A bill originally intended to codify admissions criteria at Vermont’s first psychiatric facility exclusively for patients committed by a criminal court underwent major revisions over the course of the legislative session. By the time S.192 passed in May, lawmakers and the Vermont Department of Mental Health had decided – for the time being – against establishing a so-called forensic facility at all, preferring to make changes instead at the existing River Valley Therapeutic Residence in Essex.

Last year, Act 27 declared that a nine-bed wing of the state-run Vermont Psychiatric Care Hospital in Berlin would become a locked “residence” for criminal defendants deemed incompetent to stand trial or adjudicated not guilty by reason of insanity. Unlike other states, Vermont has always mixed such “forensic patients” with civilly committed involuntary patients in its psychiatric facilities. By segregating the former in a separate environment, legislators expected to satisfy a demand put forward by crime victim advocates, whose push to address public safety concerns in the mental health system had already scored several small legislative victories since 2021.

As introduced by Senators Ginny Lyons and Dick Sears, S.192 would have represented the culmination of their recent political advocacy. By carrying out the plan envisioned by Act 27, it would also have quietly sought to avert an impending loss of crucial federal funding for the Vermont Psychiatric Care Hospital, whose size will soon render it ineligible for support from the Centers for Medicare & Medicaid Services. CMS reimbursement policies aim to discourage states from operating large, standalone psychiatric hospitals.

DMH hoped that shrinking VPCH from 25 to 16 beds would fix the problem. But this spring, General Counsel Karen Barber acknowledged that “further discussions with CMS” had ruled out that plan, which would have classified the hospital’s nine repurposed beds as a separate, non-hospital facility while requiring its patients, however, to share common areas with those at VPCH.

The Senate’s early version of S.192 had aimed to have a forensic facility operational at VPCH by July 1, 2024. The bill envisioned a patient population that would have consisted of criminally charged individuals in the custody either of DMH or of the Department of Disabilities, Aging and Independent Living. A four-member “Community Safety Panel,” including the Commissioner of Corrections, would have offered advice on placements, with recommendations based partly on clinical criteria and partly on estimations of “dangerousness.”

But the inclusion of people with intellectual disabilities in a locked psychiatric facility faced opposition. Testimony by Green Mountain Self-Advocates brought up the prison-like Brandon Training School, which closed in 1993. “Why go back to those days?” asked Outreach Director Max Barrows.

For 31 years, DAIL has cared for its charges – including those alleged to have committed violent crimes – in community settings, not institutional ones. Last year, a working group studied whether people with intellectual disabilities should join those with diagnoses of mental illness in Act 27’s proposed forensic facility, but its mandatory December report to the legislature revealed significant disagreement among its members.

In January, DAIL told lawmakers that a forensic facility “is needed for a small subset of those committed to the DAIL Commissioner’s custody.” This subset, according to General Counsel Stuart Schurr, “places the public and the individual’s support staff at an unreasonable risk of harm.”

Vermont Legal Aid’s Disability Law Project, however, disputed the facility’s necessity. Staff Attorney Susan Garcia pointed to “substantial restrictions” on “privacy, liberty and autonomy” that already exist for potentially dangerous individuals receiving treatment from DAIL. “Importantly, this treatment and supervision takes place in a residential setting, such as a staffed apartment or group home, rather than in an institution,” allowing DAIL’s charges to “build therapeutic relationships” and “practice self-regulation skills,” she added.

In the spring, the House scrapped and rewrote the Senate’s bill. Lawmakers determined that, for now, institutional forensic care in Vermont should not involve people with intellectual disabilities. Instead, DAIL “may submit an alternative proposal” to the legislature for “enhanced community-based services for those individuals committed to the Commissioner who require custody, care, and habilitation in a secure setting for brief periods of time.”

Rather than targeting VPCH for the establishment of a separate facility for justice-involved psychiatric patients, the House looked to enable DMH to serve its forensic population by using empty beds at the River Valley Therapeutic Residence, a locked “step-down” facility for Vermonters exiting involuntary psychiatric hospitalization. Their bill revised the rules governing its operations, allowing it to admit patients who haven’t passed through a hospital first.

When DMH proposed building River Valley in 2021, activists protested a plan to permit its staff to use restraint and seclusion upon relatively low-acuity patients. The activists won. But as lawmakers and state officials now see it, River Valley will need access to emergency involuntary procedures, including forced drugging, in order to accommodate a new group of potentially more dangerous residents. S.192 grants that access, starting on July 1.

River Valley will continue to house involuntary patients who entered the mental health system through Vermont’s civil court alongside those who arrived by way of its criminal court, but legislators provided a potential exit route for those who became patients before the upcoming change in the facility’s practices. They’ll have a right to “apply to the Family Division of the Superior Court for a review as to whether the secure residential recovery facility continues to be the most appropriate and least restrictive setting necessary” for their treatment.

The forensic programming at River Valley will likely include competency restoration. “Competency restoration” – the subject of another legislatively mandated study last year – refers to a narrowly focused form of treatment that prepares alleged criminal offenders in psychiatric facilities to stand trial, with arguably a reduced emphasis on their overall well-being. The House instructed the Agency of Human Services to estimate the financial cost of such a program, despite reservations expressed by Disability Rights Vermont.

“DRVT maintains that the question exists, as to whether competency restoration is even an appropriate process to address alleged criminal conduct in our communities by persons who are presumed to lack capacity,” Executive Director Lindsay Owen and Legal Director Laura Cushman wrote in a letter to DMH. “We maintain that community-based supports for people experiencing mental illness would be far more effective in preventing or limiting their engagement with the criminal justice system, altogether.”

Following the House’s changes, S.192 returned to the Senate just two days before the legislature’s adjournment. The Senate accepted the amended bill on the condition that it include language emphasizing that none of its provisions should preclude lawmakers from establishing a segregated forensic facility at a later date, as Act 27 had imagined.

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