An Act concerning Medicaid coverage for certain qualified individuals, supplementing Title 30 of the Revised Statutes and amending various parts of the statutory law.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) a. In an effort to broaden Medicaid coverage, as provided in this State pursuant to P.L.1968, c.413 (C.30:4D-1 et seq.), to all qualified individuals as expanded by the federal "Patient Protection and Affordable Care Act," Pub.L.111-148, as amended by the federal "Health Care and Education Reconciliation Act of 2010," Pub.L.111-152, the Commissioner of Human Services shall administer a pilot program to screen and enroll qualified individuals in Medicaid at the time they become incarcerated in a county correctional facility following arrest or indictment and are awaiting a court hearing on bail. With respect to coverage for any qualified individuals enrolled by the pilot program, this coverage, to the extent permitted by 42 U.S.C. s.1396d(a)(29)(A) and any other applicable federal law, shall be suspended during the remaining period of incarceration and begin upon release from incarceration.

b. (1) The Commissioner of Human Services, in consultation with the Commissioner of Corrections and the county administrators of the county correctional facilities, as well as the Administrative Office of the Courts, shall select three county correctional facilities for the pilot program, one each in the north, central, and south regions of the State, based upon a determination of which facilities will likely incarcerate the greatest number of potential qualified individuals for Medicaid screening and enrollment throughout the duration of the pilot program.

(2) In order to target the greatest number of potential qualified individuals for Medicaid screening and enrollment, the Commissioner of Human Services, during the consultation process and the final selection of the three county correctional facilities for the pilot program, may consider the following county correctional facility criteria, using the most up-to-date monthly or annual statistics available: total current facility population; average number of the total population in pretrial status awaiting a bail hearing; average number of the total population released following a bail hearing; and average number of the total population who remain incarcerated due to an inability to post bail.

(3) Information related to the management of country correctional facility populations available through the Statewide County Corrections Information System, operating pursuant to section 1 of P.L.2004, c.108 (C.2B:6-6), may be used to assist in determining the three facilities selected pursuant to this subsection
for the program.

c. The Commissioner of Human Services shall, in consultation with the Commissioner of Corrections and the county administrators of the three county correctional facilities selected to participate in the pilot program, either assign appropriately trained full-time personnel from the Department of Human Services' Division of Medical Assistance and Health Services to be present within the facilities during designated days and hours to screen and enroll qualified individuals in Medicaid at the time they become incarcerated following arrest or indictment and are awaiting a court hearing on bail, or provide training to designated county correctional facility intake personnel to handle the screening and enrollment process. The commissioner may choose between assigning division personnel and providing training to county correctional facility intake personnel, or using a combination thereof, for each of the three county correctional facilities selected to participate in the pilot program.

d. (1) The Medicaid screening and enrollment process under the pilot program shall begin after the selection of the three county correctional facilities by the Commissioner of Human Services pursuant to subsection b. of this section and, pursuant to subsection c. of this section, the selection and completion of training, as necessary, of the personnel to handle the screening and enrollment process.

(2) Upon completion of the implementing steps set forth in paragraph (1) of this subsection, the screening and enrollment process shall begin to operate in the three selected county correctional facilities. The screening and enrollment process shall be offered to individuals who, on or after the beginning date of the screening and enrollment process, become incarcerated in a designated county correctional facility following arrest or indictment and are awaiting a court hearing on bail.

e. As part of the screening and enrollment process implemented in the selected county correctional facilities:

(1) The single, streamlined application form for enrolling applicants in Medicaid, NJ FamilyCare, or other qualifying heath care coverage through the federal "Patient Protection and Affordable Care Act," Pub.L.111-148, as required by 42 U.S.C. s.18083, shall be used by the division's or facility's personnel handling the screening and enrollment of qualified individuals.

(2) (a) Whenever it appears there is a reasonable basis to believe that an individual may be a drug or alcohol dependant person as defined in N.J.S.2C:35-2, the individual shall undergo an initial diagnostic assessment to determine the extent of any dependency, and this assessment shall also indicate, based on the determination of dependency, whether the person may benefit from supervisory treatment pursuant to N.J.S.2C:36A-1 or N.J.S.2C:43-12 et seq., special probation pursuant to N.J.S.2C:35-14, or other form of court supervised rehabilitation. This initial assessment shall be provided to the court before the individual's court hearing on bail.

(b) The initial assessment described in subparagraph (a) of this paragraph shall not act as an admission to any particular form of court supervised rehabilitation or recommendation of admission thereto, or alter the statutory or court provided eligibility or procedural requirements for admission thereto.

f. (1) The screening and enrollment process under the pilot program shall operate for a period of three years, subject to possible extension based upon the continuation, modification, or expansion of the program by recommendation of the Commissioner of Health as set forth in the commissioner's report prepared pursuant to paragraph (2) of this subsection.

(2) The Commissioner of Health shall, between six months and two months prior to the conclusion of the three-year screening and enrollment period, submit a report to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature concerning the Medicaid enrollment pilot program. The commissioner shall include information: on the total number of qualified individuals enrolled while incarcerated; the average period of incarceration of enrolled individuals prior to their release from incarceration, and which date represents, to the extent permitted by federal law, the beginning date of their Medicaid coverage; the number enrolled who were released from incarceration compared to those enrolled whose coverage remained suspended due to continued incarceration; and any other information deemed relevant concerning the purpose and operation of the pilot program. The report shall also include a recommendation on the advisability of the continuation, modification, expansion, or termination of the program. If the report does not recommend termination, then it shall include recommendations, if any, for changes in the operation of the program which the commissioner deems advisable. The commissioner may not implement any recommended continuation, modification, or expansion of the program until the Legislature takes appropriate action concerning that recommendation.

2. N.J.S. 2C:36A-1 is amended to read as follows:

2C:36A-1. Conditional discharge for certain first offenses. a. Whenever any person who has not previously been convicted of any offense under section 20 of P.L.1970, c.226 (C.24:21-20), or a disorderly persons or petty disorderly persons offense defined in chapter 35 or 36 of this title or, subsequent to the effective date of this title, under any law of the United States, this State or any other state relating to marijuana, or stimulant, depressant, or hallucinogenic drugs, and who has not previously participated in a program of supervisory treatment pursuant to N.J.S.2C:43-12 or conditional dismissal pursuant to P.L.2013, c.158 (C.2C:43-13.1 et al.) is charged with or convicted of any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of this title, the court upon notice to the prosecutor and subject to subsection c. of this section, may on motion of the defendant or the court:

(1) Suspend further proceedings and with the consent of the person after reference to the State Bureau of Identification criminal history record information files, place him under supervisory treatment upon such reasonable terms and conditions as it may require; or

(2) After a plea of guilty or finding of guilty, and without entering a judgment of conviction, and with the consent of the person after proper reference to the State Bureau of Identification criminal history record information files, place him on supervisory treatment upon reasonable terms and conditions as it may require, or as otherwise provided by law.

The court shall not place the person on supervisory treatment until a determination is made, if not already performed pursuant to N.J.S.2C:44-6, as to whether or not the person is enrolled in Medicaid or is otherwise an enrollee or covered person under a health insurance contract, policy, or plan, and if not so enrolled, provided an opportunity to make application for enrollment using the required streamlined enrollment application form established by 42 U.S.C. s.18083.

b. In no event shall the court require as a term or condition of supervisory treatment under this section, referral to any residential treatment facility for a period exceeding the maximum period of confinement prescribed by law for the offense for which the individual has been charged or convicted, nor shall any term of supervisory treatment imposed under this subsection exceed a period of three years. If a person is placed under supervisory treatment under this section after a plea of guilty or finding of guilt, the court as a term and condition of supervisory treatment shall suspend the person's driving privileges for a period to be fixed by the court at not less than six months or more than two years unless the court finds compelling circumstances warranting an exception. For the purposes of this subsection, compelling circumstances warranting an exception exist if the suspension of the person's driving privileges will result in extreme hardship and alternative means of transportation are not available. In the case of a person who at the time of placement under supervisory treatment under this section is less than 17 years of age, the period of suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the person is placed on supervisory treatment and shall run for a period as fixed by the court of not less than six months or more than two years after the day the person reaches the age of 17 years.

If the driving privilege of a person is under revocation, suspension, or postponement for a violation of this title or Title 39 of the Revised Statutes at the time of the person's placement on supervisory treatment under this section, the revocation, suspension or postponement period imposed herein shall commence as of the date of the termination of the existing revocation, suspension or postponement. The court which places a person on supervisory treatment under this section shall collect and forward the person's driver's license to the New Jersey Motor Vehicle Commission and file an appropriate report with the commission in accordance with the procedure set forth in N.J.S.2C:35-16. The court shall also inform the person of the penalties for operating a motor vehicle during the period of license suspension or postponement as required in N.J.S.2C:35-16.

Upon violation of a term or condition of supervisory treatment the court may enter a judgment of conviction and proceed as otherwise provided, or where there has been no plea of guilty or finding of guilty, resume proceedings. Upon fulfillment of the terms and conditions of supervisory treatment the court shall terminate the supervisory treatment and dismiss the proceedings against him. Termination of supervisory treatment and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities, if any, imposed by law upon conviction of a crime or disorderly persons offense but shall be reported by the clerk of the court to the State Bureau of Identification criminal history record information files. Termination of supervisory treatment and dismissal under this section may occur only once with respect to any person. Imposition of supervisory treatment under this section shall not be deemed a conviction for the purposes of determining whether a second or subsequent offense has occurred under section 29 of P.L.1970, c.226 (C.24:21-29), chapter 35 or 36 of this title or any law of this State.

c. Proceedings under this section shall not be available to any defendant unless the court in its discretion concludes that:

(1) The defendant's continued presence in the community, or in a civil treatment center or program, will not pose a danger to the community; or

(2) That the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances which he may manifest; and

(3) The person has not previously received supervisory treatment under section 27 of P.L.1970, c.226 (C.24:21-27), N.J.S.2C:43-12, or the provisions of this chapter.

d. A person seeking conditional discharge pursuant to this section shall pay to the court a fee of $75 which shall be paid to the Treasurer of the State of New Jersey for deposit in the General Fund. The defendant shall also be required to pay restitution, costs and other assessments as provided by law. A person may apply for a waiver of this fee, by reason of poverty, pursuant to the Rules Governing the Courts of the State of New Jersey, or the court may permit the defendant to pay the conditional discharge fee and other assessments in installments or may order other alternatives pursuant to section 1 of P.L.2009, c.317 (C.2B:12-23.1).

(cf: P.L.2013, c.158, s.10)

3. N.J.S.2C:43-12 is amended to read as follows:

2C:43-12. Supervisory Treatment--Pretrial Intervention.

a. Public policy. The purpose of N.J.S.2C:43-12 through N.J.S.2C:43-22 is to effectuate a Statewide program of Pretrial Intervention. It is the policy of the State of New Jersey that supervisory treatment should ordinarily be limited to persons who have not previously been convicted of any criminal offense under the laws of New Jersey, or under any criminal law of the United States, or any other state when supervisory treatment would:

(1) Provide applicants, on an equal basis, with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant, and when there is apparent causal connection between the offense charged and the rehabilitative or supervisory need, without which cause both the alleged offense and the need to prosecute might not have occurred; or

(2) Provide an alternative to prosecution for applicants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct; or

(3) Provide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with "victimless" offenses, other than defendants who were public officers or employees charged with offenses that involved or touched their office or employment; or

(4) Provide assistance to criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems; or

(5) Provide deterrence of future criminal or disorderly behavior by an applicant in a program of supervisory treatment.

b. Admission of an applicant into a program of supervisory treatment shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense. There shall be a presumption against admission into a program of supervisory treatment for a defendant who was a public officer or employee whose offense involved or touched upon his public office or employment.

c. The decision and reasons therefor made by the designated judges (or assignment judges), prosecutors and program directors in granting or denying applications for supervisory treatment, in recommending and ordering termination from the program or dismissal of charges, in all cases shall be reduced to writing and disclosed to the applicant.

d. If an applicant desires to challenge the decision of the prosecutor or program director not to recommend enrollment in a program of supervisory treatment the proceedings prescribed under N.J.S.2C:43-14 and in accordance with the Rules of Court shall be followed.

e. Referral. At any time prior to trial but after the filing of a criminal complaint, or the filing of an accusation or the return of an indictment, with the consent of the prosecutor and upon written recommendation of the program director, the assignment judge or a judge designated by him may postpone all further proceedings against an applicant and refer said applicant to a program of supervisory treatment approved by the Supreme Court. Prosecutors and program directors shall consider in formulating their recommendation of an applicant's participation in a supervisory treatment program, among others, the following criteria:

(1) The nature of the offense;

(2) The facts of the case;

(3) The motivation and age of the defendant;

(4) The desire of the complainant or victim to forego prosecution;

(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;

(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;

(7) The needs and interests of the victim and society;

(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;

(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;

(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;

(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;

(12) The history of the use of physical violence toward others;

(13) Any involvement of the applicant with organized crime;

(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;

(15) Whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;

(16) Whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of codefendants; and

(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.

f. Review of Supervisory Treatment Applications; Procedure Upon Denial. (1) Each applicant for supervisory treatment shall be entitled to full and fair consideration of his application. Each applicant shall indicate with the application whether or not the applicant is enrolled in Medicaid or is otherwise an enrollee or covered person under a health insurance contract, policy, or plan, unless this information has already been determined by the court pursuant to N.J.S.2C:44-6. If the applicant is not so enrolled, the designated judge deciding on referral to a program of supervisory treatment shall provide the applicant an opportunity for enrollment using the required streamlined enrollment application form established by 42 U.S.C. s.18083 prior to deciding on the referral.

(2) If an application is denied, the program director or the prosecutor shall precisely state his findings and conclusion which shall include the facts upon which the application is based and the reasons offered for the denial. If the applicant desires to challenge the decision of a program director not to recommend, or of a prosecutor not to consent to, enrollment into a supervisory treatment program, a motion shall be filed before the designated judge (or assignment judge) authorized pursuant to the rules of court to enter orders.

g. Limitations. Supervisory treatment may occur only once with respect to any defendant and any person who has previously received supervisory treatment under section 27 of P.L.1970, c.226 (C.24:21-27), a conditional discharge pursuant to N.J.S.2C:36A-1, or a conditional dismissal pursuant to P.L.2013, c.158 (C.2C:43-13.1 et al.) shall not be eligible for supervisory treatment under this section. However, supervisory treatment, as provided herein, shall be available to a defendant irrespective of whether the defendant contests his guilt of the charge or charges against him.

h. Termination. Termination of supervisory treatment under this section shall be immediately reported to the assignment judge of the county who shall forward such information to the Administrative Director of the Courts.

i. Appointment of Program Directors; Authorized Referrals. Programs of supervisory treatment and appointment of the program directors require approval by the Supreme Court with the consent of the assignment judge and prosecutor. Referrals of participants from supervisory treatment programs may be to any public or private office or agency, including but not limited to, programs within the probation service of the court, offering counseling or any other social service likely to aid in the rehabilitation of the participant and to deter the commission of other offenses.

j. Health Care Professional Licensing Board Notification. The program director shall promptly notify the State Board of Medical Examiners when a State licensed physician or podiatrist has been enrolled in a supervisory treatment program after he has been charged with an offense involving drugs or alcohol.

(cf: P.L.2013, c.158, s.11)

4. Section 1 of P.L.2013, c.158 (C.2C:43-13.1) is amended to read as follows:

1. Eligibility and Application. a. Whenever any defendant who has not been previously convicted of any petty disorderly persons offense, disorderly persons offense or crime under any law of the United States, this State or any other state, and who has not previously participated in conditional discharge under N.J.S.2C:36A-1, supervisory treatment under N.J.S.2C:43-12, or conditional dismissal under P.L.2013, c.158 (C.2C:43-13.1 et al.), is charged with a petty disorderly offense or disorderly persons offense except as provided in subsection b. of this section, the defendant may, after a plea of guilty or a finding of guilt, but prior to the entry of a judgment of conviction and with appropriate notice to the prosecutor, apply to the court for entry into the conditional dismissal program pursuant to the requirements of P.L.2013, c.158 (C.2C:43-13.1 et al.). As a condition of such application, the defendant shall submit to the fingerprint identification procedures as provided in R.S.53:1-15 before making such application to the court to allow sufficient time for verification of the defendant's criminal history by the prosecutor. Additionally, before making the application, the defendant shall submit sufficient information to the court as to whether or not the defendant is enrolled in Medicaid or is otherwise an enrollee or covered person under a health insurance contract, policy, or plan, unless this information has already been determined by the court pursuant to N.J.S.2C:44-6. If the defendant is not so enrolled, the court shall provide the applicant an opportunity for enrollment using the required streamlined enrollment application form established by 42 U.S.C. s.18083 prior to approving or disapproving the defendant's participation in the conditional dismissal program.

b. (1) A defendant shall not be eligible for participation in the conditional dismissal program if the offense for which the person is charged involved: (a) organized criminal or gang activity; (b) a continuing criminal business or enterprise; (c) a breach of the public trust by a public officer or employee; (d) domestic violence as defined by subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19); (e) an offense against an elderly, disabled or minor person; (f) an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug; (g) a violation of animal cruelty laws; or (h) any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of Title 2C.

(2) Nothing in this act shall preclude a defendant charged with any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of Title 2C from applying to the court for admission into the conditional discharge program in accordance with N.J.S.2C:36A-1.

c. In addition to the eligibility criteria enumerated in this section, the court shall consider the following factors:

(1) The nature and circumstances of the offense;

(2) The facts surrounding the commission of the offense;

(3) The motivation, age, character and attitude of the defendant;

(4) The desire of the complainant or victim to forego prosecution;

(5) The needs and interests of the victim and the community;

(6) The extent to which the defendant's offense constitutes part of a continuing pattern of anti-social behavior;

(7) Whether the offense is of an assaultive or violent nature, whether in the act itself or in the possible injurious consequences of such behavior;

(8) Whether the applicant's participation will adversely affect the prosecution of codefendants;

(9) Whether diversion of the defendant from prosecution is consistent with the public interest; and

(10) Any other factors deemed relevant by the court.

(cf: P.L.2013, c.158, s.1)

5. N.J.S.2C:35-14 is amended to read as follows:

2C:35-14. Rehabilitation Program for Drug and Alcohol Dependent Persons Subject to a Presumption of Incarceration or a Mandatory Minimum Period of Parole Ineligibility; Criteria for Imposing Special Probation; Ineligible Offenders; Prosecutorial Objections; Commitment to Residential Treatment Facilities or Participation in a Nonresidential Treatment Program; Presumption of Revocation; Brief Incarceration in Lieu of Permanent Revocation.

a. Any person who is ineligible for probation due to a conviction for a crime which is subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility may be sentenced to a term of special probation in accordance with this section, and may not apply for drug and alcohol treatment pursuant to N.J.S.2C:45-1. Nothing in this section shall be construed to prohibit a person who is eligible for probation in accordance with N.J.S.2C:45-1 due to a conviction for an offense which is not subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility from applying for drug or alcohol treatment as a condition of probation pursuant to N.J.S.2C:45-1; provided, however, that a person in need of treatment as defined in subsection f. of section 2 of P.L.2012, c.23 (C.2C:35-14.2) shall be sentenced in accordance with that section. Notwithstanding the presumption of incarceration pursuant to the provisions of subsection d. of N.J.S.2C:44-1, and except as provided in subsection c. of this section, whenever a drug or alcohol dependent person who is subject to sentencing under this section is convicted of or adjudicated delinquent for an offense, other than one described in subsection b. of this section, the court, upon notice to the prosecutor, may, on motion of the person, or on the court's own motion, place the person on special probation, which shall be for a term of five years, provided that the court finds on the record that:

(1) the person has undergone a professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment; and

(2) the person is a drug or alcohol dependent person within the meaning of N.J.S.2C:35-2 and was drug or alcohol dependent at the time of the commission of the present offense; and

(3) the present offense was committed while the person was under the influence of a controlled dangerous substance, controlled substance analog or alcohol or was committed to acquire property or monies in order to support the person's drug or alcohol dependency; and

(4) substance abuse treatment and monitoring will serve to benefit the person by addressing his drug or alcohol dependency and will thereby reduce the likelihood that the person will thereafter commit another offense; and

(5) the person did not possess a firearm at the time of the present offense and did not possess a firearm at the time of any pending criminal charge; and

(6) the person has not been previously convicted on two or more separate occasions of crimes of the first or second degree, other than those listed in paragraph (7); or the person has not been previously convicted on two or more separate occasions, where one of the offenses is a crime of the third degree, other than crimes defined in N.J.S.2C:35-10, and one of the offenses is a crime of the first or second degree; and

(7) the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, kidnapping, aggravated assault, aggravated sexual assault or sexual assault, or a similar crime under the laws of any other state or the United States; and

(8) a suitable treatment facility licensed and approved by the Division of Mental Health and Addiction Services in the Department of Human Services is able and has agreed to provide appropriate treatment services in accordance with the requirements of this section; and

(9) no danger to the community will result from the person being placed on special probation pursuant to this section.

The court shall not place the person on special probation until a determination is made, if not already performed pursuant to N.J.S.2C:44-6, as to whether or not the person is enrolled in Medicaid or is otherwise an enrollee or covered person under a health insurance contract, policy, or plan, and if not so enrolled, provided an opportunity to make application for enrollment using the required streamlined enrollment application form established by 42 U.S.C. s.18083.

In determining whether to sentence the person pursuant to this section, the court shall consider all relevant circumstances, and shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing or other court proceedings, and shall also consider the presentence report and the results of the professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment. The court shall give priority to a person who has moved to be sentenced to special probation over a person who is being considered for a sentence to special probation on the court's own motion or in accordance with the provisions of section 2 of P.L.2012, c.23 (C.2C:35-14.2).

As a condition of special probation, the court shall order the person to enter a residential treatment program at a facility licensed and approved by the Division of Mental Health and Addiction Services in the Department of Human Services or a program of nonresidential treatment by a licensed and approved treatment provider, to comply with program rules and the requirements of the course of treatment, to cooperate fully with the treatment provider, and to comply with such other reasonable terms and conditions as may be required by the court or by law, pursuant to N.J.S.2C:45-1, and which shall include periodic urine testing for drug or alcohol usage throughout the period of special probation. In determining whether to order the person to participate in a nonresidential rather than a residential treatment program, the court shall follow the procedure set forth in subsection j. of this section. Subject to the requirements of subsection d. of this section, the conditions of special probation may include different methods and levels of community-based or residential supervision.

b. A person shall not be eligible for special probation pursuant to this section if the person is convicted of or adjudicated delinquent for:

(1) a crime of the first degree;

(2) a crime of the first or second degree enumerated in subsection d. of section 2 of P.L.1997, c.117 (C.2C:43-7.2), other than a crime of the second degree involving N.J.S.2C:15-1 (robbery) or N.J.S.2C:18-2 (burglary);

(3) a crime, other than that defined in section 1 of P.L.1987, c.101 (C.2C:35-7), for which a mandatory minimum period of incarceration is prescribed under chapter 35 of this Title or any other law; or

(4) an offense that involved the distribution or the conspiracy or attempt to distribute a controlled dangerous substance or controlled substance analog to a juvenile near or on school property.

c. (Deleted by amendment, P.L.2012, c.23)

d. Except as otherwise provided in subsection j. of this section, a person convicted of or adjudicated delinquent for a crime of the second degree or of a violation of section 1 of P.L.1987, c.101 (C.2C:35-7), or who previously has been convicted of or adjudicated delinquent for an offense under subsection a. of N.J.S.2C:35-5 or a similar offense under any other law of this State, any other state or the United States, who is placed on special probation under this section shall be committed to the custody of a residential treatment facility licensed and approved by the Division of Mental Health and Addiction Services in the Department of Human Services. Subject to the authority of the court to temporarily suspend imposition of all or any portion of the term of commitment to a residential treatment facility pursuant to subsection j. of this section, the person shall be committed to the residential treatment facility immediately, unless the facility cannot accommodate the person, in which case the person shall be incarcerated to await commitment to the residential treatment facility. The term of such commitment shall be for a minimum of six months, or until the court, upon recommendation of the treatment provider, determines that the person has successfully completed the residential treatment program, whichever is later, except that no person shall remain in the custody of a residential treatment facility pursuant to this section for a period in excess of five years. Upon successful completion of the required residential treatment program, the person shall complete the period of special probation, as authorized by subsection a. of this section, with credit for time served for any imprisonment served as a condition of probation and credit for each day during which the person satisfactorily complied with the terms and conditions of special probation while committed pursuant to this section to a residential treatment facility. Except as otherwise provided in subsection l. of this section, the person shall not be eligible for early discharge of special probation pursuant to N.J.S.2C:45-2, or any other provision of the law. The court, in determining the number of credits for time spent in residential treatment, shall consider the recommendations of the treatment provider. A person placed into a residential treatment facility pursuant to this section shall be deemed to be subject to official detention for the purposes of N.J.S.2C:29-5 (escape).

e. The probation department or other appropriate agency designated by the court to monitor or supervise the person's special probation shall report periodically to the court as to the person's progress in treatment and compliance with court-imposed terms and conditions. The treatment provider shall promptly report to the probation department or other appropriate agency all significant failures by the person to comply with any court imposed term or condition of special probation or any requirements of the course of treatment, including but not limited to a positive drug or alcohol test or the unexcused failure to attend any session or activity, and shall immediately report any act that would constitute an escape. The probation department or other appropriate agency shall immediately notify the court and the prosecutor in the event that the person refuses to submit to a periodic drug or alcohol test or for any reason terminates his participation in the course of treatment, or commits any act that would constitute an escape.

f. (1) Upon a first violation of any term or condition of the special probation authorized by this section or of any requirements of the course of treatment, the court in its discretion may permanently revoke the person's special probation.

(2) Upon a second or subsequent violation of any term or condition of the special probation authorized by this section or of any requirements of the course of treatment, the court shall, subject only to the provisions of subsection g. of this section, permanently revoke the person's special probation unless the court finds on the record that there is a substantial likelihood that the person will successfully complete the treatment program if permitted to continue on special probation, and the court is clearly convinced, considering the nature and seriousness of the violations, that no danger to the community will result from permitting the person to continue on special probation pursuant to this section. The court's determination to permit the person to continue on special probation following a second or subsequent violation pursuant to this paragraph may be appealed by the prosecution.

(3) In making its determination whether to revoke special probation, and whether to overcome the presumption of revocation established in paragraph (2) of this subsection, the court shall consider the nature and seriousness of the present infraction and any past infractions in relation to the person's overall progress in the course of treatment, and shall also consider the recommendations of the treatment provider. The court shall give added weight to the treatment provider's recommendation that the person's special probation be permanently revoked, or to the treatment provider's opinion that the person is not amenable to treatment or is not likely to complete the treatment program successfully.

(4) If the court permanently revokes the person's special probation pursuant to this subsection, the court shall impose any sentence that might have been imposed, or that would have been required to be imposed, originally for the offense for which the person was convicted or adjudicated delinquent. The court shall conduct a de novo review of any aggravating and mitigating factors present at the time of both original sentencing and resentencing. If the court determines or is required pursuant to any other provision of this chapter or any other law to impose a term of imprisonment, the person shall receive credit for any time served in custody pursuant to N.J.S.2C:45-1 or while awaiting placement in a treatment facility pursuant to this section, and for each day during which the person satisfactorily complied with the terms and conditions of special probation while committed pursuant to this section to a residential treatment facility. The court, in determining the number of credits for time spent in a residential treatment facility, shall consider the recommendations of the treatment provider.

(5) Following a violation, if the court permits the person to continue on special probation pursuant to this section, the court shall order the person to comply with such additional terms and conditions, including but not limited to more frequent drug or alcohol testing, as are necessary to deter and promptly detect any further violation.

(6) Notwithstanding any other provision of this subsection, if the person at any time refuses to undergo urine testing for drug or alcohol usage as provided in subsection a. of this section, the court shall, subject only to the provisions of subsection g. of this section, permanently revoke the person's special probation. Notwithstanding any other provision of this section, if the person at any time while committed to the custody of a residential treatment facility pursuant to this section commits an act that would constitute an escape, the court shall forthwith permanently revoke the person's special probation.

(7) An action for a violation under this section may be brought by a probation officer or prosecutor or on the court's own motion. Failure to complete successfully the required treatment program shall constitute a violation of the person's special probation. A person who fails to comply with the terms of his special probation pursuant to this section and is thereafter sentenced to imprisonment in accordance with this subsection shall thereafter be ineligible for entry into the Intensive Supervision Program, provided however that this provision shall not affect the person's eligibility for entry into the Intensive Supervision Program for a subsequent conviction.

g. When a person on special probation is subject to a presumption of revocation on a second or subsequent violation pursuant to paragraph (2) of subsection f. of this section, or when the person refuses to undergo drug or alcohol testing pursuant to paragraph (6) of subsection f. of this section, the court may, in lieu of permanently revoking the person's special probation, impose a term of incarceration for a period of not less than 30 days nor more than six months, after which the person's term of special probation pursuant to this section may be reinstated. In determining whether to order a period of incarceration in lieu of permanent revocation pursuant to this subsection, the court shall consider the recommendations of the treatment provider with respect to the likelihood that such confinement would serve to motivate the person to make satisfactory progress in treatment once special probation is reinstated. This disposition may occur only once with respect to any person unless the court is clearly convinced that there are compelling and extraordinary reasons to justify reimposing this disposition with respect to the person. Any such determination by the court to reimpose this disposition may be appealed by the prosecution. Nothing in this subsection shall be construed to limit the authority of the court at any time during the period of special probation to order a person on special probation who is not subject to a presumption of revocation pursuant to paragraph (2) of subsection f. of this section to be incarcerated over the course of a weekend, or for any other reasonable period of time, when the court in its discretion determines that such incarceration would help to motivate the person to make satisfactory progress in treatment.

h. The court, as a condition of its order, and after considering the person's financial resources, shall require the person to pay that portion of the costs associated with his participation in any rehabilitation program, nonresidential treatment program or period of residential treatment imposed pursuant to this section which, in the opinion of the court, is consistent with the person's ability to pay, taking into account the court's authority to order payment or reimbursement to be made over time and in installments.

i. The court shall impose, as a condition of the special probation, any fine, penalty, fee or restitution applicable to the offense for which the person was convicted or adjudicated delinquent.

j. Where the court finds that a person has satisfied all of the eligibility criteria for special probation and would otherwise be required to be committed to the custody of a residential treatment facility pursuant to the provisions of subsection d. of this section, the court may temporarily suspend imposition of all or any portion of the term of commitment to a residential treatment facility and may instead order the person to enter a nonresidential treatment program, provided that the court finds on the record that:

(1) the person conducting the diagnostic assessment required pursuant to paragraph (1) of subsection a. of this section has recommended in writing that the proposed course of nonresidential treatment services is clinically appropriate and adequate to address the person's treatment needs; and

(2) no danger to the community would result from the person participating in the proposed course of nonresidential treatment services; and

(3) a suitable treatment provider is able and has agreed to provide clinically appropriate nonresidential treatment services.

If the prosecutor objects to the court's decision to suspend the commitment of the person to a residential treatment facility pursuant to this subsection, the sentence of special probation imposed pursuant to this section shall not become final for ten days in order to permit the appeal by the prosecution of the court's decision.

After a period of six months of nonresidential treatment, if the court, considering all available information including but not limited to the recommendation of the treatment provider, finds that the person has made satisfactory progress in treatment and that there is a substantial likelihood that the person will successfully complete the nonresidential treatment program and period of special probation, the court, on notice to the prosecutor, may permanently suspend the commitment of the person to the custody of a residential treatment program, in which event the special monitoring provisions set forth in subsection k. of this section shall no longer apply.

Nothing in this subsection shall be construed to limit the authority of the court at any time during the term of special probation to order the person to be committed to a residential or nonresidential treatment facility if the court determines that such treatment is clinically appropriate and necessary to address the person's present treatment needs.

k. (1) When the court temporarily suspends the commitment of the person to a residential treatment facility pursuant to subsection j. of this section, the court shall, in addition to ordering participation in a prescribed course of nonresidential treatment and any other appropriate terms or conditions authorized or required by law, order the person to undergo urine testing for drug or alcohol use not less than once per week unless otherwise ordered by the court. The court-ordered testing shall be conducted by the probation department or the treatment provider. The results of all tests shall be reported promptly to the court and to the prosecutor. In addition, the court shall impose appropriate curfews or other restrictions on the person's movements, and may order the person to wear electronic monitoring devices to enforce such curfews or other restrictions as a condition of special probation.

(2) The probation department or other appropriate agency shall immediately notify the court and the prosecutor in the event that the person fails or refuses to submit to a drug or alcohol test, knowingly defrauds the administration of a drug test, terminates his participation in the course of treatment, or commits any act that would constitute absconding from parole. If the person at any time while entered in a nonresidential treatment program pursuant to subsection j. of this section knowingly defrauds the administration of a drug test, goes into hiding or leaves the State with a purpose of avoiding supervision, the court shall permanently revoke the person's special probation.

l. If the court finds that the person has made exemplary progress in the course of treatment, the court may, upon recommendation of the person's supervising probation officer or on the court's own motion, and upon notice to the prosecutor, grant early discharge from a term of special probation provided that the person: (1) has satisfactorily completed the treatment program ordered by the court; (2) has served at least two years of special probation; (3) did not commit a substantial violation of any term or condition of special probation, including but not limited to a positive urine test, within the preceding 12 months; and (4) is not likely to relapse or commit an offense if probation supervision and related services are discontinued.

(cf: P.L.2012, c.23, s.5)

6. This act shall take effect immediately.

STATEMENT

This bill concerns efforts to broaden Medicaid coverage in New Jersey to qualified individuals by reaching out to such individuals through various stages of the State's criminal justice system. Specifically, it would establish a three-year pilot program, administered by the Commissioner of Human Services, to screen and enroll qualified individuals at the time they become incarcerated in a county correctional facility following arrest or indictment and are awaiting a court hearing on bail. Additionally, it would require an enrollment opportunity for qualified individuals prior to their admission to various pre-sentencing and post-sentencing court supervised rehabilitative programs, including conditional discharge (N.J.S.2C:36A-1), supervisory treatment (N.J.S.2C:43-12 et seq.), and special probation drug court (N.J.S.2C:35-14).

As to the pilot program, the Commissioner of Human Services, in consultation with the Commissioner of Corrections and the county administrators of the county correctional facilities, as well as the Administrative Office of the Courts, would select three county correctional facilities for participation, one each in the north, central, and south regions of the State. An express factor in the selection of the three facilities would be a determination of which facilities are likely to incarcerate the greatest number of potential qualified individuals for Medicaid screening and enrollment throughout the duration of the three-year program.

Once the facilities are selected, the Commissioner of Human Services would, again in consultation with the Commissioner of Corrections, as well as the selected facility administrators, either assign appropriately trained full-time personnel from the Department of Human Services' Division of Medical Assistance and Health Services to be present within the facilities during designated days and hours to screen and enroll qualified individuals in Medicaid, or provide training to designated county correctional facility intake personnel to handle the screening and enrollment process. The commissioner could choose between assigning division personnel and providing training to county correctional facility intake personnel, or using a combination thereof, for each of the selected county correctional facilities.

The Medicaid screening and enrollment process under the pilot program would begin after the selection of the three county correctional facilities by the Commissioner of Human Services, and the selection and completion of training, as necessary, of the personnel to handle the screening and enrollment process. It would be offered to individuals who, on or after the beginning date of the screening and enrollment process, become incarcerated in a designated county correctional facility following arrest or indictment and are awaiting a court hearing on bail.

As part of the pilot program's screening and enrollment process, the single, streamlined application form for enrolling applicants in Medicaid, NJ FamilyCare, or other qualifying heath care coverage through the federal "Patient Protection and Affordable Care Act," Pub.L.111-148, as required by 42 U.S.C. s.18083, would be used. Additionally, whenever it appears there is a reasonable basis to believe that an individual may be a drug or alcohol dependant person as defined in N.J.S.2C:35-2, the individual would undergo an initial diagnostic assessment to determine the extent of any dependency, and this assessment would also indicate, based on the determination of dependency, whether the person may benefit from a court supervised rehabilitative program. This initial assessment would be provided to the court before the individual's court hearing on bail, but would not act as an admission or recommendation of admission to any particular form of court supervised rehabilitation, or alter the statutory or court provided eligibility or procedural requirements for admission thereto.

The Commissioner of Health would, between six months and two months prior to the conclusion of the three-year screening and enrollment pilot program, submit a report to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature concerning the program. The commissioner's report would include information: on the total number of qualified individuals enrolled while incarcerated; the average period of incarceration of enrolled individuals prior to their release from incarceration, and which date represents, to the extent permitted by federal law, the beginning date of their Medicaid coverage; the number enrolled who were released from incarceration compared to those enrolled whose coverage remained suspended due to continued incarceration; and any other information deemed relevant concerning the purpose and operation of the pilot program. The report would also include a recommendation on the advisability of the continuation, modification, expansion, or termination of the program. If the report does not recommend termination, then it would include recommendations, if any, for changes in the operation of the program which the commissioner deems advisable. The commissioner could not implement any recommended continuation, modification, or expansion of the program until the Legislature takes appropriate action concerning that recommendation.

With respect to both the pilot program and the enrollment opportunity set forth in the bill for individuals prior to admission to the various pre-sentencing and post-sentencing court supervised rehabilitative programs, the sponsor recognizes that controlling federal Medicaid law, particularly 42 U.S.C. s.1396d(a)(29)(A), prohibits coverage to incarcerated individuals (except as patients in a medical institution). However, the federal law does not prevent the enrollment of such individuals who are otherwise qualified for coverage, which can take effect upon their release from incarceration. Thus, efforts to enroll persons (1) presently incarcerated, but subject to possible release from incarceration on bail (or alternatively admitted as patients in medical institutions), or (2) pending admission to a court supervised rehabilitative program which may operate in a non-incarcerated setting, can result in these persons obtaining available Medicaid coverage for medical care and services.