 It is Tuesday, March 16th, 2021, still meeting remotely over YouTube and this is Senate judiciary. The subject this morning, the first subject is S3, which is currently in the Senate Appropriations Committee. So we got a late, I'll say late, that's not his fault, an email with a letter from AJ Rubin, supervising attorney with disability rights, who wanted to comment on certain sections of the bill. You might want to, for the benefit of people who are watching and don't know kind of how we work at this time of the year, we were scheduled to meet at 1030 and you might just let them know why we're meeting not at 1030, but later so that they don't wonder if we met without being live. Thank you. We did not meet without going live. We were on the floor late because of debate on an elections bill. And I'm proud that Ramon, at least the Senate is trying to make elections easier for people at a time when other states are trying to make it more difficult. We appreciate the Senate Government Operations Committee and the amendment from Senator Benning, which took quite a bit of time to discuss. So that's why we're late. So please, AJ, go ahead. It's S3. And thanks to Peggy. I guess the agenda did say after the floor. Yeah, we changed over the weekend. Peggy was always good. She and I worked this weekend on the agenda as I got information from the OTEM about floor schedules. Thank you. Disability Rights, you have a letter. I think it's posted March 11th, 2021. AJ? Yes, please. Thank you again for having me, AJ Rubin, from Disability Rights for Month. I want to say that the bill overall is really fits the need right now in terms of many of the aspects of it. The only thing I wanted to raise today with the committee is a concern about the section on reporting information about the status of someone on an order of non-hospitalization that's on section C on page 6 of 11 of the bill is passed by your committee. Just to briefly summarize the issues I think that the legislature should keep in mind when considering this is that I understand absolutely the need to assure the public and especially victims of crime that when someone is found not guilty by reason of insanity or not competent to stand trial that that person will not represent a danger to the victim or anybody else in the future. And that is why if someone cannot be held criminally liable and punished, they must be considered to be placed in the custody of the commissioner of mental health. And we as a society demand that the commissioner of mental health make sure that person is kept safe. So there is a public safety aspect to that. So I understand that's an important value that we have. Concerns about this section of the law include that as far as I can tell no other close states really no other states I could find or the federal government require the kind of information that is being requested to be reported. And again, the bill purports to require that if the commissioner becomes aware that the treatment plan is inadequate or the person's not complying that they notify the prosecutor and the court of the criminal case with the I think the implied expectation that that person or entity might notify the victim. So as far as I can tell no federal or state law allows that type of information to be disclosed. But what is clear is that when people leave custody or abscond or they're not going to be under custody anymore or they're moved from a lock setting to a non lock setting that type of information is generally disclosed and is not something that would put this law at risk of a legal challenge. This new stuff about the ONH so unique that it it lends itself to being questioned. I look very carefully at the federal regulations involving HIPAA there is an exception for judicial requirements but even that exception requires things like giving the person notice that their information is being disclosed giving them an opportunity to consent. All those things are not part of this bill so it leads me to think that there's more research to be done on that small aspect. From a practical point of view from a victim's point of view I'm pretty sure that many victims would not want to be notified that the person who victimized them is not complying with their treatment plan or maybe the treatment plan is not sufficient because there's no teeth to that that basically causes people anxiety to think oh my god maybe I'm at risk. There are laws in place now that if the designated agency who's doing this work or the commissioner or anybody else thinks the person is intimately dangerous they can be picked up on an emergency exam or the designated agency and the commissioner can file a motion to revoke the ONH. That happens when the professionals think there's a real danger and and we have to act but this middle ground that the the bill seeks to to focus on is is very vague so there's a concern from the victim's point of view and I will reiterate that my office represents victims all over the state of Vermont you know victims of serious crime with disability so I have feeling and experience in that realm from another you know another concern that we think the legislature should consider is the practicality of this the law as it's currently written says that if the commissioner becomes aware she or he or they have to report this but there's no mechanism to become aware and there's no requirement in the bill that the commissioner become aware and I don't think that that happens currently because as you know the designated agencies are the ones who do these orders in the in the in the community and it's not clear to me that they're letting the commissioner know when there is a a non-compliance with the treatment plan which could be as as simple as drinking beer once or not coming to an appointment once or could be really bad but not the level of asking for an EE so practically speaking the logistics seem problematic there's an issue about what the designated agencies and the people doing the therapy are going to feel like when they have to report to the commissioner if they if they do non-compliance so there's a practical issue as well I think that there is a legitimate problem with orders of non-hospitalization there are 300 or so people according to the Department of Mental Health just in you know unofficial conversation about 300 people on all nations around the state most of them are not people who came through the criminal court system I believe but there's a lot of them there's very little oversight of this as far as I can tell I was part of a committee a couple of years ago that the Department of Mental Health organized discuss orders of non-hospitalization I can tell you that there was a a large faction of people on this 40 person or 30 person committee large faction who felt that we shouldn't have orders of non-hospitalization because they're so ineffective and they give everybody a false sense of security so against that background to try and the problem is is that if someone gets ordered into an ONH the community has a right to think that we're safe that that person's under treatment I would posit to you that a less legally fraught way of dealing with that need that legitimate need rather than have this sort of new groundbreaking law that requires this really strange notice under weird circumstances vague circumstances the best way that I think deal with this would be to require that the Department of Mental Health institute a practice that the Department of Aging and Independent Living has instituted recently and that is this thing called a commissioner's warning my understanding is that currently and just recently when the commissioner of dale disability aging and living when they pay for someone to be funded for a community placement in the in the community if anybody who's part of that person's team the office of public guardian a low level you know service provider and administrator if anybody feels that that person receiving dale funds is at risk because they're not complying with their treatment plan or the treatment is not adequate to their need there is now an automatic way that they can not only just go to their supervisor but go directly to the commissioner's office and say hey this is something that deserves more attention than we're getting through the normal chain of command it's not enough to say II or put this person away but it alerts the commissioner and puts them on notice that there's something more to be done to me that's what the problem solving way to deal with this would be not this sort of vague and fraud and kind of ineffective idea that if someone's not complying with their treatment plan somehow the court how can you determine that's ineffective before it's even effective well you know the people on the ground who are doing this work I think they've got a good handle on it this reminds this whole debate reminds me of the Kugelkowski tragedy right and of course and but this you know this bill on the ONH is not going to have an impact on that because a it's not clear the department would ever know that that the person in that case was not taking their medication nor is it clear that if they knew that they would you know that alerting the court or the prosecutor would have any impact you know what what needs to happen is the person either has to be determined so dangerous they could be taken off the street or the power of the government has to be focused on making sure they get the right support so they're anymore and and that and this is about community services this is not about notifying people of things that are vague and maybe going to not be effective so these roles to consider again I on behalf of DRVT and the people we represent around the state we very much support the vast majority of this bill it's a long time coming this one little section seems fraught with problems and that might be a better way to address the issues that are involved and I would you know I think there's a possibility of legal challenge given my research on it so those are the things I just wanted to make sure I am grateful for the time to appreciate that I wanted to give some time since this draft language basically came from the attorney general and the state's attorneys I wonder if they have any comment David. Good morning senator uh David chair with the attorney general's office for the record I think attorney Rubin certainly correctly identifies the problem we're trying to solve and I think has a clear understanding of it which is that there are times when people who were defendants and under this statue you know a case will remain pending in order for this to happen had serious there are serious concerns about that individual and about public safety problems that they may pose either generally or to a particular victim and there's been frustration among prosecutors generally both state's attorneys and our office around not being able to learn information about what may or may not be happening with that person and a sense that some more information sharing there could be helpful I certainly acknowledge and this is something we discussed that the mechanism proposed may not be perfect it may not get all information I understand that there are going to be decisions made by designated designated agencies and clinical providers around what information may or may not be shared with DMH and understand of course that there is a remedy a potential remedy solely on the family core side of things where a order of non-hospitalization could be reworked or changed to an order of hospitalization if it's not working so I understand that there are potential alternative mechanisms and there are imperfections in the proposal here with respect to the HIPAA issue you know I will acknowledge here not being an expert on that we did discuss it a bit with legislative council and I will let them make representations about their read of this my understanding is that they felt comfortable advising this committee that the proposals were within the law but again I don't want to speak for them and I frankly rely on their representations on this as well but I have reviewed the case that they were talking about it certainly seems to me that they are on solid ground on the basis of the relevant case they're working with all that being said our proposal our belief rather is that what we have is an imperfect proposal that's better than nothing that at least has a fairly strong argument that it is or you know a decent good faith argument that were within HIPAA regulations and I would also note that there is a longer term that we really envision this as being a stop gap it may ultimately be an imperfect stop gap it may be one we're not at all information that prosecutors would like to get is received but it is a stop gap that will hopefully take that will help a bit and take us through to a period where the forensic working group comes up with a much more comprehensive change to the laws and how Vermont deals with these issues which I think there is broad agreement is overdue and that's where we stand on it appreciate attorney Rubin's concern I think they're reasonable concerns but our belief is that it is a perhaps an imperfect solution but one that we hope will provide a little bit more information that can be helpful to prosecutors and protecting public safety and we will ultimately we hope in the next few years turn towards a more comprehensive solution we should help made pepper did you want to comment for the record James pepper department of state attorneys and sheriffs I I don't have much to add to what attorney share just noted I mean we did struggle with this section especially kind of what AJ Rubin was talking about what is the kind of next step once the notice has been given we think that this will dovetail nicely with the work of the forensic working group and hopefully this will help provide a little bit more information to the prosecutors when people are not voluntarily complying with their orders of non-hospitalization I want to say that this comes on the heels of yes either Saturday or Sunday I received a call from a constituent after the Bennington banner ran an article about this bill and that had gotten the impression that Mr. Pronto who's the alleged perpetrator in the crime in Bennington that the witness talked about had been released and I told him that wasn't true that the bill did try to deal with that if he were released but that he wasn't released but I think many times the general public sees the use of this mental health system as a way of avoiding responsibility for the actions in a particular particularly some of the in a criminal activity the lack of before I'm glad you brought up the lack of forensic response in Vermont I think that is ultimately the solution Senator White So I just want to make sure that I understand we're not talking about the 300 people who are on ONHs we're only talking about those who are on ONH because they entered through the criminal a system right criminal justice system and then I just want to make sure what AJ is saying if if the part that you're particularly opposed to is the section that says that if the treatment is not working or is not sufficient and I have some sympathy with that because I'm not sure I think that is so subjective on the part of the agency that's providing the treatment or the worker so is that the section particularly that you're opposed to or is it that whole section So thank you for the question and to be clear I'm not I'm not lobbying either way for the bill so I wouldn't say I'm opposed to it from a lawyer point of view in my position it looks to me like an employment opportunity for me right so I think the small section of that bill that says that the department has to when it becomes aware tell other people about somebody's progress in treatment you know that looks like it clearly violates HIPAA because I done the research and despite less counsel it doesn't seem if it doesn't provide for notice and an opportunity to consent it's going to be a violation of that section also it's not effective so it just seems that there is a there is a real problem and there should be a real solution and this small part of the bill seems like it's going to cause more harm than good so it's I think it should have more consideration that's what I'm suggesting so it's it's it's that part only but the part that refers to absconding and stuff that is fine yes and I okay fine is because most other jurisdictions have that law and the federal government law so it has been determined to be something that's acceptable whereas this thing as far as I can tell is unique yeah that's what I that's what I thought I just wanted to make it clear that that's what you were um objecting to I I would suggest that we actually take out that one line and um cut that the um committee come commission or council or whatever we're calling it comes back with a recommendation um after doing more research could you be more specific as to the line yeah I don't have the bill right here in front of me but it's the one that um there's a couple different reasons there one is if the person obsconds and one is if the treatment is not working or not sufficient the that line that addresses the treatment not working or not sufficient Eric probably has it right in front of him so it's on page six lines uh 12 through uh okay but senator why there there's two different provisions there they're that regarding notice one is about person not complying with the oh and h yeah the other is about alternative treatment not being adequate to meet the person's treatment right both of those those are the two yeah I think pieces you're referring to exactly thank you I should note two things there and I think attorney sure would probably have the cross weapons better I believe that is based on a current statue that uh requires notice um when the court notices either one of these two circumstances coming into uh coming into play when a person is on an oh and h um but that doesn't require the current statute doesn't require notice to the state's attorney or the ag I think it's just the court in order to probably reconsider what the plan ought to be and the last piece on the on the HIPAA HIPAA point is that uh we're actually looking at a different exception than the one that that uh attorney Rubin mentioned that's the required by law exemption it's the one where we feel comfortable that that if the the legislature decides to mandate in law that information be disclosed that uh that uh that would comply with that particular exemption to HIPAA and we found a couple of cases on that that seemed to support our reading I agree with attorney Rubin that under the other exemption he mentioned it would not qualify uh but we're looking at a different one again not that it's certainly it couldn't be argued the other way and obviously oh that's something for that the courts might have to look at if the litigation came forward but we feel at least feel like there's authority for for uh the legislation as it is right um I need again I'm I'm unable to find the section that you're proposing to strike could you read it please it's Senator Sears it's as uh as was mentioned it's on page six uh lines 12 through 20 it's subdivision C capital C okay as you're using the subdivision victim as the same meaning no starts just below that line subdivision C right after that when a person has been committed under this section okay yep and is subject to a non hospitalization order correct this is the uh piece that that's separate from the victim notification this is a separate um a separate notification requirement one specifically applies when a person is already in the community on an ONA so they're already in the community on the order of non hospitalization and one of these two things happens if you look at uh Roman numeral one and two either the person is not complying with the order or the alternative treatment has not been adequate to meet the person's needs if either one of those um circumstances uh are um discovered by the commissioner then the commissioner has to provide notice about that to the state's attorney or the AG's office but that's at the heart of the let me go back it seems to me that that's the heart of the whole issue that we were trying to solve I'll go back to the original February 22nd um the Emily Hannon case highlights three significant issues his killer her killer was charged with false information in February of 2015 sent to a repetitive board where he completed in July of 2015 a few months later in October of 2015 he's charged with domestic assault placed on probation with mental health conditions in February of 2016 2016 he was supposed to work with young counseling service the young counseling service does not share information from my agency in any cases not just this one within months this is from Erica Marci within months he violated his probation was brought back to court given stricter probation conditions again focused on mental health with united counseling service a year later he violates his probation again is placed on probation with mental health conditions requiring to work with designated mental health agency UCS he violates again within a month and now his defense attorney starts to argue competency during 2018 submitted to the state hospital dmh is entered as a party to the criminal proceeding state attorney's office does not receive any information from dmh in fact we are told we're not entitled to the information we cannot tell his victim at that time anything about his whereabouts again in 2018 the defendants found not competent the state attorney's office requests the hospitalization during dmh intervenes as a party here's where the frustration comes from dmh is not only is not recommending hospitalization dmh controls the only potential witnesses the doctors at the hospital and the state attorneys are not entitled to any of the information from the state hospital we have nothing to offer to support in order of hospitalization and need to withdraw our request as we know from above an order requiring to work with UCS united counseling service has no value for him and it's not prevented for other criminal activity law enforcement interacts with him a few more times for threatening the neighbors but again law enforcement has no tools to assist in determining his level of dangerousness criminal defendants with mental health issues that have been through the system are where there's little we'll be able to do significant issues within the current system and that's when we get on to and that's the reason for this in my opinion section and why it's necessary to have i think if you you know you don't look at february of 2021 they murders actually january allegedly murders and i think the evidence of guilt murders a young lady at 11 0 5 a.m. and downtown by slitting her throat that's the sky and that's the history that's presented and that's why we're trying to change the law and i think if we can't give that information to uh and i agree that maybe the forensics committee will come up with a better solution but people are dying people are not safe no hey jay thank you for the opportunity it's you know it's a tragic outcome and again i see this you know all over the state um and it does happen it just seems like the way to fix the problem is to increase the support and the capacity in the community so that when someone like that starts getting out of control there is a response to it and and again this idea that if the commissioner becomes aware and they even tell states attorney marthage that the person's not complying there's no there's no way that's going to translate to more public safety that will just add to more concern which might translate to more funding for community supports which would support the problem but but it seems like a backwards way at trying to address an important problem and just i want to just reiterate that i have done the research on the section of hippa that that leis council eric for fabric is discussing and i'm i'm pretty confident that that the law doesn't mean that if that any state law is is okay to disclose protected but yes you know we've already passed the bill out of committee and i'm waiting and i'm not uh i'm just i'm i'm not going to get into the hipper argument here is i think i'm trusting our legislative council on the other hand this issue of removing senator white is opposed removing this and that's why i would oppose it till we have a better solution to somehow karen barber do you have a thought i do i just wanted to clarify something senator sears for the record karen barber general council for dmh being on probation and having mental health conditions is different than being on an order of non hospitalization so um the way you are talking about it i can't comment on a specific case but someone being on probation that that's a different issue than someone being on an oan agent so this provision would not be in effect if someone was on just probation i know but the reason that he's not on probation any longer is because he wasn't confident okay and that would be triggered by the first division because he wasn't competent doesn't mean he's not a danger to the to other people that's the problem he's a dangerous other people and we're not protecting other people now we can go back and forth and go on and on and on but these are people who this person has acted out in a violent manner previously now that he's found incompetent is he not is he then free to continue to act out in a violent manner and that's where the problem comes in he should not be and how do we solve that problem united counseling service obviously not able to handle this individual it may be more community supports maybe rapper i don't know it's not my job to figure out what it is my job is to protect the community that's what judiciary is about and because he was no longer on probation or no longer in the criminal justice system now in the mental health system he gets a free ride to murder that's what's wrong and i i'm really worried that if we take this section out we lose that now if the state's attorneys and the attorney general feel that we can modify this section i'm off for that we do not feel that a modification is i mean we we struggled with this just as we're struggling in the committee today with this section ultimately ultimately we feel if someone's not compliant someone needs to know about it and it needs to be reevaluated whether an oh is appropriate or some other course of action is appropriate i mean essentially this is saying someone's not doing what they're supposed to be doing um and so we need to reevaluate the situation so i i mean it's it's imperfect and you know aj has been a great uh vocal supporter for public safety for as long as i've known him um in these situations but you know it's something that we struggled with uh with the attorney general and erica and department of mental health this was the language that we ultimately decided that we um could all live with and that it would uh you know be legally sustainable senator whites disappeared from my screen i hope i hope she's okay do other people see senator white no she's gone from the screen no no hopefully she was trying to come back in soon hope so um so this has been a helpful discussion if there are alternatives to the language so that somebody starts with public safety you just it's not an issue if the person's not released you know the dmh has that possibility that person is when they're on a non hospitalization order and that is failing that's there's another way of getting information garen did you have thoughts or morning fox thoughts about better ways anyone i'm not i'm for the record morning fox deputy commissioner for department of mental health i'm not sure i have suggestions of how to make it better at this moment i did appreciate attorney rubens uh i think it was actually no i think it was senator whites uh suggestion of taking this language and making a part of kind of the study committee to to really kind of look at and ensure kind of how it operates and how it does function um so i think you know there are i agree with attorney's pepper and sure as well it's not perfect language but it is getting us in a direction that i think we're all wanting to head towards and i think it's important to take note of what a j ruben mentioned as far as notification and to what end and what would be the outcomes there uh and and i i get your point mr chair that the difference between probation or when someone's been found incompetent that now probation is no longer an option and so how do we weave that into say an order of nonhospitalization and having some of those similar notification pieces you know i've testified before this committee many times about the desire to to work with folks around that victim notification piece because it has been lost on the mental health side of things and so you know like i said it's i don't think this is perfect language there's there's some gaps in here that you know i think just we'll leave question on how we get how we get notified um and to who makes the determination if if a treatment is not working well some of those types of of of questions will definitely come up but i think it's a it's a workable piece of legislation as it is and if if the committee so chose to keep the language as is and i think it's something that's that's that's workable it very well may get challenged in court as attorney ruben mentioned and we'd see how that plays out if the committee felt that there's a chance that we could work on this a little bit further to avoid such a such a court challenge um then i would i would go with uh senator white suggestion of taking this language and making it a part of the specific charge in the forensic study group um that that that group comes back with recommendations around orders of nonhospitalization and notifications related to it thank you senator baruth uh thank you mr chair i i can see both sides of this argument and i i think sometimes you have to decide where the risk is greatest so given the risks on either side i would prefer to risk a challenge in court um which is a uh a civil nonviolent um function of government as opposed to what we're trying to prevent so um i would be for leaving the language as it is uh and maybe continuing discussions as it moves through the building um so that we could potentially uh change it later on in the process or next year but i think the chair is right um inaction on this is is not an option i think we can still write something into the study that has them look at this particular issue either uh katie or eric if you can draft some language for us that would have the study look specifically at um how dmh would get notified and as agay said the you know the united counseling service may not let dmh know or they would know um if the commissioner becomes aware to look at you know some to make make sure that the forensic study committee looks at this issue how they're going to get information to the court and to the state attorneys or attorney general and it may be that the alternative treatment has not been adequate to meet the person's treatment needs and that's a little that that might be the other body may have some alternate language there keeping the same thing in mind so the forensic care working group centers here is that's have them take a look at yep yes well i think it would be them and again this makes clear that people who have not everybody is not in order what's the other working group the other is just an assessment of mental health services in the direction i don't think it would really fit with them no we really wasn't there um but part of the problem is that these individuals tend to stay longer people with mental health issues where there's a competency evaluation needed again to stay longer in jail than on detention than other populations who are detained that's what that other study tries to look at okay um are we good senator i we don't know what happened to senator white oh my guess is probably um technical should we call her uh Peggy's emailed her oh okay but we may try to share her internet maybe out you know this is Vermont and this is 2021 and we're spending millions on internet connection but it doesn't always work thank you very much a jay and everyone else um we should we'll work on that amendment eric maybe thursday we can bring it to the committee senator sears did you want to have morning just repeat his testimony with regard to the need for the money oh i thought we were yes right did you do you remember i didn't remember your testimony about the need for 250 000 that i saw her in the um i knew i know that i heard the legal aid but then when i saw her nolan's fiscal note can you be more specific about the 250 000 dollar request or it would uh to help cover the the additional costs of uh attorney time for actually being uh able to call witnesses and be a part of those hearings similar to legal aid taking on those cases although we wouldn't be party status but we would take on more cases where we would be involved and and so a chunk of it is for that as well as for the cost of uh examinations further forensic evaluations can i just ask um i please i always um i'm interested when there are round dollar amounts um was that's a was the primary impetus for 250 because legal aid got 250 and it was just uh paralleling their request or is there some calculation that supports it no we did some calculations and it's actually there's a we actually have arranged it that i don't have in front of me uh but we had like basically a low of uh approximately like 215 or 213 000 and a high of something like 285 where it was kind of the range of what the potential cost would be so my testimony of the 250 was really just trying to make it a nice rounder a rounder number that kind of was in the middle of of our range range piece but uh we actually have the actual documentation i believe that we provided to Nolan but uh Karen can confirm that for me i have the exact numbers if that's helpful yes um so on the low end for legal aid was 245 for independent evaluations we had 120 and for dmh cross we had 95 so that would be 460 000 on the high end legal gave uh legal aid gave 265 we had 150 in there for independent evaluations and dmh 155 um so that would have been 570 so we kind of uh just tried to round in the middle well appropriations will look at it i'll be do what they normally do and take the money out and put it in with the big bill but okay anything else on this bill where we get to the s25 quick question on the quick question on the amendment center here's is it uh i think the is the is it on notice currently right no it's gone to appropriations oh that's right oh we got referred today yes oh great okay so it's on appropriations will have to be voted out of there um you know it would need to get voted out in appropriations and then come to the floor at that time i think we could just do an amendment to the yeah to the study study myself and anyone else i think at that point it's an amendment so myself and any other member of the committee wanted to join in the amendment would be able to do that great we'll do thank you thank you any other comments on s20 on s3 um we've only got like five minutes and senator white's not here so Peggy i think we will just um go offline oh michelle is here um what before we go offline michelle what's your availability Thursday or Friday um i do have some time up and i can work with Peggy to find some some time what is it that you would like to do i'd like to know what at some point somebody's gonna have senator senator white hopefully has to report the marijuana bill on the floor and what she does hopefully we have the she'll have the we'll have added the government operations amendments or they're already in there they're what you voted on Friday okay are there any things from the agriculture committee no they're uh as i talked about last week their recommendation was to allow the board to proceed as you set for set out in act 164 and they think they have plenty of opportunity to chime in as things move along with the system um but they felt as though they didn't have the data that they would need in order to be able to um be addressing some of those issues that the the agriculture witnesses brought up and so uh my end so it'll be in finance this week so i'm working on that and i'm gonna address the issue of um you know we have that because there's no board and the board is supposed to report to you april first on its budget on its proposed budget and its tiering and its fees which they you know can't happen so i'll be working with senate finance this week on trying to find an alternative to that thank you