ENGROSSED SUBSTITUTE SENATE BILL 5690
State of Washington 68th Legislature 2023 Regular Session
By Senate Human Services (originally sponsored by Senators Dhingra,
Nobles, Saldaña, and C. Wilson; by request of Department of
Corrections)
READ FIRST TIME 02/15/23.
1 AN ACT Relating to conditional release transition teams; amending
2 RCW 10.77.110, 10.77.150, 10.77.175, and 10.77.160; and reenacting
3 and amending RCW 10.77.010.
4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
5 Sec. 1. RCW 10.77.110 and 2000 c 94 s 14 are each amended to
6 read as follows:
7 (1) If a defendant is acquitted of a crime by reason of insanity,
8 and it is found that he or she is not a substantial danger to other
9 persons, and does not present a substantial likelihood of committing
10 criminal acts jeopardizing public safety or security, unless kept
11 under further control by the court or other persons or institutions,
12 the court shall direct the defendant's release. If it is found that
13 such defendant is a substantial danger to other persons, or presents
14 a substantial likelihood of committing criminal acts jeopardizing
15 public safety or security, unless kept under further control by the
16 court or other persons or institutions, the court shall order his or
17 her hospitalization, or any appropriate alternative treatment less
18 restrictive than detention in a state mental hospital, pursuant to
19 the terms of this chapter.
20 (2) If the defendant has been found not guilty by reason of
21 insanity and a substantial danger, or presents a substantial
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 1 likelihood of committing criminal acts jeopardizing public safety or
2 security, so as to require treatment then the secretary shall
3 immediately cause the defendant to be evaluated to ascertain if the
4 defendant ((is developmentally disabled)) has a developmental
5 disability. When appropriate, and subject to available funds, the
6 defendant may be committed to a program specifically reserved for the
7 treatment and training of ((developmentally disabled)) persons with
8 developmental disabilities. A person so committed shall receive
9 habilitation services according to an individualized service plan
10 specifically developed to treat the behavior which was the subject of
11 the criminal proceedings. The treatment program shall be administered
12 by developmental disabilities professionals and others trained
13 specifically in the needs of ((developmentally disabled)) persons
14 with developmental disabilities. The treatment program shall provide
15 physical security to a degree consistent with the finding that the
16 defendant is dangerous and may incorporate varying conditions of
17 security and alternative sites when the dangerousness of any
18 particular defendant makes this necessary. The department may limit
19 admissions to this specialized program in order to ensure that
20 expenditures for services do not exceed amounts appropriated by the
21 legislature and allocated by the department for such services. The
22 department may establish admission priorities in the event that the
23 number of eligible persons exceeds the limits set by the department.
24 (3) If it is found that such defendant is not a substantial
25 danger to other persons, and does not present a substantial
26 likelihood of committing criminal acts jeopardizing public safety or
27 security, but that he or she is in need of control by the court or
28 other persons or institutions, the court shall direct the defendant's
29 conditional release to a less restrictive alternative under
30 conditions that satisfy the minimum requirements of RCW 10.77.150 and
31 10.77.175.
32 Sec. 2. RCW 10.77.010 and 2023 c 453 s 2 and 2023 c 120 s 5 are
33 each reenacted and amended to read as follows:
34 As used in this chapter:
35 (1) "Admission" means acceptance based on medical necessity, of a
36 person as a patient.
37 (2) "Authority" means the Washington state health care authority.
38 (3) "Clinical intervention specialist" means a licensed
39 professional with prescribing authority who is employed by or
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 1 contracted with the department to provide direct services, enhanced
2 oversight and monitoring of the behavioral health status of in-
3 custody defendants who have been referred for evaluation or
4 restoration services related to competency to stand trial and who
5 coordinate treatment options with forensic navigators, the
6 department, and jail health services.
7 (4) "Commitment" means the determination by a court that a person
8 should be detained for a period of either evaluation or treatment, or
9 both, in an inpatient or a less-restrictive setting.
10 (5) "Community behavioral health agency" has the same meaning as
11 "licensed or certified behavioral health agency" defined in RCW
12 71.24.025.
13 (6) "Conditional release" means modification of a court-ordered
14 commitment, which may be revoked upon violation of any of its terms.
15 A conditional release includes partial conditional release where a
16 person continues inpatient at a state hospital under RCW 10.77.150,
17 or conditional release to a less restrictive setting that meets the
18 minimum requirements of RCW 10.77.175 where the person resides in the
19 community.
20 (7) A "criminally insane" person means any person who has been
21 acquitted of a crime charged by reason of insanity, and thereupon
22 found to be a substantial danger to other persons or to present a
23 substantial likelihood of committing criminal acts jeopardizing
24 public safety or security unless kept under further control by the
25 court or other persons or institutions.
26 (8) "Department" means the state department of social and health
27 services.
28 (9) "Designated crisis responder" has the same meaning as
29 provided in RCW 71.05.020.
30 (10) "Detention" or "detain" means the lawful confinement of a
31 person, under the provisions of this chapter, pending evaluation.
32 (11) "Developmental disabilities professional" means a person who
33 has specialized training and experience in directly treating or
34 working with persons with developmental disabilities and is a
35 psychiatrist or psychologist, or a social worker, and such other
36 developmental disabilities professionals as may be defined by rules
37 adopted by the secretary.
38 (12) "Developmental disability" means the condition as defined in
39 RCW 71A.10.020.
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 1 (13) "Discharge" means the termination of hospital medical
2 authority. The commitment may remain in place, be terminated, or be
3 amended by court order.
4 (14) "Furlough" means an authorized leave of absence for a
5 resident of a state institution operated by the department designated
6 for the custody, care, and treatment of the criminally insane,
7 consistent with an order of conditional release from the court under
8 this chapter, without any requirement that the resident be
9 accompanied by, or be in the custody of, any law enforcement or
10 institutional staff, while on such unescorted leave.
11 (15) "Genuine doubt as to competency" means that there is
12 reasonable cause to believe, based upon actual interactions with or
13 observations of the defendant or information provided by counsel,
14 that a defendant is incompetent to stand trial.
15 (16) "Habilitative services" means those services provided by
16 program personnel to assist persons in acquiring and maintaining life
17 skills and in raising their levels of physical, mental, social, and
18 vocational functioning. Habilitative services include education,
19 training for employment, and therapy. The habilitative process shall
20 be undertaken with recognition of the risk to the public safety
21 presented by the person being assisted as manifested by prior charged
22 criminal conduct.
23 (17) "History of one or more violent acts" means violent acts
24 committed during: (a) The 10-year period of time prior to the filing
25 of criminal charges; plus (b) the amount of time equal to time spent
26 during the 10-year period in a mental health facility or in
27 confinement as a result of a criminal conviction.
28 (18) "Immediate family member" means a spouse, child, stepchild,
29 parent, stepparent, grandparent, sibling, or domestic partner.
30 (19) "Incompetency" means a person lacks the capacity to
31 understand the nature of the proceedings against him or her or to
32 assist in his or her own defense as a result of mental disease or
33 defect.
34 (20) "Indigent" means any person who is indigent as defined in
35 RCW 10.101.010, or financially unable to obtain counsel or other
36 necessary expert or professional services without causing substantial
37 hardship to the person or his or her family.
38 (21) "Individualized service plan" means a plan prepared by a
39 developmental disabilities professional with other professionals as a
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 1 team, for an individual with developmental disabilities, which shall
2 state:
3 (a) The nature of the person's specific problems, prior charged
4 criminal behavior, and habilitation needs;
5 (b) The conditions and strategies necessary to achieve the
6 purposes of habilitation;
7 (c) The intermediate and long-range goals of the habilitation
8 program, with a projected timetable for the attainment;
9 (d) The rationale for using this plan of habilitation to achieve
10 those intermediate and long-range goals;
11 (e) The staff responsible for carrying out the plan;
12 (f) Where relevant in light of past criminal behavior and due
13 consideration for public safety, the criteria for proposed movement
14 to less-restrictive settings, criteria for proposed eventual release,
15 and a projected possible date for release; and
16 (g) The type of residence immediately anticipated for the person
17 and possible future types of residences.
18 (22) "Professional person" means:
19 (a) A psychiatrist licensed as a physician and surgeon in this
20 state who has, in addition, completed three years of graduate
21 training in psychiatry in a program approved by the American medical
22 association or the American osteopathic association and is certified
23 or eligible to be certified by the American board of psychiatry and
24 neurology or the American osteopathic board of neurology and
25 psychiatry;
26 (b) A psychologist licensed as a psychologist pursuant to chapter
27 18.83 RCW;
28 (c) A psychiatric advanced registered nurse practitioner, as
29 defined in RCW 71.05.020; or
30 (d) A social worker with a master's or further advanced degree
31 from a social work educational program accredited and approved as
32 provided in RCW 18.320.010.
33 (23) "Release" means legal termination of the court-ordered
34 commitment under the provisions of this chapter.
35 (24) "Secretary" means the secretary of the department of social
36 and health services or his or her designee.
37 (25) "Treatment" means any currently standardized medical or
38 mental health procedure including medication.
39 (26) "Treatment records" include registration and all other
40 records concerning persons who are receiving or who at any time have
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 1 received services for mental illness, which are maintained by the
2 department, by behavioral health administrative services
3 organizations and their staffs, by managed care organizations and
4 their staffs, and by treatment facilities. Treatment records do not
5 include notes or records maintained for personal use by a person
6 providing treatment services for the department, behavioral health
7 administrative services organizations, managed care organizations, or
8 a treatment facility if the notes or records are not available to
9 others.
10 (27) "Violent act" means behavior that: (a)(i) Resulted in; (ii)
11 if completed as intended would have resulted in; or (iii) was
12 threatened to be carried out by a person who had the intent and
13 opportunity to carry out the threat and would have resulted in,
14 homicide, nonfatal injuries, or substantial damage to property; or
15 (b) recklessly creates an immediate risk of serious physical injury
16 to another person. As used in this subsection, "nonfatal injuries"
17 means physical pain or injury, illness, or an impairment of physical
18 condition. "Nonfatal injuries" shall be construed to be consistent
19 with the definition of "bodily injury," as defined in RCW 9A.04.110.
20 Sec. 3. RCW 10.77.150 and 2023 c 120 s 8 are each amended to
21 read as follows:
22 (1) Persons examined pursuant to RCW 10.77.140 may make
23 application to the secretary for conditional release. The secretary
24 shall, after considering the reports of experts or professional
25 persons conducting the examination pursuant to RCW 10.77.140, forward
26 to the court of the county which ordered the person's commitment the
27 person's application for conditional release as well as the
28 secretary's recommendations concerning the application and any
29 proposed terms and conditions upon which the secretary reasonably
30 believes the person can be conditionally released. ((Conditional
31 release may also contemplate partial release for work, training, or
32 educational purposes.))
33 (2) In instances in which persons examined pursuant to RCW
34 10.77.140 have not made application to the secretary for conditional
35 release, but the secretary, after considering the reports of experts
36 or professional persons conducting the examination pursuant to RCW
37 10.77.140, reasonably believes the person may be conditionally
38 released, the secretary may submit a recommendation for conditional
39 release to the court of the county that ordered the person's
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 1 commitment. The secretary's recommendation must include any proposed
2 terms and conditions upon which the secretary reasonably believes the
3 person may be conditionally released. ((Conditional release may also
4 include partial release for work, training, or educational
5 purposes.)) Notice of the secretary's recommendation under this
6 subsection must be provided to the person for whom the secretary has
7 made the recommendation for conditional release and to his or her
8 attorney.
9 (3)(a) The court of the county which ordered the person's
10 commitment, upon receipt of an application or recommendation for
11 conditional release with the secretary's recommendation for
12 ((conditional release)) terms and conditions upon which the secretary
13 reasonably believes the person can be conditionally released for
14 partial conditional release or that meet the minimum statutory
15 requirements in RCW 10.77.160 and 10.77.175 for conditional release
16 to a less restrictive alternative, shall within 30 days schedule a
17 hearing. The court may schedule a hearing on applications recommended
18 for disapproval by the secretary.
19 (b) The prosecuting attorney shall represent the state at such
20 hearings and shall have the right to have the person examined by an
21 expert or professional person of the prosecuting attorney's choice.
22 If the committed person is indigent((,)) and ((he or she)) so
23 requests, the court shall assist the person in obtaining a qualified
24 expert or professional person to examine the person on ((his or her))
25 the person's behalf. An expert or professional person obtained by an
26 indigent person who is committed to state psychiatric care following
27 acquittal by reason of insanity shall be compensated out of funds of
28 the office of public defense as provided in policies and procedures
29 under chapter 2.70 RCW, in a manner consistent with the rules of
30 professional conduct and the standards for indigent defense.
31 (c) The issue to be determined at such a hearing is whether or
32 not the person may be released conditionally ((to less restrictive
33 alternative treatment under the supervision of a multidisciplinary
34 transition team under conditions imposed by the court, including
35 access to services under RCW 10.77.175 without substantial danger to
36 other persons, or substantial likelihood of committing criminal acts
37 jeopardizing public safety or security)) under conditions imposed by
38 the court without substantial danger to other persons, or substantial
39 likelihood of committing criminal acts jeopardizing public safety or
40 security.
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 1 (d) In cases that come before the court under subsection (1) or
2 (2) of this section, the court may deny conditional release ((to a
3 less restrictive alternative)) only on the basis of substantial
4 evidence. The court may modify the suggested terms and conditions on
5 which the person is to be conditionally released. Pursuant to the
6 determination of the court after hearing, the committed person shall
7 thereupon be released on such conditions as the court determines to
8 be necessary, or shall be remitted to the custody of the secretary.
9 (4) If the order of conditional release provides for partial
10 conditional release, the person shall be under t