Competency to Stand Trial Provisions.

Forensic navigators may be appointed for class B and class C felonies and all misdemeanors, and will not be referred for class A felonies unless requested by the court or by a party.  Forensic navigator duties include:  (a) gathering information regarding the presence of disabilities, injuries, or cognitive disorders to help inform referrals for diversion or services; (b) when able to meet with the individual, gathering accurate contact information from relevant persons to facilitate timely contact if the individual is referred for services; and (c) providing a coordinated transition of an individual found not competent and not restorable due to an intellectual or developmental disability, dementia, traumatic brain injury, or other neurocognitive disorders to appropriate case managers within the DSHS.

To be eligible for outpatient competency restoration, a defendant must be willing to adhere to all rules of the outpatient competency restoration program.  The specific requirement that a defendant abstain from alcohol and drugs and comply with urinalysis and breathalyzer monitoring is removed.  If a defendant is on personal recognizance waiting for competency services in a county with an outpatient restoration program that has adequate space, the DSHS must provide a recommended services plan to the court.  If restoration is still required, the court must order outpatient competency restoration for the defendant.  

The DSHS must promptly notify the court and parties when it appears that the condition of a defendant ordered to inpatient competency restoration is such that a transfer to outpatient competency restoration is appropriate.  The notice must provide pertinent information concerning the change in condition or the reasons supporting the transfer.  The court must schedule a hearing within 10 days of receipt of the notice to review the information, conditions of release of the defendant, and anticipated release date from inpatient treatment.  The court must issue appropriate orders if it finds the defendant's condition has so changed that the defendant is suitable for outpatient competency restoration.

If the DSHS is unable to schedule or admit a defendant who is on personal recognizance after two attempts, the DSHS must submit a report to the court and parties and include a date and time for another evaluation at least two weeks later.  The court must provide the defendant with notice of the date and time of the admission, and if the defendant fails to appear, the court must recall the order for competency evaluation or restoration and may issue a warrant for failure to appear.

For a defendant ordered to inpatient competency restoration, the DSHS must notify the court and parties when it appears that the defendant's condition and amenability to treatment is such that an involuntary medication order is necessary.  The notice must include pertinent information regarding the applicable criteria under Sell v. United States.  The court must schedule a hearing within 10 days to consider an order for involuntary medication. 

In hearings pertaining to involuntary medication, the parties, witnesses, and presiding judicial officer must be present and participate by video, provided that:  all parties are able to see, hear, and speak during the hearing; attorneys are allowed to use exhibits or other materials during the hearing; and respondent's counsel is allowed to be in the same location as the respondent unless otherwise requested by the respondent or respondent's counsel.  Witnesses may appear telephonically or through other means according to court rules.  The court may require some or all parties and witnesses to participate in person upon its own motion or motion for good cause by any party.  In ruling on the motion, the court may consider whether the respondent's behavioral health disorder affects the respondent's ability to perceive or participate in the proceeding by video.

Competency Order Growth Cap Program.

The DSHS must implement a growth cap program to manage inpatient competency orders.  The DSHS must establish a baseline cap and incentive cap of referrals for each county.  The baseline cap is based on the average number of inpatient competency orders from courts within the county's jurisdiction in fiscal years 2024 and 2025, and the incentive cap is based on the average of such orders in fiscal years 2018 and 2019.  For a county with an average of less than two inpatient competency orders, the baseline and incentive caps are set at one. 

The DSHS must notify relevant county agencies and courts on a quarterly basis of the total number of inpatient competency orders for the current fiscal year compared to the baseline for that county. 

Beginning in fiscal year 2027, a county must pay a penalty for inpatient competency orders that exceed the baseline number.  The penalty is calculated based on the per day individual rate for state hospital treatment for individuals referred for inpatient competency services and applies as follows:

• In fiscal year 2027, each county must make penalty payments equal to 25 percent of the rate for the third and fourth inpatient competency orders over the baseline; 50 percent of the rate for the fifth through seventh inpatient competency orders over the baseline; 75 percent of the rate for the eighth and ninth inpatient orders over the baseline; and 100 percent of the rate for the tenth and all inpatient competency orders over the baseline.
• Beginning in fiscal year 2028 and each fiscal year thereafter, each county must make penalty payments equal to 150 percent of the rate for the third and subsequent inpatient competency orders over the baseline. 

Penalty payments must be deposited into a newly created Behavioral Health Diversion Fund (Diversion Fund), which is subject to appropriation and to be used only for services designed to keep persons with behavioral health needs out of the criminal justice system.  A county that reduces total annual inpatient competency referrals below the incentive cap or reduces its overall orders for any competency services by at least 40 percent for a given fiscal year may request an appropriation from the Diversion Fund.  Any amounts the county receives must be used toward services or supports that prevent individuals with behavioral health needs from entering the criminal justice system or that divert them from the criminal justice system once incarcerated. 

The DSHS and the Health Care Authority must convene a taskforce to develop rules, policies, and protocols for implementation of the growth cap program for inpatient competency services, including rules for determining county of origin.  The taskforce must also address eligibility requirements on the necessary elements of behavioral health diversion plans.  The taskforce must include partners from local government, the criminal justice system, behavioral health providers, tribes, people with lived experience, and Disability Rights Washington or a designee.  The taskforce must report to the Governor and Legislature by June 1, 2026.

"Behavioral health diversion plan" is defined to mean a plan or strategy to ensure the availability and utilization of community-based treatment and support services designed to reduce or eliminate the amount of time persons with behavioral health needs spend in a jail facility.  The plan must include:

• specific measures to reduce the number of individuals with behavioral health needs whose highest charge is up to a class C felony from entering or remaining in the criminal justice system, or to divert them away from the competency system;
• specific measures to identify individuals who have had multiple prior findings of nonrestorability, and strategies to prevent future competency orders and use diversion options for these individuals;
• strategies to reduce recidivism for individuals with behavioral health needs who are likely to be referred for a competency service within the next six months; 
• a strategic plan to create programming, services, and supports along each intercept in the sequential intercept model for the county; and
• a communication and collaboration plan that incorporates key stakeholders in the development of diversion plans. 

(In support) The Trueblood case has been going on for 11 years now.  Tremendous progress has been made in coming into compliance with the court order as a result of significant investments in both bed capacity and community-based services.  However, the volume of competency referrals continues to grow exponentially.  In the last 10 years there has been an 89 percent increase in felony referrals and a 165 percent increase in misdemeanor referrals, and the latest projections are for an annual growth rate of 8 to 9 percent.  As a result, the state is likely to soon run out of beds and once again be out of compliance with the court order.  Dismissal rates are also high across the state, with 45 percent of misdemeanor cases being dismissed, resulting in no accountability and no treatment.

The state must meet constitutional obligations under Trueblood, but the current system does not have checks on when and how individuals are referred for competency services.  If the goal is to increase resources for community-based services, the state must address the rate of referrals and reduce the pressure to continually build very expensive forensic beds, which cost around $1.5 million per bed.  It is not possible to build out of this problem because a bed built is a bed filled.  It is time for everyone to recognize the role they play and the stake they have in the system, and come together to solve this issue. 

The system is not demonstrating meaningful accountability, rehabilitation, or treatment to help folks move forward in their lives.  Data shows that people are repeatedly cycling through the system.  The assumption that people can access treatment through arrest, prosecution, and competency restoration is factually inaccurate.  Restoration is not treatment and is not working to stabilize people and interrupt recidivism.  What works are programs with housing supports and low barrier services.  There are community-based services in many places, and diversion providers that want to serve this population.  The bill focuses on investing in these community services instead of taking the path of least resistance.

This legislation is about presenting a better solution.  Past efforts to incentivize diversion and create presumptions against inpatient restoration have not been enough.  The bill proposes a good model that asks cities and counties to think carefully about who they are sending to the competency system, but there are other ways to address the issue.  The method is less important than the outcome that everyone wants, which is greater investment in diversion, prevention, and community behavioral health, so that people can receive the care that they need where it is most appropriate outside of the criminal justice system.  

(Opposed) Not all communities have providers who will take cases with a mix of behavioral health issues and criminal behavior.  Many victims are family members who are frustrated with not being able to get help in the community, and the only available option is competency restoration.  There is significant opposition to the cap and penalty provision as well as other concerns.  The bill requires a court to order someone to outpatient treatment if available, and that is not appropriate in some cases.  It is also not appropriate to require a court to withdraw a competency order just because someone failed to appear for admission.

The state continues to prioritize bringing online the far more expensive state hospital beds at the expense of investments in the community behavioral health system, which should be the focus in order to stem this tide.  The bill shifts part of the state's responsibility to counties without providing funding.  It does not define "county," leaving ambiguity about whether it is a geographic area or county government.  County governments lack authority over municipal misdemeanor cases, but will be penalized if a city refers too many defendants.  To ensure appropriate referrals, data should be collected on case types and volumes by jurisdiction, not just geography, to help identify the right solutions.

The bill is not the best way to go about solving the challenges in the competency system.  Cities and counties cannot control the number of people coming into the criminal justice system that have mental health challenges. The bill will pit jurisdictions within a county against each other in a race to fill limited competency spots, and it will lead to more cases being dismissed which will not benefit anybody.  More investment in the behavioral health care system is needed so that folks can access services before they reach the point of engaging in criminal behavior.

(Other) Individuals with mental illness are 10 times more likely to be incarcerated than hospitalized.  It makes no sense to penalize counties because individuals need hospital level care.  Requiring a pre-Sell hearing is not workable and will lead to equal protection violations.  Forensic navigators should be available in all cases.  Outpatient competency restoration is significantly helpful and should be available in every community, and providing for more diversion of individuals is a good idea.  The Legislature needs to create a work group to comprehensively evaluate the competency laws and do something proactive, not continually make piecemeal changes.

It seems like the forest has been lost through the trees with this bill.  Reducing wait times by kicking people out of the line is not solving the problem.  People get into the competency system because they need help and some kind of harm has happened in the community.  The central driver behind the bill should be how to provide help to people who need it and how to prevent harm to the community.

The five-day deadline for a hearing on transfer of a patient to outpatient restoration is too short and should be extended to at least 10 days.  There should be more clarity on who participates in the hearing and how it should take place.  A court authorizing involuntary medication should apply the order to any location the person will be, not just the state hospitals, so that the person does not decompensate upon return to jail.

(In support) Representative Darya Farivar, prime sponsor; Amber Leaders, Office of Governor Jay Inslee; Kimberly Mosolf, Counsel for Plaintiffs in AB v DSHS (Trueblood); Chloe Merino, Disability Rights WA; Plaintiff Counsel A.B. v. DSHS (Trueblood); Kevin Bovenkamp, DSHS Behavioral Health Administration; and Thomas Kinlen, DSHS Behavioral Health Administration.

Asenith M Herbert Hill; and Loni Simone.

The second substitute bill establishes new requirements for competency restoration treatment for misdemeanors and certain class C felonies, including:

• For certain class C felonies, if the parties do not agree that there is an appropriate diversion program for the defendant, the court is required to dismiss the proceedings and refer the defendant for an evaluation for involuntary civil commitment unless the prosecutor objects and files a motion for an order for competency restoration treatment.  The court is allowed to order competency restoration treatment only if the prosecutor establishes that there is a compelling state interest.
• A prosecutor who files a motion for an order of competency restoration for any misdemeanor or certain class C felonies is required to make a full examination of, and file a statement regarding, all facts and circumstances relating to whether there is a compelling state interest in pursuing competency restoration.  A statement is required to include information related to the state's interest in continuing the prosecution, including whether doing so serves the interests of justice.
• A rebuttable presumption is created that there is no compelling state interest in ordering a competency restoration for a defendant if the court finds, based on history, that competency restoration is unlikely to be successful.

The second substitute bill makes the following additional changes:

• Where charges are dismissed for defendants who remain incompetent following a third period of competency restoration treatment, the bill allows the defendant to be committed for a civil commitment evaluation to a facility operated or contracted by the Health Care Authority (HCA), in addition to a facility operated or contracted by the DSHS.
• The second substitute bill applies the growth cap program for inpatient competency referrals to cities in addition to counties.  It also requires the DSHS to establish a baseline cap and incentive cap for each city that refers individuals for competency services and imposes penalties against a referring city that exceeds its baseline cap in the same manner as applies for counties.
• The second substitute bill removes the requirement for the DSHS and the HCA to establish a task force to develop policies and requirements for the growth cap program and address necessary elements of behavioral health diversion plans.  Instead, it requires the DSHS to adopt rules establishing policies and requirements for implementation of the growth cap program.
• The second substitute bill provides that county behavioral health diversion plan stakeholder groups must include participants representing prosecuting attorneys, defense attorneys, and judicial officers in superior court, district court, and municipal court.
• The second substitute bill contains a null and void clause, making the bill null and void unless funded in the budget.

(In support) The state is in compliance with the Trueblood lawsuit for the first time.  Orders for inpatient competency restorations are growing annually.  To stay in compliance, the state must address the increase in these orders.  Some counties already have Trueblood diversion programs.  There is a narrow window to act now before the state is out of compliance.

(Opposed) This bill is trying to solve a big problem, but it is not the right approach.  Capping the number of individuals that can be referred for competency and creating a fine does not address the actual problem, and assumes cities have a level of control over who comes into the criminal justice system.  The growth cap program relies on diversion programs that do not exist.  Communities across the state would need substantial resources to create them, and most communities cannot afford to provide these services.  This makes it more difficult for individuals with felony charges to receive competency restoration.  There is concern that prosecutors would need to have access to medical histories, which might not be available to prosecutors.  This problem is not the responsibility of any single entity and is complicated and expensive.

(Other) There has been a large rate of growth of people coming into the competency restoration system.  The state has built up a lot of bed capacity.  This bill provides meaningful checks on the system.  It does not prohibit people from coming into the state hospital system.

(In support) Chloe Merino, Disability Rights WA; and Plaintiff Counsel A.B. v. DSHS (Trueblood).