Vermont Legislature SmartTranscripts:

[Troy Headrick (Ranking Member)]: You're live.

[Alice M. Emmons (Chair)]: Good afternoon. This is the afternoon session of the House Corrections and Institutions Committee. It is Thursday, April 9, and this afternoon, we are talking to Ben Green about dams. So Ben, if you wanna take the hot seat and introduce yourself for the record, we'll get started.

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: Good day. For the record, my name is Ben Green. I'm the section chief of the Dam Safety Program at the Department of Environmental Conservation. Here today to discuss state dam governance. I submitted a memorandum that I believe was printed out and handed around that provides our position on this manner on this matter. And I'll be going through that memo and some of the points in that today. In the way of background, currently, they're a little over 100 state owned dams and they're owned by a variety of different agencies and departments. By numbers within the agency of natural resources, Department of Environmental Conservation, whom I work on 14, and those are the 14 that we're responsible for directly. And then Forest Parks and Recreation also owns fourteenth, and Fish and Wildlife owns roughly 72. State Colleges owns four, and the Agency of and the V Trans Rail Division own three. So that's roughly, like, a 107 dams or so. That's dams that are considered regulated by our program. So that's dams that are over can impound more than 500,000 cubic feet of water. There's a few smaller dams that I we

[Troy Headrick (Ranking Member)]: didn't include in the tally.

[Mary A. Morrissey (Member)]: Do you have a breakdown of that? You did it kind of fast.

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: Sure. Within ANR, DEC is owned 14. FPR, Forest Parks and Recreation, is also 14. Fish and Wildlife is 72. And then outside of A and R, we have state colleges at four. And the agency of transportation directly and within their rail division is three. Historically, state dams are largely managed independently by their owners. In some cases, is active and trending in the direction of full compliance with upcoming rules and requirements. And in some cases, unfortunately, that's not the case. Roughly 30% of ANR owned dams are in poor unsatisfactory condition, which sounds like a lot and it's not a great thing. It's actually not that different than the overall inventory across the state, across all ownership groups, including municipal, private, etcetera. And about 80% of our dams are more than 50 years old, which means many of them are nearing the end of their original service life. So

[Alice M. Emmons (Chair)]: 80%?

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: Yep, 80%. Meaning they're, you know, approaching or, you know, many of their components are kind of approaching the end of their original service life and the dam itself is at or near a crossroads where sort of that time to ask that question. Is it time to reinvest in rehabilitation and buy another fifty or one hundred years for this facility? Or is the the site's beneficial use kind of come and gone as this may be a better candidate for removal? Currently, the dam safety program does try to help the Fish and Wildlife and Forest Parks and Recreation, our partners within A and R on some dam safety work as our staff capacity allows and as funding allows. And a couple recent examples of that would be at official wildlife dam, Gale Dam And Dike in Londonderry. This dam was over top, the Missouri Spillway was overtopped and badly damaged in the twenty twenty three floods. A staff member of mine formed an emergency design and oversaw construction to temporarily stabilize that spillway. And since then, we've assisted Fish and Wildlife to manage a comprehensive assessment of the dam, and now they're moving to the design phase for a permanent resolution there, permanent rehabilitation project that we've assisted along the way and also provide some funding as able. Another example would be another fish and wildlife dam Fairfield Swamp Dam in Swanton. We've assisted with some general dam consultant to the fish and wildlife there. We've done things including we've planned, conducted and funded a geotechnical exploration program for them there. And we've done some planning, other planning as well as overseeing a site survey for them. That was an example of a dam. We didn't have the time or capacity to really dive in, help them on everything. We've sort of helped them on certain things as we were able to. And then another example is at many agency natural resources dams that we don't own, we've been developing maps of where it needs to be mowed and brushed. A lot of our dams, unfortunately, are behind on vegetation management. And we're developing these maps to help get preliminary approvals so that when funding does come available, we can get that work done and sort

[Troy Headrick (Ranking Member)]: of make that more of

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: a normal task and kind of the way of normal operating procedures as it should be. Unfortunately, many of our dams don't have the funding or the capacity to have that work done and are fairly overgrown and just need of those basic things. So our position on this concept of kind of altering the way that dams are governed in the state, We are in terms of ownership, we generally agree that there's value in utility and the exercise of reconsidering how how we structure state dam oversight and management. Historically, the state has not had coordinated asset management strategy or compliance strategy at the state level. It's been essentially every department for themselves as to how they manage their dams. And we're in the dam business, we take it pretty seriously. Our dams are generally in pretty decent shape. Some of their departments don't have the manpower, the expertise, the funding. And so that's not always the case. Right. You know, I I guess as we look at it, why we think it's a good initiative, an important mission initiative, it could be helpful in the future. Let's look into this in more detail. The dam safety program would really we really need to stay focused on the completion of current rulemaking efforts that we've been legislated to complete. And that is the technical standards of the dam safety rule and the revolving loan fund rules, which will hopefully develop a loan program that will be able to help fund some of these dam rehabilitation projects for all ownership types. And those are really pretty large efforts that we're trying to get across the finish line to be in place in 2027. And so that's really where we need to prioritize our time that we have to get those in place. Couple other items on this is we have undergone some iterations or concepts on this type of thing in the past. In my time, I started in 2017. We've kind of looked at this sort of thing a few different times. There's been a desire to try to align department missions and staff expertise around A and R owned dams. A particular note in 2022 and early twenty twenty three, this concept came up of a proposed group called the A and R Dam Asset Compliance Group. Kind of the concept of that is probably not too different from what maybe you guys have in mind or others have in mind, which is basically bringing the goals would be to bring all A and R dams into compliance with upcoming rules, avoid dam safety compliance issues, and with the ultimate goal of reducing dam safety risk to the state. There's also a lot of opportunity in our opinion to improve efficiencies and more actively manage the dams by having, you know, one group be more involved and more responsible than they spread out over the entire department. Unfortunately, that kind of concept initiative suffered from competing priorities and lack of funding and sort of died out. Some other kind of similar type tasks that we've done at the ANR level is completed in 2024. I've spoken about this before, the ANR dam risk assessment, where we did a risk assessment of 18 highest significant hazard dams across ANR. So those are dams owned by not only DC, but also FPR and Fish and Wildlife. We allowed us to come up with a ranking system for the risk of those dams. So we could kind of work across the agency level in terms of, you know, being wise with limited funds in terms of buying down risk. So that was another kind of A and R level. Look at the dam safety portfolio that we have, dam portfolio that we have. And then also after the twenty twenty three floods, there were some meetings around dams and A and R dams in particular, and it did help to raise awareness on dam owner responsibilities. And we also looked at things we'd end up identifying and assigning caretakers to every single A and R dam. That was helpful. That certainly got the discussion going, continue the discussion about the importance of being good dam owners to our colleagues. But that that was limited in scope. And so that that well, it wasn't beneficial. Again, didn't really entirely accomplish the goals. So from an approach standpoint of of where to go next, I think some preliminary legislation that we were shown was the concept of doing a legislative report on the topic and kind of look at the pros and cons of it, what the cost benefits could be, and etc. So we had a few thoughts on that. And one of is that a multi stakeholder working group, we feel is not necessary to provide a legislative report with a good recommendations on how to better manage state owned dams. Some of the reasons why we feel it doesn't need to be this large stakeholder formal working group is, number one, we can lean on some previous efforts that we've done. We've kind of thought about this before. We don't have it all figured out, but we have some might. We've done homework on this over the years and certainly have some good thoughts. It's really an internal focus subject matter as that I think, you know, it's really how we manage our own assets. And so therefore, you know, external input may not be that valuable. And also, you know, we certainly wouldn't coordinate with internal dam state state dam owners from other divisions to develop that report. But we feel like it could be probably more tightly and easily managed doing it that way. From a timeline standpoint, as I mentioned before, we really can't prioritize an initiative like this at this time because we're trying to get these rules across the finish line. And we really have had a lot of things come up that have prevented us from doing that to this point. We're really trying to eliminate things that are doing that. From a time standpoint, we'll be looking at maybe this is work we could focus on the 2028 timeframe and get a legislative report delivered for the 2029 session would probably be more realistic for us. Again, we need to complete these DAM safety rules and stand those up. And those DAM safety rules are going to be really the backbone of how DAMs are regulated at the state level. And it's going to change quite a few things are done, and it's going be time consuming. And then lastly, on scope, I think the initial scope from the preliminary language we saw is kind of considering all state owned dams. I think one maybe slight simplification to that would be really made focus initially at least on A and R owned dams. We're all within the same agency and there's some simplification there of maybe just trying to start there. Maybe we could look to contemplate how to add in additional state owners as part of it, but and scale the process up. I think really even just getting A and R sorted would be a better first step is that or where the majority of the dams are. So, yeah, I guess that's that's that's essentially what I had for my testimony. We're in favor of the concept. We think there's value in doing it. I think getting the damn management under one entity would be more efficient than we currently are. It allows us to take limited funds further. It would take resources that we don't have as one challenge. We'd be dedicated staff that don't really exist right now to do this work, but it would certainly serve us well in the long run-in terms of where our dam inventory and our portfolio and our responsibilities to get these dams where they need to be.

[Alice M. Emmons (Chair)]: Do I just have a question?

[Troy Headrick (Ranking Member)]: Currently, under the current working plans, when you do design work or consultant work with some of the other departments who pays for that, that that depends on our typically, when

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: we if if we when we assisted Fish and Wildlife, we just did the work as part of our base workload sort of situation. And that's one thing that's sort of come up in the past as we've sort of bitten off bigger bites here and there over the years. How do we manage that? And we haven't sort of kept it in that way, which has its advantage because it allows us

[Kevin Winter (Member)]: to kind of move quickly and

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: not get tied down with too much bureaucracy, but also sometimes challenges us. How do we fund keeping this stuff going

[Troy Headrick (Ranking Member)]: on our end as well? And then sort of second to that. So for the the dams that are owned outside of the agency, the DOT, state colleges, there any oversight on that right now? Do you guys involve yourself with any of those? Like, do you

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: give them a heads up when you're concerned? Absolutely. So they are regulated by us. So our regulatory wing still deals with those dam owners. We go out, we inspect them regularly. We have a dialogue with them as dam owners. We provide them recommendations. The one of the dam, the one in Johnson I was mentioning, was a high hazard that was rebuilt in in the the early two thousands and that got a permit through us. And so, you know, we have interaction with them on the regulatory side of things. On the ownership side, like so, one of the one of the agency of transportation is actually the rail division owns Lake Perrin Dam down in Bennington area. And that that one's sort of been a lot of questions about that one in the last few years because they they're not a very active. They're they maintain the rail and they focus on that, but they, you know, there's been discussion about how to really manage that facility better because they they have a

[Alice M. Emmons (Chair)]: So is it fair

[Troy Headrick (Ranking Member)]: to say that you all have a really good understanding of each of these hundred and four hundred and seven, whatever it was, dams that you know the status and kind of

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: they're on your Yes, everyone of those are. Yes, again, my program is both regulatory. It was like 50% of what we do in ownership. It's 50% of what I do. When I say ownership at the moment, it means 14 dams that we own, specifically Waterbury, Wrightsville, and Eastbury are the lion's share of that time. On the regulatory side, and we're a small shop where there's some cross pollination there, but we deal with them regulatorily right now and in the future, certainly.

[Alice M. Emmons (Chair)]: Follow-up on that, just so I understand. So like every, regardless of which one of these dams, if they need to do work, they have to go through you for permitting or whatever. Right. Yep. I understand. Kevin?

[Kevin Winter (Member)]: I assume you've got an org chart for your current team. For me, it'd be helpful to see that org chart and what you think it would need to be if you took on the whole thing. Yeah.

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: That would be something that yeah. We've looked a little bit at that, and I think that was what probably the legislative report would be a deeper dive into what resources are really needed, because I can certainly say dedicated resources would be needed when we staffed up. When I started in 2017, we had two staff, and then in 2021, we added two more, and we've since we're up to seven right now with two more positions that we're trying to fill. We've certainly gotten a lot more capacity. We've also taken on a lot more both regulatory work and ownership work on our own sides. But there's really there's no one dedicated to some of the tasks that really need to have people dedicated with them to make sure that we are keeping these dams where they need to be. Really, the risk is that as we start to actively regulate, we're gonna be regulating these owners and we're potentially gonna take enforcement actions on our sister departments, which is something we'd, you know, we'd better be more proactive about it, but within the ability of what we can with the available funding.

[Alice M. Emmons (Chair)]: Do think you wanna ask a question?

[James Gregoire (Vice Chair)]: Well, yeah, just because actually it's brought up a question I had because I've read that in the scope part, and you brought up, like, in particular, but I'm just curious about all the AOT bans. Do you feel that it's okay to still maintain that system of how they're distributed where there's some with AOT, some with most from with ANR? Do you think that's fine safety wise and funding wise for repairs of

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: I think that of how we got to where we are now is largely a function of what the original use of the dam was, and that sort of carried forward. In many cases, AOT owns dams that were a dam structure that was tied into a transportation infrastructure. And they own and definitely maintain the transportation infrastructure. By the way, this is also a dam. It's kind of how they've gotten theirs. Many efficient wildlife dams were built, you know, in the 40s, 50s and 60s when, you know, dam building was considered a very good conservation method and they're building trout ponds and and other wildlife management area features. And so the other dams are focused on that. So it's sort of that's sort of how we all end up risk board of dams owned by different entities across the across the board. Again, we're the only department that has dam safety engineers employed. Others have, in some cases, very active and people are paying good attention doing a decent job. In other cases, there's just really nobody home because, you know, there's just we have like biologists and things in charge of a wildlife management area that, by the way, has the dam. And so they're looking at it from a different you know, they're looking at with their limited budget and their limited capability kind of in their area of expertise. So those things don't always align. It seems as you look across the board. I think there is an opportunity to better manage these dams if it was done under one roof. I I think, obviously, the study should be done to to prove that out, but that would be my assertion. I I do think that the ultimate ownership of that dam should probably stay with the entity that owns it because they are the ones that for example, if this came under a new ownership wing or whatever that that or no. Should a new management wing, they should really work for the individual owners to manage those dams in a in a in a good way and basically be the agents of those owners. So if the owner decides they want to remove a dam, they help them with that. If they decide they wanna rehabilitate the dam, they help them with that. Because those dams are by and large, small feat, like a a feature of a larger goal where that site is like at a state park. They don't wanna remove that dam. They wanna rehabilitate that dam. So shouldn't know, the real really the ultimate strategy for where we're heading with the it really should stay with the owner of making those big decisions. And this my mind, this group would kind of help them to accomplish those goals and manage damn safety for them. So so so so so so so like an agent for them to help them achieve their goals and you know maintain that waterway is very important because it supports recreation for XYZ. And so that means we need to do this at the dam versus the use of this dam is kind of come and gone. We don't really need it anymore. It'd be actually nice to have it gone. Then that group assists them in moving forward with that initiative.

[Alice M. Emmons (Chair)]: Mean, whether we're right or wrong, I honestly don't have enough information to know. I think there's a feeling that we're worried that there's not enough oversight, if you will, of the dams because there's this disparate ownership. Then you can say like some people have some expertise in this than others. It's like when I'm a biologist looking at frogs, which is cool, or trout, but I don't really know about a dam. We just have pretty legitimate concerns about making sure the dams are taken care of properly. Yeah, Shawn.

[Troy Headrick (Ranking Member)]: But what you're saying is it should they should all be watched under one by you all, let's say, DEC.

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: Think so.

[Troy Headrick (Ranking Member)]: Is that a suggestion?

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: Well, I'm guessing the should probably, the study should be done, but I think that I think a dedicated staff is, if we really get to have these dams be up to in compliance and in good shape and across the board, our risk reduced as much as possible. It needs to be people, decades staff that are paying attention to this stuff, which we don't really have. So yeah, I think that's probably where the study is going to head for recommendation. But obviously, there's nuances that need to be considered.

[Brian Minier (Member)]: Okay.

[Troy Headrick (Ranking Member)]: But you're also saying, like, the the, you know, the 72 dams owned by Fish and Wildlife should still just be owned by Fish and Wildlife?

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: Yeah. I'm suggesting that the owner well, again, think this this should probably be studied, but I think that kind of what we found in the work that we've done so far is that the ownership should remain the same. People that are doing the day to day management and oversight should be a focus group. Okay. Who that is an agent to set owner so that if the owner says my ultimate goals are x, y, and z, but I'm not a damn safety engineer, I don't know anything about dams, but this group could help them achieve those goals and bring the dams to where they need to be to get there. So I think that's one challenge is people, you know, of these entities, they don't really want to own the dams, and yet they the asset or the benefits that the dams bring. They need to continue to have that ultimate decision making power. Handling the day to day needs to be probably handled by others would be best.

[Troy Headrick (Ranking Member)]: But a follow-up question to that is, so does fish and wildlife actually own these dams? Or do people who own the land own the dam? Or do we just own all those dams? Vermont own the dams?

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: Yes. The state of Vermont owns the dams.

[Troy Headrick (Ranking Member)]: So it's not a financial responsibility.

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: Person that either owns legal title to the dam or owns the land underlying the footprint of the dam is the legal owner and these are on state land. Therefore, the state is the owner.

[Troy Headrick (Ranking Member)]: So those 107 dams are all state owned dams?

[Alice M. Emmons (Chair)]: Yes, all state.

[Troy Headrick (Ranking Member)]: All right, that's good to know.

[Kevin Winter (Member)]: Thank you. Troy.

[Troy Headrick (Ranking Member)]: And just so I'm clear, your timeline is suggesting that if we kind of agree that a study on this would be worthwhile, you're requesting that maybe not until the '28 to have that report done for delivery in '29. Yeah.

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: So we can focus on our our demonstration rules that we've been trying to get done now for a little too long.

[Troy Headrick (Ranking Member)]: Yeah.

[Alice M. Emmons (Chair)]: Okay.

[Kevin Winter (Member)]: Is the report, and I mean this in a kind way. Is it to put together a dog and pony show or is it to get together the rules, etcetera, so you can keep moving forward. I know it sounds crazy, but I'd rather not spend it on a fancy report. I'd rather have you use it to do what you need to do to make progress on all 107 dams.

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: I think the report could be an important measure to one, get people on board with the idea and also just look at all the nuances. Mean, we're kind of talking in high generalities right now. We're not really diving into some of the other items that I think would come up and probably need to be contemplated.

[Brian Minier (Member)]: What kind

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: of staff really levels do you need? What are your options for level of management? I think it's important to look that through. And then if it decided to be acted on, could be used as a roadmap going forward as the kind of the bible for how this is done.

[Kevin Winter (Member)]: But as long as you say it's useful, it's not just a sell up concept.

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: Yeah. I I fear if there's no plan and it just sort of happened, then it would be how how the next year

[Alice M. Emmons (Chair)]: do it?

[Alice M. Emmons (Chair)]: I wouldn't expect you to

[Kevin Winter (Member)]: do it. It just happened.

[Alice M. Emmons (Chair)]: Yeah. Well,

[Mary A. Morrissey (Member)]: it would be also a future document for folks in the care place.

[Kevin Winter (Member)]: Well, I've just seen enough experience in my life that people would spend a whole lot of money telling the customer what they think they want to hear. I'd rather do that, I'd rather have you spend the money on the rule making, whatever productive rather than Yeah.

[Alice M. Emmons (Chair)]: So then can I ask you, so you had When you were talking, gave us a lot more information that was on here? Yes. Would you be willing to give us your whatever that information you had? Because it was pretty interesting stuff. Okay. But it's not gonna stick in my head that, you know, I could watch the video again. But if I have it in writing, I'd be a lot easier.

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: I can put some notes together if that would be helpful.

[Brian Minier (Member)]: That's awesome.

[Alice M. Emmons (Chair)]: That's pretty good details there.

[Alice M. Emmons (Chair)]: You know, sorry I was downstairs because I'm in our capital bill. Yeah, right, I agree.

[Troy Headrick (Ranking Member)]: I'm fine. Well, that's really helpful, Ben. Thank you.

[Conor Casey (Member)]: Ben, I just want to thank you very much. Sorry I'm waiting for a guy with a leak in my roof but yeah no I sent Ben the language originally that we were kind of kicking around for the study. As the chair and I were looking at it and talking to ledge counsel, it definitely seemed like it was more complicated as far as where grant money was going and everything. But I just want to thank you, Ben. This is a great first conversation to have. It seems to some extent we're already moving in the same direction. So maybe it's a check back next year and it definitely didn't seem like the formal study was needed. Now you guys got a lot of work to do. So thanks very much.

[Alice M. Emmons (Chair)]: Yeah, you do have a lot of work to Sorry about your testimony, but seems like we're almost finishing up with it. Yeah. Is that true?

[Alice M. Emmons (Chair)]: Yeah. That was good.

[Troy Headrick (Ranking Member)]: I mean, anything else?

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: No. I got that was pretty much soup to nuts of of our position on on the idea. It's not it's a good idea, think, it's certainly an idea that should be looked into. Just we're not quite ready yet.

[Alice M. Emmons (Chair)]: Got it.

[Alice M. Emmons (Chair)]: Sounds great. Thank you, Ben.

[Troy Headrick (Ranking Member)]: Thank you.

[Kevin Winter (Member)]: Thank you. You.

[Alice M. Emmons (Chair)]: Jamal is dealing with these damn things, right?

[Brian Minier (Member)]: Every day.

[Alice M. Emmons (Chair)]: Every night.

[Alice M. Emmons (Chair)]: Thank you so much, guys.

[Troy Headrick (Ranking Member)]: Thank you.

[Alice M. Emmons (Chair)]: So did it go? Alright. Alright. It was it was fine.

[Alice M. Emmons (Chair)]: Have a good day. Thank you,

[Alice M. Emmons (Chair)]: No. It was fine. Was just See, the door does slam without Why? Because of the scare.

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: I didn't meant that.

[Alice M. Emmons (Chair)]: I'd like to have a conversation. I want to get an update in New York with what happened with Hillary in language. Can we figure out how we're going to get that down to Senate

[Alice M. Emmons (Chair)]: We don't have

[Troy Headrick (Ranking Member)]: that yet. Senate judiciary has The miscellaneous judiciary already has the first bullet language in it, the bill, as it's written currently, already has that first bullet in it. She's going to work with DOC on the second bullet.

[Brian Minier (Member)]: Well, the second bullet was not

[Alice M. Emmons (Chair)]: We talked about an analysis here.

[Troy Headrick (Ranking Member)]: Oh, okay.

[Alice M. Emmons (Chair)]: And then the third bullet, she had said

[Alice M. Emmons (Chair)]: The second bullet she didn't talk about. She was only on the

[Mary A. Morrissey (Member)]: When we

[Alice M. Emmons (Chair)]: were done with the one with biotin. The role board. Right. And then this one

[Alice M. Emmons (Chair)]: So this one here

[Alice M. Emmons (Chair)]: Is kind of connected with

[Troy Headrick (Ranking Member)]: this Yeah, she

[Alice M. Emmons (Chair)]: had mentioned that the OC-one language in their statute, Title 28, and she had suggested potentially 11 o two and that new language or and then then it would be an easy place to put it, but it'd be awkward or making a new section, and she hadn't really made decisions. She needed to have more conversations.

[Alice M. Emmons (Chair)]: The miscellaneous judiciary bill?

[Troy Headrick (Ranking Member)]: Yeah, once we get this in place, that would also go down to miscellaneous judiciary. But she needs to have a conversation. We told her to have a conversation with DOC to see if they had thoughts on staffing.

[Alice M. Emmons (Chair)]: And she And Eric, yes. And so then they would talk, and I gave her permission to talk to Haley about this, and that she would touch base with us again, and then we would have to reach out to the working group or whoever else, maybe directly, and get it to the judiciary.

[Alice M. Emmons (Chair)]: Do you have a time frame when she could do this?

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: It sounds like she was

[Alice M. Emmons (Chair)]: gonna turn around pretty quickly. She's good. How

[Alice M. Emmons (Chair)]: long are distracted her?

[Alice M. Emmons (Chair)]: That's where we left it.

[Alice M. Emmons (Chair)]: So you folks have been sitting here a while. Let's take a break.

[Troy Headrick (Ranking Member)]: Take 10

[Alice M. Emmons (Chair)]: break. Want to have a committee discussion on S-one Hundred 83.

[Mary A. Morrissey (Member)]: Can we do it now? Because we did kind of break.

[Alice M. Emmons (Chair)]: You did break? Yeah. Alright. You did break. Oh, alright. Yeah. Just wasn't sure.

[Troy Headrick (Ranking Member)]: Up until three, then he came So

[Mary A. Morrissey (Member)]: goes a different direction. It's

[Alice M. Emmons (Chair)]: It went okay downstairs.

[Mary A. Morrissey (Member)]: What does okay mean?

[Alice M. Emmons (Chair)]: One member asked a lot of questions.

[Mary A. Morrissey (Member)]: I was gonna say, how was that favorite neighbor?

[Alice M. Emmons (Chair)]: Well, only picked up on what was in the letter. Yeah. First they said they heard different testimony. And I asked when they heard the testimony. They said yesterday. I said some people have different orders.

[Alice M. Emmons (Chair)]: Yeah.

[Alice M. Emmons (Chair)]: Alright. What I said. My wife

[Mary A. Morrissey (Member)]: understand her.

[Alice M. Emmons (Chair)]: I think they did for the most part.

[Troy Headrick (Ranking Member)]: Did they have a position on Wi Fi?

[Alice M. Emmons (Chair)]: I think I think well one person said it should go through the board. The board has like $270,000,000 from the Fed. That's not the information. So we need to double check that.

[Alice M. Emmons (Chair)]: We have told very clearly that that money wasn't available yet

[Alice M. Emmons (Chair)]: or even released. I said, well, we haven't received it from the nurse in anticipation of receiving any money. And it would only be used for connectivity outside of

[Troy Headrick (Ranking Member)]: the Running the lines.

[Alice M. Emmons (Chair)]: Running the lines. It's not gonna be within a building. That's what we heard. This person knows something different.

[Mary A. Morrissey (Member)]: This one is the question, did they understand?

[Alice M. Emmons (Chair)]: You could learn anything because everybody has a different interpretation.

[Alice M. Emmons (Chair)]: There you go. And then, of course, it has all the what was the other? It was three acres of its Wi Fi. What was the other? It was three of them.

[Troy Headrick (Ranking Member)]: They didn't think we needed to put money into the women's facility. Yeah,

[Alice M. Emmons (Chair)]: but the three acres, they didn't really ask any questions.

[Troy Headrick (Ranking Member)]: Oh, the boiler too.

[Alice M. Emmons (Chair)]: Yeah, ask much questions about that. They thought everything

[Alice M. Emmons (Chair)]: was The kind of door locks.

[Alice M. Emmons (Chair)]: Oh, the door locks, yeah, that was the other one. They were all under contract and ready to go for door locks. So well, that's not what we learned at any time. They had signed contracts.

[Troy Headrick (Ranking Member)]: That was the letter that was sent last night. All the signed contracts.

[Alice M. Emmons (Chair)]: The only signed contract we heard was St. John's Building in Caledonia and they were working on Brussels for design documents and that possibly possibly construction. We didn't hear anything about signed contracts for other facilities. Is there anyone in there to counteract what they were saying? No. BGS came in about halfway through. Oh. But the and I I I asked them, so when did you hear about those? They said yesterday.

[Mary A. Morrissey (Member)]: Yes. And they were given their merch and letters. Charmers.

[Alice M. Emmons (Chair)]: To read through that. So it's part of the negotiations. Sometimes

[Kevin Winter (Member)]: things get done when you're threatened to take money away and all of a sudden they say, I don't want let it go and get a contract.

[Alice M. Emmons (Chair)]: Not if you don't have signed contracts or you don't have a signed contract. Because you don't have a design doctor yet. They had questions about the entryway Yeah. And I recommended they have Sergeant Arms, BGS, and frequent French female.

[Mary A. Morrissey (Member)]: Yeah. They hadn't heard from them yet.

[Alice M. Emmons (Chair)]: Yeah. Don't think that one.

[Mary A. Morrissey (Member)]: So how did they have concerns when they didn't know anything

[Alice M. Emmons (Chair)]: You know, I told them what the potential price standard was. I told them what the time

[Mary A. Morrissey (Member)]: frame I I understand that, but you wanna hear the at least the details.

[Alice M. Emmons (Chair)]: And I was asked was that supported by the governor? I said, well, wasn't the governor's recommended budget adjustment, but it's been in the works for a number of years. Mhmm. We'll see. We shall see. I wanna spend time with you folks to really see where what further testimony we really need and we want. I know it's Conor who gave some. What was that? It was ACLU. NAMI?

[Conor Casey (Member)]: Yep, NAMI and Jack McCullough from Vermont Legal Aid would like to come in, I think.

[Alice M. Emmons (Chair)]: I don't want to spend hours for each one of them. I think if we can really start limiting because we're on a tight schedule here is what I'm thinking. Like half an hour per person to twenty five minutes, we keep asking questions and this makes it longer. What else are folks thinking about in terms of, the corrections piece? I think that's really important for us to really focus on the corrections. I don't know who we

[Alice M. Emmons (Chair)]: would find to answer this question, or who is the right person. But I know that multiple people, including myself, have the question about, well, how do you word this, the facility being conducive to Therapeutic. Therapeutic. Because I would agree that if you go over there, it's not as bad as you would think. But it's definitely I wouldn't consider it therapeutic. Now I haven't been to the other ones either, but I can't imagine even if they're nicer, that it's

[Alice M. Emmons (Chair)]: not going to

[Alice M. Emmons (Chair)]: school at a therapeutic setting. But I also would like to go up to, I mean, I don't know if the committee's gonna go as a whole, but if there's a couple of us or something, we'd go to the Essex where Troy has talked about, it'd be kind of neat to see, just for my own edification, I don't need to go on committee time, I'll go on Monday, if somebody could get us in to be able to understand what, wrap your head around what a therapeutic setting looks like converts to this, if that makes sense.

[Alice M. Emmons (Chair)]: Very, very different than a question.

[Alice M. Emmons (Chair)]: Who could come in and talk about that, I don't know. Or if we just have to go on our own understanding at this level. The other thing is like the interpretation, and I'm not saying anybody's right or wrong, but the commissioner's interpretation that the bill says they can leave the people basically in general population, doesn't seem to line up with most of our interpretation of what the bill says. I mean, Legis Council, I guess, would clarify that for us or who would, I don't know. But I mean, it seems clear to me that it doesn't include leaving them where they are.

[Alice M. Emmons (Chair)]: What mean with the population?

[Alice M. Emmons (Chair)]: An under population. Like it did have to be a wing or something, some kind of separation that's different, but maybe we're not typing it right. I don't know. But I like that answer. That's it for me.

[Alice M. Emmons (Chair)]: I

[Conor Casey (Member)]: can just say I'd echo the vice chair there. I can't get to the place where I am seeing a unit of any prison in Vermont and I've spent time in all of them being conducive to recovery. You know, I think a lot of this is being driven by the IMD rule. And we're doing it because we're afraid of losing that Medicaid money rather than it being the right thing to do.

[Troy Headrick (Ranking Member)]: And

[Conor Casey (Member)]: you really only get one shot at this, and it's going to be in place for years. And I want to do it right. But I think the way it was described today you could have almost the exact situation that you have today with people incarcerated not having their own unit but maybe just having a few more well pass staffers and correction staffers But a correctional officer is not a psych tech like you have in the state hospital. It's very different. And I feel like some of this is window dressing rather than actually moving the needle where it needs to go.

[Alice M. Emmons (Chair)]: So Conor, do you think we should reach out to the SCA of us?

[Brian Minier (Member)]: Yeah, I mean, it is

[Conor Casey (Member)]: a workforce issue and it is privatization. You know, did reject the idea that, you know, a mental health facility is like, you know, less violent in some cases than a prison is. I referenced it before, but psych techs have a way higher workers' comp rate than correctional officers. Those are very acute patients there. I apologize, folks. I have to step away from this roofer, but I do have more thoughts. I'll come back with you.

[Alice M. Emmons (Chair)]: You got your roof situation being taken care of?

[James Gregoire (Vice Chair)]: No, he's here.

[Troy Headrick (Ranking Member)]: Good. Good luck. Walking on his door.

[Alice M. Emmons (Chair)]: Oh, you heard that?

[Troy Headrick (Ranking Member)]: No, but I think that's why he had to leave. He's like, I think he texted him, I'm outside.

[Alice M. Emmons (Chair)]: What I'm concerned about is how the forensic facility clinical services director, I'm just kind of concerned that that's an in house person making those in house decisions that then answers. And I know the contract while path is separate, but there's still a contract with DOC and DOC is still in control of some of this because they're looking at stewardship of the whole facility. And I just I just question that that should have been an outside clinical services director that's based in d and h and not d o c.

[Mary A. Morrissey (Member)]: That's how I envisioned it. You know I didn't know what to envision before it was in my image.

[Alice M. Emmons (Chair)]: I mean that's one thing I'm concerned about. I mean and yes they talk about well path already happened to person but we're up for a contract we won't. We may not have WellPath next time. Why wouldn't we look at DMH to provide that? Why are we looking? Because well path is here doing some DOC world, corrections world, not mental health world necessarily. I don't know, that one just strikes me as and and also what strikes me in this is where she had that damage involved in this because there is no department.

[Mary A. Morrissey (Member)]: Well, I was just going to say often I've seen where everyone else is given the directives, that they take a little bit of a step back. And I think they do need to be involved in this.

[Alice M. Emmons (Chair)]: Yes.

[Mary A. Morrissey (Member)]: I've seen it on other issues of doubt, but they just want everyone else kind of deal with that.

[Troy Headrick (Ranking Member)]: Just feel like a handoff.

[Mary A. Morrissey (Member)]: Right. I almost said that this morning.

[Alice M. Emmons (Chair)]: Because they have a spare facility.

[Troy Headrick (Ranking Member)]: That's the only reason.

[Alice M. Emmons (Chair)]: They can

[Mary A. Morrissey (Member)]: do it. Right. That's what I felt this morning. The

[Alice M. Emmons (Chair)]: other one that I'm really concerned about, and this is more competency, I don't think, at the bottom, page three. POC would actively monitor compliance with orders when someone is released to the community. We're gonna really address that, the details. So that's your field office. That's your campaign doing this. And I think this is the other issue that kind of intertwines here. The person's incompetent to stand trial is released back to the community. How does HIPAA play in with that? Because it's a health issue. It's a mental health issue. How does HIPAA play into that? And what information does our BMP staff actually have of the health information? That's what's kind of rattling around in my brain because they need to monitor these folks from compliance, but how much information I I don't know how much information is our PT person gonna have in terms of health issues, I think.

[Mary A. Morrissey (Member)]: Well, and that's one of the issues that some folks have been released from supervision or whatever, saying that they've come back into competency, and yet do you know the triggers or that that may set them off again? How will the, you know, the parole officers have an understanding or even what to do? I know they did indicate that they would have plans that they had to do, I guess, if they were released. A house There's just kind of a lot of gray space here in this discussion that concerns me.

[Alice M. Emmons (Chair)]: Also, for personal cues, Rutland's gonna be held. I guess that's the out because if a person is held without bail, they're not gonna be released back to the community even if they do gain Right. But if they're holding a person who would not have

[Troy Headrick (Ranking Member)]: been and

[Alice M. Emmons (Chair)]: are released back to the community, it would be those folks.

[Kevin Winter (Member)]: What would be an example of that though?

[Mary A. Morrissey (Member)]: Well, again, they wouldn't be going back, and I didn't mean to interrupt, again, they wouldn't be going back to have a parole officer if they were deemed competent and they hadn't been accused of anything. Because remember they said they would take folks in, but

[Alice M. Emmons (Chair)]: Well, for a person to be placed in a forensic facility, you have to go back to page one. You gotta read it folks. You gotta understand the language.

[Kevin Winter (Member)]: Right there. In

[Alice M. Emmons (Chair)]: order for a person to be in the facility, a person needs to be charged with an offense punishable by life sentence. Yeah. Life sentence. It's not a misdemeanor, it's negative felon. Yep. And the person either has to be held without bail, which means they're gonna be held until trial, Or if a person is not held and there's no bail, a person's release would create a substantial risk of bodily injury to another person. That would be a qualifier for them to be held. Where now they would be released. Person to be held also is not currently receiving treatment through an order of hospitalization. And has been found not competent in same trial. So, if they gain competency and the person who would normally have not been held, those are the folks that could have been arrested.

[Mary A. Morrissey (Member)]: And then I sent it in, but that was what I was made.

[Alice M. Emmons (Chair)]: My question is, if there is offense that's punishable by a life sentence, is that an automatic killing would that be?

[Troy Headrick (Ranking Member)]: No, judiciary, that's what was talking about. Judiciary has discretion to not hold them without bail. Don't know Paul would be

[Brian Minier (Member)]: an example of that.

[Troy Headrick (Ranking Member)]: I see an example. I would be able to come up with one.

[Alice M. Emmons (Chair)]: But you have seen people charged with murder. No, I don't know about Vermont, but you've certainly seen people charged with murder or manslaughter, etcetera, on the street. You ever watch the national news. Oh, I understand. And then

[Kevin Winter (Member)]: I don't understand why you do that. So that's why I'm asking what's an example that we support. I don't know if we

[Alice M. Emmons (Chair)]: have an exact example, but that's when it does happen. We're

[Kevin Winter (Member)]: talking about a very small population of people, and we can't come up with an example where that would be the case.

[Alice M. Emmons (Chair)]: I think they can, which is not instantiated. We have

[Kevin Winter (Member)]: to instantiate. Yes, well, I understand. So that's the question I would wanna ask from somebody who could answer the question because, Judge Biden, once again, to protect law abiding citizens is a priority in my mind. The other thing I think I heard, correct me if I'm wrong, part of the reason this would be helpful is because if the person is held too long, they get released because the current law says you've held them too long and you just release them even though they might be a danger to themselves or somebody else. Did I hear that right?

[Alice M. Emmons (Chair)]: It's mental health support.

[Kevin Winter (Member)]: So that to me doesn't seem like it.

[Alice M. Emmons (Chair)]: I think it's after six or seven or eight years, two years, not months. Yeah, well.

[Troy Headrick (Ranking Member)]: So let me just go over the offenses eligible for no bail. Person may be held without bail if charged with a felony involving an act of violence. There's a list of them against another person or a crime punishable by life and president as we've discussed. Requirements for denial of bail. Evidence has to be great. The court must find that the evidence of guilt is great. Substantial threat, the court must find based on clear and convincing evidence. That's a high standard. That the defendant's release poses a substantial threat of physical violence and that no conditions other conditions suffice. It must be shown that no combination of release conditions can reasonably prevent this violence. So that's a

[Alice M. Emmons (Chair)]: No combination of release provisions?

[Troy Headrick (Ranking Member)]: Must be shown that no combination of release conditions can reasonably prevent the violence that's being considered as potentially threatened. They do have a speedy trial right too. Anybody held without bail has a right to a trial within sixty days. And I'm curious how that plays in with these ramifications as well. We know that the backlog is currently far greater than sixty days, but statute is there is

[Alice M. Emmons (Chair)]: a Right, sixty days free

[Troy Headrick (Ranking Member)]: that's what I'm saying. While a defendant can be held temporarily, they are also entitled to a full evidentiary hearing to challenge that hold without bail. So that's a factor. And then a person can be arrested without warrant if they violate conditions related to these safety concerns, such as contacting a victim, which may lead to a review of that bail status. So that's an interesting combination of variables that play into whether or not somebody is held without bail or somebody is released, even when they've been charged with a crime that has the potential for life, life imprisonment. There's still quite a few hoops or quite a few conditions that have to be satisfied before they can actually be helped by bail. And then when you add this component into that, there would be scenarios again, I'm not going be able to come up with one off the top of my head where a judge could consider that this person who is currently incompetent to stand trial, nonetheless, has been charged with a crime that could potentially have life imprisonment, the judge could still use their discretion to say all these other conditions have been met, so they're gonna be released. And in the case of not competent stand trial, now we have the additional question of whether or not that's a release to a forensic facility, which in our case is jail, prison. So currently, as the bill is currently written.

[Kevin Winter (Member)]: So, yeah.

[Troy Headrick (Ranking Member)]: And it is not our task right now to discuss or decide or debate whether or not our bail conditions are appropriate or not. It's what they are. And we're adding in a factor here of competency that is fluid, that changes based on a variety of treatments and options that are available. I just keep coming back to this position where aside from the question of whether or not corrections can provide, even with renovation, can corrections provide And I had this conversation with somebody. Some of us walked into a cell yesterday. They opened the door. Was an empty cell. We walked into it. I cannot, in good faith, say that that is a therapeutic sort of environment that is conducive to restoring competency. I just can't. That aside, let's say even if we renovate a wing in one of our current facilities where we're all satisfied that this now is suddenly therapeutic, that's a big lift. I still have concerns, and state's attorney Kim addressed this, about the constitutionality of sending somebody who hasn't had a trial or who has been found not guilty to a fractional facility. That to me is a pretty significant consideration that seems to be just rubber stamped by everybody who's come to the table so far.

[Mary A. Morrissey (Member)]: And I think

[Alice M. Emmons (Chair)]: too, hearing that thinking a little further, you're in a correctional facility, they're under the custody of

[Troy Headrick (Ranking Member)]: the Commissioner Yes. Of

[Alice M. Emmons (Chair)]: So you have to look at all the powers that the Commissioner of Corrections has in dealing with an incarcerated person. There's a lot of issues there. There's seg, there is mental health treatment,

[Troy Headrick (Ranking Member)]: there

[Alice M. Emmons (Chair)]: is housing treatment. I mean, there is a lot of responsibility.

[Troy Headrick (Ranking Member)]: And they haven't had a trial and there's no indication that a trial is going to happen until competency is restored.

[Alice M. Emmons (Chair)]: And they're all under the Commissioner of the Directions. Granted, detainee East right now, I haven't had a trial.

[Troy Headrick (Ranking Member)]: Agreed.

[Alice M. Emmons (Chair)]: And they're all subject under hours and duties of the commissioner.

[Troy Headrick (Ranking Member)]: But there's a competency there. They know why they're being held.

[Alice M. Emmons (Chair)]: May not accept why we're

[Troy Headrick (Ranking Member)]: being Right,

[Brian Minier (Member)]: right. And we have

[Troy Headrick (Ranking Member)]: a backlog, and ideally the detainee population is going to continue to decrease as our backlog gets fixed. Detainees are half our population right now, if not more, in the women's facilities. Ideally, that's going to start coming down. I don't know if it will. But when you add the competency factor to this, that's apples and tennis shoes. That's not even apples and oranges. To hold somebody who is not competent to stand trial and there is no indication how long that competency restoration is going to take in a prison, to me, is unacceptable. And I just can't get past it. Say it one more time.

[Kevin Winter (Member)]: It the language? I'm struggling with you're saying they're not charged. I thought the statement was, we know the person committed

[Troy Headrick (Ranking Member)]: I'm saying they have to have a trial.

[Kevin Winter (Member)]: Trial, right. We know the person who committed the act. We don't know that. That's what I thought I heard him say. Just we know that the action was taken, but we're not holding them guilty because of insanity That's or difference.

[Troy Headrick (Ranking Member)]: So not guilty is different. We know that the act was committed. That's been proven in court. But not guilty.

[Alice M. Emmons (Chair)]: They're not guilty because they were insane. But it's gone through the court system. That was the defense and it was held up.

[Troy Headrick (Ranking Member)]: Meaning they're not

[Alice M. Emmons (Chair)]: guilty. And

[Troy Headrick (Ranking Member)]: I disagree that they should probably be that those who have been found not guilty. I'm on a different topic now. I was just talking about competency before. Now I'm talking about NGRI. I don't disagree that there are people who have been found not guilty by reasons of insanity who need to be held in a forensics facility. I don't think the forensics facility should be in a correctional institution. And I don't think we should be holding people who are deemed not guilty in a correctional facility. That's where we house guilty people. And in Vermont, we hold a bunch of detainees there too.

[Alice M. Emmons (Chair)]: And while they do say in other states that there's people not guilty for reasons of insanity, and there's people who are guilty but insane. So that whether it's a label or not, it is still legal. So you can rationalize putting guilty but insane in a facility. But the conclusion still was not guilty, even if, and it's because of the mental, well, insanity is a mental thing. So that the proper facility is similar where they're gonna get treatment, not being incarcerated like a typical person.

[Troy Headrick (Ranking Member)]: Which is what they're doing now. And just because we're doing it now doesn't mean it's good.

[Alice M. Emmons (Chair)]: And I don't know one That's way or what I'm

[Troy Headrick (Ranking Member)]: having a hard time with, is that we aren't doing anything to those people.

[Alice M. Emmons (Chair)]: I think we all agree we need something. I think we all agree with that.

[Troy Headrick (Ranking Member)]: I certainly do.

[Mary A. Morrissey (Member)]: We do. The question is,

[Alice M. Emmons (Chair)]: is it appropriate to do it in a correctional facility under the custody of the Commissioner of Corrections? That's what's before us. We know that they have a secure facility. And we know that folks who have not been restored competency restoration or NGRI need a secure setting. We know that. And how do we achieve that?

[Mary A. Morrissey (Member)]: What other secured facilities could we put them in? Because I remember we talked about the mental health hospital in Berlin.

[Alice M. Emmons (Chair)]: Yeah. There's a wing of nine beds. Right. We talked about that before.

[Mary A. Morrissey (Member)]: Right, but they wanted everyone coming in. Separate entrance. I mean, this was a few years back. We talked about possibly a separate entrance or whatever, but it just never took off. Mean it was almost like

[Alice M. Emmons (Chair)]: It's Medicaid. No, I know.

[Alice M. Emmons (Chair)]: Obviously people

[Troy Headrick (Ranking Member)]: up there no Medicaid.

[Alice M. Emmons (Chair)]: Right, because we have a waiver for that because you're considered by CMS, the Centers of Mental Health Services, CMS.

[Troy Headrick (Ranking Member)]: Because that seems like it would be.

[Alice M. Emmons (Chair)]: Yeah, you're considered up to 16 beds. If you go over 16 beds, you're considered an Institute for Mental Disease, which then you don't get Medicaid reimbursed for those. So in order for the state hospital by now in Berlin, the original plan was 16 beds. And part of the reason the original plan did not go over 16 beds is because we didn't get Medicaid. We got a waiver from a provisional nine bed wait. So that's why we have 25 beds.

[Troy Headrick (Ranking Member)]: And we still get Medicaid for that.

[Alice M. Emmons (Chair)]: It's a waiver. And that waiver could go away that

[Troy Headrick (Ranking Member)]: long And

[Alice M. Emmons (Chair)]: it was time that it was going go there. I don't know where we are with all of that.

[Troy Headrick (Ranking Member)]: Can you remind me, I know we talked about taking one of the wings at Essex, Financial Forensics Institute. Forensics wing.

[Alice M. Emmons (Chair)]: Six beds. Right.

[Troy Headrick (Ranking Member)]: So did we also talk about taking those nine beds at Berlin?

[Alice M. Emmons (Chair)]: We did prior to.

[Alice M. Emmons (Chair)]: Different parts.

[Troy Headrick (Ranking Member)]: We talked about sectioning those off so that saying it's no longer part of the facility. So now we don't jeopardize Medicaid. But that didn't fly. Yeah.

[Alice M. Emmons (Chair)]: Yeah. But we also had before you came on board, we also had conversations of the nine bed wing at the state hospital. But the issue is that wing is physically connected to the building. And then there's another little piece that

[Troy Headrick (Ranking Member)]: because we talked about putting their own entrance on and everything.

[Alice M. Emmons (Chair)]: You said it didn't count.

[Alice M. Emmons (Chair)]: But there's also this other little piece, and and it's debatable. It's really debatable. And I forgot what the mileage is. But if you build another facility within a certain mileage, some current facility, triggers that I am getting.

[Mary A. Morrissey (Member)]: I can't think what the mileage was.

[Alice M. Emmons (Chair)]: And I can't remember what the mileage is because at one point we were looking at doing oh, this is years back when we had the state hospital in Waterbury and we were looking at doing a, I think it was a secure residential up around UVM Medical Center. And it was just far enough out of the radius to trigger IMD. We weren't quite sure. So even if you had a facility across the road from a current state hospital for the forensic, it could trigger that IMD.

[Mary A. Morrissey (Member)]: Is that the case where it would trigger? I

[Alice M. Emmons (Chair)]: know. But that's what was way back. I don't know. It's all through CMS and that's been in place since the sixties. All of those requirements for the institute of mental health disease. If you go over 16 beds it's an I and D and that's when you lose medicaid. The other piece that I think that's flying into it a little bit is if a person is held for competency or you have an insane face. They're held in a hospitalization format in a hospital, they can be there up to ninety days. This is all country. This is all health issues. So a lot of that information is not public. So when the person is released, like, they gain competency. They've been at the state hospital. There was a hospitalization for them. And they gain competency. They were then released. The public's not notified. If they're released from corrections, the public's notified. I'll think that one through. Because they're gonna be released from a correctional facility under the custody of corrections.

[Troy Headrick (Ranking Member)]: Is that better?

[Alice M. Emmons (Chair)]: Well, the public will be notified just through being Right. The public will be notified.

[Kevin Winter (Member)]: Which seems more safe Right,

[Alice M. Emmons (Chair)]: but I don't know if that's part of the decision as well to put it in correction. So

[James Gregoire (Vice Chair)]: No. It's

[Kevin Winter (Member)]: a Who little

[Mary A. Morrissey (Member)]: are we going to get in that can give us some of this information so we can start

[Kevin Winter (Member)]: planning? Judge Valerio.

[Alice M. Emmons (Chair)]: Well, Matt? Matt Orwell.

[Brian Minier (Member)]: Well, he's in here in Vermont.

[Alice M. Emmons (Chair)]: Yes, he's our Defender General. Who else would interesting?

[Troy Headrick (Ranking Member)]: We have NAMI tomorrow, National Association of Yes. Mental

[Alice M. Emmons (Chair)]: After the floor? Yes.

[Brian Minier (Member)]: Nice

[Mary A. Morrissey (Member)]: job. A. Olson. Good to Olson. And I'll go back to my question. Do we have any other secured facilities that could hold a unit within them.

[Troy Headrick (Ranking Member)]: That's just the goal. Well, only because then we lose Medicaid if it's like any other place that's not.

[Kevin Winter (Member)]: Here's a question, I think. If this were passed, the question to WellPath would be what additional services will you be providing if you're still in charge with this new That's what we're asking.

[Troy Headrick (Ranking Member)]: Kelly said there's another person that she needs to have in here, not Doctor. Yule.

[Alice M. Emmons (Chair)]: It's not Doctor. Yule or someone else. Did she know about the name?

[Troy Headrick (Ranking Member)]: The first name is Christina Villanova, the last name.

[Mary A. Morrissey (Member)]: Not only that, if you're coming up for renewal of their contract, this could explode into this even bigger budget.

[Troy Headrick (Ranking Member)]: I want to reiterate a point that Conor made too, that I don't know if it landed as much as it should have. Let's take the Medicaid out of this. If Medicaid were not a factor here, if we knew that we could house these people either in Berlin or in Essex and Medicaid would not be affected, would we even be considering the DOC? I don't know if we would.

[Alice M. Emmons (Chair)]: Well, why? Because it's easy.

[Troy Headrick (Ranking Member)]: I think part of the easy question is it's easy because we don't risk Medicaid. So that to me grounds me in what's the right thing to do here, money aside, funding aside. And I know we have to talk about funding. But what is the right thing to do here? What is the right way to treat people who fall into these categories? I don't think it's DOC. And I don't think we would even be considering DOC if we had a remedy that wasn't leveraged by federal Medicaid payments. And to Conor's point, let's do this right. If we're already housing these people as it and and to the commissioner's point, this now becomes the default, I don't want this to become the default. Let them continue on with how they're doing it until we get the right thing built. I think we can use this opportunity to to to start that process. Is it gonna be expensive? Yes. Is it a new facility? Yes. But I don't think it should be corrections.

[Kevin Winter (Member)]: Unless it's causing a prerelease.

[Troy Headrick (Ranking Member)]: I don't understand what you mean.

[Kevin Winter (Member)]: Unless people are being released because currently the law, they can't hold them. That's where I have the problem with waiting. If we're endangering the law abiding citizens because each law, people are being released pretty much, well, earlier than they would be if the law was in place, then I'm not for that, no.

[Troy Headrick (Ranking Member)]: Well, right now, the the four zero five that we're talking about are being held by the gossip.

[Kevin Winter (Member)]: And and maybe they realize that without a law like this in place, somebody's gonna call them on the carpet and and the state's gonna be held liable for not having a law in place to back up what you're doing. I don't know that. That's why I asked the question, are we putting in place a lot to to back up what our current practices or codifying our current practice.

[Troy Headrick (Ranking Member)]: Yeah, that's what I'm not comfortable with.

[Kevin Winter (Member)]: No, I understand but. Yeah. But if that's what we're doing because we're liable to someone suing state because we're doing something that isn't lawful, then, that's another aspect. So, I'd say and I and the risk on people who are

[Mary A. Morrissey (Member)]: Would it be good for us to hear the testimony tomorrow by the people we have coming in that may be able to give us another layer of information that we can then launch to decide what we need to do. Because I've been feeling like we'd keep going around and see. Absolutely.

[Alice M. Emmons (Chair)]: I'm not

[Mary A. Morrissey (Member)]: saying that to be rooted. Well,

[Alice M. Emmons (Chair)]: wonder why hasn't it? Now I get why they haven't done it

[Troy Headrick (Ranking Member)]: in ten years or fifteen years.

[Mary A. Morrissey (Member)]: We've talked about, even up, Alice at one point didn't even talk about the building that was not acceptable to go into, but remember the secure building up by the was it state? I believe so. Trailers?

[Alice M. Emmons (Chair)]: Yes. The trailers?

[Mary A. Morrissey (Member)]: Those were now I mean, those were condemned.

[Alice M. Emmons (Chair)]: Those were condemned. Now we're putting the juveniles there. Which is horrible.

[Mary A. Morrissey (Member)]: It's like, so no, I'm just saying, like, that's not what I want then, but I'm saying if it was a separate type thing.

[Alice M. Emmons (Chair)]: The other thing too, you know, I'm just looking on title 20. And this is where I'd like Katie McLennan to also pay him on this. We have in title 28, a lot of language that deals with folks who have mental health issues, with corrections, and SSI issues. And I wanna I'd like to kinda look at those statutes and see how that plays out in the world of this forensic issue. We've done a lot of work on that over the years.

[Brian Minier (Member)]: Who is the medical person that we're having in that's not Juligar? That's Christa something or other? Yeah, could ask Bailey for What's the kind of person? What do they

[Troy Headrick (Ranking Member)]: I think they have more of a mental health

[James Gregoire (Vice Chair)]: expertise, well-being. Yes, yes. Where Euliger has more of a Medical.

[Troy Headrick (Ranking Member)]: Overall medical. He's more medicine, not mental health. I think that's my understanding, Brian.

[Brian Minier (Member)]: Once I ask because the commissioner in his testimony earlier said that we're already providing this service.

[Troy Headrick (Ranking Member)]: Mental competency restoration.

[Brian Minier (Member)]: Exactly. I understood that to mean just mental health. We're providing mental health as part of health. And I want to know what is meant by restoration of competency and why and the commissioners believe it'll require two to three employees system wide. I want to know what that looks like and how it differs from mental health. That's where I was trying to go with Kim with the question that failed. What is that competency restoration? And so we've got these people, this was also his testimony to commissioners in our system now. Are the numbers so small that HIPAA prevents us from hearing what that treatment looks like? It's happening now. That would be informative.

[Troy Headrick (Ranking Member)]: Yeah, Agreed. Because it is only four or five, six people, whatever it is. And I'm just curious, what's the longest Vermont is typically holding somebody for without as deemed incompetent to stand trial. And if we're not doing competency restoration right now, is that an indefinite detention? That's what I'm wondering. Or are they released upon Well, no. We're not talking about minimums right now because these are all serious crimes. Forgive me for my lack of remembering, but is this driven a little bit by the

[James Gregoire (Vice Chair)]: World with Winter Bottom situation? The what?

[Troy Headrick (Ranking Member)]: I mean, certainly. We've been getting emails.

[Mary A. Morrissey (Member)]: Shawn, I didn't hear what you'd said.

[Brian Minier (Member)]: By a particular case.

[Mary A. Morrissey (Member)]: Oh, okay.

[Troy Headrick (Ranking Member)]: Yeah. The knee is there.

[Alice M. Emmons (Chair)]: There's a new one. I mean, there's just a recent one, Bradford.

[Kevin Winter (Member)]: Yeah, out. Yeah, that's rocky, Build A Star.

[Alice M. Emmons (Chair)]: To Mary A. Morrissey, that was like the one

[Mary A. Morrissey (Member)]: in Bennington, and that was almost twice as almost half because he almost killed his mother and his sister before he got the young lady he did slit her throat.

[Alice M. Emmons (Chair)]: Yeah.

[Mary A. Morrissey (Member)]: I mean, these are tough, tough issues.

[Alice M. Emmons (Chair)]: That's very difficult. I mean, this

[Alice M. Emmons (Chair)]: is diff it's a lot, Shawn. Yeah. Well, to answer your question, John, since these two have been here a long time, I've spent many years, and this has been a perennial topic. It's not new. I know it's been said multiple times today, but everybody needs to understand this is not new.

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: Yeah, It's not something that's

[Alice M. Emmons (Chair)]: put on the shelf there. It comes out every five years. It's been talked about every single year that I've been here. And I don't know if that skips for the two senior members, but it's been talked about a lot during their time. So it's not due to one thing or a new thing. It's just something that doesn't seem to be able to get off the ground.

[Alice M. Emmons (Chair)]: One thing that came out really clear, had a good conversation with the other three chairs, there is no process now in the state for someone for restoration of confidence. There's nothing now It's in the a shame. So if that's the issue, why aren't we resolving that issue? Instead, we're resolving it by putting a person in incarceration and having the department, the commissioner of corrections, getting caught responsible for this, for the restoration and competence.

[Troy Headrick (Ranking Member)]: What are the common with the cheapest? The

[Alice M. Emmons (Chair)]: most available.

[Brian Minier (Member)]: When we had our joint session, there were a bunch of questions. I can't remember them all. I got notes somewhere, but was therapeutic talked about in terms of defined or why are we doing that?

[Mary A. Morrissey (Member)]: No, I think someone asked the question about what does therapeutic mean? Because I think probably if you asked everyone but have a different opinion, you've got to come to the table to do a good job on this.

[Brian Minier (Member)]: Well, and crassly put, do we care about therapeutic because it's going to allow someone their day in court slash face the music, depending how you look at it? Or are we trying to fix a mental health issue?

[Alice M. Emmons (Chair)]: Those are different. That's what you're saying.

[Troy Headrick (Ranking Member)]: That's a really good question, Brian. Like, are these people ever going to be able to stand trial?

[Alice M. Emmons (Chair)]: Well, that's what they were saying. So you can be confident for a little bit, and then you lose it. Mean, of a person with dementia and Alzheimer's.

[Mary A. Morrissey (Member)]: It's got to be up. There's gotta be a state of the- a

[Alice M. Emmons (Chair)]: with a knife or a gun and not know what they're doing. And they could do real harm to that person. I mean, they could even kill the person, but they have dementia. They have Alzheimer's. They don't know what they're doing. Right. Anyone that's had a family member with Alzheimer's, you can imagine that that would happen pretty easily.

[Brian Minier (Member)]: And so I wonder if you put this sort of forensic facility in the Department of Corrections, are you basically trying to stand up the person in front of the judge without regard for their overall mental health? Are you essentially just trying to

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: get it so they can

[Brian Minier (Member)]: be present for long enough to have justice served?

[Alice M. Emmons (Chair)]: No, that's happened.

[Kevin Winter (Member)]: But to your scenario, my mother wasn't there, dollars 14,000 a month. There were people going around who couldn't have been dangerous, walking around with the baby, stabbing the baby with a little knife until somebody came along and said, Listen, we can't

[Alice M. Emmons (Chair)]: I'm be doing confident this to stand here. So they

[Kevin Winter (Member)]: need to realize the realities of it's not gonna be five or six people is my point. And that's where you were going. This all of a sudden the number of people in this category could expand. I thought that's what you were saying about the law. Once you get, once it's in place then all of a

[Brian Minier (Member)]: sudden the population grows. Maybe I was mishearing. The commissioner indicated that in his testimony too, that in other states sometimes this is done for misdemeanor folks who are incompetent. Sure, you can make it as big as you want.

[Alice M. Emmons (Chair)]: It's proverbial, the camel's gnomes under the tent.

[Mary A. Morrissey (Member)]: Once again, I will suggest we hear the testimony tomorrow, because it will, I think, be quite a bit different testimony. And so then I think we should look to see what pieces we need in place and who else we need to talk with in order to come up with a real solid plan if we can. Because again, just listening the other day with judiciary, I think they're kind of set to go and everyone's kind of saying, well, we need it, but to Troy's point, you gotta do this right. You know, we don't wanna put something together that's not going to, you know, work or do what it's supposed to do, just get it done because, yes, it's kind of a little bit odd that we are the only state in the country that doesn't have one, but we've got to do this right.

[Alice M. Emmons (Chair)]: To reiterate your point earlier, it was sound funny, but we need that testimony, we need other testimony, we kind of have an idea of some of the testimony we need, and we are repeating ourselves over and over. So we can go in circles quite a bit and not get any further until we get to the test.

[Alice M. Emmons (Chair)]: So if people have their bill in front of us, I think this will really help folks. Yeah, we go in front of you. Section one, which is the actual we go into a facility, does not become effective until 01/01/2028.

[Alice M. Emmons (Chair)]: Okay.

[Troy Headrick (Ranking Member)]: Six years away.

[Alice M. Emmons (Chair)]: That's section one. Section two which is the discovetency to stand trial dismissal thing where charges against a person shall be dismissed without prejudice. Case remains inactive for a continuous period of time. That goes into effect July year. Section three, which deals with not guilty by reason of insanity, goes into effect 01/01/2028. Let's say that again. January, section three, which is your guilty for reason of insanity goes into effect 01/01/2028.

[Mary A. Morrissey (Member)]: Yes.

[Alice M. Emmons (Chair)]: That's a big section, but I haven't read Section four, again, which is the definition section of forensic review, goes into effect 01/01/2028. Section 4A, which is a report that would happen annually to this committee of Human Services and Judiciary. That goes into effect 07/01/2029. Section 4A. No. Section five, which is rulemaking to carry out the definition of forensic facility as well as competency and not guilty reasons of insanity is effective. Rule making would start this July. And then the Vermont Rules. Section six, Vermont rules of evidence. This is judiciary as well. Goes into effect 01/01/2028. Section seven is an interim report of a forensic facility that the Department of Corrections collaborates with health, mental health, and Dale to submit a written report to our committees containing the draft rules that are required and it lists what that interim report needs to address if we come effective July 1 year. So we get a copy of the draft rules in terms of how they would implement sections one, three, and four. So

[Mary A. Morrissey (Member)]: that may help with how this plays out. Well, kind of to a degree, that is our piece, because I know judiciary is kind of the whole line of the bill, then you're gonna have human services and health care line. So, you know, I know we will do our due diligence to try to present what we think is the best, but then my fear is, as it goes through the rest of the committees, some of the changes, especially where mental health, the agency of mental health doesn't really seem to be totally, I don't wanna say now that I'm bored, but it's kind of like everyone else is doing

[Alice M. Emmons (Chair)]: So that's what we talked about at noon.

[Troy Headrick (Ranking Member)]: Yeah.

[Alice M. Emmons (Chair)]: And then Martin is gonna have a draft dealing with his sections sometime next week. So human services is gonna wait until that draft gets presented. And I said to both chairs of healthcare and human services, us three need to talk because we're more intertwined in terms of the care of the person. So there's a commitment for the four of us to work together. We don't know what that's gonna look like yet because the other two committees, the chairs have been pushed to fill.

[Mary A. Morrissey (Member)]: Unless this gets pushed out further, I just don't want a slam dunk at the end of the session. Gotta do this and it's half baked. Yeah. I I'm sorry to put it that way, but it's you know, I know everyone's got other issues that possibly dealing with, but if this is what you should be of, you know, pretty much a priority issue, let's get them done.

[Alice M. Emmons (Chair)]: Let's get

[Mary A. Morrissey (Member)]: all done right.

[Brian Minier (Member)]: So a testimony question then, And again, I'm back to this idea of therapeutic. So one for you old timer fugitives.

[Mary A. Morrissey (Member)]: I just got a few more gloomy

[Brian Minier (Member)]: Long timers? I don't know, lifers? Well, there we are. Number one, I'm wondering if we ever had a medical ethicist testify to any of this. I mean, do exist. That's somebody we could bring in for in house. Isn't it more appropriate to have either health care or human services or both define what therapeutic means? And then our job as BGS, as DOC, is to say, how would we do that? Or do we need

[Troy Headrick (Ranking Member)]: it?

[Mary A. Morrissey (Member)]: Quite honestly, I think depending upon even what committee you're talking to, you may have three or four descriptions of what therapeutic is. I mean, we probably would have something very different than judiciary or health care or human services. We're closer knit, but we may have a totally different. But I agree with you. We've got to kind of define what we're working on and what we're you know, the end line, where we're going.

[Brian Minier (Member)]: Yeah, feel like that's one that we have to punt and I think we are dangerously close to the commissioner saying that he knows what therapeutic is or is doing what therapeutic is. I don't think we know and I don't think he

[Mary A. Morrissey (Member)]: knows. No.

[Alice M. Emmons (Chair)]: I think we have that.

[Alice M. Emmons (Chair)]: Yeah, I mean, Oh yes. Well sure. Technically, don't agree with Brian in a sense it's not our Oh, I don't know how to Obviously, you've been in different committees and stuff, you've dealt with this stuff, so you have an idea. But to your point, I was thinking for the last ten, fifteen minutes that my main concern with this is that it's going to be provided properly and that the services are gonna be proper and

[Kevin Winter (Member)]: the police is gonna be proper.

[Alice M. Emmons (Chair)]: So you're right, they gotta define what therapy is or the therapeutic setting and then we have to decide, well, can we make the facility match what is required by that?

[Ben Green (Section Chief, Dam Safety Program, VT Department of Environmental Conservation)]: And so

[Alice M. Emmons (Chair)]: I think that's where we are.

[Alice M. Emmons (Chair)]: Boring, that's all but that. No, we're not. But there has been a commitment to being the four chairs to work together. We just gotta make sure that it fits. So let's call it a wrap, And we'll see what the testimony brings tomorrow and we'll go from there. It's Friday already. If you take a field trip on Wednesday, you'll fly fast. See, that's what I'm saying. Judiciary is not giving somebody to pay for work to sometime next week, these weeks are gonna fly fast. Yeah. As soon as we do,

[Mary A. Morrissey (Member)]: we are not paying education and other bills, we're gonna be like,

[Alice M. Emmons (Chair)]: just do not want to be pasting this together. On the home stretch, folks. Okay, let's call it a wrap.