ENGROSSED SENATE BILL 5130
State of Washington 68th Legislature 2023 Regular Session
By Senators Frame, Dhingra, Nobles, Pedersen, Randall, and C. Wilson
Prefiled 01/03/23. Read first time 01/09/23. Referred to Committee
on Law & Justice.
1 AN ACT Relating to assisted outpatient treatment; amending RCW
2 71.05.148, 71.05.365, 71.05.590, 71.05.590, 71.34.020, 71.34.020,
3 71.34.740, 71.34.740, 71.34.780, 71.34.780, and 71.34.815; amending
4 2021 c 264 s 29 (uncodified); providing an effective date; providing
5 a contingent effective date; and providing an expiration date.
6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
7 Sec. 1. RCW 71.05.148 and 2022 c 210 s 3 are each amended to
8 read as follows:
9 (1) A person is in need of assisted outpatient treatment if the
10 court finds by ((clear, cogent, and convincing)) a preponderance of
11 the evidence pursuant to a petition filed under this section that:
12 (a) The person has a behavioral health disorder;
13 (b) Based on a clinical determination and in view of the person's
14 treatment history and current behavior, at least one of the following
15 is true:
16 (i) The person is unlikely to survive safely in the community
17 without supervision and the person's condition is substantially
18 deteriorating; or
19 (ii) The person is in need of assisted outpatient treatment in
20 order to prevent a relapse or deterioration that would be likely to
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 1 result in grave disability or a likelihood of serious harm to the
2 person or to others;
3 (c) The person has a history of lack of compliance with treatment
4 for his or her behavioral health disorder that has:
5 (i) At least twice within the 36 months prior to the filing of
6 the petition been a significant factor in necessitating
7 hospitalization of the person, or the person's receipt of services in
8 a forensic or other mental health unit of a state correctional
9 facility or local correctional facility, provided that the 36-month
10 period shall be extended by the length of any hospitalization or
11 incarceration of the person that occurred within the 36-month period;
12 (ii) At least twice within the 36 months prior to the filing of
13 the petition been a significant factor in necessitating emergency
14 medical care or hospitalization for behavioral health-related medical
15 conditions including overdose, infected abscesses, sepsis,
16 endocarditis, or other maladies, or a significant factor in behavior
17 which resulted in the person's incarceration in a state or local
18 correctional facility; or
19 (iii) Resulted in one or more violent acts, threats, or attempts
20 to cause serious physical harm to the person or another within the 48
21 months prior to the filing of the petition, provided that the 48-
22 month period shall be extended by the length of any hospitalization
23 or incarceration of the person that occurred during the 48-month
24 period;
25 (d) Participation in an assisted outpatient treatment program
26 would be the least restrictive alternative necessary to ensure the
27 person's recovery and stability; and
28 (e) The person will benefit from assisted outpatient treatment.
29 (2) The following individuals may directly file a petition for
30 less restrictive alternative treatment on the basis that a person is
31 in need of assisted outpatient treatment:
32 (a) The director of a hospital where the person is hospitalized
33 or the director's designee;
34 (b) The director of a behavioral health service provider
35 providing behavioral health care or residential services to the
36 person or the director's designee;
37 (c) The person's treating mental health professional or substance
38 use disorder professional or one who has evaluated the person;
39 (d) A designated crisis responder;
40 (e) A release planner from a corrections facility; or
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 1 (f) An emergency room physician.
2 (3) A court order for less restrictive alternative treatment on
3 the basis that the person is in need of assisted outpatient treatment
4 may be effective for up to 18 months, unless the person is currently
5 detained for inpatient treatment for 14 days or more under RCW
6 71.05.240 or 71.05.320, in which case the order may be effective for
7 90 days if the person is currently detained for 14 days of treatment,
8 or 180 days if the person is currently detained for 90 or 180 days of
9 treatment. The petitioner must personally interview the person,
10 unless the person refuses an interview, to determine whether the
11 person will voluntarily receive appropriate treatment.
12 (4) The petitioner must allege specific facts based on personal
13 observation, evaluation, or investigation, and must consider the
14 reliability or credibility of any person providing information
15 material to the petition.
16 (5) The petition must include:
17 (a) A statement of the circumstances under which the person's
18 condition was made known and the basis for the opinion, from personal
19 observation or investigation, that the person is in need of assisted
20 outpatient treatment. The petitioner must state which specific facts
21 come from personal observation and specify what other sources of
22 information the petitioner has relied upon to form this belief;
23 (b) A declaration from a physician, physician assistant, advanced
24 registered nurse practitioner, ((or)) the person's treating mental
25 health professional or substance use disorder professional, or in the
26 case of a person enrolled in treatment in a behavioral health agency,
27 the person's behavioral health case manager, who has examined the
28 person no more than 10 days prior to the submission of the petition
29 and who is willing to testify in support of the petition, or who
30 alternatively has made appropriate attempts to examine the person
31 within the same period but has not been successful in obtaining the
32 person's cooperation, and who is willing to testify to the reasons
33 they believe that the person meets the criteria for assisted
34 outpatient treatment((. If the declaration is provided by the
35 person's treating mental health professional or substance use
36 disorder professional, it must be cosigned by a supervising
37 physician, physician assistant, or advanced registered nurse
38 practitioner who certifies that they have reviewed the declaration));
39 (c) The declarations of additional witnesses, if any, supporting
40 the petition for assisted outpatient treatment;
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 1 (d) The name of an agency, provider, or facility that agrees to
2 provide less restrictive alternative treatment if the petition is
3 granted by the court; and
4 (e) If the person is detained in a state hospital, inpatient
5 treatment facility, jail, or correctional facility at the time the
6 petition is filed, the anticipated release date of the person and any
7 other details needed to facilitate successful reentry and transition
8 into the community.
9 (6)(a) Upon receipt of a petition meeting all requirements of
10 this section, the court shall fix a date for a hearing:
11 (i) No sooner than three days or later than seven days after the
12 date of service or as stipulated by the parties or, upon a showing of
13 good cause, no later than 30 days after the date of service; or
14 (ii) If the respondent is hospitalized at the time of filing of
15 the petition, before discharge of the respondent and in sufficient
16 time to arrange for a continuous transition from inpatient treatment
17 to assisted outpatient treatment.
18 (b) A copy of the petition and notice of hearing shall be served,
19 in the same manner as a summons, on the petitioner, the respondent,
20 the qualified professional whose affidavit accompanied the petition,
21 a current provider, if any, and a surrogate decision maker or agent
22 under chapter 71.32 RCW, if any.
23 (c) If the respondent has a surrogate decision maker or agent
24 under chapter 71.32 RCW who wishes to provide testimony at the
25 hearing, the court shall afford the surrogate decision maker or agent
26 an opportunity to testify.
27 (d) The respondent shall be represented by counsel at all stages
28 of the proceedings.
29 (e) If the respondent fails to appear at the hearing after
30 notice, the court may conduct the hearing in the respondent's
31 absence; provided that the respondent's counsel is present.
32 (f) If the respondent has refused to be examined by the qualified
33 professional whose affidavit accompanied the petition, the court may
34 order a mental examination of the respondent. The examination of the
35 respondent may be performed by the qualified professional whose
36 affidavit accompanied the petition. If the examination is performed
37 by another qualified professional, the examining qualified
38 professional shall be authorized to consult with the qualified
39 professional whose affidavit accompanied the petition.
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 1 (g) If the respondent has refused to be examined by a qualified
2 professional and the court finds reasonable grounds to believe that
3 the allegations of the petition are true, the court may issue a
4 written order directing a peace officer who has completed crisis
5 intervention training to detain and transport the respondent to a
6 provider for examination by a qualified professional. A respondent
7 detained pursuant to this subsection shall be detained no longer than
8 necessary to complete the examination and in no event longer than 24
9 hours.
10 (7) If the petition involves a person whom the petitioner or
11 behavioral health administrative services organization knows, or has
12 reason to know, is an American Indian or Alaska Native who receives
13 medical or behavioral health services from a tribe within this state,
14 the behavioral health administrative services organization shall
15 notify the tribe and Indian health care provider. Notification shall
16 be made in person or by telephonic or electronic communication to the
17 tribal contact listed in the authority's tribal crisis coordination
18 plan as soon as possible.
19 (8) A petition for assisted outpatient treatment filed under this
20 section shall be adjudicated under RCW 71.05.240.
21 (9) ((After January 1, 2023, a)) A petition for assisted
22 outpatient treatment must be filed on forms developed by the
23 administrative office of the courts.
24 Sec. 2. RCW 71.05.365 and 2022 c 210 s 19 are each amended to
25 read as follows:
26 When a person has been involuntarily committed for treatment to a
27 hospital for a period of 90 or 180 days, and the superintendent or
28 professional person in charge of the hospital determines that the
29 person no longer requires active psychiatric treatment at an
30 inpatient level of care, the behavioral health administrative
31 services organization, managed care organization, or agency providing
32 oversight of long-term care or developmental disability services that
33 is responsible for resource management services for the person must
34 work with the hospital to develop an individualized discharge plan((,
35 including whether a petition should be filed for less restrictive
36 alternative treatment on the basis that the person is in need of
37 assisted outpatient treatment,)) and arrange for a transition to the
38 community in accordance with the person's individualized discharge
39 plan within 14 days of the determination.
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 1 Sec. 3. RCW 71.05.590 and 2022 c 210 s 23 are each amended to
2 read as follows:
3 (1) ((Either an)) An agency or facility designated to monitor or
4 provide less restrictive alternative treatment services under a
5 ((less restrictive alternative)) court order or conditional release,
6 or a designated crisis responder, may take action to enforce, modify,
7 or revoke ((a)) the less restrictive alternative treatment order or
8 conditional release ((order. The)) if the agency, facility, or
9 designated crisis responder ((must determine)) determines that:
10 (a) The person is failing to adhere to the terms and conditions
11 of the order;
12 (b) Substantial deterioration in the person's functioning has
13 occurred;
14 (c) There is evidence of substantial decompensation with a
15 reasonable probability that the decompensation can be reversed by
16 further evaluation, intervention, or treatment; or
17 (d) The person poses a likelihood of serious harm.
18 (2) Actions taken under this section must include a flexible
19 range of responses of varying levels of intensity appropriate to the
20 circumstances and consistent with the interests of the individual and
21 the public in personal autonomy, safety, recovery, and compliance.
22 Available actions may include, but are not limited to, any of the
23 following:
24 (a) To counsel or advise the person as to their rights and
25 responsibilities under the court order, and to offer incentives to
26 motivate compliance;
27 (b) To increase the intensity of outpatient services provided to
28 the person by increasing the frequency of contacts with the provider,
29 referring the person for an assessment for assertive community
30 services, or by other means;
31 (c) To request a court hearing for review and modification of the
32 court order. The request must be directed to the court with
33 jurisdiction over the order and specify the circumstances that give
34 rise to the request and what modification is being sought. The county
35 prosecutor shall assist the entity requesting the hearing and issue
36 an appropriate summons to the person. This subsection does not limit
37 the inherent authority of a treatment provider to alter conditions of
38 treatment for clinical reasons, and is intended to be used only when
39 court intervention is necessary or advisable to secure the person's
40 compliance and prevent decompensation or deterioration;
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 1 (d) To detain the person for up to 12 hours for evaluation at an
2 agency, facility providing services under the court order, triage
3 facility, crisis stabilization unit, emergency department, evaluation
4 and treatment facility, secure withdrawal management and
5 stabilization facility with available space, or an approved substance
6 use disorder treatment program with available space. The purpose of
7 the evaluation is to determine whether modification, revocation, or
8 commitment proceedings are necessary and appropriate to stabilize the
9 person and prevent decompensation, deterioration, or physical harm.
10 Temporary detention for evaluation under this subsection is intended
11 to occur only following a pattern of noncompliance or the failure of
12 reasonable attempts at outreach and engagement, and may occur only
13 when, based on clinical judgment, temporary detention is appropriate.
14 The agency, facility, or designated crisis responder may request
15 assistance from a peace officer for the purposes of temporary
16 detention under this subsection (2)(d). This subsection does not
17 limit the ability or obligation of the agency, facility, or
18 designated crisis responder to pursue revocation procedures under
19 subsection (5) of this section in appropriate circumstances; and
20 (e) To initiate revocation procedures under subsection (5) of
21 this section.
22 (3) A court may supervise a person on an order for less
23 restrictive alternative treatment or a conditional release. While the
24 person is under the order, the court may:
25 (a) Require appearance in court for periodic reviews; and
26 (b) Modify the order after considering input from the agency or
27 facility designated to provide or facilitate services. The court may
28 not remand the person into inpatient treatment except as provided
29 under subsection (5) of this section, but may take actions under
30 subsection (2)(a) through (d) of this section.
31 (4) The facility or agency designated to provide outpatient
32 treatment shall notify the secretary of the department of social and
33 health services or designated crisis responder when a person fails to
34 adhere to terms and conditions of court ordered treatment or
35 experiences substantial deterioration in his or her condition and, as
36 a result, presents an increased likelihood of serious harm.
37 (5)(a) A designated crisis responder or the secretary of the
38 department of social and health services may, upon their own motion
39 or upon request of the facility or agency designated to provide
40 outpatient care, cause a person to be detained in an evaluation and
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 1 treatment facility, available secure withdrawal management and
2 stabilization facility with adequate space, or available approved
3 substance use disorder treatment program with adequate space in or
4 near the county in which he or she is receiving outpatient treatment
5 for the purpose of a hearing for revocation of a less restrictive
6 alternative treatment order or conditional release order under this
7 chapter. The designated crisis responder or secretary