 and as you can imagine there is a crowd here you're also being taped they can't see you but they can hear you so we're gonna start with Mike O'Grady who's gonna go over the profit ruling and then hear from you and your views of the profit ruling and how they might impact our main concern is how does the profit ruling if any impact s-37 all right which as you know the governor vetoed so Mike's gonna try to go over the differences between the two bills with us I mean the differences between the judges decision and s-37 is passed the Senate House and vetoed by the governor all right thank you senator I'm going to put my phone on mute okay until you're ready for me all right thank you thank you good morning Mike O'Grady with the Senate Council you should all have in your folder of a document that looks like this so yeah this is the one oh it's so many so I'm gonna be working off of this test as general background you all know of the PFOA PFAS contamination that was discovered in Bennington area you know that persons who were exposed or that monitoring that discovered or testing that discovered PFOA in their bloodstream brought litigation against San Govan for among other things they were seeking an injunction to require San Govan to implement a testing program or medical conditions that might arise from or due to PFOA contamination at the same time litigation long-going you this body work through s-37 which would have authorized a cause of action for the remedy of medical monitoring for those persons who are exposed to toxic substance due to tortuous conduct of a person who owned or operated a large facility now that is effectively what we're talking about here Judge Crawford issued a decision to 727 in which he addressed whether or not medical monitoring could be allowed as a remedy in the cause of action and he established a test for at least the beginnings of the test to be used to determine if medical monitoring would be awarded in that litigation he did not award medical monitoring he has yet to apply the facts to the factors that he set out in his decision but he basically set the framework for how he is going to review that claim for conjunction to require San Govan to establish medical testing for those that were exposed to PFOA from San Govan so with that is the background the court basically said one of the major questions is whether to allow medical monitoring whether or not the plaintiff first suffered physical injury or illness and that was a big part of S37 last year you said that a person couldn't bring that cause of action for the remedy without a physical injury and what the court did there and in looking and determining whether physical injury was required the court looked at Vermont law they he looked at the restatement of tort says everyone know what the restatement is it's a it's a treaties of law that's put together by the American Law Institute that summarizes common law around the country for a certain subject matter and in some cases certain jurisdictions there is a restatement of tort and one of the things that the restatement of tort addresses is what is that physical injury in his analysis Judge Crawford look at the restatement second of torts and which has a provision in it that provides that that that physical injury section 15 of the restatement of tort sex and it says bodily harm includes and any alteration of the structure or function of any part of the body regardless if there is harm or not that's a paraphrase it's not the exact language so ultimately what Crawford was saying is that that he believes that the Vermont Supreme Court would file the restatement second of tort and determine that there was a physical injury and that consequently you don't need to determine whether this is a new cause of action it's really just a potential remedy that's available to a person when they are part now that leads us to why this is in federal court so federal courts have original jurisdiction over claims of over seventy five thousand dollars in monetary value and when the citizens in the in the case are from different states different jurisdictions and so you have the Vermont citizens here and you have sangha van who is headquartered elsewhere and in diversity actions courts are often asked to interpret state law look to what the state law is where the claim arose apply that state well judge Crawford looked at Vermont state law to see if there is an action for medical monitoring for the remedy of medical monitoring there is no specific state common law and there is no state's legislation that provides for the cause of action for remedy for medical monitoring so what the court did and what courts federal courts often do when there isn't explicit precedent is that they look to the body of Vermont law statute court decisions history of the court and other jurisdictions to determine whether or not he believed that Vermont law Vermont courts would allow a person to seek the remedy of medical monitoring without physical injury I won't go into an analysis of the courts analysis or summary of the courts analysis I will just say that Judge Crawford was thorough he was rational he looked at as many sources of law as possible in making his decision he even looked at your actions last year and the executive branch's responses to those actions he said your actions were partially irrelevant because of the uncertainty of what the test would be and so ultimately Judge Crawford ruled that yes a person could seek the remedy of medical monitoring without physical or when they're there are individuals asymptomatic not showing any physical manifestation of the court said that they were going to follow the line of cases in West Virginia and Pennsylvania and identifying six elements for determining if medical monitoring should be awarded as a remedy however he did say it's premature to define the exact requirements so that leaves open the discretion to the court to change that test to change the six elements but he did say that the list of factors provides clear guide to the plaintiff's burden of proof so it's giving the plaintiffs a framework for how they will show that they should be awarded medical monitoring but he reserves the right to change those elements in addition he stated the trial evidence will be significant we discussed this last year with S37 a lot of the factors will require significant litigation and evidence provided on both sides and he recognized that and he said the court and the parties have yet to resolve the issues which are questions for the court that he will decide and the questions that will be decided by a jury verdict so although this is providing and authorizing a person to seek medical monitoring without a physical injury it is not fully resolved the court may establish some additional criteria and the court is still going to work out what he is the judge is going to decide what the jury is going to anyone have any questions at this yeah well I'd like and I may be since professor Rommel is listening in I'd like to focus on what our options are and I appreciate understanding the Crawford decision but to focus in on what our options are and I may be missing some but it appears that one option is to do nothing let the veto stands by the governor let the Crawford decision go wherever it goes in terms of appeal five ten years down the road or it you know when he finally makes the whole decision based upon the what the jury does in the Sanko Bay case and the third option second option would be to override the governor's veto and have S 37 become Vermont law regarding medical monitoring and the third option would be to try to develop a new bill based upon the Crawford decision now am I missing some option now I think that those are effectively your options do nothing go to a veto override and have S 37 or 10 to have S 37 the state law or do not go forward with the veto override on S 37 and draft a bill that is at least more in line with the Crawford right I'm not you know I realize that people with some groups would like the benefit of the exemption for small businesses and farms that are in the S 37 but not the profit decision like the benefit of some of the issues that are in the Crawford decision but I you know I don't think you do a combination of both making it more appealing to the groups who have tried to avoid who would try to avoid dealing with what people in Bennington and Art Bennington have gone through when you have a constituent come to you and talk to you about their fears for themselves and their families as a result of the contamination from Saint-Gobain frankly all this mumbo jumbo goes out the window for me and says don't these people deserve to have medical monitoring of their condition so that they can perhaps detect the cancer earlier and save their lives or their kids lives or whatever these people did nothing wrong absolutely nothing wrong and they were contaminated by this company so I have very little sympathy for the businesses that try to claim well we're not responsible because we followed you know state law I remind them that chem fab which was the original company left Vermont because of environmental regulations if they'd stayed longer the contamination would have been more widespread and worse I agree that the people in your area have a problem that needs to be addressed and I think Judge Crawford has kept that issue alive by denying both sides summary judgment motions what her to Dick describe as mumbo jumbo I have a touch tort losses first year in law school and when I read the 37-page decision I'm a lawyer but my eyes started to gloss over because I'm just not familiar with that law and it is extremely easy for anyone in the public to conclude that's just a bunch of legal mumbo jumbo but if I understand Judge Crawford's decision he supports these folks getting a remedy the only question is how they're going to be required to produce a case to get that remedy and he's used the beauty of his decision is he's got West Virginia and Pennsylvania as the legal precedent for how he wants to get there so if I understand this correctly and Michael you correct me if I'm wrong you're the expert but we have two states that have criteria set forth six criteria laid out on page 30 of this decision if we modify our legislation to incorporate that language don't we at least have on the one hand the remedy is out there for people to get relief and also we have a legal mechanical setup if you will I'm trying to use as plain English languages I can to get out of the mumbo jumbo we have a mechanical system in operation that is consistent with two other states and my question I guess to you would be wouldn't it be more likely that Vermont courts would follow that as well if we adopted that approach this is where so so there's multiple precedent out there for those cases that allow medical monitoring without physical injury the Pennsylvania West Virginia to extend the jerseys are often relied on the Pennsylvania Paley rail yard case was one of the first so it's often referenced so without legislation guiding the Supreme Court with no Vermont Supreme Court and with no underlying state cases addressing the issue court would then do what courts do and look at their own that exists at other state laws at secondary sources like the restatement and try to determine whether or not it's likely or more likely or not that they would use Pennsylvania or West Virginia the power I can't say but I would just say that they would basically have gone through the analysis did whether or not they conclude they concluded the same or agreed with proper I can't say well wouldn't it be more likely that our own Supreme Court would look to the Second Circuit if the Second Circuit had a decision on point to guide them in the process well if the Second Circuit had a decision on point that would be wonderful but they don't necessarily have a they are there are district court cases in New York but I am unaware of a second circuit case that specifically addresses whether or not medical monitoring whether or not you use the Paley or the Ballard test the ultimate question is Crawford has kept alive the remedy that I think the people in Bennington need to have if I yes but the criteria for for achieving that remedy are different under the Crawford decision I agree the question is whether or not we should do something that is inconsistent with where the Second Circuit appears to be heading at the same time doing what would be inconsistent with where West Virginia and Pennsylvania have gone if it would help I can try to address some of these issues yeah I'm happy to try to do that but would you prefer to answer the question I want to make one thing clear I brought up north Bennington and Bennington that's where I live there by the way one town there's a village of north Bennington but it's part of the town of Bennington so it's only one town they're not impacted by S-37 is S-37 is not retroactive so whatever we do with help St. John'sbury or Danville or West I'm just gonna say something nasty so but so making that clear that that S-37 does not impact my constituents in the sense that it won't control how they're treated except that it would send a signal to people in other parts of the state that we're prepared to learn from our mistakes and try to remedy the situation so so senator Benny tort law generally the state law so even if the courts the federal courts say this is what the standard is state courts still have the opportunity to disagree with that the state Supreme Court is not required to follow the Crawford decision I didn't suggest or mean to imply that they work but I think looking at overall what it looks to for precedent it would only be natural for them to look at the second circuit yes yes I agree with that but but Crawford's decision itself implies that there are maybe situations where state law would not allow for example he looks at all at the precedent from other jurisdictions where it was a different set of facts in those jurisdictions that we're not the same as a set of facts here you could to Vermont Supreme Court to look at that those precedents and facts as they would apply under those precedents and determine something so yes I would think the Supreme Court would rely on on the second circuit and to maybe a smaller extent federal district court decisions in Vermont and maybe even in New York but they're not now like isn't it also true that the courts look to the legislators yes and so another way to think about it is do we want to chase a decision that's not yet firm or a direction or a trend or do we want to help said I mean that that goes to the point that you are the policy makers yeah for state law professor rumble be involved at this point professor I thank you for being with us I know you're ill and appreciate your taking time by phone well you're welcome thank you for inviting me to testify I think you've heard where we're at I have I would like to address first the issue that and I'm not sure which senator was speaking but there were questions about whether Vermont courts or whether federal or state or even maybe the second circuit or follow the body of case law identified in Judge Crawford's opinion from West Virginia and from Pennsylvania and there is a risk I think that the second circuit can certainly go the other direction I'm not certain how likely that would be but if we let the page 15 of Judge Crawford's opinion he cites another PFO case out of the fourth circuit and that's the roads case and there despite the fact that it was applying West Virginia law in the power case that Judge Crawford relies on it's very fair favorably in his opinion despite the existence of that case they denied medical monitoring in a PFO a case it is that judge Crawford writes let me see if I can find it there that the rose opinion doesn't accurately describe the state of Decisional Law in West Virginia so the point I'm trying to make is that there's going to be uncertainty until you know the issue has finally resolved first I think in the second circuit and eventually you know in the Vermont Supreme Court if it were ever to reach there so what the statute would do is provide the kind of certainty about the availability of medical monitoring and the tests that would be required to be met in order to obtain the remedy of medical monitoring. Professor I'm Joe Benning I'm the guy that was asking the question I'm not suggesting or implying that we not pass in law I'm leaning in the direction after reading Judge Crawford's opinion that we tried to design our law to be consistent with what I saw to be perfectly reasonable balance between both sides and at the end of the day I don't want to end up in a battle over whether we've stepped too far or not but I saw a very reasonably worded opinion that did its best to balance both sides with precedent from West Virginia and Pennsylvania that seemed to make a lot of sense to me and I agree completely that if we have a statute our Supreme Court is bound from all angles but that to me is really the subject of contention if there is one as to whether or not we should adopt Crawford's logic in making sure we have a statute that our Supreme Court can look at and be bound by. Okay well let me then turn everyone's attention to the chart I provided to the committee earlier this morning I'm not sure if everybody has a copy in front of them yeah that's it. Yeah go ahead. I think before I get into that I do want to mention something that. I do want to mention something I thought Senator Baruth was very accurate. I think it's better for Vermont to have a law that is fair and based on other states so it you know your comment as well Senator Benning. The question is how much do we give the industry at the expense of people and that's where the problem comes in and you know the various sides that have spoken here over the years and I will remind everybody that F-37 was the result of compromise. It was not something that was done without significant compromise on both sides and yet when it got to the governor's office several of those who had worked hard or compromised got the governor's ear and he vetoed the bill. So if anybody thinks I'm going back and with all these compromises plus the Beck amendment they're crazy because I'm not voting for that. I just want to make that perfectly clear to everyone in this room and in this building and in this state that I feel blindsided by the process quite frankly. It left the Senate with strict liability. The House stripped it out as part of the compromise. Now here we are a year later three years later trying to get a bill to cover it. It just really is tragic to me that you could have people your own constituents who don't know that their water is contaminated that they've been drinking on with for years and could suffer the same things that people in Bennington are going through and we don't have a remedy because we compromised but it wasn't good enough compromise. I agree totally. I want to just pick up on something Joe said because I hear Joe operating in a spirit of compromise in a good way trying to offer I think that we leave F-37 to one side and work on a new bill that's more in line with the Crawford decision. But to go back to what you said I think that takes us down the same path with the same forces of right against it and I don't know that we would wind up with anything significantly better or even significantly more in line with the judge's decision ultimately. So I you know I will put my cards on the table early maybe but I would prefer that we override with the knowledge that as you said we originally had a principle much like the judge lays out where everybody is covered and we did a series of arguments that make no philosophical or moral sense they make sense in a practical political context and I voted for the bill because I believe on balance it's better but you know that's as far as I can go. Professor we kind of got off on a tangent there but thank you for being patient with us. You're welcome. So I wanted to reiterate something that Mr. O'Grady mentioned early in his testimony in that the exact meets and bounds of the test that Judge Crawford has identified are not fully set in stone yet. So there is still some level of change possible from this particular language. And I raised that issue because in determining whether the opinion is meaningfully different from the test that laid out in S-37 there's still some room in the opinion that could change. The language he uses and how it's applied to the facts of the Bennington case can change. But with that in mind you know I'd like to turn everybody's attention to the chart provided. In the chart what I've done is taken the elements from Crawford's opinion. And this is the test that he anticipates applying in the Bennington case. And in the next column I have the relevant provisions from S-37. And in the third column I address whether or not there's really a meaningful difference between the two. One other thing I did want to point out as well is that you know common law which is what Judge Crawford's opinion and the history of medical monitoring opinions are based on are always based on the facts that are presented to the courts at that time. And so sometimes those cases and the rules that are announced really only apply to this set of facts and the arguments that were brought by the parties to the judge. And in that way the law can develop over time. And it also means that the language chosen by the judges is often very much chosen based on the facts of those particular cases and the arguments. And so statutes are I think they are different. They're meant to have more universal application. And so I'd like everybody to keep that in mind as we're going through this. So the first issue, the first element of Crawford's opinion is that he would require exposure at a rate significantly greater than the general population. And really the only difference between that and S-37 is this concept of significance. Right. S-37 provides that the person, plaintiffs have to prove that the person was exposed to toxic substance as a result of torches conduct by the owner or operator who released the toxic substance. So there's no, the word significantly, significantly exposed or significantly greater exposure doesn't occur there. So that's not a huge difference. It's not a huge difference. And the reason that it's not a huge difference is that the purpose of that significantly greater language stands from the case law where plaintiffs sought to prove exposure to the defendant's toxic chemicals by comparing the plaintiff's exposure to a broader exposure. And so there the focus was, well, is this, is their exposure greater than what the typical background lovers would other people in the area would be exposed to? And this is the third circuit case, which stems from Pennsylvania law. In that case, and I've got the quote here, the courts are recognized that even if the exposure was within background levels, long as the exposure was from the defendant and it was sufficient to result in their illness, the plaintiffs could prevail and receive medical monitoring. So what S-37 does is it encompasses significantly greater by tying exposure to the defendant's torches conduct and therefore modifying S-37 to include some concept of significant exposure or significantly greater than the general population really doesn't address the universe of proof that could be offered. The point is that as recognized in this third circuit decision, the plaintiffs have been exposed to the defendant's toxic chemicals and as a result of that exposure, medical monitoring is warranted. S-37 addresses the concern and the issue that is implicated in the term significance. Does everybody follow that or are there any questions? Yep, yep. Yep. Okay. Michael, do you have a copy of the governor's veto? I have. It's in our package. I have it here. Oh, could I have that one? Well, it's a summary? Yeah. Yeah. No, I want the governor's actual words that he used. The governor that he said. I don't have it available. I believe he talked about insurance and other matters, and I would like to have, I wanted to ask questions about that. Go ahead, professor. I'm sorry. I'll hand this out anyway, though. All right. Again, just to try to summarize it, the significant exposure issue comes from the cases where the plaintiffs try to prove the defendant caused the need for medical monitoring by comparing levels that they were exposed to to some, you know, other background or similar type levels. It's not the case where they have more direct evidence of this defendant's chemical and tying it more directly through modeling or something of that nature. All right. Professor, I just got to ask our counsel here, because I'm looking at the side by side that he provided to us on this particular question. Michael, do you agree with the professor that there's no meaningful difference between those two? I don't. Okay. What is your difference of opinion? I agree that the Pallie-Raleyard case made the decision that it did in 94, but there have been other jurisdictions which have used a significantly greater threshold or element to bar our case. Okay. And I think what my point is, I don't disagree with what Mr. Gradius said. My point is that the way S-37 is written is very much in line with the Crawford opinion and how he's proceeding through the case. And what my fear would be is that if you put the element significant into the text of the statute itself, then you bring in those decisions which I think are wrongly decided. Right? And you run the risk of making it far more difficult to address the same kind of concerns of exposure that we had in Bennington in future cases. So I think what Mr. Gradius is saying, and it's absolutely accurate, is that other case laws interpreting this term significant, people have used, attorneys have used that word significant to try to eliminate the possibility of recovery of medical monitoring. Yep. But at the end of the day, if it's not, if the word significant isn't in the statute, the concerns that the original cases tried to address, and this is pale, this is bower, those concerns are covered by the statute. Because you still have to prove it was the defendant's release of a toxic chemical that was the need for medical monitoring. And this is consistent with the testimony that I've provided in the past to the committee and other committees. Thank you. The next two elements of Judge Crawford's opinion, to approve and have their substance, I don't believe there's any difference meaningfully between that and the test outlined in S37 because as there was considerable testimony about this entire hearing, toxic substances, there needs to be some kind of proof that it is going to result in an increased risk that warrants medical monitoring. It's not limited to any particular list, but I don't see any meaningful difference there. Can I ask again, our counsel, do you agree with that? I think the, ultimately, the significant difference is the exclusion of pesticide application and ammunition in the components thereof from the definition of toxic substance. That is not within the Crawford decision. So under the Crawford decision, it could apply to pesticides, but according to good practices. Professor, I'm sorry to keep interrupting you, but I have two side-by-sides I'm trying to work from and make sure I'm understanding the arguments from both angles. You know, sir, I did not address the exemptions in my chart. I think we, it clearly is a huge difference. If I was a small business in Vermont or a farm or I'd be more concerned with Judge Crawford's decision than I would be with S37, I would guess not that I'm either one of those two things. I do have a small garden that grows well with PFOA. I just can't grow anything underground. The next element as the result of tortuous conduct of the defendant. Thank you. Again, I think that language is in S37 and therefore there's no meaningful distinction between. The next test or the next element is as approximate result of the exposure point of a subsequent increased risk of contracting a serious disease. The word serious does not appear in S37, but as far as whether that's a meaningful difference, I don't believe it is. There's only one appellate decision that I've ever identified that defines the term serious in relation to disease. In that, excuse me, in that definition includes another wiggly word which or phrase which is significant impairment. But there the court didn't define the term significant impairment in it doesn't offer much guidance from there. Ultimately, the concept of whether a person's disease or the disease that the latent disease that may develop as a result of exposure warrants medical monitoring. Is a direct expert testimony and it's not based on whether any, you know, we there was discussion I recall during previous committee hearings. What's a serious disease. Right. And I think that the seriousness of the disease comes through in with tax for weather for the element under S37 on whether expert testimony can prove that testing is reasonably necessary. Defendants can offer their own expert testimony that diagnostic testing isn't reasonably necessary because the disease is not serious enough to warrant it. And so, you know, ultimately the question is, are courts going to allow people to recover for the minimum type issues? You know, I'm not going, I don't know that I can comment on what exactly that's going to be, but for example, a cough. And I think that comes down to and is addressed appropriately in S37 in the concept of whether or not testing is reasonably necessary. If the disease isn't serious enough to warrant it or significant enough, whatever word people will use, it's likely that the court and the juries will find that it is not reasonably necessary. In the, in the Bennington case, the state provided the testing of the constituents who had, and did it frequently. It was still difficult for many people who had moved out of town, for example, kids whose kids were way of college or had moved to different states and couldn't come back to get testing. The state made testing available and it was not cheap. Is there a company for that in the Crawford decision? For? The testing. And there's the RIN S37. The initial testing to determine whether the blood level is significantly greater would ever term you use. You understand what I'm asking? I don't know if that has been requested by the plaintiffs in this case, but I think it's right. I do think that you could request that as part of your damages in a situation like this. My question goes to who pay, who, because the testing, the initial testing to determine whether your blood level is significantly higher is extremely expensive. And that's why the state did it in the Bennington, North Bennington case. I'm curious as to whether Crawford or S37 would address who pays for the testing. Senator Sears, Crawford's decision is based on the proof in the definition of the class that plaintiffs offered him in, in that case. And he speaks to this issue throughout the opinion, namely that the plaintiffs have offered evidence of PFA levels in the class representative's blood. And, you know, that's a key part of his opinion. There are other cases where that kind of data may not be available or may be too expensive to procure. And in those cases, the plaintiffs may try to prove exposure to the defendant's toxic chemicals by other means. And so to the question you're asking, does S37 provide for that testing? Well, the answer is it doesn't require that kind of testing to bring a claim and to prevail on a claim. It would certainly, I think, strengthen a case. And also, it certainly allows for the cost of future testing and monitoring to be borne by the defendants if plaintiffs succeed in their case. Part of the remedy. I guess the additional question would be many cases get part of the, and I'm going back to Bennington, North Bennington again. We had a landfill that was a superfund site and there's a portion of the contaminated area that was in question in terms of the municipal responsibility. Now, the profit decision does not exempt the municipalities, am I correct? Correct. And so under S37 they are exempt. Correct. So that would be an extremely, I don't know about VLCT cares, but I know Bennington cared. Because when we were talking about S37, that was one of the first things that many of my local town managers contacted me about and select board members was the exemption for municipalities. That was a real concern because many of them operated landfills, of course. Every municipality operated landfills at some point. They were required by state law too. Oh, God. You remember me so much better than that. We're back to following state law. Yeah, back to following state law. So I just mentioned that. I wonder, I'm curious about that. Anyway, thank you. Just a brief review of the governor's veto and I remembered what he had said, but I will enter either of if you could comment on this. He said while we made progress this year in the discussion about medical monitoring, S37 has passed lacks the clarity needed by Vermont employers who are stabilized on to provide good jobs. The numerous Vermont employees have expressed concerns to me and to legislators, but the unknown legal and financial risks and increased liability is problematic for continued investment in Vermont. If Vermont manufacturers and others cannot secure insurance or cover claims and our economy will weaken, jobs will be lost, tax revenue will decline and ultimately all of Vermont is loose. Is there any evidence, Professor, in these other states that companies are no longer able to get insurance like Pennsylvania, West Virginia? Not that I am aware of. And I think Judge Crawford addresses the financial related issues and the economic related issues. In his opinion, when he speaks to New Jersey, New Jersey has allowed for medical monitoring since I believe 1987. There's a seminal case out of that state. And Judge Crawford states in essence, you know, that state with a lot of heavy industry and certainly hasn't. The Garden State? The Garden State. It hasn't appeared to suffer any negative consequences from it. And I think the same can be said for Pennsylvania and in other states that have allowed medical monitoring to go forward. Missouri and all the others. And to the insurance risks involved, I think what Crawford's opinion does too is show that, well, medical monitoring, the possibility of medical monitoring liability has existed. In the state, regardless of statute, because common law can evolve and parties can bring these kinds of claims when the law isn't necessarily settled. And out of the court, just like Judge Crawford did, rule that liability exists. So to the extent that there's uncertainty, I think that we're in a position now where the status quo is still some level of uncertainty as to the precise needs and bounds of the test under Judge Crawford's ruling, both because he states as much in his opinion, and also because we're not sure how the Second Circuit might, whether it would rule in the same way in what the Vermont Supreme Court might do if asked to answer that question. This is the non-lawyer question. How long will it take for appeals to go through, in this case, to finally get settled if the companies and the plaintiffs don't reach some sort of settlement? Well, I'll share that there was an appeal to the Second Circuit out of a similar PFA class action suit in New York, and I know that briefing was completed in that case in, I think, mid-2018. So that's about a year and a half ago, and there still hasn't been a decision there. And in this case, there's still a fairly long way to go before, excuse me, before trial, before there's a decision, and before that appeal process would play out. So we could be talking three to five years? I think that's a fair estimate, yes. So that would be more uncertainty for Vermont businesses. Joe? Professor and Michael, I'm going to ask both of you. First, as a result of something that Philip said earlier, I don't want there to be any misconception. I'm not suggesting we not pass 37 or override the deal. The question I have is, do we adopt in 37 the six-step criteria on page 30 of Judge Crawford's decision in order to try to be consistent with other states and where I think the Second Circuit is going? What is the harm in using that six-step criteria in S37? Tell me what the difference would be between how we have set up a list of criteria and the judge's six-part list of criteria. Well, I think there are significant differences, largely because of policy decisions that you made last year in enacting S37, beginning with the coverage of S37. It does not apply to municipalities, it does not apply to farming or application of pesticides from the practice, it does not apply to ammunition and the components thereof. Then the Crawford decision requires that significant exposure greater than the background levels, which is not required under S37. And that was a policy decision that you may have left you because that was put in front of this committee and the House Committee. And then last, I think the next significant difference is in the cost component of medical testing. And specifically, the Crawford decision says that monitoring procedures exist which are reasonable in cost. And that is not required under S37 and I think that would be an issue. You've got a defendant's attorney who would latch on to you as to whether or not testing is too expensive or the universe of plaintiffs is so large that the economic effect of a moderately priced test is too burdensome. So that, those are the three key differences, the scope and the exemptions, the significance requirement and the reasonableness of the cost. Can I hold both of you for a second? Peggy, could you find what we just, from Senator Benning's question to Mike's answer, can I have actually a hard copy of that from the table, please? You know what I have to admit, I did not hear what you guys said so you didn't have to tell me. I can find it. I would like a copy of that because that's a critical look and I tried to write it down to be honest with you, but... So it's 10-0-5. I'm confused though, Joe. You said you're not saying that we should... No, I'm not in the response. But you suggested that we should add somebody to our bill. I don't see how we add anything to the bill. The crux to the conversation is the criteria. No, no, but I'm just saying, forgetting the legal issues. I'm not saying we abandoned S37. I'm saying in order to meet the governor's concerns. You're talking about creating a new bill. I'm not. I'm suggesting tweaking the criteria by which decisions are rendered. No, but correct me if I'm wrong, and Mike, too. Our only choice on S37 is whether to override the veto. We can't amend S37. Right. We could do a new committee bill. We could do a new bill. But in essence, you're talking about... There's a whole lot of material in S37 that I have absolutely no problem with. Whether it's a committee bill to redesign... I'm not trying to leave the impression that things like municipal exemptions, et cetera, are suddenly chucked out the window. That's not where I'm going with this. You wonder... I'll chuck every exemption out if we go backwards. I'm not going to vote for something that has the exemptions. Plus, I mean, we might as well do the back amendment and go home and say, what a wonderful thing we did. We're just screwed. I'm not looking at the back amendment. I'm only looking at the... Well, I mean, that's... But you can't have both ways. I'm sorry. You get the exemptions or you don't get the exemptions. I'm only one vote here. But for me to vote for something that weakens in any way... I'm happy to do the Crawford bill. I'm happy to do a bill just based upon the Crawford decision. But I'm not happy to do a bill based upon the exemptions plus Crawford. I was trying to clarify. I thought Joe inadvertently confused the issue a little bit, as though we could amend S37 and then vote on it. So S37 is what it is. It is what it is. Personally, I would prefer not to go back through and start a new bill and go through that entire process again. So I think the committee's best lead to make a decision about the override, yes or no. If the override fails, we can always start a new bill. If I can try to address some of Senator Benning's questions. What's the problem with adopting Judge Crawford's verbatim or adding words like significantly posed or adding the word cost into the consideration of medical types of procedures? And I think that the first question really is whether those words address, whether those words serve a purpose that's not already addressed. Because if those concerns are already addressed in the statute as written, then you run the risk of these extra words and modifiers creating problems for people who are trying to recover under the same set of circumstances. And again, the purpose of the significantly greater exposure is to try to ferret out claims where the plaintiffs cannot tie their exposure to the defendant's toxic substances, right? If one way to prove that is by showing your exposure is greater than background. But if we look to S37, that problem is already addressed because it requires proof and it can be the comparison of your exposure to some background level. Or it can also be a different kind of proof where you prove that the contaminant or the toxin came from the defendant and you are exposed to it more directly. Air modeling, you might have some other kind of proof. S37 addresses that issue. And so if you add the term significant exposure or greater exposure, and you bring a claim and your offer of proof is, well, I can show you that the defendant is the one who exposed me. Do you also want to force that plaintiff to say that that exposure is significantly greater or more significant than in some other situation? And I think that really confuses the issue. Now, it may not, I think it has been an issue in other cases that use this language. Mr. O'Grady pointed it out. Unfortunately, I don't think it's an issue in the Bennington case, but it could be in future cases. And so why create that extra step to get over if it's not relevant to the underlying issue, which is if the defendant caused the problem? Or again, the courts are worried about everybody having some claim for medical monitoring just because they got a level of some chemical in their body, regardless of the source. And so they want to pin it on, they want to make sure that plaintiffs can pin it on the defendant. S37 addresses that issue. And if you add the word significant to it, because it's a statute and the courts have to give meaning to every word, whereas there's more flexibility in common law to address the facts of each case, you run the risk of creating unnecessary and frankly unfair requirements for plaintiffs who can prove the defendant exposed them. That's the harm, that's the potential harm anyway, of including that term in S37, adopting the craftsmanship verbatim in a statute. Professor, I appreciate that, and I don't want to belabor the point, but what I appreciate most is that you addressed directly the question. I'm looking now, you've just addressed criterion one. I'd like to walk through two, three, four, five, and six. Michael identified two other issues. Is there anything else that you see in the remainder of those criteria that you believe is different from S37 in a way that would be unacceptable? I think there's also the question of whether or not a disease is serious. To make that a separate element of the test, create a problem where someone has to, where, well, let me back up. First of all, there isn't good case law defining what a serious disease is. The only case law out there that has a definition said death or significant impairment. That's not Vermont law, that's not West Virginia law, that's not Pennsylvania law, that's Utah law. So there's not a whole lot of, there isn't any consistency really across the board there. And the question again is, does this issue of seriousness of the disease somehow get addressed in S37? As my chart shows, I think the answer is very much yes. If a disease isn't serious, as whatever, however that's defined, I think it would be fairly easy for defendants to offer expert testimony that diagnostic testing for that is significant or not serious disease isn't reasonably necessary. So rather than debate whether, you know, whether something is a significant impairment or a serious disease, let's have the judge in the jury in S37 determine whether or not testing for that condition or disease is reasonably necessary. That will address the same concept as the text of Crawford's opinion lays out. Insignificant problems that the law shouldn't, you know, allow recovery for or that juries wouldn't allow recovery for. Professor, I'm a criminal trial attorney by trade and we have this definition of serious bodily injury when you launch a simple assault case into a felony assault case. And I'm looking at the word serious as Crawford has written it and in S37 we leap to whether or not diagnostic testing is reasonably necessary. I'm struggling with the concept of how we determine whether something is reasonably necessary if for instance as a result of my exposure I get a rash as opposed to as a result of my exposure I get cancer. Who and how do you reach the determination of whether or not diagnostic testing is reasonably necessary? You reach that determination through expert testimony. So for example, if the plaintiff's put forward a plan for medical monitoring and the plan for medical monitoring calls for periodic testing to determine if a rash is going to develop sometime in the future. There will be conflicting expert testimony from the defendants likely saying there is no need for and it's not reasonably necessary to test for the occurrence of a rash because it's not very significant. It's a rash. People could, you know, it is a case by case basis. I don't think what you want to do is set out an element that plaintiffs have to prove a disease is serious. But we don't have the word significant not appear in the first question. If we don't have the word significant in the first question that literally means to me anyway that it doesn't matter what kind of reaction you have had to the exposure. The question is whether or not you've been exposed and whether testing is reasonably necessary is left in the wind and maybe I'm just completely out of whack here but at least in the criminal perspective you can get into an argument over whether or not you've had a bruise from somebody punching you as opposed to whether you've lost an eye and there's a clear delineation between what is a misdemeanor and what is a felony. And I guess I'm coming back to is anybody that has been exposed entitled to testing simply because they've been exposed the word significant does not appear in that chain of questions. So educate me how is it that I'm missing what would normally be a clear signal in the criminal world but here we're developing something that could enable anybody who's been exposed to demand a test. Does that include a sear for the requirement that the agent be serious or that the exposure be significantly greater than background levels. But as the professor was just referencing it does require that the testing be reasonably necessary. Reasonably necessary is to find how you prove reasonably necessary as expert testimony that a physician would prescribe diagnostic testing because the increased risk of contracting the disease due to exposure makes it reasonably necessary to undergo diagnostic testing different from what would normally be prescribed in the absence of exposure. So the bruise if you got a bruise from exposure and the expert test is money is that the position would not prescribe diagnostic testing in the absence of that exposure. I think that's where you where you build in that that concern. That's where it would be addressed. Do you understand my point? We're talking in essence about multiple versions of the same thing. It's a different approach. Well yeah so but if you had significant if you required that symptoms be present if you required this test that currently exists in S37 there it would be three different ways of getting to the same thing. S37 has a goal. But it's there and it's it will be activated in any procedure. And there will be there will be dispute in the litigation between expert testimony about whether or not a physician would prescribe this for what in the absence of broadly normally used to be described. You heard testimony last year that the litigation is going to require a lot of discovery a lot of dispute that is going to be many expert testimony experts providing testimony. I think this is an example of that. I do think it addresses the significance in serious. I'm going to are there any other other questions for professor and Michael on this bill. I do want to leave a little time for the committee to discuss. And hopefully professor if you could stay on the line for a few more minutes and Mikey where do we go here. I think the Senate is looking to us for what to do. I'll tell you where I am. You are. I think that listening to all of the differences here and just I don't want to start over because I think that the compromises we made last year are as Philip said to quote your elephants I think you said as much as you could swallow something like that. But so I'm I'm ready to to try for an override and if that fails then we can start over again but I don't want to start over now especially since my questions have been answered about the differences. I just keep coming back to this quote from the decision. The choice between permitting and excluding a medical monitoring remedy for potential future illness is a choice between competing values. And he doesn't seem to be preferring a sense of values. To me that sounds like a nod to a legislature provide us with guidance on your values as state and the conversation we had today that mirrored the one we had in creating the bill. So Joe was a great advocate for a more economic development focused perspective. He was very vocal about protecting the mom and pops, which we did with the 10 right. So I think as 37 produced a compromise that I would describe as the best we were going to get. I think that's the kind of thing this committee was designed to do. So I would be for going forward with it and not for no reason because we do have the veto override option going down the path of writing a new bill. I appreciate the fact that we had a discussion over George Grofer's decision. Frankly, I don't think we needed to have that conversation with the intent simply to focus on the governor's message and vote to override or not. Since Judge Crawford issued the decision, I personally saw somebody working through the same process but using legal precedent and other jurisdictions which may have held a lot of sense to me and still does. And as a result, I don't think I'm going to change my vision of what the posture of the case is, but it's obvious that we're not going to come up with a committee bill that's different. So I'm right back to where I was in the beginning. I share the concerns of any prospective plaintiff who would be in a bad situation. What I'm concerned about is we are not leaving as clear guidance as what I saw in Judge Crawford's decision to those who would be able to make a credible argument versus those who might want to take advantage for whatever reason. And that is where I'm left with that concern. Thinking about what we've paid for the testing before, what's your thought on the state that would pay for the testing of these people who are at risk? And then we're, of course, in on the suit to get money from St. Cobain if it should be a legal suit. Sounds like it would be. We reached an agreement with St. Cobain, I believe, that they would pay for the installation of drinking water, town and village drinking water to the people of Bennington and North Bennington. And that was, we gave up our, I believe we gave up the ability to sue on the cost of the testing. I'm not saying that we can check with the Attorney General, but I believe we reached, we, the state of Vermont reached agreement with St. Cobain on those things, leaving the issues of strict liability, people's ability to get money for the loss of home value, get money for the course to go to a town water line paying for water that they weren't paying for before the town village water, and other things that were costly to them. That's the strict liability portion. We left that to the court. So we, the state made that agreement, I believe, that we could check with the AG. I mean, we're not, the state isn't out on that. We also agreed to do some things, you remember in the appropriations bill, we agreed to do some things in one corner of Bennington where it was disputed about the some fund. So I mean, how many, how many persons are there that are in this position, including the monitor? Do you know? I think there's around 400. Well, we're, we're talking about a perspective, right? You'll just unlock your iPhone first. So, thank you. I pushed a button to try to put it down, and I pushed the button. And so, that was Siri telling me to unlock my iPhone before I do anything else. We're not, as I see it, we're not talking at all exclusively about the problem. Actually, S37 is not retroactive, so there wasn't impact, whatever the outcome is in Bennington or Bennington. Well, you know, I guess I'll be clear about something. Generally, I've supported Phil Scott, you know, and a lot of the things that he's done, we've worked closely together in this committee on a number of issues. I just don't agree with his two vetoes this year. I think they were short-sighted. And had he not vetoed the firearm bill, and I don't know where that'll go, I think we would have, you know, not be having this discussion this year about firearm, frankly. And secondly, on this bill, I think he was short-sighted in his veto. And I understand what he was doing, and I don't, you know, I respect his position. I just don't agree with it, and I think it's up to us to try to override it, and if we can, then maybe we wait for a new governor. Because I'm not sure of the results. I'm not sure that we can compromise any more than we already have to get to where he wants to be, which is the Beck Amendment. And then we would spend a lot of time on it. I don't know that it's totally the Beck Amendment. Well, that's what he said to the veto message. Is that what they told you today? No. He said, you know, I don't know how he said that. Yeah, what are they saying today? Well, I mean, the veto message is today. I mean, it's... No, when Jay and Kendall came in, are they suggesting anything? No, no, no. That discussion would have nothing to do with S-37 or the firearm bill. Our discussion this morning was about the criminal justice reforms. The insanity police, the criminal justice reforms, the bail property, the bail and the justice reinvestment, too. So what do they tell you about, is there a way for... I mean, I thought that the governor actually would like to get to medical monitoring if there could be some things in place. Well, I don't... I've never had that conversation. I had a brief conversation. I'm just going by the veto message. It says the good news is there's a pass forward to the bipartisan amendment introduced by Representative Beck, etc. That's why I kept referring to the Beck Amendment. So this is all... Joe, what do you know? I don't know. I have personally never read the Beck Amendment. What I do know is that the governor's office could live with the Crawford Decisions criteria. And that is... This was on the agenda. That's why I've been having my part in this conversation. I do not want to come out of this committee looking like I am screwing people who are in a legitimate need of having medical monitoring. I am coming out of this wanting to believe that I have looked at a decision that looks perfectly reasonable and balancing test that has other state connections to the conversation. And if my brain says, our Supreme Court, if we hand them a statute that is consistent with those legal opinions elsewhere and the balancing test that Crawford set out made a hell of a lot of sense to me. I got quoted on the radio yesterday saying I'm batting foul balls or whatever the case may be. That's where I'm at with this. I don't want to come out of here sounding like I am opposed to people getting what they deserve. I'm uncomfortable with the delivery of what we're handing the courts because it is not 100% consistent with what other states have done. And that always makes me a little bit nervous. Especially when our own Second Circuit has given us an idea of what the facts are in the case before it and suggesting, I think, strongly how we should be coming up with a conclusion. But I agree with what Dick said earlier. I think what the governor would want ultimately is the tests from the Crawford decision and the carveouts from S37. And I think he would refuse to sign the bill without those carveouts. And the whole point was that we did our own balancing tests in here. A long, detailed process with lots of advocacy from lots of special interests. And we wound up where we wound up. The judge starts from a place of allowing a much, much, much larger universe of persons. And then he has the more specific tests. So I don't think if you gave the governor the Crawford decision, I don't think he would sign it. I think he's more likely to sign S37. Obviously he vetoed it and we're going to try to override. But I think ultimately, if he was given both, Dick was making this point indirectly. Because it carves out municipalities, because it carves out small business, exceptions for lead, pesticides, et cetera. I think the override is something I wouldn't admit in public, but I think it's something we prefer to the pure Crawford decision. I am not the governor of spokespersons. None of us suggested that, Joe. We know that actually. But when he leaked to the conclusion that he would not sign something, the information that I have is that's not correct. If the Crawford criteria were adopted, he would be comfortable enough with the bill to sign. That's the information that I have. I heard directly from the administration. Michael O'Grady has to leave. Do you have a question? Professor, I want to excuse the professor and Mike. Yes. Professor, you've been so helpful. Thank you so much. Hopefully you feel better. Hopefully we didn't interfere with your recuperation. Thank you very much for inviting me. Thank you. Thank you. So my question was when you say he would sign the Crawford decision. Crawford criteria. Crawford criteria in addition to the carve outs and the stuff that we already have given. I'm assuming the remainder of S-37 remains intact. He would prefer to have those six steps. Those six steps are different than the steps we currently have in S-37. Another way to say it is that he might sign a significantly weaker. I think it's already as weak as it can get and still be an effective redress for what people are potentially suffering. Didn't we hear that some of them aren't even significant differences like the serious disease, the significant coverage. He didn't have carve outs in there. That's one of his steps. So if we put that in there as one of the steps to look at, that exempts the carve outs then. I mean that gets rid of them. And the cost component of medical monitoring. That seems to me that that's the only significant difference in the six steps in our bill. That's what I got from Michael. I understood there were four differences. I don't want to belabor this point because I feel like we're just we're not sure. The word significant, the word serious for diseases, whether medical monitoring procedures exist as an issue and whether or not those that exist are reasonable in the cost. Those are the differences and I will concede that the current state of S37 that tweaks it in a direction that is different than what this committee had originally concluded. Well, I guess I'll leave you with that. Get back to the same question. Do we want to have the governor's decision overridden or not? It's obvious we are not moving in the direction of changing this by way of committee. I think the problem is that the six tests that you point out, as I understand it, the one problem there, one of the major problem areas is as a proximate result of the exposure, plaintiffs have suffered an increased risk of contracting a serious disease. What's a serious disease? And then finally, monitoring procedures exist which are reasonable in cost and safe for use. I'm not sure. If I had drank the water in my neighborhood down the hill where they didn't have village water, I'd be in that heightened place. And quite frankly, I wouldn't give a damn about the cost to San Covain. I'd want to know whether I've got a good chance of having cancer. And I want to get that early. I don't want to have to wait until I have to have a body organ removed or undead or my kid is dead because they drank the water. It's really... I just worry about putting roadblocks in places that would harm people. And I'm sorry to be so... This isn't like mom and apple pie to me. I have friends who are living this. And they're worried. And frankly, you know a few of them. And they're worried. I think they're more worried about their family members than themselves in large part. I had dogs at a kennel that drank the water and both dogs ended up with cancer. Do I know that was a result of their drinking the water that was contaminated in those wells? I don't know. It's interesting that they were both young, relatively young when they died of cancer. So I've kept my new dog away from that kennel. And also, you know, don't let him try at my best and I'll let him dig in the yard and eat the grass and stuff. Yeah, I don't know. When you live in the zone, you look at this thing a lot differently, believe me. I think Michael did a good job of answering the issue of the serious disease or not when he read that section from the bill that talked about if somebody would do the testing, if they wouldn't do the testing, if it wasn't for the exposure, then it's serious enough to require the exposure. I think he did a really good job of answering that and it's in the bill. And whether it's reasonable in cost and safe to administer, that, as I understand it, that's something that will be decided in a court. It doesn't guarantee that it's there, but you're going to have an expert saying, yes, it is reasonable and it's costly and it's safe and you're going to have another expert saying it's not and it's going to have to be for the courts to decide. That is the one thing that I think that is different and that it's going to be, he said, she said, and my expert is better than yours. I agree and I think, I'm going to just, Joe, I really respect you. That's not disrespectful. I understand what you're coming from. I also want to give the Governor's due. I mean, you know, you read his veto message, all the things that Governor Scott's administration and Governor Summon's administration did to respond to this and I compare that with the formal administration's response in nearby Falls and other areas in New York State that had a similar problem and it's like night and day and one of the first questions people from Albany, New York media asked me is, why is Vermont so different? I said, because our Governors and our two administrations in a row both committed to helping our constituents deal with this problem. Phil has been absolutely wonderful on this as was Peter Summon. I don't mean this to be critical of Phil Scott, but his veto to me was wrong on both bills. I just have one last thing to say. I just have one last thing to say. I don't think that anybody who actually knows you would think that you were out to deny people what they needed in order to be well. I think that that's, I mean, anything can be said in the press and anything can be rumored and it's just because of our superior attitudes that... And I love Bill as much as the next guy. What I would say is... We wondered about the thought. I would call the question. What I would say is it goes back to the idea of values. So are people who need it going to get monitoring or not? And so far we've gone years without it. We heard that even with S37 we might wind up with years of... So, you know, I think at a certain point everybody has to reexamine their values and I don't think it's unfair for people to be criticized for a decision that they make based on their values that leads to somebody not getting medical testing. As chair of this committee, I will now call the question and the vote is three, one, maybe. The question is one, specifically. To override. No. Three to two. Well, we'll see what our colleagues want to do. Yeah, okay. Nobody else voted. Nobody else voted. I already said my statement. Oh, I didn't say yes. Are you going to call the roll? I wasn't going to. There's a whole thing on me. That seems to be what you are at. No, I'm a no vote. By the way, we all want to get to the same place for the people who are affected. We have a difference of opinion as to how we get there. We could get there. Well, we could. If the veto fails, we can start over again. Only if we compromise more. I didn't vote for the bill initially. I know you did. Because it doesn't. Another thing I really didn't like. What is it? Are we at 10 or more people? If you have 10 or more employees, which is 10. I mean, build your own house. You have 10 employees. I don't think leaks onto the neighbor's yard and their garden. Under the Crawford decision. Everybody, that's right. I think what people are missing is the Crawford decision becomes the law of the land. Everybody will be under it. Everybody will be under it. And then your exemptions are gone. I agree with that stuff. So that's the deal. Yeah. I didn't say I like Crawford. I know you didn't, but you and many other people seem to want the best of both worlds. Both Crawford and that. Well, I don't like neighbors or neighbors when you build your own house. They can now. Yeah, I understand. Neighbor going after a neighbor over cutting the tree down. That was criminal. The other thing that I feel like maybe we're too close to it to pull back, we're not talking about medical treatment. We're talking about medical monitoring. We're just talking about monitoring occasionally to see if somebody has a disease as compared to the universe of liability for treatment. Right. Yeah. But everybody says medical monitoring is so expensive. If it's that expensive, then where's this all going? But if we knew the number of people and we could pay for it in budget, we could pay for the other stuff, why don't we try it? Well, some of it is expensive and some of it isn't. We passed a burn pit bill last year that required monitoring for, I mean, that would essentially ask for monitoring for people who had been exposed to burn pits. I want to take a break because we have other people at 11. And I have to leave because your MAT and your healthcare contractor both have been approached this year. I figure we can leave it for that. Is that fair? Okay. So one, all of you are separately. So this is kind of getting ahead of justice reinvestment report. Yeah. And trying to understand what we can do better. I've noticed the same thing. Some of the, like for example, in some counties there's pathways. In some counties, there's pathways as a housing. I don't know if you have it in Windsor County or not. But it's in six counties and not in 12. And we just left off, we're not going to discuss the healthcare contract if that's why you're here, Andrew. No, just listen. The other area that we're not going to discuss is the out-of-state contract because that's in approach as well with the increase in the appropriation and the budget adjustment. I'm sure it'll come up. So just kind of an overview of what problems you're running into and how you're getting services for people. So obviously we were really involved with CSG throughout the time that they were doing all of this data and conversation-leading. And I did express to them my concerns about some of the ways they were expressing the findings and tried to drill down with them on where the findings were coming from, because to be perfectly honest, Senator Sears, I was a little mystified by some of the findings. And I did make that known to them. In terms of care coordination, we have a very explicit, and I'm happy to share the process with you. We have a document that we've developed in the Centurion. The process of discharge is very detailed and very specific that all of the information that's provided to an inmate about their future health care and care coordination, which obviously is all voluntary at the point of release, is provided to them in writing and they actually sign for it. That information is also provided to the case manager, the case worker inside the facility and then also the probation officer who's uploaded into the offender manager. I think a lot of our information, we're frustrated in getting services for their clients. So I can speak about that as well. You said you were mystified by it, but I think that they, I believe that they had conversations with a lot of probation officers around the state and a lot of this information about care coordination with private providers who are contracting is coming from them. So CSG, when I questioned about this, said something different to me. They said that they had had listening circles with the hobs and the spokes that had come from them and they never mentioned to me that it came from probation officers, so that is new information. They may have had conversations with probation officers after they handled it. I know they went around, I think all the focus groups or whatever they could call them. So that's outside of my knowledge at this point. So we can certainly go back and move back to that. It may have been a different individual having conversations. I think David had conversations with probation officers about their frustration. Because as far as I'm able to ascertain all of the inmates are connected either to a home or back to their spoke. And then they're also provided bridge prescriptions which is again, their choice the fantasy of their choice is called and given the number of days of doses as well as the last dose letter so that that is adequately covered on time for the inmates. I think it's housing, jobs, counseling, I didn't hear. The report isn't finished yet so I'm trying to get ahead of the report. I do have some context I'm not sure the degree to which David is reflecting this in the report but one of the things that I would point out is that when they were interviewing DOC probation officers they were talking about not just re-entry but also people who are already in community and are referred from the court and that there was there is a performance of moderate, high risk individuals as you well know and that officers did find that they were having difficulty it's not so much in terms of the re-entry coordination as much as having the beginning services for people who are already in the community and who they believe need a higher level of care so that they're able to access so I do know a couple of anecdotal reports just to debrief David I think that major part of it is the coordination people that accessing a local mental health center people accessing a recovery housing for example people accessing housing re-entry people trying to you know what in some areas of the state there is more availability of services than in other areas so I had that so I know that that was a piece of what David and Ellen were for debriefing when I was in Burlington I wasn't at Newport and I wasn't at Rutland but I know that was part of what they represented debrief when I was there I think also specifically around some of the contractual relationships that we that I manage some of what they indicated were again feeling that we're working with of higher risk, higher need population and that our actual capacity is limited that some of these individuals should have access to a more going to say something that could easily get misconstrued so you don't understand it I think we have programs particularly in communities that are designed for people that are no longer in corrections that many of them have been dealt with in the diversion or somewhere else and these programs are trying to be all things to all people and not being very successful at it and I a typical example would be a housing program where somebody slips up and they throw them out but they're much higher risk than what they intended or what they expected I should say and so I think that's part of the problem and we as legislators many of those programs are based in our communities and we hear from them about a wonderful job they're doing but why don't they have more people and maybe they don't have more people because you don't have those people anymore I think you're exactly right Senator and I think that that's part of what David was representing in terms of the that many of our partners are their models are really more accustomed to dealing with a lower risk I'm going to get a little trouble here but I noted that Dismas House is having a big day here in the State House and I'm not going to pass judgment on them but I'm curious as to why all of a sudden they're here in the State House to have a major day and you know I will just guess it's part of this problem so they having trouble getting residents? I suspect they are they're having some difficulty with referrals well they have very strict guidelines so one of the constituents that I work with his mother actually not him they're calling me but you know he he goes off the porch visits somebody in a vehicle says it was his girlfriend who knows maybe it was a drug deal who knows what it was gets thrown out so where does he go back to jail that wasn't anybody's expectation but you know so mom's wondering why my good son get thrown out for getting him going off the porch well you know moms are there it's the same as Comcast get stuck in a ditch which is why I have to leave a quarter or twelve so how do we deal with this what are we going you know I got my own issues down 208 Depot they're full now I guess but they were down to like five people five or ten five or six people so how do we have the community based organizations be prepared for the people that were sending out or the people that are now on probation that need services etc that's I think the crux of our discussion today I think the only thing that I I mean my recent experience in terms of doing some work with DOL participating RDCs meetings the regional work personnel meetings and some of the work on the adult reentry and employment is some of our partners are realizing that although criminal justice populations are identified as a special population they're beginning to realize that they're identified as a special population because there are distinct barriers for this population that are not necessarily incorporated into their models and so I think that's an example where we're trying to do a lot of collaboration and mutual education around this works very well for this subset of the population that we supervise but for this subset we're going to need more resources to address different barriers than maybe you're accustomed to doing well one of the things justice reinvestment will do is reinvest and what is it we're going to reinvest in is critical and that's where the three of you really come in you're the you're the presumably we will lower the number of people out of state are you going to make a deal with St. John's Bird to send people that don't need to be there there to fill 50 bets or are you going to make a you know what are we going to do for example I think that's a decision-making discussion that occurs higher but how many contracts do we have right now across DOC there's approximately 60 how many approximately 60 across the country in the community not the ones in the facilities I apologize for being like what do you mean what contracts contracts with Dismiss House contracts with local mental health agency contracts with local providers of services that's all I needed that sort of thing rather than one of the things in the justice reinvestment findings is that many of the contractors many of the services that are out there are not appropriate to many of the people that corrections is dealing with in the community whether they be on reentry or whether they be on probation or parole and we as legislators frequently hear from these people who contract and say you know corrections isn't working well with us or whatever so I fully appreciate the information that you're seeking and so I just would like to say that I agree with Kim that I think that as we have done our work in corrections we are really only working with the most moderate to severe individuals and when they're released the community is not voiced to address their needs and I think that besides we've been talking about this for a very long time ten years that there needs to be much more intensive training about criminogenic risk and need with damage with Dale and with our agency partners to fully appreciate the needs of this population and program accordingly what is specifically the women's population aren't there a number of women who are incarcerated that are relatively low risk Monica is better positioned to all numbers laid if community programs were able to step up to handle that population I will look at the slide I don't think the JR slide on risk actually showed that about the incarcerated women I thought the numbers on moderate to low risk were high for women I'm going to look at my look at the slide I thought it was in the 40% range but then just for clarification the department doesn't have contracts with DNH or with Dale specifically the agreement really is to work with these individuals and so we don't have special agreements the only thing that I'm aware of is Act 78 which was passed several years ago that really strengthened our coordination with DNH already and it was specifically around people with serious mental illness the SFI population charged us with developing a mental health unit as you remember and that collaboration happened on a daily basis in constant contact with DMH and also with Dale I'm less involved with the coordination with Dale because that happens mostly with our director of nursing who unfortunately was not able to attend to provide information in today's testimony but there's constant work on getting people released who are qualified for choices for care nursing home, level of care etc. and she handles that we work with DMH on a regular basis and we've met with their new adult chief of psychiatry and they've also extended consultation hours to us on an as-needed basis what about coordination with folks and others? that happens also through the health department every two weeks we have a map work group meeting where the health department is present Dr. Levine and the deputy have also attended at different times and so that was also where my mystification came in there's a regular hub meeting that I also sometimes attend Tony Fawn manages that meeting and again the coordination has been really tight there have been anecdotal situations but there haven't been systemic failures between all the parties to coordinate the care so we're in a constant state of quality improvement but so far it seems to be working and people are not being dropped and when I did ask CSG because I know some of that language was in there I said where are you hearing this I shared that with Tony I shared the whole report that's in development at the map work group and Tony also was somewhat confused and scratching his head because he's in constant contact with the hub directors and he said that he hadn't been hearing any concerns either and that they have the capacity to treat the patients I know that there's been a hiccup at BART they were struck with a system-wide national computer virus that brought them down at the BART clinics the methadone hub the methadone oh we don't have that I don't know when was that well it was nationwide but there are two clinics one in Newport and one in Malware specifically Dr. Nanko who has been our medical director was also still filling in their medical director he had resigned back in June he officially stepped down permanently on November 30th they were able to hire a new doctor and so there's also been some ramping off time for her to get to speed and when he was serving in both of those roles we had a very monitored protocol to ensure that there was no conflict of interest on his determination that somebody may need a hub assessment for methadone because we are not an OTP to be able to do that and then his work revealing the assessment to refer to a hub was reviewed by two independent doctors across the state, Dr. Brooklyn and Dr. McComis and also by our medical director Dr. Fisher and then that person would be referred to a hub assessment but that all has come around because he's no longer involved with that hub but those are the things that I'm aware of there are many many nuances in moving somebody who is on methadone whether it's to a court case just changing facilities verifying that they have enough doses to be sent with them so that they don't need to have a new guest dosing arrangement at another hub wherever they're going to court if they have enough doses with them, they're brought back if that's not going to be sufficient then we have to follow up with all the guest dosing paperwork that are all DEA regulations and then the health department then has to review that may happen but we have a massive coordination and communication structure where we track all of that and map all of that and we can get everybody to debate whether their guest dose is intact I do think Senator Pan I do think that one of the maybe one of the underlying challenges is that most of our partners are really operating where the treatment focus is client centered so it means the client chooses they can choose to participate or not participate at any level and there are officers when they're supervising in the community there are things that they are observing that in terms of reducing the risk it may not be a clinical risk but it's correlated to their risk of reoffending and so the officers are asking for assistance from treatment providers who have a different mental model and operational model than the criminal justice has a system has or we have in terms of I think there are times when there is a mismatch if you will in terms of the individual may not want to participate may not see themselves as having a particular issue with substances or in addressing their mental health issues may not want to go into a more intensive level of care may not want to be on medication and yet or may not want to address some basic skill deficits that they have in education or work and yet officers are finding you can't you can't progress if you don't address these things and yet our partners are in a position where if they don't want to participate they're not going to you know be trying to engage them and I think that's sort of a mismatch in models if you will I've watched programs evolve particularly in the juvenile side they know like 2004 and 2006 depot evolved into a more short term what the state needed and are dealing with some really difficult kids but I haven't seen the same in evolving from other agencies it seems like and I need to look at you know and I don't know how to get there and that's going to be a challenge going moving forward even if there's more of money available who's going to deal with these folks I agree with what Jim is saying it's really a philosophical paradigm shift and it's really the failure and you know I'm a counselor and chemist too but it's a failure to understand the criminal aspect of individuals ego structure and there is that as well as mental health when Senator Bennett is not here the easiest one to talk about is that the work camp is operated by the department and St. John is very saying no we don't want those people that you want to put there those other 50 beds but we want those people that can go out in the community and go to work they're already know they're not with us anymore because we've made such a change no I understand that I understand that but that's the dilemma they're saying fill those 50 beds so we can move people out of corrections into those 50 beds but the people don't exist you are you look at the population by and large those that are incarcerated are high-risk individuals which is what it should be would St. John'sbury like women? better than men? I don't know if you could ask I might well speaking on contracts we should probably look at the St. John'sbury contract well because I believe we're paying that money to it shouldn't have to go away there is a I mean putting on our appropriation tax for Senator Nicky and I would like to see a copy of the contract with St. Oldman's and how it involves the work camp itself and if the work camp is down to 50 people St. John'sbury what would I say? Albany you know that's enough there are too many saints in Vermont that's the problem well I still don't know I mean I had a constituent complain to me he was right 18 minutes he had to drive to Newport to pick up his son who was being released because you can't get released from Newport if you're not from Newport without somebody taking you out of town talk about it I think the same thing is true in Springfield but I'm not sure I think that was the deal that they struck with Springfield I mean that's a little ridiculous but on the other hand that's not where it's happened a big battle over I think it is worth having a real discussion about those 50 bets given that Senator Benning's chair of institutions Senator Kitchell's chair appropriations they may not want to discuss it but we do maybe they're like 18 to 25 year olds I mean particularly in support of having a much closer examination of the practices policies well that's what I was hoping to begin the discussion of today that was the real reason to have you here was not to berate you over your contracts however still still upsets me I wasn't going to speak about inside but it still upsets me that people that getting MAT inside are not required to at least attend a counseling session where they participate or not is up to them bugs me I know it does and why is that because it's based on medical necessity and it's not programming like program services where they're forced to attend I see but if you need it you obviously have a problem and if you have a problem at least you can attend the meeting you don't have to say anything you don't have to do anything, just go if you want the drug so you probably have a suit about it I don't care I would say everything we've heard is that it's now much more expensive a program than we originally thought if we added the mandatory counseling probably would be cheaper well I was going to say it would probably be a lot more expensive because you have to pay for the counselor right there's 692 people on a 19 this morning 692 that's almost half of the population that's correct because there's typically 15-15 not counting the out-of-state population when we say the out-of-state population but Senator Sears I do want you to be heartened by the following updates I can give you on that we'll be hopefully reviewing a substance abuse app on their tablets that comes from England that's a comprehensive multimodalized treatment and prevention service the recovery coaching is going I mean I get the therapy everywhere to a pantry group and the finalizing a process and coordination of the recovery network itself whereby they're going to develop a site on their website so if anybody who voluntarily wants to have a recovery coach upon release will be matched up with a recovery coach in their area and there will be a hot hand off and welcoming into the recovery centers themselves I think Turning Point just did a big article in Bravo Bro about that in the paper and then we also came and I have a meeting later this week to discuss our other challenge which is internal which is space in the facilities we are trying to roll out an evidence-based co-occurring treatment group called Integrated Change Therapy that was developed by Uncle Monter from the expert research so we're trying to literally find a space so that those groups can be statewide geographic inequity by only offering those groups in some places but we are really well-staffed increasingly so to deliver all the maps that support such a social council Do you have adequate sex offender treatment in the community? I would say we are down right now and other than that we have a contract with every area what I will say is that that is an area that is extremely challenging to recruit for and we do have as most of the community has an aging provider network so being very transparent I'm concerned about what the next three to five years brings in terms of our ability to continue to offer skilled intervention there I would be very interested in having a discussion either in here or wherever probably about how we provide housing as well as treatment to sex offender because that's a group that appears to be over the max can't be there or shouldn't be there so how do we provide treatment to that group and provide housing I had a meeting with Pathplays they said oh we don't care if there are sex offenders and I talked to people in Bennington they have a number of tools to our sex offenders they are generally going to be a challenge to get them out of the facilities I want to talk to you sometime about Pathways oh okay good, bad and different I don't have any violence I just want to talk to you about why they don't care if there are sex offenders oh anyway that would seem to be a challenging area to look at and I think also housing for people who have severe co-occurring is another huge gap as you know the residents are either substance abuse recovery or more mental health inclined and when you have both which again our population really only has both there's just a cliff that you fall off of they don't fit anywhere and then everybody wants to discuss what diagnosis is primary and whether or not it's secondary and the part of the problem also I think is that people who have the co-occurring even if they are even if they are housed even if they find a place they have some kind of a relapse and they lose their housing and I've been talking with I've been trying for years to get some kind of their term I didn't know what to call it but Mike Schirling calls it tune-up housing you might need some place safe and secure to go for a week maybe a month two days and get retuned up when you lose it and it would be cheaper for the system to do it that way then to have them recommit and they'll are back in intensive care anyway he's right there can I ask one question about I know this isn't what you were supposed to talk about today but did we create a mental health unit we talked about last year about Springfield was there a section there's a new pod that could be done there where are we? the update is this at Springfield we do have a full unit that operates as a mental health unit the programming was developed and put in place at the beginning of the summer ahead of the deadline and we monitor that now as part of our daily practice so I think some of the confusion comes in the mental health people people who are convicted of a crime and are in corrections population who have serious mental illness may be dealt with in that mental health unit there's a other group of people who are in a sense guilty by reason but not guilty by reason of insanity where we do not have a forensic unit in the state of Vermont and that may be in place that I don't know where we're going to go with that but that's part of the problem I think when a lot of conversations get confused about those two groups is it true we have about at any given time about five or six of the forensic not the people who are with serious mental health because again there's restoring companies there are a couple of different stages they can be in shared custody depending on what's transpired or they could only be in the custody of DMH in which case they deem that middle sex is not appropriate and then there's no charge which is the issue with the recent case unless somebody wants to re-charge them with something they can't be returned to the department well thank you very much we'll continue the conversation nice to see you