HF 448 (LSB 2470YH (3) 87)

HOUSE FILE 448

BY  CARLIN

A BILL FOR

An Act relating to the involuntary commitment of a person with an intellectual disability who presents a danger to self or others, and making penalties applicable.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 222.2, Code 2017, is amended by adding the following new subsections:
   NEW SUBSECTION.  2A.  “Chemotherapy” means the same as defined in section 229.1.
   NEW SUBSECTION.  2B.  “Clerk” means the clerk of the district court.
   NEW SUBSECTION.  2C.  “Danger to self or others” describes the condition of a person with an intellectual disability who, because of that intellectual disability, meets any of the following criteria:
   a.  Is likely to physically injure the person’s self or others if allowed to remain at liberty without treatment.
   b.  Is likely to inflict serious emotional injury on the person’s family or others who lack a reasonable opportunity to avoid contact with the person if the person is allowed to remain at liberty without treatment.
   c.  Is unable to fulfill the basic needs of the person including but not limited to nourishment, clothing, essential medical care, or shelter so that it is likely that the person will suffer physical injury, physical debilitation, or death.
   NEW SUBSECTION.  5A.  “Mental health professional” means the same as defined in section 228.1.
   NEW SUBSECTION.  5B.  “Physician” means a physician licensed under chapter 148.
   NEW SUBSECTION.  5C.  “Psychologist” means a psychologist licensed under chapter 154B.
   NEW SUBSECTION.  6A.  “Respondent” means any person against whom an application has been filed under section 222.93, but who has not been finally ordered committed for full-time custody care and treatment in a state resource center or an appropriate public or private facility.
   NEW SUBSECTION.  6B.  “Serious emotional injury” means the same as defined in section 229.1. 
    Sec. 2.  NEW SECTION.  222.93  Application for order of involuntary commitment.
   1.  Proceedings for the involuntary commitment of a person with an intellectual disability who presents a danger to self or others may be commenced by any interested person by filing a verified application with the clerk of the county where the respondent is presently located, or in which the respondent’s place of residence is located. The clerk, or the clerk’s designee, shall assist the applicant in completing the application.
   2.  The application shall state the applicant’s belief that the respondent is a person with an intellectual disability who presents a danger to self or others.
   3.  The application shall be accompanied by any of the following:
   a.  A written statement of a physician or psychologist in support of the application.
   b.  One or more supporting affidavits otherwise corroborating the application.
   c.  Corroborative information obtained and reduced to writing by the clerk or the clerk’s designee, but only when circumstances make it infeasible to comply with, or when the clerk considers it appropriate to supplement the information supplied pursuant to either paragraph “a” or “b”.
    Sec. 3.  NEW SECTION.  222.94  Service of notice upon respondent.
   Upon the filing of an application pursuant to section 222.93, the clerk shall docket the case and immediately notify a district judge, district associate judge, or magistrate who is admitted to the practice of law in this state, who shall review the application and accompanying documentation. If the application is adequate as to form, the court may set a time and place for a hearing on the application, if feasible, but the hearing shall not be held less than forty-eight hours after notice to the respondent unless the respondent waives such minimum prior notice requirement. The court shall direct the clerk to send copies of the application and supporting documentation, together with a notice informing the respondent of the procedures required by this chapter, to the sheriff or the sheriff’s deputy for immediate service upon the respondent. If the respondent is taken into custody under section 222.99, service of the application, documentation, and notice upon the respondent shall be made at the time the respondent is taken into custody.
    Sec. 4.  NEW SECTION.  222.95  Involuntary proceedings —— minors —— jurisdiction.
   The juvenile court has exclusive original jurisdiction in proceedings concerning a minor for whom an application is filed under section 222.93. In proceedings concerning a minor’s involuntary commitment or treatment, the term “court”, “judge”, or “clerk” means the juvenile court, judge, or clerk.
    Sec. 5.  NEW SECTION.  222.96  Procedure after application filed.
   As soon as practicable after the filing of an application pursuant to section 222.93, the court shall do all of the following:
   1.  Determine whether the respondent has an attorney who is able and willing to represent the respondent in the commitment proceeding, and if not, whether the respondent is financially able to employ an attorney and capable of meaningfully assisting in selecting one. In accordance with those determinations, the court shall if necessary allow the respondent to select, or shall assign an attorney for the respondent. If the respondent is financially unable to pay an attorney, the attorney shall be compensated by the mental health and disability services region at an hourly rate to be established by the regional administrator for the county in which the proceeding is held in substantially the same manner as provided in section 815.7.
   2.  Cause copies of the application and supporting documentation to be sent to the county attorney or the county attorney’s attorney-designate for review.
   3.  Issue a written order which shall do all of the following:
   a.  If not previously done, set a time and place for a commitment hearing, which shall be at the earliest practicable time not less than forty-eight hours after notice to the respondent, unless the respondent waives such minimum prior notice requirement.
   b.  Order an examination of the respondent, prior to the hearing, by one or more physicians or psychologists who shall submit a written report on the examination to the court as required by section 222.98.
    Sec. 6.  NEW SECTION.  222.97  Respondent’s attorney informed.
   The court shall direct the clerk to furnish at once to the respondent’s attorney copies of the application filed pursuant to section 222.93 and the supporting documentation, and of the court’s order issued pursuant to section 222.96, subsection 3. If the respondent is taken into custody under section 222.99, the attorney shall also be advised of that fact. The respondent’s attorney shall represent the respondent at all stages of the proceedings, and shall attend the commitment hearing.
    Sec. 7.  NEW SECTION.  222.98  Examination report.
   1.  a.  An examination of the respondent shall be conducted by one or more physicians or psychologists, as required by the court’s order issued pursuant to section 222.96, subsection 3, within a reasonable time. If the respondent is detained pursuant to section 222.99, subsection 1, paragraph “b”, the examination shall be conducted within twenty-four hours. If the respondent is detained pursuant to section 222.99, subsection 1, paragraph “a” or “c”, the examination shall be conducted within forty-eight hours. If the respondent so desires, the respondent shall be entitled to a separate examination by a physician or psychologist of the respondent’s own choice. The reasonable cost of the examinations shall, if the respondent lacks sufficient funds to pay the cost, be paid by the regional administrator from mental health and disability services region funds upon order of the court.
   b.  A physician or psychologist conducting an examination pursuant to this section may consult with or request the participation in the examination of any mental health professional, and may include with or attach to the written report of the examination any findings or observations by any mental health professional who has been so consulted or has so participated in the examination.
   c.  If the respondent is not taken into custody under section 222.99, but the court is subsequently informed that the respondent has declined to be examined by the physician or psychologist pursuant to the court order, the court may order such limited detention of the respondent as is necessary to facilitate the examination of the respondent by the physician or psychologist.
   2.  A written report of the examination by the court-designated physician or psychologist shall be filed with the clerk prior to the time set for hearing. A written report of any examination by a physician or psychologist chosen by the respondent may be similarly filed. The clerk shall immediately do all of the following:
   a.  Cause the report or reports to be shown to the judge who issued the order requiring the examination.
   b.  Cause the respondent’s attorney to receive a copy of the report of the court-designated physician or psychologist.
   3.  If the report of the court-designated physician or psychologist is to the effect that the intellectually disabled individual does not present a danger to self or others, the court may without taking further action terminate the proceeding and dismiss the application on its own motion and without notice.
   4.  If the report of the court-designated physician or psychologist is to the effect that the respondent is a person with an intellectual disability who presents a danger to self or others, the court shall schedule a hearing on the application as soon as possible. The hearing shall be held not more than forty-eight hours after the report is filed, excluding Saturdays, Sundays, and holidays, unless an extension for good cause is requested by the respondent, or as soon thereafter as possible if the court considers that sufficient grounds exist for delaying the hearing.
    Sec. 8.  NEW SECTION.  222.99  Judge may order immediate custody.
   1.  If the applicant requests that the respondent be taken into immediate custody and the judge, upon reviewing the application and accompanying documentation, finds probable cause to believe that the respondent has an intellectual disability and is likely to injure the respondent’s self or others if allowed to remain at liberty, the judge may enter a written order directing that the respondent be taken into immediate custody by the sheriff or the sheriff’s deputy and be detained until the commitment hearing. The commitment hearing shall be held no more than five days after the date of the order, except that if the fifth day after the date of the order is a Saturday, Sunday, or a holiday, the hearing may be held on the next succeeding business day. If the expenses of a respondent are payable in whole or in part by a mental health and disability services region, for a placement in accordance with paragraph “a”, the judge shall give notice of the placement to the regional administrator for the respondent’s county of residence, and for a placement in accordance with paragraph “b” or “c”, the judge shall order the placement in a public or private facility designated through the regional administrator for the respondent’s county of residence. The judge may order the respondent detained for the period of time until the hearing is held, and no longer, in accordance with paragraph “a”, if possible, and if not then in accordance with paragraph “b”, or, only if neither of these alternatives is available, in accordance with paragraph “c”. Placement may be:
   a.  In the custody of a relative, friend, or other suitable person who is willing to accept responsibility for supervision of the respondent, and the respondent may be placed under such reasonable restrictions as the judge may order including but not limited to restrictions on or a prohibition of any expenditure, encumbrance, or disposition of the respondent’s funds or property.
   b.  In a suitable public or private facility within or without the state, approved by the director of human services, which facility shall be informed of the reasons why immediate custody has been ordered and may provide treatment which is necessary to preserve the respondent’s life, or to appropriately control behavior by the respondent which is likely to result in physical injury to the respondent or others if allowed to continue, but shall not otherwise provide treatment to the respondent without the respondent’s consent.
   c.  In a state resource center or to a special unit, provided that detention in a jail or other facility intended for confinement of those accused or convicted of crime shall not be ordered.
   2.  The clerk shall furnish copies of any orders to the respondent and to the applicant if the applicant files a written waiver signed by the respondent.
    Sec. 9.  NEW SECTION.  222.100  Hearing procedure —— findings.
   1.  At the commitment hearing, evidence in support of the contentions made in the application shall be presented by the county attorney. During the hearing the applicant and the respondent shall be afforded an opportunity to testify and to present and cross-examine witnesses, and the court may receive the testimony of any other interested person. The respondent has the right to be present at the hearing. If the respondent exercises that right and has been medicated within twelve hours, or such longer period of time as the court may designate, prior to the beginning of the hearing or an adjourned session thereof, the judge shall be informed upon convening of the hearing of that fact and of the probable effects of the medication.
   2.  All persons not necessary for the conduct of the hearing shall be excluded, except that the court may admit persons having a legitimate interest to attend the hearing. Upon motion of the county attorney, the judge may exclude the respondent from the hearing during the testimony of any particular witness if the judge determines that the witness’s testimony is likely to cause the respondent severe emotional trauma.
   3.  The respondent’s welfare shall be paramount and the hearing shall be conducted in as informal a manner as may be consistent with orderly procedure, but consistent therewith the issue shall be tried as a civil matter. Such discovery as is permitted under the Iowa rules of civil procedure shall be available to the respondent. The court shall receive all relevant and material evidence which may be offered and need not be bound by the rules of evidence. There shall be a presumption in favor of the respondent, and the burden of evidence in support of the contentions made in the application shall be upon the applicant.
   4.  The physician or psychologist who examined the respondent shall be present at the hearing unless the court for good cause finds that the physician’s or psychologist’s presence is not necessary. The applicant, respondent, and the respondent’s attorney may waive the presence or the telephonic appearance of the physician or psychologist who examined the respondent and agree to submit as evidence the written report of the physician or psychologist. The respondent’s attorney shall inform the court if the respondent’s attorney reasonably believes that the respondent, due to diminished capacity, cannot make an adequately considered waiver decision. “Good cause” for finding that the testimony of the physician or psychologist who examined the respondent is not necessary may include but is not limited to such a waiver. If the court determines that the testimony of the physician or psychologist is necessary, the court may allow the physician or the psychologist to testify by telephone.
   5.  The court shall deny the application and terminate the commitment hearing if upon completion of the hearing the court does not find by clear and convincing evidence that the respondent is a person with an intellectual disability who presents a danger to self or others.
   6.  If the respondent is not taken into custody under section 222.99, but the court subsequently finds good cause to believe that the respondent is about to depart from the jurisdiction of the court, the court may order such limited detention of the respondent as is authorized by section 222.99 and is necessary to ensure that the respondent will not depart from the jurisdiction of the court without the court’s approval until the proceeding relative to the respondent has been concluded.
   7.  The clerk shall furnish copies of any orders to the respondent and to the applicant if the applicant files a written waiver signed by the respondent.
    Sec. 10.  NEW SECTION.  222.101  Commitment order.
   1.  Upon completion of the commitment hearing the court shall commit the respondent to the custody of the superintendent of a state resource center if it is established by clear and convincing evidence that the respondent is a person with an intellectual disability who presents a danger to self or others.
   2.  The superintendent shall coordinate with the regional administrator for the respondent’s county of residence in identifying any public or private facilities, either within or without the state, which would be an appropriate alternative to the continued placement of the respondent in the state resource center. If an appropriate public or private facility is available and is willing to accept placement of the respondent, the superintendent may transfer the respondent to that public or private facility.
   3.  The superintendent of a state resource center in coordination with the regional administrator for the respondent’s county of residence may modify the placement of the respondent as appropriate.
   4.  The superintendent shall report to the court any changes in the placement of the respondent.
    Sec. 11.  NEW SECTION.  222.102  Contested placement —— notice and hearing.
   1.  The respondent or the regional administrator of the respondent’s county of residence may challenge the superintendent’s placement of the respondent. A request for a placement hearing may be signed by the respondent, the respondent’s next friend, guardian, or attorney or by the regional administrator of the respondent’s county of residence.
   2.  a.  A placement hearing shall be held no sooner than four days and no later than seven days after the request for the placement hearing is filed unless otherwise agreed to by the parties.
   b.  The respondent may be transferred to the placement designated by the superintendent unless a request for hearing is filed prior to the transfer. If the request for a placement hearing is filed prior to the transfer, the court shall determine where the respondent shall be detained until the date of the hearing. 
   c.  If the respondent’s attorney has withdrawn, the court shall appoint an attorney for the respondent in the manner described in section 222.96.
   3.  Time periods shall be calculated for the purposes of this section excluding weekends and official holidays.
   4.  If a respondent’s expenses are payable in whole or in part by a county, notice of a placement hearing shall be provided to the county attorney and the regional administrator of the respondent’s county of residence. At the hearing, the county attorney may present evidence regarding appropriate placement.
   5.  In a placement hearing, the court shall determine a placement for the respondent taking into consideration the evidence presented by all the parties.
   6.  A placement made pursuant to an order entered under this section shall be considered to be authorized through the regional administrator of the respondent’s county of residence.
    Sec. 12.  NEW SECTION.  222.103  Discharge and termination of proceedings.
   1.  When the condition of a respondent committed under section 222.101, subsection 1, is such that in the opinion of the superintendent the respondent no longer requires commitment, the superintendent shall tentatively discharge the respondent and immediately report that fact to the court which ordered the respondent’s commitment.
   2.  Upon receiving the report, the court shall do either of the following:
   a.  Issue an order confirming the respondent’s discharge from custody and terminating the proceeding pursuant to which the order of commitment was issued.
   b.  Review the order committing the respondent. If the court reviews the order of commitment and continues the commitment, the court must find that the requirements for commitment under section 222.101, subsection 1, continue to apply. 
    Sec. 13.  NEW SECTION.  222.104  Escape from custody.
   A person who is committed to a state resource center or public or private facility under section 222.99 or 222.101 shall remain at the state resource center or public or private facility unless discharged or otherwise permitted to leave by the court, the superintendent of the state resource center, or the administrator of the public or private facility. If a person placed at a state resource center or public or private facility leaves the state resource center or public or private facility without having been discharged or without permission, the superintendent or person in charge of the public or private facility may notify the sheriff of the person’s absence and the sheriff shall take the person into custody and return the person promptly to the state resource center or public or private facility.
    Sec. 14.  NEW SECTION.  222.105  Status of respondent during appeal.
   If a respondent appeals to the supreme court from a finding that sustains the contention that the respondent is a person with an intellectual disability who presents a danger to self or others, and the respondent was previously ordered taken into immediate custody under section 222.99 or has been placed in a state resource center or public or private facility for appropriate treatment under section 222.101 before the court is informed of intent to appeal its finding, the respondent shall remain in custody as previously ordered by the court, the time limit stated in section 222.99 notwithstanding, or shall remain in the state resource center or public or private facility, subject to compliance by the state resource center or public or private facility with sections 222.101 through 222.104, as the case may be, unless the supreme court orders otherwise. If a respondent appeals to the supreme court regarding a placement order, the respondent shall remain in placement unless the supreme court orders otherwise.
    Sec. 15.  NEW SECTION.  222.106  Status of respondent if commitment is delayed.
   When the court directs that a respondent who was previously ordered taken into immediate custody under section 222.99 be placed in a state resource center or public or private facility for appropriate treatment under section 222.101, and no suitable state resource center or public or private facility can immediately admit the respondent, the respondent shall remain in custody as previously ordered by the court, the time limit stated in section 222.99 notwithstanding, until a suitable state resource center or public or private facility can admit the respondent. The court shall take appropriate steps to expedite the admission of the respondent to a suitable state resource center or public or private facility at the earliest feasible time.
    Sec. 16.  NEW SECTION.  222.107  Commitment —— emergency procedure. 
   1.  The procedure prescribed by this section shall be used when it appears that a person should be immediately detained because the respondent is a person with an intellectual disability who presents a danger to self or others and an application has not been filed naming the person as the respondent pursuant to section 222.93 or the person cannot be ordered into immediate custody and detained pursuant to section 222.99.
   2.  a.  (1)  In the circumstances described in subsection 1, any peace officer who has reasonable grounds to believe that a person believed to have an intellectual disability who presents a danger to self or others if not immediately detained, may without a warrant take or cause that person to be taken to the nearest available state resource center or public or private facility as described in section 222.99, subsection 1, paragraph “b” or “c”. A person believed to have an intellectual disability who presents a danger to self or others if not immediately detained may be delivered to a state resource center or public or private facility by someone other than a peace officer.
   (2)  Upon delivery of the person believed to have an intellectual disability who presents a danger to self or others to the state resource center or public or private facility, the examining physician or examining psychologist may order treatment of the person, including chemotherapy, but only to the extent necessary to preserve the person’s life or to appropriately control behavior by the person which is likely to result in physical injury to that person or others if allowed to continue.
   (3)  The peace officer who took the person into custody, or other party who brought the person to the state resource center or public or private facility, shall describe the circumstances of the matter to the examining physician or examining psychologist. If the person is a peace officer, the peace officer may do so either in person or by written report.
   (4)  If the examining physician or examining psychologist finds that there is reason to believe that the person is a person with an intellectual disability who presents a danger to self or others if not immediately detained, the examining physician or examining psychologist shall at once communicate with the nearest available magistrate as defined in section 801.4.
   (5)  The magistrate shall, based upon the circumstances described by the examining physician or examining psychologist, give the examining physician or examining psychologist oral instructions either directing that the person be released forthwith or authorizing the person’s detention in an appropriate state resource center or public or private facility. A peace officer from the law enforcement agency that took the person into custody, if available, during the communication with the magistrate, may inform the magistrate that an arrest warrant has been issued for or charges are pending against the person and request that any oral or written order issued under this subsection require the state resource center or public or private facility to notify the law enforcement agency about the discharge of the person prior to discharge. The magistrate may also give oral instructions and order that the detained person be transported to an appropriate state resource center or public or private facility.
   b.  If the magistrate orders that the person be detained, the magistrate shall, by the close of business on the next working day, file a written order with the clerk in the county where it is anticipated that an application may be filed under section 222.93. The order may be filed electronically if necessary. A peace officer from the law enforcement agency that took the person into custody, if no request was made under paragraph “a”, may inform the magistrate that an arrest warrant has been issued for or charges are pending against the person and request that any written order issued under this paragraph require the state resource center or public or private facility to notify the law enforcement agency about the discharge of the person prior to discharge. The order shall state the circumstances under which the person was taken into custody or otherwise brought to a state resource center or public or private facility, and the grounds supporting the finding of probable cause to believe that the person is a person with an intellectual disability who presents a danger to self or others if not immediately detained. The order shall also include any law enforcement agency notification requirements if applicable. The written order shall confirm the oral order authorizing the person’s detention including any order given to transport the person to an appropriate state resource center or public or private facility. A peace officer from the law enforcement agency that took the person into custody may also request an order, separate from the written order, requiring the state resource center or public or private facility to notify the law enforcement agency about the discharge of the person prior to discharge. The clerk shall provide a copy of the written order or any separate order to the superintendent of the state resource center or the administrator of the public or private facility to which the person was originally taken, to any subsequent state resource center or public or private facility to which the person was transported, and to any law enforcement agency or ambulance service that transported the person pursuant to the magistrate’s order.
   c.  If an arrest warrant has been issued for or charges are pending against the person, but no court order exists requiring notification to a law enforcement agency under paragraph “a” or “b”, and if the peace officer delivers the person to a state resource center or public or private facility and the peace officer notifies the state resource center or public or private facility in writing on a form prescribed by the department of public safety that the state resource center or public or private facility is required to notify the law enforcement agency about the discharge of the person prior to discharge, the state resource center or public or private facility shall do all of the following:
   (1)  Notify the dispatch of the law enforcement agency that employs the peace officer by telephone prior to the discharge of the person from the state resource center or public or private facility.
   (2)  Notify the law enforcement agency that employs the peace officer by electronic mail prior to the discharge of the person from the state resource center or public or private facility.
   3.  The superintendent of a state resource center or the administrator of the public or private facility shall examine and may detain and care for the person taken into custody under the magistrate’s order for a period not to exceed forty-eight hours from the time such order is dated, excluding Saturdays, Sundays, and holidays, unless the order is sooner dismissed by a magistrate. The state resource center or public or private facility may provide treatment which is necessary to preserve the person’s life, or to appropriately control behavior by the person which is likely to result in physical injury to the person’s self or others if allowed to continue, but shall not otherwise provide treatment to the person without the person’s consent. The person shall be discharged from the state resource center or public or private facility and released from custody not later than the expiration of that period, unless an application is sooner filed with the clerk pursuant to section 222.93. Prior to such discharge, the state resource center or public or private facility shall, if required by this section, notify the law enforcement agency requesting such notification about the discharge of the person. The law enforcement agency shall retrieve the person no later than six hours after notification from the state resource center or public or private facility but in no circumstances shall the detention of the person exceed the period of time prescribed for detention by this subsection. The detention of a person by the procedure and not in excess of the period of time prescribed by this section shall not render the peace officer, physician, state resource center, or public or private facility so detaining the person liable in a criminal or civil action for false arrest or false imprisonment if the peace officer, physician, state resource center, or public or private facility had reasonable grounds to believe the person so detained was a person with an intellectual disability and likely to physically injure the person’s self or others if not immediately detained, or if the state resource center or public or private facility was required to notify a law enforcement agency by this section, and the law enforcement agency requesting notification prior to discharge retrieved the person no later than six hours after the notification, and the detention prior to the retrieval of the person did not exceed the period of time prescribed for detention by this subsection.
   4.  The cost of placement of a person detained temporarily by the procedure prescribed in this section shall be paid by the procedure prescribed in sections 222.50 and 222.60. 
   5.  The department of public safety shall prescribe the form to be used when a law enforcement agency desires notification under this section from a state resource center or public or private facility prior to discharge of a person admitted to the state resource center or public or private facility and for whom an arrest warrant has been issued or against whom charges are pending. The form shall be consistent with all laws, regulations, and rules relating to the confidentiality or privacy of personal information or medical records, including but not limited to the federal Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, and regulations promulgated in accordance with that Act and published in 45 C.F.R. pts. 160-164.
   6.  A state resource center or public or private facility, which has been notified by a peace officer or a law enforcement agency by delivery of a form as prescribed by the department of public safety indicating that an arrest warrant has been issued for or charges are pending against a person admitted to the state resource center or public or private facility, that does not notify the law enforcement agency about the discharge of the person as required by subsection 2, paragraph “c”, shall pay a civil penalty as provided in section 805.8C, subsection 9.
    Sec. 17.  NEW SECTION.  222.108  Records of involuntary commitment proceeding to be confidential.
   1.  All papers and records pertaining to any involuntary commitment ordered under this chapter or application filed pursuant to section 222.93 of any person, whether part of the permanent record of the court or of a file in the department of human services, are subject to inspection only upon an order of the court for good cause shown.
   2.  If authorized in writing by a person who has been the subject of any involuntary proceeding under this chapter, or by the parent or guardian of the person, information regarding the person which is confidential under subsection 1 may be released to any other designated person.
   3.  If all or part of the costs associated with the commitment of a person under this chapter are chargeable to a county of residence, the clerk shall provide to the regional administrator for the county of residence and to the regional administrator for the county in which the commitment order is entered the following information pertaining to the person which would be confidential under subsection 1:
   a.  Administrative information, as defined in section 228.1.
   b.  An examination order under this chapter and the location of the person’s placement under the order.
   c.  A commitment or placement order under this chapter and the location of the person’s placement under the order.
   d.  The date, location, and disposition of any hearing concerning the person held under this chapter.
   e.  Any payment source available for the costs of the person’s care.
   4.  This section shall not prohibit any of the following:
   a.  A public or private facility from complying with the requirements of this chapter relative to financial responsibility for the cost of care and treatment provided or from properly billing any responsible relative or third-party payer for such care or treatment.
   b.  A court or the department of public safety from forwarding to the federal bureau of investigation information that a person has been disqualified from possessing, shipping, transporting, or receiving a firearm pursuant to section 724.31.
    Sec. 18.  NEW SECTION.  222.109  Medical records to be confidential —— exceptions.
   1.  a.  The records maintained by a state resource center or public or private facility relating to the examination, custody, care, and treatment of any person in that state resource center or public or private facility pursuant to this chapter shall be confidential, except that the superintendent of a state resource center or the administrator of a public or private facility shall release appropriate information under any of the following circumstances:
   (1)  The information is requested by a physician, attorney, or advocate who provides the superintendent of a state resource center or the administrator of a public or private facility with a written waiver signed by the person about whom the information is sought.
   (2)  The information is sought by a court order.
   (3)  The person who is committed or that person’s guardian, if the person is a minor or is not legally competent to do so, signs an informed consent to release information. Each signed consent shall designate specifically the person or agency to whom the information is to be sent, and the information may be released only to that person or agency.
   b.  Such records may be released by the superintendent of a state resource center or the administrator of a public or private facility when requested for the purpose of research into the causes, incidence, nature, and treatment of persons with an intellectual disability who present a danger to self or others; however, information shall not be provided in a way that discloses patients’ names or which otherwise discloses any patient’s identity.
   2.  When the superintendent of a state resource center or the administrator of a public or private facility deems it to be in the best interest of the patient and the patient’s next of kin to do so, the superintendent or administrator may release appropriate information during a consultation which the state resource center or public or private facility shall arrange with the next of kin of a voluntary or involuntary patient, if requested by the patient’s next of kin.
    Sec. 19.  NEW SECTION.  222.110  Exclusive procedure for involuntary commitment.
   Sections 222.93 through 222.107 constitute the exclusive procedure for involuntary commitment of a person if there is reason to believe that the person is a person with an intellectual disability who presents a danger to self or others in this state, except that this chapter does not negate the provisions of section 904.503 relating to transfer of prisoners with mental illness to state hospitals for persons with mental illness and does not apply to commitments of persons under chapter 812 or the rules of criminal procedure, Iowa court rules, or negate the provisions of section 232.51 relating to disposition of children with mental illness or an intellectual disability.
    Sec. 20.  NEW SECTION.  222.111  Rules for proceedings.
   The supreme court may prescribe rules of pleading, practice, and procedure and the forms of process, writs, and notices under section 602.4201, for all commitment proceedings in a court of this state under this chapter. The rules shall be drawn for the purpose of simplifying and expediting the proceedings, so far as is consistent with the rights of the parties involved. The rules shall not abridge, enlarge, or modify the substantive rights of a party to a commitment proceeding under this chapter.
    Sec. 21.  Section 331.653, subsection 23, Code 2017, is amended to read as follows:
   23.  Carry out duties relating to the involuntary hospitalization of persons with mental illness as provided in sections 229.7 and 229.11 and carry out duties related to the involuntary commitment of persons with an intellectual disability who present a danger to self or others as provided in sections 222.94 and 222.99.
    Sec. 22.  Section 602.4201, subsection 3, Code 2017, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  i.  Involuntary commitment of persons with an intellectual disability who present a danger to self or others.
    Sec. 23.  Section 805.8C, subsection 9, Code 2017, is amended to read as follows:
   9.  Notification violations.  For violations of section 222.107, subsection 6, and section 229.22, subsection 6, the scheduled fine is one thousand dollars for a first violation and two thousand dollars for a second or subsequent violation. The scheduled fine under this subsection is a civil penalty, and the criminal penalty surcharge under section 911.1 shall not be added to the penalty.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to the involuntary commitment of a person with an intellectual disability who presents a danger to self or others.
   INVOLUNTARY COMMITMENT APPLICATION —— PERSON WITH INTELLECTUAL DISABILITY —— DANGER TO SELF OR OTHERS. The bill provides that any interested person may file an involuntary commitment application for a person with an intellectual disability who presents a danger to self or others with the clerk of the district court of the county where the respondent is presently located or which is the respondent’s place of residence. The application must contain information that the respondent is a person with an intellectual disability who, due to the person’s intellectual disability, presents a danger to self or others. The application must also be supported by a written statement of a physician or psychologist in support of the application; one or more supporting affidavits otherwise corroborating the application; or other corroborative information, if necessary. Intellectual disability is defined in Code section 4.1 as a disability of children and adults who as a result of inadequately developed intelligence have a significant impairment in ability to learn or to adapt to the demands of society, and, if a diagnosis is required, intellectual disability means a diagnosis of mental retardation as defined in the diagnostic and statistical manual of mental disorders, fourth edition, text revised, published by the American psychiatric association. Danger to self or others is defined in the bill as a condition of a person with an intellectual disability who, because of that intellectual disability, is likely to physically injure the person’s self or others if allowed to remain at liberty without treatment; is likely to inflict serious emotional injury on the person’s family or others who lack a reasonable opportunity to avoid contact with the person if the person is allowed to remain at liberty without treatment; or is unable to fulfill the basic needs of the person including but not limited to nourishment, clothing, essential medical care, or shelter so that it is likely that the person will suffer physical injury, physical debilitation, or death.
   JUVENILES —— JURISDICTION. The bill provides that the juvenile court has exclusive original jurisdiction in proceedings concerning a minor for whom an application is filed under the bill.
   PROCEDURE AFTER APPLICATION FILED. The bill provides that, as soon as practicable after the filing of an application, the court is required to determine whether the respondent has an attorney and if not, whether the respondent is financially able to employ an attorney and capable of meaningfully assisting in selecting one. If the respondent is financially unable to pay an attorney, the attorney shall be compensated by the county at an hourly rate to be established by the mental health and disability services region. The court is also required to send copies of the application to the county attorney, issue a written order setting a time and place for a commitment hearing, which shall be at the earliest practicable time not less than 48 hours after notice to the respondent, unless the respondent waives the notice requirement, and order an examination of the respondent, prior to the hearing by one or more physicians or psychologists.
   EXAMINATION. The bill provides that the respondent shall be examined by one or more physicians or psychologists, as required by the court’s order, within a reasonable time. If the respondent is detained, the examination shall be conducted within 24 hours or 48 hours depending upon the circumstances of the detainment. The respondent may also request a separate examination by a physician or psychologist of the respondent’s own choice. The reasonable cost of the examinations shall, if the respondent lacks sufficient funds to pay the cost, be paid by the regional administrator from mental health and disability services upon order of the court. A physician or psychologist conducting an examination may consult with or request a mental health professional to participate in the examination.
   EXAMINATION REPORT. A written report of the examination by any physician or psychologist (court-designated or a physician or psychologist chosen by the respondent) shall be filed with the clerk of the district court prior to the time set for the hearing and the clerk must provide the report or reports to the judge and the respondent’s attorney.
   If the report of the court-designated physician or psychologist concludes that the respondent is a person with an intellectual disability who does not present a danger to self or others, the court may terminate the commitment proceeding and dismiss the application on its own motion and without notice. If the report of the court-designated physician or psychologist concludes that the respondent is a person with an intellectual disability who presents a danger to self or others, the court is required to schedule a hearing on the application as soon as possible and not more than 48 hours after the report is filed unless an extension for good cause is shown.
   IMMEDIATE CUSTODY. If the applicant requests that the respondent be taken into immediate custody and the judge finds probable cause to believe that the respondent is a person with an intellectual disability and is likely to injure the respondent’s self or others if allowed to remain at liberty, the judge may enter a written order directing that the respondent be taken into immediate custody by the sheriff or the sheriff’s deputy and be detained until the commitment hearing. In this case, the commitment hearing shall be held no more than five days after the date of the order or on the next succeeding business day.
   If the expenses of a respondent are payable in whole or in part by a mental health and disability services region, and the respondent is placed in the custody of a relative, friend, or other suitable person who is willing to accept responsibility for supervision of the respondent, the court is required to give notice of the placement to the regional administrator for the respondent’s county of residence. If the respondent is placed in a suitable public or private facility within or without the state, approved by the director of human services, the court is required to order the placement in a public or private facility designated through the regional administrator for the respondent’s county of residence. If neither of these alternatives is available, the court may order the respondent be placed in a state resource center or in a special unit.
   COMMITMENT HEARING. At the commitment hearing, the respondent’s welfare is paramount and the hearing shall be conducted in an informal manner consistent with orderly procedure. Evidence in support of the contentions made in the application is presented by the county attorney. During the hearing, the applicant and the respondent have the opportunity to testify and to cross-examine witnesses and the court may receive the testimony of any other interested person. The respondent has the right to be present at the hearing and the court may admit persons having a legitimate interest to attend the hearing. The court may exclude the respondent from the hearing during the testimony of any particular witness if the court determines that the witness’s testimony is likely to cause the respondent severe emotional trauma. There shall be a presumption in favor of the respondent, and the burden of evidence in support of the contentions made in the application shall be upon the applicant. The physician or psychologist who examined the respondent is required to be present at the hearing unless the court for good cause finds that the physician’s or psychologist’s presence is not necessary or the physician’s or psychologist’s presence is waived. If upon completion of the hearing the court finds that the contentions that form the basis for the commitment hearing have not been sustained by clear and convincing evidence, it shall deny the application and terminate the proceeding.
   COMMITMENT ORDER. The court shall commit the respondent to the custody of the superintendent of a state resource center for placement if it is established by clear and convincing evidence that the respondent is a person with an intellectual disability who presents a danger to self or others.
   The superintendent is required to coordinate with the regional administrator for the respondent’s county of residence in identifying any public or private facilities, either within or without the state, which would be an appropriate alternative to the continued placement of the respondent in the state resource center. If an appropriate public or private facility is available and is willing to accept placement of the respondent, the superintendent may transfer the respondent to that public or private facility.
   The superintendent of a state resource center in coordination with the regional administrator for the respondent’s county of residence may modify the placement of the respondent as appropriate and shall report to the court any changes in the placement of the respondent.
   CONTESTED PLACEMENT —— NOTICE AND HEARING. The regional administrator of the respondent’s county of residence or the respondent may challenge the superintendent’s placement of the respondent. A placement hearing shall be held no sooner than four days and no later than seven days after the request for the placement hearing is filed unless otherwise agreed to by the parties. The respondent may be transferred to the placement designated by the superintendent unless a request for hearing is filed prior to the transfer. If the request for a placement hearing is filed prior to the transfer, the court shall order where the respondent shall be detained until the date of the hearing. In a placement hearing, the court shall order a placement for the respondent taking into consideration the evidence presented by all the parties. A placement made pursuant to an order entered under this provision shall be considered to be authorized through the regional administrator of the respondent’s county of residence.
   DISCHARGE AND TERMINATION OF PROCEEDINGS. When the condition of a committed respondent is such that in the opinion of the superintendent the respondent no longer requires commitment, the superintendent shall tentatively discharge the respondent and immediately report that fact to the court which ordered the respondent’s commitment and the court may issue an order confirming the respondent’s discharge from custody and terminating the proceeding or continue the commitment if the court finds the requirements for commitment continue to apply.
   ESCAPE FROM CUSTODY. If a person placed at a state resource center or public or private facility leaves the state resource center or public or private facility without having been discharged or without permission, the superintendent or person in charge of the public or private facility may notify the sheriff of the person’s absence and the sheriff shall take the person into custody and return the person promptly to the state resource center or public or private facility.
   STATUS OF RESPONDENT DURING APPEAL. If a respondent appeals to the Iowa supreme court from a finding that the contention that the respondent is a person with an intellectual disability who presents a danger to self or others has been sustained, and the respondent was previously ordered taken into immediate custody or has been placed in a state resource center or public or private facility for appropriate treatment before the court is informed of intent to appeal its finding, the respondent shall remain in custody or shall remain in the state resource center or public or private facility unless the supreme court orders otherwise. If a respondent appeals to the supreme court regarding a placement order, the respondent shall remain in placement unless the supreme court orders otherwise.
   STATUS OF RESPONDENT IF COMMITMENT DELAYED. When the court directs that a respondent who was previously ordered taken into immediate custody be placed in a state resource center or public or private facility for appropriate treatment and no suitable state resource center or public or private facility can immediately admit the respondent, the respondent shall remain in custody as previously ordered by the court until a suitable state resource center or public or private facility can admit the respondent.
   EMERGENCY COMMITMENT —— PROCEDURE. The bill provides an emergency commitment procedure for a situation where a person should be immediately detained due to the person having an intellectual disability and presenting a danger to self or others if an application has not been filed naming the person as the respondent or the person cannot be ordered into immediate custody and detained.
   A peace officer or someone other than a peace officer who has reasonable grounds to believe that a person has an intellectual disability and presents a danger to self or others if not immediately detained, may without a warrant take or cause that person to be taken to the nearest available state resource center or public or private facility. Upon delivery of the person to the state resource center or a public or private facility, the examining physician or examining psychologist may order emergency treatment of that person. If the examining physician or examining psychologist finds that there is reason to believe that the person is a person with an intellectual disability who presents a danger to self or others if not immediately detained, the examining physician or examining psychologist shall at once communicate with the nearest available magistrate who shall, based upon the circumstances described by the examining physician or examining psychologist, give the examining physician or examining psychologist oral instructions either directing that the person be released or authorizing the person’s detention in an appropriate state resource center or public or private facility.
   A peace officer from the law enforcement agency that took the person into custody may inform the magistrate who ordered that the person be detained that an arrest warrant has been issued for or charges are pending against the person and request that any written order issued require the state resource center or public or private facility to notify the law enforcement agency about the discharge of the person prior to discharge. A peace officer from the law enforcement agency that took the person into custody may also request an order, separate from the written order, requiring the state resource center or public or private facility to notify the law enforcement agency about the discharge of the person prior to discharge. The clerk shall provide a copy of the written order or any separate order to the superintendent of the state resource center or the administrator of the public or private facility to which the person was originally taken, to any subsequent state resource center or public or private facility to which the person was transported, and to any law enforcement agency or ambulance service that transported the person pursuant to the magistrate’s order.
   The superintendent of a state resource center or the administrator of the public or private facility shall examine and may detain and care for the person taken into custody under the magistrate’s order for a period not to exceed 48 hours from the time such order is dated unless dismissed earlier by a magistrate. The state resource center or public or private facility may provide treatment which is necessary to preserve the person’s life, or to appropriately control behavior by the person which is likely to result in physical injury to the person’s self or others if allowed to continue, but shall not otherwise provide treatment to the person without the person’s consent. The person shall be discharged from the state resource center or public or private facility and released from custody not later than the expiration of that period, unless an application for involuntary commitment is filed.
   Prior to such discharge, the state resource center or public or private facility shall, if required, notify the law enforcement agency requesting such notification about the discharge of the person. The law enforcement agency shall retrieve the person no later than six hours after notification from the state resource center or public or private facility but in no circumstances shall the detention of the person exceed the period of time prescribed for detention. The detention of a person by the procedure and not in excess of the period of time prescribed shall not render the peace officer, physician, state resource center, or public or private facility so detaining the person liable in a criminal or civil action for false arrest or false imprisonment if the peace officer, physician, state resource center, or public or private facility had reasonable grounds to believe the person so detained is a person with an intellectual disability who presents a danger to self or others if not immediately detained, or if the state resource center or public or private facility was required to notify a law enforcement agency, and the law enforcement agency requesting notification prior to discharge retrieved the person no later than six hours after the notification, and the detention prior to the retrieval of the person did not exceed the period of time prescribed for detention. A state resource center or public or private facility properly notified that does not notify the law enforcement agency about the discharge of the person under the emergency commitment procedures in the bill may be subject to a civil penalty.
   RECORDS —— CONFIDENTIALITY. The bill provides that all papers and records pertaining to any involuntary commitment or application of any person under the bill, whether part of the permanent record of the court or of a file in the department of human services, are subject to public inspection only upon an order of the court for good cause shown or if authorized by a person who has been the subject of any involuntary proceeding under the bill or by the parent or guardian of that person. Certain information relating to costs associated with the commitment of a person under the bill may be released to certain entities.
   The bill further provides that the medical records maintained by a state resource center or public or private facility relating to the examination, custody, care, and treatment of any person in that state resource center or public or private facility shall be confidential, except for requests by a physician, attorney, or advocate who provides the superintendent of a state resource center or the administrator of a public or private facility with a written waiver signed by the person about whom the information is sought, a court order, or through informed consent. Such medical records may also be released by the superintendent of a state resource center or the administrator of a public or private facility when requested for the purpose of research into the causes, incidence, nature, and treatment of persons with an intellectual disability who present a danger to self or others.
   EXCLUSIVE PROCEDURE. The bill provides the exclusive procedure for involuntary commitment of persons with an intellectual disability who present a danger to self or others in this state, except that the bill does not negate the provisions of Code section 904.503 relating to transfer of prisoners with mental illness to state hospitals for persons with mental illness and does not apply to commitments of persons under Code chapter 812 or the rules of criminal procedure, Iowa court rules, or negate the provisions of Code section 232.51 relating to disposition of children with mental illness or an intellectual disability.
   MISCELLANEOUS. The bill contains provisions relating to service of notice and supreme court rules of proceedings.
   The bill makes conforming Code changes relating to the duties of the sheriff, the authority of the supreme court to prescribe rules governing actions and proceedings, and miscellaneous scheduled violations. The bill also provides related definitions.