Unless specifically stated in an order by the court, a respondent does not forfeit any legal right or suffer legal disability by reason of the provisions of this article 65.
Source: L. 2022: Entire article amended with relocations, (HB 22-1256), ch. 451, p. 3179, � 1, effective August 10; (6) repealed, (HB 22-1256), ch. 451, p. 3240, � 56, effective August 10.
Editor's note: (1) The provisions of this section are similar to � 27-65-104 as it existed prior to 2022.
(2) Subsection (6) was repealed in � 56 of HB 22-1256, effective August 10, 2022. However, those repeals were superseded by the amendment of this entire article by � 1 of HB 22-1256, effective August 10, 2022.
27-65-106. Emergency mental health hold - screening - court-ordered evaluation - discharge instructions - respondent's rights. (1) An emergency mental health hold may be invoked under one of the following conditions:
(a) (I) When a certified peace officer has probable cause to believe a person has a mental health disorder and, as a result of the mental health disorder, is an imminent danger to the person's self or others or is gravely disabled, the certified peace officer may take the person into protective custody and transport the person to a facility designated by the commissioner for an emergency mental health hold. If such a facility is not available, the certified peace officer may transport the person to an emergency medical services facility. The certified peace officer may request assistance from a behavioral health crisis response team for assistance in detaining and transporting the person or an emergency medical services provider in transporting the person; or
(II) When an intervening professional reasonably believes that a person appears to have a mental health disorder and, as a result of the mental health disorder, appears to be an imminent danger to the person's self or others or appears to be gravely disabled, the intervening professional may cause the person to be taken into protective custody and transported to a facility designated by the commissioner for an emergency mental health hold. If such a facility is not available, the certified peace officer may transport the person to an emergency medical services facility. The intervening professional may request assistance from a certified peace officer, a secure transportation provider, or a behavioral health crisis response team for assistance in detaining and transporting the person, or assistance from an emergency medical services provider in transporting the person.
(b) (I) When a person petitions the court in the county in which the respondent resides or is physically present requesting an evaluation of the respondent's condition and alleging that the respondent appears to have a mental health disorder and, as a result of the mental health disorder, appears to be a danger to the respondent's self or others or appears to be gravely disabled.
(II) Any person who files a malicious or false petition for an evaluation of a respondent pursuant to this section is subject to criminal prosecution.
(2) When a person is taken into custody pursuant to subsection (1) of this section, the person must not be detained in a jail, lockup, or other place used for the confinement of persons charged with or convicted of penal offenses. Unless otherwise required by law, a certified peace officer may transport the person to an emergency medical services facility or facility designated by the commissioner even if a warrant has been issued for the person's arrest if the certified peace officer believes it is in the best interest of the person. The person must not be held on an emergency mental health hold for longer than seventy-two hours after the hold is placed or ordered. Nothing in this section prohibits an emergency medical services facility from involuntarily holding the person in order to stabilize the person as required pursuant to the federal Emergency Medical Treatment and Labor Act, 42 U.S.C. sec. 1395dd, or if the treating professional determines that the individual's physical or mental health disorder impairs the person's ability to make an informed decision to refuse care and the provider determines that further care is indicated.
(3) When a person is placed on an emergency mental health hold pursuant to subsection (1) of this section and is presented to an emergency medical services facility or a facility designated by the commissioner, the facility shall require a BHA-approved application in writing, stating the circumstances under which the person's condition was called to the attention of the intervening professional or certified peace officer and further stating sufficient facts, obtained from the intervening professional's or certified peace officer's personal observations or obtained from others whom the intervening professional or certified peace officer reasonably believes to be reliable, to establish that the person has a mental health disorder and, as a result of the mental health disorder, is an imminent danger to the person's self or others or is gravely disabled. The application must indicate when the person was taken into custody and who brought the person's condition to the attention of the intervening professional or certified peace officer. A copy of the application must be furnished to the person being evaluated, and the application must be retained in accordance with section 27-65-123 (4).
(4) (a) The petition for a court-ordered evaluation filed pursuant to subsection (1)(b) of this section must contain the following:
(I) The name and address of the petitioner and the petitioner's interest in the case;
(II) The name of the respondent for whom evaluation is sought, and, if known to the petitioner, the address, age, gender, marital status, occupation, and any animals or dependent children in the respondent's care;
(III) Allegations of fact indicating that the respondent may have a mental health disorder and, as a result of the mental health disorder, be a danger to the respondent's self or others or be gravely disabled and showing reasonable grounds to warrant an evaluation;
(IV) The name and address of every person known or believed by the petitioner to be legally responsible for the care, support, and maintenance of the respondent, if available; and
(V) The name, address, and telephone number of the attorney, if any, who has most recently represented the respondent.
(b) Upon receipt of a petition satisfying the requirements of subsection (4)(a) of this section, if the court is not satisfied that probable cause exists to issue an order for an evaluation, the court shall identify a facility designated by the commissioner, an intervening professional, or a certified peace officer to provide screening of the respondent to determine whether probable cause exists to believe the allegations.
(c) Following the screening described in subsection (4)(b) of this section, the facility, intervening professional, or certified peace officer designated by the court shall file a report with the court and may initiate an emergency mental health hold at the time of screening. The report must include a recommendation as to whether probable cause exists to believe that the respondent has a mental health disorder and, as a result of the mental health disorder, is a danger to the respondent's self or others or is gravely disabled and whether the respondent will voluntarily receive evaluation or treatment. The screening report submitted to the court pursuant to this subsection (4)(c) is confidential in accordance with section 27-65-123 and must be furnished to the respondent or the respondent's attorney or personal representative.
(d) Whenever it appears, by petition and screening pursuant to this section, to the satisfaction of the court that probable cause exists to believe that the respondent has a mental health disorder and, as a result of the mental health disorder, is a danger to the respondent's self or others or is gravely disabled and that efforts have been made to secure the cooperation of the respondent but the respondent has refused or failed to accept evaluation voluntarily, the court shall issue an order for evaluation authorizing a certified peace officer or secure transportation provider to take the respondent into custody and transport the respondent to a facility designated by the commissioner for an emergency mental health hold. At the time the respondent is taken into custody, a copy of the petition and the order for evaluation must be given to the respondent and promptly thereafter to the one lay person designated by the respondent and to the person in charge of the facility named in the order or the respondent's designee. If the respondent refuses to accept a copy of the petition and the order for evaluation, such refusal must be documented in the petition and the order for evaluation.
(5) When a person is transported to an emergency medical services facility or a facility designated by the commissioner, the facility may detain the person under an emergency mental health hold for evaluation for a period not to exceed seventy-two hours from the time the emergency mental health hold was placed or ordered. Nothing in this section prohibits an emergency medical services facility from involuntarily holding the person in order to stabilize the person as required pursuant to the federal Emergency Medical Treatment and Labor Act, 42 U.S.C. sec. 1395dd, or if the treating professional determines that the individual's physical or mental health disorder impairs the person's ability to make an informed decision to refuse care and the provider determines that further care is indicated. If, in the opinion of the person in charge of the evaluation, the person can be properly cared for without being detained, the person shall be provided services on a voluntary basis. If the person in charge of the evaluation determines the person should be released, the person in charge of the evaluation may terminate the emergency mental health hold.
(6) (a) Each person detained for an emergency mental health hold pursuant to this section shall receive an evaluation as soon as possible after the person is presented to the facility and shall receive such treatment and care as the person's condition requires for the full period that the person is held. The evaluation must include an assessment to determine if the person continues to meet the criteria for an emergency mental health hold and requires further mental health care in a facility designated by the commissioner. The evaluation must state whether the person should be released, referred for further care and treatment on a voluntary basis, or certified for short-term treatment pursuant to section 27-65-109.
(b) Each evaluation must be completed using a standardized form approved by the commissioner and may be completed by a professional person; a licensed advanced practice registered nurse with training in psychiatric nursing; or a licensed physician assistant, a licensed clinical social worker, a licensed professional counselor, or a licensed marriage and family therapist who has two years of experience in behavioral health safety and risk assessment working in a health-care setting.
(c) If the person conducting an evaluation pursuant to subsection (6)(a) of this section is not a professional person and the evaluating person recommends the detained person be certified for short-term treatment pursuant to section 27-65-109, the evaluating person shall notify the facility of the recommendation. A certification may only be initiated by a professional person.
(7) (a) If a person is evaluated at an emergency medical services facility and the evaluating professional determines that the person continues to meet the criteria for an emergency mental health hold pursuant to subsection (1) of this section, the emergency medical services facility shall immediately notify the BHA if the facility cannot locate appropriate placement. Once notified, the BHA shall support the emergency medical services facility in locating an appropriate placement option on an inpatient or outpatient basis, whichever is clinically appropriate.
(b) If an appropriate placement option cannot be located pursuant to subsection (7)(a) of this section and the person continues to meet the criteria for an emergency mental health hold pursuant to subsection (1) of this section and the person has been medically stabilized, the emergency medical services facility may place the person under a subsequent emergency mental health hold. If the facility places the person under a subsequent emergency mental health hold, the facility shall immediately notify the BHA, the person's lay person, and the court, and the court shall immediately appoint an attorney to represent the person. The facility may notify the court where the person resides by mail. Once the court is notified, the emergency medical services facility is not required to take any further action to provide the person with an attorney unless specified in subsection (10) of this section. The emergency medical services facility shall notify the BHA after each emergency mental health hold is placed. The BHA is responsible for actively assisting the facility in locating appropriate placement for the person. If the person has been recently transferred from an emergency medical services facility to a facility designated by the commissioner and the designated facility is able to demonstrate that the facility is unable to complete the evaluation before the initial emergency mental health hold is set to expire, the designated facility may place the person under a subsequent emergency mental health hold and shall immediately notify the BHA and lay person.
(c) The BHA shall maintain data on the characteristics of each person placed on a subsequent emergency mental health hold pursuant to subsection (7)(b) of this section. The BHA may contract with entities coordinating care or with providers serving within the safety net system developed pursuant to section 27-63-105 to meet the requirements of this subsection (7).
(d) A hospital that is subject to the federal Emergency Medical Treatment and Labor Act, 42 U.S.C. sec. 1395dd, shall only discharge a person placed on an emergency mental health hold if the person no longer meets the criteria for an emergency mental health hold; except that a hospital may transfer the person to another hospital if the hospital is unable to provide the appropriate medical or behavioral health care to the person and the receiving hospital agrees to the transfer.
(8) (a) The facility shall provide each person detained for an emergency mental health hold discharge instructions. The discharge instructions must be completed for every person, regardless of the person's discharge status, before the person is released. If the detained person refuses to accept the discharge instructions, the refusal must be documented in the person's medical record. At a minimum, the discharge instructions must include:
(I) A summary of why the person was detained or evaluated for an emergency mental health hold; detailed information as to why the evaluating professional determined the person no longer meets the criteria for an emergency mental health hold or certification pursuant to section 27-65-109; and whether the person may receive services on a voluntary basis pursuant to subsection (6) of this section;
(II) If the person's medications were changed or the person was newly prescribed medications during the emergency mental health hold, a clinically appropriate supply of medications, as determined by the judgment of a licensed health-care provider, for the person until the person can access another provider or follow-up appointment;
(III) A safety plan for the person and, if applicable, the person's lay person where indicated by the person's mental health disorder or mental or emotional state;
(IV) Notification to the person's primary care provider, if applicable;
(V) A referral to appropriate services, if such services exist in the community, if the person is discharged without food, housing, or economic security. Any referrals and linkages must be documented in the person's medical record.
(VI) Information on the 988 crisis hotline operated pursuant to section 27-64-103 and information on the availability of peer support services;
(VII) Information on how to establish a psychiatric advance directive if one is not presented;
(VIII) Medications that were changed during the emergency mental health hold, including any medications that the person was taking or that were previously prescribed upon admission, and which medications, if any, were changed or discontinued at the time of discharge;
(IX) A list of any screening or diagnostic tests conducted during the emergency mental health hold, if requested;
(X) A summary of therapeutic treatments provided during the emergency mental health hold, if requested;
(XI) Any laboratory work, including blood samples or imaging that was completed or attempted, if requested;
(XII) The person's vital signs upon discharge from the emergency mental health hold, if requested;
(XIII) A copy of any psychiatric advance directive presented to the facility, if applicable; and
(XIV) How to contact the discharging facility if needed.
(b) The facility shall document in the person's medical record whether the person accepted the discharge instructions. The facility shall provide the discharge instructions to the person's parent or legal guardian if the person is under eighteen years of age, and to the person's lay person, when possible.
(c) Upon discharge, the facility shall discuss with the person, the person's parent or legal guardian, or the person's lay person the statewide care coordination infrastructure established in section 27-60-204 to facilitate a follow-up appointment for the person within seven calendar days after the discharge. Facilities shall comply with this subsection (8)(c) when the statewide care coordination infrastructure created in section 27-60-204 is fully operational, as determined by the BHA. The BHA shall immediately notify facilities when the statewide care coordination infrastructure is available to assist persons with discharge.
(d) (I) The facility shall, at a minimum, attempt to follow up with the person, the person's parent or legal guardian, or the person's lay person at least forty-eight hours after discharge. The facility is encouraged to utilize peer support professionals, as defined in section 27-60-108 (2)(b), when performing follow-up care with individuals and in developing a continuing care plan pursuant to subsection (8)(a)(I) of this section. The facility may facilitate follow-up care through contracts with community-based behavioral health providers or the 988 crisis hotline operated pursuant to section 27-64-103. If the facility facilitates follow-up care through a third-party contract, the facility shall obtain authorization from the person to provide follow-up care.
(II) If the person is enrolled in medicaid, the facility is not required to meet the requirements of this subsection (8)(d) and instead, the facility shall notify the person's relevant managed care entity, as defined in section 25.5-5-403, of the person's discharge and need for ongoing follow-up care prior to the person's discharge.
(III) If the facility contracts with a safety net provider, as defined in section 27-50-101, to provide behavioral health services to a person on or following an emergency mental health hold, the facility shall work with the safety net provider in order to meet the requirements of this subsection (8)(d).
(e) The facility shall encourage the person to designate a family member, friend, or other person as a lay person to participate in the person's discharge planning and shall notify the person that the person is able to rescind the authorization of a lay person at any time. If the person designates a lay person and has provided necessary authorization, the facility shall attempt to involve the lay person in the person's discharge planning. The facility shall notify the lay person that the person is being discharged or transferred.
(9) (a) On or before July 1, 2024, and each July 1 thereafter, each emergency medical services facility that has evaluated a person pursuant to this section shall provide an annual report to the BHA that includes only disaggregated and nonidentifying information concerning persons who were treated at an emergency medical services facility pursuant to this section. The report must comply with section 24-1-136 (9) and is exempt from section 24-1-136 (11)(a)(I). The report must contain the following:
(I) The names and counties of the facilities;
(II) The total number of persons treated pursuant to this section, including a summary of demographic information;
(III) A summary regarding the different reasons for which persons were treated pursuant to this section; and
(IV) A summary of the disposition of persons transferred to a designated facility.
(b) (I) Any information disaggregated and provided to the BHA pursuant to this subsection (9) is privileged and confidential. Such information must not be made available to the public except in an aggregate format that cannot be used to identify an individual facility. The information is not subject to civil subpoena and is not discoverable or admissible in any civil, criminal, or administrative proceeding against an emergency medical services facility or health-care professional. The information must be used only to assess statewide behavioral health services needs and to plan for sufficient levels of statewide behavioral health services. In collecting the data pursuant to the requirements of this subsection (9), the BHA shall protect the confidentiality of patient records, in accordance with state and federal laws, and shall not disclose any public identifying or proprietary information of any hospital, hospital administrator, health-care professional, or employee of a health-care facility.
(II) Subsection (9)(b)(I) of this section does not apply to information that is otherwise available from a source outside of the data collection activities required pursuant to subsection (9)(a) of this section.
(10) (a) A person detained for an emergency mental health hold pursuant to this section has the following rights:
(I) To be told the reason for the person's detainment and the limitations of the person's detainment, including a description of the person's right to refuse medication, unless the person requires emergency medications, and that the detainment does not mean all treatment during detainment is mandatory;
(II) To request a change to voluntary status;
(III) To be treated fairly, with respect and recognition of the person's dignity and individuality, by all employees of the facility with whom the person comes in contact;
(IV) To not be discriminated against on the basis of age, race, ethnicity, religion, culture, spoken language, physical or mental disability, socioeconomic status, sex, sexual orientation, gender identity, or gender expression;
(V) To retain and consult with an attorney at any time; except that, unless specified in subsection (7)(b) of this section, the facility is not required to retain an attorney on behalf of the person but must allow the person to contact an attorney;
(VI) To continue the practice of religion;
(VII) Within twenty-four hours after the person's request, to see and receive the services of a patient representative who has no direct or indirect clinical, administrative, or financial responsibility for the person;
(VIII) To have reasonable access to telephones or other communication devices and to make and to receive calls or communications in private. Facility staff shall not open, delay, intercept, read, or censor mail or other communications or use mail or other communications as a method to enforce compliance with facility staff.
(IX) To wear the person's own clothes, keep and use the person's own personal possessions, and keep and be allowed to spend a reasonable sum of the person's own money. A facility may temporarily restrict a person's access to personal clothing or personal possessions, until a safety assessment is completed. If the facility restricts a person's access to personal clothing or personal possessions, the facility shall have a discussion with the person about why the person's personal clothing or personal possessions are being restricted. A licensed medical professional or a licensed behavioral health professional shall conduct a safety assessment as soon as possible. The licensed professional shall document in the person's medical record the specific reasons why it is not safe for the person to possess the person's personal clothing or personal possessions. The facility shall periodically conduct additional safety assessments to determine whether the person may possess the person's personal clothing or personal possessions, with the goal of restoring the person's rights established pursuant to this section.
(X) To keep and use the person's cell phone, unless access to the cell phone causes the person to destabilize or creates a danger to the person's self or others, as determined by a provider, facility staff member, or security personnel involved in the person's care;
(XI) To have the person's information and records disclosed to family members and a lay person pursuant to section 27-65-123;
(XII) To have the person's treatment records remain confidential, except as required by law;
(XIII) To not be fingerprinted, unless required by law;
(XIV) To not be photographed, except upon admission for identification and administrative purposes. Any photographs must be confidential and must not be released by the facility except pursuant to a court order. Nonmedical photographs must not be taken or used without appropriate consent or authorization.
(XV) To have appropriate access to adequate water, hygiene products, and food and to have the person's nutritional needs met in a manner that is consistent with recognized dietary practices;
(XVI) To have personal privacy to the extent possible during the course of treatment; and
(XVII) To have the ability to meet with visitors in accordance with the facility's current visitor guidelines.
(b) A person's rights under this subsection (10) may only be denied if access to the item, program, or service causes the person to destabilize or creates a danger to the person's self or others, as determined by a licenced provider involved in the person's care. Denial of any right must be entered into the person's treatment record and must be made available, upon request, to the person, the person's legal guardian, or the person's attorney.
(c) A facility shall not intentionally retaliate or discriminate against a detained person or employee for contacting or providing information to any official or to an employee of any state protection and advocacy agency or for initiating, participating in, or testifying in a grievance procedure or in an action for any remedy authorized pursuant to this section. Any facility that violates this subsection (10) commits an unclassified misdemeanor and shall be fined not more than one thousand dollars.
(d) Any person whose rights are denied or violated pursuant to this section has the right to file a complaint against the facility with the behavioral health administration and the department of public health and environment.
Source: L. 2022: (4)(b) and (4)(d) amended, (HB 22-1278), ch. 222, p. 1539, � 116, effective July 1; (1)(a), (1)(b), (3), IP(9)(a), and (9)(b) amended, (HB 22-1278), ch. 222, p. 1537, � 115, effective July 1; Entire article amended with relocations, (HB 22-1256), ch. 451, p. 3179, � 1, effective August 10; (1), (7), (8), (9), and (10) repealed, (HB 22-1256), ch. 451, p. 3240, � 56, effective August 10; Entire section amended, (HB 22-1256), ch. 451, p. 3207, � 2, effective July 1, 2023. L. 2023: IP(9)(a) amended, (HB 23-1236), ch. 206, p. 1065, � 36, effective May 16. L. 2025: (8)(a)(VI) and (8)(d)(I) amended, (SB 25-236), ch. 140, p. 531, � 6, effective July 1; (6)(a) amended and (7)(d) added, (SB 25-042), ch. 28, p. 159, � 4, effective August 6.
Editor's note: (1) The provisions of this section are similar to several former provisions of �� 27-65-105 and 27-65-106 as they existed prior to 2022. For a detailed comparison, see the comparative tables located in the back of the index.
(2) Subsection (1)(a) was numbered as � 27-65-105 (1)(a)(I) in HB 22-1278 (see L. 2022, p. 1537). That provision was harmonized with subsection (1)(a) of this section as it appears in HB 22-1256.
(3) Subsection (1)(a)(I.5) was amended in HB 22-1278. Those amendments were superseded by the repeal of subsection (1)(a)(I.5) in HB 22-1256.
(4) Subsection (1)(b) was numbered as � 27-65-105 (1)(b) in HB 22-1278 (see L. 2022, p. 1538). That provision was harmonized with subsection (1)(b) of this section as it appears in HB 22-1256.
(5) Subsection (1)(c) was amended in HB 22-1278. Those amendments were superseded by the repeal of subsection (1)(c) in HB 22-1256.
(6) Subsection (3) was numbered as � 27-65-105 (3) in HB 22-1278 (see L. 2022, p. 1538). That provision was harmonized with subsection (3) of this section as it appears in HB 22-1256.
(7) Subsection (4)(b) was numbered as � 27-65-106 (4) in HB 22-1278 (see L. 2022, p. 1539). That provision was harmonized with subsection (4)(b) of this section as it appears in HB 22-1256.
(8) Subsection (4)(d) was numbered as � 27-65-106 (6) in HB 22-1278 (see L. 2022, p. 1539). That provision was harmonized with subsection (4)(d) of this section as it appears in HB 22-1256.
(9) Subsection IP(9)(a) was numbered as � 27-65-105 IP(7)(a) in HB 22-1278 (see L. 2022, p. 1539). That provision was harmonized with subsection IP(9)(a) of this section as it appears in HB 22-1256.
(10) Subsection (9)(b) was numbered as � 27-65-105 (7)(b)(I) in HB 22-1278 (see L. 2022, p. 1539). That provision was harmonized with subsection (9)(b) of this section as it appears in HB 22-1256.
(11) Subsections (1), (7), (8), (9), and (10) were repealed in � 56 of HB 22-1256, effective August 10, 2022. However, those repeals were superseded by the amendment of this entire article by � 1 of HB 22-1256, effective August 10, 2022.
Cross references: For rights of persons under arrest, see part 4 of article 3 of title 16.
27-65-107. Emergency transportation - application - screening - respondent's rights. (1) (a) When a certified peace officer or emergency medical services provider has probable cause to believe a person is experiencing a behavioral health crisis or is gravely disabled and, as a result, without professional intervention the person may be a danger to the person's self or others, then the certified peace officer or emergency medical services provider may take the person into protective custody and transport the person to an outpatient mental health facility or a facility designated by the commissioner or other clinically appropriate facility designated by the commissioner. If such a service is not available, the person may be taken to an emergency medical services facility.
(b) An individual may not be transported pursuant to this subsection (1) if an intervening professional has assessed the person during the same emergency event and determined the individual does not meet the criteria for an emergency mental health hold pursuant to section 27-65-106.
(c) If a behavioral heath crisis response team is known to be available in a timely manner, the certified peace officer or emergency medical services provider shall access the behavioral health crisis response team prior to transporting an individual involuntarily pursuant to this subsection (1).
(2) When a person is transported against the person's will pursuant to subsection (1) of this section, the facility shall require an application, in writing, stating the circumstances under which the person's condition was called to the attention of the certified peace officer or emergency medical services provider and further stating sufficient facts, obtained from personal observations or obtained from others whom the certified peace officer or emergency medical services provider reasonably believes to be reliable, to establish that the person is experiencing a behavioral health crisis or is gravely disabled and, as a result, it is believed that without professional intervention the person may be a danger to the person's self or others. The application must indicate the name of the person and the time the person was transported. A copy of the application must be furnished to the person being transported.
(3) (a) Once the person is presented to an outpatient mental health facility or facility designated by the commissioner, an intervening professional shall screen the person immediately. If an intervening professional is not immediately available, the person must be screened within eight hours after the person's arrival at the facility to determine if the person meets criteria for an emergency mental health hold pursuant to section 27-65-106. Once the screening is complete and if the person meets the criteria, the intervening professional shall first pursue voluntary treatment and evaluation. If the person refuses or the intervening professional has reasonable grounds to believe the person will not remain voluntarily, the intervening professional may place the person under an emergency mental health hold pursuant to section 27-65-106.
(b) If a person detained pursuant to this section is transported to an emergency medical services facility, the involuntary transportation hold expires upon the facility receiving the person for screening by an intervening professional.
(4) (a) A person detained pursuant to this section has the following rights while being detained, which must be explained to the person before being transported to a receiving facility:
(I) To not be detained under an emergency transportation hold pursuant to this section for longer than fourteen hours, to not be transported for longer than six hours, and to receive a screening within eight hours after being presented to the receiving facility. This subsection (4)(a)(I) does not prohibit a facility from holding the person as authorized by state and federal law, including the federal Emergency Medical Treatment and Labor Act, 42 U.S.C. sec. 1395dd, or if the treating professional determines that the individual's physical or mental health disorder impairs the person's ability to make an informed decision to refuse care and the provider determines that further care is indicated.
(II) To request a phone call to an interested party prior to being transported. If the certified peace officer or emergency medical services provider believes access to a phone poses a physical danger to the person or someone else, the receiving facility shall make the call on the person's behalf immediately upon arrival at the receiving facility.
(III) To wear the person's own clothes and keep and use personal possessions that the person had in the person's possession at the time of detainment. A facility may temporarily restrict a person's access to personal clothing or personal possessions until a safety assessment is completed. If the facility restricts a person's access to personal clothing or personal possessions, the facility shall have a discussion with the person about why the person's personal clothing or personal possessions are being restricted. A licensed medical professional or a licensed behavioral health professional shall conduct a safety assessment as soon as possible. The licensed professional shall document in the person's medical record the specific reasons why it is not safe for the person to possess the person's personal clothing or personal possessions.
(IV) To keep and use the person's cell phone, unless access to the cell phone causes the person to destabilize or creates a danger to the person's self or others, as determined by a provider, facility staff member, or security personnel involved in the person's care;
(V) To have appropriate access to adequate water and food, and to have the person's nutritional needs met in a manner that is consistent with recognized dietary practices, to the extent reasonably possible at the receiving facility;
(VI) To be treated fairly, with respect and recognition of the person's dignity and individuality; and
(VII) To file a grievance with the BHA, the department of public health and environment, or the office of the ombudsman for behavioral health access to care established pursuant to part 3 of article 80 of this title 27.
(b) A person's rights pursuant to subsection (4)(a) of this section may only be denied if access to the item, program, or service causes the person to destabilize or creates a danger to the person's self or others, as determined by a licensed provider involved in the person's care or transportation. Denial of any right must be entered into the person's treatment record or BHA-approved form. Information pertaining to a denial of rights contained in the person's treatment record must be made available, upon request, to the person, the person's attorney, or the person's lay person.
Source: L. 2022: Entire article amended with relocations, (HB 22-1256), ch. 451, p. 3183, � 1, effective August 10. L. 2023: (3), IP(4)(a), and (4)(a)(V) amended, (HB 23-1236), ch. 206, p. 1065, � 37, effective May 16.
27-65-108. Care coordination for persons certified or in need of ongoing treatment. (1) A facility designated by the commissioner shall notify and engage the BHA prior to terminating or transferring a person certified pursuant to section 27-65-108.5, 27-65-109, 27-65-110, or 27-65-111. The BHA may provide care coordination services to support a person whose certification is terminated but who is in need of ongoing treatment and services.
(2) The BHA shall, directly or through a contract, provide care coordination services to a person certified pursuant to section 27-65-108.5, 27-65-109, 27-65-110, or 27-65-111 and determined by the designated facility and the BHA to need care coordination services.
Source: L. 2022: Entire article amended with relocations, (HB 22-1256), ch. 451, p. 3185, � 1, effective July 1, 2024. L. 2023: Entire section amended, (HB 23-1138), ch. 423, p. 2490, � 13, effective July 1, 2024.
27-65-108.5. Court-ordered certification for short-term treatment for incompetent defendants in a criminal matter - contents of petition - procedure to contest petition - commitment to behavioral health administration - definition. (1) Upon petition of the district attorney, a professional person, a representative of the BHA, or a representative of the office of civil and forensic mental health, a court may certify a person for short-term treatment for not more than three months under the following conditions:
(a) The person is a respondent in a criminal matter in which the person has been found incompetent to proceed;
(b) The court hearing the criminal matter referred the matter for filing of a petition pursuant to section 16-8.5-111 or 16-8.5-116.5;
(c) The person has been advised of the availability of, but has not accepted, voluntary treatment, or, if reasonable grounds exist to believe that the person will not remain in a voluntary treatment program, the person's acceptance of voluntary treatment does not preclude certification;
(d) The facility or community provider that will provide short-term treatment has been designated or approved by the commissioner to provide such treatment; and
(e) The person, the person's legal guardian, and the person's lay person, if applicable, have been advised of the person's right to an attorney and to contest the certification for short-term treatment.
(2) The petition filed pursuant to subsection (1) of this section must:
(a) State sufficient facts to establish reasonable grounds that the respondent has a mental health disorder and, as a result of the mental health disorder, is a danger to the respondent's self or others or is gravely disabled;
(b) Be accompanied by a report of the competency evaluator or professional person who has evaluated the respondent within fifty-six days before submission of the petition, unless the respondent whose certification is sought has refused to submit to an evaluation or the respondent cannot be evaluated due to the respondent's condition;
(c) Be filed within fourteen days after the initiating party received the court order from the criminal court initiating the process;
(d) Be filed with the court in the county where the respondent resided or was physically present immediately prior to the filing of the petition; except that if the person was arrested for the prior case and held in custody, the petition may be filed in the county where the respondent resided or was physically present immediately prior to the respondent's arrest; and
(e) Provide recommendations if any certification should occur on an inpatient or outpatient basis.
(3) Within twenty-four hours after certification, copies of the certification must be personally delivered to the respondent, the BHA, or the office of civil and forensic mental health. The department shall retain a copy as part of the respondent's record. If the criminal case is pending, or not yet dismissed, notice of the filing of the petition should be given by the petitioning party to the criminal court, which shall provide such notice to the prosecuting and defense attorneys in the criminal case and any attorney appointed pursuant to section 27-65-113. The court shall ask the respondent to designate one other person whom the respondent wants to be informed regarding the petition. If the respondent is incapable of making such a designation at the time the petition is delivered, the court may ask the respondent to designate such person as soon as the respondent is capable.
(4) Whenever a petition is filed pursuant to this section, the court shall immediately appoint an attorney to represent the respondent. The court shall provide the respondent with a written notice that the respondent has a right to a hearing on the petition and may make a written request for a jury trial. The respondent has the right to an attorney for all proceedings conducted pursuant to this section, including any appeals. The attorney representing the respondent must be provided with a copy of the petition and any supporting materials immediately upon the attorney's appointment. The respondent may only waive counsel when the respondent makes a knowing and voluntary waiver in front of the court.
(5) Upon the filing of the petition pursuant to this section and affording the respondent a chance to contest the petition, the court may grant or deny certification based on the facts established in the petition, subject to the court's further review or a jury trial.
(6) Within fourteen days after receipt of the petition filed pursuant to this section, the respondent, or the respondent's attorney, may request a jury trial by filing a written motion with the court.
(7) The respondent may knowingly and voluntarily consent in writing to the petition.
(8) The respondent or the respondent's attorney may, at any time, file a written request for the court to review short-term certification or request that inpatient certification be changed to outpatient treatment. If the review is requested, the court shall hear the matter within fourteen days after the request, and the court shall give notice to the respondent, the respondent's attorney, the department, and the community or facility provider who is or will provide treatment. The hearing must be held in accordance with section 27-65-113. At the conclusion of the hearing, the court may enter or confirm the certification for short-term treatment, discharge the respondent, or enter any other appropriate order.
(9) Section 27-65-109 (7) to (10) applies to proceedings held pursuant to this section.
(10) In assessing whether the respondent with a pending criminal charge is a danger to self or others or is gravely disabled, if the person is incarcerated, the professional person and court shall not rely upon the fact that the person is incarcerated to establish that the respondent is not a danger to self or others or is not gravely disabled.
(11) An emergency mental health hold pursuant to section 27-65-106 is not a prerequisite to a proceeding pursuant to this section.
(12) For the purposes of this section only, respondent means the defendant in the referring criminal matter.
Source: L. 2023: Entire section added, (HB 23-1138), ch. 423, p. 2485, � 5, effective July 1, 2024. L. 2024: (1)(b) amended, (HB 24-1034), ch. 372, p. 2521, � 17, effective June 4.