Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: Thank you. Good. Welcome back. The house judiciary, we're going to be looking at h six fifty seven, an act relating to enabling unaccompanied homeless youth to obtain certain services without parental consent. And we're gonna be having two witnesses, Kim McManus, from the Department of State's attorneys. And after Kim, Adam McCrasson, a lobbyist for Vermont Association for the Justice. And the first witness will be Kim McManus.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: Thank you. For the record, Kim McManus, Department of State's Attorneys and Chairs here on H657. Following the testimony yesterday, I believe the specific question to our department was going to be around Section 4A on page 10, which is the addition to 13 VSA thirteen eleven. And we'll warn you, have another issue to bring up, I'll try to keep it brief. But we, as a general matter, have no 100 issue

[Rep. Martin LaLonde (Chair)]: with adding that a person providing assistance pursuant to 33 BSA 4,008

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: is added as an exception to the unlawful sheltering. Philosophically, no. No problem with that. We appreciate that there's a vetting system to qualify as an unaccompanied youth, and we have no issue there. The issue we do have, and this is to make sure that the report that is wanted can actually be done and be done by the right individual. So the report on page 21, which asks that our department collect the data around the number of secured transports with specific information about the age, gender, race, types of German supports, type of restraints being used.

[Unidentified committee member]: Can I pass you few comments with you, Kim? I think we still don't have a printed out version of this, John. Right? So it's just that folks are looking for it's draft 8.1.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: 8.1 was the version that I believe Yes. Was presented yesterday. Yes. And that's what we've been

[Unidentified committee member]: working on. Okay. Great. We just don't have it Or got it. In front of us. Yeah. What is the And I can

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: slow down.

[Unidentified committee member]: 657. I will slow

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: down. Alright. Thank

[Unidentified committee member]: you, Alicia. Sure. I was So it makes sense. It might not be the opinion.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: All right.

[Unidentified committee member (not Adam Necrason)]: It was

[Unidentified committee member]: emailed to us yesterday, Brian Martin at 11:26. That

[Unidentified committee member]: is up to me. It's not being posted too.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: I'm looking at section nine, page 21, the report requirement.

[Unidentified committee member]: Okay, and I'm going to print Is there anyone who would like a printed copy?

[Unidentified committee member]: Please, I got it. Oh, you're hold? Push that one out because it's 15 pages

[Unidentified committee member]: long. Okay. I take it back. It's on it. Okay. Section page 21, section 10.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: Well, page 21 and section nine of the bill, but page 21, I believe it's out. It's a section that says starts with annually on or before yes. Alright. Okay. So there's a request for a report, which we absolutely understand. The issue here is that the Department of State's attorneys and sheriffs, the data we would have would be for court ordered transports, not the non court ordered transports, which are the transports that some sheriff's departments do for DCF or AHS under contract. And so we're absolutely happy to partner in gathering this information. We even though it would seem like we're the right place for this report, are not. We tracked last year that we had 12 court ordered juvenile transports. And so on that information, we would be able to gather whether restraints were used, etcetera. But for the non court ordered, that would either need to come from DCF ideally or from the agency that requested the transport or from the individual sheriff's departments. So we wanted to flag that. The other piece we wanted to flag in just getting good data, whoever is responsible for the report in the end, the use of the word minor is used here, whereas elsewhere, child is used. And we're assuming that the word child is being used because of the definition in this section. And if that's we just wanted to flag that, that you might wanna mirror the use of child, not minor. For gender and race, more specific on whether that is as perceived by the person doing the transport or as reported, that race data is not something that just by transport we would be noting that data that would either be collected if this was a court order transport that would be collected from the law enforcement side. If this was a delinquency, I don't know if the court would actually record that data. That would be a question. And then again, DCF would have that data if this is a non court ordered transport. So we wanted to just maybe we would encourage folks to spend a little more time working through some of that language and really getting what they want to get. The other part on line 11, yes. Do you mean by

[Unidentified committee member]: that working through the language and getting what they want to get? Is that meaning understanding what's available?

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: Understanding what's available and maybe tailoring the language so that we or whoever is capturing exactly what you want. And I'll give an example. On line 11, it says, when applicable, the type of mechanical restraint. Probably the better language would be if a restraint is used, the type of restraint. Because when applicable, there's going to be some I don't know. There's some room there that feels a little funny to us. Essentially, if we're collecting some of this data, and remember, most of our data is for internal purposes. We're not really built and designed to be necessarily the data repository for this. But as simple as we can have it, as far as where restraint's used, yes or no, if restraint's used, what type of restraint, just making sure the report language is sort of reflecting that easy collection of information. Executive director Dumont has a one page memo that I will submit to you all that just outlines specifically the difficulty right now of us being the sole entity collecting this information and reporting on it. So we will submit that to you because I know you are tight on time. Great.

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: Any questions for Great.

[Unidentified committee member]: Thank you.

[Unidentified committee member]: Chair?

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: Yeah.

[Rep. Anne Donahue]: I know you have witnesses scheduled. I don't know what your timing is like, but I think that a couple of the things that were just testified to can be sort of immediately resolved if I

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: Let's get through Adam McCratchen first,

[Rep. Martin LaLonde (Chair)]: not knowing how long he's gonna take. Right.

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: Since he's brief and that may help you with cleanup across the board. Adam Nekrassen, Nekrassen Group, Vermont Association for Justice, were familiar to this committee when the periodic surfacing of the sentence that says an actor is immune for from negligence liability, which is in this bill. Starting at a broad point of departure, very much understand the intent of the bill, the agency for the youth here to be supportive of that. It's not our part of it. We're here out of standard operating procedure to brief you on looking at this from another perspective. And because when we so you have a policy choice in this space. And my understanding of having done my homework, but not consulting expert attorneys in this area, right, because this is such a narrow space kind of on my own. I understand from the committee sponsor, this is the sentence is here because it was in the Florida law. And I couldn't find a deep origin story for it in the policy committee. Nevertheless, it's here, and let's unpack it a little bit together. This is a statement of what it does, not any rhetorical flourish or spin. When we immunize negligence, you're telling an actor they can be unreasonably careless, cause injury, and their insurance company will not be accountable. Okay? And so the policy question for the general assembly is, do we intend that? Do we intend to say because this bill is really about giving the unaccompanied by the way, when I first saw the title, I was like, oh, boy. Is this American Airlines, like, losing a vulnerable young adult? Now, is this medical malpractice immunity for a doctor? Doesn't seem so because of the parsing of the sentence, but I just want you to know why we are constantly bringing a different look at this stuff, because there's always what a law, a bill is intended to do, and then how insurance defense lawyers that take it up a year or two later under unsuspected circumstances can kind of immunize their client. And so the sentence is an entity provider so we're not talking about the youth here or anything to do with their actions. We're now talking about what a car dealer or a medical provider, what type of care they're bringing to the services or the transaction they're having with these certified youth. And it gets those actors.

[Unidentified committee member]: And I just add just to my folks, and I just say it's bottom of page nine, top of page 10, lines twenty and twenty one on page nine is where it starts. Right.

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: And a little more stage setting, and again, not here to auger in one way hard or another, just to highlight your policy question. The certificate I'm so an unscrupulous car dealer. I have a piece of paper that is being given to me saying this 16 year old can give me their $2,500 cash to walk away with this car. Right? And I don't have to do any due diligence to make sure that

[Unidentified committee member]: form

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: was validly executed. Okay. So like that is the most plain language scenario I can create for you. We just had coarse debt come through these committees, and we know they're you know, the the breach in the margin is usually irresponsible or unscrupulous actors. In this case, this is the provision, the liability provision that puts weight onto the business or licensed professional engaging in services or a sale based on this piece of paper. I understand it's meant to be not there's not a big registry. There's not a lot of you know, there's there's not a lot of rigor around the document. But so this becomes the policy question of do we want the person selling the car or the medical provider to conduct due diligence around their decision to contract or not? Because the immunity provision is shall be immune from liability for the determination to contract with the minor. And it's the language determination to contract that makes me believe this couldn't be used to immunize medical malpractice. So those key three words really tighten this down to like, am I relying on this document or not? Hell yeah, counselor. Well, no, I

[Unidentified committee member]: was just gonna Two questions I had. One is, so yeah, the way I read this is that the immunity is only for a liability around the termination as to whether to contract the deed. That's the immunization. We're talking about housing on this. So the landlord is immune from a liability around the contract. The landlord's not immune from any other liability around how they're providing the housing, the state of the housing, anything like that. Permits liability. All of that is so I guess, do you understand that you read it the same way?

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: I'm building legislative intent that this is about the determination of contract and the due diligence or the lack of due diligence. The general assembly is saying you do not have to conduct due diligence.

[Unidentified committee member]: And then my only other question would be if someone negligently did not look into whether the I don't know what the term is, the certificate that the youth holds, and they didn't look into it and the certificate was falsified or was not correct, they would not be protected by the liability

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: immunity, correct? They would, because they're saying you don't have to be careful in the determination of contract.

[Unidentified committee member]: But would that only apply if the youth is actually certified?

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: Well, herein lies the question, I would suppose. And I don't know, because I'm worried about the bad partner and the vulnerable. These are by definition vulnerable adults. So I'm here to bring you heightened scrutiny because these are vulnerable young people. So I'm just highlighting, what are you expecting the people who are doing business or providing medical care? Then I'm glad it's a low key hearing setting because I'm not trying to kind of signal a bunch of fights over youth medical rights at all. I just know, of course, debt is like a space where people are vulnerable.

[Unidentified committee member]: Okay.

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: How do we know if the form is valid or not? You should make a phone call to whoever signed it and say, did you sign this form to me?

[Unidentified committee member]: And you see this as Or

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: did somebody print it and say, I want you to go and take $25 out of your mother's shore and let's get out of here.

[Unidentified committee member]: Yeah, and you would read this as that it would release them from liability for that type

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: of The due diligence to determine the contract is the narrow question. Yeah. And then I'm saying, I think this entire piece is superfluous. Often, we're in this piece of conversation because someone went to a committee and intended that they want this. Brought forth in Florida, deferred to the policy committee where there's providers saying without this, we can't sign a lease. But I've said enough, honestly.

[Unidentified committee member]: Thank you for raising this. What language would you suggest to clarify that, that it is very clear?

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: That it's the only your own well, which part? Because there are two parts. We would strike this entire sentence because it's a better course

[Unidentified committee member]: than What can be language would you recommend so that we are very clear that it is only about the content?

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: Well, thank you for asking. My colleague Jessica Osborne gave me in the alternative suggestion, which is to add the word certified in the definition contracts with a certified unaccompanied youth, so that it's

[Unidentified committee member]: What is the definition of certified? That in the bill? It's in the bill.

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: Yeah. And it's that this group of people from your support structure are signing this form for you, And so that's the certification process.

[Unidentified committee member]: So you would prefer if we just struck it, I think that's gonna happen. So if we don't do that, this is your recommended language.

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: To make it very clear that it's yes, and then I'm here to build the record on it, the determination, because we very much do not want these folks to be victims of medical malpractice and then lose their rights.

[Unidentified committee member]: I think that's our goal either. We want to find a way forward

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: on that.

[Unidentified committee member]: And just to clarify that language is to add certified on line 20 then if not, it's professional who contracts with

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: Down in the bullet.

[Unidentified committee member]: Yeah, okay.

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: You see the according to the section, I mean, there's a little bit of a loop here, but saying certified at least makes it very clear that that's the cohort of youth, young adults, people that we're talking about.

[Unidentified committee member]: And just to put a finer point on that, and if a youth has entered into a contract with

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: a car sales Unscrupulous car salesperson.

[Unidentified committee member]: Or not unscrupulous, but someone with a falsified certification, then the immunity would not attach, would not?

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: No, I think it would.

[Unidentified committee member]: When we add certified?

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: Yeah, even that. If you're relying on somebody giving a piece of paper that looks like well, they printed it and faked it, or it's a the real one and it was signed. The doctor or the car salesperson is saying, I I I got printed a piece of paper that looked like this. There was no expectation. I checked to make sure that it was legit.

[Unidentified committee member]: Maybe we should add that piece then. That's I think that's I I think that's what I'm trying to say. That, like, if we say a person who contracts with a certified unaccompanied youth, we're still relying on the professional to have some idea of what these certificates look like or what a valid certificate looks like.

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: Using a negligence immunity clause to back into this piece of the conversation is awkward for you to know I mean? But I'm highlighting for you the intersection where it matters Yeah. Which is double checking that it's a valid Yeah. And again, I'm tiptoeing around this topic. I'm not a policy expert, and I understand these are super vulnerable people with agency.

[Unidentified committee member]: Well, I think it's better not to tiptoe when we all understand that we're all trying to help the youth and understanding that that's actually what you're doing too. We're everyone's here trying to help the state.

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: Well, thank you for saying it that way and saying that because, yes, we do not want them to be treated carelessly and harmed, which is the essence of the negligence statute.

[Unidentified committee member]: Yes. Okay. So then I'm just should we would your recommendation be and of course, I'm not saying this would happen, but that we should go even further and say that there's a requirement to to check on the strips if they could or?

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: I don't know. No. No. I'm in over my head at that point.

[Unidentified committee member]: I'm just trying to think through

[Unidentified committee member]: I guess also, the the liability that we are shielding here is, like, really narrow because it's just the like, so I guess, like, the liability is they were not supposed to contract with the youth. But it's not any of the conduct or anything like that.

[Unidentified committee member]: I was not supposed to contract with this youth, and I did, and now the car that I need to be defective is showing all of its defects, because of this immunity clause, the youth who bought the car

[Unidentified committee member]: I think that they could still go after the car salesman for the defective car.

[Unidentified committee member]: If it's certified youth, it'd still go after

[Unidentified committee member]: Any youth. This doesn't I guess maybe it would be like I guess, I don't know. Well, scenario

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: is you talk here, you I'm just stick with a plausible scenario. Somebody takes $2,500 from their family because they're under pressure in unhealthy pairing. Yeah. This is the course debt scenario. Fakes this form, buys the car, and the family is like, where'd our money go? And where's our 16 year old daughter? And the car dealer's like, well, I saw him driving out of here after I took your money, and no. I didn't have to check because I'm I don't have to do there's nothing that makes me have to be careful here. The general assembly said no carefulness required. Again, immunity provisions are an awkward way to back into this.

[Unidentified committee member]: Yeah. But it was important to, like, move like, just not understand it and then throw something in.

[Rep. Martin LaLonde (Chair)]: So without going any further, if we if we stick eliminating

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: or adding your language, do you think that would satisfy If if if this provision isn't there wanna go? We're always going to surface and say immunizing negligence provision should be removed because you're saying it's okay to be careless and hurt people.

[Rep. Martin LaLonde (Chair)]: Understand how that's your first choice, but

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: but you if if we don't go in that direction, then then you had that language to replace. Just makes it super clear. Right. While we're talking about so that we're not in the circumstance where American Airlines are like you're outside of this narrow prescriptive thing. It's a belts and suspenders piece. It doesn't change this fundamental question, and we're in low probability scenarios here that I'm articulating, very, very low.

[Rep. Martin LaLonde (Chair)]: For the sake of time, one more question.

[Unidentified committee member]: Yeah, it's

[Rep. Martin LaLonde (Chair)]: a And then I want to get Anne in for at least a minute because I know she it wouldn't be much more than that.

[Unidentified committee member]: Would work to if instead of immunity, we're using language that says that these any entity provider may reasonably rely on a certificate.

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: That would be a policy statement in the affirmative that would be able to avoid this labyrinth of gray area that's being created and probably serve the policy to work with. Given this inherited from Florida where they put this in each bill probably three or four times, it's a completely different civil landscape there. In Florida, of course negligence is probably what negligence is here in the litigation environment.

[Rep. Martin LaLonde (Chair)]: Great, thank you Adam. Ann, you had some comments that you wanted to make?

[Rep. Anne Donahue]: Representative Van Donahue, thank you. And I'll one minute here for then maybe some more time later. I think we had absolutely no intent of having the sheriffs who do the judicial transports to have any involvement at all with any data reporting for the DCF subcontract. There is another part of the bill that puts all those requirements forth. We were basically unaware that there were other sheriffs somewhere doing other transports until we had testimony, I think, on the last or second to last day. And we were like, oh, and we heard, oh, 12 a year. We really should have the whole picture. We would like to have the data on those kids also, which DCF wouldn't really be and so forth. And 12 a year, you got a problem with hand counting them? No, we got no problem. This was through and because I wasn't ready for this question, I don't have his name on the top of my head, but we had testimony from Tim Tim please. Yes, Tim, thank you. And he's the one who explained all this to us and said, yeah, I mean, that'd be no problem. And the chair then said, well, don't be surprised if you see that ending up in the bill. Because it wasn't in the bill, we didn't know about it. But in terms of some of the details that were being mentioned, I think we could probably easily work with them to get it. Because we just mirrored the language of what DCF gives us on the much bigger group. And there may be some fine tuning we need to do on that. Minor was very deliberate because we wanted to capture 16 and 17 year olds who are being treated as adults.

[Rep. Martin LaLonde (Chair)]: We continued okay? Yes.

[Adam Necrason (Necrason Group, Vermont Association for Justice)]: Thank you. I got going.

[Rep. Martin LaLonde (Chair)]: Because people have to leave. Yes.

[Rep. Anne Donahue]: Got the idea that there's Absolutely.

[Unidentified committee member]: Nate, we

[Rep. Anne Donahue]: can go outside. And I can speak to the

[Unidentified committee member]: immunity question.