An Act To Create a Secure, Therapeutic Mental Health Unit
Maine Legislature, Session 127, LD 0440
Committee: Criminal Justice and Public Safety
Sponsors: GERZOFSKY, DION, BURNS, DIAMOND, HASKELL, KATZ, ROSEN, GATTINE, LONG, TUCKER
Amends: 15 MRSA §101-D, 15 MRSA §103, 34-A MRSA §3069-A, 34-A MRSA §3069-B, 34-B MRSA §1207, 34-B MRSA §3801, 34-B MRSA §3863

Legislative Document 
No. 440 
S.P. 169 
In Senate, February 24, 2015 
An Act To Create a Secure, Therapeutic Mental Health Unit 
Reference to the Committee on Criminal Justice and Public Safety suggested and ordered 
printed. 
HEATHER J.R. PRIEST 
Secretary of the Senate 
Presented by Senator GERZOFSKY of Cumberland. 
Cosponsored by Representative DION of Portland and 
Senators: BURNS of Washington, DIAMOND of Cumberland, HASKELL of Cumberland, 
KATZ of Kennebec, ROSEN of Hancock, Representatives: GATTINE of Westbrook, LONG 
of Sherman, TUCKER of Brunswick. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  15 MRSA §101-D, sub-§4, as amended by PL 2013, c. 265, §1, is further 
amended to read: 
4.  Commitment for observation.  The court may commit the defendant to the 
custody of the Commissioner of Health and Human Services for placement in the secure, 
therapeutic mental health unit established pursuant to Title 34-A, section 4303 unless the 
Commissioner of Health and Human Services determines the defendant's placement in 
that unit is contraindicated, in which case the defendant may be placed in an appropriate 
alternative institution that is appropriate for the care and treatment of people with mental 
illness or in an appropriate residential program that provides care and treatment for 
persons who have intellectual disabilities or autism, as set forth in this subsection.  If the 
State Forensic Service determines that observation of the defendant will materially 
enhance its ability to perform an examination ordered pursuant to subsection 1, 2, 3 or 9 
and the defendant is incarcerated, the observation may take place at the correctional 
facility where the defendant is incarcerated if the State Forensic Service determines that 
the correctional facility can provide an appropriate setting for the observation.  If the 
observation is to take place in a correctional facility, the court may not commit the 
defendant to the custody of the Commissioner of Health and Human Services. 
A.  If the State Forensic Service determines that observation of the defendant in the 
secure, therapeutic mental health unit or an appropriate alternative institution that is 
appropriate for the care of people with mental illness or in an appropriate residential 
program that provides care and treatment for persons who have intellectual 
disabilities or autism will materially enhance its ability to perform an examination 
ordered pursuant to subsection 1, 2, 3 or 9, the State Forensic Service shall so advise 
the court.  The State Forensic Service may make this determination based upon 
consultation with the defendant’s attorney and the attorney for the State and the court 
and upon such other information as it determines appropriate.  In addition, the State 
Forensic Service may include such a determination in a report to the court that 
recommends further evaluation of the defendant. 
B.  Upon a determination by the State Forensic Service under paragraph A, a court 
having jurisdiction in a criminal case may commit the defendant to the custody of the 
Commissioner of Health and Human Services for placement in the secure, therapeutic 
mental health unit unless the Commissioner of Health and Human Services 
determines the defendant's placement in that unit is contraindicated, in which case the 
defendant may be placed in an appropriate alternative institution that is appropriate 
for the care and treatment of people with mental illness or in an appropriate 
residential program that provides care and treatment for persons who have intellectual 
disabilities or autism for observation for a period not to exceed 60 days.  If the State 
Forensic Service requires additional time for observation, it shall communicate its 
request and the reasons for that request to the court and to counsel for the parties.  
The court shall accommodate a party's request to be heard on the issue of whether an 
extension should be granted and may extend the commitment for up to an additional 
days.  Unless the defendant objects, an order under this paragraph must authorize 
the institution or residential program where the defendant is placed by the 
Commissioner of Health and Human Services to provide treatment to the defendant.  
When further observation of the defendant is determined no longer necessary by the 
State Forensic Service, the commissioner shall report that determination to the court 
and the court shall terminate the commitment.  If the defendant had been incarcerated 
prior to the commitment for observation and if, during the period of observation, the 
defendant presents a substantial risk of causing bodily injury to staff or others that 
cannot be managed in an appropriate institution for the care and treatment of people 
with mental illness or in an appropriate residential program that provides care and 
treatment for persons who have intellectual disabilities or autism, the commissioner 
may return the defendant to the correctional facility shall commit the defendant to the 
secure, therapeutic mental health unit.  The commissioner shall report the risk 
management issues to the court. Upon receiving the report, the court shall review the 
report and may enter any order authorized by this section, including termination of 
the commitment. 
C.  If the court has provided for remand to a correctional facility following the 
commitment under paragraph B, the correctional facility shall execute the remand 
order upon advice from the Commissioner of Health and Human Services that 
commitment is determined no longer necessary. 
Sec. 2.  15 MRSA §101-D, sub-§5, ¶A, as amended by PL 2013, c. 434, §1 and 
affected by §15, is further amended to read: 
A.  Commit the defendant to the custody of the Commissioner of Health and Human 
Services for placement in the secure, therapeutic mental health unit established in 
Title 34-A, section 4303 unless the Commissioner of Health and Human Services 
determines the defendant's placement in that unit is contraindicated, in which case the 
defendant may be placed in an appropriate alternative program that is appropriate for 
observation, care and treatment of people with mental illness or persons with 
intellectual disabilities or autism.  An appropriate program may be in an institution 
for the care and treatment of people with mental illness, an intermediate care facility 
for persons who have intellectual disabilities or autism, a crisis stabilization unit, a 
nursing home, a residential care facility, an assisted living facility, a hospice, a 
hospital, an intensive outpatient treatment program or any program specifically 
approved by the court.  At the end of 30 days or sooner, and again in the event of 
recommitment, at the end of 60 days and 180 days, the State Forensic Service or 
other appropriate office of the Department of Health and Human Services shall 
forward a report to the Commissioner of Health and Human Services relative to the 
defendant's competence to stand trial and its reasons.  The Commissioner of Health 
and Human Services shall without delay file the report with the court having 
jurisdiction of the case.  The court shall hold a hearing on the question of the 
defendant's competence to stand trial and receive all relevant testimony bearing on 
the question.  If the State Forensic Service's report or the report of another 
appropriate office of the Department of Health and Human Services to the court 
states that the defendant is either now competent or not restorable, the court shall 
within 30 days hold a hearing.  If the court determines that the defendant is not 
competent to stand trial, but there does exist a substantial probability that the 
defendant will be competent to stand trial in the foreseeable future, the court shall 
recommit the defendant to the custody of the Commissioner of Health and Human 
Services for placement in the secure, therapeutic mental health unit established 
pursuant to Title 34-A, section 4303 unless the Commissioner of Health and Human 
Services determines the defendant's placement in that unit is contraindicated, in 
which case the defendant may be placed in an appropriate alternative program that is 
appropriate for observation, care and treatment of people with mental illness or 
persons with intellectual disabilities or autism.  An appropriate program may be in an 
institution for the care and treatment of people with mental illness, an intermediate 
care facility for persons who have intellectual disabilities or autism, a crisis 
stabilization unit, a nursing home, a residential care facility, an assisted living 
facility, a hospice, a hospital, an intensive outpatient treatment program or any 
program specifically approved by the court.  When a person who has been evaluated 
on behalf of the court by the State Forensic Service or other appropriate office of the 
Department of Health and Human Services is committed into the custody of the 
Commissioner of Health and Human Services under this paragraph, the court shall 
order that the State Forensic Service or other appropriate office of the Department of 
Health and Human Services share any information that it has collected or generated 
with respect to the person with the institution or residential program in which the 
person is placed.  If the defendant is charged with an offense under Title 17-A, 
chapter 9, 11 or 13 or Title 17-A, section 506-A, 802 or 803-A and the court 
determines that the defendant is not competent to stand trial and there does not exist a 
substantial probability that the defendant can be competent in the foreseeable future, 
the court shall dismiss all charges against the defendant and, unless the defendant is 
subject to an undischarged term of imprisonment, order the Commissioner of Health 
and Human Services to commence proceedings pursuant to Title 34-B, chapter 3, 
subchapter 4.  If the defendant is charged with an offense other than an offense under 
Title 17-A, chapter 9, 11 or 13 or Title 17-A, section 506-A, 802 or 803-A and the 
court determines that the defendant is not competent to stand trial and there does not 
exist a substantial probability that the defendant can be competent in the foreseeable 
future, the court shall dismiss all charges against the defendant and, unless the 
defendant is subject to an undischarged term of imprisonment, notify the appropriate 
authorities who may institute civil commitment proceedings for the individual.  If the 
defendant is subject to an undischarged term of imprisonment, the court shall order 
the defendant into execution of that sentence and the correctional facility to which the 
defendant must be transported shall execute the court's order; or 
Sec. 3.  15 MRSA §103, first ¶, as amended by PL 2011, c. 542, Pt. A, §10, is 
further amended to read: 
When a court accepts a negotiated plea of not criminally responsible by reason of 
insanity or when a defendant is found not criminally responsible by reason of insanity by 
jury verdict or court finding, the judgment must so state.  In those cases the court shall 
order the person committed to the custody of the Commissioner of Health and Human 
Services to be placed in the secure, therapeutic mental health unit established pursuant to 
Title 34-A, section 4303 unless the Commissioner of Health and Human Services 
determines the person's placement in that unit is contraindicated, in which case the person 
may be placed in an appropriate alternative institution that is appropriate for the care and 
treatment of persons with mental illness or in an appropriate residential program that 
provides care and treatment for persons who have intellectual disabilities or autism for 
care and treatment.  Upon placement in the appropriate institution or residential program 
and in the event of transfer from one institution or residential program to another of 
persons committed under this section, notice of the placement or transfer must be given 
by the commissioner to the committing court. 
Sec. 4.  34-A MRSA §3069-A, sub-§§1 and 2, as enacted by PL 2013, c. 434, 
§5, are amended to read: 
1.  Eligible inmates.  The commissioner may transfer from a jail to a correctional 
facility an adult inmate who the chief administrative officer of the Riverview Psychiatric 
Center confirms is eligible for admission to a state mental health institute under Title 
34-B, section 3863, but for whom no suitable bed is available, for the purpose of 
providing to the inmate mental health services in a mental health unit of a correctional 
facility that provides intensive mental health care and treatment.  The commissioner may 
not transfer pursuant to this section a person who has been found not criminally 
responsible by reason of insanity.  The commissioner may return an inmate transferred 
pursuant to this subsection back to the sending facility. 
For purposes of this subsection, "intensive mental health care and treatment" has the same 
meaning as in section 3049, subsection 1. 
For purposes of this subsection, "state mental health institute" includes the secure, 
therapeutic mental health unit established pursuant to section 4303. 
2.  Evaluation.  The commissioner may transfer from a jail to a correctional facility 
an adult inmate whom the court orders to be examined or further evaluated by the State 
Forensic Service under Title 15, section 101-D, subsection 1, 2, 3 or 9 if the State 
Forensic Service determines that the secure, therapeutic mental health unit does not have 
a suitable bed available or that the jail where the inmate is incarcerated cannot provide an 
appropriate setting for the examination but that a mental health unit in a correctional 
facility can provide an appropriate setting for the examination.  The commissioner shall 
return an inmate transferred pursuant to this subsection back to the sending facility upon 
the completion of the examination ordered, including any further evaluation ordered, 
unless the commissioner transferred the inmate for another reason in addition to the 
examination. 
Sec. 5.  34-A MRSA §3069-B, sub-§1, ¶B, as enacted by PL 2013, c. 434, §6, is 
amended to read: 
B.  There is not sufficient security at a state mental health institute to address the 
likelihood of serious harm; and 
Sec. 6.  34-A MRSA §3069-B, sub-§1, ¶B-1 is enacted to read: 
B-1.  There is not a suitable bed available at the secure, therapeutic mental health unit 
established pursuant to section 4303; and 
Sec. 7.  34-A MRSA c. 3, sub-c. 10 is enacted to read: 
SUBCHAPTER 10 
SECURE, THERAPEUTIC MENTAL HEALTH UNIT 
§4301.  Secure, therapeutic mental health unit 
The department shall establish a secure, therapeutic mental health unit in accordance 
with this subchapter. 
§4302.  Definitions 
As used in this subchapter, unless the context otherwise indicates, the following 
terms having the following meanings. 
1.  Forensic patient.  "Forensic patient" means a person who has been ordered by a 
court to undergo examination by the State Forensic Service under Title 15, section 101-D 
or a person committed under Title 15, section 103. 
2.  Likelihood of serious harm.  "Likelihood of serious harm" means a substantial 
risk of physical harm to other persons, as manifested by a person's recent homicidal or 
other violent behavior or recent conduct placing others in reasonable fear of serious 
physical harm. 
3.  Person with mental illness.  "Person with mental illness" means a person who 
has attained 18 years of age and has been diagnosed as having a psychiatric or other 
illness that substantially impairs that person's mental health.  An intellectual disability as 
defined in Title 34-B, section 5001, subsection 3 or a personality disorder is not a 
psychiatric or other illness for purposes of this subsection. 
4.  Unit.  "Unit" means the secure, therapeutic mental health unit established pursuant 
to section 4303. 
§4303.  Unit establishment 
The department and the Commissioner of Health and Human Services shall enter into 
an agreement with either the sheriff of Cumberland County or the sheriff of Somerset 
County to establish a secure, therapeutic mental health unit within the county jail 
facilities of either Cumberland County or Somerset County for the purposes of providing 
risk assessments and therapeutic care for forensic patients. 
1.  Security and mental health staff.  The department shall provide: 
A.  Security for the unit and transportation of patients to and from the unit.  Security 
staff must be dedicated to the unit and trained to provide security in a mental health 
hospital environment; and 
B.  Therapeutic mental health care that meets or exceeds the standards for mental 
health services in a correctional facility established by a national organization that 
has an accreditation program for correctional facilities that provide mental health 
treatment.  The department, in consultation with the Department of Health and 
Human Services, may contract with a private entity to provide therapeutic mental 
health care at the unit or may enter into an agreement with the Department of Health 
and Human Services and the county jail to have the Department of Health and 
Human Services provide therapeutic mental health care. 
2.  Sight and sound separation.  The population in the unit must be separated by 
sight and sound from the general jail population at all times. 
3.  Admittance to the unit.  A person who is ordered to undergo examination by the 
State Forensic Service under Title 15, section 101-D must be placed into the unit unless: 
A.  The person is an inmate at a state correctional facility; 
B.  The Department of Health and Human Services determines that the person's 
mental health condition contraindicates placement in the unit; or 
C.  The department determines that there is not a suitable bed in the unit available for 
the person. 
4.  Federal certification.  The department, the Department of Health and Human 
Services and the county sheriff for the county in which the unit is located shall work to 
obtain and maintain for the unit federal certification as a mental health hospital. 
Sec. 8.  34-B MRSA §1207, sub-§1, ¶B, as amended by PL 2013, c. 132, §1 and 
amended by c. 434, §7, is repealed and the following enacted in its place: 
B.  Information may be disclosed if necessary to carry out the statutory functions of 
the department; the hospitalization provisions of chapter 3, subchapter 4; the 
provisions of section 1931; the purposes of section 3608; the purposes of Title 5, 
section 19506; the purposes of United States Public Law 99-319, dealing with the 
investigatory function of the independent agency designated with advocacy and 
investigatory functions under United States Public Law 88-164, Title I, Part C or 
United States Public Law 99-319; the investigation and hearing pursuant to Title 15, 
section 393, subsection 4-A; or the provision of mental health services by the 
Department of Corrections pursuant to Title 34-A, section 3031, 3069-A, 3069-B or 
4303.  This paragraph is repealed August 1, 2017; 
Sec. 9.  34-B MRSA §1207, sub-§1, ¶B-3, as enacted by PL 2013, c. 434, §8, is 
amended to read: 
B-3.  Information may be disclosed if necessary to carry out the statutory functions of 
the department; the hospitalization provisions of chapter 3, subchapter 4; the 
provisions of section 1931; the purposes of sections 3607-A and section 3608; the 
purposes of Title 5, section 19506; the purposes of United States Public Law 99-319, 
dealing with the investigatory function of the independent agency designated with 
advocacy and investigatory functions under United States Public Law 88-164, Title I, 
Part C or United States Public Law 99-319; or the investigation and hearing pursuant 
to Title 15, section 393, subsection 4-A; or the provision of therapeutic mental health 
care by the Department of Corrections pursuant to Title 34-A, section 4303.  This 
paragraph takes effect August 1, 2017; 
Sec. 10.  34-B MRSA §3801, sub-§7-B, as amended by PL 2009, c. 651, §9, is 
further amended to read: 
7-B.  Psychiatric hospital.  "Psychiatric hospital" means: 
A.  A state mental health institute;  
B.  A nonstate mental health institution; or 
C.  A designated nonstate mental health institution. 
For purposes of sections 3863 and 3864, "psychiatric hospital" includes the secure, 
therapeutic mental health unit established pursuant to Title 34-A, section 4303. 
Sec. 11.  34-B MRSA §3863, sub-§2-A, as amended by PL 2007, c. 319, §9, is 
further amended to read: 
2-A.  Custody agreement.  A state, county or municipal law enforcement agency 
may meet with representatives of those public and private health practitioners and health 
care facilities that are willing and qualified to perform the certifying examination required 
by this section in order to attempt to work out a procedure for the custody of the person 
who is to be examined while that person is waiting for that examination.  Any agreement 
must be written and signed by and filed with all participating parties.  In the event of 
failure to work out an agreement that is satisfactory to all participating parties, the 
procedures of section 3862 and this section continue to apply. 
As part of an agreement the law enforcement officer requesting certification may transfer 
protective custody of the person for whom the certification is requested to another law 
enforcement officer, a health officer if that officer agrees or the chief administrative 
officer of a public or private health practitioner or health facility or the chief 
administrative officer's designee.  Any arrangement of this sort must be part of the written 
agreement between the law enforcement agency and the health practitioner or health care 
facility.  In the event of a transfer, the law enforcement officer seeking the transfer shall 
provide the written application required by this section. 
A Except for placement in the secure, therapeutic mental health unit established pursuant 
to Title 34-A, section 4303, a person with mental illness may not be detained or confined 
in any jail or local correctional or detention facility, whether pursuant to the procedures 
described in section 3862, pursuant to a custody agreement or under any other 
circumstances, unless that person is being lawfully detained in relation to or is serving a 
sentence for commission of a crime. 
Sec. 12.  Report of Department of Health and Human Services, 
Department of Corrections and the Cumberland County sheriff or Somerset 
County sheriff.  By January 15, 2017, the Department of Corrections, in collaboration 
with the Department of Health and Human Services and the county sheriff of the county 
in which the secure, therapeutic mental health unit established pursuant to the Maine 
Revised Statutes, Title 34-A, section 4303 is located, shall submit a report to the joint 
standing committee of the Legislature having jurisdiction over criminal justice matters 
regarding the operations of the unit.  The report must include the following information 
regarding the unit: the average daily population of the unit, the average daily staffing 
patterns, the average length of stay in the unit, a description of services provided and the 
number of persons placed in the unit.  The report must also include recommendations 
regarding the reallocation of resources for the unit; the design of the unit; the provisions 
of forensic services at the Riverview Psychiatric Center and the unit; and the transfer 
provisions of Title 34-A, sections 3069, 3069-A and 3069-B. 
SUMMARY 
This bill provides for the establishment of a secure, therapeutic mental health unit for 
defendants undergoing court-ordered assessments to determine their competency to stand 
trial or their criminal culpability and to provide therapeutic care for forensic patients.  
The bill establishes the unit as follows. 
1.  It directs the Commissioner of Corrections and the Commissioner of Health and 
Human Services to enter into an agreement to establish the unit with the sheriff of either 
Cumberland County or Somerset County. 
2.  It directs the Department of Corrections to provide security for the unit.  Security 
staff must be dedicated to the unit and trained to provide security in a mental health 
hospital environment. 
3.  It directs the Department of Corrections to provide therapeutic mental health care 
for the unit.  The therapeutic mental health care must meet standards established by a 
national organization on correctional facilities mental health standards.  The Department 
of Health and Human Services may also provide mental health services to the unit upon 
agreement with the Department of Corrections and the county jail. 
4.  It requires that the population in a secure, therapeutic mental health unit be 
separated by sight and sound from the general jail population. 
5.  It specifies that a person under a court order to undergo a mental evaluation by the 
State Forensic Service must be admitted to the unit unless the Department of Health and 
Human Services determines that the person's mental health condition contraindicates 
admittance to the unit, the person is an inmate at a state correctional facility or there is not 
a suitable bed available.