An act relating to establishing a forensic facility for certain criminal justice-involved persons

Operational responsibility for the forensic facility shifted from the Commissioner of Corrections to the Secretary of Human Services. DoC may only provide security services at the admitting area and outside perimeter if the facility is colocated on correctional grounds.

Eligibility for competency restoration placement now requires that the person has been held without bail OR that release would create a substantial risk of bodily injury to another. The exclusion changed from 'person in need of treatment' under 18 V.S.A. 7101 to persons currently receiving treatment through a hospitalization order or DAIIL commitment (unless detained in a correctional facility pending trial).

Misdemeanor dismissal for incompetent defendants changed from 'with prejudice' (case permanently closed) to 'without prejudice' (case can be refiled). A hearing with victim notice is now required before dismissal for non-qualifying crimes.

New restorability proceedings added: if a court finds competency cannot be restored, a forensic risk assessment is required, a hearing must occur within 60 days, and the person may be committed in the least restrictive setting with annual reviews. Persons found to be in need of custody, care, and habilitation can be committed to DAIIL for up to one year.

Involuntary medication now requires the State's Attorney to establish by clear and convincing evidence four specific factors (medical appropriateness, important governmental interests, substantial likelihood of restoring competency, and that less intrusive alternatives are unlikely to work), rather than the court simply finding it clinically appropriate.

The forensic facility must now be designed and operated as a therapeutic, recovery-oriented, and trauma-informed environment comparable to community-based residential treatment. It must have 24/7 RN or physician availability, staff with appropriate qualifications and licensure, and an initial person-specific treatment plan within 72 hours of transfer.

Victim rights provisions added at multiple points: reasonable effort to provide notice of hearings, opportunity to be heard, and court may consider victim's views on the offense and preferences for placement and care.

Persons in forensic facility proceedings are entitled to have counsel appointed from Vermont Legal Aid. The defense is also entitled to conduct an independent evaluation when a competency or restorability evaluation is required and introduce results at the hearing.

At NGRI commitment hearings, the burden of proof shifted from the person (who had to prove by clear and convincing evidence they were no longer dangerous) to the State's Attorney (who must now establish by clear and convincing evidence that the person has a qualifying condition creating substantial risk). The initial hearing deadline changed from 40 days to 60 days after admission.

NGRI review petitions changed from every five years (filed by Commissioner of Corrections) to every six months (filed by State's Attorney). Persons can petition for release after 90 days and then no earlier than six months between petitions. Continued commitment is reviewed every 12 months.

New definition of 'qualifying condition' covering any condition (mental, congenital, or traumatic) resulting in a determination of incompetence to stand trial or not guilty by reason of insanity. This broader definition replaces the narrower 'mental disease or defect' language used throughout the official version.

Effective dates staggered: some sections take effect July 1, 2026; remaining sections January 1, 2028; annual reporting requirement July 1, 2029. An interim report with draft rules is due October 1, 2026. The legislative intent states the facility must be operational by July 1, 2029.

Rulemaking changed from emergency rules by January 1, 2027 to regular rulemaking with specific mandated content including staffing patterns and ratios, quality assurance standards, safety protocols, and potential requirement for a unit separate from other correctional populations.

The operating agency for the forensic facility changed from the Commissioner of Corrections to the Secretary of Human Services. The Department of Corrections is now limited to providing perimeter security if the facility is colocated on correctional grounds.

Added a new pathway: if a person's competency cannot be restored and they are found to be in need of custody, care, and habilitation under 18 V.S.A. section 8839, the court may issue an order of commitment to the Commissioner of Disabilities for up to one year (extendable by six months), with 90-day reviews.

Added a new eligibility exclusion: a person subject to an order of commitment under 18 V.S.A. section 8845 or section 4823 (unless detained in a correctional facility pending trial) is not eligible for forensic facility placement for competency restoration.

In not-guilty-by-reason-of-insanity proceedings, the burden of proof at the initial hearing shifted from the State's Attorney (who must prove the person poses a substantial risk) to the person (who must establish by clear and convincing evidence that they are no longer suffering from a mental disease or defect creating a substantial risk).

Release review frequency for NGRI-committed persons changed from every 6 months (petitioned by the State's Attorney) to every 5 years (petitioned by the Commissioner of Corrections), or sooner upon certification by the clinical services director that the person no longer poses a risk.

Misdemeanor charges against a person found incompetent to stand trial are now dismissed with prejudice (permanently) rather than without prejudice (re-fileable), if the case remains inactive for a period equal to or greater than the maximum sentence.

Removed detailed facility design and operational requirements including: therapeutic/recovery-oriented/trauma-informed environment comparable to community-based residential treatment, separation of population by sex or gender, 24/7 availability of a registered nurse or physician, initial person-specific treatment plan within 72 hours, and staff qualification/licensure/training standards.

Victim participation rights were expanded from a simple provision allowing victims to express views at NGRI hearings to detailed requirements in competency restoration proceedings: the State's Attorney must make reasonable effort to provide prior notice, the court must ask if the victim is present and offer them the opportunity to be heard, and the court may consider the victim's views on the offense and preferences for placement and care.

The evaluation trigger for competency assessments changed from a determination by the forensic facility's clinical services director to a determination by the Agency of Human Services Medical Director that the person is likely competent or unlikely to be restorable.

The initial NGRI hearing deadline changed from 48 hours after admission to 40 days after admission, giving more time for evaluation before the court decides on continued commitment.

Removed the interim report requirement (due October 1, 2026) that would have required the Department of Corrections to submit draft rules and facility planning information to legislative committees.

Effective dates changed from a staggered schedule (some sections July 1, 2026; remaining sections January 1, 2028; annual reporting July 1, 2029) to a single effective date of July 1, 2026 for the entire act.

The involuntary medication standard was simplified from a four-part test (medically appropriate, serves important governmental interests, significantly furthers those interests, less intrusive alternatives unlikely to work) to a two-part test (clinically appropriate and likely to aid in competency restoration).

Added explicit permission for witnesses at competency restoration hearings to provide testimony remotely, notwithstanding any other provision of law or rule.

Operational responsibility for the forensic facility shifted from the Department of Corrections to the Secretary of Human Services (Agency of Human Services). DoC employees may only provide security services at the admitting area and outside perimeter if the facility is colocated on a correctional facility's grounds.

Misdemeanor dismissal for incompetent defendants changed from 'with prejudice' to 'without prejudice.' A new hearing requirement was added before dismissal for non-qualifying crimes, with victim notice and opportunity to be heard.

The committing court is now explicitly required to retain jurisdiction over the person for all proceedings under the NGRI section.

The amendment to Vermont Rules of Evidence Rule 1101, which would have excluded competency restoration and conditional release proceedings from the rules of evidence, was removed from the enacted version.

A deadline of July 1, 2029 was added for the Secretary of Human Services to establish and operate the locked secure forensic facility.

The NGRI initial hearing timeline changed from 48 hours after admission to 60 days after admission, unless extended by the court.

The review schedule for long-term NGRI commitments changed from 'the shorter of every five years or upon certification' to a tiered schedule: six months after initial commitment, then three years, then every fifth year, plus at any time upon certification by the Agency of Human Services Medical Director.

Petitions for release by committed persons are now limited to once during each applicable review period (previously only a 90-day waiting period applied).

New eligibility requirement: a person must not currently be receiving treatment through an order of hospitalization or subject to an order of commitment to the Commissioner of Disabilities, Aging, and Independent Living, unless detained in a correctional facility pending trial.

A new provision entitles the defense to conduct an independent evaluation of a person's competency or restorability and introduce the results at the hearing.

A new pathway was created for persons whose competency cannot be restored: if the court finds by clear and convincing evidence the person is a 'person in need of custody, care, and habilitation' under 18 V.S.A. section 8839, the court shall issue an order of commitment to the Commissioner of Disabilities, Aging, and Independent Living for up to one year (extendable by six months for good cause), with 90-day review cycles while treatment continues at the forensic facility.

The involuntary medication standard was raised: the State's Attorney must now establish by clear and convincing evidence that the medication is medically appropriate, serves important governmental interests, significantly furthers those interests, and less intrusive alternatives are unlikely to achieve the same results (previously the court simply had to find these elements).

Victim rights were expanded significantly: the State's Attorney must make reasonable efforts to provide prior notice of hearings, the court must ask if the victim is present and offer them the opportunity to be heard, and the court may consider victim views on the offense and preferences for placement and care.

Release conditions were expanded to include supervision and housing in addition to medical, psychiatric, or psychological care, with oversight by the Commissioner of Mental Health, Department of Health, or Department of Disabilities, Aging, and Independent Living rather than the Commissioner of Corrections.

The burden of proof for readmission hearings was raised from preponderance of the evidence to clear and convincing evidence in multiple contexts.

Remote testimony was explicitly permitted for witnesses at competency restoration hearings and NGRI commitment hearings.

The emergency rulemaking requirement (Commissioner of Corrections to adopt emergency rules by January 1, 2027) was removed from the enacted version.

The definition of 'forensic facility' changed from a locked facility provided by DoC for secure evaluation, treatment, and care to a locked secure facility that provides a suitable clinical setting and is licensed as a therapeutic community residence under 33 V.S.A. section 7102(11).

Transfer criteria to the forensic facility changed: the introduced bill required the person not be deemed a 'person in need of treatment' under 18 V.S.A. 7101; the Senate version instead requires the person not currently be receiving treatment through a hospitalization order under 18 V.S.A. 7619 or section 4822, and adds a bail/danger requirement (held without bail under section 7553 or release would create substantial risk of bodily injury).

Persons committed under section 4819a may now petition the court for release on their own after at least 90 days following the commitment order, which was not available in the introduced version.

In NGRI commitment hearings (section 4819a), the burden of proof was reversed. The introduced bill required the person to prove by clear and convincing evidence they were no longer dangerous; the Senate version requires the State's Attorney to establish by clear and convincing evidence that the person IS suffering from a qualifying condition creating substantial risk of bodily injury.

New operational requirements for the forensic facility: therapeutic, recovery-oriented, and trauma-informed environment; 24/7 availability of a registered nurse or physician; initial person-specific treatment plan within 72 hours of transfer; staff qualifications, licensure, training, and supervision standards; ability to separate population by sex or gender; and possible operation of multiple facilities.

Competency restoration services changed from 'may include' to 'shall include' appropriate combinations of medication, education, accommodations, habilitation, or other services, making them mandatory rather than discretionary. Services may now also be provided at another location as part of a discharge plan.

Persons in proceedings under sections 4815a and 4819a are now entitled to have counsel appointed from Vermont Legal Aid to represent them.

New annual reporting requirement (effective 2029): the Department of Corrections must submit a written report by January 15 each year to legislative committees on the number of persons served and types of clinical services provided at the forensic facility.

The term 'mental disease or defect' was replaced throughout with 'qualifying condition,' defined as any condition whether mental, congenital, or traumatic, however acquired or developed, that resulted in a finding of incompetence to stand trial or not guilty by reason of insanity. This broadens the scope beyond purely mental illness.

The phrase 'serious damage to the property of another person' was removed from all dangerousness standards throughout the bill. The risk threshold is now limited to 'substantial risk of bodily injury to another person.'

The misdemeanor dismissal provision (section 4817) changed from dismissal 'with prejudice' to 'without prejudice,' meaning charges could theoretically be refiled rather than being permanently extinguished.

The NGRI commitment provision (section 4819a) was restructured: the introduced version applied to persons 'acquitted of an offense punishable by a life sentence pursuant to section 4819'; the Senate version applies to persons 'charged with an offense punishable by a life sentence and found not guilty only by reason of insanity at the time of the offense charged,' and clarifies it does not prohibit temporary transfer for inpatient treatment.

The NGRI commitment hearing deadline was shortened from 40 days after admission to 48 hours after admission. The evaluation before the hearing was changed from a psychiatric or psychological examination to a 'forensic risk assessment' with specified components.

New interim report due October 1, 2026 requiring the Department of Corrections to submit draft rules and address facility location, space considerations, staffing levels, contracting needs, and preliminary cost estimates with an anticipated timeline for development and initial operations.

Staggered effective dates: July 1, 2026 for the dismissal provision, rulemaking, and interim report; January 1, 2028 for all remaining sections (including the core facility and competency restoration provisions); and July 1, 2029 for the annual reporting requirement.

New provision allowing the court to find by clear and convincing evidence that a person cannot be restored to competency, in which case the court orders continued commitment under least restrictive conditions, or if release would not create substantial risk of bodily injury, orders release under a prescribed treatment regimen.

Involuntary medication approval now requires four specific findings: medically appropriate; serves important governmental interests of bringing to trial an individual accused of a serious crime and ensuring fair timely prosecution; significantly furthers those interests by making it substantially likely to render the defendant competent; and less intrusive alternatives are unlikely to achieve the same results.

On readmission after noncompliance with a conditional release order, the burden of proof shifted from the Commissioner to the State's Attorney, who must establish by a preponderance of the evidence that noncompliance creates a risk of bodily injury.

New victim rights provision: at any hearing under section 4819a, the victim may express views concerning the offense and preferences for the person's placement and care, and the court may consider the victim's testimony.

Rulemaking changed from emergency rules due by January 1, 2027 to regular rules with specific required content (staffing patterns and ratios, quality assurance, safety protocols, potentially a separate unit). The Commissioner must consult with Departments of Health, Mental Health, and Disabilities, Aging, and Independent Living.