subdivision 3b within 14 days of receipt of the notice of the intent
to revoke.

Subd. 7.

Modification and extension of provisional discharge.

(a) A provisional
discharge may be modified upon agreement of the parties.

(b) A provisional discharge may be extended only in those circumstances where the
patient has not achieved the goals set forth in the provisional discharge plan or continues
to need the supervision or assistance provided by an extension of the provisional discharge.
In determining whether the provisional discharge is to be extended, the new text begin commissioner or
the new text end designated agency shall consider the willingness and ability of the patient to voluntarily
obtain needed care and treatment.

(c) The new text begin commissioner or the new text end designated agency must provide any proposed extension
in writing to the patient and the patient's attorney at least 30 days prior to the expiration of
the provisional discharge unless the patient cannot be located or is unavailable to receive
the notice. The proposal for extension shall include: the specific grounds for proposing the
extension, the anniversary date of the provisional discharge, the termination date of the
provisional discharge, and the proposed length of extension. If the grounds for proposing
the extension occur less than 30 days before its expiration, the designated agency must
submit the written proposal for extension as soon as practicable.

(d) The new text begin commissioner or the new text end designated agency shall extend a provisional discharge
only after providing the patient an opportunity for a meeting to object or make suggestions
for alternatives to an extension. The new text begin commissioner or the new text end designated agency shall provide
a written decision to the patient and the patient's attorney regarding extension within five
days after receiving the patient's input or after holding a meeting with the patient or after
the patient has declined to provide input or participate in the meeting. The new text begin commissioner
or the new text end designated agency may seek input from the community-based treatment team or other
persons the patient chooses.

Subd. 8.

Effect of extension.

No provisional discharge, revocation, or extension shall
extend the term of the commitment beyond the period provided for in the commitment order.

Subd. 8a.

Provisional discharge extension.

If the provisional discharge extends until
the end of the period of commitment and, before the commitment expires, the court extends
the commitment under section 253B.12 or issues a new commitment order under section
253B.13, the provisional discharge shall continue for the duration of the new or extended
period of commitment ordered unless the commitment order provides otherwise or the
new text begin commissioner or the new text end designated agency revokes the patient's provisional discharge pursuant
to this section. To continue the patient's provisional discharge under this subdivision, the
new text begin commissioner or the new text end designated agency is not required to comply with the procedures in
subdivision 7.

Subd. 9.

Expiration of provisional discharge.

(a) Except as otherwise provided, a
provisional discharge is absolute when it expires. If, while on provisional discharge or
extended provisional discharge, a patient is discharged as provided in section 253B.16, the
discharge shall be absolute.

(b) The new text begin commissioner or the new text end designated agency shall give notice of the expiration of the
provisional discharge to the committing court; the petitioner, if known; the patient's attorney;
the county attorney in the county of commitment; and the facility or program that
provisionally discharged the patient.

Subd. 10.

Voluntary return.

(a) With the consent of the head of the treatment facility
or state-operated treatment program, a patient may voluntarily return to inpatient status as
follows:

(1) as a voluntary patient, in which case the patient's commitment is discharged;

(2) as a committed patient, in which case the patient's provisional discharge is voluntarily
revoked; or

(3) on temporary return from provisional discharge, in which case both the commitment
and the provisional discharge remain in effect.

(b) Prior to readmission, the patient shall be informed of status upon readmission.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment and
applies to any person committed to a treatment facility or state-operated treatment program
under Minnesota Statutes, chapter 253B, or temporarily confined under Minnesota Statutes,
section 253B.045, on or after that date.
new text end

Sec. 3. new text begin PROVISIONAL DISCHARGE; USE OF DIRECT CARE AND TREATMENT
APPROPRIATIONS.
new text end

new text begin The commissioner of human services shall use existing direct care and treatment
appropriations to cover any costs associated with the changes to the civil commitment and
provisional discharge requirements under Minnesota Statutes, sections 253B.07, subdivision
2a, and 253B.15.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end