Vermont Legislature SmartTranscripts:

[Rep. Theresa Wood (Chair)]: Hey. Good morning, everyone. Thank you all for being here this morning, and thank you for your flexibility around our scheduling issues here that time of year, and everything seems to happen at once. So this morning, we are continuing our discussion and our testimony on the secure forensic facility S-one Hundred 93. And we are hearing from the administration and then we'll be hearing from others a little bit later. We appreciate your time and attention. Again, we are joined by representatives from Corrections and Institutions. Welcome.

[Rep. Doug Bishop]: Thank you very much, Madam Chair. It's a pleasure to be spying, I mean, monitoring.

[Rep. Theresa Wood (Chair)]: Super nice.

[Rep. Golrang “Rey” Garofano (Vice Chair)]: Thank you,

[Rep. Theresa Wood (Chair)]: appreciate that. And we're going to start off with Ms. Johnson and thank you for being here. Thank you for having me. Well, at Joint Justice last summer, he said the only committee that ever invites me is judiciary. True. Not anymore. So I said, well, this is a perfect topic to invite the governor's counsel on to, I guess, hear directly from the 5th Floor about what really, what's the objective for the governor from from the perspective of the proposal that's on the table right now. So welcome. Because we have people who have not been in the room before, we do a round of introductions. Oh, terrific. So I'm Theresa Wood. I'm from Waterbury. I also serve Bolton, Gules Borne, Huntington. Hi, I'm Rey Garofano. I live in Essex and

[Rep. Golrang “Rey” Garofano (Vice Chair)]: I also serve Essex Junction. I'm Jubilee McGill, and I represent Ripfort, Middlebury, New Haven and Bay Bridge.

[Rep. Esme Cole]: Welcome, I'm Esme Cole, I represent Hartford. That's great.

[Rep. Doug Bishop]: Good morning. My name is Zon Eastes. Live in Guildford, and I also represent Vernon. Good morning, Connor Casey. Welcome to my district. I'm Doug Bishop. I'm one of Colchester's representatives. Good morning. I'm Dan Noyes. I represent Wilkite, Hyde Park, Johnson And Belvedere.

[Rep. Theresa Wood (Chair)]: Great. Thank you so much for the introductions and welcome all the way around the outside of the room.

[Rep. Golrang “Rey” Garofano (Vice Chair)]: Oh gosh. Okay. We're thorough. Hi.

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: Good morning, Rebecca Silverdale. I am

[Rep. Golrang “Rey” Garofano (Vice Chair)]: a principal assistant at the Department of Disabilities Agent in the Defendant. Amy Johnson, Belmont Care Partners. John Mira, Commissioner for the Department of Corrections. John Bissett, Administrative Services Coordinator for the Department of Corrections. Nicole Bryant, Commissioner Rehaut.

[Rep. Doug Bishop]: Steve Howard, Vermont State Employees Association.

[Rep. Golrang “Rey” Garofano (Vice Chair)]: Jennifer Beard McGill, Developmental Disability Services Director, Head Deal.

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: Bill Bowen, Commissioner of

[Rep. Golrang “Rey” Garofano (Vice Chair)]: Dale. Emily Hawes, Commissioner for the Department of Mental Health. Doctor. Claire Neal, Senior Policy Advisor in the Department. And Laurie Horsevere, Community Assistant.

[Rep. Theresa Wood (Chair)]: Hi, nice to meet you. And Laurie Horsevere, First. Thank you, Madam Chair. And I am Jake Bershing Johnson, Governor Scott's legal counsel. Thank you.

[Jaye Pershing Johnson (Governor Scott’s General Counsel)]: And I am very grateful for the invitation to this committee. I do remember saying that. And I think that I feel, and I have, in the time that I've been doing this job, come to recognize that there needs to be often, and unfortunately, the intersection between the public safety and the healthcare services providers. I think we really saw this as effective when we did the accountability court in Chittenden County, knowing that public safety is critical and will not be addressed efficiently without the connection to adequate public services. And that's always and then that is its basic health needs. It's it's addressing substance use, it's addressing mental health issues, and it's addressing the needs of those who are disabled and intellectually and developmentally disabled in our community. There is often an intersection of those things. There's also typically an intersection with poverty. And I think that that's why we have to think about forensic needs along with human services needs when we're talking about the intersection with the criminal justice system. So that's the thing. I'm the governor's liaison to the criminal justice stakeholder universe and very rarely intersect until this year, really, with the human services committees, because it's I don't know if that's historic, I don't know if it's cultural, I don't know what it is, but I'm really happy that we're talking about it together. So we have, I see this forensic facility bill as a public safety bill. It is also an important missing piece of the current continuum of care in our system of care. So we have made proposals regarding competency and insanity, forensic facility and competency restoration in various iterations in the judiciary committees since about 2019. The goal is and has always been to establish a more rational and effective system for the commitment of violent, mentally ill or developmentally disabled individuals to the custody of an agency whose role includes the ability to provide a secure setting, direct community supervision, meeting the treatment needs of those in custody, and protecting public safety. And again, focus, generally speaking, for this population, which is very small and very violent, is public safety. These were from notes I had in 2019, and I believe it remains true today. And with that in mind, and given the constraints we have with respect to resources and sort of the silos that the various departments find themselves in, DOC is really the only department well suited for this purpose. DOC is in AHS because it is rehabilitative. The intent is for it to be rehabilitative. It is unusual in the country in that it is in our human services agency, but is there for a reason. And I think that if we are serious about it, we need to treat it as if it is rehabilitative. So I understand that this is a complex and controversial topic and a lot of strongly held feelings around it. But again, I think S-one 193 addresses a critical gap in our system of care, the need for a facility to deal with criminal justice involved persons who do not meet criteria for hospital level of care, but require care in a secure setting. As a background, the gap became apparent to this administration in October 2018 when a defendant was charged with second degree murder and manslaughter in connection with the death of Betty Rodriguez in Springfield, Vermont. He was released from the state psychiatric hospital. He was committed to the state psychiatric hospital after a judge, in agreement with the prosecutor and the defense attorney, found that the individual was not competent, insane at the time of the offense, and tossed it to DMH. And DMH actually, at that time, there was no mechanism for DMH to even be at the table. But, essentially, this individual was not eligible for hospital level of care. He was committed to the state hospital and he was released after ten months into the community. So this created something of a concern among the victims' families, the police in the area, the various I mean, the members of the community who knew that this was happening. And there was a lot of scrambling with the governor's office to try and find some sort of suitable placement. Because again, invol it would be voluntary, any alternative placement. And eventually, a placement was found in Massachusetts, and that is now almost ten years ago, and I can't speak to what is happening now. But honestly, I think that this has been a gap in our system since at least 2011. I think that there had been, and culturally in some pockets remains, a belief that the state hospital used to be the answer. The 55 bed, uncertified state hospital was essentially state funded, you could prosecutors and judges were under the impression that they would just go to the hospital and they would stay there forever, And that is no longer the case. And we have a very rational system of care that addresses the needs of very many Vermonters, but there remain gaps, and this is one of them. A similar stipulated agreement was reached in 2025 when Corina Roome was shot and killed by her father in Washington County. That individual was, again, judge, prosecutor, defense attorney, agreed, not competent to stand trial and insane at the time of the offense. Procedurally, that actually shouldn't happen. But then the judge was forced to grapple with, Now what? And the now what was, Well, there is no now what? The individual did not meet hospital level of care. It's kind of ironic, it was observed by the judge and the press, and the defense attorney at the time, that a complicating factor was, pending proceedings, he had been in DOC custody for four years, He had actually become so stable, he could not be released into DMH's custody. And there was no other essentially suitable placement for him. But the family was at the table and felt so strongly about their own public safety concerns. And one of the family members did speak to this in house judiciary committee. There was no place. And the state essentially said, sorry. But eventually, working with the judge, and I would imagine other resources, they found a placement for him, and maybe others can speak to how that happened. But this was really a family left to figure it out on their own. In 2019, a prosecutor dismissed two murder cases and one attempted murder case after determining there was not enough facts to prosecute the cases or rebut the defendant's planned insanity defense. And the prosecutor was quoted saying, Justice for the victims is in the hands of the Department of Mental Health. Well, this just wasn't true of those individuals. And I believe that maybe dates back to a belief that there is a hospital for that, and there isn't in many cases. If you meet hospital clinical level of care, you can be committed to the hospital until you're better, and then you are released, just like any other hospital. So those individuals' cases were dismissed or going to dismissed. Fortunately, attorney general's office picked them up. Their competency was actually restored in DOC, and I think some in some mental health treatment in state facilities. Their competency was restored. All three were tried. One went all the way to trial and was found guilty, and two were settled with short prison terms, but long term supervision. And part of what this bill does is offer the long term supervision piece, which otherwise is not in place. Or, you know, the question I think you're all dealing with is what happens next? And anybody from AHS can jump in to correct me if I misspeak. But the question is always, well, then what happens next? And the answer is often if you have an individual who is very dangerous, they either need to be in a secure setting, or at some point they will become stable, but require ongoing supervision so that this isn't a rinse and repeat situation. That's what this bill does. If you are not restorable to competency, there's a case plan for you, and you can be released with a case plan and supervision. If you were found not guilty by reason of insanity, same thing. There is a case plan developed, there's a secure setting available, but if you are stable and can be released, there's long term supervision. That's part of what our proposal would do. And now there's a handful of defendants who have allegedly committed violent life offenses and are currently in DOC awaiting further proceedings, competency determinations and trials, or potentially dismissals. Right? We just don't know how those cases will proceed, but I think all of them involve murders or attempted murders. We just don't have a system for what happens with individuals who are not competent and do not meet hospital level of care and do not meet the criteria for Act two forty eight. We just have a gap. It's very small, but it's a very violent population. So from my perspective and the governor's perspective,

[Rep. Doug Bishop]: from

[Jaye Pershing Johnson (Governor Scott’s General Counsel)]: a very practical operational level, there's no secure facility capable of providing both long term care and shorter term competency restoration other than DOC at this time. This is a source of great frustration to prosecutors, defense attorneys, victims of the families of victims, families Oh, sorry, victims and the families of victims, the families of offenders who do not wish to see their loved ones at further legal jeopardy and communities. And again, a lot of our focus has shifted from the needs of an individual defendant to the concerns being expressed by our Vermont communities about public safety. So that's the high level. Our 2023 proposal for a forensic facility was not successful in the legislature. This year, we significantly narrowed the proposal to address only, again, individuals who have committed life offenses, which are the very most serious violent offenses that Vermont has in its legal system, and where there are no appropriate placement options. Again, we arrived at DOC because they are the only agency well suited, and because these individuals are largely there now and receiving care. So I guess that would be the high level where we are coming from. And this population, again, we're looking at the murders, not the specific diagnosis. Thank you.

[Rep. Theresa Wood (Chair)]: Thank you. So questions from committee members. Okay, I'll start. Oh, go ahead.

[Rep. Doug Bishop]: Some of the cases that you referenced that fall in this gap that you identified, were those individuals who had mental health issues, or are there among those examples, people who had intellectual or developmental disabilities?

[Rep. Theresa Wood (Chair)]: Well, so from my perspective, there was no alternative placement available. They were in DOC custody. If they had been eligible, if they were not competent and been eligible for hospital level of care, would move to the hospital, or maybe even be given an order of non hospitalization. There is, I mean, one of the changes, we have made some changes to process, and we have One of those changes to process is that a judge can actually maintain jurisdiction over a violent offender while that person is in DOC I mean, in DMH custody. When DMH releases that person, they're required to provide notice to the prosecutor, and the prosecutor can actually theoretically continue the case once They can be remanded to DOC custody, and that if that person's competency has been restored after treatment in the hospital, that competency restoration process would mean that that person would be prosecuted all the way to trial. So we have some process in place for a linkage between the hospital and NDOC facilities, but that's what competent That assumes competency restoration. I don't If a person was eligible for Act two forty eight, there is a judicial process for determining, based on very specific criteria, eligibility, and that person would be then remanded to the custody of the commissioner of Dale. So thank you. Yes, we're familiar with those processes, but I think that the question was for the situations that you were just enumerating, were those highlighted by individuals who had issues with their mental health, or were they individuals who had some other disability, whether it's a developmental disability or some other disability? I mean, I would throw that open to the commission, but from my perspective is to the extent they were in DOC custody, they were now eligible for the other levels of services. So there is no then determination based on other diagnosis when they're in DOC custody that I know of. And I don't know if anyone else wants to speak to that. So we can ask those questions. Okay. Do you have any follow-up, Representative Bishop? Thank you. And I'm sorry, Madam Chair, just to say, it does not mean that there aren't people in DOC custody now, even sentenced, who may or may not have some level of developmental or intellectual disability or some mental health issue. It's that they were determined to be competent to stand trial and were sentenced to DOC custody. Yes, we're aware. Your diagnosis does not give you a free pass. We understand that. And I know of several individuals with developmental disabilities who have been found competent. They've stood trial. They've been in DOC custody and moved through the system in that way. So one of the things that I'm curious about, we are being told this is a small number of people. And not that long ago, when there was a proposal to establish a larger campus in St. Albans, there was a proposal that part of that campus was a 50 bed facility, a forensic facility. Now we're being in perhaps that was because it was for a broader group of people. I don't know. You you indicate that

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: this is a more narrow group.

[Rep. Theresa Wood (Chair)]: It is than the 2023 proposal. So that's appreciated. But I guess I'm also interested in joint justice oversight. We hear very frequently, and I'm sure they do downstairs in corrections and institutions, the workforce issues at the Department of Corrections and even just frankly being able to fill the current shifts that they have. And maybe Mr. Murad will be speaking to this. But I'm just curious about both the size of the facility that you're There seems to be, I guess, a varying story in terms of what it is that the administration is looking for. And two years ago, we had witnesses from the administration sitting in that chair speaking to the need to get somebody out of the corrections department, out of the Department of Corrections custody, and into a community based, more secure placement. And we, in fact, in act one twenty seven, I think, of that year, asked the administration to '1 '37 of 2024. Ask the administration to come back with a community based, more secure location if that seemed to be what people were looking for. So it's it's kind of like there's been an about face in now the appropriate places in corrections, where the appropriate place was not in corrections. And I'm just interested in what's the rationale behind that. So from my perspective, it is the response of the legislature. So we have been grappling with how to do this, and we have come up with various proposals. And you are correct. We have made different proposals over time given the response that we have received. I haven't testified in this committee, and I don't think that I would have said that our attempt in prior years was to move people out of corrections into a different facility. But I guess you could maybe look at it like that. I mean, we were thinking about a wing at the psychiatric hospital, and that turned out not to be feasible. I mean, we have been looking at other sort of clinical care settings that are more or less feasible or not. But the fact is, we have to be practical. A new facility My thinking is get in line. We have a youth facility that isn't happening, we have a women's correctional facility that isn't happening, largely due to community concerns. And I think you take this population and you say to a community, Here you go, we're planning a facility in your community. I really don't see that going well. If it's planned for the campus of a DOC facility, where is that money gonna come from? Again, this population is very, very small and they are in DOC custody now. Our proposal here is to take a look at the DOC clinical facilities, I think maybe focusing on Springfield, but we have some options. And you have this It has to be a suitable clinical setting, right? It's probably not gonna look like the psychiatric hospital, but it has to be a suitable clinical setting. And that, I think, given the way this bill is structured, would be addressed in the rulemaking process for which the agency has a significant amount of time to determine sort of what that looks like and how to do it and where to do it and what does suitable mean. And we'd have to work with the state's attorneys and sheriffs and other and agency counsel to determine legally and constitutionally what does that look like. This law sets up a framework for establishing that facility likely existing in DOC. So I appreciate the phrase you're using, suitable clinical setting. You probably won't be surprised to learn that our committee has a hard time envisioning a correctional facility as being a suitable clinical setting. Although perhaps somebody is going to convince us otherwise. So one of the things that is a little troublesome, I think, or we have more questions about is the wide, while the crimes are more narrow, the scope of who could be in the facility and what sort of mental condition that they may or may not be in is significantly broadened from what current statute is. So I'm having a hard time envisioning a single suitable clinical setting that's going to serve people with substance use disorder, people who could have advanced dementia, people who have intellectual and developmental disabilities, people who have mental health challenges, people I don't know if I said substance use disorder. But the variety and the breadth and the width of potentially eligible individuals here and the focus on restoration to competency for some subset of the eligible individuals. I don't believe you're going to restore somebody who has advancing dementia to competency. I don't believe you're going to restore somebody who has a lifelong developmental disability who has already been determined incompetent to competency. For that group of people, there is an existing avenue through Act two forty eight, which has four decades of being successful in protecting the community as well as providing treatment services for the individuals. So trying to really understand what the administration is really viewing as the suitable clinical setting for that sort of wide swath of potentially eligible people, even though the number is going to be, according to testimony, at least relatively small number of people. The number is not gonna be any bigger than it is now. Right? I mean, these are individuals in DOC facilities now. Their cases are ongoing. They may or may not be released into the community. And at that point, some judge or some family is going to grapple with how to do this. There will not be a secure option available because they already will not have fallen into Act two forty eight and will not have met any kind of hospital level of care. There is a gap and it's very small. And I guess I have to agree with your characterization that it's a wider swath, but only in that this is a complex, multiple faceted need group, right? Part of why they don't fall into any of the buckets that we've created is they might have a primary diagnosis of substance use disorder and an underlying mental illness and a developmental disability, right? Any one of those things could theoretically make you eligible for one of our avenues, but very often in combination, they don't. There is a gap. And so while maybe we like to think that, I mean, we know we have systems of care that have been in place for decades. And I mean, I think have only gotten better over time, frankly, but they are built and structured in such a way as to make them apply to a narrow category of individual and must consider clinical eligibility. And here you have a very complex population who has committed a very violent crime. You have families and communities struggling with the criminal fallout, and a state that is basically saying, Well, there's nothing we can do. The prosecutors can't prosecute. There is no appropriate placement for them because they don't fall into one of our buckets. So it is true that it is a very complex need group, probably. If there was a clear diagnosis of primarily mental illness or clear diagnosis of developmental or intellectual disability, it is correct. There is a great path forward, but not for the individuals who are in DOC custody now where there is no clear path forward. Are there other questions? Representative, go ahead.

[Rep. Esme Cole]: Thank you. I have two questions and both a little different. But with the three cases you mentioned, I think you mentioned for at least two of them that they ended up being placed at some point with a gap of time in between maybe I would say one was in mass and then another one, I can't remember, and correct me if I'm wrong. So I'm curious about that in between process and if that final placement or interim placement was satisfactory, like out of state. Are there ways that that gap can be reduced or make it a little bit more of a smooth process in getting someone from point B being in a right thing. For those cases that you had exemplified were out of state or in a different specialized system of care that did not exist in our state because we didn't have it

[Rep. Theresa Wood (Chair)]: here, basically. Right. I would I mean, again, I think this may be a more appropriate question for one of the commissioners. But I know that in the 2018 case, that person had some connections with Massachusetts. He was known to Massachusetts law enforcement. He had committed a murder in Vermont, but was essentially released into the community, and a placement was found for him in Massachusetts. And I really can't speak to that more than that. Of the other well, then there was oh, okay.

[Rep. Golrang “Rey” Garofano (Vice Chair)]: Sorry. When you're here. When you're here. Thank you.

[Rep. Theresa Wood (Chair)]: And then there was the three who their cases were dismissed in Chittenden County by the prosecutor. They were all determined to be not competent. Then the prosecutor determined she could not move forward with the cases. The AG's office took those cases up. I believe those individuals were either in state or federal custody at the time in DOC with treatment, their competency was restored and they were tried. One of those cases went all the way to a verdict of guilty, and two were long term settlement agreements where they had a short time in DOC custody, and then they remain in DOC custody but with long term supervision and connection to services. Okay. Yeah.

[Rep. Esme Cole]: Well, thank you. And maybe my second question will be more appropriately directed here based on your testimony. I guess one thing that the backdrop of this conversation that I'm kind of contending with in my brain is that we've received prior testimony from the former commissioner of DOC that DOC is not rehabilitated. That isn't the purpose that it serves. It's not restorative, rather. Know we sort of have programs that we want to achieve that goal, but just as it stands today, it serves a different purpose right now. But your testimony does say we need to treat it as if it is rehabilitative. I just want to dig in just a little bit more, not as sort of a jab or just to really truly understand.

[Rep. Golrang “Rey” Garofano (Vice Chair)]: Sure, sure. So

[Rep. Esme Cole]: I also appreciate the distinction of when we're talking about folks with IBD versus mental health. It seems like, and of course there's comorbidities that exist and should be treated as such. People are multilayered and complex and need to have comprehensive care to address each of those. But with the mental health concerns, which I think is one big, bigger underlying concern that seems to be addressed in maybe all three of the cases that you brought up specifically, I want to get a better understanding because we're not corrections and institutions and we don't hear testimony on this all the time, which is what are the existing services and how sufficient are they to really, within DOC right now, address that complexity of need and how successful have we been in those service providers that are on-site basically for these types

[Rep. Theresa Wood (Chair)]: of cases with severe mental health needs? I guess you would So first of all, they don't need hospital level care. So sending them to the psychiatric hospital or putting them onto an order of non hospitalization has already been determined to not be feasible. So you can either release them into community, just dismiss the case with no connection to the state or services, no supervision, and we'll make that the community's problem and the family's problem. Or in appropriately violent cases, you go to DOC where you receive a certain level of services. That's why we hire a care provider who provides all kinds of services for everybody in the DOC facilities. There is evidence that people are stabilized in DOC custody now. This bill proposes a clinical director who actually is responsible then for a program of competency restoration and a program of adequate care for these individuals. But that doesn't mean they're not getting it now. And like I suggested, there was a murder in Washington County where the individual had been in DOC custody for four years until he was released into the community. And the judge basically said, after the mental health treatment he got in prison, Perry, who was the defendant, appeared to be a changed man, Richardson said, Judge Richardson. But the judge still had a message for him. He addressed him directly, and he said, You have to participate, emphasizing Perry's responsibility to keep himself and the public safe. That is with no supervision in place. So that may or may not happen. That participation by that individual is voluntary, and he has support systems who are hopefully going to help him in his struggles ongoing. But not everybody has that. The defense attorney, speaking about complexity of placement for this individual said, Another layer of complexity is that his client's mental health issues have stabilized because of his supervised setting. His apparent lack of intensive needs at this very moment is yet another impediment, he said. So while I can't speak, and I am not a clinician and others are, can speak to the care provided in DOC facilities, I think there is some evidence that individuals can be stabilized and restored to competency. And that is without a clinical director that we have proposed in this bill. Representative Bishop and then Representative Maguire.

[Rep. Golrang “Rey” Garofano (Vice Chair)]: I suspect he's gonna ask my question.

[Rep. Theresa Wood (Chair)]: Okay. And then and then we are we have a number of witnesses to get through, and I'm not sure I understood that there's testimony downstairs on the same bill. I'm not sure what the timing is. So if somebody needs to go first, just let me know. Okay. I have a 10:30. Yeah. Okay. So

[Rep. Doug Bishop]: I guess I'll preface this. A concern is whether this is more of a one size fits all approach than is appropriate. And the concerns that we've been discussing in this committee are on the intellectual and development with this disabled population, and particularly those may not be able to be restored. And so something you just said about can It makes me want to ask the question. Can one provider, even a new clinical director, provide services for the breadth of the type of situations that people will present with. Everything from mental health, intellectual disabilities, developmental disabilities. Someone with a traumatic brain injury from an accident, is that system going to be capable of dealing with the breadth of those all under the DOC umbrella? And then so that's one question. And then my concern in part is derived by whether the system really fits all in part of the in section four refers to the commissioner of correction shall regularly consult with the commissioner of mental health in performing the duties required by this chapter for operating the forensic facility. So again, that seems to me to point towards a focal point of mental health restoration, etcetera. But I don't see the commissioner of Dale referencing there on regular consultations for the operation of the forensic facility. So are we bringing too wide of a population into this approach?

[Rep. Theresa Wood (Chair)]: Well, so I would say, first of all, their needs are at least being addressed now in DOC facilities. I guess I question whether it's a one size fits all. Right? We have a care system in DOC facilities that currently address the needs of individuals with mental health issues, developmental disabilities and intellectual disabilities, and substance use, which is a very, very important piece of this. And I think also a very important piece of restoring competency in many cases. But to your point, I think to the extent that the commissioner should be consulting with the Commissioner of Mental Health and the Commissioner of Health and the Commissioner of Dale, sure. That we had, again, and again, many may see that DOC or be hearing that DOC is or is not rehabilitative, but the intent of the legislature when they put it in AHS was that it be rehabilitative. So let's make it rehabilitative. And you have an entire right, AHS infrastructure. And while it's created in little tiny silos, you do have knowledgeable individuals, capable clinicians, other consultants and contractors who are able to address the needs of these people. I think the point of the clinical director is to pull all those people together, as well as have some competency in competence restoration. So that person wouldn't be providing the services, that person would be bringing together the healthcare providers needed to address the care needs of those individuals. And again, feel free to correct me if I'm wrong with the vision, and some of that would be in rulemaking, but I think that's the framework this lays out. So I'm gonna ask this conclusion of the other commissioners where this doesn't exist, but I'm gonna ask you as well, and then we're gonna move on to Commissioner Bowen. So one of the things that has made Act two forty eight successful is that it does have judicial review, and people have the ability to make a case through their counsel that they should be released from Act two forty eight custody. But it generally has been a very long term sentence, if you will, or category of service. And that is something that doesn't seem to exist in some of these other service settings that we're talking about. So what you described was, yes, somebody might not meet the level for hospitalization. So they're not into that acute mental health crisis. But they still have, according to our assessments, they still may be a risk to public safety or a perceived, I'm going say, a perceived risk to public safety based upon previous actions. So we don't seem to have a comparable level of 20 fourseven ongoing, potentially lifelong type of program for people other than those folks right now who are in Act two forty eight. And I suppose the potential exists for somebody with dementia in choices for care for that to happen, although it would be a stretch for our current service providers, I can imagine. And we also don't have it in the Department of Health for people with substance use disorder. And we don't have any provisions currently for people to be committed to the Commissioner of Health if they're in that kind of situation. And this bill doesn't do any of that. It doesn't enable any of those things to happen. And that seems to be what the missing link is, to be honest. So I think we might have I'm not saying that there might not be a need for a very small limited circumstance, but even in those situations, Nabil does contemplate that people could be if they're determined not to be able to have their competency restored, which is likely for some group of these people, that they should be in the least restrictive setting. That's probably not doesn't necessarily have to be a prison setting. But we are not talking at all about long term community based settings where you can keep people safe. We have advanced technologies, the GPS and notification systems and supervision. But the bill doesn't contemplate that. It doesn't contemplate any custody by the commissioner of health for people with substance use disorder. It seems to be, at least the written word, is very focused. And even the terminology that's used and most of the terminology that you've used today is very focused on people with mental health challenges. And that may be in fact, the group that is the most challenging to figure out, which, again, causes me pause about the broader net that's being cast of potentially eligible individuals. So why are we not addressing those other aspects which actually could address some of the issues that brought up, for instance, with the cases that you talked about. And I'm sure there will be other cases in the future, unfortunately. Right. So again, we're talking about a gap that exists now, and these individuals will be released into the community, not in secure settings and not with any supervision. But they could be. We could address that in But this that's thing, that's what this bill does. So if you are not restorable and if you are not guilty by reason of insanity, there is a process for all of those determinations, right? And regular check backs. If you have risk assessments and you have a team that is putting together a care plan for you, and you will eventually be released with, and I guess it's DOC supervision, but there is always a pathway for returning to Dale under Act two forty eight. There's always a process for hospitalization or orders of non hospitalization for individuals who are eligible. Otherwise, you do at least have a system of supervision, which you do not have now. That's the gap. If you are eligible for placement in other facilities, you have an AHS team that will be working with DOC and the clinical director as part of the care plan, suitable housing needs, right? I mean, that's always gonna be part of it. We don't have a system, any system right now for dealing with people with primary substance use disorder. And we are dealing with that to a very limited extent in the justice system, through DOC of all places. So it's kind of a, we do what we can with what we have, and this institutes a system which adds some more resources, contemplates the appropriateness of this DOC setting where people are now, and in order to address this longer term need of no satisfactory placement or supervision, an individual will end up with a care plan, a placement, and supervision. And that is what this bill does. And it does not look like anything else. I do appreciate that Act two forty eight considers public safety needs expressly. Right? That is the only other place in statute where we do that other than the secure setting provided by DOC. So I think that this fills a gap to the extent that nothing is happening now. So we can talk about what would be better, and maybe that is more secure community based settings for individuals with developmental disabilities and intellectual disabilities and TBIs and dementia. But the fact is that will cost a lot of money. We are talking about only the individuals who have committed heinous crimes, not everybody. There are gonna be a lot of other people in Vermont who are also dealing with this who aren't committing crimes, right? Your systems are struggling with those challenges now. But you're talking about this limited population of forensic, of criminal offenders who actually do have a path forward by virtue of the fact they're in the justice system and have access to a secure facility.

[Rep. Doug Bishop]: That's one final question. Perhaps for the commissioner

[Rep. Theresa Wood (Chair)]: to ask it out. Yeah, that would be good. Thank you so much. We appreciate you being here and thank you very much. Yep. No, thank you. Okay. Commissioner Bowen, thank you. And if we noticed that at least I didn't see anything on our web page for any written testimony from any of the today's witnesses

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: who are here. If you have such a thing, we, of course, would appreciate receiving it. Yeah. I don't have written testimony. I have testified on this several times in our committees. Happy to be

[Rep. Theresa Wood (Chair)]: We're hooked. Representative Steady, can you representative Steady, can you mute yourself, please? Go ahead. Thank you. Thank you.

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: I'm happy to be at my home committee. The statement that I have made in other committees, I'll just maybe

[Rep. Theresa Wood (Chair)]: Thank you.

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: To Mid Hudson Center, Upstate New York, where it's a forensic setting. And we had local New York City sites within the hospital system combined with Corrections. And that was the service which I was a leader on that service. So that meant I also was providing clinical treatment to the individuals in those services. Those folks had mental health challenges. They had developmental disability challenges. It was a range of people who had intersected with criminal justice. It was pretrial, primarily. In some cases, they had been remanded and there was assessment of whether they were safe to return to the community, those sorts of things. So I do have experience in this field. I do know what is done in Pennsylvania as well, since I was there for a while, but have hands on experience in New York City. So that being said, I can say that there is a gap in the system in Vermont, and it's either the only or one of the only, that doesn't do a competency restoration process. That in of itself is a concern from my perspective, because when people are found not competent or non restorable, or non attainable we'll get to that in a minute, but not competent, then they unless they're restored, they may not the next processes that happen that might limit their liberty, they haven't had the opportunity to defend themselves. In other words, we don't know that they did that crime. They are charged with the crime. In this case, they're charged with a heinous crime. So this very narrow view is important because I think, because people feel so strongly about this, and I do too, but I also feel strongly on multiple sides. I talk about this in circles and Venn diagrams. Visual person. But there's the responsibility for the individuals to support an individual to have their due process, to have their day in court, or to provide the appropriate services or supports to either achieve that or, if not, then to be able to determine nonrestorability. And then there's the risk and the risk assessment, which we do in Act two forty eight. We certainly do risk assessments to determine whether, they're likely to be dangerous. And then you have the public and the responsibility of, the state to, ensure the safety of the public. Sometimes those circles don't interact at all, and sometimes they do. And I do think it might be a sweet spot here to do both. This does not solve all of the problems that we have in the system. Division leader for DBSC, Jen Garofedian, and I have been engaging on an Act two forty eight tour. We've been going to each of the designated agencies to have good, frank conversations about what their what success is and what their challenges are with Act two forty eight. We paused I don't know, the budget season or something. We paused during the legislative session, but have them scheduled again to finish. And then the plan was to all come together and to really think about what we might need for our next step. So we know there were challenges, and those challenges, even within folks in Act two forty eight, do impact the public. And that's what actually stimulated the go around. Things have changed a bit in terms of the complexities and the challenges that the designated agencies report in the work that they're doing in Act two forty eight. So we take that very seriously, too. That being said, for the 30 some odd people in Act two forty eight, most of them are doing well and it's effective. But we are, again, looking there at the narrow group that is struggling and impacting public safety. So here, the bigger picture, we're looking at a much wider population. We know that active parties only, people with intellectual disabilities that are eligible, not all people with developmental disabilities, certainly not traumatic brain injury, or people perhaps with dementia or other challenges. That being said, the opportunity for people who, for the most part, at this point are already in the system, the correction system, and are not really having the kind of restorability that has some evidence behind it, some evidence informed approaches. So there are evidence informed approaches to competency restoration. There are evidence informed approaches to risk assessment in these settings. In Vermont, they tend to use the VOTIPS and the SOTIPS for risk assessment to determine what they're likely to predict that they are high risk or a low risk or in between. And there are other really well known tools that are used in the field with evidence informed behind them. And that includes, for risk assessment, the FRAG, for example. So there are several out there. And so it's not just a matter of the supports that might be happening. This is an opportunity to provide real evidence informed tools and approaches. For the developmentally disabled, the only real evidence informed approach for competency restoration is the Slater method. I think in the field, will find a range of, can you restore somebody to competence with a developmental disability anywhere from ten percent to sixty one percent, depending on the method used. So there is the potential that certain folks who are facing criminal justice charges but not found guilty. I want to really stress that. If they are not given opportunity to be restored, they will not have the chance to perhaps show that they are not guilty of the charges that are brought before them. The population we're talking about, whether it's mental health challenges or developmental disability challenges, are far more likely, as you all know, to be victims than they are to be perpetrators. And they can be manipulated. So it is possible that whatever ensued, they were not responsible or they were not guilty of the actual charges and will not have that chance. Today, in Vermont, they won't have that chance because they're not the type of competency restoration process that can happen under this bill is not happening now. There really is no formal restoration possibility. Now what's also in this bill is the understanding that some folks are not restorable. In fact, in

[Rep. Doug Bishop]: the

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: developmentally disabled world, some have never achieved competence. So you're not even restoring competence, you're looking to even attain it for the first time. This is not a monolith. Developmentally disabled people are not a monolith. It includes people with different levels of cognitive ability, different IQ levels, different functional skills and analysis, and some of them will have the potential to be restored and some of them won't. So the bill does really address restorability and the lack thereof through this assessment. If they're determined to be restorable and achieve competence, they will have that due process that we all expect to have an opportunity to have. If they don't have that capacity and they're not attainable, then once they're determined not restorable and this happens on a real regular basis. So I did watch yesterday when you had Kelsey present and a bill present, and this bill doesn't allow people to get stuck in this kind of setting forever. I think that is an older sense of what has happened in the past. This really requires the constitutional requirements of least restrictive, which could be in the community. And it allows the parties, including an individual and their defense attorney, to request restorability assessment. It happens early when the person first gets there because you don't necessarily want them sitting there waiting for another assessment, if in fact they're non restorable. But it also gives the parties a chance to request. This clinical service director let's just talk about that for one moment, if we can. The clinical service director is given pretty wide latitude to say, this person needs to have an assessment now. Looks like they're probably competent. Competence is not a clinical evaluation. It's a legal evaluation. It's diagnostic agnostic, as I like to say, because it rhymes. It's determined by the court. It's not determined by a clinician. When I did the competency evaluations, I was making a recommendation to the court based on the evaluation. So it's clear criteria that are legally based. The clinical service director, however, would be able to say the person seems to be able to express themselves in a way that might reflect competence, or they're not reflecting themselves in that way, that's unlikely based on perhaps it's somebody who you alluded to, I'll just use this example, but it could be someone with more severe developmental disability, but someone who perhaps has a traumatic brain injury that is not going to suddenly get that ability back. And so it's clear they have latitude to elevate that and have that taken care of quickly. So there is an effort here to move things along quickly in this bill and also to have regular baked in times when those have to happen with some latitude for the parties and the clinical service director. The other thing I just wanted to say from my experience working in hospitals, general hospitals, psychiatric hospitals, forensic facilities that were run by hospital, by office of mental health, forensic facilities that were run by corrections, combinations thereof, is that what really matters is the provider that is doing the assessment and the restoration work, whether it's hired by a contractor or the state or, in some cases, the local municipalities, and some of my experiences, was far less important as to who was hired. And that they have the expertise, they have the knowledge, they have the skills, and they use the right tools. And that's what's key to a successful, call it therapeutic. It's hard, I know, for people to think in a correction setting, what could possibly be therapeutic. It's what happens inside. I've seen psychiatric hospitals that you wouldn't want to have this happen in, and I've seen ones that are fabulous. I've seen correction settings where it was wonderful. And in some cases, some of the same people who were providing clinical services worked within the forensics sense. Some of them were moonlighting. Some of them would divide their time. So the preconceived notions are not always applicable. So I just wanted to make those statements based on my experience and my deep concern for people not to get stuck in settings based on any kind of diagnosis and for people to have their days in court and get due process regardless of what the preconceived notions might be, and also for there to be paths forward that are community based. And that this is such a narrow focus on the most heinous of crimes, I appreciate. But I also want to make sure that we don't look at this as if we're talking about the whole population, because we're not. Think my statement, thank you.

[Rep. Theresa Wood (Chair)]: Do you have a question? Yeah. Go ahead, representative.

[Rep. Anne B. Donahue (Ranking Member)]: I appreciate all this and here's my producer. Forensics, and as you probably would, as when you were doing your forensics work in those facilities, did you report to the commissioner of corrections?

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: No, I did not. But there were others like me who did. Yep. Yeah.

[Rep. Anne B. Donahue (Ranking Member)]: It's a governance thing. They've made forensics facilities, there has to be a clear distinction between custodial authority and clinical authority. Without that distinction, who's making the clinical decisions in regards to that, and the clinical director should be reporting to the Department of Mental Health, not to a commissioner of corrections. I've never seen that model exist within a forensics. There is dual separation between custodial authority and and clinical authority. I believe the governance in this needs to change where, yes, commissioner of corrections is responsible for the facility setting, things like that. But ultimately, the Department of Health or Dale or whoever is responsible for all clinical authority, because to your point, they're not being sentenced and not in a punitive setting. Treatment comes first itself. Forensics is health driven. It's not custodial driven. And governance at this time really reads as a public safety detention center with embedded clinical services. I believe there needs to be a complete separation between clinical authority and custodial authority?

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: So I'll respond to that. First of you for your And you really feel the passion on this because people just feel really strongly about it. What I can tell you is that I have seen mental health services provided unspecialized unit within a correctional setting. Absolutely. I have seen that the people who provided the services there were correctional employees. So I have seen where that has worked, just to say that. I don't think that we're saying an eitheror here. I think we're saying that the secure setting for people who are charged with the most heinous of crime So again, what we're talking about here are those that would carry a life sentence if they were seen through. And there is a distinction there about the concern and the safety associated there. They're already in a correctional setting now without all of this. So they're already in a secure setting because it was determined, which has some reasonablity behind it, that if they're charged with murder or some horrific act with a minor, that they would need to be at some level secure or supervised. Even when they're in the community now, some of these folks on Act two forty eight, they have their liberty restricted. So there's security at every level when there's a risk of danger. So I understand what you're saying about custodial, and I don't think that this bill is this or that. I actually think it's both. And I just want to be respectful to the fact that that was such a thoughtful process that went into this. I didn't create this, though. I'm not patting myself on the back. But I do recognize a very thoughtful, dual responsibility here. Also, the clinical service director should have a lot of latitude here. So I understand your point, and I think in some ways it's almost premature because there's a whole lot that would happen if you give the go ahead for this framework, would begin a process. There's at least three parts to that process that would then happen. Over the summer, AHS together would be working on a report that would come before the legislature in October. And after that would be rulemaking that gets into all of the details, and it would be inclusive of what you're talking about in terms of the governance. And then there would be coming back again to legislature for appropriation. So there are several steps that would happen. So some of these, we won't be able to answer exactly because it's premature. We're at this stage. But I do get your point and your concern.

[Rep. Anne B. Donahue (Ranking Member)]: Just to quickly follow-up. Interesting, don't see correctional systems are strictly designed around cut speed discipline and sentence management. We're expressing that we wanna continue to work with these people. I'm kinda unclear why there's such a pushback with providing clinical governance to our Department of Mental Health as as as dual governance? I don't I'm I'm kinda unclear why this

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: It's, I think, built from the not I'm not gonna be the the best person to answer this question, but it's my understanding it was built from the fact that the people that we're talking about now are currently in corrections and that this would be a path that could move forward. I think I'm going say this okay. I think that Vermont has kicked the can down the road a bit on addressing some of these concerns. And I think this was another effort to look at the population through the most concerning as far as the security. But then you have to apply all of these other important factors, because you're dealing with old people here. So I think that might answer your question as how it came to be that way. That I'm not sure that there's pushback. I just think that it's step one in what would then end up being a significant detailed, flesh out rulemaking process that would ensue. That's my thoughts on that.

[Rep. Theresa Wood (Chair)]: Thank you. I'm looking at the time for you.

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: I'm going ask Rebecca to let them know.

[Rep. Theresa Wood (Chair)]: They said they're cool. They're cool. Okay. Cool? Well, you're being covered on multiple fronts. All right. Okay. Go ahead, represent.

[Rep. Esme Cole]: Thank you. I appreciate that competency restoration, especially in the state of Vermont, appears to be something that really needs to be dealt with in a better way. And so I guess my question is that if individuals being accused of these particularly heinous crimes already in the DOC setting. And this competency restoration process is a legal process. And this bill that's talking about everything happening taking place in DOC, but they're already in DOC. What is holding us back now from doing?

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: Let me answer that because I just want to be clear and not misunderstood. Process for restoration is a clinical process. The decision of whether somebody meets the criteria for confidence is a legal question.

[Rep. Esme Cole]: And we're saying both are the extreme needs in

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: the world? Absolutely. Correct. That's what I'm saying. Both are needed. So it is a clinical process. It's usually going to be a psychologist or a psychiatrist or somebody with the training and the skills to do the competency restoration work that is needed and to do the risk mitigation work, the risk reduction work, which looks something like anger management, behavioral control strategies in the DS world. In the mental health world, it might look like something else, medication, treatment therapy. It's specific for the individual and the individual's needs. So those are processes that are not happening right now for this population because we do not have a competency restoration or an assessment of risk that is formalized process for these individuals who are facing this scenario. I need to follow-up with the question, then we need

[Rep. Theresa Wood (Chair)]: to let this witness go. But we've got other witnesses who can also address that. And I see that Stuart is on here, and you might not respond to Stuart. I'm not sure because it-

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: It is there. It

[Rep. Theresa Wood (Chair)]: predates you. So at Joint Justice Oversight, three, maybe four years ago, the department actually was charged with trying to evaluate whether there should be a process for people with brain injury and people with dementia in terms of this sort of criminal justice process. The report that came back that mister Shore delivered to the joint justice oversight said, you lacked sufficient resources in order to enact such such a program. So essentially something, I guess, would have been something similar to Act two forty eight that we have now for people with developmental disabilities. And so at that time, you were saying you lacked sufficient resources to do so.

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: In Philadelphia. Not fine. Go in.

[Rep. Theresa Wood (Chair)]: And also, prior to your arrival here, we had the previous commissioner sitting in that chair saying, We need to get this person out of the DOC. They had one person who was in DOC custody with a developmental disability who was not competent to stand trial. And there was a plea to this committee to develop a community forensic facility so that that person could be placed in a community forensic facility. Well, the reality is that the designated agency stepped up and they provided that service, Which, yes, it took time to get the people in place. But it feels like an about face. It feels like an about face saying that now you will have the resources to serve people with dementia or people with brain injury who may commit a crime, and that the correctional facility is an okay facility for somebody to go through this process. So I'm just trying to understand. I realize you were not there, but the Yes. Administration's

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: And I appreciate all my predecessors and the great work that they have done. So I have a couple of things I would like to say to that, just to dig it out a little bit. One is, there is a difference in this population than when you're trying to talk about the whole population, because it is, again, a very narrow swell. And so if you're focusing only on this population, you're going to get a particular answer. These are the folks who are already in corrections, and they're the ones that are actually stuck in there right now. This process actually gives them a path, ultimately to the community, depending on whether they're what happens with the competency and the restoration and violence. So one, that changes the view in and the conversation. The second thing that does is and this is why we began our tour on Act two forty eight to go to all the designated agencies, because I and we, Adele, were becoming concerned about the number of cases that were popping as community concern. The numbers that were popping seemed to be higher than they had been in the past. And that's why we went around and we talked to the agencies. They're all saying that things are a little bit different for that population. Again, a narrow population within Act two forty eight, not about the majority of the people in Act two forty eight, but that there is a difference in the complexities that are being presented. So that might change some. The other thing is resources. I don't know exactly what the question was when I wasn't here, but if the request was, Can you add to Act two forty eight? That might have been, We can't add to Act two forty eight with an additional appropriation. But this, there is a plan for an appropriation. So if we're talking about resources, that would be needed, obviously, for a program like that. If we were having a conversation four years ago or five years ago about this, there would have been, I would think, an opportunity for a conversation about what would be needed for resources. If that wasn't possible, then that was probably why they came back with that. We're not advocating for Act two forty eight folks to be in a correctional setting. We're talking about people, which again, who have their criminal justice intercept is not misdemeanor level, and that's not Act two forty eight. But there's a whole swath of developmentally disabled folks who do end up in criminal justice settings with misdemeanors. This bill actually talks about dismissing those charges, though. There is that in here, too. So there's more to this, and I think it's different enough than what came before that it's not necessarily about space. The other thing is that when I arrived in 2024, I walked into a conversation about community based, and there was a report that was required that was submitted that had to do with what would it cost for that. And so that there was, I guess, some response at that point to what it would take to have the appropriate resources. That's the best I can do to answer that question for you. We think Stuart's got more of that, by all means. Stuart, I

[Rep. Theresa Wood (Chair)]: didn't know if do you have anything that you want to add to the commissioners?

[Stuart Schurr (AHS/DAIL Counsel)]: No, I think that she captured everything I was going to say, which basically was that there's a different scope of population, I think, that we were talking about back then if we're talking about expanding Act two forty eight to include all those other individuals with different diagnoses, that would be an impact that we would not have had the resources to accommodate. This, again, is a very small population of individuals who are facing crimes that are punishable by life. And so I I don't think it's an about face. I I do think they're they're apples and oranges that we're comparing here.

[Rep. Theresa Wood (Chair)]: Thank you. Thank you, commissioner. We appreciate your time, this morning. Thank you. Okay. Does anybody else have a specific place they need to be in? Yeah. I just have

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: a question because I think I was on there twice today. You need to go back.

[Rep. Theresa Wood (Chair)]: We're going to take a break right at this moment. And so it just means that those same witnesses continue. That's all.

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: Okay. So thank you. We don't need you back unless you want to

[Rep. Theresa Wood (Chair)]: come back and you're always welcome.

[Commissioner Bowen (Department of Disabilities, Aging and Independent Living – DAIL)]: I always enjoy my time. Okay.

[Rep. Theresa Wood (Chair)]: So we're going to take a fifteen minute break now, and we will