2014 -- S 2774 SUBSTITUTE A

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LC005202/SUB A/2

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO BEHAVIORAL HEALTHCARE, DEVELOPMENTAL DISABILITIES AND

HOSPITALS

     Introduced By: Senators Cool Rumsey, Lombardi, Ottiano, Miller, and Goodwin

     Date Introduced: March 18, 2014

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Chapter 11-47 of the General Laws entitled "Weapons" is hereby amended

by adding thereto the following section:

     11-47-63. Relief from disqualifiers program. -- (a) Establishment of board. There is

hereby established a board known as the relief from disqualifiers board to consider petitions for

relief from a firearms prohibition due to an adjudication of commitment in Rhode Island.

     (1) The board shall be comprised of five (5) members to be appointed by the governor

subject to the following qualifications:

     (i) One of whom shall be a licensed psychiatrist;

     (ii) One of whom shall be a licensed psychologist;

     (iii) One of whom shall be an active member of law enforcement in the state of Rhode

Island;

     (iv) One of whom shall be the director of the department of behavioral health,

developmental disabilities and hospitals, or his/her designee; and

     (v) One of whom shall be the attorney general or his/her designee.

     (2) Each member shall serve for a term of three (3) years; provided, however, that of the

initial members appointed to the board by the governor, two (2) shall be appointed for a term of

two (2) years and three (3) shall be appointed to a term of three (3) years. As the term of office of

a member of the board expires, his or her successor shall be appointed in a like manner for a term

of three (3) years provided that a member shall continue to serve until an appointment is made by

the governor. Any vacancy shall be filled by the governor for the unexpired term.

     (b) Relief from disqualifiers program. A person who is subject to the disqualifiers of 18

U.S.C. 922(d)(4) and 18 U.S.C. 922(g)(4) and/or § 40.1-5-8 because of an adjudication

commitment under the laws of this state may petition for relief from a firearms prohibition from

the relief from disqualifiers board. The board shall consider the petition for relief in accordance

with the following:

     (1) The board shall give the petitioner the opportunity to present evidence to the board in

a closed and confidential hearing on the record;

     (2) A record of the hearing shall be maintained by the board for purposes of appellate

review; and

     (3) The board shall conduct said hearing within thirty (30) days of the filing of a petition

for relief.

     (c) In determining whether to grant relief, the board shall consider evidence regarding the

following:

     (1) The circumstances regarding the firearms disqualifiers pursuant to 18 U.S.C.

922(d)(4) and 18 U.S.C. 922(g)(4);

     (2) The petitioner's record, that must include, at a minimum, the petitioner's mental health

record, including a certificate of a medical doctor or psychiatrist licensed in this state certifying

that the person is no longer suffering from a mental disorder that interferes or handicaps the

person from handling deadly weapons;

     (3) All records pertaining to the petitioner's criminal history; and

     (4) Evidence of the petitioner's reputation through character witness statements,

testimony, or other character evidence.

     (d) The board shall have the authority to require that the petitioner undergo a clinical

evaluation and risk assessment, the results of which may also be considered as evidence in

determining whether to approve or deny the petition for relief.

     (e) After a hearing on the record, the board shall grant relief provided that it finds, by a

preponderance of the evidence, that:

     (1) The petitioner is not likely to act in a manner dangerous to public safety; and

     (2) Granting the relief will not be contrary to the public interest.

     (f) The board shall issue a decision in writing justifying the reasons for a denial or grant

of relief.

     (g) Any person whose petition for relief has been denied by the board shall have a right to

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a de novo judicial review in the superior court. The superior court shall consider the record of the

board hearing on the petition for relief, the decision of the board, and, at the court's discretion,

any additional evidence it deems necessary to conduct its review.

     (h) Upon notice that a petition for relief has been granted, the district court shall, as soon

as practicable:

     (1) Cause the petitioner's record to be updated, corrected, modified, or removed from any

database maintained, and made available to, the National Instant Criminal Background Check

System (NICS) and reflect that the petitioner is no longer subject to a firearms prohibition as it

relates to 18 U.S.C. 922(d)(4) and 18 U.S.C. 922 (g)(4); and

     (2) Notify the attorney general of the United States that the petitioner is no longer subject

to a firearms prohibition pursuant to 18 U.S.C. 922(d)(4) and 18 U.S.C. 922 (g)(4).

     (i) The district court shall adopt rules relating to the transmission of information relating

to civil commitments pursuant to § 40.1-5-8(l) and to the National Instant Criminal Background

Check System (NICS), and the relief from disqualifiers process as set forth herein. In preparing

such rules, the district court shall consult with the department of behavioral health, developmental

disabilities and hospitals, the attorney general, and such other entities as may be necessary or

advisable. Such regulations shall include provisions to protect the identity, confidentiality, and

security of all records and data provided pursuant to this section and § 40.1-5-26.

     (j) Any member of the relief from firearms disqualifications board, its agents, servants,

and employees shall be immune from suit in any action, civil or criminal, based upon any official

act or decision, related to this section, performed or made in good faith.

     SECTION 2. Sections 40.1-5-2, 40.1-5-8 and 40.1-5-26 of the General Laws in Chapter

40.1-5 entitled "Mental Health Law" are hereby amended to read as follows:

     40.1-5-2. Definitions. -- Whenever used in this chapter, or in any order, rule, or

regulation made or promulgated pursuant to this chapter, or in any printed forms prepared by the

department or the director, unless otherwise expressly stated, or unless the context or subject

matter otherwise requires:

      (1) "Alternatives to admission or certification" means alternatives to a particular facility

or treatment program, and shall include, but not be limited to, voluntary or court-ordered

outpatient treatment, day treatment in a hospital, night treatment in a hospital, placement in the

custody of a friend or relative, placement in a nursing home, referral to a community mental

health clinic and home health aide services, or any other services that may be deemed

appropriate.

      (2) "Care and treatment" means psychiatric care, together with such medical, nursing,

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psychological, social, rehabilitative, and maintenance services as may be required by a patient in

association with the psychiatric care provided pursuant to an individualized treatment plan

recorded in the patient's medical record.

      (3) "Department" means the state department of mental health, retardation, and hospitals.

      (4) "Director" means the director of the state department of mental health, retardation,

and hospitals.

      (5) "Facility" means a state hospital or psychiatric inpatient facility in the department, a

psychiatric inpatient facility maintained by a political subdivision of the state for the care and/or

treatment of the mentally disabled,; a general or specialized hospital maintaining staff and

facilities for such purpose,; any of the several community mental health services established

pursuant to chapter 8.5 of this title,; and any other facility within the state providing inpatient

psychiatric care and/or treatment and approved by the director upon application of this facility.

Included within this definition shall be all hospitals, institutions, facilities, and services under the

control and direction of the director and the department, as provided in this chapter. Nothing

contained herein shall be construed to amend or repeal any of the provisions of chapter 16 of title

23.

      (6) "Indigent person" means a person who has not sufficient property or income to

support himself or herself, and to support the members of his or her family dependent upon him

or her for support, and/or is unable to pay the fees and costs incurred pursuant to any legal

proceedings conducted under the provisions of this chapter.

      (7) "Likelihood of serious harm" means:

      (i) A substantial risk of physical harm to the person himself or herself as manifested by

behavior evidencing serious threats of, or attempts at, suicide;

      (ii) A substantial risk of physical harm to other persons as manifested by behavior or

threats evidencing homicidal or other violent behavior; or

      (iii) A substantial risk of physical harm to the mentally disabled person as manifested by

behavior which that has created a grave, clear, and present risk to his or her physical health and

safety.

      (iv) In determining whether there exists a likelihood of serious harm, the physician and

the court may consider previous acts, diagnosis, words, or thoughts of the patient. If a patient has

been incarcerated, or institutionalized, or in a controlled environment of any kind, the court may

give great weight to such prior acts, diagnosis, words, or thoughts.

      (8) "Mental disability" means a mental disorder in which the capacity of a person to

exercise self control or judgment in the conduct of his or her affairs and social relations, or to care

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for his or her own personal needs, is significantly impaired.

      (9) "Mental health professional" means a psychiatrist, psychologist, or social worker and

such other persons, including psychiatric nurse clinicians, as may be defined by rules and

regulations promulgated by the director.

     (10) "NICS database" means the National Instant Criminal Background Check System as

created pursuant to section 103(h) of the Brady Handgun Violence Prevention Act (Brady Act),

Pub. L. 103-159, 107 Stat. 1536 as established by 28 CFR 25.1.

      (10)(11) "Patient" means a person certified or admitted to a facility according to the

provisions of this chapter.

      (11)(12) "Physician" means a person duly licensed to practice medicine or osteopathy in

this state.

      (12)(13) "Psychiatric nurse clinician" means a licensed, professional registered nurse

with a master's degree in psychiatric nursing or related field who is currently working in the

mental health field as defined by the American Nurses Association.

      (13)(14) "Psychiatrist" means a person duly licensed to practice medicine or osteopathy

in this state who has, in addition, completed three (3) years of graduate psychiatric training in a

program approved by the American Medical Association or American Osteopathic Association.

      (14)(15) "Psychologist" means a person certified pursuant to chapter 44 of title 5.

      (15)(16) "Social worker" means a person with a masters or further advanced degree from

a school of social work, which that is accredited by the council of social work education.

     40.1-5-8. Civil court certification. -- (a) Petitions. - A verified petition may be filed in

the district court, or family court in the case of a person who has not reached his or her eighteenth

(18th) birthday, for the certification to a facility of any person who is alleged to be in need of care

and treatment in a facility, and whose continued unsupervised presence in the community would

create a likelihood of serious harm by reason of mental disability. The petition may be filed by

any person with whom the subject of the petition may reside,; or at whose house he or she may

be,; or the father or mother, husband or wife, brother or sister, or the adult child of any such

person,;the nearest relative if none of the above are available,; or his or her guardian,; or the

attorney general,; or a local director of public welfare,; or the director of the department of mental

health, retardation, and hospitals, behavioral health, developmental disabilities and hospitals; the

director of the department of human services,; or the director of the department of corrections,;

the director of the department of health,; the warden of the adult correctional institutions,; the

superintendent of the boys training school for youth, or his or her designated agent,; or the

director of any facility, or his or her designated agent, whether or not the person shall have been

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admitted and is a patient at the time of the petition. A petition under this section shall be filed

only after the petitioner has investigated what alternatives to certification are available and

determined why the alternatives are not deemed suitable.

      (b) Contents of petition. - The petition shall state that it is based upon a personal

observation of the person concerned by the petitioner within a ten (10) day (10) period prior to

filing. It shall include a description of the behavior, which that constitutes the basis for the

petitioner's judgment that the person concerned is in need of care and treatment and that a

likelihood of serious harm by reason of mental disability exists. In addition, the petitioner shall

indicate what alternatives to certification are available,; what alternatives have been investigated,;

and why the investigated alternatives are not deemed suitable.

      (c) Certificates and contents thereof. - A petition hereunder shall be accompanied by the

certificates of two (2) physicians unless the petitioner is unable to afford, or is otherwise unable

to obtain, the services of a physician or physicians qualified to make the certifications. The

certificates shall be rendered pursuant to the provisions of section §40.1-5-5, except when the

patient is a resident in a facility, the attending physician and one other physician from the facility

may sign the certificates, and shall set forth that the prospective patient is in need of care and

treatment in a facility and would likely benefit therefrom, and is one whose continued

unsupervised presence in the community would create a likelihood of serious harm by reason of

mental disability together with the reasons therefor. The petitions and accompanying certificates

shall be executed under penalty of perjury, but shall not require the signature of a notary public

thereon.

      (d) Preliminary hearing. - (1) Upon a determination that the petition sets forth facts

constituting reasonable grounds to support certification, the court shall summon the person to

appear before the court at a preliminary hearing, scheduled no later than five (5) business days

from the date of filing. This hearing shall be treated as a priority on the court calendar and may be

continued only for good cause shown. In default of an appearance, the court may issue a warrant

directing a police officer to bring the person before the court.

      (2) At the preliminary hearing, the court shall serve a copy of the petition upon the

person and advise him or her of the nature of the proceedings and of his or her right to counsel. If

the person is unable to afford counsel, the court forthwith shall appoint the mental health

advocate for him or her. If the court finds that there is no probable cause to support certification,

the petition shall be dismissed, and the person shall be discharged unless the person applies for

voluntary admission. However, if the court is satisfied by the testimony that there is probable

cause to support certification, a final hearing shall be held not less than seven (7) days, nor more

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than twenty-one (21) days, after the preliminary hearing, unless continued at the request of

counsel for the person, and notice of the date set down for the hearing shall be served on the

person. Copies of the petition and notice of the date set down for the hearing shall also be served

immediately upon the person's nearest relatives or legal guardian, if known, and to any other

person designated by the patient, in writing, to receive copies of notices. The preliminary hearing

can be waived by a motion of the patient to the court if the patient is a resident of a facility.

      (e) Petition for examination. - (1) Upon motion of either the petitioner or the person, or

upon its own motion, the court may order that the person be examined by a psychiatrist appointed

by the court. The examination may be conducted on an outpatient basis, and the person shall have

the right to the presence of counsel while it is being conducted. A report of the examination shall

be furnished to the court, the petitioner, and the person, and his or her counsel at least forty-eight

(48) hours prior to the hearing.

      (2) If the petition is submitted without two (2) physicians' certificates as required under

subsection (c), the petition shall be accompanied by a motion for a psychiatric examination to be

ordered by the court. The motion shall be heard on the date of the preliminary hearing set by the

court pursuant to subsection (d), or as soon thereafter as counsel for the subject person is

engaged, appointed, and ready to proceed. The motion shall be verified or accompanied by

affidavits and shall set forth facts demonstrating the efforts made to secure examination and

certification by a physician or physicians and shall indicate the reasons why the efforts failed.

      (3) After considering the motion and such testimony as may be offered on the date of

hearing the motion, the court may deny the application and dismiss the petition, or upon finding:

(i) tThat there is a good cause for the failure to obtain one or more physician's certificates in

accordance with subsection (c); and (ii) tThat there is probable cause to substantiate the

allegations of the petition, the court shall order an immediate examination by two (2) qualified

psychiatrists, pursuant to subsection (e)(1).

      (f) Professional assistance. - A person with respect to whom a court hearing has been

ordered under this section shall have, and be informed of, a right to employ a mental health

professional of his or her choice to assist him or her in connection with the hearing and to testify

on his or her behalf. If the person cannot afford to engage such a professional, the court shall, on

application, allow a reasonable fee for the purpose.

      (g) Procedure. - Upon receipt of the required certificates and/or psychiatric reports as

applicable hereunder, the court shall schedule the petition for final hearing unless, upon review of

the reports and certificates, the court concludes that the certificates and reports do not indicate,

with supporting reasons, that the person who is the subject of the petition is in need of care and

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treatment,; that his or her unsupervised presence in the community would create a likelihood of

serious harm by reason of mental disability,; and that all alternatives to certification have been

investigated and are unsuitable, in which event the court may dismiss the petition.

      (h) Venue. - An application for certification under this section shall be made to, and all

proceedings pursuant thereto shall be conducted in, the district court, or family court in the case

of a person who has not yet reached his or her eighteenth (18th) birthday, of the division or

county in which the subject of an application may reside or may be, or when the person is already

a patient in a facility, in the district court or family court of the division or county in which the

facility is located, subject, however, to application by any interested party for change of venue

because of inconvenience of the parties or witnesses or the condition of the subject of the petition

or other valid judicial reason for the change of venue.

      (i) Hearing. - A hearing scheduled under this section shall be conducted pursuant to the

following requirements:

      (1) All evidence shall be presented according to the usual rules of evidence, which that

apply in civil, non-jury cases. The subject of the proceedings shall have the right to present

evidence in his or her own behalf, and to cross examine all witnesses against him or her,

including any physician who has completed a certificate or filed a report as provided hereunder.

The subject of the proceedings shall have the further right to subpoena witnesses and documents,

the cost of such to be borne by the court where the court finds, upon an application of the subject,

that the person cannot afford to pay for the cost of subpoenaing witnesses and documents.

      (2) A verbatim transcript or electronic recording shall be made of the hearing which that

shall be impounded and obtained or examined only with the consent of the subject thereof (or in

the case of a person who has not yet attained his or her eighteenth (18th) birthday, his or her

parent, guardian, or next of kin) or by order of the court.

      (3) The hearing may be held at a location other than a court, including any facility where

the subject may currently be a patient, where it appears to the court that holding the hearing at

another location would be in the best interests of the subject thereof.

      (4) The burden of proceeding and the burden of proof in a hearing held pursuant to this

section shall be upon the petitioner. The petitioner has the burden of demonstrating that the

subject of the hearing is in need of care and treatment in a facility, is one whose continued

unsupervised presence in the community would create a likelihood of serious harm by reason of

mental disability, and what alternatives to certification are available, what alternatives to

certification were investigated, and why these alternatives were not deemed suitable.

      (5) The court shall render a decision within forty-eight (48) hours after the hearing is

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concluded.

      (j) Order. - If the court at a final hearing finds by clear and convincing evidence that the

subject of the hearing is in need of care and treatment in a facility, and is one whose continued

unsupervised presence in the community would, by reason of mental disability, create a

likelihood of serious harm, and that all alternatives to certification have been investigated and

deemed unsuitable, it shall issue an order committing the person to the custody of the director for

care and treatment or to an appropriate facility. In either event, and to the extent practicable, the

person shall be cared for in a facility, which that imposes the least restraint upon the liberty of the

person consistent with affording him or her the care and treatment necessary and appropriate to

his or her condition. No certification shall be made under this section unless and until full

consideration has been given by the certifying court to the alternatives to in-patient care,

including, but not limited to, a determination of the person's relationship to the community and to

his or her family, of his or her employment possibilities, and of all available community

resources, alternate available living arrangements, foster care, community residential facilities,

nursing homes, and other convalescent facilities. A certificate ordered pursuant to this section

shall be valid for a period of six (6) months from the date of the order. At the end of that period

the patient shall be discharged, unless he or she is discharged prior to that time, in which case the

certification shall expire on the date of the discharge.

      (k) Appeals. - (1) A person certified under this section shall have a right to appeal from a

final hearing to the supreme court of the state within thirty (30) days of the entry of an order of

certification. The person shall have the right to be represented on appeal by counsel of his or her

choice or by the mental health advocate if the supreme court finds that he or she cannot afford to

retain counsel. Upon a showing of indigency, the supreme court shall permit an appeal to proceed

without payment of costs, and a copy of the transcript of the proceedings below shall be furnished

to the subject of the proceedings, or to his or her attorney, at the expense of the state. The

certifying court shall advise the person of all his or her rights pursuant to this section immediately

upon the entry of an order of certification.

      (2) Appeals under this section shall be given precedence, insofar as practicable, on the

supreme court dockets. The district and family courts shall promulgate rules with the approval of

the supreme court to insure the expeditious transmission of the record and transcript in all appeals

pursuant to this chapter.

     (l) Submission to NICS database. (1) The district court shall submit the name, date of

birth, gender, race or ethnicity, and date of civil commitment to the NICS database of all persons

subject to a civil court certification order pursuant to this section within forty-eight (48) hours of

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certification.

     (2) Any person affected by the provisions of this section, after the lapse of a period of

three (3) years from the date such civil certification is terminated, shall have the right to appear

before the relief from disqualifiers board.

     (3) Upon notice of a successful appeal pursuant to § 40.1-5-8(k), the district court shall,

as soon as practicable, cause the appellant's record to be updated, corrected, modified, or removed

from any database maintained and made available to the National Instant Criminal Background

Check System (NICS) and reflect that the appellant is no longer subject to a firearms prohibition

as it relates to 18 U.S.C. 922(d)(4) and 18 U.S.C. 922(g)(4).

     40.1-5-26. Disclosure of confidential information and records. -- (a) The fact of

admission or certification, and all information and records compiled, obtained, or maintained in

the course of providing services to persons under this chapter, shall be confidential.

      (b) Information and records may be disclosed only:

      (1) To any person, with the written consent of the patient or his or her guardian.

      (2) In communications among qualified medical or mental health professionals in the

provision of services or appropriate referrals, or in the course of court proceedings. The consent

of the patient, or his or her guardian, must be obtained before information or records may be

disclosed by a professional person employed by a facility to a professional person not employed

by the facility who does not have the medical responsibility for the patient's care.

      (3) When the person receiving services, or his or her guardian, designates persons to

whom information or records may be released, or if the person is a minor, when his or her parents

or guardian make the designation.

      (4) To the extent necessary for a recipient to make a claim, or for a claim to be made on

behalf of a recipient for aid, insurance, or medical assistance to which he or she may be entitled.

      (5) To proper medical authorities for the purpose of providing emergency medical

treatment where the person's life or health are in immediate jeopardy.

      (6) For program evaluation and/or research, provided that the director adopts rules for

the conduct of the evaluations and/or research. The rules shall include, but need not be limited to,

the requirement that all evaluators and researchers must sign an oath of confidentiality, agreeing

not to divulge, publish, or otherwise make known, to unauthorized persons or the public, any

information obtained in the course of the evaluation or research regarding persons who have

received services such that the person who received the services is identifiable.

      (7) To the courts, and persons designated by judges thereof, in accordance with

applicable rules of procedure. The records and files maintained in any court proceeding pursuant

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to this chapter shall be confidential and available only to the person who was the subject of the

proceeding or his or her attorney.

      (8) To the state medical examiner in connection with the investigation of a fatality of a

current or former patient to the extent necessary to assist the medical examiner in determining the

cause of death.

      (9) To the director of health in accordance with, and to the extent authorized by, the

provisions of chapter 37.3 of title 5 and all applicable federal laws and regulations; provided,

however, that with respect to any information obtained, the department complies with all state

and federal confidentiality laws, including, but not limited to, chapter 37.3 of title 5, and

specifically section §5-37.3-4(c), and that the name, or names, of the patient or patients who is or

are determined by the director of health to be immaterial to the request, inquiry or investigation

remain unidentifiable. Any treatment facility, which that provides information to the director of

health in accord with a request under this subsection is not liable for wrongful disclosure arising

out of any subsequent disclosure by the director of health.

      (10) To a probate court of competent jurisdiction, petitioner, respondent, and/or their

attorneys, when the information is contained within a decision-making assessment tool which

conforms to the provisions of section §33-15-47.

      (11) To the department of children, youth, and families and/or the department's

contracted designee for the purpose of facilitating effective care planning pursuant to section §42-

72-5.2(2) and in accordance with applicable state and federal laws, for a child hospitalized for

psychiatric services and such services are paid for in whole or in part by the state, or for a child

who may be discharged from an acute care facility to an out-of-home mental or behavioral health

agency for services and when such services will be paid for in whole or in part by the state.

      (12) To the RIte Care health plans for any child enrolled in RIte Care.

      (13) To the NICS database for firearms disqualifying information provided that only

individual identifying information required by § 40.1-5-8-(l) is submitted.

     SECTION 3. This act shall take effect on January 1, 2015.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO BEHAVIORAL HEALTHCARE, DEVELOPMENTAL DISABILITIES AND

HOSPITALS

***

     This act would establish the relief from disqualifiers board to consider petitions for relief

from firearms prohibitions due to mental health adjudications of commitment. This act would also

allow the district court to submit individual identifying information to the NICS database of all

persons subject to a civil court certification order due to a mental disability.

     This act would take effect on January 1, 2015.

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