Vermont Legislature SmartTranscripts:

[Sen. Wendy Harrison (Chair)]: Okay, we are back in Senate institutions on 03/10/2026, and now we are getting a review and a discussion of S-one 193, and that is a bill

[Eric Fitzpatrick (Office of Legislative Counsel)]: that is

[Sen. Wendy Harrison (Chair)]: proposing to establish a forensic facility. And this committee's jurisdiction, just to be clear, is the buildings of the state and those include correctional buildings and so whether or not that is a good fit in corrections is our, that's the main reason that we've asked for information. And today doesn't need to be the last day that we take testimony. We can take testimony later on if there are unanswered questions that the community has. I think we have a great group of folks and I really appreciate you all being able to be here on relatively short notice. We have copies of the bill if anybody would like.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I have.

[Sen. Russ Ingalls (Member)]: I got it online. Okay.

[Sen. Wendy Harrison (Chair)]: Well, it's not, it's been revised. So it's, the draft I have is 4.1 which I think is,

[Eric Fitzpatrick (Office of Legislative Counsel)]: I'm sorry.

[Sen. Robert Plunkett (Vice Chair)]: I said we heard this this morning and

[Eric Fitzpatrick (Office of Legislative Counsel)]: the health of like this. Oh, okay. Perfect. Sure I haven't revised it since then. True. Then

[Sen. Wendy Harrison (Chair)]: you will be our expert. Okay. So we have Karen Barbara, general counsel department. Oh, I'm sorry. Eric Fitzpatrick. He's going to, Yeah, sure. Test. Good. Thank you.

[Eric Fitzpatrick (Office of Legislative Counsel)]: All right. Good afternoon, everybody. Good afternoon. Eric Fitzpatrick with the office of legislative council. As the chair said here to give the committee a walk through of Senate Bill number 93, which we're activating to establishing a forensic facility for serving criminal justice in all persons. I'm not sure if I should just kind of go through the bill. I'll give you a minute or two of background first, you were mentioning sort of area of concern, I could focus on certain parts or whatever you think might be helpful.

[Sen. John Benson (Member)]: If you can go through the background and that'd be great.

[Sen. Wendy Harrison (Chair)]: Yeah, and I think I should have also said that the competency restoration services, that to me is a no brainer. That should be happening. So that is definitely a benefit to the state. And I don't have concerns about that, but obviously for a committee of five, so I can't speak for everyone. But yeah, why don't you give us a general explanation of the competency restoration and why it's necessary and then talk about how it would be implemented according to this vote.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Sure. Before we even look at the bill, it's one of those situations where it might be helpful to hear a minute or two what the lay of the land is now, and that kind of sets the stage for how the bill proposed to interact with what you already have or what the state already has. So currently, if someone, if a person has found either a potential danger to themselves or others on account of a mental illness, that person is generally committed to the Department of Mental Health for treatment, So that's where that person would be routed currently. Now, it could be two different ways, two different avenues that that person could come into the custody of the Department of Health. It could be a civil proceeding, right? Nothing to do with the criminal law, but a civil proceeding where someone can file a petition in the family division of the Superior Court, and if the court makes a finding, the person is a danger to themselves or others as a result of a mental illness, and that person can be committed to the Department of Mental Health. That could be for hospitalization, an order of hospitalization, or an order of non hospitalization, sometimes called an L and H. So that's one route, the civil route, nothing to do with the criminal justice system, and therefore not a forensic procedure. The word forensic means it's related to the criminal justice system. So route number two is how that person could get there is through a criminal proceeding. So a person might be found not guilty of every reason of insanity of a crime or incompetent to stand trial because of a crime with respect to the crime. In that situation, the criminal court has to have a hearing to determine the same thing that I just described in the family decision. They're making the same decision. Is that person a danger to themselves or others as a result of the mental illness? And if the court says, yes, they are, court finds that, then that person also goes to the Department of Mental Health for custody and treatment. So they're routed to DMH. That's a forensic proceeding being routed that way. So keeping that in mind for background, what does S-one 193 propose to do? S-one 93 proposes to take some of those people, not all of them, but some of those people that may be routed to the Department of Mental Health through the Criminal Division, as well as some other people who don't qualify, who are still coming through the Criminal Division and have them go to Department of Corrections for treatment in the forensic facility instead of the Department of Health. That makes sense? The big picture. Those folks go to DMH. That's what they'd be in their custom proposals that some of them and some other group that isn't necessarily covered by the current law, instead of going that route, goes a different route to this forensic facility that would be operated by the Department of Corrections, not the department. That's the big picture.

[Sen. Wendy Harrison (Chair)]: So I have a question, we used to have a forensic facility, right? Or years ago.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I don't recall. I know there was, you might call it that, I mean, was the Watergate Hospital, where some folks were housed. Know there, in fact, there was a mental health corp in the hospital itself where some of these proceedings actually took place. Think, I just remember speaking to Judge Emporter about it, think she sat there sometime.

[Sen. Wendy Harrison (Chair)]: Well, guess did the categories of people that you referenced, did they go into I this place, the

[Eric Fitzpatrick (Office of Legislative Counsel)]: think some of did.

[Sen. Wendy Harrison (Chair)]: Okay, but not necessarily all of

[Eric Fitzpatrick (Office of Legislative Counsel)]: them. Right.

[Sen. Wendy Harrison (Chair)]: Okay. And you have a list of what those individuals did, or maybe that's, I mean, obviously some of that is the bill.

[Eric Fitzpatrick (Office of Legislative Counsel)]: You mean sort of a description of what Yes. We're talking exactly. Okay.

[Sen. Wendy Harrison (Chair)]: Thank you.

[Eric Fitzpatrick (Office of Legislative Counsel)]: So that's the big picture. Then, so I suppose the next question would be, okay, who is this slice of people that currently might be going to DMH or perhaps not going to CUTC anywhere, who instead is being routed to this newly created facility. When I say facility, I don't necessarily mean a building, a new building that deconstructed. It's just a term that's being used for how to be housed. It's up to, you know, think that we hear from the witnesses about where that would actually happen and under what circumstances, but that's the term that's being used for purposes of where they would be located, forensic facility. So, there'll be two groups of people, same two that I mentioned in criminal proceedings terms, could be somebody who's found incompetent to stand trial, could be somebody who's found not guilty by reason of incentive. As I mentioned, currently, in order for those folks to go to DMH, it has to be as a result of a mental illness, generally speaking. So that leaves another universe of people who might be incompetent or not guilty by reason of insanity for some reason other than that. Maybe it's substance abuse, maybe it's traumatic brain injury, something of that nature that could result in the same finding. So those folks don't go to DMH currently, they would go to the forensic facility now if they met the other criteria. So look at page one for a quick, so you can see what are these criteria? Who might be directed to go to this newly created forensic facility? Now, the one we're talking about right now, there's two groups of people I just mentioned that incompetent stand trial, not going be very insanity. What we're looking at first here is the competency issue. That's on page one. So you've four criteria right there. We'll start at number four because that's the one I already mentioned. So these are, see that found out, not competent to stand trial, number four, page one. So that's the group we're talking about. What other criteria would they have to meet in order to be sent to the forensic facility? So we'll go back up to number one. So first of all, there has to be a life sentence, a maximum, a life sentence max. So in other words, it's not just anybody who is found incompetent, it's the same criteria you'll see later on for not guilty by reason the sentence, only very serious offenses. I think there's in the neighborhood of 16 or 17 offenses in Vermont total out of all the hundreds in the criminal code, upwards of 700 total, that would be someone who could go to this facility because it's only lifetime tax defendants, para serious offenses. So that's criteria number one. Number two, they are being held without bail, or if they are not being held without bail, their release would create a substantial risk of bodily injury to another person, so again, to narrow this to very serious offenses. And lastly, three, not currently receiving treatment through an order of hospitalization. So that refers to what I mentioned, that there is this universe of people who under the current law, they have to go through this hearing, say they're in the criminal court, there's a question about court fines that they're either incompetent or guilty of a reason with Sandy, they have to have this hearing to decide whether or not they're going to be committing DMH. And if they do do that, they commit the person to DMH because they're a danger to themselves or others, then they don't. They don't qualify for the forensic facility. So if they go that route, they don't go this way. That's the setup.

[Sen. Wendy Harrison (Chair)]: Okay, so I have a couple of questions there. So there's an and, so it's all of these conditions, all four of the conditions have

[Eric Fitzpatrick (Office of Legislative Counsel)]: to Yes, address, yep.

[Sen. Wendy Harrison (Chair)]: And then it says has been charged with an offense, so they might not be guilty, but they're not able to be, go through the process. Right. But once they are, if they are found guilty, that still counts as has been charged, right?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes, although it's a little bit different because we are only talking about competency here. So, they will not be found guilty if they are not competent to stand trial. Whether someone is competent to stand trial is this threshold issue and if they are not competent, then they can't be tried. So, that what you are describing will be the case for the not guilty by reason of insanity folks that we haven't gotten to yet. Those people are post conviction, there's been a conviction already, or I should say at least a finding after the guilty determination. In this case, once, you know, whether the court notices it, defense counsel notices it, prosecution notices it, any one of those people can raise the issue of the defendant's competency to stand trial. And if the defendant's not competent, they don't stand trial. So that's why it says has been charged with it because there won't be a conviction if the person's encountered it. There can be.

[Sen. Wendy Harrison (Chair)]: Okay, that makes sense. So then, it was said that there were about six people of this category already in the prisons?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I have heard that in Senate Judiciary testimony, I don't have any personal knowledge of that. You'd have to check your witnesses, I think. Okay.

[Sen. Wendy Harrison (Chair)]: Any other questions? Okay,

[Eric Fitzpatrick (Office of Legislative Counsel)]: so. Alright, so that's how they get in through this group. Next page, now what happens when they get there? That's the next question, right? Well, first of all, over on page two you see the fact that the person ends up there, it's in this universe of people that are in the facility, doesn't mean that their status isn't reviewed going forward. You see, they are reviewed on a regular basis. If you look at page two, line three, for example, every six months, there's going to be a re evaluation of whether or a person's confidence stays in front of them. That's because, at least in the competency universe, competency is a fluid concept. It can be restored. A person can be confident at one time, not confident at another. And the entire structure of this facility with respect to people who were down in Compton is what's known as competency restoration. So you'll see that what happens in the facility, competency restoration services have to be provided the whole time the person's there. And they stay there until their competency is restored, or until they're they have been found they've had their competency restored, but they're not a danger to anybody anymore. But Oh, sure, yes. Thank you,

[Sen. John Benson (Member)]: Madam Chair. Okay. And I know this is legalese, the competency part of it. Yeah. So how would we know if a person is competent at

[Sen. Russ Ingalls (Member)]: the

[Sen. John Benson (Member)]: time of the offense as opposed to competent confident at the time of reevaluation? These are two completely different things now that we're talking about.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Right. It would be an evaluation by the critical services director of the forensic facility, or you'll see later on, the persons who are in facility and are subject to these proceedings have counsel appointed by the modelling lady.

[Sen. John Benson (Member)]: But I And think I'm sorry, I just the how could they go back in time and

[Eric Fitzpatrick (Office of Legislative Counsel)]: Their competency at the time of the offenses is not rogue. Okay. Competency only has to do with your state of mind at the time of trial. And the issue is whether or not you are able to understand the nature of the charges against you and participate meaningfully in your own defense. Okay. That's it. It doesn't have anything to do, it's interesting, the issue of competency is distinct from the issue your sanity at the time of the offense, and that is in the second portion of the bill, if you're right, then your mental state at the time of the offense doesn't change over time. It was what it was, That's not going

[Karen Barber (General Counsel, Department of Mental Health)]: to change.

[Eric Fitzpatrick (Office of Legislative Counsel)]: And that's why the insanity defense is a complete defense. It's not something that will change. If you're not guilty by recent insanity, that's never going to change in the future. You may still be subject to the presentness of it, but that fire isn't going to be for that universe of people, you won't have competency restoration services. You'll see in the language it's different. They're treated, but there's no attempt to restore competency because, A, that wasn't the issue, and B, you can't go back in time to change whatever your mental state was back then.

[Sen. John Benson (Member)]: And you just said something that, you said treated, so they're continuously getting treatment through the time, and that's why they're in this facility.

[Eric Fitzpatrick (Office of Legislative Counsel)]: That have my I think that's the idea. Okay. Yeah. We'll leave it.

[Sen. Russ Ingalls (Member)]: Now I'm jump ahead of what you're gonna tell us. It sounds like this person's gonna stay indefinitely in this facility. I don't know why. I don't know how they can, but it says the person shall remain at the forensic facility until the person is restored to competency, or there is a final disposition of the charges against the first. It sounds like this person could be there a long time. It's possible. Yep, it's possible. I don't know if that is the type of place where we would want this person to be, in my own personal opinion, because I just believe that there's probably more of a need of a transition for this to happen. I don't know. I guess I would have to see more about how the treatment places would go. I can't believe that there's not a better place to treat people other than a forensic facility where you are trying to restore them to competency where there might be a time where you say, Well, you know what? This is going take a while. We're going to transition over here. I think that those places already exist, but maybe a while.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah, think you're gonna have other witnesses who know a lot more about that than I will, as far as what the other medical therapeutic options are and those sorts of things.

[Sen. Wendy Harrison (Chair)]: Okay.

[Sen. John Benson (Member)]: And and that testing or determinant happens every six months.

[Eric Fitzpatrick (Office of Legislative Counsel)]: At

[Sen. John Benson (Member)]: least. At least every six months. Yeah. And and what is the direction? I mean, from a novice or someone what will be the threshold to the they are competent or they aren't competent? What is that means?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think the question is going to be whether or not and it's an automatic thing. Like I said, every six months, it's automatic, but as well, if the clinical services director at the facility on the basis of the ongoing treatment determines that the person may be restored to competency, they can initiate that proceeding in the court sooner than six months. That's one

[Sen. John Benson (Member)]: of So that's standard Ingalls point, this may happen thirty years in the future.

[Sen. Russ Ingalls (Member)]: I guess I'm going ask a question to Rob if you want to answer. What's the statute of limitations on a serious crime? Most of these life offenses, there is no statute. Okay, so this person could be more Yeah, or

[Sen. Robert Plunkett (Vice Chair)]: neither life offenses are murderers, rapists, particularly.

[Sen. Russ Ingalls (Member)]: Yeah, and I don't think that this is a facility that you only hold these people for life, one of the other places you can already hold them for life. But I do understand that even here there's nowhere else. Well, I understand that. No, but I understand that as well, so I do believe in the need for sure. Really do. Okay.

[Sen. Wendy Harrison (Chair)]: All right. Thank you.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Okay. Proceed. Yeah. So we were talking about how a person will get evaluated periodically. One of the person may be restored to competency at all. There are some folks who might clinically be determined that their competency is not going to be restored. And if that's the case, then what the bill lays out is that the court will keep the person committed and continuing to receive treatment unless the court finds this is brought on page two over on to page three. The court could find, I mentioned this, that well, even though they might not be restored to competency, still their release isn't going to create a risk of harm to anybody. So that person could still be released into the community with conditions and those conditions are described on page two, page three, medical, psychiatric, psychological therapy treatment, prescribed regimens, that sort of thing. So they would have these conditions, again, that sort of fit in that criteria of not causing potential substantial risk of harm to anybody if they're released. But if that's the case, even if their competency isn't going to be restored, they might still be released subject to these conditions. So, that brings us over to page three. A couple of other points that I sort of mentioned already with respect to the person at the forensic facility, you see subsection C, page three. They remain there until they are either restored to competency, you mentioned this earlier, Mr. Henry Ingalls, either they restore or there's a final disposition of the criminal charges. So either at some point in time someone's going to find the person's competent, or if not, and the charges are still ongoing, then they could remain there.

[Sen. Wendy Harrison (Chair)]: Well, they must remain there, right?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Sorry, they must remain there. Well, I'm sorry, go ahead.

[Sen. Robert Plunkett (Vice Chair)]: They actually haven't gone to tribe. Correct. So if they are found to be competent at some point in the future in order for them to remain in a incarcerated facility would they have to go trials and then that kick in and determine whether this individual is even guilty of the charge that was brought?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think if their competency is restored, yes, there is the option for the state's attorney and the prosecution to then put the person on trial in the criminal division for the original underlying criminal charge. And so the only reason the only way they might stay in the facility is if they don't have to become competent.

[Sen. John Benson (Member)]: And Yes. And Okay. There was a sub session that I think you just talked about that they found that they will, in essence, would never become found for them. It's a possibility. And then released into the basically released. But if I'm not mistaken, these are incredibly serious crimes that they've committed all of it.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes. But in order to qualify for the release, they would have to have been a separate determination that they wouldn't be that wouldn't cause a risk of danger. But that's over on page two. The lines eighteen and nineteen. Okay.

[Sen. John Benson (Member)]: So these That's and that is obviously by the the mental health professional Yeah. Exactly. Would determine that.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yep.

[Sen. John Benson (Member)]: And I I find that interesting that they can look into the future and

[Eric Fitzpatrick (Office of Legislative Counsel)]: Mhmm.

[Sen. John Benson (Member)]: Find persons will or will not

[Sen. Robert Plunkett (Vice Chair)]: commit another offense. The court needs to determine

[Eric Fitzpatrick (Office of Legislative Counsel)]: actually. Right? They get an opinion from the psychologist or clinical treating person, lawyers.

[Sen. Robert Plunkett (Vice Chair)]: That's what the procedure is.

[Dr. John Lipman (Medical Staff, Southern State Correctional Facility)]: Can we predict? Somebody

[Sen. Wendy Harrison (Chair)]: had, there's some decisions

[Eric Fitzpatrick (Office of Legislative Counsel)]: No, I know, I'm dismissed.

[Sen. John Benson (Member)]: Yeah. Okay.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah, back to page three, subsection D, just those, that first sentence there is an important Person shall receive competency restoration services while facility according to a plan approved by forensic facilities clinical services director. So while they're there, they're going to get restoration services under this plan approved by the directors. That's going be ongoing for them there. Bottom page three, I just mentioned this, that his restoration And I'm sorry.

[Sen. John Benson (Member)]: Go ahead. It just clicked with something. This judge would, in actuality, the report that he gets from the mental health professional if this would determine whether or the release of that. Is that what you're saying? Probably more evidence in the past from

[Sen. Robert Plunkett (Vice Chair)]: a report than the medical professional, but yes. There would be a whole other hearing before he could. Gotcha.

[Eric Fitzpatrick (Office of Legislative Counsel)]: So if you look at the older assassin subdivision B, page two, lines seventeen ninety four, it'd

[Sen. Robert Plunkett (Vice Chair)]: be good for everybody to understand why is everybody turned to the Senate of Dunedin is because he's a prosecuting attorney. So that's why the questions have gone to him.

[Sen. Wendy Harrison (Chair)]: Thank you. That's very

[Sen. John Benson (Member)]: For the for the record.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Brother Penny For the record. He's not

[Sen. Russ Ingalls (Member)]: come here and shake this beer.

[Dr. John Lipman (Medical Staff, Southern State Correctional Facility)]: I need to start off by saying the usual, I'm not giving you legal advice.

[Eric Fitzpatrick (Office of Legislative Counsel)]: We're glad you're on this community.

[Sen. Wendy Harrison (Chair)]: Okay.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes. Very bottom, page three, these restoration services that we just talked about, they are given to the person at the facility or another location if they get discharged. So until they're either restored to competency or charges they're exposed to. Paid tours all about, okay, we talked about the situation where the person can be released, the court finds that doing so would cause a substantial risk of danger to anybody, even if they're not going be restored to competency in the future. What you see on page four is just laying out a process flow. If that happens, and then it becomes apparent to the commission that the person actually is not accommodative anymore, provides an expedited process for them to bring the person back to the facility. Still have to make a finding, mines 12 to 14, page four, the court has to hold a hearing and the state's attorney has the burden of establishing by clear and convincing evidence the person is not competent. It's not just the commissioner can say, well, we think maybe he's not competent and if that's what it is. No, they still have to bring it back in, then have a hearing, state's attorney has prove that they're not. If that's the case, then they get readmitted for more restoration services. I guess, the ethical people will talk to you about this, but competency is something that can come and go sometimes. That's why you have this track by someone who has been released, then doesn't remain confident, can be brought back in to next. That's the idea. Let's see. So now we'll go Oh, okay. This is a little bit out of my expertise, but I'll point it out to you. So this is bottom of page four, over on the top page five, has to do with the issue for involuntary medication. And this just, tracks that there's a US Supreme Court decision about under what circumstances voluntary medication can be provided. And this basically tracks that decision, saying those standards have to be matched before that can be part of somebody's treatment plan. That's the gist. And that takes us to the end of that group. Remember I said there's two tracks of how a person gets there. There's the incompetency track, there's not guilty of everything that's handy. That's the end of the incompetency piece of it, first half. There's a little sort of intervening piece on page five, it's a little bit related to what I just said, but also distinct. This is, I'll mention it briefly, but it's a separate issue, which is basically saying that if a person is found incompetent to stay in charge, and the case against that person remains inactive for a long period of time, and in this specifically, the period of time is the maximum length of time for the criminal offense that the person is charged with. If that's the case, then the court can dismiss it. So in a way, it's a method to kind of clear up some of the judicial backlog, Sometimes some of these cases, particularly if you, you know, you, for example, someone's could be found incompetent to stay at trial for very minor events, and rather than having them, that's never going to go anywhere, the court case has been sitting around for a long time, just provides the court with the ability to dismiss those cases. So it's kind of a separate issue, somewhat related in the sense that, because it's dealing with the competency issue, but not for the permitting facilities.

[Sen. Wendy Harrison (Chair)]: Right, and this is a misdemeanor, so

[Eric Fitzpatrick (Office of Legislative Counsel)]: that wouldn't be something that would be Yes, exactly, misdemeanor is Alright, so that brings us to group number two, and this is over on page six now, of people who could end up in the forensic facility. And you see these folks are people who have been found not guilty by reason of insanity. So this is talking about a person's mental state at the time of the offense, not at the time of the trial. And the insanity defense at the time of the offense means that the person either couldn't understand that their conduct was criminal or they couldn't conform their conduct to the requirements of law. So even if they did understand those criminals, somehow they were unable to act in a lawful way. So either one of those possibilities for supporting that. Insanity defense, and if a person is found not guilty by reason of insanity, and this is line six, page six, of an offense punishable by a life sentence, so again, it's a very narrow group of offenses, serious offenses, then that person goes to the forensic facility pursuant to the section. So in this case, there aren't any other criteria other than that. So if you were found not guilty of any of insanity of an offense punishable by a life sentence, then you go to the facility. And again, in this case, it's not going be any competency restoration process because it's not a competency issue. It's all to

[Sen. John Benson (Member)]: do with your mind, your mental state has already got the truck. Yeah. And so, and it so the six months is out, they don't they don't get, because there's no competency at that point.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Right, although there is still an opportunity for the person to, the petition to have their mental health status reviewed because it could be that they might no longer present a danger to somebody, so there is an opportunity to have the court review that. They might not necessarily stay there for, they can ask the court to review it. There's the same process that I mentioned earlier where the clinical services director, so they become aware that the person no longer has a condition that would cause substantial risk of injury to people in the community, they also have to go to the court and say, we think they could change from this person to go.

[Sen. Wendy Harrison (Chair)]: So this is new language?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yep, What

[Sen. Wendy Harrison (Chair)]: was the language or what is the current language?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, is no graphic facility currently at all. So the only current sort of structure is the one I described in the very beginning, which is that if a person is found not guilty by reason of insanity, the criminal court has to have a hearing to determine whether or not the person is a danger. That's the current structure. Okay. Thank you. Yeah. But this proposal provides a different adamant, so to speak, for some of those folks, not all of them, because it has to be a life sentence for one thing. The yeah. Well, I guess primary criteria for the for the NGRI people. NGRI is not really for reasons Sandy, FYI. For those of you who didn't know. But it sounds that's a nice acronym because it saves a lot of verbiage. So what happens when that person then goes to the facility? You'll see a subsection B-fifty six. In this case, there has to be a hearing right away within the first forty days. And at that hearing is when there could be a forensic risk assessment, there has to be an actuary, a forensic risk assessment provided to the court at that hearing. And then, that's where you go around to page seven now, that's where the court makes the decision about whether the person is going to be committed to the facility. And what happens is the state's attorney, this is line four, page seven, the state's attorney has the burden of establishing by clear and convincing evidence that the person is suffering from a qualifying condition that upon the person's release would create a substantial risk of bodily injury to another person. So in other words, data has to show, with evidence, that the person has a qualifying condition, that's one part of it. The other part is this qualifying condition, if the person is released, there will be a substantial risk of bodily injury to somebody. So the obvious question is, well, what's a qualifying condition? That's what we would get to in a second, but just so relevant. On page 10, lines 18 to 20, any condition, whether mental, congenital or traumatic, however acquired or developed, or any other circumstance that resulted in the person being determined and competent to stand trial for an activity by recent exam. So you see it's broader than mental illness. That's one of the primary differences between the proposal and the current law. Current law, it's the universe of folks that can go to or that are admitted to VMH, if they're found to be danger of themselves or others is on the basis of a mental illness. So this is broader than that. It could include other conditions. So that's another way that the proposal kind of expands the universe of people who might go to the forensic facility. Alright, so court has said that it's here within forty days. The state's attorney has to establish by current evidence, threshold question about the person having a qualifying condition, they could be dangerous. If they haven't, and this is page seven, line eight, the state's attorney has not established that, then the person gets released. So the court and state attorney has to establish. If not, the person gets released. Now there are conditions that could be attached to that, if that's the case. So, a little bit different than what you saw in the competency post, but important piece subsection C, placement of a person at the forensic facility shall be for an indeterminate period, and shall not have a specified entity. Now in this case, the person cannot be released until, this is that same language again, line 16 to 18, until they are no longer suffering from that condition that would cause this risk of bodily injury to somebody else. Now, again, as I mentioned earlier, the court is going to have to regularly review that question. It is not that they are there and then the court never looks again at the question of whether or not the person has this condition or is covengeance. The clinical services director has to let the court know that they ever think that the person doesn't have those criteria anymore. That's one way that the court will find out. Second way is that the person can file a petition every year to reevaluate their status. And if at any time, the basis of those conditions, court finds the person doesn't have the condition anymore, or the condition doesn't cause this dangerousness, then again, they can get released conditions. So, that's kind of the big picture. I know there's a lot of language there, but that is the essence of it. Is there anything else I'd wanna flag for you? There's a similar kind of process that I mentioned in the competency context over on page nine and top of page 10 where, sorry, page 89, where the person can release the person on the court and release the person on conditions. But then if they see that the person is violating their conditions, there's an expedited process to bring them back in again. That also exists here. Over on page 10, subsection G, the crime victims have a right to appear and express their views concerning person's placement. Page 10 also has the is where section four starts, which is the definition. So this kind of brings us to the point about Department of Corrections being the authority here. This is page 10, line 12. Forensic facility means a locked facility placement that the Department of Corrections provides for the security violation of truth of care of persons in the legal system, who we've been talking about. Qualifying condition, we just talked about clause on page 10. Page 11, line five subsection b, is the directive to the Commission of Corrections shall establish and operate a locked secure forensic facility for the secure evaluation, treatment, and care of persons who have been transferred pursuant to subsections 4815A and 4819A. Those are the two sections we just looked at, the incompetency and the NGRI. The last sentence of the headlines ten-twelve, all forensic clinical and competency restoration services provided at the facility shall be overseen by the clinical services director. Page 11 over on is really just talking about that the records are generally confidential. Records of treatment at the present facility are generally confidential. A couple of exceptions, the parties in the underlying criminal case can see them, and the person's other healthcare providers if the person consents. So if Yes, go ahead. Thank you. So,

[Sen. John Benson (Member)]: and I guess this is maybe Department of Brecken. Do we have the physical structures currently, or are they going to be put into a building or a facility that is already corrected?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I'm gonna defer to DOC on that. I think that I have your much better answer than I could get.

[Sen. Wendy Harrison (Chair)]: Yeah, well let's talk about that after we hear from the Department of Mental Health.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Okay, sorry.

[Sen. Wendy Harrison (Chair)]: Because no, that's a really good question, and that's actually a fundamental question of this bill. Well,

[Eric Fitzpatrick (Office of Legislative Counsel)]: we're just about done with the walkthrough. That was last page 12, just a couple of last points, and I already mentioned this, page 12, lines three and four. The people who are in the facility and are subject to these proceedings, the attorneys appointed by Vermont Legal Aid, see that's lines 12, lines three and four, page 12. Although the Commissioner of Corrections is the one who oversees this facility, Section E of Line 12 requires the Commissioner of Corrections to regularly consult with the Commissioner of Mental Health for purposes of the facility. Last couple of things that the EOC is required to adopt rules to implement this section, some of the rule making process, those will come back to the legislature through the administrative rules process. And lastly, in these competency restoration proceedings and related ones, which the last section, the rules of evidence trying to be doing fine. Any relevant testing.

[Sen. Wendy Harrison (Chair)]: Thank you, I just have one, I think I just have one, on page 11, permission to establish and operate a locked secure facility. Right. The forensic facility shall not refuse any persons it is ordered to admit and shall not require any clinical or diagnostic prerequisites for admission. Is that standard language? I haven't seen language like that.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think this is specific for this forensic facility. Okay. Yeah, I think that's Thanks for bearing with me. It's a lengthy bill. No, appreciate it. We appreciate it. Yeah, absolutely. Well, any other questions, let me know for sure.

[Sen. Wendy Harrison (Chair)]: Okay, thank you.

[Eric Fitzpatrick (Office of Legislative Counsel)]: You bet. Okay, so next we have Karen Barber.

[Karen Barber (General Counsel, Department of Mental Health)]: Thank you for being here. Yeah, thank you. Good afternoon. For the record, my name is Karen Butler, general counsel for the Department of Health. I've never been in front of your committee before, so thanks for having me. I've been general counsel of DMH since 2014, and I have been working on forensics in one form of another for about a decade. Wow. So even though this is not a mental health issue, this is a human services issue, I tend to be the person to testify just because I have the most knowledge out, but we have lots of people here from AHS to talk today. So I had some points, but in hearing your discussion, I wonder if I might back up a little bit because I think when you're talking about why corrections, it might be helpful to understand the DMH system a little bit to explain why it's not DMH. It's okay, I'll start. Please, yes, So, thank and I think it gets to your point about that language. So, the Department of Mental Health is a healthcare provider. Our job is to provide for the mental healthcare of Vermonters. We do that in multiple different ways. If someone is involuntarily in our custody, that means, as Erica said, that they have been found to be person in need of treatment, and that means that they've been found to be a danger to themselves or others due to mental illness. There are two ways that we treat folks who are involuntarily in our custody. One is through an order of hospitalization, and one is through an order of non hospitalization. An order of hospitalization is what it sounds like. It's they are involuntarily put in one of our hospitals on an inpatient unit. We have six of those throughout the state. We have a decentralized system. We had the Vermont State Hospital back before Tropical Storm Irene flooded it, and after that, the legislature decided to create a very different system. So we do have a state hospital, that's VPCH, so the Vermont Psychiatric Care Hospital in Berlin. And then we have various private hospitals throughout the state that also take folks, including Rutland Regional, Bradbury Treaty, UVM, Springfield, the Windham Center, and the Veterans Hospital. All of our hospitals in Vermont are C and S certified and Joint Commission accredited. So what does that mean? That means that in order to be admitted to one of our facilities, you have to have a mental illness that is acute enough that it requires hospitalization that there's no less restrictive alternative. And only an admitting physician can make that decision. So a court can say, I want someone to go to the hospital, but a hospital can say no. DMH also doesn't have the authority to place them in the hospital, even our own hospital, because again, you're also CMS certified and Joint Commission accredited, so only our physicians make that decision. That is why that language is in there, is because there is a desire often to have people go. Because to your point, our hospitals are the only secure facility other than DOC, and for a very small population, River Valley, which is our secure residential. But there aren't other secure facilities. So there is a desire often to put people, including people who are accused of committing the most serious crimes, into a law setting. Our system doesn't allow for that because of the way we are licensed and accredited. And so the idea behind this is to help fill that gap. If someone is in our custody but doesn't meet criteria to

[Eric Fitzpatrick (Office of Legislative Counsel)]: be in the hospital,

[Karen Barber (General Counsel, Department of Mental Health)]: they are under what's known as an order of non hospitalization. Those are community based orders. Other than the very small population at River Valley, those are folks that are just in the community. They're not in secure settings. It's not housing. And really, the idea behind an O and H is the black robe effect, right? Like a judge is telling you, you should do something, you may be more likely to do it. So, engage with treatment, take your medications, comply. Mental health treatment is not punishment. We do not punish people. The goal is to get people to engage so that they can be successful in the community. That is very different from a public safety, criminal justice perspective. They are not like conditions of release or probation. If you do not comply with your own age, you don't go to jail, and you don't go to the hospital. Only go to the hospital if you actually need to go to the hospital. And it's just like if anyone went to the ED with a stomach ache that said, I'd really like to go I think I'd feel a

[Sen. Wendy Harrison (Chair)]: lot better if I got to

[Eric Fitzpatrick (Office of Legislative Counsel)]: go in a hospital unit and

[Karen Barber (General Counsel, Department of Mental Health)]: the physician would say, No, we don't need it. It's the same with mental health. Just because someone has a mental health diagnosis doesn't mean they need to be in the hospital. It's a very high clinical bar. So that's kind of how we got to where we're at today. We also, even though we are not a parting of criminal cases, only just responsible for doing mutual competency evaluations. That's why we know a lot about competency evaluations. We have a contract with forensic psychiatrist who do these for them, they're not state employees. People are found incompetent for many reasons other than mental illness. Substance use, TBI, dementia, developmental disabilities, intellectual disabilities. All of those folks are not eligible for DNH services. And so, as Eric said, if someone is found unconfident or insane for reasons other than that, other than mental illness, they can't come into our custody. So there is no place for them to go. It's a large gap. We hear about it a lot. That's the gap we're trying to address here. Where do we put individuals that do not need to be in the hospital, but still have clinical needs and are a danger to public safety? And so that's really what we're trying to address here. So are you okay with the

[Sen. Wendy Harrison (Chair)]: questions as we go along? Absolutely. So, where are those people now?

[Karen Barber (General Counsel, Department of Mental Health)]: Hence, some are already in corrections. Some, because of the way our statutes are written, if you're found confident, can only remain

[Sen. Wendy Harrison (Chair)]: in corrections for so long, so then they're in the community. So how many of them are there? Who are the ones, what's the category of the ones that are in corrections now? I

[Karen Barber (General Counsel, Department of Mental Health)]: think when we invoked, we think we're talking about three to six people a year is about who we think. This is a very small population. It's very narrow, right? You need to have been accused of committing very serious crimes and help with that bail. So we're not talking about a large population. We're talking about the crimes that you hear a lot about and folks that aren't in our hospital system because they don't qualify to be in our system.

[Sen. Wendy Harrison (Chair)]: But then, so the people who are not in corrections or not in your system who are, who could be in corrections, what is the total, just an estimate of that amount? Because that's the gap, right? The people who are blind through the gap.

[Karen Barber (General Counsel, Department of Mental Health)]: Yeah, so the people who are in corrections can't remain in corrections, and so that's part of the problem. So, by statute, can only say, Corrections so long if you've been about incompetent. I think we have found judges that have been creative about how they choose, because there's a desire, if some of this remains a public safety concern, to not have them out in the community, and because we don't have any secure locations. So I don't have exact numbers in front of you, but those are the numbers related probably three to five years. There are certainly folks right now that are in corrections that would fall under this. The other thing we see, and part of why there's some language in there about if you become incompetent after a while, is we see people cycling. So people, we don't have a confidence restoration program in Vermont, and we're one of the only states without it. So if they are, say, even in the hospital, we're not working to restore their competency. It may be a result of treatment, it may not be. But sometimes we see people that are restored, that become incompetent again, and there's a cycle. So they're not going to trial because they're cycling through, so corrections, the community, the hospital, because they can never really get to the point where they're maintaining long enough to go to trial. So part of this too, is that we're trying to help stop that cycle. Guilty or innocent, people have a right to go to trial. It's one of our fundamental constitutional rights, is to be able to go and improve your innocence. And so we want to work to be able to

[Sen. Wendy Harrison (Chair)]: get people to do that. Go ahead. Just admit.

[Sen. Russ Ingalls (Member)]: So there's no facility now, correct? No. Okay, so I'm having like a moment here. Let's use softball thing up for Major to tell me later on. But I am I was with a group two years ago. It was, senator Kitchell. It was myself. It was chair Evans. It was It was Chair of Judiciary. And we identified a brand new building Essex that didn't have that, wasn't using eight beds. And we put this forensic facility together at that point in time. What building am I talking about? We were there. We did it. We had the money. We funded it. We had the building. We had the site. We had everything, and it was a forensic facility.

[Karen Barber (General Counsel, Department of Mental Health)]: So I wonder if what you're thinking of is River Valley, which is our secure residential that is on the side of the Old Woodside. So, when they raise Woodside, we put it there. River Valley is not a Brunswick facility. It is a mental health facility. It's licensed as a therapeutic community resident.

[Sen. Russ Ingalls (Member)]: This one's in there.

[Karen Barber (General Counsel, Department of Mental Health)]: I think it is though, and I'm saying that because there's been a lot of confusion about it. You're not the only one that has said, I thought we did that. And what happened was, two years ago, we spent almost all sessions talking about a friend like and we got very close. And at the end, it became very clear that it was not going to get through the house policy committees. And so what we did was say, We

[Sen. Russ Ingalls (Member)]: brought them in and we got

[Eric Fitzpatrick (Office of Legislative Counsel)]: them in. No. We're not gonna get them out.

[Karen Barber (General Counsel, Department of Mental Health)]: But what we could use, if you're still open to making some changes to statute, is we could have used the ability to do seclusion and restraint and voluntary medications at our secure residential, which is something we didn't have before. It's something we had asked for originally, when built the facility, and at that time, again, there was a policy disagreement in the policy committees, mostly on the House side, about whether or not it was okay for us to do those things, and so they weren't in there. So what happened was we spent most of the session talking about a forensic facility, and at the very last minute, we ended up not doing that. But we did make changes to a DNH only facility. And so we think that is where people get confused. It is not a forensic facility.

[Sen. Russ Ingalls (Member)]: It's No. I know I know exactly where you're

[Sen. Wendy Harrison (Chair)]: talking about. But that would happen.

[Sen. Russ Ingalls (Member)]: But we pounded out a deal, and we had the site. We had them. It was there. We actually we were there for two hours, three hours, and we were running people in and running people out. We had the funding. It was right at the last minute and we had it and it was done. And I just don't know what happened to that. It was a forensic facility, exactly what we're talking about right now. And I will keep updating and we'll find out, but I know.

[Sen. Wendy Harrison (Chair)]: So let me ask a follow-up question. So, so would the constraints that you referenced, would that have made it a forensic facility? Or able to be used as a forensic facility?

[Karen Barber (General Counsel, Department of Mental Health)]: So we never supported River Valley as a forensic facility. That was never an option that DMH had put on the table. If you attempted to do that,

[Sen. Wendy Harrison (Chair)]: we would lose all Medicaid funding for that facility. Because of what else goes on there? Is that the fact that Correct. We

[Karen Barber (General Counsel, Department of Mental Health)]: So the federal government will allow us to use Medicaid dollars for anything to do with criminal justice matters. Right now, the only people that vote in River Valley are folks that clinically meet that criteria. So they have mental needs that no longer need to be in a hospital, but their mental health needs are acute enough that they do need a 20 fourseven secure facility. So, it is licensed as a therapeutic community resident that has round the clock nursing and psychiatry coverage. And so we did make changes to it to allow us to take more acute folks, but those are only folks in our system.

[Sen. Wendy Harrison (Chair)]: Okay. Yes. And senator Major?

[Sen. John Benson (Member)]: You said there was a term that you can only keep these individuals. Do we know what that term

[Eric Fitzpatrick (Office of Legislative Counsel)]: is or is it dependent upon what courts say? In our facilities, DMH facilities?

[Sen. John Benson (Member)]: You were saying that there was a term, people who are mentally incompetent that they can

[Eric Fitzpatrick (Office of Legislative Counsel)]: you can only hold them for so long. Oh, in correction. Yes.

[Karen Barber (General Counsel, Department of Mental Health)]: Yeah. It's in statue. I forget that.

[Eric Fitzpatrick (Office of Legislative Counsel)]: What statue is that? That's the first I would hear you.

[Karen Barber (General Counsel, Department of Mental Health)]: I forget that we actually extended the timeline. Yeah.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. I don't think that exists.

[Karen Barber (General Counsel, Department of Mental Health)]: It does. Because we actually changed the timeline from fourteen to twenty one days. A

[Eric Fitzpatrick (Office of Legislative Counsel)]: couple I of know. Would absolutely

[Sen. Wendy Harrison (Chair)]: love to It's treat

[Karen Barber (General Counsel, Department of Mental Health)]: an issue with something that Vermonters and outlier on most states don't have that, but it is a real issue. Have I'm sure it's a title 13. Don't know off the

[Eric Fitzpatrick (Office of Legislative Counsel)]: top of my head. Don't know. The directions is twenty eighth. Oh. It's correct.

[Karen Barber (General Counsel, Department of Mental Health)]: I can't remember. I thought it was under the

[Sen. Robert Plunkett (Vice Chair)]: It's specifically about components.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Always. Yes. In

[Karen Barber (General Counsel, Department of Mental Health)]: our system, physicians make determinations. Okay. So, have to discharge someone as soon as they no longer meet the clinical criteria.

[Sen. John Benson (Member)]: So, there's not a specific time, but it's a determined. It's permanent.

[Karen Barber (General Counsel, Department of Mental Health)]: Yeah. Gotcha. But only in, again, only in the physician

[Eric Fitzpatrick (Office of Legislative Counsel)]: to make that determination. Okay. Thank you for convenience. Okay. Senator Paterson. You said earlier,

[Sen. Robert Plunkett (Vice Chair)]: it's been so clear. You don't operate any secure facilities. Is that what I heard you say?

[Karen Barber (General Counsel, Department of Mental Health)]: Yeah, we do. We only operate secure mental health facilities. The only, so-

[Steve Howard (Executive Director, Vermont State Employees’ Association)]: Oh, I

[Karen Barber (General Counsel, Department of Mental Health)]: see. In, so involuntary hospital units are locked. Okay. And River Valley is locked. All other facilities are open. So we have, so people in order of non hospitalization in the community could be living on their own. We have many residential programs that are staff secure, meaning they're staffed 20, but if someone attempted to leave the facility, they would not be stopped. Even our facilities, due to our licensing, if somehow someone was able to evoke from our facilities, we'd actually not stop them from leaving once they got past our property, we would have to call the police because of the limits of our license.

[Sen. Wendy Harrison (Chair)]: Okay. So

[Karen Barber (General Counsel, Department of Mental Health)]: all that to say. That is our system. Those are the gaps. So the gap is that one, not everyone who has a mental illness requires hospitalization and thus there is no secure location for them. And two, there are many people who are found incompetent for reasons other than mental illness and there is no location for So, that facility is for about ten years now. This is the narrowest we've ever tried. We've really heard a lot of the feedback about the concerns, and we've really tried to narrow it very, very, very narrow. So, it's really it's only people accused of the most serious offenses who are facing life substances. And there are, as Eric went through, there are ways that if they are no longer a public safety risk, that they can be discharged into the community with conditions. So, we do feel that this strikes a balance, it was for three of the priorities of the administration, which is protecting public safety, upholding the process, and ensuring people have access to appropriate treatment. So, we have done a lot of work, we had a forensic work group several years ago, we've looked at national, other national programs. We are not attempting to create some large forensic facility, but instead a really narrowly tailored facility focused on best practices, which is focusing on treatment and accountability and public safety. And so we really believe that this is an important thing for the legislature to move forward because it is a gap in our system. I think it also shows a cross agency approach. So even though it says DOC has to consult with DMH, we had asked for AHS, find whoever it says because it's all of AHS, and so AHS is going to be working together on this because it's not just DMH. It's also the Department of Health and their substance use program. It's the Department of Disabilities Aging and Independent Living, and so it's all of us working together to make sure that folks are getting the treatment needs met, but also we're able to really focus on safety. So, we strongly support this bill

[Eric Fitzpatrick (Office of Legislative Counsel)]: and use it

[Sen. Wendy Harrison (Chair)]: for Okay, other people as so I just have a couple of questions. So, the folks in corrections, they're there temporarily and people are saying three to six people, but that's three to six people per year. So, is it accurate to say that that would be the incoming folks? I'm just really trying to get a sense of how, what sort of facility, how, how many square feet? Yeah,

[Eric Fitzpatrick (Office of Legislative Counsel)]: so we How

[Sen. Wendy Harrison (Chair)]: many people would need to to get

[Karen Barber (General Counsel, Department of Mental Health)]: into it? We take yeah, three to five people a year, but remember, if you're coming in through the competency door, the idea is that you're restored to competency and then you go to trial and you're not in the that you're not remaining in the facility, that you're being restored and then you're going along your process. There are folks that are going to be unable to be restored, we know that. I think it's going to be a really small number. But again, there's an avenue in there that if they are not a danger to public safety, that they could be released on conditions. Same with folks that are found not guilty of our reason of insanity. So I don't think you're going to see every year building and building and building. I think the idea is that folks will be restored to competency and go on their way, and eventually folks will be able to be stepped down to lower levels of care. We still, you know, the goal of We always, you know, we're running the ADA, so our job is still to make sure that we're serving people in the least restrictive environment possible. And so that is the goal, and there's an understanding that for some folks there are real public safety risks and there does need to be a secure setting. It's hard to say exactly how many because we don't have a confidence restoration program, so don't we're not people aren't being restored, right? They're just kind of stuck in this cycle.

[Sen. Wendy Harrison (Chair)]: Right, but somewhere there's gotta be some estimate. I mean, I'm thinking like 10 to 30 people or something, but there's a, and there's an amount of space that you would need to have a place like this. And our prisons are overcrowded. You probably have

[Dr. John Lipman (Medical Staff, Southern State Correctional Facility)]: heard from,

[Sen. Wendy Harrison (Chair)]: I hope you've heard that. So, what kind of space needs are there and what would the space be like? I would think in addition to being secure, you'd want something restorative and not punitive.

[Karen Barber (General Counsel, Department of Mental Health)]: Yeah, so again, DMH wouldn't be running the facility, I can defer these to DOC, an agency as a whole has worked together to kind of consider these questions, but those are probably questions best left to DOC.

[Sen. Wendy Harrison (Chair)]: Right, but your area that you folks would be determining the type of care that would be?

[Karen Barber (General Counsel, Department of Mental Health)]: No. So again, this one isn't all about mental illness and so we don't provide services now in Corrections, that would be well path or whatever contractor they choose. So DOC, just like they do now, because they are providing mental health services in Corrections now, along with substance use and TBI and dementia. So they would continue to provide all those services through WellPath or whatever contractor they chose to do that.

[Sen. Wendy Harrison (Chair)]: Okay, so maybe, so can, what would the clinical director, is that the term?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah.

[Sen. Wendy Harrison (Chair)]: Wouldn't the clinical director be someone with your skills or somebody in your area of profession? It

[Karen Barber (General Counsel, Department of Mental Health)]: would be a clinician, best determined by DOC and WellPath as to what level of clinician would need to oversee that type of facility, whether it be a forensic psychiatrist, a forensic psychologist, whether it be some sort of other type of, you know, they have clinicians already now in corrections, again, doing this work. I think, again, they would also be best to talk about what type of clinician And

[Sen. Wendy Harrison (Chair)]: we can get them back in. So then, person the charged with an offense punishable by life sentence is found not guilty only by reason of his identity, those go to you now. That's what I heard.

[Karen Barber (General Counsel, Department of Mental Health)]: No, not necessarily. Or damage. No. So there's a path where they could. And so I think what Eric was trying to say is they could, but many of them don't, and that's the gap. So they can only come to us if they are a danger to self or others due to mental illness and they meet that criteria. Many of them don't. Frankly, we don't have a lot of folks that are found in NGRI because we don't have confidence restoration program. Most people don't get to trial. Usually there's issues of competency and sanity, and so we don't see them. The folks that we do see, sometimes they're on an order of non hospitalization in the community. It's very, very rare. I can't think of one off the

[Eric Fitzpatrick (Office of Legislative Counsel)]: top of my head in

[Karen Barber (General Counsel, Department of Mental Health)]: the last several years where someone who's been, they've had an MRI actually goes to the hospital because again, sanity is at the time of the events and by the time they either been found confident or got through the trial process, it could be years. And sanity also doesn't necessarily have to do with mental illness. So so maybe, but, but not, not often. I mean, that, again, that's the gap. Okay. Yes.

[Sen. Robert Plunkett (Vice Chair)]: I know trying to figure out or, or estimate how many people, I mean, that's sort of important to understand what you're trying to accomplish, but also the mix in terms of male female because we know we have real problems right now with the women's prison. So is this a gonna be a unisex facility we're talking about separated? How how does what's the vision here?

[Karen Barber (General Counsel, Department of Mental Health)]: I think that's a a question that's answered by DOC.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Okay.

[Sen. John Benson (Member)]: So you talked about best practices and other states that were doing, what are some of the other states that are, has something similar? Have they figured?

[Karen Barber (General Counsel, Department of Mental Health)]: Yeah, so I think when you look across, no state does it the exact same way, and many states, frankly, probably don't do it all that well. When we were looking at those practices, there's been a lot of work by the National Center for State Courts and one of the organizations that I'm blanking on. So they kind of looked across. We submitted a report on the forensic facility, I think actually two years ago, when we were doing that work, it kind of details all of those best practices and goes real in-depth on the data, about competency restoration, the different models. One of the bigger things they recommend is only limiting competency restoration to the most serious crimes where there is the most compelling state interest, which is what we're trying to do. And the other big thing they recommend is not focusing just on restoring somebody to competency in terms of do they understand that proceeding is against them, but also making sure you're meeting their clinical needs. So, in many other states, so competency is a legal term, it's not a clinical term, right? So it really has nothing to do with what your diagnosis might be. It's do you understand the charges against you? Can you work with your attorney? Do you understand what could happen? So in a lot of other states, they're just teaching those things. Right? Like how do you include your lawyer? And they'll go through it. The best practice, they say, is to is to also couple that with treatment. That makes sure whether it's substance use, whether it's a TBI, whether it is some sort of lower level mental health issue, that you're addressing their clinical needs, as well as making sure they understand the process so that they can really, one, best, you know, be able to go to trial and also the goal eventually is for everyone to be productive at risk of society, right? So how do you set them up for success? You make sure that they're getting their treatment to use meds. So those are the two things that we've really focused on.

[Sen. Wendy Harrison (Chair)]: So, if you can send us that report, that would be helpful. Yes, okay. Alright, I think that's all the questions I have for you, but thank you very much for being here. Again, it's been short notice. Really helpful.

[Karen Barber (General Counsel, Department of Mental Health)]: Now, Steve, Steve Howard. DMC is here if you wanted Yeah, didn't know if you, are you

[Sen. Wendy Harrison (Chair)]: I'm here to testify or I can answer some of the questions that are lingering

[Karen Barber (General Counsel, Department of Mental Health)]: for you.

[Sen. Wendy Harrison (Chair)]: Yeah, please. That would be great.

[Karen Barber (General Counsel, Department of Mental Health)]: Thank you. My name is Laurie Fisher.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Go ahead, Mr. Huckerman.

[Sen. Wendy Harrison (Chair)]: I'm sorry, I didn't I'm sorry, I'm sorry, dancing. 20?

[Sen. Russ Ingalls (Member)]: Yeah, I found it.

[Sen. Wendy Harrison (Chair)]: Okay, okay. Wanted to make sure It's it's called

[Sen. Russ Ingalls (Member)]: pending the hearing on whether they should be

[Dr. John Lipman (Medical Staff, Southern State Correctional Facility)]: put in DMR or not. It's called in, but I understand your,

[Sen. Robert Plunkett (Vice Chair)]: yeah, under interpretation of it. That's not. But anyways, yeah.

[Sen. Wendy Harrison (Chair)]: Okay. Okay. Yeah. So if you all, if you could stick around, that's great. Okay. Okay. Perfect. Okay. So Steve.

[Sen. Robert Plunkett (Vice Chair)]: Good afternoon.

[Sen. Wendy Harrison (Chair)]: Thank you for being here.

[Steve Howard (Executive Director, Vermont State Employees’ Association)]: You're welcome. I'm Steve Howard. I'm the executive director of the Vermont State Employees Association. Madam chair, on this issue, on the issue of forensic facility, the SCA has somewhat of a nuanced, well, it's it's clear. We have a clear position, but it's also nuanced because we represent frontline workers at the psychiatric care hospital and at Riverside, but we also represent the frontline workers in the Department of Corrections. So let me start. Let's see if I can do this. So BSEA has long supported a secure forensic facility. And the reason we have supported that is because our members at the psychiatric care hospital believe that there are folks in their care that are in an inappropriate setting and should be in a setting that is more conducive to security. Our members in the correctional facilities often, as you heard from previous testimony, are supervising offenders who are in a facility that they believe is also an inappropriate facility for them to be in. They believe they should be in a more hospital more therapeutic, more hospital like setting. The VSCA's position is, yes, build a forensic facility. It can be with the Department of Corrections, but don't build it in a correctional facility, and particularly don't build it at Southern State. Southern State is under tremendous amount of pressure, and you've heard my testimony in this committee before. Department of Corrections is teetering on the edge of a huge crisis, and we feel that it's not Southern State is not immune to that crisis. One interesting question that I would ask the Department of Corrections is how many times in the last year has the department or even the last six months has Southern state been in a lockdown or in a partial lockdown because they didn't have enough staff? You heard testimony from the commissioner that staffing is getting better and, oh, great, we've gone from like 30% to 15.5%, but that's overall staffing for the department, including central office and field offices. The question you really wanna ask the department is what's the number for c o ones? Because those are the folks who are our c o one, c o twos, their supervisors. Those are the folks who are actually in the facilities who have the offender or have the person that's the subject of this legislation right in front of them. And that's where we're in a serious crisis. And you saw that in the Supreme Court where repeatedly you you heard the folks at Southern State say that mandatory overtime is an issue, is a serious issue, 84% said it's a serious issue. Frequent turnover, also 84%. So that facility in particular has, I think, demonstrated through comprehensive research through that process that they are at the breaking point and adding additional pressure to that system would be inappropriate. Now that's not to say on behalf of our members at the psychiatric care hospital at Riverside that we shouldn't be building a secure forensic facility as we have long advocated, just not at that facility and potentially not at a prison. Could be supervised by the Department of Corrections. The one caveat I would say is from BSC's members' perspective, because we are so close to a serious breakdown in the Department of Corrections, losing a unit or losing a facility because we don't have staff, We believe strongly that we've advocated for this, that from the governor on down, this should be the only issue that the Department of Corrections is focused This is the issue that almost nobody is addressing in a way that our members believe it should be addressed with the kind of urgency that it requires from the top CEO of the state on down. That's not to say they're not trying and they're not doing good things, they are. But this is a gubernatorial level crisis that is not getting gubernatorial level attention.

[Sen. Russ Ingalls (Member)]: Okay, are we talking about a forensic facility or we just kind of crash every ten years? Because I'm not going to stay around in this.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well

[Sen. Russ Ingalls (Member)]: I just that's not.

[Sen. Wendy Harrison (Chair)]: I think it's just the the amount of the

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, I've heard enough.

[Sen. Russ Ingalls (Member)]: I really have. Alright. I have heard enough.

[Steve Howard (Executive Director, Vermont State Employees’ Association)]: So I appreciate the ability to give the testimony that the members that our members have asked us to give, particularly in Northern State, where they are also at a serious crisis, even worse than Southern State. And if Southern State had additional capacity, it would be to the benefit of Northern State to get relief from that facility. And I raise that issue only because if you're adding additional burdens to the department, you to add it in the context of the serious staffing crisis. And so that is, I think, an important testimony that people may not wanna hear, but it is the truth. And so we have to bring that forward in the context of the discussion you're having here today.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Okay, thank you.

[Sen. Wendy Harrison (Chair)]: I appreciate that. Anyone have questions? I was under the impression that thing when we were there about a month ago that things were starting just a tiny bit.

[Sen. Russ Ingalls (Member)]: You would never know that. You would never know whether it got better or not with this guy. You never No.

[Sen. Wendy Harrison (Chair)]: I was there myself.

[Sen. Russ Ingalls (Member)]: That's what I realized. Know. You would never know if it was ever good.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Okay.

[Sen. Russ Ingalls (Member)]: So so, madam chair, all

[Steve Howard (Executive Director, Vermont State Employees’ Association)]: I can report to you

[Sen. John Benson (Member)]: is what our members report to us. Yeah. Mhmm.

[Steve Howard (Executive Director, Vermont State Employees’ Association)]: One thing I'd also ask is how many times in the last year has the ever Ever Bright system been used where messages are sent out across the department saying Southern State is in serious need of staffing houses. Those are factual data. In fact, I think the SEA has presented a list of questions that we encourage the legislature to ask the department for data driven information that will tell you exactly what the truth is, which is consistent with my testimony and can be confirmed by our members at all the correctional facilities. Northern State being the most severe of all of the facilities right now suffering from a staffing crisis. Okay.

[Sen. Wendy Harrison (Chair)]: I understand. Thank you. Any questions? Alright. Thank you very much Thank you. For being Appreciate it. Okay. Ms. Fisher, do you Are you available? If want to, or you can come back another day.

[Laurie Fisher (General Counsel, Vermont Department of Corrections)]: No. No. That's fine. I I don't have anything prepared. I'm here. Well, just my colleague who's the expert on the community. She's typical to which is, like, womp womp after Mr. Howard has talked, Southern State, we currently take care of these folks. The GAP population that we're talking about, they're in our care and custody right now.

[Eric Fitzpatrick (Office of Legislative Counsel)]: And

[Laurie Fisher (General Counsel, Vermont Department of Corrections)]: we have very skilled staff that take care of them in conjunction with the folks at WellPath. Which unit are they? Either Alpha or Bravo unit at Southern Southern. That is primarily where. Because I don't know if you should actually testify on this or, well, some of this you can testify on it, but let's, so, okay, go ahead. So, when we're talking about facility, I'm just here to tell you that we're not asking for creation of anything new. It's what we're already doing and it's a very small population. We do believe, and I didn't check the numbers this morning in coming here, but it was six on the last count that would fit this criteria currently, And they have come in over a series of years, so when you talk about, I wouldn't anticipate that would be six yearly, but over a period of time, probably averaging

[Eric Fitzpatrick (Office of Legislative Counsel)]: one to two.

[Laurie Fisher (General Counsel, Vermont Department of Corrections)]: So, are they getting the level of care that's anticipated in this legislation? They get a medical standard of care, there's no competency restoration, or not competency restoration, but this has requirements on how they're cared for. Well, the Department of Corrections, often we're critiqued, but we receive orders on what we're supposed to do with individuals and we're supposed to work in conjunction with the MH. We get myths from the court on how people are supposed to, what their conditions are, how we care and treat for them and supervise them, what programming they require. And so this would be along the same lines as to what the determination was. If we knew what the competency was, we certainly have the restoration people in place, is, I understand WALTAP has been, if operate forensic facilities around the country in this manner, they're already doing this in other places. They can better speak to what that looks like from a clinical point of view, but we're accustomed to taking orders and moving forward. Okay, that's helpful. So we will get WellPath in. Do you have physical space for additional people? Well, mean, the classification of individuals and how they move in and out of our system varies obviously from day to day, depending on, so there are days that we're at a critical level in relation to the buildings and there's other days that we're well under what capacity it is. There's only been one lockdown at Southern States since I took over the general counsel role in the manner that Mr. Howard described, and that was since October. So there is improvement on staffing in the way that the administrator previously testified. So overall, we do what we need to do with what space we have and take care of the individuals. Our goal is to not have individuals. You hear a lot of testimony, I think, with people on what we call boats on the floor, sleeping on the floor. We try to avoid that. But this bill also allows us the free flow of individuals to move them around if that's ultimately what is ordered that they need for restoration. And there are no additional funding that I see. Maybe that's a future process. Don't know. Yeah, I think I think but, EHS, suggestion here is to first figure out that gap population and then determine what, it's similar to the STD stand up that we've done in relation to the accountability court is adding clinicians to provide the services that these individuals need for whatever reason they need it for. So you'll figure out what it's going to cost later. Is that what you're saying? Well, mean, it's difficult to determine exactly what we need for clinicians until the parameters of the program are laid out. I can just verify for you that we're, minus the restoration actual clinician piece, we're already taking

[Sen. Russ Ingalls (Member)]: care

[Laurie Fisher (General Counsel, Vermont Department of Corrections)]: of these folks and from a public safety perspective. Okay. Oh yes.

[Dr. John Lipman (Medical Staff, Southern State Correctional Facility)]: Just in terms of the rulemaking, which I assume will lay out a lot of the details of what we wanna answer right now, how long would you anticipate that rulemaking to take?

[Eric Fitzpatrick (Office of Legislative Counsel)]: You can ballpark it. Decades? No. Years?

[Laurie Fisher (General Counsel, Vermont Department of Corrections)]: No. I would say I would say would say within a year. We have a good start on that based on the initiatives that we've been asked to do lately. So we have a good framework for that and a good relationship with our clinicians on how to build that. And again, they have the, and I think you'll hear from Welltat, more details that I think will help you understand better than I can't speak to. But they have it all structured. They know what is needed and how to implement that, so we'll have a good head start through that.

[Eric Fitzpatrick (Office of Legislative Counsel)]: All right.

[Sen. Robert Plunkett (Vice Chair)]: I think you already had that same question and it talks about a timeframe in here by January 1, whether that gives you enough time to actually be ready for this change.

[Laurie Fisher (General Counsel, Vermont Department of Corrections)]: I believe so. I do. I believe so.

[Karen Barber (General Counsel, Department of Mental Health)]: A lot of the variables that

[Laurie Fisher (General Counsel, Vermont Department of Corrections)]: we can't answer are primarily based upon what the individual needs and what the expectation of restoration would be for them, so, but to get from here to that, I think we can do pretty quickly.

[Sen. Robert Plunkett (Vice Chair)]: It it would be, and I'm very interested to hear from, WellPath, and going back to senator Ingalls' question back in the beginning is, what does the facility really need to have to properly treat these people so that we're hopefully successful? And what I hear you saying, and I don't want to put words in your mouth, but that you're dealing with some of this already in the current prison setting, and so I'm just sitting back going, is the current prison setting the appropriate, you know, facility should or do we need to be looking at maybe not write off, but planning for some changes, maybe not all the way to a brand new facility, but a wing or something that is set up for the type of atmosphere they actually need to thrive.

[Laurie Fisher (General Counsel, Vermont Department of Corrections)]: That's those are many of the questions that we've been discussing and brainstorming on what that looks like and what the needs will be. I think if it's someone who needs supervision take their meds and keep them focused on that, as an example, that is something that I think our current system can handle in a way. If it's something more therapeutic that they need, I understand your concerns about allowing Cinderblock Prison to be a place to do that, that's fair. But I think that is something we can work for as we develop

[Eric Fitzpatrick (Office of Legislative Counsel)]: the system.

[Sen. Robert Plunkett (Vice Chair)]: Yes, just one follow-up on that. Sure. As you

[Eric Fitzpatrick (Office of Legislative Counsel)]: know, there

[Sen. Robert Plunkett (Vice Chair)]: is current planning going on for a new woman's presence, in light of some of this, I don't know what your conversations with BGS have been, we don't want to forget about this part in the overall planning.

[Laurie Fisher (General Counsel, Vermont Department of Corrections)]: I appreciate that, I appreciate that. I don't wanna overstep my lane here.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I'd love

[Laurie Fisher (General Counsel, Vermont Department of Corrections)]: to talk to you all day about the women's facility that we need desperately. But yeah, any conversations that I've been hard at have been global in relation to needs. It doesn't personally to me make sense that we would talk about a new facility without looking at the entire unified system and what their needs are,

[Eric Fitzpatrick (Office of Legislative Counsel)]: for sure.

[Laurie Fisher (General Counsel, Vermont Department of Corrections)]: So, have you had women folks of this category at the women's facility?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I believe we've had, we

[Laurie Fisher (General Counsel, Vermont Department of Corrections)]: had one, one individual that I'm aware of. Currently I don't, I don't believe that we have a female, but

[Eric Fitzpatrick (Office of Legislative Counsel)]: I have to, I'd have

[Laurie Fisher (General Counsel, Vermont Department of Corrections)]: to verify that, I'm sure. Okay, thank you. Alright, well, we'll definitely talk to DOC some more. So, thank

[Karen Barber (General Counsel, Department of Mental Health)]: you for being here. Thank you, appreciate the time.

[Sen. Wendy Harrison (Chair)]: So, Doctor. Lip, please come sit, but I want to be very clear. I'd like you to explain who you are and your background and who you speak for and who you don't speak for. Right. And then I want the committee to understand before we hear your testimony, okay?

[Dr. John Lipman (Medical Staff, Southern State Correctional Facility)]: Yes, my name is John Lipman. I am a physician and work in the medical staff at Southern State Correctional Facility. I am here essentially on my own behalf, partly at the request of Senator Harrison, and I am emphatically not pretending to represent well past Northern Department of Corrections. I'm really not authorized to do so, nor really I think am I qualified to do so. However, I do have a pretty close knowledge of what goes on on the ground in our, in the care of, the medical care of people at Southern State Correctional Facility. And I think what I've been hearing with this leads me to sort of ask the committee and challenge the committee with what the legislature's intent would be in monitoring the development of the facility that aspirationally has been described in this piece of legislation, but that just as we have just been hearing, there's a lot of details in bringing such a program about, and I'd be interested in the and the committee has probably talked about this quite a

[Sen. John Benson (Member)]: lot more than I have, but

[Dr. John Lipman (Medical Staff, Southern State Correctional Facility)]: I, and people like me who work in that setting will certainly want to have a sense of what the aspirations are and what's developing to make this program work in a facility that is stressed in its own place. We do some things quite well, but, and by the way, I enjoy my work there.

[Sen. Wendy Harrison (Chair)]: Thank you for your work there. So just because of all the different roles that you play, think this is very helpful. Does the committee want to hear more or do you want to, I would like to have you here when we're talking about the resident general,

[Sen. John Benson (Member)]: but

[Sen. Wendy Harrison (Chair)]: that's not this. But it is helpful to know and to just clarify that it is under stress, that facility is already in a challenging place. It isn't as if there's a nice big space that's vacant, for example.

[Dr. John Lipman (Medical Staff, Southern State Correctional Facility)]: Right. There are, I might comment there, there are, as was briefly mentioned, three places within the facility where probably people would be entitled to fell into that category. The so called Bravo unit, it's a living unit for people with mental health needs. Alpha is a more restricted, isolated living unit for people with more acute mental health needs. And some of the folks who fall into this category end up staying in the infirmary because they need closely supervised nursing care. And the infirmary has only nine beds, it has to serve lots of purposes. I spend more of a bit of time in that.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Okay. So

[Sen. Wendy Harrison (Chair)]: I think this is good. This is helpful. And I know where to find you.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Thank you for inviting me to

[Dr. John Lipman (Medical Staff, Southern State Correctional Facility)]: be part of today's discussion.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Thank you for being here.

[Karen Barber (General Counsel, Department of Mental Health)]: All right.

[Sen. Wendy Harrison (Chair)]: So, I would like to continue this conversation at another time. Still would like an estimate of the number

[Eric Fitzpatrick (Office of Legislative Counsel)]: of

[Sen. Wendy Harrison (Chair)]: folks the facility would need to be able to be there and get services. And there was, I suspect there was some sort of square footage number when you were looking at the forensic facility before.

[Sen. Russ Ingalls (Member)]: I sent you some information.

[Sen. Wendy Harrison (Chair)]: Oh, good. Okay, thank you. And just the cost of the restoration services, cost of clinical director, and if DOC is the right agency to ask, the right department to ask, we'll definitely get DOC in. So, those are some of the questions that I have. And then I still feel like we haven't had a good complete answer on where are they now because I think some folks are in custody in

[Dr. John Lipman (Medical Staff, Southern State Correctional Facility)]: hospitals. So

[Sen. Wendy Harrison (Chair)]: I'd like to just know more about that.

[Karen Barber (General Counsel, Department of Mental Health)]: So if they're in the hospital, they wouldn't qualify for that. But this specifically is not for folks that are in the hospital. That's the idea, is that it's for everyone who's not in the hospital.

[Sen. Wendy Harrison (Chair)]: Yeah, let me, there's some specific people that I know of, so I don't wanna ask that on camera, so we can provide that. Okay.

[Sen. Robert Plunkett (Vice Chair)]: I do have one question,

[Dr. John Lipman (Medical Staff, Southern State Correctional Facility)]: to actually clarify it, and I I know the answer to this, but this does not replace the current system. The current system stays as it is.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes.

[Dr. John Lipman (Medical Staff, Southern State Correctional Facility)]: And if someone fits into the current system, they go Absolutely. Into that current

[Karen Barber (General Counsel, Department of Mental Health)]: Yep. The idea is not in any way to replace that. If someone needs to be in

[Sen. Wendy Harrison (Chair)]: the hospital, they should absolutely be in the hospital. Right, and that was my understanding, is my understanding.

[Karen Barber (General Counsel, Department of Mental Health)]: Okay. Okay. Well,

[Sen. Wendy Harrison (Chair)]: I think this is good for today. We're good. Ready to adjourn. Okay, we are adjourned. And it's just