An Act Regarding Persons Who Are Found Not Criminally Responsible and Are Sent out of State for Treatment
Maine Legislature, Session 129, LD 1512
Committee: Health and Human Services
Sponsors: GATTINE, BREEN, McCREIGHT, O'CONNOR, TALBOT ROSS, WARREN, SANBORN
Amends: 5 MRSA §12004-I, 15 MRSA §103, 15 MRSA §109, 15 MRSA §104-A

Legislative Document
No. 1512
H.P. 1105
House of Representatives, April 9, 2019
An Act Regarding Persons Who Are Found Not Criminally 
Responsible and Are Sent out of State for Treatment
Reference to the Committee on Health and Human Services suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative GATTINE of Westbrook.
Cosponsored by Senator BREEN of Cumberland and
Representatives: McCREIGHT of Harpswell, O'CONNOR of Berwick, TALBOT ROSS of 
Portland, WARREN of Hallowell, Senator: SANBORN, L. of Cumberland.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  5 MRSA §12004-I, sub-§47-J is enacted to read:
47-J.  
Sec. 2.  15 MRSA §103, as amended by PL 2013, c. 424, Pt. B, §3, is further 
amended to read:
§103.  Commitment following acceptance of negotiated insanity plea or following 
verdict or finding of insanity
When A judgment must state if a court accepts a negotiated plea of not criminally 
responsible by reason of insanity or when if 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.  Upon a judgment of not criminally responsible by reason of 
insanity, the court shall order the person committed to the custody of the Commissioner 
of Health and Human Services to be placed in an appropriate institution 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.  If the court determines that a person committed under this section is 
to be placed in an institution outside the State, prior to the placement the court shall 
conduct a hearing to determine if the placement outside the State is the least restrictive 
appropriate placement, if an equivalent placement is not available in the State and if the 
institution outside the State will comply with the reporting provisions of section 104-A, 
subsection 1. Subsequent to being placed in an institution outside the State under this 
section, a person may petition the Superior Court of the county in which the person was 
committed to determine if the placement outside the State is the least restrictive 
appropriate placement and if an equivalent placement is not available in the State.  The 
court shall give reasonable notice of a hearing under this section to the Attorney General 
and the office of the district attorney that prosecuted the criminal charges for which the 
person was committed under this section.  A hearing under this section must include the 
testimony of at least one psychiatrist who has treated the person and a member of the 
State Forensic Service who has examined the person, the testimony of an independent 
psychiatrist or licensed clinical psychologist who is employed by the prosecutor and has 
examined the person, any other relevant testimony and documentation that the institution 
outside the State agrees to comply with the reporting provisions of section 104-A, 
subsection 1. If, after hearing, the court finds that the placement outside the State is not 
the least restrictive, that there is an equivalent appropriate placement in the State or there 
is insufficient evidence that the institution outside the State agrees to comply with the 
reporting provision of section 104-A, subsection 1, the court shall order that the person 
remain in or be placed in an appropriate placement in the State, which may include an 
order that the person be returned from outside the State. If the court determines that a 
Human Services
Committee for 
Oversight of Out-of-
state Forensic 
Patients
Not Authorized
MRSA §109
person is to be placed in an institution outside the State, the placement may not proceed 
until the institution outside the State agrees in writing to comply with the reporting 
provisions of section 104-A, subsection 1.  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 a person committed under this section, notice of the 
placement or transfer must be given by the commissioner to the committing court.
When a person who has been evaluated on behalf of a court by the State Forensic 
Service is committed into the custody of the Commissioner of Health and Human 
Services pursuant to this section, the court shall order that the State Forensic Service 
share any information it has collected or generated with respect to the person with the 
institution or residential program in which the person is placed and to the committee for 
oversight of out-of-state forensic patients under section 109 upon request of the 
committee and production of the person's written authorization under section 109, 
subsection 6.
As used in this section, "not criminally responsible by reason of insanity" has the 
same meaning as in Title 17-A, section 39 and includes any comparable plea, finding or 
verdict in this State under former section 102; under a former version of Title 17-A, 
section 39; under former Title 17-A, section 58; or under former section 17-B, chapter 
of the Revised Statutes of 1954.
Sec. 3.  15 MRSA §104-A, sub-§1, as amended by PL 2005, c. 464, §1, is further 
amended to read:
1.  Release and discharge.  The term "release," as used in this section, means 
termination of institutional inpatient residency and return to permanent residency in the 
community.  The head of the institution in which a person is placed, under section 103, 
shall, annually, forward to the Commissioner of Health and Human Services a report 
containing the opinion of a staff psychiatrist as to the mental conditions of that person, 
stating specifically whether the person may be released or discharged without likelihood 
that the person will cause injury to that person or to others due to mental disease or 
mental defect.  If a person has been placed in an institution outside the State pursuant to 
section 103, the institution quarterly shall forward the report to the commissioner.  The 
report must also contain a brief statement of the reasons for the opinion.  If a person who 
has been found not criminally responsible by reason of insanity for the crime of murder 
or a Class A crime and was committed under section 103 is the subject of a report finding 
that the person may be released, the report must specifically describe recommend the 
supervision for the Department of Health and Human Services will to provide the person 
and must specifically include measures for the department will to take to provide 
psychoactive medication monitoring of the person.  The commissioner shall immediately 
file the report in the Superior Court for the county in which the person is committed.  The 
court shall review each report and, if it is made to appear by the report that any person 
may be ready for release or discharge, the court shall set a date for and hold a hearing on 
the issue of the person's readiness for release or discharge.  The court shall give notice of 
the hearing and mail a copy of the report to the Attorney General, offices of the district 
attorney that prosecuted the criminal charges for which the person was committed under 
section 103 and the offices of the district attorneys in whose district the release petition 
was filed or in whose district release may occur.  At the hearing, the court shall receive 
the testimony of at least one psychiatrist who has treated the person and a member of the 
State Forensic Service who has examined the person, the testimony of any independent 
psychiatrist or licensed clinical psychologist who is employed by the prosecutor and has 
examined the person and any other relevant testimony.  If, after hearing, the court finds 
that the person may be released or discharged without likelihood that the person will 
cause injury to that person or to others due to mental disease or mental defect, the court 
shall order, as applicable:
A.  Release from the institution, provided that: 
(1)  The order for release includes conditions determined appropriate by the 
court, including, but not limited to, outpatient treatment and supervision by the 
Department of Health and Human Services, Division of Mental Health.  If the 
order for release covers a person found not criminally responsible by reason of 
insanity for the crime of murder or a Class A crime and was committed under 
section 103, the order must direct the Department of Health and Human Services 
to provide the level of supervision necessary, including specific measures to 
provide psychoactive medication monitoring; and 
(2)  The order for release includes the condition that the person must be returned 
to the institution immediately upon the order of the commissioner whenever the 
person fails to comply with other conditions of release ordered by the court; or
B.  Discharge from the custody of the Commissioner of Health and Human Services.
Release from the institution is subject to annual review by the court and, except for return 
as ordered by the commissioner under paragraph A, subparagraph (1), must continue until 
terminated by the court.  Each person released under this section shall remain remains in 
the custody of the commissioner.  The Commissioner of Health and Human Services shall 
inform the public safety officer of the municipality or the sheriff's office of the county 
into which the person is released of the release.
Sec. 4.  15 MRSA §109 is enacted to read:
§109.  Committee for the oversight of out-of-state forensic patients
1.  Definitions.  As used in this section, unless the context otherwise indicates, the 
following words have the following meanings.
A.  "Commissioner" means the Commissioner of Health and Human Services.
B.  "Committee" means an oversight committee to review the status of forensic 
patients placed in institutions outside the State.
C.  "Department" means the Department of Health and Human Services.
D.  "Patient" means a forensic patient placed in an institution outside the State under 
section 103.
2.  Committee convened.  The commissioner shall convene an oversight committee 
to review the status of forensic patients placed in institutions outside the State.
3.  Membership.  The committee consists of 6 members appointed by the 
commissioner as follows:
A.  A representative of a statewide organization representing consumers in public 
policy and mental health services recognized by the department;
B.  A representative of a national organization representing people with mental illness 
recognized by the department;
C.  A psychiatrist licensed in the State;
D.  A clinical social worker licensed in the State;
E.  A person certified as an intentional peer support specialist by the Office of 
Substance Abuse and Mental Health Services; and
F.  A family member of a patient who is involved in the patient's care.
The term of a member is one year and a member may be appointed to one or more 
successive terms.  The members shall select a chair from among the membership.  The 
committee shall meet at least quarterly and at other times as determined by the chair.  
Four members of the committee constitute a quorum.  Members serve without 
compensation.  The department shall provide administrative support to the committee.
4.  Duties.  The duties of the committee include:
A.  Reviewing, subject to subsection 6, every case of a patient, including the patient's 
medical and treatment records and any quarterly reports provided under section 
104-A, subsection 1, to determine if:
(1)  The patient is placed in the least restrictive environment;
(2)  The patient is receiving adequate treatment; and
(3)  The department is actively working on a plan to return the patient to the 
State; and
B.  Issuing recommendations under subsection 5.
5.  Recommendations.  Based on its review under subsection 4, the committee may 
issue recommendations to be forwarded to the commissioner, the head of the institution 
where the patient is placed, the court of record, a family member designated by the 
patient and the patient's attorney or, if the patient does not have an attorney, the patient's 
attorney of record. The committee shall state in the recommendations if the committee 
finds that the standards under subsection 4 are not being met.  The recommendations may 
be used by the patient's attorney or attorney of record to request a hearing under section 
103.
6.  Confidentiality.  Committee meetings and findings are confidential. A patient or 
the patient's authorized designee or guardian shall execute a written authorization form 
allowing disclosure of the patient's records to the committee.
SUMMARY
This bill concerns persons charged with crimes who are judged not criminally 
responsible by reason of insanity who are placed in an institution outside the State.  The 
bill:
1.  Requires the court, before placing a person in an institution outside the State or 
upon request of the person after being placed outside the State, to conduct a hearing to 
find that the institution is the least restrictive placement, that there is not an equivalent 
placement within the State and that the institution outside the State will comply with state 
reporting requirements;
2.  Requires an institution outside the State in which a patient is placed to provide 
quarterly status reports on the patient to the Commissioner of Health and Human 
Services; and
3.  Directs the Commissioner of Health and Human Services to convene an oversight 
committee to review the status of forensic patients placed in institutions outside the State 
to determine if a patient is in the least restrictive environment and receiving adequate care 
and if the Department of Health and Human Services is actively working on a plan to 
return the patient to the State and to make recommendations to the commissioner, the 
head of the institution where the patient is placed, the court of record, a family member 
designated by the patient and the patient's attorney or, if the patient does not have an 
attorney, the patient's attorney of record.