A proposal to transform part of the Vermont Psychiatric Care Hospital into an adult forensic facility was approved by the Senate last month and is now being discussed in the House.
The plan, addressed in S.89, would remove two units totaling nine beds from the acute psychiatric hospital in Berlin to create a secure residential treatment facility starting in 2024. That part of the building would be reserved for people who have been charged with the most serious crimes, but who either have been deemed incompetent to stand trial or were found not guilty by reason of insanity.
Administration officials told the House health care and judiciary committees this week and last that repurposing part of the psychiatric hospital is needed because there is currently no place where people in that small group can legally and safely stay.
“We can’t put them in a hospital if they don’t need hospital level of care,” Emily Hawes, commissioner of the Vermont Department of Mental Health, told the judiciary committee last week. “We have a gap in our system to adequately serve those folks.”
Under Vermont law, someone found not competent to participate fully in their own defense cannot be held by the Department of Corrections beyond 15 days after that finding, said Karen Barber, a lawyer with the mental health department, in testimony this week. (Legislators are grappling with questions related to the competency process in another bill, S.91.)
But the court will often still put those individuals into the custody of the state — either the Department of Mental Health or the Department of Aging and Independent Living — through different types of legal processes.
Even among that group, the forensic facility would be appropriate only for those charged with a crime for which they would otherwise be held without bail.
“We’re talking about a very small group of people with very high needs,” Barber said.
Vermont is one of just a few states that does not operate a forensic facility, she said.
The forensic side of the building would require a lower level of clinical staffing than a hospital side requires, but would be locked and would provide 24-hour care, Hawes said. Staff would also still be able to involuntarily restrain someone and, following a court process, to require them to take psychiatric medication.
The River Valley Therapeutic Residence, a new 16-bed state residential mental health facility, scheduled to open soon in Essex, will not meet the need because state law does not allow involuntary procedures to occur there, Barber and Hawes explained.
“We had originally asked for the ability to do these things in River Valley and the determination of the legislature was not to allow us to do that,” Barber told the health committee on Wednesday. “So that does limit who can go in there.”
An amendment that “the facility shall not use emergency involuntary procedures” originated in House Health Care and was added to the 2021 capital bill, which provided some of the funding for the $25 million project.
Public defenders and advocates are split over the need for the new facility, who belongs there, and the process used to determine that.
“Vermont is absolutely in need of a forensic facility,” Defender General Matt Valerio told the judiciary committee, arguing that there is “no place right now that really appropriately deals with the folks in the small group of people with very serious crimes and very serious mental illness.” That has been true since flooding from Tropical Storm Irene closed the Vermont State Hospital in Waterbury in 2011, he said.
But Jack McCullough, who directs mental health legal representation at Vermont Legal Aid, said there is no need for a separate facility for people accused of a crime.
“This bill is a solution in search of a problem,” he told the judiciary committee last week.
People who enter treatment through the criminal justice system and those who are involuntarily committed by the court because they are a danger to themselves or to others without criminal charges need the same type of care, he said in testimony.
Plus, he said, the current proposal would reduce capacity for those who haven’t been accused of a crime when there’s already not enough space to meet the need.
There are currently 57 acute psychiatric hospital beds in the state, located at the state hospital, Rutland Regional Medical Center and the Brattleboro Retreat, Hawes told the judiciary committee. The plan in Berlin would reduce the number to 48.
“This proposal takes nine hospital beds offline, and we still have people waiting in emergency departments to get into the hospitals, both voluntary and involuntary patients,” McCullough said.
When asked in House Health Care if this change would increase pressure on emergency rooms, Barber said she thought it would not.
The patients waiting there are usually entering treatment voluntarily and need a less acute inpatient program, Barber said. There are currently seven hospitals across the state that can provide that kind of care, with a total of 142 adult beds, according to testimony from the mental health department.
The department expects the forensic units would actually open up acute hospital beds more quickly. “We do hope it will contribute to (improving) the flow of the system,” said Barber.
Also, Hawes and Barber explained, by 2027, the federal Medicaid program will only be reimbursing the state for care provided in stand-alone psychiatric hospitals with 16 beds or fewer. Relicensing nine beds as a forensic therapeutic residence would make the Vermont Psychiatric Care Hospital eligible for those funds.
Rachel Seelig, who directs the representation for people with disabilities for Legal Aid, and other advocates told the judiciary committee this week that it was not appropriate to consider placement in a forensic facility for that group.
After the closure of the Brandon Training School in 1993, the Vermont state government committed to serving people with developmental disabilities in its custody in a community setting, she said.
“We would be taking a huge step backwards to say we can’t serve these people in the community,” Seelig said.
Stuart Schurr, a lawyer for the Department of Aging and Independent Living, told the committee later that the option would only be considered in the rare cases when less restrictive residential placement was not possible for safety reasons.
“We have individuals who do present a serious risk of harm to not only the community but to their staff that are working with them,” Schurr said.