Outpatient and Community-Based Restoration
Thirty-two states, including Arkansas, Oregon and Texas, have established outpatient or community-based competency restoration programs. Outpatient restoration programs, sometimes described as community-based programs, serve as an alternative to detention while an individual receives restoration services.
States vary in the detail afforded in statutory language addressing outpatient competency restoration. Some states, like Kentucky and West Virginia, simply assert that restoration may occur in an outpatient setting without further elaborating on the logistics of establishing or funding these programs. Other states, like Colorado, specify eligibility for outpatient treatment and the processes to facilitate delivery of services.
Washington law requires that to be eligible for outpatient competency restoration, defendants must agree to certain drug and alcohol testing and adhere to prescribed medications. Further, if a Washington court orders outpatient competency restoration, the court must modify conditions of release so that the defendant has access to supportive housing affiliated with a competency restoration program.
In Connecticut, as long as the defendant is not charged with a felony, the law requires courts to "presume that outpatient treatment is the least restrictive placement appropriate and available to restore competency, unless the court has good cause to find otherwise." If outpatient treatment is the least restrictive placement, then the court must consider the availability of treatment and whether that is a sufficient basis upon which to release the defendant.
Illinois similarly requires that if a defendant is charged with a misdemeanor, the court must order outpatient treatment unless good cause otherwise is found. In contrast, Louisiana law affords courts complete discretion as to whether to offer outpatient restoration.
Georgia law offers a timeline for outpatient restoration treatment, stating that courts may allow outpatient treatment to be monitored for no longer than nine months. If the defendant has not regained competency to stand trial by the end of the nine-month period, statute requires that courts either allow for civil commitment or release.
In Texas, as of 2024, 16 local mental health and behavioral health authorities were providing outpatient competency restoration in 57 counties, which focus on providing mental health and substance use disorder treatment, in addition to community-based competency restoration services.
The Oregon Outpatient Competency Restoration Program has received over 59 referrals through 2024, 26 of which were for restoration for out-of-custody defendants. Of those defendants,16 had pending felony charges and two had misdemeanor charges. Their report notes that a history of charges involving violence has slowed referrals.
A recent report out of Ohio from the Governor's Work Group on Competency Restoration and Diversion made several recommendations based on the state's current outpatient competency restoration services. The report noted that defendants ordered to a competency evaluation in the Summit County Jail are provided pre-competency education, including receiving education about the evaluation and signing release forms, resulting in increased defendant attendance and compliance with evaluations.
Based on the success of the pre-competency education efforts, the Ohio report encourages the Ohio Department of Mental Health and Addiction Services to work with Ohio forensic mental health professionals to develop competency to stand trial toolkits. The report also recommends providing specific training to behavioral health and criminal justice professionals to aid in understanding the difference between the services to restore competency and those offered in diversion programs.