DEPARTMENT OF HUMAN SERVICES Division of Mental Health PUBLIC MENTAL HEALTH SYSTEM 2 CCR 502-4 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] STATEMENT OF BASIS AND PURPOSE Addition of rules concerning Competency Evaluations in Criminal Cases, Sections 21.900 through 21.950, were final adoption following publication on 8/6/2010 by the State Board of Human Services, with an effective date of 10/1/2010 (Rule-making# 09-6-10-1). Statement of Basis and Purpose, Regulatory Analysis, and specific statutory authority for these revisions were incorporated by reference into the rule. These materials are available for review by the public during normal working hours at the Colorado Department of Human Services, Division of Boards and Commissions, State Board Administration.

21.900 COMPETENCY EVALUATIONS IN CRIMINAL CASES [Eff. 10/1/10]

These rules are established to create standards for training of psychologists and psychiatrists wishing to become approved as evaluators of competency to proceed.

21.910 DEFINITIONS [Eff. 10/1/10]

“Approved evaluator” means an evaluator who has received the training required by these rules; and is currently employed by CDHS; or has completed the application process through the Colorado Mental Health Institute at Pueblo (CMHIP) Court Services Division and is providing services under an active purchase order or a personal services contract, or as a fellow in forensic psychology or psychiatry training.

“Board Certification” in forensic psychiatry or forensic psychology means recognition of specialized training and knowledge in the field of forensic psychiatry by the American Board of Psychiatry and Neurology (ABPN), or in the field of forensic psychology by the American Board of Forensic Psychology (ABFP); no amendments or editions are incorporated. These board certification requirements may be reviewed during regular business hours by contacting the Superintendent of the Colorado Mental Health Institute in Pueblo, 1600 W. 24th Street, Pueblo, Colorado; or a state publications library. “Clinical Supervision” means ongoing review and direction of a supervisee's clinical practice for the purpose of contributing knowledge, expertise, and more advanced skills to the person being supervised. “Competency Evaluator” means a licensed physician who is a psychiatrist or a licensed psychologist, each of whom is trained in forensic competency assessments, or a psychiatrist who is in forensic training and practicing under the supervision of a psychiatrist with expertise in forensic psychiatry and who is an approved evaluator, or a psychologist who is in forensic training and is practicing under the supervision of a licensed psychologist with expertise in forensic psychology and who is an approved evaluator. “Competent to Proceed” means that the defendant does not have a mental disability or developmental disability that prevents the defendant from having sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding in order to assist in the defense, or prevents the defendant from having a rational and factual understanding of the criminal proceedings. “Court-Ordered Competency Evaluation” means a court-ordered examination of a defendant either before, during, or after trial, directed to developing information relevant to a determination of the defendant’s competency to proceed at a particular stage of the criminal proceeding, that is performed by a competency evaluator and includes evaluations concerning restoration to competency. “Forensic” means relating to or dealing with the application of scientific knowledge to the legal issues of defendants in criminal proceedings.

“Incompetent to proceed” means that, as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding in order to assist in the defense, or that, as a result of a mental disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings.

21.920 APPLICATION PROCESS [Eff. 10/1/10]

Those wishing to become an approved evaluator shall contact the Director of Court Services at the Colorado Mental Health Institute at Pueblo (CMHIP) for application information, and the following shall be submitted to the CMHIP:

A. A completed application form;

B. Verification of licensure as a psychiatrist or psychologist;

C. Verification of board certification in forensic psychiatry from the ABPN or board certification in forensic psychology from the ABPP, when relevant;

D. Fingerprints and a sample for urinalysis through an approved process for the purpose of completing a background check;

E. Proof of current malpractice insurance;

F. A minimum of two work samples, preferably forensic reports;

G. A minimum of three professional references;

21.930 TRAINING

21.931 Approved Evaluators [Eff. 10/1/10]

A. All approved evaluators shall have received training as specified in these rules, consisting of at least six hours of classroom instruction. This initial training shall, at a minimum, cover the following elements:

1. 1. Legal background and legal standards for competency to proceed and competency to stand trial;
2. 2. Forensic versus clinical evaluation, ethical issues and challenges in competency evaluations, dual relationships, constitutional protections for defendants, informed consent in defendants with severe mental illnesses, and communication with attorneys;
3. 3. Interviewing for competency to proceed;
4. 4. Assessment of malingering;
5. 5. Use of third-party (collateral) data and resources;
6. 6. Working with the difficult defendant;
7. 7. Evaluating developmentally delayed defendants;
8. 8. Special issues in evaluating juveniles;
9. 9. Writing the competency or restoration report;
10. 10. Acting as an expert witness; and, 11. Unique requests from the court, such as for evaluations for competency to waive the right to counsel.

B. Exemptions to Initial Training

1. 1. Evaluators who are board certified in forensic psychiatry by the ABPN or board certified in forensic psychology by the ABPP shall be considered exempt from this initial training requirement.
2. 2. An evaluator who can demonstrate that by no later than January 1, 2011, he or she had been conducting evaluations of competency to proceed in accordance with these rules for two years or more may be considered exempt from this initial training requirement. This exemption will be determined by a review of the evaluator’s work by the Director of the CMHIP Court Services Division.
3. 3. Evaluators who are in forensic training and practicing under the supervision of a licensed psychiatrist who is an approved evaluator and who has expertise in forensic psychiatry, or a licensed psychologist who is an approved evaluator and who has expertise in forensic psychology, may practice without the initial training; however, it is expected that these evaluators will receive equivalent education during the course of their training programs.

C. Ongoing Training Approved evaluators shall participate in at least four hours of ongoing training annually. Training will be made available at least annually by staff of the Court Services Division; alternative training to fulfill this requirement may be substituted for that offered by the Court Services Division, with prior approval from the Director of Court Services.

21.932 Mentoring [Eff. 10/1/10]

Mentoring shall be made available to approved evaluators by evaluators from the CMHIP Court Services Division whenever practicable to do so.

A. Approved evaluators wishing to participate in mentoring will be provided the opportunity to observe one or more evaluations being conducted by senior clinical staff of CMHIP Court Services, and to conduct one or more evaluations while being observed by senior clinical staff of the CMHIP Court Services Division.

B. Approved evaluators wishing to participate in mentoring shall be required to travel to CMHIP to receive this additional training.

21.940 STANDARDS FOR CONDUCTING EVALUATIONS AND ESTABLISHING A REPORT [Eff.

1. 10/1/10] Each report shall document development of information pertaining to each of the following areas:

A. Identifying information, including defendant’s name and age, charges and county of origin, competency issue raised by whom (if known);

B. Sources of information used, including:

1. 1. Interview(s), date(s) and length(s) of time spent with defendant at each meeting, and any psychological tests administered;
2. 2. Police records;
3. 3. Mental health records;
4. 4. Other records as available;
5. 5. Contact or attempted contact with both attorneys; and, 6. Contacts with other mental health professionals, family members, and others, as needed and appropriate.

C. Notification of purpose, including informing defendant of the purpose of examination, of the absence of confidentiality, to whom a report would be sent, and that the examiner might be required to testify.

D. Background information, including family history, social history, medical history, substance use history, prior psychiatric treatment, and current medications. Evaluations of a defendant’s restoration to competency following a determination of incompetency do not need to reiterate all of this information, but should contain a review of prior evaluations of competency to proceed on the current matter.

E. Course of treatment, including specific reference to condition of the person at the time they were admitted to CMHIP, medication(s) administered, need for emergency medications or petition(s) for administration of involuntary medications, significant behavioral problems, treatment involvement, and other notable events (this section may not be relevant if the person being evaluated is incarcerated, or if the person is not institutionalized).

F. Current clinical observations such as mental status examination and current psychiatric status, including psychological test data when available.

G. Diagnostic impression.

H. Evaluation of functional abilities requisite to competency as defined in statute, identifying specific ways in which identified psychiatric deficits impede each or all of these functional abilities, if any.

I. A summary statement, including specific citation of clinical information that supports the evaluator’s opinions regarding mental disease or defect and resultant impairments in functional abilities pertaining to competency, as well as a comment regarding the prognosis for the defendant’s mental disability or developmental disability (if any). If the defendant is a juvenile, there must be a statement regarding the potential for restorability to competency.

J. Statutory opinion, which is a clear statement of the evaluator’s opinion regarding the defendant’s competency to proceed, using language as specified in Section 16-8.5-101(4) and 16-8.5- 101(11), C.R.S.

21.950 QUALITY ASSURANCE [Eff. 10/1/10]

All approved evaluators shall have one or more of their competency or restoration reports reviewed at least annually by a senior CMHIP Court Services Division evaluator or his or her designee, with written feedback being provided.

A. All approved evaluators shall have their first two reports reviewed by the senior CMHIP Court Services Division evaluator, or his or her designee, with additional reports being reviewed as necessary.

B. Any and all reports submitted by approved evaluators are subject to review.

C. Each report shall be reviewed using a quality assurance form developed for that purpose by the CMHIP Psychology Department and the CMHIP Court Services Division. Copies of the Quality Assurance form will be made available to all CDHS approved evaluators. _____________________________________________________ Editor’s Notes History Entire Rule eff. 10/01/2010.