This is the final article in a series covering the behavioral health sections of the 21st Century Cures Act (the “Cures Act”), which was signed into law on December 13, 2016. The articles in our series are located here.
As with many of the behavioral health sections of the Cures Act, Title XIV also provides for new behavioral health and substance use disorder programs and the reauthorization of others. More specifically, Title XIV focuses on programs involving individuals with mental illnesses or substance use disorders who are touched by law enforcement or who have entered the criminal justice system. These programs generally fall into three categories: (1) programs aimed at assisting individuals to avoid entering the criminal justice system; (2) programs aimed at assisting individuals while in the criminal justice system; and (3) programs aimed at assisting individuals in avoiding repeat offenses and relapses that will cause the individual to end up back in the criminal justice system. Additionally, Title XIV includes several “administrative” type provisions aimed at moving behavioral health assistance forward. Below is a summary of the programs discussed in Title XIV of the Cures Act.
Programs Aimed at Avoiding Criminal Justice System
School Mental Health Crisis Intervention Teams
Section 2701(b) of Title 1 of the Omnibus Crime Control Act grants the Director of the Office of Community Oriented Policing Services authority to make grants to states, units of local government and Indian tribes to provide improved security, including the placement and use of metal detectors and other deterrent measures, at schools and on school grounds. Section 14010 of the Cures Act adds to the director’s authority the ability to make grants for the development and operation of crisis intervention teams that may include coordination with law enforcement agencies and specialized training for school officials in responding to mental health crises.
Codification of Due Process for Determinations by Secretary of Veterans Affairs of Mental Capacity of Beneficiaries
Section 14017 of the Cures Act provides for due process, including notice and a hearing, prior to the Veteran’s Administration mental competence determination of a veteran.
Section 14023 of the Cures Act adds to the allowable uses of grant funds the creation of teams formed to address frequent users of crisis services. These will be multidisciplinary teams that:
- Coordinate, implement and administer community-based crisis responses and long-term plans for frequent users of crisis services;
- Provide training on how to respond appropriately to the unique issues involving frequent users of crisis services for public service personnel, including criminal justice, mental health, substance abuse, emergency room, health care, law enforcement, corrections and housing personnel;
- Develop or support alternatives to hospital and jail admissions for frequent users of crisis services that provide treatment, stabilization and other appropriate supports in the least restrictive, yet appropriate, environment; and
- Develop protocols and systems among law enforcement, mental health, substance abuse, housing, corrections and emergency medical service operations to provide coordinated assistance to frequent users of crisis services.
Programs Assisting Individuals in the Criminal Justice System
Assisted Outpatient Treatment Programs
Section 2201 of Title 1 of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796ii) (“Omnibus Crime Control Act”) sets forth a list of criteria for programs that qualify for grants that the Attorney General may make to states, state courts, local courts, units of local government or an Indian tribal government, acting directly or through agreements with other public or nonprofit entities, for various programs to benefit offenders with mental illness. Section 14002 of the Cures Act adds to the list of programs involving court-ordered assisted outpatient treatment when the court has determined such treatment to be necessary. This court-ordered assisted outpatient treatment means a treatment plan for an “eligible patient” developed through a certain program that:
- Requires the patient to participate in outpatient mental health treatment when the patient is not incarcerated or is not an inpatient in a treatment facility; and
- Is designed to improve access to intensive behavioral health services in order to:
- Avert relapse, repeated hospitalization, arrest, incarceration, suicide, property destruction and violent behavior; and
- Provide the patient with an opportunity to live in a less restrictive environment without being incarcerated or as an involuntary inpatient.
An “eligible patient” is a mentally ill adult who, as determined by a court:
- Has a history of violence, incarceration or medically unnecessary hospitalizations;
- Without supervision and treatment, may be a danger to self or others;
- Is substantially unlikely to voluntarily participate in treatment;
- May be unable, for reasons other than indigence, to provide for any of his or her basic needs, such as food, clothing, shelter, health or safety;
- Has a history of mental illness or a condition that is likely to substantially deteriorate if the person is not provided with timely treatment; or
- Lacks capacity to understand or lacks judgment to make decisions regarding his or her need for treatment, care or supervision due to mental illness.
Federal Drug and Mental Health Courts
Under 14003 of the Cures Act, the Department of Justice (“DOJ”) is authorized to create a pilot diversion program in at least one federal judicial district whereby nonviolent or low-level drug offenders with mental illness, mental handicap or a co-occurring mental health and substance abuse disorder are offered a diversion from incarceration if they comply with a court-ordered treatment program. The program duration is fiscal years 2017 through 2021.
Mental Health in the Judicial System
Section 14004 of the Cures Act amends the Mental Health Courts Program by specifically permitting grant funding to address behavioral health needs and risk screening of defendants. Allowable uses include the evaluation of defendants who cannot comply with the conditions of pretrial release, pretrial release program evaluation, risk assessment of defendants through validated methods, the supervision of defendants on pre-trial release and the collection of data.
Co-Occurring Substance Abuse and Mental Health Challenges in Drug Courts
Section 14007 of the Cures Act permits individuals with co-occurring substance abuse and mental health problems to participate in courts funded by the Drug Court Discretionary Grant Program. The program provides technical and financial assistance to states, local government and tribal governments to develop and implement drug courts that effectively integrate evidence-based substance use disorder treatment, mandatory drug testing, sanctions and incentives and transitional services in a judicially supervised court setting with jurisdiction. Section 14007 also permits training and technical assistance for drug court personnel on identifying and addressing co-occurring substance abuse and mental health problems.
Co-Occurring Substance Abuse and Mental Health Challenges in Residential Substance Abuse Treatment Programs
Section 14012 of the Cures Act amends the Residential Substance Abuse Treatment for State Prisoners grant program so as to allow the Attorney General to grant funds to states, for use by states and units of local government, for the purpose of developing and implementing specialized residential substance abuse treatment programs that identify and provide appropriate treatment to inmates with co-occurring mental health and substance abuse disorders or challenges.
Mental Health and Drug Treatment Alternatives to Incarceration Program
Section 14013 of the Cures Act replaces the Prosecution Drug Treatment Alternative to Prison program with a Mental Health and Drug Treatment Alternative to Incarceration program. Under this program, the DOJ is permitted to award grant funds to state, local and tribal governments and nonprofit organizations to develop, expand or implement treatment alternatives for nonviolent or low-level drug offenders. Specifically, grants may be used for pre-booking treatment alternatives to incarceration that could include law enforcement training on substance use disorders, mental illness and co-occurring mental illness and substance use disorders or post-booking treatment alternatives to incarceration that could include pre-trial services related to substance abuse or treatment and rehabilitation programs.
Sequential Intercept Model
Section 14021 of the Cures Act adds to Section 2991 of the Omnibus Crime Control Act grants to an “eligible entity” (i.e., a state, unit of local government, Indian tribe or tribal organization) to map the flow of persons with mental illness through the criminal justice system and to identify points along the way at which such person is susceptible to “falling between the cracks.” In other words, these grants will be used to provide services, such as emergency and crisis services, specialized police-based responses, etc., to “intercept” at points in the process to assist persons with mental illness from falling deeper into the criminal justice system.
Prison and Jails
Section 14022 of the Cures Act authorizes the Attorney General to award grant funding for the development of correctional facility programming directed towards the reduction of recidivism upon offender release including:
- The provision of periodic assessments of the clinical, medical and social needs of inmates;
- The development of post-release transition plans for eligible inmates; and
- Correctional facility staff training to identify and appropriately respond to mental health or co-occurring mental health and substance abuse disorders.
Programs Aimed at Assisting Individuals in Avoiding Repeat Offenses and Relapses
Assistance for Individuals Transitioning Out of Systems
Section 14006 amends the Adult and Juvenile Offender State and Local Offender Reentry Demonstration Program to permit grant funding for mental health treatment and transitional services for offenders with mental illness or with co-occurring disorders. Allowable uses include housing placement or assistance in efforts to achieve stable and permanent housing outcomes and appropriate services once adult or juvenile offenders transition from prison or a juvenile residential facility back to the community.
Section 14005 of the Cures Act provides that the Attorney General may make grants to states, units of local government, territories, Indian tribes, nonprofit agencies, or any combination thereof, to implement or develop forensic assertive community treatment (‘‘FACT’’) programs that provide high intensity services in the community for individuals with mental illness with involvement in the criminal justice system to prevent future incarcerations. FACT programs that involve mental health professionals, criminal justice agencies, chemical dependency specialists, nurses, psychiatrists, vocational specialists, forensic peer specialists, forensic specialists and dedicated administrative support staff who work together to provide recovery oriented, 24/7 wraparound services are one of the types of programs for which these grant funds may be used.
Offender Reentry Mentoring Grants
Section 14009 of the Cures Act permits grant funding under the Offender Reentry Mentoring Grants program for the provision of mental health services and coordination of transitional assistance for offenders returning to the community.
Reauthorization of Appropriations for MIOTCRA
Section 14018 of the Cures Act reauthorizes grant funding in the amount of $50,000,000 for each of the fiscal years 2017 through 2021 for Mentally Ill Offender Treatment and Crime Reduction Act (“MIOTCRA”), which provides for funding for mental health courts and diversion programs.
Transparency, Program Accountability and Enhancement of Local Authority
Section 14028 adds the term “preliminarily qualified offender” as a person who may participate in a MIOTCRA program. A preliminary qualified offender is an adult or juvenile accused of an offense who:
- Is or has been diagnosed with a mental illness or a co-occurring mental illness and substance abuse disorder or shows signs of such illness or disorder during arrest or confinement or before any court;
- Has been unanimously approved for participation in a program by a prosecuting or defense attorney, a probation or corrections official, a judge and a representative from a relevant mental health agency;
- Has been determined, by each person described above, to not pose a risk of violence to any person in the program, or the public, if selected to participate in the program; and
- Has not been charged with or convicted of: (i) any certain sex offense; (ii) any offense relating to the sexual exploitation of children; or (iii) any murder or assault with intent to commit murder.
In making their determination as to whether a person qualifies as a preliminarily qualified offender, the persons approving the participation of a defendant shall take into account if the defendant poses a risk of violence to the community, the defendant’s criminal history, the reviews of the relevant victims of the defendant’s offense, the benefits of the program for the defendant, community cost savings due to defendant’s participation and if the defendant meets the deciding persons’ criteria for the program.
Lastly, the Cures Act includes various administrative provisions to move behavioral health assistance forward. This is accomplished by, among other things, providing those who work in the criminal justice system with tools to better assist individuals with behavioral health issues.
Law Enforcement Grants for Crisis Intervention, Mental Health Purposes
Section 14001 of the Cures Act amends the Edward Byrne Memorial Justice Assistance Grant (“JAG”) and Community Oriented Policing Services (“COPS”) programs to incorporate mental health as an additional focus area thereby permitting the use of grant funds to finance mental health programs and specialized training of law enforcement officers, corrections officers and first responders to recognize and properly interact with individuals with mental illness.
Section 14001 of the Cures Act expands the allowable uses of grant funds under JAG and COPS programs. JAG is a grant program administered by the DOJ that provides funding to state and local governments for: (1) law enforcement programs; (2) prosecution and court programs; (3) prevention and education programs; (4) corrections and community corrections programs; (5) drug treatment programs; (6) improvement programs; and (7) crime victim and witness programs. The COPS grant program provides local law enforcement with funding to support programs that promote community policing and law enforcement operations.
Mental Health Training for Federal Uniformed Services
Under 14008 of the Cures Act, the Secretaries of Defense, Homeland Security, Health and Human Services and Commerce shall provide specialized training programs to the uniformed services to assist with identifying and responding appropriately to individuals with mental illness within 180 days of the Cures Act enactment.
Active-Shooter Training for Law Enforcement
Section 14011 of the Cures Act permits the DOJ to provide safety training to law enforcement agencies on how to survive violent encounters including active-shooter response training through the Preventing Violence Against Law Enforcement and Ensuring Officer Resilience and Survivability Initiative.
National Criminal Justice and Mental Health Training and Technical Assistance Center
Section 14014 of the Cures Act authorizes the DOJ to issue grant funds to national nonprofit organizations with experience in providing training and technical assistance on issues related to mental health crisis intervention, criminal justice systems and law enforcement for the purpose of establishing a National Criminal Justice and Mental Health Training and Technical Assistance Training Center. Grant funds may be used for:
- Law enforcement training on how to work with individuals suffering from mental illness;
- Training and technical assistance to mental health providers and criminal justice agencies on diversion, incarceration and reentry programs for people suffering from mental illness;
- The development of suicide prevention and crisis intervention training for criminal justice agencies; and
- The dissemination of best practices, policy standards and research findings relating to the provision of mental health services.
Improving Department of Justice Data Collection on Mental Illness Involved in Crime
Section 14015 of the Cures Act imposes upon the Attorney General the requirement to include in data prepared by the Attorney General or the Director of the Federal Bureau of Investigation concerning homicides and killings or serious injuries and assaults involving law enforcement officers, whether mental illness was involved in such incidences, if any.
Reports on the Number of Mentally Ill Offenders in Prison
Under 14016 of the Cures Act, the Controller General is required to report to Congress detailing the cost of imprisonment for individuals who have serious mental illness within 12 months of enactment.
Training for First Responders and Federal Criminal Justice
Under Sections 14024 and 14025 of the Cures Act, the DOJ is required to provide direction and guidance regarding training programs for federal law enforcement agencies within one year of enactment. Specifically, the DOJ is to focus on training regarding procedures to identify and appropriately respond to incidents involving individuals suffering from mental illness.
Section 14026 of the Cures Act requires the Comptroller General, in coordination with the Attorney General, to submit to Congress a report on the practices that federal first responders, tactical units and corrections officers are trained to use in responding to individuals with mental illness, procedures to identify and appropriately respond to individuals who have a mental illness, the application of evidence-based practices in the criminal justice setting to better assist these individuals and recommendations on how to expand and improve dissemination of these best practices.
Section 14027 of the Cures Act provides that in awarding grant funds, the Attorney General shall, in addition to already existing considerations, give priority to applications that propose the use of evidence-based successful interventions and validated assessment tools to reduce repeat criminal behavior.
Section 14029 of the Cures Act imposes audit requirements on grant recipients to be conducted by the Inspector General of the Department of Justice. The audits will be evaluated against criteria involving the prevention of waste, fraud and abuse of funds by grantees. Grant recipients failing the audit shall not be eligible to receive grant funds for two years following the end of 12 months from the date when the final audit report is issued. The Attorney General is required to certify all audits to the Committee on the Judiciary and the Committee on Appropriations of the Senate and the Committee on the Judiciary and the Committee on Appropriations of the House of Representatives.