LB668 LB668
2023 2023
LEGISLATURE OF NEBRASKA
ONE HUNDRED EIGHTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 668
Introduced by Aguilar, 35.
Read first time January 18, 2023
Committee: Judiciary
1 A BILL FOR AN ACT relating to mental health; to amend sections 71-901,
2 71-919, 71-921, 71-922, 71-949, 71-1205, and 71-1206, Reissue
3 Revised Statutes of Nebraska; to authorize mental health
4 professionals and licensed independent mental health practitioners
5 to take persons into emergency protective custody as prescribed; to
6 provide a certification process and duties for the Department of
7 Health and Human Services; to change provisions relating to
8 commencement of mental health board proceedings; to define a term;
9 to harmonize provisions; and to repeal the original sections.
10 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 71-901, Reissue Revised Statutes of Nebraska, is
2 amended to read:
3 71-901 Sections 71-901 to 71-963 and section 2 of this act shall be
4 known and may be cited as the Nebraska Mental Health Commitment Act.
5 Sec. 2. (1) The Department of Health and Human Services shall
6 create a certification process for licensed independent mental health
7 practitioners to exercise the authority granted in subdivision (1)(b) of
8 section 71-919 relating to emergency protective custody. To obtain
9 certification, a practitioner shall submit an application to the
10 department in a form and manner prescribed by the department. The
11 department shall create eligibility and training requirements for such
12 certification. At a minimum, certification shall require that the
13 practitioner be trained in the following areas:
14 (a) A review of relevant statutes and other law;
15 (b) What constitutes probable cause under section 71-919;
16 (c) What happens to a subject who is taken into custody, committed,
17 or otherwise subject to the authority of the mental health board under
18 the Nebraska Mental Health Commitment Act;
19 (d) Ethical considerations;
20 (e) How to evaluate and assess dangerousness and risk level; and
21 (f) Consideration of how to safely hold and transport a subject
22 taken into emergency protective custody.
23 (2) The department may charge an application fee to cover the cost
24 of certification under this section.
25 (3) The department may adopt and promulgate rules and regulations to
26 carry out this section.
27 Sec. 3. Section 71-919, Reissue Revised Statutes of Nebraska, is
28 amended to read:
29 71-919 (1)(a) (1) A law enforcement officer or mental health
30 professional who has probable cause to believe that a person is mentally
31 ill and dangerous or a dangerous sex offender and that the harm described
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1 in section 71-908 or subdivision (1) of section 83-174.01 is likely to
2 occur before mental health board proceedings under the Nebraska Mental
3 Health Commitment Act or the Sex Offender Commitment Act may be initiated
4 to obtain custody of the person may take such person into emergency
5 protective custody, cause him or her to be taken into emergency
6 protective custody, or continue his or her custody if he or she is
7 already in custody.
8 (b)(i) For purposes of this subdivision (1)(b), licensed independent
9 mental health practitioner means an individual who:
10 (A) Is a licensed independent mental health practitioner under the
11 Mental Health Practice Act; and
12 (B) Is certified as provided in section 2 of this act.
13 (ii) A licensed independent mental health practitioner who has
14 probable cause to believe that a person is mentally ill and dangerous and
15 that the harm described in section 71-908 is likely to occur before
16 mental health board proceedings under the Nebraska Mental Health
17 Commitment Act may be initiated to obtain custody of the person may take
18 such person into emergency protective custody, cause him or her to be
19 taken into emergency protective custody, or continue his or her custody
20 if he or she is already in custody.
21 (c) A Such person in custody as described in this subsection shall
22 be admitted to an appropriate and available medical facility, jail, or
23 Department of Correctional Services facility as provided in subsection
24 (2) of this section. Each county shall make arrangements with appropriate
25 facilities inside or outside the county for such purpose and shall pay
26 the cost of the emergency protective custody of persons from such county
27 in such facilities. A mental health professional who has probable cause
28 to believe that a person is mentally ill and dangerous or a dangerous sex
29 offender may cause such person to be taken into custody and shall have a
30 limited privilege to hold such person until a law enforcement officer or
31 other authorized person arrives to take custody of such person.
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1 (2)(a) A person taken into emergency protective custody under this
2 section shall be admitted to an appropriate and available medical
3 facility unless such person has a prior conviction for a sex offense
4 listed in section 29-4003.
5 (b) A person taken into emergency protective custody under this
6 section who has a prior conviction for a sex offense listed in section
7 29-4003 shall be admitted to a jail or Department of Correctional
8 Services facility unless a medical or psychiatric emergency exists for
9 which treatment at a medical facility is required. The person in
10 emergency protective custody shall remain at the medical facility until
11 the medical or psychiatric emergency has passed and it is safe to
12 transport such person, at which time the person shall be transferred to
13 an available jail or Department of Correctional Services facility.
14 (3) Upon admission to a facility of a person taken into emergency
15 protective custody by a law enforcement officer, mental health
16 professional, or licensed independent mental health practitioner under
17 this section, such officer, professional, or practitioner shall execute a
18 written certificate prescribed and provided by the Department of Health
19 and Human Services. The certificate shall allege the officer's,
20 professional's, or practitioner's belief that the person in custody is
21 mentally ill and dangerous or a dangerous sex offender and shall contain
22 a summary of the person's behavior supporting such allegations. A copy of
23 such certificate shall be immediately forwarded to the county attorney.
24 (4) The administrator of the facility shall have such person
25 evaluated by a mental health professional as soon as reasonably possible
26 but not later than thirty-six hours after admission. The mental health
27 professional shall not be the mental health professional who takes or
28 causes such person to be taken into custody under this section and shall
29 not be a member or alternate member of the mental health board that will
30 preside over any hearing under the Nebraska Mental Health Commitment Act
31 or the Sex Offender Commitment Act with respect to such person. A person
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1 shall be released from emergency protective custody after completion of
2 such evaluation unless the mental health professional determines, in his
3 or her clinical opinion, that such person is mentally ill and dangerous
4 or a dangerous sex offender.
5 Sec. 4. Section 71-921, Reissue Revised Statutes of Nebraska, is
6 amended to read:
7 71-921 (1) Any person who believes that another person is mentally
8 ill and dangerous may communicate such belief to the county attorney. The
9 filing of a certificate by a law enforcement officer, mental health
10 professional, or licensed independent mental health practitioner under
11 section 71-919 shall be sufficient to communicate such belief. If the
12 county attorney concurs that such person is mentally ill and dangerous
13 and that neither voluntary hospitalization nor other treatment
14 alternatives less restrictive of the subject's liberty than inpatient or
15 outpatient treatment ordered by a mental health board is available or
16 would suffice to prevent the harm described in section 71-908, he or she
17 shall file a petition as provided in this section.
18 (2) The petition shall be filed with the clerk of the district court
19 in any county within:
20 (a) The judicial district in which the subject is located;
21 (b) The the judicial district in which the alleged behavior of the
22 subject occurred which constitutes the basis for the petition; or
23 (c) Another another judicial district in the State of Nebraska if
24 authorized, upon good cause shown, by a district judge of the judicial
25 district in which the subject is located. In such event, all proceedings
26 before the mental health board shall be conducted by the mental health
27 board serving such other county, and all costs relating to such
28 proceedings shall be paid by the county of residence of the subject. In
29 the order transferring such cause to another county, the judge shall
30 include such directions as are reasonably necessary to protect the rights
31 of the subject.
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1 (3) The petition shall be in writing and shall include the following
2 information:
3 (a) The subject's name and address, if known;
4 (b) The name and address of the subject's spouse, legal counsel,
5 guardian or conservator, and next-of-kin, if known;
6 (c) The name and address of anyone providing psychiatric or other
7 care or treatment to the subject, if known;
8 (d) A statement that the county attorney has probable cause to
9 believe that the subject of the petition is mentally ill and dangerous;
10 (e) A statement that the beliefs of the county attorney are based on
11 specific behavior, acts, attempts, or threats which shall be specified
12 and described in detail in the petition; and
13 (f) The name and address of any other person who may have knowledge
14 of the subject's mental illness or substance dependence and who may be
15 called as a witness at a mental health board hearing with respect to the
16 subject, if known.
17 Sec. 5. Section 71-922, Reissue Revised Statutes of Nebraska, is
18 amended to read:
19 71-922 (1) Mental health board proceedings shall be deemed to have
20 commenced upon the earlier of:
21 (a) The (a) the filing of a petition under section 71-921; or
22 (b) Notification (b) notification by the county attorney of the
23 county attorney's intention to file such petition to:
24 (i) The the law enforcement officer, mental health professional, or
25 licensed independent mental health practitioner who took the subject into
26 emergency protective custody under section 71-919; 71-920 or
27 (ii) The the administrator of the treatment center or medical
28 facility having charge of the subject; or of his or her intention to file
29 such petition.
30 (iii) The administrator of a jail or Department of Correctional
31 Services facility if the person is being held at a jail or correctional
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1 facility pursuant to subdivision (2)(b) of section 71-919.
2 (2) The county attorney shall file such petition as soon as
3 reasonably practicable after a such notification under subdivision (1)(b)
4 of this section.
5 (3) (2) A petition filed by the county attorney under section 71-921
6 may contain a request for the emergency protective custody and evaluation
7 of the subject prior to commencement of a mental health board hearing
8 pursuant to such petition with respect to the subject. Upon receipt of
9 such request and upon a finding of probable cause to believe that the
10 subject is mentally ill and dangerous as alleged in the petition, the
11 court or chairperson of the mental health board may issue a warrant
12 directing the sheriff to take custody of the subject. If the subject is
13 already in emergency protective custody under a certificate filed under
14 section 71-919, a copy of such certificate shall be filed with the
15 petition. The subject in such custody shall be held in the nearest
16 appropriate and available medical facility and shall not be placed in a
17 jail. Each county shall make arrangements with appropriate medical
18 facilities inside or outside the county for such purpose and shall pay
19 the cost of the emergency protective custody of persons from such county
20 in such facilities.
21 (4) (3) The petition and all subsequent pleadings and filings in the
22 case shall be entitled In the Interest of ........, Alleged to be
23 Mentally Ill and Dangerous. The county attorney may dismiss the petition
24 at any time prior to the commencement of the hearing of the mental health
25 board under section 71-924, and upon such motion by the county attorney,
26 the mental health board shall dismiss the petition.
27 Sec. 6. Section 71-949, Reissue Revised Statutes of Nebraska, is
28 amended to read:
29 71-949 Counsel for a subject, upon request made to the county
30 attorney at any time after the subject has been taken into emergency
31 protective custody under the Nebraska Mental Health Commitment Act or the
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1 Sex Offender Commitment Act, or after the filing of a petition under
2 section 71-921 or 71-1205, whichever occurs first, shall have the right
3 to be provided with (1) the names of all witnesses expected to testify in
4 support of the petition, (2) knowledge of the location and access at
5 reasonable times for review or copying of all written documents including
6 reports of peace officers, law enforcement agencies, and mental health
7 professionals, and licensed independent mental health practitioners, (3)
8 access to all other tangible objects in the possession of the county
9 attorney or to which the county attorney has access, and (4) written
10 records of any treatment facility or mental health professional which or
11 who has at any time treated the subject for mental illness, substance
12 dependence, or a personality disorder, which records are relevant to the
13 issues of whether the subject is mentally ill and dangerous or a
14 dangerous sex offender and, if so, what treatment disposition should be
15 ordered by the mental health board. The board may order further discovery
16 at its discretion. The county attorney shall have a reciprocal right to
17 discover items and information comparable to those first discovered by
18 the subject. The county court and district court shall have the power to
19 rule on objections to discovery in matters which are not self-activating.
20 The right of appeal from denial of discovery shall be at the time of the
21 conclusion of the mental health board hearing.
22 Sec. 7. Section 71-1205, Reissue Revised Statutes of Nebraska, is
23 amended to read:
24 71-1205 (1) Any person who believes that another person is a
25 dangerous sex offender may communicate s