wa-law.org > bill > 2025-26 > HB 1218 > Engrossed Second Substitute
The legislature finds that individuals referred for services related to competency to stand trial requiring admission into a psychiatric facility are experiencing significantly reduced wait times for competency services. In order to preserve these critical gains, for the benefit of the state and those individuals awaiting services, the legislature finds that implementing measures to reduce the continued growth of referrals to the competency system are necessary. The state's forensic bed capacity forecast model indicates that if the state continues to receive competency referrals from local superior, district, and municipal courts at the same volume, the state will again fall behind.
The legislature further finds that historical investments and policy changes have been made in behavioral health services over the past several years, designed to both increase capacity to provide competency to stand trial services and to reduce the need for them by creating opportunities for diversion, prevention, and improved community health. New construction at western state hospital has resulted in the opening of 58 forensic psychiatric beds in the first quarter of 2023, while emergency community hospital contracts expanded to allow for the discharge or transfer of over 50 civil conversion patients occupying forensic state hospital beds over the same period. Sixteen beds for civil conversion patients opened at Maple Lane school in the first quarter of 2023, with 30 additional beds for patients acquitted by reason of insanity opened in early 2024. The state also acquired a new facility in 2024, now known as Olympic Heritage behavioral health, which added to this historic rise in bed capacity in the state of Washington. Over a longer time period, 350 forensic beds are planned to open within a new forensic hospital on the western state hospital campus between 2028 and 2029. Policy and budget changes have increased capacity for assisted outpatient treatment, 988 crisis response, use of medication for opioid use disorders in jails and community settings, reentry services, and mental health advance directives, and created new behavioral health facility types, supportive housing, and supportive employment services. Forensic navigator services, outpatient competency restoration programs, clinical intervention specialists and other specialty forensic services are now available and continuing to be deployed in phase one, two, and three Trueblood settlement regions.
The legislature further finds that these investments over a period of many years have made significant improvements in the wait times for competency services. Even so, there remains a need for everyone to come together to find solutions to both reduce demand for forensic services and shrink the number of individuals whose only access to behavioral health care is through the criminal justice system. Forensic services should be reserved only for those where the state's interest is sufficient to justify the detention and greater efforts are needed to prevent or divert individuals with behavioral health needs from being unnecessarily incarcerated. The state needs collaboration from local governments and other entities to provide and develop services and supports to patients connected to the forensic system, to reduce the flow of competency referrals coming from municipal, district, and superior courts, and to improve availability and effectiveness of behavioral health services provided outside the criminal justice system.
Subject to the limitations described in subsection (2) of this section, a court may appoint an impartial forensic navigator employed by or contracted by the department to assist individuals who have been referred for competency evaluation for class B and class C felonies and all misdemeanors and shall appoint a forensic navigator in circumstances described under RCW 10.77.072. Class A felonies will not be referred to forensic navigators unless requested by a party to the proceedings or the court.
A forensic navigator must assist the individual to access services related to diversion and community outpatient competency restoration. The forensic navigator must assist the individual, prosecuting attorney, defense attorney, and the court to understand the options available to the individual and be accountable as an officer of the court for faithful execution of the responsibilities outlined in this section.
The duties of the forensic navigator include, but are not limited to, the following:
To collect relevant information about the individual, including behavioral health services and supports available to the individual that might support placement in outpatient restoration, diversion, or some combination of these;
To meet with, interview, and observe the individual;
To gather collateral information regarding the presence of disabilities, injuries, or cognitive disorders, and other records when appropriate to help inform referrals for diversion or services;
When able to meet with the individual, to gather accurate contact information for the individual, the individual's next of kin or legal guardian, and other relevant persons to facilitate timely contact if the individual is referred for services;
To assess the individual for appropriateness for assisted outpatient treatment under chapter 71.05 RCW;
To present information to the court in order to assist the court in understanding the treatment options available to the individual to support the entry of orders for diversion from the forensic mental health system or for community outpatient competency restoration, to facilitate that transition;
To provide regular updates to the court and parties of the status of the individual's participation in diversion or outpatient services and be responsive to inquiries by the parties about treatment status;
When the individual is ordered to receive community outpatient restoration, to provide services to the individual including:
Assisting the individual with attending appointments and classes relating to outpatient competency restoration;
Coordinating access to housing for the individual;
Meeting with the individual on a regular basis;
Providing information to the court concerning the individual's progress and compliance with court-ordered conditions of release, which may include appearing at court hearings to provide information to the court;
Coordinating the individual's access to community case management services and mental health services;
Assisting the individual with obtaining prescribed medication and encouraging adherence with prescribed medication;
Assessing the individual for appropriateness for assisted outpatient treatment under chapter 71.05 RCW and coordinating the initiation of an assisted outpatient treatment order if appropriate;
Planning for a coordinated transition of the individual to a case manager in the community behavioral health system;
ix. Attempting to follow-up with the individual to check whether the meeting with a community-based case manager took place;
Attempting to check up on the individual at least once per month for up to sixty days after coordinated transition to community behavioral health services, without duplicating the services of the community-based case manager;
Forensic navigators may submit recommendations to the court regarding treatment and restoration options for the individual, which the court may consider and weigh in conjunction with the recommendations of all of the parties.
Forensic navigators shall be deemed officers of the court for the purpose of immunity from civil liability.
The signed order for competency evaluation from the court shall serve as authority for the forensic navigator to be given access to all records held by a behavioral health, educational, or law enforcement agency or a correctional facility that relates to an individual. Information that is protected by state or federal law, including health information, shall not be entered into the court record without the consent of the individual or their defense attorney.
Admissions made by the individual in the course of receiving services from the forensic navigator may not be used against the individual in the prosecution's case in chief.
A court may not issue an order appointing a forensic navigator unless the department certifies that there is adequate forensic navigator capacity to provide these services at the time the order is issued.
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Except as otherwise provided in this section, if the defendant is charged with a felony and determined to be incompetent, until he or she has regained the competency necessary to understand the proceedings against him or her and assist in his or her own defense, but in any event for a period of no longer than 90 days, the court shall commit the defendant to the custody of the secretary for inpatient competency restoration, or may alternatively order the defendant to receive outpatient competency restoration based on a recommendation from a forensic navigator and input from the parties.
For a defendant who is determined to be incompetent and whose highest charge is a class C felony other than assault in the third degree under RCW 9A.36.031(1) (d) or (f), felony physical control of a vehicle under RCW 46.61.504(6), felony hit and run resulting in injury under RCW 46.52.020(4)(b), a hate crime offense under RCW 9A.36.080, a class C felony with a domestic violence designation, a class C felony sex offense as defined in RCW 9.94A.030, or a class C felony with a sexual motivation allegation, the court shall first consider all available and appropriate alternatives to inpatient competency restoration. The court shall dismiss the proceedings without prejudice upon agreement of the parties if the forensic navigator has found an appropriate and available diversion program willing to accept the defendant. If the parties do not agree that there is an appropriate diversion program available to accept the defendant:
The court shall dismiss the proceedings without prejudice and order that the defendant be referred for evaluation for civil commitment under subsection (7) of this section, unless the prosecutor objects to the dismissal and provides notice of a motion for an order for competency restoration treatment, in which case the court shall schedule a hearing within seven days. The prosecutor shall provide notice of the objection and motion for an order of competency restoration treatment to the department.
The prosecuting attorney shall inquire into and make a full examination of all the facts and circumstances regarding whether there is a compelling state interest in pursuing competency restoration. This must include a review of any history that suggests the likelihood of success for competency restoration. Upon examination and prior to the hearing the prosecuting attorney shall file a statement regarding whether there is a compelling state interest in pursuing competency restoration. The statement must include relevant information related to the state's interest in continuing the prosecution of the charges including whether doing so serves the interests of justice.
At the hearing, the prosecuting attorney must establish that there is a compelling state interest to order competency restoration treatment for the defendant. The court must consider the statement of the prosecuting attorney and any history that suggests whether competency restoration treatment is likely to be successful. The court also may consider prior criminal history, prior history in treatment, prior history of violence, or the quality and severity of the pending charges, in addition to the factors listed under RCW 10.77.092. If the defendant is subject to an order under chapter 71.05 RCW or proceedings under chapter 71.05 RCW have been initiated, or the court determines based on history that competency restoration is unlikely to be successful, there is a rebuttable presumption that there is no compelling state interest in ordering competency restoration treatment. If the prosecuting attorney proves by a preponderance of the evidence that there is a compelling state interest in ordering competency restoration treatment, then the court shall issue an order for either outpatient or inpatient competency restoration in accordance with this section.
The court shall enter written findings of fact and conclusions of law at the conclusion of any hearing conducted under this subsection.
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To be eligible for an order for outpatient competency restoration, a defendant must be clinically appropriate and be willing to:
ii.
Adhere to all rules and conditions of the identified outpatient competency restoration.
b. If the court orders inpatient competency restoration, the department shall place the defendant in an appropriate facility of the department for competency restoration.
c. For a defendant ordered to inpatient competency restoration, the department shall promptly notify the court and parties whenever it appears the defendant's condition is such that a transfer to outpatient competency restoration is appropriate. Any such notice to the court and parties shall provide pertinent information concerning the change in condition or the reasons supporting transfer to outpatient competency restoration. Upon receipt of this notice, the court shall schedule a hearing within 10 days to review the information provided by the department, conditions of release of the defendant, and anticipated release date from inpatient treatment. The court shall issue appropriate orders if it finds that the defendant's condition has so changed that they are a suitable candidate for outpatient competency restoration.
d. If the court orders outpatient competency restoration, the court shall modify conditions of release as needed to authorize the department to place the person in approved housing, which may include access to supported housing, affiliated with a contracted outpatient competency restoration program. The department, in conjunction with the health care authority, must establish rules for conditions of participation in the outpatient competency restoration program, which must include the defendant being subject to medication management. The court may order regular urinalysis testing. The outpatient competency restoration program shall monitor the defendant during the defendant's placement in the program and report any noncompliance or significant changes with respect to the defendant to the department and, if applicable, the forensic navigator.
e. If a defendant fails to comply with the restrictions of the outpatient competency restoration program such that restoration is no longer appropriate in that setting or the defendant is no longer clinically appropriate for outpatient competency restoration, the director of the outpatient competency restoration program shall notify the authority and the department of the need to terminate the outpatient competency restoration placement and intent to request placement for the defendant in an appropriate facility of the department for inpatient competency restoration. The outpatient competency restoration program shall coordinate with the authority, the department, and any law enforcement personnel under (e)(i) of this subsection to ensure that the time period between termination and admission into the inpatient facility is as minimal as possible. The time period for inpatient competency restoration shall be reduced by the time period spent in active treatment within the outpatient competency restoration program, excluding time periods in which the defendant was absent from the program and all time from notice of termination of the outpatient competency restoration period through the defendant's admission to the facility. The department shall obtain a placement for the defendant within seven days of the notice of intent to terminate the outpatient competency restoration placement.
i. The department may authorize a peace officer to detain the defendant into emergency custody for transport to the designated inpatient competency restoration facility. If medical clearance is required by the designated competency restoration facility before admission, the peace officer must transport the defendant to a crisis stabilization unit, evaluation and treatment facility, or emergency department of a local hospital for medical clearance once a bed is available at the designated inpatient competency restoration facility. The signed outpatient competency restoration order of the court shall serve as authority for the detention of the defendant under this subsection. This subsection does not preclude voluntary transportation of the defendant to a facility for inpatient competency restoration or for medical clearance, or authorize admission of the defendant into jail.
ii. The department shall notify the court and parties of the defendant's admission for inpatient competency restoration before the close of the next judicial day. The court shall schedule a hearing within five days to review the conditions of release of the defendant and anticipated release from treatment and issue appropriate orders.
f. The court may not issue an order for outpatient competency restoration unless the department certifies that there is an available appropriate outpatient competency restoration program that has adequate space for the person at the time the order is issued or the court places the defendant under the guidance and control of a professional person identified in the court order.
For a defendant whose highest charge is a class C felony, or a class B felony that is not classified as violent under RCW 9.94A.030, the maximum time allowed for the initial competency restoration period is 45 days if the defendant is referred for inpatient competency restoration, or 90 days if the defendant is referred for outpatient competency restoration, provided that if the outpatient competency restoration placement is terminated and the defendant is subsequently admitted to an inpatient facility, the period of inpatient treatment during the first competency restoration period under this subsection shall not exceed 45 days.
When any defendant whose highest charge is a class C felony other than assault in the third degree under RCW 9A.36.031(1) (d) or (f), felony physical control of a vehicle under RCW 46.61.504(6), felony hit and run resulting in injury under RCW 46.52.020(4)(b), a hate crime offense under RCW 9A.36.080, a class C felony with a domestic violence designation, a class C felony sex offense as defined in RCW 9.94A.030, or a class C felony with a sexual motivation allegation is admitted for inpatient competency restoration with an accompanying court order for involuntary medication under RCW 10.77.092, and the defendant is found not competent to stand trial following that period of competency restoration, the court shall dismiss the charges pursuant to subsection (7) of this section.
If the court determines or the parties agree before the initial competency restoration period or at any subsequent stage of the proceedings that the defendant is unlikely to regain competency, the court may dismiss the charges without prejudice without ordering the defendant to undergo an initial or further period of competency restoration treatment, in which case the court shall order that the defendant be referred for evaluation for civil commitment in the manner provided in subsection (7) of this section.
On or before expiration of the initial competency restoration period the court shall conduct a hearing to determine whether the defendant is now competent to stand trial. If the court finds by a preponderance of the evidence that the defendant is incompetent to stand trial, the court may order an extension of the competency restoration period for an additional period of 90 days, but the court must at the same time set a date for a new hearing to determine the defendant's competency to stand trial before the expiration of this second restoration period. The defendant, the defendant's attorney, and the prosecutor have the right to demand that the hearing be before a jury. No extension shall be ordered for a second or third competency restoration period if the defendant is ineligible for a subsequent competency restoration period under subsection (4) of this section or the defendant's incompetence has been determined by the secretary to be solely the result of an intellectual or developmental disability, dementia, or traumatic brain injury which is such that competence is not reasonably likely to be regained during an extension.
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Except as provided in (b) of this subsection, at the hearing upon the expiration of the second competency restoration period, or at the end of the first competency restoration period if the defendant is ineligible for a second or third competency restoration period under subsection (4) or (6) of this section, if the jury or court finds that the defendant is incompetent to stand trial, the court shall dismiss the charges without prejudice and order the defendant to be committed to the department for placement in a facility operated or contracted by the department or committed to the health care authority for placement in a facility operated or contracted by the health care authority for evaluation for the purpose of filing a civil commitment petition under chapter 71.05 RCW. The commitment may be for up to 120 hours if the defendant has not undergone competency restoration services or has engaged in outpatient competency restoration services, and up to 72 hours if the defendant engaged in inpatient competency restoration services starting from admission to the facility, excluding Saturdays, Sundays, and holidays. If at the time the order to dismiss the charges without prejudice is entered by the court the defendant is already in a facility operated or contracted by the department, the 72-hour or 120-hour period shall instead begin upon department receipt of the court order.
The court shall not dismiss the charges if the defendant is eligible for a second or third competency restoration period under subsection (6) of this section and the court or jury finds that: (i) The defendant (A) is a substantial danger to other persons; or (B) presents a substantial likelihood of committing criminal acts jeopardizing public safety or security; and (ii) there is a substantial probability that the defendant will regain competency within a reasonable period of time. If the court or jury makes such a finding, the court may extend the period of commitment for up to an additional six months.
Any period of competency restoration treatment under this section includes only the time the defendant is actually at the facility or is actively participating in an outpatient competency restoration program and is in addition to reasonable time for transport to or from the facility.
If at any time the court dismisses charges based on incompetency to stand trial under this section, the court shall issue an order prohibiting the defendant from the possession of firearms until a court restores his or her right to possess a firearm under RCW 9.41.047. The court shall notify the defendant orally and in writing that the defendant may not possess a firearm unless the defendant's right to do so is restored by the superior court that issued the order under RCW 9.41.047, and that the defendant must immediately surrender all firearms and any concealed pistol license to their local law enforcement agency.
If the defendant is charged with a nonfelony crime which is a serious offense as identified in RCW 10.77.092 and found by the court to be not competent, the court shall first consider all available and appropriate alternatives to inpatient competency restoration. If the parties agree that there is an appropriate diversion program available to accept the defendant, the court shall dismiss the proceedings without prejudice and refer the defendant to the recommended diversion program. If the parties do not agree that there is an appropriate diversion program available to accept the defendant:
The court shall dismiss the proceedings without prejudice and detain the defendant pursuant to subsection (6) of this section, unless the prosecutor objects to the dismissal and provides notice of a motion for an order for competency restoration treatment, in which case the court shall schedule a hearing within seven days. The prosecutor shall provide notice of the objection and motion for an order of competency restoration treatment to the department.
The prosecuting attorney shall inquire into and make a full examination of all the facts and circumstances regarding whether there is a compelling state interest in pursuing competency restoration. This must include a review of any history that suggests the likelihood of success for competency restoration. Upon examination and prior to the hearing the prosecuting attorney shall file a statement regarding whether there is a compelling state interest in pursuing competency restoration. The statement must include relevant information related to the state's interest in continuing the prosecution of the charges including whether doing so serves the interests of justice.
At the hearing, the prosecuting attorney must establish that there is a compelling state interest to order competency restoration treatment for the defendant. The court must consider the statement of the prosecuting attorney and any history that suggests whether competency restoration treatment is likely to be successful. The court also may consider prior criminal history, prior history in treatment, prior history of violence, or the quality and severity of the pending charges, in addition to the factors listed under RCW 10.77.092. If the defendant is subject to an order under chapter 71.05 RCW or proceedings under chapter 71.05 RCW have been initiated, or the court determines based on history that competency restoration is unlikely to be successful, there is a rebuttable presumption that there is no compelling state interest in ordering competency restoration treatment. If the prosecuting attorney proves by a preponderance of the evidence that there is a compelling state interest in ordering competency restoration treatment, then the court shall issue an order in accordance with subsection (2) of this section.
The court shall enter written findings of fact and conclusions of law at the conclusion of any hearing conducted under this subsection.
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If a court finds pursuant to subsection (1)(c) of this section that there is a compelling state interest in pursuing competency restoration treatment, the court shall order the defendant to receive outpatient competency restoration consistent with the recommendation of the forensic navigator, unless the court finds that an order for outpatient competency restoration is inappropriate considering the health and safety of the defendant and risks to public safety.
To be eligible for an order for outpatient competency restoration, a defendant must be willing to:
ii.
Adhere to the rules and conditions of the identified outpatient competency restoration program.
c. If the court orders inpatient competency restoration, the department shall place the defendant in an appropriate facility of the department for competency restoration under subsection (3) of this section.
d. For a defendant ordered to inpatient competency restoration, the department shall promptly notify the court and parties whenever it appears the defendant's condition is such that a transfer to outpatient competency restoration is appropriate. Any such notice to the court and parties shall provide pertinent information concerning the change in condition or the reasons supporting transfer to outpatient competency restoration. Upon receipt of this notice, the court shall schedule a hearing within 10 days to review the information provided by the department, conditions of release of the defendant, and anticipated release date from inpatient treatment. The court shall issue appropriate orders if it finds that the defendant's condition has so changed that they are a suitable candidate for outpatient competency restoration.
e. If the court orders outpatient competency restoration, the court shall modify conditions of release as needed to authorize the department to place the person in approved housing, which may include access to supported housing, affiliated with a contracted outpatient competency restoration program. The department, in conjunction with the health care authority, must establish rules for conditions of participation in the outpatient competency restoration program, which must include the defendant being subject to medication management. The court may order regular urinalysis testing. The outpatient competency restoration program shall monitor the defendant during the defendant's placement in the program and report any noncompliance or significant changes with respect to the defendant to the department and, if applicable, the forensic navigator.
f. If a defendant fails to comply with the restrictions of the outpatient competency restoration program such that restoration is no longer appropriate in that setting or the defendant is no longer clinically appropriate for outpatient competency restoration, the director of the outpatient competency restoration program shall notify the authority and the department of the need to terminate the outpatient competency restoration placement and intent to request placement for the defendant in an appropriate facility of the department for inpatient competency restoration. The outpatient competency restoration program shall coordinate with the authority, the department, and any law enforcement personnel under (f)(i) of this subsection to ensure that the time period between termination and admission into the inpatient facility is as minimal as possible. The time period for inpatient competency restoration shall be reduced by the time period spent in active treatment within the outpatient competency restoration program, excluding time periods in which the defendant was absent from the program and all time from notice of termination of the outpatient competency restoration period through the defendant's admission to the facility. The department shall obtain a placement for the defendant within seven days of the notice of intent to terminate the outpatient competency restoration placement.
i. The department may authorize a peace officer to detain the defendant into emergency custody for transport to the designated inpatient competency restoration facility. If medical clearance is required by the designated competency restoration facility before admission, the peace officer must transport the defendant to a crisis stabilization unit, evaluation and treatment facility, or emergency department of a local hospital for medical clearance once a bed is available at the designated inpatient competency restoration facility. The signed outpatient competency restoration order of the court shall serve as authority for the detention of the defendant under this subsection. This subsection does not preclude voluntary transportation of the defendant to a facility for inpatient competency restoration or for medical clearance, or authorize admission of the defendant into jail.
ii. The department shall notify the court and parties of the defendant's admission for inpatient competency restoration before the close of the next judicial day. The court shall schedule a hearing within five days to review the conditions of release of the defendant and anticipated release from treatment and issue appropriate orders.
g. The court may not issue an order for outpatient competency restoration unless the department certifies that there is an available appropriate outpatient competency restoration program that has adequate space for the person at the time the order is issued or the court places the defendant under the guidance and control of a professional person identified in the court order.
h. If the court does not order the defendant to receive outpatient competency restoration under (a) of this subsection, the court shall commit the defendant to the department for placement in a facility operated or contracted by the department for inpatient competency restoration.
The placement under subsection (2) of this section shall not exceed 29 days if the defendant is ordered to receive inpatient competency restoration, and shall not exceed 90 days if the defendant is ordered to receive outpatient competency restoration. The court may order any combination of this subsection, but the total period of inpatient competency restoration may not exceed 29 days.
Beginning October 1, 2023, if the defendant is charged with a serious traffic offense under RCW 9.94A.030, the court may order the clerk to transmit an order to the department of licensing for revocation of the defendant's driver's license for a period of one year. The court shall direct the clerk to transmit an order to the department of licensing reinstating the defendant's driver's license if the defendant is subsequently restored to competency, and may do so at any time before the end of one year for good cause upon the petition of the defendant.
If the court has determined or the parties agree that the defendant is unlikely to regain competency, the court may dismiss the charges without prejudice without ordering the defendant to undergo competency restoration treatment, in which case the court shall order that the defendant be referred for evaluation for civil commitment in the manner provided in subsection (6) of this section.
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If the proceedings are dismissed under RCW 10.77.084 and the defendant was on conditional release at the time of dismissal, the court shall order the designated crisis responder within that county to evaluate the defendant pursuant to chapter 71.05 RCW. The evaluation may be conducted in any location chosen by the professional.
If the defendant was in custody and not on conditional release at the time of dismissal, the defendant shall be detained and sent to an evaluation and treatment facility for up to 120 hours if the defendant has not undergone competency restoration services or has engaged in outpatient competency restoration services and up to 72 hours if the defendant engaged in inpatient competency restoration services, excluding Saturdays, Sundays, and holidays, for evaluation for purposes of filing a petition under chapter 71.05 RCW. The 120-hour or 72-hour period shall commence upon the next nonholiday weekday following the court order and shall run to the end of the last nonholiday weekday within the 120-hour or 72-hour period.
If the defendant is charged with a nonfelony crime that is not a serious offense as defined in RCW 10.77.092 and found by the court to be not competent, the court may stay or dismiss proceedings and detain the defendant for sufficient time to allow the designated crisis responder to evaluate the defendant and consider initial detention proceedings under chapter 71.05 RCW. The court must give notice to all parties at least 24 hours before the dismissal of any proceeding under this subsection, and provide an opportunity for a hearing on whether to dismiss the proceedings.
If at any time the court dismisses charges under subsections (1) through (7) of this section, the court shall make a finding as to whether the defendant has a history of one or more violent acts. If the court so finds, the court shall issue an order prohibiting the defendant from the possession of firearms until a court restores his or her right to possess a firearm under RCW 9.41.047. The court shall notify the defendant orally and in writing that the defendant may not possess a firearm unless the defendant's right to do so is restored by the superior court that issued the order under RCW 9.41.047, and that the defendant must immediately surrender all firearms and any concealed pistol license to their local law enforcement agency.
Any period of competency restoration treatment under this section includes only the time the defendant is actually at the facility or is actively participating in an outpatient competency restoration program and is in addition to reasonable time for transport to or from the facility.
For purposes of determining whether a court may authorize involuntary medication for the purpose of competency restoration pursuant to RCW 10.77.084 and for maintaining the level of restoration in the jail following the restoration period, a pending charge involving any one or more of the following crimes is a serious offense per se in the context of competency restoration:
Any violent offense, sex offense, serious traffic offense, and most serious offense, as those terms are defined in RCW 9.94A.030;
Any offense, except nonfelony counterfeiting offenses, included in crimes against persons in RCW 9.94A.411;
Any offense contained in chapter 9.41 RCW (firearms and dangerous weapons);
Any offense listed as domestic violence in RCW 10.99.020;
Any offense listed as a harassment offense in chapter 9A.46 RCW, except for criminal trespass in the first or second degree;
Any violation of chapter 69.50 RCW that is a class B felony; or
Any city or county ordinance or statute that is equivalent to an offense referenced in this subsection.
Any time a petition is filed seeking a court order authorizing the involuntary medication for purposes of competency restoration pursuant to RCW 10.77.084, the petition must also seek authorization to continue involuntary medication for purposes of maintaining the level of restoration in the jail or juvenile detention facility following the restoration period.
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In a particular case, a court may determine that a pending charge not otherwise defined as serious by state or federal law or by a city or county ordinance is, nevertheless, a serious offense within the context of competency restoration treatment when the conduct in the charged offense falls within the standards established in (b) of this subsection.
To determine that the particular case is a serious offense within the context of competency restoration, the court must consider the following factors and determine that one or more of the following factors creates a situation in which the offense is serious:
The charge includes an allegation that the defendant actually inflicted bodily or emotional harm on another person or that the defendant created a reasonable apprehension of bodily or emotional harm to another;
The extent of the impact of the alleged offense on the basic human need for security of the citizens within the jurisdiction;
The number and nature of related charges pending against the defendant;
The length of potential confinement if the defendant is convicted; and
The number of potential and actual victims or persons impacted by the defendant's alleged acts.
For a defendant ordered to inpatient competency restoration, the department shall promptly notify the court and parties whenever it appears the defendant's condition and amenability to treatment are such that an order for involuntary medication is necessary. Any such notice to the court and parties shall provide pertinent information concerning the applicable criteria under Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). Upon receipt of this notice, the court shall schedule a hearing within 10 days to consider an order for involuntary medication.
For any hearing pertaining to involuntary medication, the parties, the witnesses, the interpreters, and the presiding judicial officer shall be present and participate by video. The term "video," as used in this section, includes any functional equivalent. At any hearing conducted by video, the technology used must permit the judicial officer, counsel, all parties, and the witnesses to be able to see, hear, and speak, when authorized, during the hearing; to allow attorneys to use exhibits or other materials during the hearing; and to allow the respondent's counsel to be in the same location as the respondent unless otherwise requested by the respondent or the respondent's counsel. Witnesses in a proceeding may also appear in court through other means, including telephonically, pursuant to the requirements of superior court civil rule 43. Notwithstanding the foregoing, the court, upon its own motion or upon a motion for good cause by any party, may require some or all parties and witnesses to participate in the hearing in person rather than by video. In ruling on any such motion, the court may allow in-person or video testimony; and the court may consider, among other things, whether the respondent's alleged behavioral health disorder affects the respondent's ability to perceive or participate in the proceeding by video.
(1) All earnings of investments of surplus balances in the state treasury shall be deposited to the treasury income account, which account is hereby established in the state treasury.
(1) All earnings of investments of surplus balances in the state treasury shall be deposited to the treasury income account, which account is hereby established in the state treasury.
The department shall establish an incentive program to manage inpatient competency orders under this chapter.
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The department shall establish an incentive level of referrals for each city and county that refers individuals for inpatient competency services by utilizing the average number of inpatient competency orders referred to the department from any court within a city's or county's jurisdiction in fiscal years 2018 and 2019. For any city or county with an average of less than two inpatient competency orders in fiscal years 2018 and 2019, the incentive level shall be set at one individual.
The department shall establish a baseline level of referrals for each city and county that refers individuals for inpatient competency services by utilizing the average number of inpatient competency orders referred to the department from any court within a city's or county's jurisdiction in fiscal years 2024 and 2025. For any city or county with an average of less than two inpatient competency orders in fiscal years 2024 and 2025, the baseline level shall be set at one.
Any city or county that reduces its total annual inpatient competency referrals below the incentive level established by the department, or that reduces its overall orders for any competency service by at least 40 percent for a given fiscal year, shall be eligible to request an appropriation from the behavioral health diversion fund created in section 9 of this act. Any funds appropriated to a city or county from the behavioral health diversion fund must be used toward services or supports that either prevent individuals with behavioral health needs from entering the criminal justice system or divert them away from the criminal justice system once incarcerated. Cities and counties that have an average incentive level of less than five individuals may apply based on a 50 percent or greater reduction in their total number of inpatient competency orders.
Commencing January 1, 2026, the department shall provide notice on a quarterly basis to the superior, district, and municipal courts and relevant agencies of each city and county including, but not limited to, the city or county administrator, behavioral health department, sheriff or police chief, public defender, and prosecuting authority of the total number of inpatient competency orders made in the city or county for the current fiscal year compared to the incentive level for the city or county.
The behavioral health diversion fund is hereby created in the state treasury. The fund shall consist of funds appropriated by the legislature. Moneys in the fund may be spent only after appropriation. Expenditures from the fund may only be used for services or supports that either prevent individuals with behavioral health needs from entering the criminal justice system or that diverts them away from the criminal justice system once incarcerated.
The department shall adopt rules necessary for implementation of the incentive program for inpatient competency services established under section 8 of this act.
For purposes of this section, "behavioral health diversion" means adult jail diversion, whereby a person who has a behavioral health need may still have involvement with the criminal justice system but spends little to no time in a jail facility and is instead connected to community-based treatment and support services either with or without court involvement or correctional supervision.
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For purposes of this section, "behavioral health diversion plan" means 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, but is not limited to:
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;
Specific measures to increase diversion of individuals with behavioral health needs whose highest charge is up to a class C felony away from the competency system;
Specific measures to identify individuals for whom a court has made multiple prior findings of nonrestorability, and strategies to prevent future competency evaluation or restoration orders and instead utilize 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 based on history of prior referrals, prior inpatient psychiatric treatment episodes, criminal justice system involvement, or homelessness;
A strategic plan to create programming, services, and supports, including housing supports, along each intercept in the sequential intercept model for the county. The plan must include strategies to address housing and case management for people with significant behavioral health needs who have or are at risk of having involvement with the criminal justice system;
Section 6 of this act expires July 1, 2028.
Section 7 of this act takes effect July 1, 2028.
If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 2025, in the omnibus appropriations act, this act is null and void.