DMH counsel urges narrow forensic restoration authority for small group of defendants, lawmakers press for details

Karen Barber, general counsel for the Department of Mental Health, told the House Judiciary Committee on Thursday that the administration supports S193, a bill to create a narrowly tailored forensic competency‑restoration authority for a very small group of defendants who cannot be served in existing hospital or community settings. "There absolutely is a gap in the system. It's a human‑services gap, not a DMH gap," Barber said.

Barber said the statute would give the state the authority to define how individuals would enter and exit a restoration program and the parameters for supervision and conditions of release. She repeatedly emphasized that the proposal is not a replacement for hospital care: the bill exempts anyone who meets hospitalization standards and would couple competency restoration with treatment and public‑safety conditions when appropriate. "If you need to be in the hospital, we want you to be in the hospital," she said.

Barber told lawmakers incompetence is a legal standard that can result from many causes — mental illness, substance use, traumatic brain injury, dementia or communication barriers such as deafness — so the solution must span health and justice systems. She said risk assessments are appropriate clinical tools to identify treatment plans and supervision levels and that the bill is designed to focus on the "most serious" offenses where a court has found a defendant dangerous and unserviceable in less restrictive settings.

Committee members pressed Barber on where such a program would be housed and whether existing facilities could be repurposed. Barber described River Valley as a 16‑bed, locked, DMH‑run residential program licensed as a therapeutic community residence that provides 24/7 nursing and psychiatry on call, but she said the site is not a hospital and converting it to a forensic facility would jeopardize Medicaid reimbursement and alter its licensure and mission. "You would lose Medicaid," she said, explaining why River Valley could not simply be reclassified as a forensic hospital without broader consequences.

Lawmakers also asked whether Vermont currently has in‑state competency‑restoration capacity; a committee member asked, "Are there any places where folks can get restoration?" Barber answered plainly: "Not in Vermont. No." She said S193 would create a path to restoration and that the administration expects to return with a plan after the legislature provides authority and direction.

Several members expressed concern about placing non‑convicted defendants in the custody of the Department of Corrections. Barber said DOC already provides many services for people detained in its custody and that contracted providers such as Wellpath and the Columbus organization supply clinical staffing in corrections. She described existing coordination: qualified mental‑health professionals (QMHPS) trained under DMH rules and weekly case coordination meetings between DMH, DOC and contractor clinicians.

On constitutional and civil‑commitment questions, Barber said the bill is modeled on federal systems and includes due‑process safeguards — periodic reviews and petition rights — and that periodical judicial assessment would determine whether continued supervision remained necessary.

Barber and lawmakers discussed scale: she said the proposal would serve a very small number of people — she and other witnesses referenced an estimate of roughly three to five people per year — and cautioned that creating isolated, single‑purpose beds for extremely small cohorts risks denying access to broader services. Committee members asked whether AHS had considered contracting with neighboring states that operate forensic programs; Barber said she had not been part of such discussions and could not confirm whether out‑of‑state contracting had been explored.

Barber said the bill requires rulemaking, an interim report due in October and a separate budget request; if the legislature approves authority this year, agencies would use the summer to work on staffing plans, licensure questions, facilities and quality metrics and then return with detailed proposals. "We will be back in front of the legislature next year if you pass the bill," she said.

The committee raised operational concerns — staffing timelines, building modifications and oversight — and several members cited national guidance that behavioral‑health agencies should lead restoration programs while corrections provides operational support. Barber said the bill envisions AHS‑wide collaboration and that DMH lacks the full range of expertise to lead alone for cases involving substance use, TBI or developmental disabilities.

The committee recessed to hear other witnesses on the next agenda item; Barber said the October interim report will be the next major milestone for lawmakers evaluating whether to fund and authorize a restoration program.