Health Judiciary hears update on forensic facility proposals and competency restoration study

The Health Judiciary committee heard a briefing on the status of proposals for a forensic facility and related competency-restoration work, including statutory changes that expand authorities for secure residential recovery facilities and a request for a fiscal study of competency restoration programs.

Legislative counsel summarized the multi-year history of proposals to create a forensic facility, saying the idea first surfaced in 2023 as part of Act 27 and again in 2024; those efforts prompted work groups and statutory changes but did not produce a stand-alone forensic facility. "The secure residential recovery facility can take someone even if they were not stepping down from a hospital level setting," legislative counsel said, describing changes that were enacted last year.

The update matters because lawmakers and providers are trying to reconcile three objectives: ensuring people under the custody of the commissioner of the Department of Mental Health (DMH) receive clinically appropriate care, addressing public-safety concerns for justice-involved individuals, and staying within licensing and Medicaid rules that require services be provided in the least-restrictive setting.

Legislative counsel traced the bill history: the 2023 proposal (referred to as Act 27 in briefing materials) included a forensic facility concept. Committees instead created a work group to examine whether people with intellectual disabilities should be placed in a forensic facility; that group broadly recommended against co-locating people whose primary diagnosis is intellectual disability with other forensic patients. Subsequent 2024 legislation that began as a forensic-facility bill was amended to broaden civil-commitment procedures and to allow secure residential recovery facilities and newly authorized psychiatric residential treatment facilities for youth to perform certain involuntary procedures and court-ordered medication that had previously been limited to hospital settings.

Karen Barber, general counsel for the Department of Mental Health, told the committee, "We do wanna be clear that River Valley is not a forensic facility. It is not a forensic facility by another name. It is not intended to be be a forensic facility at all." Barber said River Valley serves people based on clinical need and that DMH's licensing, Medicaid funding, and the Americans with Disabilities Act inform who may be served there. She added that River Valley has previously served people coming from criminal-justice pathways as well as from civil involuntary procedures when clinical need required a locked setting.

Barber and legislative counsel both emphasized a central operational distinction: a traditional forensic facility model contemplated holding some people longer on public-safety grounds beyond the clinical thresholds that govern Medicaid-funded, licensed therapeutic-community residences. That distinction—largely about funding streams, licensure and how long a person may be held in a locked setting—was a primary reason the legislature and agencies debated whether to create a separate forensic facility.

Committee members also heard that statutory changes passed last year permit secure residential recovery facilities to use emergency and involuntary procedures (EIPs), seclusion and restraint (including chemical restraint), and court-ordered medication in some cases, subject to licensing and rule changes. Barber said River Valley has not yet implemented those statutory authorities because two regulatory rules must be updated, staff require training, and a seclusion room needs to be rebuilt; she said those implementation steps are anticipated "maybe this summer." She also said DMH is using those added tools to serve more individuals with high clinical needs.

On competency restoration, the committee was told Vermont does not currently operate a competency restoration program; other states do. Legislative counsel said a fiscal assessment was requested to examine how a competency restoration program might be structured (residential or nonresidential) and what it would cost. Earlier reports cited in the briefing suggested restoration programs are more effective at regaining competency for people with mental illness than for people with intellectual disability, and the path for people with intellectual disability is typically longer and more complex.

The briefing also covered the state's process for court-ordered medication. Barber described Vermont's approach as relatively uncommon: ordering involuntary medication typically requires additional court steps beyond civil commitment, and judges may make medication orders after considering clinical recommendations and advocates' positions. That process, plus statutory timelines, leads some stakeholders to argue medication is too slow to obtain in certain cases; others argue the judicial step is an important protection. For people arriving from the criminal-justice system, Barber said the department sometimes initiates a civil hospitalization process so a medication order can be pursued.

The committee was told one new psychiatric residential treatment facility for youth is anticipated to open in a unit at the Brattleboro Retreat; that project is in a certificate-of-need stage. Legislative counsel also noted that the 2023 act anticipated annual reporting on a forensic facility (average daily census, wait lists and related data) even though no forensic facility exists; the reporting provisions remain in statute and were flagged as candidates for cleanup in a miscellaneous bill.

No formal votes or motions were taken during the briefing. Committee members indicated interest in revisiting the broader questions—competency restoration, licensure distinctions, and whether DAIL (the Department of Disabilities, Aging and Independent Living) will propose alternate placements for people with intellectual disabilities—during future testimony, likely in the next legislative session.

Less-critical details: the briefing referenced Act 79 of 2012 (which originally required secure residential recovery capacity for step-down patients), Act 27 (2023), and subsequent 2024 amendments; DMH staff said implementation at River Valley remains pending rule changes, staff training and construction of a seclusion room.