Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: Live. Alright, welcome to the House Judiciary Committee this Wednesday morning, April twenty second, and we're turning back to S-one 193. So we have draft numbers 2.1, which incorporates some changes suggested or actually I don't think Judge Zonay suggested the change. He suggested there needed to be a change. This is the stuff on page two. But given his input, this is what Eric came up with to address Judge Zonaid's concerns. And then it also adds some of the recommended victims information. So those are the two changes from the last version. And the version was sent out witnesses yesterday. Then certainly, I know that Karen and I think some of the others have not some of the other witnesses have not given us input on previous draft either. So we'll look for your input on where we are right now. And we'll turn it over to Karen. Thank you very much for being available this morning. I know you're out on vacation and thank you for your willingness to weigh in on this. So I apologize for the delay, over to you. Thank you for being here.

[Karen Barber, General Counsel, Vermont Department of Mental Health]: Thank you for having me. So for the record, Karen Barbara, General Counsel of the Department of Mental Health. I did have a chance to look through the Virgin that Nate sent yesterday. I think that it looks from the DMH perspective, and I want to allow time for DOC and Dale to weigh in if they had any issues, we haven't had a chance to kind of connect. But from the DMH perspective, it all looks fine. I appreciate the clarification on certain things that we had talked about making it really clear that it's always the court that makes the ultimate decision on competency. I think there had been some concern in the past about who was making that determination, and so I think it makes it really clear here that it is the court. I appreciated the changes around some of the victim's notification language. I wanna defer to the state's attorney on those just to make sure that language really works for them. But from our perspective, victims, you know, we had asked for some victim language to be added on this on the Senate side, and we think it, you know, it is important that they have the ability to talk. So I didn't really have much on this version other than I appreciated the clarification on it. And so I really just wanted to be available in case there were questions or things you wanted me to specifically comment on.

[Rep. Martin LaLonde (Chair)]: Are there questions prepared? So I do have kind of one conceptual question. It's something that's been getting kicked around. I know this is on several different committees. Our work is really focused on sections one through three, but some of the discussions certainly impact sections one through three. So when somebody is not restorable, I just want to make sure I understand this process. Somebody's not restorable and one would look to see if they're dangerous by looking at their forensic risk assessment. And that would also guide the therapy that they might get to address the risks and such. But if we were to like just go to Some other states will do competency restoration, they'll determine the person's mass restorable and then they send them to the civil commitment process. And the way that presumably could look, well, I if it could look this way, but in this bill, it's one path is that we could have somebody that's not restorable, they look at the forensic risk assessment and then they are diverted to either the Act two forty eight process if somebody is intellectual and developmentally disabled. They would be sent to the commitment for mental health if that's the underlying reason for why they were deemed not competent. But then there's the question of where would somebody with a traumatic brain injury or dementia, I mean, is there an entity that presumably would be responsible for them? Would it be Dale in that scenario? Now I'm not suggesting that this, I'm just trying to understand that that's one of the routes that presumably could have been taken. And instead what this is trying to do in this bill is establish the equivalent process for this narrow set of individuals with the high needs and offenses that are very violent offenses. But if you could just kind of comment on those different paths and why the path that we're trying to develop in here is equivalent and is appropriate? Did that question make sense? It was a long lead up question, but that's really a fundamental issue that a lot of the committees are looking at.

[Karen Barber, General Counsel, Vermont Department of Mental Health]: Sure. Yeah, so I think I'll say a couple of things. So first, Vermont doesn't have any form of forensic system, and so it's really difficult to compare it to what happens in other states because they have whole systems, right? Like whole structures and commitment structures, facility structures designed to deal with individuals who are interacting with the criminal justice system. We don't have anything. And so we don't have a bunch of different kinds of types of civil commitment that you can put someone into when they're coming through this kind of criminal justice pathway. They just don't exist in Vermont. We have civil systems and we have criminal justice systems. In other states, they've got civil systems and criminal justice systems, and they're designed to go together and the criminal justice systems are much larger. And so in Vermont, it is possible that someone who's coming out of the forensic facility or doesn't meet criteria to be in the forensic facility because they're not meeting that level of public danger could go into an Act two forty eight setting or go on in ONH. I think it's important to remember that those do have pretty strict clinical criteria, because again, they are not meant to be a catchall for everyone, they're really meant, like in some other states, they're really designed to meet clinical need, and so there's high clinical thresholds for those. BDH has no form of custodial custody, right? So someone with primary substance use, there is no custody, there is no option for those individuals on an involuntary basis. And if it's mental illness, an order of non hospitalization is possible if they meet that clinical criteria. But again, ONHs are community based programs, right? And so they really, they don't necessarily come with housing or, you know, 20 fourseven services, it's really, you know, we're working with the DAs to help them get the services they need. The Act two forty eight under Dale is a pretty limited custody, And so I believe, and this is a big question for Dale, but it's not all intellectual developmental disabilities, it's a small subset of that. And so everyone else, again, there's no sort of custodial option for them, of but course, we're working with the designated agencies to get them services. So the way our systems are just so different that we're just not set up in the way that other states are, and we could, you know, in the past, several years ago, we did come to the legislature with kind of this big massive proposal, we proposed a whole campus, and we had different levels of care, and that didn't get traction, and that's fine, of course, that's a policy decision, but so that is an option for the future. But I think right now what we're trying to do is just really focus on a very narrow subset of individuals that would be in this without creating kind of the whole system around it, which I think is a much larger policy discussion about in the future, maybe how you want this all to work, because we just don't have any sort of a system. Did that kind of answer your question?

[Rep. Martin LaLonde (Chair)]: Yeah, no, appreciate that. Thank you for the clarification. Other questions for Karen? Barbara? So I sort

[Rep. Barbara Rachelson (Member)]: of have a follow-up now from Martin's question. I mean, that is the way it is now, but the way it is now, we don't have anything, and we're trying to design what makes sense for the state. The fact that the orders of non hospitalization and the designated agencies have limited options and services isn't mandated by there's nothing to prevent us from making that system more robust if that's the best way to go for the outcomes we want to achieve, as well as if we need a forensic facility and where that should be. I just feel like it's not like, Oh gosh, we can't do that because our constitution doesn't allow it, or the feds don't

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: allow And when we do look

[Rep. Barbara Rachelson (Member)]: at other states, that is what a lot of states are doing. So we have the opportunity to benefit from looking at everyone else who's already gone before us and trying to carve the best way through.

[Karen Barber, General Counsel, Vermont Department of Mental Health]: Yeah, so I think what I would say is it's a yes and not an either or. So as we've talked about, this isn't purely a mental health issue. So thinking about how we can strengthen services in the community for those with mental health challenges is not going to solve this problem. Fundamentally, Vermont has made the decision that really values personal autonomy, and so these are high thresholds to put someone in voluntary care, right? And also the decision has been made that we're going to work to have hospitals that are licensed and accredited and follow all the high clinical criteria that every other hospital has to do and not just have these big massive state hospitals that are general fund and don't meet those things. So the way our system is designed, you can't just revoke an O and H and send someone to the hospital because they don't follow it. And so if that's kind of a model is being considered, that would be a massive shift and a massive change and would require a lot of structural, statutory, policy, kind of real changes in the mental health system. And so I think, and again, that would only address part of it, but I think part of what we're trying to do is solve a very small problem. If you want to talk really big how the whole mental health system operates, that's certainly something we can talk about, but you can't shift this one piece without impacting everything else you're trying to use it that way.

[Rep. Barbara Rachelson (Member)]: So I'm not necessarily thinking of a major shift. I guess I'm thinking about a couple of things. One is the orders of non hospitalization. If there are residential community options or even it's something in between, it's not necessarily being locked up in a forensic facility or a hospital ward, but it's the type of program that would be community based, be small, and be tailored to the needs of that person, much like some of the emergency bed And not exactly an emergency bed problem because it's not that, but the small, we can do wraparound services for this person in the community and get good outcomes. I don't know enough about is there some order that we'd have to have that's an order of residential treatment or something that's not non hospitalization and it's not commitment. I'm not sure about that. But the other part is, when I think about the diverse population that we're talking about, the economy is like, wouldn't it be better to not have everybody the person with Alzheimer's, the person with a developmental disability, the person with a mental health challenge in the same forensic facility, but treated in their community in a program that's specialized to their particular needs?

[Karen Barber, General Counsel, Vermont Department of Mental Health]: Yeah, so I guess I'll answer your first question first, then I'll go to that. I mean, so we do have, there are residential programs that do already exist, right? And you can be on an O and H and in a residential program. Being on an O and H doesn't guarantee that you get placement because all of those are clinically based. And so if you need to be in a residential program, you're willing to go, know, it fits for them, you have to apply, right? So we do have those settings already in our system and those would continue to be available for folks. So yes, we do have those. In terms of your second question, I think there's this idea that everyone has to be served individually, but what I'll tell you now is that folks with all of these different needs are already being served together, they're already being served together in corrections environments, they're already being served together in mental health environments, they're already being served together in Dale environments. So most people have co occurring, right? And it could change as to what the primary diagnosis is. And so that's kind of depending on what system they're interacting with the most. But certainly we have individuals at the hospital where we're trying to tease out, is this really mental illness or is this dementia? And they're in with everyone else, right? Or they have both an intellectual developmental disability and mental health and substance use, right? So all of these folks that are already kind of interacting with our system, it's really kind of what is the primary diagnosis. And so if the primary diagnosis is substance use, they can't be in the hospital, but that doesn't mean that they're not also getting outpatient mental health treatment. And so I think it's, you know, to try to separate everyone ignores kind of the reality, which is that folks are really clinically complicated, and we are trying to meet them where they're at, and that does mean that everyone's kind of being treated together often.

[Rep. Barbara Rachelson (Member)]: Karen, are there any reports? I don't know. I don't really want to report. But could we look at what the outcomes are for those people? How are the people who are already there in corrections doing? Are their issues improving? Are their families pleased with the care that they're getting versus the people that are in the hospital versus the people you're saying are in residential treatment? Is there anything that looks how

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: that's going for everyone? So

[Karen Barber, General Counsel, Vermont Department of Mental Health]: you'd have to ask you know, DOC or Dale. Right. You know, we don't I don't we don't do kind of, I guess, like, customer satisfaction surveys when someone discharges from the hospital.

[Rep. Barbara Rachelson (Member)]: And not just customer service, but, like, improvement. If there is improvement or determination that there can't be improved. Does that happen faster in Dale than DOC?

[Karen Barber, General Counsel, Vermont Department of Mental Health]: So I don't know that you can compare those, right? Because we're doing different things. So in DMH, if someone discharges from hospital, it means they've stabilized enough or they don't need to be in the hospital. You know, I can't speak to the Act two forty eight program. In terms of corrections, you know, that they're not, that is kind of when they go in and when they go out, it's kind of led by the court, right? And so I don't, it's not based on their clinical, so I don't know that you're gonna get data that talks about that just because it's a difference. I think it's really hard to compare all of these systems because right now they're doing very different things. The report, there is a reporting requirement in the bill, which would kind of get to, I think, what you're getting at, which is once the forensic system is up and running, kind of looking at those types of things and getting you some of that data, it just doesn't exist now.

[Rep. Barbara Rachelson (Member)]: And if you don't have that kind of interaction with DOC now, why is that going to change?

[Karen Barber, General Counsel, Vermont Department of Mental Health]: So you were asking if people were satisfied with the care they're getting, which is very different from DMH having interactions with DOC around, okay, they have someone that they are wondering if it's appropriate for hospital level care and us working with them to get them that care. So those are different And

[Rep. Barbara Rachelson (Member)]: again, the satisfaction part was more like if the relatives I was just trying to think about people in hearing from our witness last week who represented both a victim and a family member of somebody who is charged. So I guess, are the people being held in DOC now getting better, if that's possible, or if the determination is being made that they cannot be restored. I know DOC was saying, We're doing this now. So part of me is like, What are they doing now and how's that going from the Department of Mental Health standpoint?

[Karen Barber, General Counsel, Vermont Department of Mental Health]: So we don't have competency restoration now, right? So no one's getting restored. So we can't kind of compare how that's going. You know, we talk with DOC currently about people in their care and from care management's perspective and from the department, yes, when they work with us and identify someone that needs services, WellPath is able, or whoever their contractor is at the time right now, it's WellPath, able to get them services. Know, they are getting a pretty I know that they get a bad rap, and I get that. I do think that WellPath is doing a good job at providing services in the corrections system. I'll tell you that I'm on a couple national boards, a national attorneys group and a national American Association of Public Health and Human Services. And when I talk to other states about how our DOC is in AHS, people's minds are blown, right? Like no one else does this where the Department of Corrections is so integrated into human services and to hear about the programs that our facilities have. I know that it's a correction setting, but we really are so far ahead of other states. And I think we kind of lose track of that. And so I do think that WellPath is able to provide these services. Is it perfect? No, but no system is perfect. I would say the DAs aren't giving perfect services either. It's just not possible, right? And so I do think that DOC, when we're saying they're doing things already, they're treating these people already, right? People are able to get access to psychiatry, they are able to get on medications, they are able to do groups, they are able to do therapy. So those are things that are happening now. I think this model is to increase that, to give them even more in the competency restoration realm, to add that on to the clinical, because again, competency restoration isn't clinical. And then for folks that are found not restorable or not guilty by reason of insanity, continue to give them the treatment they need, kind of based on that risk assessment to determine how they can go out into the community. Those are things that aren't happening now. Right now, they're just getting kind of maintenance, right? Like what do they need right now? This is really focused on how do we go beyond that and add more to that?

[Rep. Barbara Rachelson (Member)]: So I've got a few follow-up questions. And one is with our system of care that's delivered through our designated agencies, our preferred providers, etcetera, It is an ideal now, but we're not saying what can we do to make that a better system. When Commissioner Murat was in, he talked about that he would contract with WellPath to do this service, and he mentioned Massachusetts. So I started looking up Massachusetts. They ended their contract with WellPath very recently because they were not pleased with it. So I'm not sure what Commissioner Murat had in mind, but that was confusing. And I'm wondering, I know that's a very pricey contract, and part of me is like, have we thought about investing $5,000,000 whatever that is, in supporting our Vermont providers or bringing in of buy local. Couldn't we work to help our This morning on the way in, Vermont Public was doing a story about primary care doctors barely hanging on and our shortage of medical people. If we were not looking to a big outside state contract, it could be a win win, is one thing that I'm wondering about. So before we go there, that's getting way outside our first

[Rep. Martin LaLonde (Chair)]: question. Because I know that joint justice oversight and corrections and institution have been looking at WellPath or bringing it in, bringing it in house, then they did that with lots of extensive testimony. And so that's really ultimately a corrections decision. So I know we need to understand somewhat where the back end of this is and the concerns that may be there with DOC or WellPath, but that ultimately is really corrections jurisdiction.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: Yes, but I feel like

[Rep. Barbara Rachelson (Member)]: the Chartered Mental Health is gonna be an innocent bystander and not have a lot of, Wait a minute, we could be doing this, which is another reason why I know that's not in our jurisdiction either to move it out of DOC. And I've got to say, somebody in our committee said this the other day, and I just want to reiterate it. That's the DOC I've lived in, worked in the field in Michigan for thirteen years before being in Vermont. While it's remarkable that DOC is in AHS, we still have the silos. Having had contracts at the same time with AHS, mental health, ADAP, and DCF. It felt like different worlds and different departments. So I'd love to see more integration, and I know that's a vision the Secretary has. I look forward to that happening.

[Rep. Martin LaLonde (Chair)]: I appreciate your concern, but just Yeah.

[Karen Barber, General Counsel, Vermont Department of Mental Health]: No thanks.

[Rep. Martin LaLonde (Chair)]: Stick to our lane. Karen,

[Rep. Ian Goodnow (Member)]: I just have one question, and it's I'm trying just to going back to kind of the beginning of the bill and trying to follow an individual going through the process. If we've got somebody who is in the forensic facility because they're not currently on an order of hospitalization because they don't qualify as a person in need of treatment, if while they're in the forensic facility they suddenly become someone who qualifies as a person in need of treatment, would they then have an order of hospitalization request made? Or is the hope that the forensic facility would also handle someone if they moved into that realm?

[Karen Barber, General Counsel, Vermont Department of Mental Health]: Yeah, that's a great question. No, this facility would not be a hospital level of care. If someone needs the hospital, they would go to the hospital. So we already have folks trained within DOC to kind of start the process, which is there's a three step process to kind of come into DMH testing voluntarily. So we have folks that are able to do kind of the first two levels and then a psychiatrist would look at them, but absolutely no, if someone decompensated to the point where they needed hospital level of care, we would work to quickly get them to a hospital unit to stabilize them, then this would be their discharge plan. That happens now in corrections, we do have folks are coming in and out of our system as needed based on clinical needs.

[Rep. Ian Goodnow (Member)]: And so that would happen when the person's in the forensic facility, they're doing the work as laid out in the bill, and then there could be an assessment done, and then there's a realization this is now a person who needed treatment, then, yeah.

[Karen Barber, General Counsel, Vermont Department of Mental Health]: Yeah, absolutely. Yep, and that is the goal. We always want people to access the hospital when they need it.

[Rep. Martin LaLonde (Chair)]: Thank you.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: Any other questions for Karen?

[Rep. Martin LaLonde (Chair)]: Well thank you very much, Karen. Appreciate you being available this morning.

[Karen Barber, General Counsel, Vermont Department of Mental Health]: Yeah, of course. Thank you.

[Rep. Martin LaLonde (Chair)]: All right, we'll go to Susan Arsenault who can join us next. Thank you for being here again.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: Thank you for the invitation.

[Rep. Martin LaLonde (Chair)]: Yeah, and so really the focus I want to kind of try to keep in our lane, if you still use section one through three, then it's that the process that set out in those sections. Really, it's mainly one and three, actually, on the two sections. Okay. That's helpful.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: I have some overarching concerns, and then I have some comments and this Yeah.

[Rep. Martin LaLonde (Chair)]: If you've done this done it by yourself.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: So for the record, Susan Arsenault, and I do the policy work for the Vermont Developmental Disabilities Council, and I'll do the short version of I am an employee of the Agency of Human Services. However, I work for a federally funded council, the Developmental Disabilities Council, and that we operate under a memorandum of understanding so that I am free to advocate on behalf of people with disabilities and their family members and speak to legislators or anyone else about matters in public policy and take positions and make public statements that are different than the agency's official position. And just so you guys know, not all state employees can do that. In fact, most state employees operate under personnel policies that expressly inhibit that. So I always want to be really careful when I'm here, be clear I'm not speaking for AHS. That said, I have some real concerns that have not been addressed in this newest draft. And that has to do with Barry Commoner, the old environmentalist, had this saying, There's no out out there. Now, he was speaking about trash and like that. But I just want to say, in terms of the people that we're trying to move around in our system, the Agency of Human Services, It's a problem that there's no out out there, because if we were to learn any single lesson from the debacle and the tragedy and the horror of Woodside, and I hope some of you have read that article or at least scanned it, we would know there's gotta be an out out there. In the rule making process that's set up in here, oversight, in everything, it's all AHS. AHS is going to get together and come up with the rules about quality and oversight and staffing levels. And AHS is going to supervise how it's going. So you've got corrections. You've got Department of Mental Health. You've got Dale. They're all in AHS. I work there. And there is a mantra, agency of one. And sometimes that works when you want no wrong door to public benefit programs and you want to break the silos. But to Representative Rachelson's point, there are still a lot of silos. Anyway, it's an agency. There's no out there. There needs to be independent oversight. Because it's not going to be a hospital, you won't even have the benefit. You, we, the people of Vermont, the people in those compounds.

[Rep. Martin LaLonde (Chair)]: Well, I'm confused by what you mean there's no out out there.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: There's no one else There's no one outside the system looking in able to be exercise independent oversight from outside the agency of human services.

[Rep. Martin LaLonde (Chair)]: I'm glad I asked because Okay. Yeah. So, and just getting back to what I mentioned earlier, as far as Arlene, I think all these things are concerns to us generally speaking, I'm really focused on section one and three, which isn't really gonna, I mean, that, it has actually court oversight of all that process, or most of the process. Some things in there that that's not the case. And they'd like your input on that. Oversight and all that is really being handled in three other committees.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: So okay, can I just say another thing as someone who's worked in this building a lot? I'm trying to follow the conversations. And what I wanted to say at the start is my written comments, I'm gonna send you at the end of the day because I want them to be responsive to the questions and concerns that committee members have raised. And I don't see representative Arsenault here today, but when she asked, well, what are other states doing? That's a really good question, and sometimes I'm able to provide some answers. So I really am looking forward to the testimony today with Commissioner Rowan. But trying to follow this conversation as it's happening in corrections and institutions and human services and here, it's hard to know. Thank you for the lanes of this is section one to three, but sections are very interconnected. And when you're a person going through the process, you're touched by you can't actually be touched by these departments. As to your section, a specific thing in section one that I would suggest, where you're excluding people in B, so it's the section where a person shall be remanded.

[Rep. Martin LaLonde (Chair)]: What page what page and what line are you on?

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: Page one.

[Rep. Martin LaLonde (Chair)]: Okay. Page one. Yep.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: In the sort of line 17 to 19 secondtion. Yep.

[Rep. Ian Goodnow (Member)]: Perfect.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: I would also add that if the person I would admit probably a new clause saying that if the person is currently under Act two forty eight, and when the Commissioner of Bail is here, you can ask her what that means. Who's under Act two forty eight? How did they get there? How long did they stay? But if someone is under the supervision, under Act two forty eight now, I think they could be excluded from the start. If someone could come under the jurisdiction of Act two forty eight in the future,

[Rep. Martin LaLonde (Chair)]: they So can I just ask you to follow-up with that? Isn't that more of the equivalent for subsection three there? Yes. And so in three, it's saying if the person has an order of hospitalization, then this doesn't apply. It could also be if a person is under the jurisdiction of Act two forty eight, it might not apply.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: You're right. That's where I, looking at my notes- Okay, so

[Rep. Martin LaLonde (Chair)]: that's the question for Doctor. Dolan as well. So I think Yes, I pointed that

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: for ACT two forty eight. Because it's

[Rep. Martin LaLonde (Chair)]: kind of the equivalent for the IBD of ablation, as a border of hospitalization, kind of.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: It is, yes. That would be what I would say.

[Rep. Martin LaLonde (Chair)]: Thank you.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: And I also just want to say that the Act two forty eight process is confusing and flawed in its own right, But if I can just piggyback on what representative Rachel was saying about possible alternatives. Because I don't deny that there are people who pose a risk, public safety risk, who are in the community and then end up in a correctional facility and no one knows what to do with them. I think sometimes in this building, people want to know what other states are doing. And sometimes it's like, Don't tell me what they do in Connecticut. I don't know with this committee and with this issue, which way it is. I just want to say that there are some things that we've been doing in Vermont that have been working. Prior to COVID, we had three crisis houses in the developmental disability system that worked for the people on Act two forty eight to stabilize them if they needed a higher level of care or short. During Act two forty eight, those three houses filled up and there was a backlog. I could say, we're gonna have four or five or six. I don't know if it's your purview to say what should be in the interim report or not, But you have the sections about cost or startup cost. I would really like someone to ask. It's on the very last page in Forens four. An anticipated timeline for the development of a forensic facility, including preliminary cost estimates and initial update. Could we also know the annual cost per person? And could we also know the cost of some less restrictive alternatives? Like a state funded housing voucher, like some state constructed secure housing on state property, could we direct BGS to identify buildings on state grounds that can be secure locked residential facilities? That is what they do in other states. They sometimes call them cottages. But you look at the campus in Waterbury, there was a lot of housing there. It can be secured. We haven't done that.

[Rep. Martin LaLonde (Chair)]: Can I ask a question? So have you testified in corrections and institutions yet? Or have you been set up to testify there?

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: Yes. And I'm going back. I'm there

[Rep. Martin LaLonde (Chair)]: tomorrow. Yeah, because I just wanna make sure that I mean, I'm noting this, but that they're probably the ones making modifications to that. Yes. And I think I've already heard them talk about just these kind of things you just mentioned as well.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: So again

[Rep. Martin LaLonde (Chair)]: Yeah, I understand.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: It must be harder for you guys to follow even, so take out my violin. It's a really complicated issue with lots of pieces, and you're in obvious, this part in your committee, this part in your other committee. And the answer is you're saying it's all connected.

[Rep. Martin LaLonde (Chair)]: It is connected. Really, driving of this bill is this committee and corrections and institutions. It's like health care and human service are weighing in narrower parts, but it's making sure that you're being heard in the right committees as well.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: Yes. And I just want to say, I'm also going to be going back to human services because there's this human services component of this, which is our current designated and specialized service agencies who provide mental health treatment in the community. They don't have a forensic rate. They don't have forensic treatment specialists. They're not paid to do that. And they can't even find work. Our clients get one study says 55% of the hours they need. If you want to keep people stable in the community, give them the services they need. Pay the service workers enough to do that work. But with forensic work, pay them more. It's a dwarf. Danger is specialized, and we don't have that in our community based system, whether that's housed at Corrections or DMH, I don't have an opinion, but we could really use community based treatment specialists to keep people on ONA to keep people safe. I think that's human services, not you guys. So I'd be happy to I will submit written questions sorry, comments. I really do benefit a lot from listening to the questions you ask other witnesses for teardown and what's top of mind for you and what would be most helpful for me as a witness. And I really appreciate it. This committee really seems like it's listening to the witnesses and making changes and drafts as you go along as a witness, so you can't ask for anything in the way.

[Rep. Martin LaLonde (Chair)]: I appreciate that. So any questions for students related to the, I believe, primarily Section one and three? Yeah, Florence.

[Rep. Barbara Rachelson (Member)]: So I'm wondering if in your written text or language later, if you are suggesting language changes in those sections.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: Yes, actually, I just realized one of the sections I most wanted to comment on is in this section. So on page three, lines eight, really this critical population of people whose competency cannot be restored. First of all, I think holding someone for sixty days after that finding is just way too long. We're depriving people of their constitutional right to liberty. The state is holding someone involuntarily, depriving them of liberty. We say sixty days, and then that period could be extended for good cause. I just think it should be within seventy two hours period. How long do you want to be in a facility you're not supposed to be in deprived of your basic right to freedom and liberty? So that section. But I really think that what happens in general for people whose competency cannot be restored is still not adequately addressed here. You will have people from day one, the people with dementia, people with acquired brain injury, traumatic brain injuries, the people with certain intellectual and developmental disabilities, whose competency will not be able to be restored. They need safe, secure housing in the least restrictive setting from day one, that plan, and that is not accounted for in this yet.

[Rep. Martin LaLonde (Chair)]: I don't know how many people that'll be of these, but I do think from a human rights perspective and from a cost effective perspective, we don't need to hold people in the most expensive settings who are never going to be restored. Right. I always tie this back to this very limited population. We talk about where they're being held, they're being detained, pending trial and such, being held without bail because there's been a weight of the evidence hearing and the evidence of guilt is great and evidence of the danger is great. So that I kind of work into whether this is a reasonable amount of time. So I understand what you're saying, I always have to kind of feel, if this was somebody being held on

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: a misdemeanor, I wouldn't be. This is really where I really miss Representative Donahue's good mean brain, because she could tell me how many crimes there are out there that have this life sentence. And it's not what we think the barrier is. And I never even when I practiced law, never practiced criminal law. So sentencing those things. I wouldn't even say. But I think that what happens with people is sometimes they have outbursts of dangerousness behavior, and then what? They're going to be held in a prison for life? That's what this could lead to for someone with an intellectual and developmental disability. That

[Rep. Martin LaLonde (Chair)]: just does not seem acceptable to me, at this stage. That's And think, Kenneth, I guess if you could comment on if this language needs to be strengthened some, I'm trying to find where it is, where specifically the court has to look at the least

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: Yeah, page four, line nine. You're reflected. Well, because I have a little note saying the Fort Charles were included in the person in the least restrictive setting, and I put where? We don't have secure That's what we need to develop in our system. Housing. What I spend most of my time in this building doing is trying to create service supported housing for adults with intellectual disabilities. We are 600 units minimum short, because you're up for that population to live in stable, secure housing. Forty percent are in adult foster care, the most unstable form of housing you could find. We call it shared living, used to work, built Airbnb, so much now. But at least restrictive setting sounds good on paper. Sure. So the other thing that I said, the other thing that I circled on this page that I just want to say I found kind of like a problematic wording that's throughout this bill, is everything is predicated on a finding that the person is no longer suffering from a qualifying condition. For these categories of conditions that I'm talking about, that they will always be suffering. I don't particularly like the word suffering. They will always be living with a qualifying condition. So the key is really the risk assessment. So I could go through in my comments, maybe I will, all the places where that appears. But that's the first part of findings that need to be made in many sections, is that they're no longer suffering from this condition. Well, they are always going have that condition. So the question then becomes, are they dangerous or not?

[Rep. Martin LaLonde (Chair)]: Well, I think that's the way it's supposed to be I think it reads this way. The key is that it's a qualified condition that upon the person's release would create a substantial risk of bodily injury. It's the fact that that condition is underlying that substantial risk of bodily injury.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: But they're always gonna have So for people with acquired brain injury, dementia, intellectual disability, they are always going to have that condition. You could strike that clause. What you really want to know is, is the person, upon release, create a substantial risk of bodily injury to another person?

[Rep. Martin LaLonde (Chair)]: Do you need to have an attack with a qualifying condition? I think maybe I do. So I understand what you're saying. Yeah, Ian, go ahead.

[Rep. Ian Goodnow (Member)]: I'm just thinking about it. No, I think you do need to have the qualifying condition. So we're on page four, line 15 through 18. This is like a release valve for someone who has been

[Rep. Martin LaLonde (Chair)]: Or it's also on line five. It is true. Would have documented. Yeah. So

[Rep. Ian Goodnow (Member)]: they're held in least restrictive means because they have a qualifying condition, and because of the qualifying condition, they are substantial risk of bodily injury to another person. So if you got rid of the qualifying condition and just had it be about substantial risk to another person, that actually broadens it extensively. And you probably could hold somebody longer.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: For the group of people that are in tight game mode, they are always going to have a qualifying condition. So if someone has to be free of a qualifying condition- But that's not to- Sorry. To

[Rep. Martin LaLonde (Chair)]: move on.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: If there's even a possible interpretation that they would need to be free of the qualifying condition to move on.

[Rep. Ian Goodnow (Member)]: And that's very helpful because that's not how I understood this to work. That they can have a qualifying condition, but if they're no longer bound due to that qualifying condition to create a substantial risk of bodily injury to another person, they would then be That's the release. So they can continue to have the qualifying condition.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: Through From the people that I'm talking about. So that's the thing. You're creating a similar process for people who can be restored to competency, and therefore they might not be suffering from the qualifying condition that led them to be incompetent to begin with. And people who will always have the fall time condition, let them be in fountain to begin with. And you're trying to have language that's going to

[Rep. Barbara Rachelson (Member)]: address restoration for the people

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: who are restorable. And for the people who aren't restorable, you just kind of have to figure out how it would apply to them.

[Rep. Martin LaLonde (Chair)]: Is that okay? Yeah, so I think that's a question we could ask some of other workers, just to see how other folks are turf pooping it. Yeah, understand what you're saying.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: I think the one on line 15, starts on line 15, is probably the one that's the wonkiest to me, but there were other places where that appeared. So the other language on page five, in beginning on page three and on page six, those two clauses. This is about the court shall order the release of the person under prescribed regimen, order an explicit condition that they comply with these things. And what I would just say, because these are going to be court orders that really impinge upon constitutional rights, the decision of what we put in our bodies in terms of medication and involuntary medication, that's been recognized by the United States Supreme Court to be a liberty interest. So there's no end. So my question here was like, for how long? Forever? And you're basically here creating another form of an order of non hospitalization, an outpatient commitment order, which is fine. I love outpatient commitment orders. They're really useful tools. They just need to have all the due process bells and whistles that an order that would constrain someone's liberty would have, like annual reviews or events.

[Rep. Martin LaLonde (Chair)]: Thank you for explaining that out.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: I'm Yeah. Done, and I will

[Rep. Martin LaLonde (Chair)]: My birthday cards. Yeah, no, that's very helpful at that point. I

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: want to be helpful. I don't want to just keep sitting here and saying, nope, nope, not kidnapping. I do want to be helpful.

[Rep. Barbara Rachelson (Member)]: So I've got two other questions. It looks like in terms of do other states allow indefinite time allowed for respiratory competency? It sounds like a third of the states have indefinite commitment for competency restoration to happen, but that the other 60% have imposed an end date, like Washington State I found for first degree felonies. I'm trying to find the language to match what we're trying to target here with one year. I'm just trying to look to see what other states offer. The other piece of it is how often the reporting needs to happen. Have it as six months now, which seems to be a lot of states have every forty five days or every sixty days. And I'm wondering if you have thoughts about those two issues.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: So those are excellent questions. And I think that in general, the approaches for competency restoration and how long do you hold a case open, the systems that I think are kind of split the difference between the public interest in getting holding someone accountable for a crime and the personal interest in being free of the free system. I think the states that look at the heinousness of the crime, and for certain crimes, it will have an indefinite callback. So for certain degrees of murder, if that person ever restores competency twenty years after the fact, they can be held accountable. And then in others, if it's x number of months of the maximum of what they would have served had they been not being fully pardoned, seems to split the difference of, if society would hold a person without a disability responsible for this amount of time, why are we holding a person with a disability or twice? And as long. And part of that is a civil liberties concern. And I will say, honestly, having been around these issues in Connecticut, it becomes a cost concern as well, especially people who can be managed as safely in community settings. Those they're expensive beds. That's why I think getting some of these cost figures before we go down this route is really important.

[Rep. Barbara Rachelson (Member)]: And I've noticed a couple of states have, like, a transition plan put in place, which is something Vermont isn't giving, obviously, but could make a big difference.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: Transition plans, and I'll say the state that I'm most familiar with is Connecticut, And we kind of have this oversight board that is set up specifically, it's called the Psychiatric Security Review Board, the PSRB. It has mental health professionals that's legal. It is set up specifically to review annually the people under its purview, whether they're in the community or in institutional settings. And it's that board that determines their next level of movement. And victims get to participate.

[Rep. Barbara Rachelson (Member)]: It's a really a big thing. Is that independent like, when you're talking about the out out, is that are they independent of the department providing this sort

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: of thing? So what has happened, yes and no, is in Connecticut after their recent scandals, think they've done it, reversed it yet again, is they have maintained some lines of separation between the Department of Mental Health and the operation of their forensic facility, and they've had a different whiting forensic division and the whiting forensic slate, then they put it under the purview of the Commissioner of Department of Mental Health. And I'd be lying if I said I knew where it landed now. But they tend In terms of the separation, they operate as hospitals, and that is just so important because that means the Joint Commission and CMS and other hospital like entities get to come in also. And then in terms of the representation of legal aid, that's something I would just like always, I would just try to make clear that people also get representation from the Office of Prisoners' Rights, and then also have access to the advocates from the protection and advocacy systems, the disability rights system. Now, they might have automatic statutory access authority, they probably do, but it's so much easier to just have it written into the statute, because Outside eyes So if the DMC were required to run it as

[Rep. Barbara Rachelson (Member)]: a hospital, then they would have to get it accredited, and then we'd have Yes. I think so. It would make I

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: know that one of the things that Representative Donahue was working on was trying to get some of the psychiatric hospital stuff, some of the Green Eye Care Board stuff to apply to Right. Yes. She talked to about Vermont, and I just don't I don't know enough about where things landed.

[Rep. Martin LaLonde (Chair)]: Any other questions?

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: I can you know what, though? I can try to find out.

[Rep. Ian Goodnow (Member)]: I don't know if it's a question for the witness.

[Rep. Martin LaLonde (Chair)]: Oh, okay.

[Rep. Ian Goodnow (Member)]: Yeah. It's gonna be

[Rep. Martin LaLonde (Chair)]: Ask a question.

[Rep. Ian Goodnow (Member)]: Yeah. I have one thought, and I'm just wondering how bad of an idea this would be. So, I'm realizing what really becomes a flowchart of all the different people. But if you had someone who, Okay, they go, they are incompetent, they have a qualifying condition, they now are not found to have a substantial risk, so now they're in this weird place where we can order. What if we just said once they got to that point, they now are a qualifying person who need a treatment pursuant to 18 BSA seven-one 101, and they just bump into that stream?

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: So the person in need of treatment stuff is on the mental health side of the universe. And I deal with people with developmental and intellectual disabilities.

[Rep. Ian Goodnow (Member)]: So not really.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: They are co occurring,

[Rep. Martin LaLonde (Chair)]: So you couldn't relate.

[Susan Arsenault, Policy Staff, Vermont Developmental Disabilities Council]: So I feel like I'm not in a good enough position. Well,

[Rep. Martin LaLonde (Chair)]: you very much for the testimony. We'll look at your written testimony as well. We will take a break until 10:30. We have Eric and a few other witnesses at that point.