Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
        Committee Substitute for House Bill 5254
         By Delegates Summers and Tully [Originating in the Committee on the Judiciary;
          Reported on February 20, 2024]
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  A BILL to amend and reenact §27-5-1 of the Code of West Virginia, 1931, as amended; to amend
         and reenact §27-5-1b and §27-5-2 of said code; to amend said code by adding thereto a
         new section, designated §27-5-2b; to amend and reenact §27-5-4 of said code; to amend
         said code by adding a new article, designated §27-5A-1, §27-5A-2; and §27-5A-3; all
         relating generally to the creation of mental hygiene regions by the Supreme Court of
         Appeals; clarifying that mental hygiene evaluations and proceedings may be conducted by
         video technology; removing licensed professional counselors and licensed independent
         social workers as approved examiners for mental hygiene evaluations; creating a
         temporary observation release for mental hygiene respondents; clarifying that chief
        medical officer releases requiring approval of circuit court only apply to forensic patients;
        requiring hearings for any commitment period of longer than 90 days and prohibiting any
        person from being civilly committed to longer than 120 days without a hearing to determine
        whether the individual continues to meet commitment criteria; removing obsolete language
        regarding transcripts of proceedings to circuit court of county of residence; restructuring
        the mental hygiene commissioner system by authorizing new mental hygiene regions and
        full-time mental hygiene commissioners employed by the Supreme Court of Appeals;
        authorizing mental hygiene proceedings and evaluations by video and requiring facilities to
        provide technology that meets Supreme Court of Appeals specifications; authorizing
        statewide coverage for mental hygiene evaluations and permitting a mental hygiene
        commissioner to exclude evaluator testimony based on the West Virginia Rules of
        Evidence; and requiring each Certified Community Mental Health Center to ensure that at
        least one examiner is available to provide uniform and continuous coverage in each
        region, including afterhours, weekends, and holidays.
     Be it enacted by the Legislature of West Virginia:
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     ARTICLE                  5.               INVOLUNTARY                      HOSPITALIZATION.
     §27-5-1. Appointment of mental hygiene commissioner; duties of mental hygiene commissioner; duties of prosecuting attorney; duties of sheriff; duties of Supreme Court of Appeals; use of certified municipal law-enforcement officers.
         (a) Appointment of mental hygiene commissioners. — The chief judge in each judicial
  circuit of this state shall appoint a competent attorney and may, if necessary, appoint additional
  attorneys to serve as mental hygiene commissioners to preside over involuntary hospitalization
  hearings In a county outside a mental hygiene region created as provided in §27-5A-1 of this code,
  the chief circuit judge of that judicial circuit shall appoint a competent attorney, and may, if
  necessary, appoint additional attorneys to serve as mental hygiene commissioners to preside over
  involuntary hospitalization hearings. Mental hygiene commissioners shall be persons of good
  moral character and of standing in their profession and they shall, before assuming the duties of a
  commissioner, take the oath required of other special commissioners as provided in §6-1-1 et seq.
 of this code.
        Prior to presiding over an involuntary hospitalization hearing, each newly appointed person
 to serve as a mental hygiene commissioner and all magistrates shall attend and complete an
 orientation course that consists of training provided annually by the Supreme Court of Appeals and
 complete an orientation program to be developed by the Secretary of the Department of Health
 and Human Resources Facilities. In addition, existing mental hygiene commissioners and all
 magistrates trained to hold probable cause and emergency detention hearings involving
 involuntary hospitalization shall attend and complete a course provided by the Supreme Court of
 Appeals and complete an orientation program to be developed by the Secretary of the Department
 of Health and Human Resources Facilities. Persons attending the courses outside the county of
 their residence shall be reimbursed out of the budget of the Supreme Court—General Judicial for
 reasonable expenses incurred. The Supreme Court of Appeals shall establish curricula and rules
 for the courses, including rules providing for the reimbursement of reasonable expenses as
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 authorized in this section. The Secretary of the Department of Health and Human Resources
 Facilities shall consult with the Supreme Court of Appeals regarding the development of the
 orientation program.
        (b) Duties of mental hygiene commissioners. —
        (1) Mental hygiene commissioners may sign and issue summonses for the attendance, at
 any hearing held pursuant to §27-5-4 of this code, of the individual sought to be committed; may
 sign and issue subpoenas for witnesses, including subpoenas duces tecum; may place any
 witness under oath; may elicit testimony from applicants, respondents, and witnesses regarding
 factual issues raised in the petition; and may make findings of fact on evidence and may make
 conclusions of law, but the findings and conclusions are not binding on the circuit court. All mental
 hygiene commissioners shall be reasonably compensated at a uniform rate determined by the
 Supreme Court of Appeals. Mental hygiene commissioners shall submit all requests for
 compensation to the administrative director of the courts for payment. Mental hygiene
 commissioners shall discharge their duties and hold their offices at the pleasure of the chief judge
 of the judicial circuit in which he or she is appointed and may be removed at any time by the chief
 judge. A mental hygiene commissioner shall conduct orderly inquiries into the mental health of the
 individual sought to be committed concerning the advisability of committing the individual to a
 mental health facility. The mental hygiene commissioner shall safeguard, at all times, the rights
 and interests of the individual as well as the interests of the state. The mental hygiene
 commissioner shall make a written report of his or her findings to the circuit court. In any
 proceedings before any court of record as set forth in this article, the court of record shall appoint
 an interpreter for any individual who is deaf or cannot speak, or who speaks a foreign language,
 and who may be subject to involuntary commitment to a mental health facility.
        (2) A mental hygiene commissioner appointed by the circuit court of one county or multiple
 county circuits may serve in that capacity in a jurisdiction other than that of his or her original
 appointment if it is agreed upon by the terms of a cooperative agreement between the circuit
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 courts and county commissions of two or more counties entered into to provide prompt resolution
 of mental hygiene matters during hours when the courthouse is closed or on nonjudicial days.
         (c) Duties of prosecuting attorney. —The prosecuting attorney or one of his or her
 assistants shall represent the applicants in all final commitment proceedings filed pursuant to the
 provisions of this article. The prosecuting attorney may appear in any proceeding held pursuant to
 the provisions of this article if he or she determines it to be in the public interest.
         (d) Duties of sheriff. — Upon written order of the circuit court, mental hygiene
 commissioner, or magistrate in the county where the individual formally accused of being mentally
 ill or having a substance use disorder is a resident or is found, the sheriff of that county shall take
 the individual into custody and transport him or her to and from the place of hearing and the mental
 health facility. The sheriff shall also maintain custody and control of the accused individual during
 the period of time in which the individual is waiting for the involuntary commitment hearing to be
 convened and while the hearing is being conducted: Provided, That an individual who is a resident
 of a state other than West Virginia shall, upon a finding of probable cause, be transferred to his or
 her state of residence for treatment pursuant to §27-5-4(p) of this code: Provided, however, That
 where an individual is a resident of West Virginia but not a resident of the county in which he or she
 is found and there is a finding of probable cause, the county in which the hearing is held may seek
 reimbursement from the county of residence for reasonable costs incurred by the county attendant
 to the mental hygiene proceeding. Notwithstanding any provision of this code to the contrary,
 sheriffs may enter into cooperative agreements with sheriffs of one or more other counties, with
 the concurrence of their respective circuit courts and county commissions, by which transportation
 and security responsibilities for hearings held pursuant to the provisions of this article during hours
 when the courthouse is closed or on nonjudicial days may be shared in order to facilitate prompt
 hearings and to effectuate transportation of persons found in need of treatment. In the event an
 individual requires transportation to a state hospital as defined by §27-1-6 of this code, the sheriff
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 shall contact the state hospital in advance of the transportation to determine if the state hospital
 has available suitable bed capacity to place the individual.
         (e) Duty of sheriff upon presentment to mental health care facility. — When a person is
 brought to a mental health care facility for purposes of evaluation for commitment under this
 article, if he or she is violent or combative, the sheriff or his or her designee shall maintain custody
 of the person in the facility until the evaluation is completed, or the county commission shall
 reimburse the mental health care facility at a reasonable rate for security services provided by the
 mental health care facility for the period of time the person is at the hospital prior to the
 determination of mental competence or incompetence.
         (f) Duties of Supreme Court of Appeals. — The Supreme Court of Appeals shall provide
 uniform petition, procedure, and order forms which shall be used in all involuntary hospitalization
 proceedings brought in this state.
         (g) Duties of the Department of Health and Human Resources Facilities. — The secretary
 shall develop an orientation program as provided in subsection (a) of this section. The orientation
 program shall include, but not be limited to, instruction regarding the nature and treatment of
 mental illness and substance use disorder; the goal and purpose of commitment; community-
 based treatment options; and less restrictive alternatives to inpatient commitment.
     §27-5-1b. Pilot projects and other initiatives.
          (a) Duties of the Department of Health and Human Resources. — The Secretary shall, in
  collaboration with designees of the Supreme Court of Appeals, the Sheriff’s Association, the
  Prosecuting Attorney’s Association, the Public Defender Services, the Behavioral Health
  Providers Association, Disability Rights of West Virginia, and a designee of the Dangerousness
  Assessment Advisory Board, undertake an evaluation of the utilization of alternative transportation
  providers and the development of standards that define the role, scope, regulation, and training
  necessary for the safe and effective utilization of alternative transportation providers and shall
  further identify potential financial sources for the payment of alternative transportation providers.
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  Recommendations regarding such evaluation shall be submitted to the President of the Senate
 and the Speaker of the House of Delegates on or before July 31, 2022. The Legislature requests
 the Supreme Court of Appeals cooperate with the listed parties and undertake this evaluation.
        (b) Civil Involuntary Commitment Audits. — The secretary shall establish a process to
 conduct retrospective quarterly audits of applications and licensed examiner forms prepared by
 certifiers for the involuntary civil commitment of persons as provided in §27-5-1 et seq. of this
 code. The process shall determine whether the licensed examiner forms prepared by certifiers are
 clinically justified and consistent with the requirements of this code and, if not, develop corrective
 actions to redress identified issues. The Legislature requests the Supreme Court of Appeals
 participate in this process with the secretary. The process and the findings thereof shall be
 confidential, not subject to subpoena, and not subject to the provisions of §6-9A-1 et seq. and
 §29B-1-1 et seq. of this code.
        (i) (b) Duties of the Mental Health Center for Purposes of Evaluation for Commitment. —
 Each mental health center shall make available as necessary a qualified and competent licensed
 person to conduct prompt evaluations of persons for commitment in accordance with §27-5-1 et
 seq. of this code. Evaluations shall be conducted in person, unless an in-person evaluation would
 create a substantial delay to the resolution of the matter, and then the evaluation may be
 conducted by videoconference. Each mental health center that performs these evaluations shall
 exercise reasonable diligence in performing the evaluations and communicating with the state
 hospital to provide all reasonable and necessary information to facilitate a prompt and orderly
 admission to the state hospital of any person who is or is likely to be involuntarily committed to
 such hospital. Each mental health center that performs these evaluations shall explain the
 involuntary commitment process to the applicant and the person proposed to be committed and
 further identify appropriate alternative forms of potential treatment, loss of liberty if committed, and
 the likely risks and benefits of commitment.
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        (k) (c) Notwithstanding any provision of this code to the contrary, the Supreme Court of
 Appeals, mental health facilities, law enforcement, and the Department of Health and Human
 Resources Facilities may participate in pilot projects in Cabell, Wood, Berkeley, and Ohio Counties
 to implement an involuntary commitment process. Further, notwithstanding any provision of this
 code to the contrary, no alternative transportation provider may be utilized until standards are
 developed and implemented that define the role, scope, regulation, and training necessary for an
 alternative transportation provider as provided in subsection (a) of this section.
     §27-5-2. Institution of proceedings for involuntary custody for examination; custody;
            probable cause hearing; examination of individual.
         (a) Any adult person may make an application for involuntary hospitalization for
  examination of an individual when the person making the application has reason to believe that the
  individual to be examined has a substance use disorder as defined by the most recent edition of
  the American Psychiatric Association in the Diagnostic and Statistical Manual of Mental Disorders,
  inclusive of substance use withdrawal, or is mentally ill and because of his or her substance use
  disorder or mental illness, the individual is likely to cause serious harm to himself, herself, or to
  others if allowed to remain at liberty while awaiting an examination and certification by a physician,
  psychologist, licensed professional counselor, licensed independent social worker an advanced
  nurse practitioner, or physician assistant as provided in subsection (e) of this section: Provided,
 That a diagnosis of dementia, epilepsy, or intellectual or developmental disability alone may not be
 a basis for involuntary commitment to a state hospital.
        (b) Notwithstanding any language in this subsection to the contrary, if the individual to be
 examined under the provisions of this section is incarcerated in a jail, prison, or other correctional
 facility, then only the chief administrative officer of the facility holding the individual may file the
 application, and the application must include the additional statement that the correctional facility
 itself cannot reasonably provide treatment and other services necessary to treat the individual’s
 mental illness or substance use.
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        (c) Application for involuntary custody for examination may be made to the circuit court,
 magistrate court, or a mental hygiene commissioner of the county in which the individual resides,
 or of the county in which he or she may be found. A magistrate before whom an application or
 matter is pending may, upon the availability of a mental hygiene commissioner or circuit court
 judge for immediate presentation of an application or pending matter, transfer the pending matter
 or application to the mental hygiene commissioner or circuit court judge for further proceedings
 unless otherwise ordered by the chief judge of the judicial circuit.
        (d) The person making the application shall give information and state facts in the
 application required by the form provided for this purpose by the Supreme Court of Appeals