The Vermont Statutes Online

Title 18: Health

Chapter 206: Care for Persons with Intellectual Disabilities

• § 8820. Purpose

  The purpose of this chapter is to establish procedures for determining appropriate care for persons with an intellectual disability in Vermont. (Added 1979, No. 167 (Adj. Sess.), § 1; amended 2013, No. 96 (Adj. Sess.), § 114.)

• Subchapter 001: COMMITMENT AND REVIEW PROCEEDINGS

• §§ 8821-8834. Repealed. 1995, No. 174 (Adj. Sess.), § 2.

• Subchapter 002: PROVISION OF SERVICES

• §§ 8835-8838. Repealed. 1995, No. 174 (Adj. Sess.), § 2.

• Subchapter 003: JUDICIAL PROCEEDING; PERSONS WITH AN INTELLECTUAL DISABILITY WHO PRESENT A DANGER OF HARM TO OTHERS

• § 8839. Definitions

  As used in this subchapter:

  (1) “Commissioner” means the Commissioner of Disabilities, Aging, and Independent Living.

  (2) “Designated program” means a program designated by the Commissioner as adequate to provide in an individual manner appropriate custody, care, and habilitation to persons with intellectual disabilities receiving services under this subchapter.

  (3)(A) “Person in need of continued custody, care, and habilitation” means a person:

  (i) who was previously found to be a person in need of custody, care, and habilitation;

  (ii) who poses a danger of harm to others; and

  (iii) for whom appropriate custody, care, and habilitation can be provided by the Commissioner in a designated program.

  (B) As used in this subdivision (3), a danger of harm to others shall be shown by establishing that, in the time since the last order of commitment was issued, the person:

  (i) has inflicted or attempted to inflict serious bodily injury to another or has committed an act that would constitute sexual conduct with a child as defined in 13 V.S.A. § 2821 or lewd and lascivious conduct with a child as provided in 13 V.S.A. § 2602 of this title; or

  (ii) has exhibited behavior demonstrating that, absent treatment or programming provided by the Commissioner, there is a substantial likelihood that the person would inflict or attempt to inflict physical or sexual harm to another.

  (4) “Person in need of custody, care, and habilitation” means a person:

  (A) with an intellectual disability, which means significantly subaverage intellectual functioning existing concurrently with deficits in adaptive behavior that were manifest before 18 years of age;

  (B) who has inflicted or attempted to inflict serious bodily injury to another or who has committed an act that would constitute sexual conduct with a child as defined in 13 V.S.A. § 2821 or lewd and lascivious conduct with a child as provided in 13 V.S.A. § 2602; and

  (C) for whom appropriate custody, care, and habilitation can be provided by the Commissioner in a designated program.

  (5) “Victim” has the same meaning as in 13 V.S.A. § 5301(4). (Added 1987, No. 248 (Adj. Sess.), § 9; amended 2013, No. 96 (Adj. Sess.), § 114; 2013, No. 158 (Adj. Sess.), § 11, eff. July 1, 2017; 2015, No. 23, § 66; 2015, No. 97 (Adj. Sess.), § 51; 2017, No. 113 (Adj. Sess.), § 103; 2023, No. 137 (Adj. Sess.), § 26, eff. July 1, 2024.)

• §§ 8840-8843. Repealed. 2023, No. 137 (Adj. Sess.), § 26, eff. July 1, 2024

  (Added 1987, No. 248 (Adj. Sess.), § 9; repealed by 2023, No. 137 (Adj. Sess.), § 26, eff. July 1, 2024.)

• § 8844. Legal competence

  No determination that a person is in need of custody, care, and habilitation or in need of continued custody, care, and habilitation and no order authorizing commitment shall lead to a presumption of legal incompetence. (Added 1987, No. 248 (Adj. Sess.), § 9; amended 2023, No. 137 (Adj. Sess.), § 26, eff. July 1, 2024.)

• § 8845. Petition and order for continued custody, care, and habilitation

  (a)(1) If, prior to the expiration of any previous commitment order issued in accordance with 13 V.S.A. § 4823 or this subchapter, the Commissioner believes that the person is a person in need of continued custody, care, and habilitation, the Commissioner shall seek continued custody, care, and habilitation in the Family Division of the Superior Court. The Commissioner shall, by filing a written petition, commence proceedings for the continued custody, care, and habilitation of a person. The petition shall state the current and relevant facts upon which the person’s alleged need for continued custody, care, and habilitation is predicated.

  (2) Any commitment order for custody, care, and habilitation or continued custody, care, and habilitation issued in accordance with 13 V.S.A. § 4823 or this subchapter shall remain in force pending the court’s decision on the petition.

  (b) Upon receipt of the petition for the continued custody, care, and habilitation, the court shall hold a hearing within 14 days after the date of filing. The hearing may be continued for good cause shown.

  (c) If the court finds by clear and convincing evidence at the time of the hearing that the person is a person in need of continued custody, care, and habilitation, it shall issue an order of commitment for up to one year in a designated program in the least restrictive environment consistent with the person’s need for continued custody, care, and habilitation. If the court finds at the time of the hearing that the person is no longer in need of continued custody, care, and habilitation, it shall discharge the person from the custody of the Commissioner in accordance with section 8847 of this subchapter. In determining whether a person is a person in need of continued custody, care, and habilitation, the court shall consider the degree to which the person has previously engaged in or complied with the treatment and programming provided by the Commissioner. (Added 1987, No. 248 (Adj. Sess.), § 9; amended 2009, No. 154 (Adj. Sess.), § 152; 2023, No. 6, § 217, eff. July 1, 2023; 2023, No. 137 (Adj. Sess.), § 26, eff. July 1, 2024.)

• § 8846. Right to initiate review

  A person may initiate a judicial review in the Family Division of the Superior Court or an administrative review under this subchapter at any time after 90 days following a current order of commitment or continued commitment and not earlier than six months after the filing of a previous application under this section. If the court or Commissioner finds that the person is not a person in need of custody, care, and habilitation or continued custody, care, and habilitation, the person shall be discharged from the custody of the Commissioner pursuant to section 8847 of this subchapter. (Added 2023, No. 137 (Adj. Sess.), § 26, eff. July 1, 2024.)

• § 8846. Right to counsel [Renumbered]

  (Added 1987, No. 248 (Adj. Sess.), § 9; renumbered to 18 V.S.A. § 8848 by 2023, No. 137 (Adj. Sess.), § 26, eff. July 1, 2024.)

• § 8847. Discharge from commitment

  (a) A person committed under 13 V.S.A. § 4823 or this subchapter may be discharged as follows:

  (1) by a Family Division Superior Court judge after review of an order of custody, care, and habilitation or an order of continued custody, care, and habilitation if the court finds that a person is not a person in need of custody, care, and habilitation or continued custody, care, and habilitation, respectively; or

  (2) by administrative order of the Commissioner regarding an order of custody, care, and habilitation or an order of continued custody, care, and habilitation if the Commissioner determines that a person is no longer a person in need of custody, care, and habilitation or continued custody, care, and habilitation, respectively.

  (b) A judicial or administrative order of discharge may be conditional or absolute.

  (c)(1) When a person is under an order of commitment pursuant to 13 V.S.A. § 4823 or continued commitment pursuant to this subchapter, the Commissioner shall provide notice to the State’s Attorney of the county where the prosecution originated or to the Office of the Attorney General if that Office prosecuted the case:

  (A) at least 10 days prior to discharging a person from commitment or continued commitment;

  (B) at least 10 days prior to the expiration of a commitment or continued commitment order if the Commissioner does not seek an order of continued custody, care, and habilitation; or

  (C) any time that the person elopes from custody of the Commissioner and cannot be located, and there is reason to believe the person may be lost or poses a risk of harm to others.

  (2) When the State’s Attorney or Attorney General receives notice under subdivision (1) of this subsection, the Office shall provide notice of the action to any victim of the offense for which the person has been charged who has not opted out of receiving notice. A victim receiving notice pursuant to this subdivision has the right to submit a victim impact statement to the Family Division of the Superior Court in writing or through the State’s Attorney’s or Attorney General’s Office.

  (d) Whenever a person is subject to a judicial or administrative discharge from commitment, the Criminal Division of the Superior Court shall retain jurisdiction over the person’s underlying charge and any orders holding the person without bail or concerning bail, and conditions of release shall remain in place. Those orders shall be placed on hold while a person is in the custody, care, and habilitation or continued custody, care, and habilitation of the Commissioner. When a person is discharged from the Commissioner’s custody, care, and habilitation to a correctional facility, the custody of the Commissioner shall cease when the person enters the correctional facility. (Added 2023, No. 137 (Adj. Sess.), § 26, eff. July 1, 2024.)

• § 8848. Right to counsel

  Persons subject to commitment, continued commitment, or self-initiated review pursuant to section 8846 of this subchapter shall have a right to counsel as provided in section 7111 of this title. (Added 1987, No. 248 (Adj. Sess.), § 9; renumbered from 18 V.S.A. § 8846 by 2023, No. 137 (Adj. Sess.), § 26, eff. July 1, 2024.)

• Subchapter 004: SYSTEM OF CARE PLAN

• §§ 8851-8854. Repealed. 1995, No. 174 (Adj. Sess.), § 2.