Connecticut Department of Mental Health And Addiction Services Issues Legislative Update #7

Targeted News Service

HARTFORD, Conn., June 13 -- The Connecticut Department of Mental Health and Addiction Services issued the following legislative update:

The Legislature called themselves into Special Session this week to take up matters related to the implementation of the budget and to address other issues that were not taken up during the regular session. They acted on 2 bills yesterday HB 6001 and SB 501.

This update will give you a summary of items that were taken up that may be of interest to the behavioral health community.

The Legislature will hold a veto session in late June to determine if they will override any of the Governor's vetoed bills. We will provide a chart that lists the bills that passed with their Pubic Act number and the date the Governor signed the bill once the veto session has been held.

HB 6001 AN ACT IMPLEMENTING PROVISIONS OF THE STATE BUDGET FOR THE FISCAL YEAR BEGINNING JULY 1, 2012. This is the budget implementation bill.

We will highlight only the relevant sections. You can go to http://www.cga.ct.gov/2012/TOB/H/2012HB-06001-R00-HB.htm to get a copy of the entire bill.

Section 1 BUDGET ADJUSTMENTS - Makes changes to the 2013 budget including the Reduction of 12.5 million dollars from the DMHAS Medicaid Low Income Adults budget line item for fiscal year 2013 to reflect the approval and implementation of waiver to the Medicaid LIA program which will establish an assets test and limit eligibility for most 19 to 26 year olds.

Section 2 DENTAL SERVICES FOR ADULT MEDICAID RECIPIENTS - The law (1) subjects most nonemergency Medicaid dental services to prior authorization and (2) directs the DSS commissioner to limit nonemergency dental services provided to adult recipients. This latter provision includes allowing for one periodic dental exam, one dental cleaning, and one set of x-rays yearly for healthy adults. The bill provides that these dental benefit limitations apply to each client regardless of how many providers serve the client. DSS is in the process of establishing client-centered medical homes that include a dental home that coordinates a client's dental care. EFFECTIVE DATE: July 1, 2012.

Section 8 VETERANS REQUIRED TO APPLY FOR FEDERAL BENEFITS - The bill requires veterans and their families who apply for or receive Medicaid benefits to apply for any benefits for which they might be eligible through the federal Veteran's Administration (VA) or Department of Defense. VA medical benefits are available to all veterans who served honorably for at least two years in any branch of the military. The law defines veterans as individuals honorably discharged from, or released under honorable conditions from, active service in the armed forces. EFFECTIVE DATE: July 1, 2012.

Section 11 MEDICATION ADMINISTRATION BY UNLICENSED PERSONNEL - The bill permits a registered nurse (RN) to delegate the administration of medications that are not injected into patients to homemaker-home health aides who obtain certification for medication administration.

Administration may not be delegated when the prescribing physician specifies that a nurse must administer it. The law already allows residential care homes (RCHs) that admit residents requiring medication administration assistance to employ a sufficient number of certified, unlicensed personnel to perform this function in accordance with DPH regulations (CGS Section 19a-495a).

DPH Regulations

Home Health Care Agency. The bill requires the Department of Public Health (DPH) commissioner to adopt regulations to carry out the medication administration delegation provisions. The regulations must require that each home health care agency that serves clients requiring help with medication administration to:

1. adopt practices that increase and encourage client choice, dignity, and independence;

2. establish policies and procedures to ensure that an RN may delegate allowed nursing care tasks, including medication administration to a homemaker-home health aide when the RN determines that it is in the patient's best interest and the homemaker-home health aide is deemed competent to perform the task;

3. designate homemaker-home health aides to obtain certification for medication administration; and

4. ensure that the aides receive the certification.

Certification. The bill requires the regulations to establish certification requirements for medication administration and the criteria that the agencies that service clients will use in determining (1) the aides who must obtain certification and (2) education and skill training requirements, including on-going requirements. The education and skill training requirements must include initial orientation, resident rights, identifying the types of medication that unlicensed personnel may administer, behavioral health management, personal care, nutrition and food safety, and health and safety in general.

The bill requires each home health care agency to ensure that by January 1, 2013 they are allowing for delegation of nursing care tasks in home care settings and they have adopted policies for employing homemaker- home health aides to perform these tasks.

Current law requires the DPH commissioner to establish regulations governing medication administration by unlicensed personnel in RCHs. The regulations must include criteria that homes must use to determine the appropriate number of unlicensed personnel who will obtain certification. They must also establish ongoing training requirements including initial orientation, residents' rights, behavioral management, personal care, and general health and safety.

Disciplinary Action Against Licensed Nurses

An RN who delegates the medication administration task cannot be subject to disciplinary action based on the aide's performance of tasks he or she delegated to the aide unless (1) the aide is acting pursuant to the RN's instructions or (2) the RN fails to leave instructions when he or she should have done so. Additionally, the RN must (1) document in the patient's care plan that the aide can properly and safely perform the medication administration, (2) provide initial direction to the aide, and (3) provide ongoing supervision to the aide, including periodically assessing and evaluating the patient's health and safety related to the medication administration.

The bill prohibits an RN from being sued for damages for delegating medication administration to a homemaker-home health aide unless (1) the employee acts under the nurse's specific instructions or (2) the nurse fails to leave instructions when he or she should have done so.

Coercion Prohibited

The bill prohibits any person from coercing an RN into compromising patient safety by requiring him or her to delegate medication administration if the nurse's assessment of the patient documents a need for a nurse to do the administration and identifies why the need cannot be safely met through using assistive technology or medication administration by a certified homemaker-home health aide. The bill prohibits an RN who has made a reasonable determination based on such assessment that delegation may compromise patient safety from being subject to any employer reprisal or disciplinary action under the Public Health Code for refusing to delegate or refusing to provide the required training for delegation.

Implementation While Regulations Being Adopted

The bill allows the DPH commissioner to implement policies and procedures necessary to administer these provisions while in the process of adopting them in regulation, provided she publishes notice of intent to adopt in the Connecticut Law Journal within 20 days of implementation. These policies and procedures are valid until the time final regulations are adopted. EFFECTIVE DATE: July 1, 2012

Section 12 PERSONAL CARE ASSISTANTS (PCA) PERMITTED TO ADMINISTER MEDICATION - The bill provides that nothing in the Nurse Practice Act can be construed to prohibit a PCA employed by a registered homemaker-companion agency from administering medications to a competent adult who directs his or her own care and makes his or her own decisions pertaining to assessment, planning, and evaluation. EFFECTIVE DATE: July 1, 2012.

Section 13 REMOVAL OF SPECIFIC PRIOR AUTHORIZATION (PA) LIMIT - By law, the DSS commissioner must establish PA procedures under the Medicaid program for home health services. Currently, the law requires PA for (1) more than two skilled nursing care visits a week and (2) more than 14 hours of home health aide visits a week. The bill eliminates the numerical criteria for PA. And it eliminates a provision that allows providers (presumably home health agencies) to submit just one PA request a month for the same client. EFFECTIVE DATE: July 1, 2012.

Section 17 COVERAGE OF CHIROPRACTOR SERVICES FOR MEDICAID RECIPENTS - The bill allows DSS to "cover" chiropractor services for Medicaid recipients provided it does not spend more than $ 250,000 annually for this coverage. These services can be coordinated with other initiatives under the Medicaid program. The bill requires the commissioner to implement policies and procedures to carry out this provision while in the process of adopting it in regulation form provided he publishes notice of intent in the Connecticut Law Journal within 20 days of implementation. These policies and procedures are valid until the final regulations are adopted. EFFECTIVE DATE: October 1, 2012.

Section 22 DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES' (DMHAS) BEHAVIORAL HEALTH MANAGED CARE PROGRAM - The bill maintains the DMHAS commissioner's authority to operate and audit the behavioral health managed care program for recipients of the now-defunct State-Administered General Assistance program for claims and services provided through June 30, 2012. It likewise keeps the program's regulations effective as they are necessary for DMHAS to conduct program audits, including audits of (1) prior authorizations, (2) service payments, and (3) medical records. The bill requires the commissioner to analyze the audit results and identify discrepancies and errors regarding services and payments and areas that involve program implementation and operation problems. It continues the commissioner's authority to (1) recover reimbursements made to providers based on the audit findings and (2) impose progressive sanctions as she deems appropriate for any provider she finds not to be in compliance with the standards established in regulation. Providers can appeal withheld reimbursements and sanctions in accordance with the Uniform Administrative Procedures Act. EFFECTIVE DATE: Upon passage

Section 23 SECURITY DEPOSIT GUARANTEE PROGRAM - The bill expands the number of entities that can administer DSS' Security Deposit Guarantee Program. Currently, only emergency shelters that contract with DSS can help with the program's administration. The bill instead allows local or regional nonprofit corporations or social service organizations to help. Within available appropriations, this program provides security deposit guarantees (payment for any damages that occur) to landlords who rent to public assistance recipients or other people with a documented showing of need and who are living in emergency housing or have a government rental subsidy. EFFECTIVE DATE: July 1, 2012.

Section 26 WAIVER FOR MEDICAID LOW-INCOME ADULTS (LIA) - The bill directs the DSS commissioner to seek a Section 1115 Medicaid waiver to modify eligibility and coverage for LIA applicants and recipients. Specifically, the waiver would (1) establish an asset limit of $ 10,000, (2) count the income and assets of the parent of an applicant who is under age 26 if the applicant lives with that parent or is declared as a dependent for income tax purposes, and (3) limit nursing home coverage to 90 days. Currently, there is no asset limit for the program and only the applicant's income is counted. EFFECTIVE DATE: July 1, 2012.

Section 27 PRIOR AUTHORIZATION FOR PRESCRIPTION DRUGS - The bill requires the DSS commissioner, by October 1, 2012, to issue a flyer to pharmacies to distribute to Medicaid recipients who receive a one-time, 14-day supply of their prescription when prior authorization is needed and the pharmacy has not yet received the authorization. The flyer must notify the recipients that (1) prior authorization is needed for that prescription to be filled, (2) the 14-day supply is a one-time supply, and (3) they must contact the prescriber to arrange for prior authorization for a full prescription to be filled. In practice, Hewlett Packard (HP), on behalf of DSS, requests prior authorization from a prescriber when a medical practitioner has prescribed (1) a brand name drug when a chemically equivalent is available; (2) an early refill; (3) a drug that is not on DSS' preferred dug list; or (4) a drug exceeding the optimal, instead of preferred, dosage. When this occurs, the point-of-sale system at the pharmacy will return a message to the pharmacist indicating why payment has been denied. DSS has notified pharmacists that they can contact the prescriber to initiate prior authorization with HP. EFFECTIVE DATE: July 1, 2012.

Sections 28-95 BUREAU OF REHABILITATIVE SERVICES--NAME CHANGED TO DEPARTMENT OF REHABILITATION SERVICES - The bill (1) makes the Bureau of Rehabilitative Services, created by PA 11-44, a stand-alone entity rather than a bureau within DSS for administrative purposes, (2) renames it the Department of Rehabilitation Services, (3) makes the department head a commissioner instead of an executive director, and (4) makes the newly named bureau a successor authority to the previously named bureau. Under PA 11-44, the bureau was authorized to perform all of the administrative and programmatic functions of the Board of Education and Services for the Blind, the Commission on Deaf and Hearing Impaired, and other state rehabilitation services. The bill requires DSS to provide the department administrative support services until (1) the department requests that DSS no longer do so or (2) June 30, 2013, whichever is earlier. The bill makes numerous technical and conforming changes and removes obsolete language. EFFECTIVE DATE: July 1, 2012.

Section 101 COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES (CHRO) - For administrative purposes only, the bill moves CHRO from the Department of Administrative Services to the Labor Department. EFFECTIVE DATE: July 1, 2012.

Section 104 INMATES RELEASED TO NURSING HOMES - The bill generally gives the Department of Correction (DOC) commissioner the discretion to release certain inmates from custody for nursing home placement for palliative and end-of-life care, under certain conditions. DOC must supervise in the community any inmate released in this manner. The placement must be in a licensed community-based nursing home under contract with the state. Before the commissioner can authorize such a placement, the DOC medical director must determine that the inmate is suffering from a terminal condition, disease, or syndrome or is so debilitated or incapacitated by it as to (1) need continuous palliative or end-of-life care or (2) be physically incapable of presenting a danger to society.

The bill allows the DOC commissioner, as a condition of the nursing home placement, to require the medical director to periodically review and diagnose the inmate during his or her release. An inmate must be returned to DOC custody if the medical director determines that the inmate no longer meets the criteria for release described above.

The bill does not apply to inmates convicted of a capital felony, under the applicable law in effect prior to April 25, 2012, or murder with special circumstances under the law in effect on or after that date. (PA 12-5, which took effect April 25, 2012, eliminated the death penalty as a sentencing option for a capital felony committed on or after its EFFECTIVE DATE and renamed the crime of capital felony as "murder with special circumstances.") EFFECTIVE DATE: July 1, 2012.

Section 105 VETERANS' AFFAIRS AND Department of Administrative Services - The bill conforms state law to current practice by requiring the administrative services commissioner to investigate, determine, bill, and collect all charges for services covered under Medicaid or Medicare for people aided, cared for, or treated by the Department of Veterans' Affairs. EFFECTIVE DATE: July 1, 2012.

Section 110 DISPARITY STUDY - The bill transfers, from CHRO to the Connecticut Academy of Science and Engineering (CASE), responsibility for conducting a disparity study to determine whether the state's set-aside program (now called the supplier diversity program) is achieving the goal of helping small contractors and minority business enterprises (MBEs) obtain state contracts. It requires CASE to consult with CHRO and other state agencies as appropriate, in addition to consulting with DAS as under current law. In conducting the study, the bill requires CASE to provide an analysis of existing statistical data of the supplier diversity program, rather than generate its own data. It also requires that the study review the state's current supplier diversity program practices and best practices of other states or governmental entities.

Current law requires the study to at least examine (1) whether there is significant evidence of past or continuing discrimination in the way that the state executes its contracting duties and (2) the number of small contractors or MBEs that qualify under the supplier diversity program and whether they are legitimate small contractors or legitimately owned by a minority. The bill specifies that (1) these examinations must be based on available data and analysis, (2) the evidence of discrimination must be statistical, and (3) the examination of discrimination must concern the awarding of state contracts, rather than the way the state executes its contracting duties. Additionally, it removes the requirement on whether qualifying small contractors and MBEs are legitimate small contractors or legitimately owned by a minority.

The law also requires the study to examine state contracting processes to determine if they present any unintentional barriers that prevent full participation by small contractors or MBEs. The bill makes a technical change to this requirement.

Lastly, the bill delays, from January 1, 2013 to June 30, 2013, the date by which the study's findings and any recommendations for legislative action concerning the study must be submitted to the Government Administration and Elections Committee. EFFECTIVE DATE: Upon passage

Sections 112-114 & 121 DEPARTMENT OF HOUSING - The bill establishes a Department of Housing (DOH), with a commissioner as its department head, and makes it the lead agency responsible for all housing matters. It establishes an Interagency Council on Affordable Housing to advise and assist the DOH commissioner. By January 15, 2013 the council must report to the governor and joint standing committees of cognizance on (1) planning and implementing the new department and (2) the state's housing resources and delivery systems.

The bill also makes technical and conforming changes.

DOH

The bill places DOH in DECD for administrative purposes only, making it DECD's successor with respect to housing-related functions, powers, and duties (which include community development, redevelopment, and urban renewal). Any DECD order or regulation in force on January 1, 2013, continues in force and effect until amended, repealed, or superseded by law.

Commissioner's Duties and Reporting Requirement. The DOH commissioner is responsible for developing strategies to encourage housing provision in the state, including for very low-, low-, and moderate-income families. In consultation with the Interagency Council on Affordable Housing, the commissioner must review the organization and delivery of state housing programs and report to the Housing and Appropriations committees by January 15, 2013 with their recommendations.

Interagency Council on Affordable Housing

Members and Chairperson. The governor must designate the chairperson from among the 13-member council, which consists of:

1. the Social Services, Mental Health and Addiction Services, Children and Families, Correction, and Economic and Community Development commissioners, or their designees;

2. the Office of Policy and Management secretary, or his designee;

3. the Partnership for Strong Communities executive director, or his designee;

4. the Connecticut Housing Coalition executive director, or her designee;

5. the Connecticut Coalition to End Homelessness executive director, or her designee;

6. the Connecticut Housing Finance Authority executive, or his designee;

7. two members, appointed by the 10 members listed above, who are tenants receiving state housing assistance; and

8. one member, appointed by the first 10 members listed above, who is a state resident eligible to receive housing assistance.

Duties. The council must convene by July 15, 2012 to develop strategies and recommendations for implementing DOH. It must:

1. assess the housing needs of low-income individuals and families,

2. review and analyze the effectiveness of existing state programs in meeting those needs,

3. identify barriers to effective housing delivery systems, and

4. develop strategies and recommendations to enhance the availability of safe and affordable housing in communities statewide through DOH.

Report and Recommendations. By January 15, 2013, the council must report to the governor and the Appropriations, Housing, and Human Services committees on the department's implementation. The report must include recommendations on:

1. transferring programs to DOH and an implementation timeline,

2. effective changes to the state's housing delivery systems,

3. prioritizing housing resources, and

4. enhanced coordination among housing systems.

Action on Recommendations. No later than 15 days after receiving the council's report, the joint standing committees must hold a public hearing on it. No later than 30 days after receiving the report, the committees must let the council know whether they approve or disapprove of the report's recommendations or want to modify them.

Conference Committee. If the joint standing committees do not agree to accept the report, their chairpersons must appoint a nine-member conference committee consisting of three members from committee. Each committee's chairpersons must appoint at least one minority party member.

The conference committee must vote to accept or reject the interagency council's report and give the results to each joint standing committee. The conference committee's report and cannot be amended.

If a joint standing committee rejects the conference committee's report, the council's recommendations are deemed approved. If all three approve the report, they must let the council know of any modifications to its recommendations. DOH must implement the final approved recommendations. EFFECTIVE DATE: Upon passage

Section 142 COMPETENCY TO STAND TRIAL - By law, a court may order a defendant it finds incompetent to stand trial to the custody of the Department of Mental Health and Addiction Services

(DMHAS) commissioner for the purpose of rendering him or her competent. These defendants are placed in a mental health facility unless they are too violent to be accommodated.

The bill expands the exception to placement, specifies that those defendants not placed remain in the Department of Correction's (DOC) custody, and outlines the responsibilities of commissioners of both departments with respect to them.

The bill also permits a court to require notice if a defendant found incompetent to stand trial because of an intellectual disability is released from custody before the statute of limitations for prosecuting him or her expires.

Defendants Placed In Custody of DMHAS

The bill expands the DMHAS commissioner's authority to refuse to place certain defendants in mental health facilities.

Under current laws, he does not have to place a violent defendant in a mental institution that lacks the facility, security, and trained staff to accommodate him or her. The bill, instead, allows the commissioner to exclude any defendant from a hospital for psychiatric disabilities who (1) presents a significant security, safety, or medical risk and (2) the commissioner, in consultation with the DOC commissioner, determines that the staff, facility, or security cannot accommodate the defendant. Any defendant not placed in such a hospital remains in DOC custody. In these cases, the DOC is responsible for the defendant's medical and psychiatric care. DMHAS is responsible for:

1. providing other services to restore his or her competency,

2. (a) submitting to the court reports on the defendant's progress and (b) a written progress report to the medical professionals who initially decided the defendant's competency if he or she attains competency or a court determines he or she will not attain competency within the placement period, and

3. providing testimony at any hearing to reconsider the defendant's competency.

A court must determine whether to involuntarily medicate the defendant if it finds that he or she (1) will not attain competency during the placement period without psychiatric medication and (2) is unable or unwilling to consent to taking the medication. The court must appoint a health care guardian to represent the defendant and hold a hearing before making this decision.

Release from Custody

If a defendant is a person with an intellectual disability and a court determines at any time that he or she is not likely to attain competency or is not competent at the end of the placement period, the law allows a court to order him or her placed in the custody of the developmental services commissioner for civil commitment. The bill allows the court to order the commissioner to notify it if the department releases the defendant before the statute of limitations for prosecuting him or her has expired. EFFECTIVE DATE: October 1, 2012.

Section 199 JOB EXPANSION TAX CREDIT - The bill extends the $ 900 per month job expansion tax credit to employers hiring people:

1. receiving services from DMHAS or

2. participating in DSS-funded or -operated programs providing employment opportunities and day services.

An employer qualifies for the credit if these new hires work at least 20 hours per week for at least 48 weeks in a calendar year.

By law, the credits are administered by the DECD commissioner. The bill requires her to consult with the DMHAS or DSS commissioner, as applicable, about verifying whether a newly hired employee received such services.

By law, the credits apply against the insurance premium, corporation business, utility company, or personal income tax and are available to businesses that create new jobs and hire certain Connecticut residents to fill them. The credit is $500 per month for each new employee that lives in Connecticut or $900 per month if, when hired, the new employee is:

1. receiving unemployment compensation benefits or has not had a full-time job since exhausting his or her unemployment benefit,

2. a current armed forces member or one who was honorably discharged or released from active service, or

3. receiving vocational rehabilitation services from the Bureau of Rehabilitation Services.

An employer who hires a person receiving unemployment compensation benefits or rehabilitation services qualifies for the $900 credit if the new employee works at least 20 hours per week for at least 48 weeks in a calendar year.

A business meeting these hiring criteria qualifies for the credit only for jobs it creates between January 1, 2012, and January 1, 2014. To be eligible, the business must (1) have been in business for 12 consecutive months before applying for the credits and (2) liable for any of the taxes to which the credits apply. Further, the jobs must not have existed in Connecticut before the application and be filled by eligible employees. EFFECTIVE DATE: July 1, 2012 and applicable to income or taxable years commencing on or after January 1, 2012.

Sections 218 & 219 CONNECTICUT HEALTH INSURANCE EXCHANGE BOARD MEMBERS AND EMPLOYEES - The bill makes the Healthcare Advocate a voting member of the Connecticut Health Insurance Exchange board. She is currently an ex-officio nonvoting board member. The bill also:

1. increases, from six to seven, the number of board members that constitutes a quorum;

2. expands outside employment and affiliations restrictions applicable to exchange board members and staff;

3. lengthens the term of the House majority leader's health care economist board appointee from one year to two years;

4. allows exchange employees to enroll in the state employee health plan if the exchange pays the enrollment costs; and

5. makes technical changes.

Outside Employment and Affiliations Restrictions

The law subjects exchange board members and staff to certain restrictions relating to their employment and affiliations. The bill expands upon these.

Specifically, under current law, board appointees cannot be employed by, serve as a consultant to, be a board member of, be affiliated with, or represent an insurer, insurance producer or broker, health care provider, health care facility, or health or medical clinic. The bill extends this restriction to all board members and staff.

Under current law, board members and staff cannot be members, board members, or employees of a trade association of insurers, insurance producers or brokers, health care providers, health care facilities, or health or medical clinics. The bill prohibits them from also being consultants to such trade associations.

In addition to the restrictions described above, the law prohibits board members and staff from being health care providers unless they receive no compensation as providers and have no ownership interest in a professional health care practice. A staff member may also be a health care provider if the exchange's chief executive officer approves the hiring to fill an area of needed expertise.

Board members may engage in private employment or in a profession or business, subject to any federal or state laws, regulations, and rules regarding ethics and conflict of interest.

The law specifies that it does not constitute a conflict of interest for a trustee, director, partner, or officer of any person, firm, or corporation, or any individual having a financial interest in the person, firm, or corporation, to serve as a board member. But such a member must abstain from any deliberation, action, or vote relating to the person, firm, or corporation. EFFECTIVE DATE: Upon passage

Section 250 P-CARD LIMIT INCREASE - The bill raises, from $10,000 to $250,000, the limit on state agency purchasing card (P-Card) transactions and purchases. It authorizes agencies to exceed this limit if they receive written approval from the comptroller and DAS commissioner. By law, the comptroller may allow budgeted state agencies to use P-Cards instead of separate purchase orders for approved state purchases.

The P-Card program is a credit card program that DAS and the Office of the State Comptroller co-sponsor. Each agency and state employee receiving a P-Card is bound by the limits, policies, and procedures outlined in The State of Connecticut Purchasing Card Program Cardholder Work Rules and the Agency Purchasing Card Coordinator Manual. Under the program, individual agencies prescribe approved state purchases and are liable for all authorized charges made by its employees. Individuals are responsible for repaying improper charges and are personally liable for card misuse. EFFECTIVE DATE: July 1, 2012.

Sections 271 & 284 JUVENILE COMPETENCY - The bill creates a procedure, similar to that used in adult court, when there is a question about the competency of a child charged with a delinquent or Family With Service Needs (FWSN) offense.

Under existing law and the bill, children and youth (hereafter "children" or "child") are presumed to be competent. But if it appears at any time during a juvenile court delinquency, FWSN, or other court proceeding that the child may not be competent, the law and bill prohibit his or her being tried, convicted, adjudicated, or subject to any court disposition. The bill states that transfers from juvenile to adult court dockets are not dispositions and are therefore permissible, even if the child is not competent.

Court Hearing to Determine if Mental Examination is Warranted

Under the bill, the child's attorney or the prosecutor may request a hearing to determine if a competency examination is warranted. The judge can also raise this question on his or her own motion. The bill requires that the child be represented by an attorney whenever the court is considering a request for such an examination. (Existing law entitles children to legal representation throughout delinquency and FWSN proceedings.).

Under the bill, the party raising the question of competency bears the burden going forward with the evidence and proving, by a preponderance of the evidence, that the child is not competent. The prosecutor bears the burden of going forward with the evidence when the judge raises the issue. The judge may call his or her own witnesses and ask questions at this proceeding.

Competency Examinations

Under the bill, the court must order a competency examination after the initial hearing if a preponderance of the evidence shows that (1) the examination is justified and (2) probable cause exists to believe that the child committed the offense with which he or she is charged. The bill requires that the examination be conducted, within available appropriations, by (1) a three-person clinical team constituted under policies and procedures established by the chief court administrator or (2) if the parties agree, a physician specializing in psychiatry with experience in conducting forensic interviews and in child and adult psychiatry ("psychiatrist").

The bill requires clinical teams to be composed of a clinical psychologist with experience in child and adolescent psychiatry and two of the following: a (1) licensed clinical social worker, (2) child psychiatric nurse clinical specialist holding a master's degree in nursing, or (3) physician specializing in psychiatry. At least one must have experience in conducting forensic interviews and at least one must have experience in child and adolescent psychiatry.

At the child's expense, the bill allows him or her to select a mental health professional with one of the above qualifications to observe the examination. If the child is represented by an attorney appointed through the Public Defender Services Commission, the Chief Public Defender's Office will provide an observer. In such cases, the bill also allows a social worker employed by the commission to attend the examination.

Examinations must be completed within 15 business days of the date they were ordered, unless the court finds good cause for granting more time. The bill directs the court to resume delinquency or FWSN matters whenever it finds the child competent.

Examination Reports. The bill requires the clinical team or psychiatrist to prepare, sign, and file its report within 21 business days of the date of the court's examination order. The report need not be notarized, but must address the child's (1) ability to understand the proceedings or (2) assist in his or her own defense.

If the opinion of the clinical team or psychiatrist is that the child does not meet one or both of the above criteria, the report must also include:

1. a determination if there is a substantial probability that the child will attain or regain competency within 90 days of a court-ordered intervention and

2. the nature and type of recommended intervention and the least restrictive setting possible for implementing it.

The bill requires the court clerk to send the attorneys representing the state and child copies of the report at least 48 hours in advance of the competency hearing.

Competency Hearing

The bill requires the court to hold an evidentiary competency hearing within 10 business days of receipt of the clinical report. The child may waive his or her rights to this hearing if none of the examiners found the child incompetent.

At the hearing, either party can introduce the examination report or other evidence regarding a child's competency. If the report is introduced as evidence, the bill requires at least one member of the clinical team or the psychiatrist, as appropriate, to be present to explain the basis for the report's determinations. The prosecutor and child can jointly waive this requirement.

Competency--Restoration Considerations

If the court finds that the child is incompetent, it must decide if (1) there is a substantial probability that competency will be restored within 90 days of a court-ordered intervention and (2) any proposed intervention is appropriate. To make the latter finding, the bill allows it to consider:

1. the nature and circumstances of the alleged offense,

2. how long the clinical team or psychiatrist estimate it will take to restore the child to competence,

3. if the child poses a substantial risk of reoffending, and

4. if he or she can receive community-based services or treatment that could prevent reoffending.

When Competency Restoration is Not Likely. If the judge finds there is not a substantial probability that the child will attain or regain competency within 90 days or that the recommended intervention is not appropriate, it can order one of the following:

1. dismissal, if the child is charged with a delinquent act or FWSN offense;

2. that the Department of Children and Families (DCF) assume temporary custody and notify the public defender's office, which must assign an attorney to serve as the child's guardian ad litem (representative of the child's best interest) and investigate whether an abuse and neglect petition should be filled on the child's behalf; or

3. that DCF or some other person, agency, mental health facility or treatment program, or the child's probation officer conduct or obtain an appropriate assessment and, where appropriate, propose a plan for services that appropriately address the child's needs in the least restrictive setting available and appropriate.

Under the bill, any plan for services may include a provision allowing for interagency collaborations in order to transition the child to adult service providers when he or she reaches age 18.

When the court chooses to issue an order under options 2 or 3 above, it must hold a hearing within 10 business days to review the order of temporary custody or any recommendations made by DCF and the child's probation officer, attorney, and guardian ad litem.

When Competency Restoration is Likely. If the court finds a substantial probability that the child will attain or regain competency within 90 days if provided an appropriate intervention, the bill requires it to schedule an intervention implementation hearing within five business days.

Under the bill, such interventions must (1) not exceed 90 days, unless extended for an additional 90 days under criteria the bill establishes; and (2) be provided by DCF, unless the child's parents agree to pay for these services to be administered by another appropriate person, agency, mental health facility, or treatment program that agrees to provide appropriate intervention services in the least restrictive setting available and to comply with the bill's competency provisions. (It is unclear to which provisions the bill is referring.)

Before the hearing, the court must notify the DCF commissioner or her designee or the alternative service provider that it will be ordering an intervention at the hearing. It must provide the appropriate entity a copy of the clinical team or psychiatrist's report. Before the hearing, the participating entity must inform the court how it proposes to implement the intervention plan.

At the hearing, the court must review the clinical report and order an appropriate intervention lasting no longer than 90 days and to be provided in the least restrictive setting available. The court must base its determination of "appropriateness" on the same criteria the bill requires it to use in making this decision after the initial competency examination (see above). The court must also set a hearing date to reconsider the child's competency. The hearing cannot be held for at least 10 business days after the intervention period expires.

At least 10 business days before the scheduled hearing, the bill requires the DCF commissioner or designee or the alternative treatment provider to file a report with the clinical team or psychiatrist regarding the progress of its intervention efforts. Under the bill, the same clinical team or psychiatrist must then reassess the child. If one of these individuals is not available, the bill authorizes the appointment of a new team that, where possible, includes at least one of the original members. The newly-appointed health care providers must have the same professional credentials as the original members, and must be given access to the intervention services provider's clinical information.

The bill requires the team or psychiatrist to submit a court report reassessing the child's competency. The report must include:

1. the clinical findings of the intervention service provider and the facts upon which the findings are based;

2. the team's or examining physician's opinion as to whether the child has attained or regained competency or is making progress towards restoration within the 90 days covered by the court's order; and

3. other information the court requests, including what method of intervention is being used and the type, dosage, and effect of any medication the child is being given.

The court must hold a hearing within two business days of the date on which the reassessment report was filed. The hearing's purpose is to determine if the child attained or regained competency during the intervention period. If the child remains incompetent, the court must determine whether further efforts are appropriate. It must consider the same criteria described above.

If the court finds that further efforts to attain or regain competency are appropriate, it must order a new competency restoration period lasting no more than 90 days. If it finds that further intervention is not appropriate or the child remains incompetent when the second period expires, it must enter an order meeting the same requirements as those the bill requires in situations where competency restoration is not likely or appropriate (see above).

When DCF Finds the Child to Be Abused or Neglected

If DCF substantiates a claim of abuse or neglect or the court approves a plan for services, the bill permits the court to dismiss the delinquency or FWSN complaint or order that the prosecution be suspended for up to 18 months. It may also direct DCF to provide periodic reports while the prosecution is suspended to ensure that the child is receiving appropriate services.

If the child or his or her parent or guardian do not comply with the plan for services, the court may hold a hearing to decide whether to file its own DCF petition. Otherwise, it must dismiss the delinquency or FWSN matter on the earlier of the date on which (1) it finds that the suspension is no longer necessary or (2) the 18-month suspension period expires. These previsions in the bill apparently apply whether or not the child is competent. EFFECTIVE DATE: October 1, 2012.

SB 501 AN ACT IMPLEMENTING CERTAIN PROVISIONS CONCERNING GOVERNMENT ADMINISTRATION. This is the other piece of legislation that was voted on during the Special Session. Most of the sections were not related to behavioral health issues.

You can go to http://www.cga.ct.gov/2012/TOB/S/2012SB-00501-R00-SB.htm to get a copy of the entire bill.

Section 1 CHILD ADVOCATE - By law, the advisory committee to the Office of the Child Advocate must prepare and submit to the governor a list of candidates for child advocate upon a vacancy in the position. The committee must meet to consider and interview successor candidates and submit a list of between five and seven individuals, ranked in order of preference, for appointment to the governor within 60 days of the vacancy. The bill requires the committee to submit such a list to the governor by July 31, 2012 for a vacancy occurring after January 1, 2012 and before the bill's passage. The position is currently vacant. EFFECTIVE DATE: Upon passage

Section 128 SOCIAL INNOVATION INVESTMENT - The bill allows the OPM secretary or his designee to enter into an outcome-based performance contract with a social innovation investment enterprise for the purpose of accepting specified federal funding (a U. S. Department of Justice FY 12 Second Chance Act Adult Offender Reentry Program Demonstration Category 2 Implementation grant).

Under the bill, a social innovation investment enterprise is an entity created to coordinate nonprofit service providers' delivery of preventive social programs. The entity must have the capability to:

1. create a social investment vehicle (an investment product the enterprise establishes to raise private investment capital),

2. enter into outcome-based performance contracts (see below), and

3. contract with service providers.

The contract must (1) establish outcome-based performance standards for nonprofit service providers' preventive social programs and (2) provide that investors in a social investment vehicle receive a return of their investment and earnings on it only if the enterprise meets such standards. The contract can provide for payments from the social innovation account established by the bill to the enterprise, investors, or both.

Under the bill, when the secretary enters such a contract with a social innovation investment enterprise, he must comply with the law's requirements regarding privatization contracts (e.g., he must conduct a cost-benefit analysis and a business case meeting specified criteria).

The bill also establishes a separate, non-lapsing social innovation account in the General Fund. The account consists of any money the law requires to be deposited in it, and any interest accruing to it. The bill allows funds to be transferred from the general fund to the social innovation account.

The bill requires the OPM secretary to spend the account funds to facilitate moderate and high-risk offenders' reentry into the community. The secretary can apply for and accept public or private gifts, grants, or donations to enable the account to be a source of payments to investors in a social investment vehicle. EFFECTIVE DATE: July 1, 2012

Section 152 ELECTRONIC GOVERNMENT PROGRAMS AND SERVICES

The bill allows the OPM secretary, regardless of other state laws, to authorize state agencies to contract with private and nonprofit entities to facilitate the public's electronic utilization of government programs and services. Before seeking authorization to enter into such an agreement, an agency must use competitive bidding or competitive negotiation to select entities to participate in the agreements. The agency must provide notice of a bid solicitation or request for proposals in a form and manner that the secretary determines will maximize public participation in the bidding or negotiation process.

Under the bill, the agreements may allow the private or nonprofit entity to collect applicable statutory or regulatory fees owed to the state and remit such amounts as defined in law. The bill allows the entity to charge an administrative fee, which must be deposited into the General Fund, but the Finance Advisory Committee must approve any administrative fee for electronically utilizing government programs or services.

The bill requires agreements to comply with the Freedom of Information Act and ensure that the public can still use non-electronic means to access government programs and services. It prohibits the OPM secretary from authorizing agreements that adversely affect people's ability to apply for or receive assistance or benefits from the Department of Social Services. EFFECTIVE DATE: July 1, 2012.

Accessing Information via the Connecticut General Assembly Web Page:

If you wish to get the details/status on a bill, read the text of a bill, or check on committee agendas or upcoming events in the Bulletin, log onto the Connecticut General Assembly web page at:

http://www.cga.ct.gov

If you wish to look up committee agendas or check upcoming events in the Bulletin, these can be accessed on that same page by scrolling down and clicking on the appropriate item.

If you are seeking info on a specific bill, type the bill number in center box (on top of page) - just the actual number, you do not need S.B. or H.B. - and click on "GO." The page which will come up shows the bill history, summary, etc. for that bill. If you wish to read the bill text, scroll down the page, and click on the bill text, and the bill will come up on the screen.

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Copyright:	(c) 2012 Targeted News Service
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