ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 536
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(By Senators Mitchell, Fanning, Kessler, Minard,
Oliverio, Rowe, Facemyer and McKenzie)
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A BILL to amend and reenact section one, article two-a, chapter twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact sections one, two and three, article five of said chapter , all relating to mental hygiene proceedings generally; definitions; declaring responsibilities of community mental health facilities in mental hygiene proceedings to be defined by contract; removing prosecutors from regular appearances at probable cause proceedings; extending time for hearing; allowing multiple county agreements; clarifying that no probable cause hearing is necessary where the physician or psychologist determines that the individual is neither mentally ill nor addicted or, if mentally ill, not a danger to self or others; proceedings involving involuntary custody; allowing return of certain individuals who are in need of mental hygiene services who are residents of other states to their residence jurisdiction; requiring probable cause hearings within a certain time period; clarifying that mental hygiene commissioners may elicit testimony regarding issues raised in the petition; eliminating the need for an examination of the individual under certain circumstances; requiring data collection by supreme court of appeals allowing fifteen days for holding of final commitment proceeding; authorizing treatment without hearing where certifying professional is a psychiatrist in the event of a psychiatric emergency; and authorizing qualified licensed independent clinical social workers or certain advanced nurse practitioners to certify an individual.

Be it enacted by the Legislature of West Virginia:
That section one, article two-a, chapter twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that sections one

§27-2A-1. Comprehensive community mental health-mental retardation centers; establishment, operation and location; duties; access to treatment.

(a) The director of health is authorized and directed to establish, maintain and operate comprehensive community mental health centers and comprehensive mental retardation facilities, at such locations within the state as may be determined by the director in accordance with the state's comprehensive mental health plan and the state's comprehensive mental retardation plan. Such facilities may be integrated with a general health care or other facility or remain separate as the board of health may by rules and regulations prescribe: Provided, That nothing contained herein shall be construed to allow the department of health to assume the operation of comprehensive regional mental health centers or comprehensive mental retardation facilities which have been heretofore established according to law and which, as of the effective date of this article, are being operated by local nonprofit organizations.
(b) Any new mental health centers and comprehensive mental retardation facilities herein provided for may be operated and controlled by the department of health or operated, maintained and controlled by local nonprofit organizations and licensed according to rules and regulations promulgated by the board of health. All comprehensive regional mental health and mental retardation facilities licensed in the state shall:
(1) Have a written plan for the provision of diagnostic, treatment, supportive and aftercare services, and written policies and procedures for implementing these services;
(2) Have sufficient employees appropriately qualified to provide these services;
(3) Maintain accurate medical and other records for all patients receiving services;
(4) Render outpatient services in the aftercare of any patient discharged from an inpatient hospital consistent with the needs of the individual. No person who can be treated as an outpatient at a community mental health center shall be admitted involuntarily into a state hospital;
(5) Have a chief administrative officer directly responsible to a legally constituted board of directors of a comprehensive mental health or mental retardation facility operated by a local nonprofit organization, or to the director of the department of health if the comprehensive mental health or mental retardation center or facility is operated by the department of health;
(6) Have a written plan for the referral of patients for evaluation and treatment for services not provided; and

(7) Provide services in relation to mental hygiene proceedings as contracted for between the mental health retardation center and the department of health and human resources.

The state's share of costs of operating such facilities may be provided from funds appropriated for this purpose within the budget of the department of health. The director shall administer these funds among all comprehensive mental health and mental retardation facilities as may be required to best provide comprehensive community mental health care and services to the citizens of the state.
After the first day of July, but not later than the first day of August of each year, the chief administrative officer of each comprehensive regional mental health center and mental retardation facility shall submit a report to the director of the department of health and to the legislative auditor containing a listing of:
(1) All funds received by the center or facility;
(2) All funds expended by the center or facility;
(3) All funds obligated by the center or facility;
(4) All services provided by the center or facility;
(5) The number of persons served by the center or facility; and
(6) Other information as the board of health shall by regulation prescribe.

§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. Mental hygiene commissioners shall be persons of good moral character and of standing in their profession and they shall, before assuming the duties of such commissioner, take the oath required of other special commissioners as provided in article one, chapter six of this code.
All persons newly appointed to serve as mental hygiene commissioners shall attend and complete an orientation course, within one year of their appointment, consisting of at least three days of training provided annually by the supreme court of appeals. In addition, existing mental hygiene commissioners and any magistrates designated by the chief judge of a judicial circuit to hold probable cause and emergency detention hearings involving involuntary hospitalization shall attend and complete a course provided by the supreme court of appeals, which course shall include, but not be limited to, instruction on the manifestations of mental illness and addiction. Persons attending such 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 shall establish rules for such courses, including rules providing for the reimbursement of reasonable expenses as authorized herein.
(b) Duties of mental hygiene commissioners. --
(1) Mental hygiene commissioners may sign and issue summonses for the attendance, at any hearing held pursuant to section four, article five of this chapter, 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 such findings and conclusions shall not be binding on the circuit court. The circuit court, by order entered of record, shall allow the commissioner a reasonable fee for services rendered in connection with each case. 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 such chief judge. It shall be the duty of a mental hygiene commissioner to 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 circuit may serve in such capacity in a jurisdiction other than that of his or her original appointment if such be agreed upon by the terms of a cooperative agreement between the circuit courts and county commissions of contiguous two or more counties entered into to provide prompt resolution of mental hygiene matters during noncourt hours or on nonjudicial days.
(c) Duties of prosecuting attorney. -- It shall be the duty of the prosecuting attorney or one of his or her assistants to represent the applicants in all final commitment proceedings filed pursuant to the provisions of this article. The services of a prosecuting attorney or an assistant prosecuting attorney at a proceeding held under the provisions of this article, during noncourt hours or on a nonjudicial day, may be waived by the circuit court, mental hygiene commissioner or magistrate holding such proceeding with the concurrence of the applicant if a finding is made by the circuit court, mental hygiene commissioner or magistrate that the applicant's interests are not jeopardized by such waiver. Notwithstanding any provision of this code to the contrary, prosecuting attorneys may enter into cooperative agreements with prosecuting attorneys of contiguous multiple counties, with the concurrence of their respective circuit courts and county commissions, whereby hearings held during noncourt hours or nonjudicial days may be held in a county other than that where the person is found or prosecuting attorneys or assistant prosecuting attorneys of a county which is party to such a cooperative agreement may serve or a prosecutor in a hearing held in the county where the person is found in order to facilitate prompt resolution of the matter. The prosecuting attorney may appear in any proceeding held pursuant to the provisions of this article if he or she deems it to be in the public interest.
(d) Duties of sheriff. -- Upon written order of the circuit court, or of a mental hygiene commissioner or magistrate in the county where the individual formally accused of being mentally ill or addicted is a resident or is found, the sheriff of that county shall take said 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 such hearing is being conducted: Provided, That where a circuit judge, mental hygiene commissioner or magistrate determines upon a review of a petition for involuntary hospitalization that, if certified, the individual would meet the criteria for involuntary hospitalization of the allegations in the petition were proven and finds by clear and convincing evidence that the individual is a resident of a contiguous state and county and that the individual was transported into this state for the purpose of obtaining mental health services, the circuit court, mental hygiene commissioner or magistrate may direct the sheriff or his or her designee to transport the individual to his state and county of residence for purposes of receiving services in that jurisdiction: Provided, however, 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 the provisions of subsection (p), section four of this article: Provided, however further, 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 contiguous one or more other counties, with the concurrence of their respective circuit courts and county commissions, whereby transportation and security responsibilities for hearings held pursuant to the provisions of this article during noncourt hours or on nonjudicial days may be shared in order to facilitate prompt hearings and to effectuate transportation of persons found in need of treatment.
(e) Duty of sheriff upon presentment to mental health care facility. -- Where a person is brought to a mental health care facility for purposes of evaluation for commitment under the provisions of 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.

Institution of proceedings for involuntary custody for

examination; custody; probable cause hearing; examination of individual.

(a) When application for involuntary custody for examination may be made. -- Any adult person may make an application for involuntary hospitalization for examination of an individual who is not incarcerated at the time the application is filed when said the person making the application has reason to believe that:
(1) The individual to be examined is addicted, as defined in section eleven, article one of this chapter; or
(2) The individual is mentally ill and, because of his or her mental illness, the individual is likely to cause serious harm to himself or herself or to others if allowed to remain at liberty while awaiting an examination and certification by a physician or psychologist.
(b) Oath; to whom application for involuntary custody for examination is made; contents of application; custody; probable cause hearing; examination. --
(1) The person making such the application shall do so make the application under oath.
(2) (c) Application for involuntary custody for examination may be made to the circuit 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. When no circuit court judge or mental hygiene commissioner is available for immediate presentation of the application, the application may be made to a magistrate designated by the chief judge of the judicial circuit to accept applications and hold probable cause hearings. A designated 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.
(3) (d) The person making such the application shall give such information and state such facts therein in the application as may be required upon by the form provided for this purpose by the supreme court of appeals.
(4) (e) The circuit court or the mental hygiene commissioner or designated magistrate may thereupon enter an order for the individual named in such action the application to be detained and taken into custody for the purpose of holding a probable cause hearing as provided for in subdivision (5) subsection (g) of this subsection and

has within the preceding seventy-two hours performed the examination required by the provisions of this subdivision, the community mental health center may waive the requirement of a forthwith hearing the duty to perform or arrange another examination upon approving such the previously performed examination. Notwithstanding the provisions of this subsection, subsection (r), section four of this article shall apply applies regarding payment by the county commission for examinations at hearings. If the examination reveals that the individual is not mentally ill or addicted, or is determined to be mentally ill but not likely to cause harm to himself, herself or others, the individual shall be immediately released without the need for a probable cause hearing and absent a finding of professional negligence such examiner shall not be civilly liable for the rendering of such opinion absent a finding of professional negligence. The examiner shall immediately provide the mental hygiene commissioner, circuit court or designated magistrate before whom the matter is pending, the results of the examination on the form provided for this purpose by the supreme court of appeals for entry of an order reflecting the lack of probable cause: Provided further, That if a psychiatrist has certified he or she has examined the individual and is of the opinion that the individual is mentally ill and, because of the mental illness, is likely to cause serious harm to self or others and upon a further finding that a psychiatric emergency exists, or is addicted, the circuit court, mental hygiene commissioner or designated magistrate may upon consideration of the certified examination results and the facts set forth under oath in the application enter an ex parte order finding probable cause for further evaluation and treatment and the hearing time requirements heretofore set forth in this subsection shall not apply: And provided further, That a hearing shall be held not later than seventy-two hours from the time of examination for review of the ex parte finding of probable cause before a mental hygiene commissioner, the circuit court or designated magistrate, if the individual has not been discharged or transferred to voluntary status prior to hearing. The hearing shall be conducted in accordance with subsection (g) of this section. The individual may be discharged or transferred to voluntary status prior to the probable cause hearing with the approval of the individual, his or her counsel and ex parte approval of the mental hygiene commissioner, the circuit court or designated magistrate before whom the matter is pending. The individual shall be immediately released without need for a probable cause hearing if examination of the individual reveals that the individual is not mentally ill or addicted, or is determined to be mentally ill but not likely to cause harm to himself, herself or others. The psychiatrist shall immediately provide the mental hygiene commissioner, circuit court or designated magistrate before whom the matter is pending the results of the examination on the form provided for this purpose by the supreme court of appeals for entry of an order reflecting the lack of probable cause. Nothing in this subsection shall be construed as creating a right to examination by a psychiatrist; nor as prohibiting release of an individual pursuant to a voluntary treatment agreement as provided in subsection (h) of this section upon the ex parte finding of probable cause.
In the event immediate detention is believed to be necessary for the protection of the individual or others at a time when no circuit court judge or mental hygiene commissioner is available for immediate presentation of the application, a magistrate designated by the chief judge of the judicial circuit may accept the application and, upon a finding that such immediate detention is necessary pending presentation of the application to the circuit court or mental hygiene commissioner, may order the individual to be temporarily detained in custody until the earliest reasonable time that the application can be presented to the circuit court or mental hygiene commissioner, which temporary period of detention may not exceed twenty-four hours: Provided, That where the individual has been examined by a psychologist or physician and said psychologist or physician has certified the individual meets the criteria for involuntary hospitalization, the individual may be temporarily detained until the next judicial day. In no event shall an individual be so detained for more than seventy-two hours without a hearing.

(f) A psychiatrist who examines an individual and finds the individual not to be mentally ill or addicted resulting in his or her release without a hearing pursuant to this section shall not be liable for the rendering of such opinion absent a finding of professional negligence.
(5) (g) A probable cause hearing shall is to be held before a magistrate designated by the chief judge of the judicial circuit, the mental hygiene commissioner or circuit judge of the county of which the individual is a resident or where he or she was found. If requested by the individual or his or her counsel, the hearing may be postponed for a period not to exceed forty-eight hours.
The individual must be present at the hearing and shall have has the right to present evidence, confront all witnesses and other evidence against him or her and to examine testimony offered, including testimony by representatives of the community mental health center serving the area. Expert testimony at the hearing may be taken telephonically or via videoconferencing. The individual shall have has the right to remain silent and to be proceeded against in accordance with the rules of evidence of the supreme court of appeals, except as provided for in section twelve, article one of this chapter. At the conclusion of the hearing, the magistrate, mental hygiene commissioner or circuit court judge shall find and enter an order stating whether or not there is probable cause to believe that such the individual, as a result of mental illness, is likely to cause serious harm to himself or herself or to others or is addicted.
(6) (h) The magistrate, mental hygiene commissioner or circuit court judge at a probable cause hearing or at a final commitment hearing held pursuant to the provisions of section four of this article finds that the individual, as a result of mental illness, is likely to cause serious harm to himself, herself or others or is addicted and because of such mental illness or addiction requires treatment, the magistrate, mental hygiene commissioner or circuit court judge may consider evidence on the question of whether the individual's circumstances make him or her amenable to outpatient treatment in a nonresidential or nonhospital setting pursuant to a voluntary treatment agreement. Such The agreement shall is to be in writing and approved by the individual, his or her counsel and the magistrate, mental hygiene commissioner or circuit judge and the mental health treatment provider. If the magistrate, mental hygiene commissioner or circuit court judge determines that appropriate outpatient treatment is available in a nonresidential or nonhospital setting, the individual may be released to such outpatient treatment upon the terms and conditions of the voluntary treatment agreement. The failure of an individual released to outpatient treatment pursuant to a voluntary treatment agreement to comply with the terms of the voluntary treatment agreement shall constitute constitutes evidence that such outpatient treatment is insufficient and, after a hearing before a magistrate, mental hygiene commissioner or circuit judge on the issue of whether or not the individual failed or refused to comply with the terms and conditions of the voluntary treatment agreement and whether the individual as a result of mental illness remains likely to cause serious harm to himself, herself or others or remains addicted, the entry of an order requiring admission under involuntary hospitalization pursuant to the provisions of section three of this article may be entered. In the event a person released pursuant to a voluntary treatment agreement is unable to pay for the outpatient treatment and has no applicable insurance coverage, including, but not limited to, private insurance or medicaid, the secretary of health and human resources may transfer funds for the purpose of reimbursing community providers for services provided on an outpatient basis for individuals for whom payment for treatment is the responsibility of the department: Provided, That the department may not authorize payment of outpatient services for an individual subject to a voluntary treatment agreement in an amount in excess of the cost of involuntary hospitalization of the individual. The secretary shall establish and maintain fee schedules for outpatient treatment provided in lieu of involuntary hospitalization. Nothing in the provisions of this article regarding release pursuant to a voluntary treatment agreement or convalescent status shall may be construed as creating a right to receive outpatient mental health services or treatment or as obligating any person or agency to provide such outpatient services or treatment. Time limitations set forth in this article relating to periods of involuntary commitment to a mental health facility for hospitalization shall do not apply to release pursuant to the terms of a voluntary treatment agreement: Provided, however, That release pursuant to a voluntary treatment agreement shall may not be for a period of more than six months if the individual has not been found to be involuntarily committed during the previous two years and for a period of no more than two years if the individual has been involuntarily committed during the preceding two years. If in any proceeding held pursuant to article five of this chapter the individual objects to the issuance or conditions and terms of an order adopting a voluntary treatment agreement, then the presiding officer shall circuit judge, magistrate or mental hygiene commissioner may not enter an order directing treatment pursuant to a voluntary treatment agreement. If involuntary commitment with release pursuant to a voluntary treatment agreement is ordered, the individual made subject to said the order may, upon request during the period the order is in effect, have a hearing before a mental hygiene commissioner or circuit judge where the individual may seek to have the order cancelled or modified. Nothing in this section shall may affect the appellate and habeas corpus rights of any individual subject to any commitment order.
(7)(i) If the certifying physician or psychologist determines that a person requires involuntary hospitalization for an addiction to a substance which, due to the degree of addiction, creates a reasonable likelihood that withdrawal or detoxification from the substance of addiction will cause significant medical complications, the person certifying the individual shall recommend that the individual be closely monitored for possible medical complications. If the magistrate, mental hygiene commissioner or circuit court judge presiding orders involuntary hospitalization, he or she shall include a recommendation that the individual be closely monitored in the order of commitment.
(j) The supreme court of appeals and the secretary of the department of health and human resources shall collect data and report to the Legislature at its regular annual sessions in two thousand three and two thousand four of the effects of the changes made in the mental hygiene judicial process along with any recommendations which they may deem proper for further revision or implementation in order to improve the administration and functioning of the mental hygiene system utilized in this state, to serve the ends of due process and justice in accordance with the rights and privileges guaranteed to all citizens, to promote a more effective, humane and efficient system and to promote the development of good mental health. The supreme court of appeals and the secretary of the department of health and human resources shall specifically develop and propose a statewide system for evaluation and adjudication of mental hygiene petitions which shall include payment schedules and recommendations regarding funding sources.

§27-5-3. Admission under involuntary hospitalization for examination; hearing; release.

(a) Admission to a mental health facility for examination. -- Any individual may be admitted to a mental health facility for examination and treatment upon entry of an order finding probable cause as provided in section two of this article and upon certification by one physician or one psychologist that he or she has examined the individual and is of the opinion that the individual is mentally ill and, because of such mental illness, is likely to cause serious harm to himself or herself or to others if not immediately restrained, or is addicted. Where a magistrate has ordered the temporary detention of an individual pending a hearing pursuant to the provisions of subdivision (4), subsection (b), section two of this article and the individual has been examined by a psychologist or physician and found to meet the criteria for involuntary hospitalization, such individual may be examined, with his or her consent or in the event of a medical or psychiatric emergency, and treated until the next judicial day, or for up to seventy-two hours, whichever shall first occur. The chief medical officer of said mental health facility may, with the approval of the secretary of the department of health and human resources, transfer such individual to a state hospital or to another similar type of mental health facility after determining that no less restrictive treatment alternative is suitable or available. The chief medical officer of the mental health facility admitting the individual shall forthwith make a report thereof to the secretary of the department of health and human resources.
(b) Three-day time limitation on examination. -- If said examination does not take place within three days from the date the individual is taken into custody, the individual shall be released. If the examination reveals that the individual is not mentally ill or addicted, the individual shall be released.
(c) Three-day time limitation on certification. -- The certification required in subsection (a) of this section shall be valid for three days. Any individual with respect to whom such certification has been issued may not be admitted on the basis thereof at any time after the expiration of three days from the date of such examination.
(d) Findings and conclusions required for certification. -- A certification under this section must include findings and conclusions of the mental examination, the date, time and place thereof and the facts upon which the conclusion that involuntary commitment is necessary is based.
(e) Notice requirements. -- When an individual is admitted to a mental health facility pursuant to the provisions of this section, the chief medical officer thereof shall immediately give notice of the individual's admission to the individual's spouse, if any, and one of the individual's parents or guardians, or if there be no such spouse, parents or guardians, to one of the individual's adult next of kin: Provided, That such next of kin shall not be the applicant. Notice shall also be given to the community mental health facility, if any, having jurisdiction in the county of the individual's residence. Such notices other than to the community mental health facility shall be in writing and shall be transmitted to such person or persons at his, her or their last-known address by certified or registered mail, return receipt requested.
(f) Five-day time limitation for examination and certification at mental health facility. -- After the individual's admission to a mental health facility, he or she may not be detained more than five days, excluding Sundays and holidays, unless, within such period, the individual is examined by a staff physician and such physician certifies that in his or her opinion the patient is mentally ill and is likely to injure himself or herself or others or will remain addicted if allowed to be at liberty.
(g) Ten Fifteen-day time limitation for institution of final commitment proceedings. -- If, in the opinion of the examining physician, the patient is mentally ill and because of such mental illness is likely to injure himself or herself or others or will continue to abuse a substance to which he or she is addicted if allowed to be at liberty, the chief medical officer shall, within ten fifteen days from the date of admission, institute final commitment proceedings as provided in section four of this article. If such proceedings are not instituted within such ten fifteen-day period, the patient shall be immediately released. After the request for hearing is filed, the hearing shall not be canceled on the basis that the individual has become a voluntary patient unless the mental hygiene commissioner concurs in the motion for cancellation of the hearing.
(h) Thirty-day time limitation for conclusion of all proceedings. -- If all proceedings as provided in articles three and four of this chapter are not completed within thirty days from the date of institution of such proceedings, the patient shall be immediately released.
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