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Senate Calendar

TUESDAY, APRIL 18, 2000

106th DAY OF BIENNIAL SESSION

ORDERS OF THE DAY

ACTION CALENDAR

UNFINISHED BUSINESS OF MONDAY, APRIL 10, 2000

Second Reading

Favorable with Proposal of Amendment

H. 663

An act relating to prohibit the sale of single cigarettes and baby packs.

Reported favorably with recommendation of proposal of amendment by Senator Ptashnik for the Committee on Health and Welfare.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. 7 V.S.A. § 1003(f) and (g) are added to read:

(f) No person holding a tobacco license shall sell cigarettes individually or in packages that contain fewer than 20 cigarettes.

(g) No person in the business of manufacturing, distributing, or retailing tobacco products, shall offer, within the state of Vermont, free samples of any tobacco product.

(Committee Vote: 5-0-0)

(No House amendments)

UNFINISHED BUSINESS OF TUESDAY, APRIL 11, 2000

Second Reading

Favorable

H. 598

An act designating the Vermont state song.

Reported favorably by Senator Greenwood for the Committee on General Affairs and Housing.

(Committee vote: 6-0-0)

(For House amendments, see House Journal for March 17, 2000, page 553)

UNFINISHED BUSINESS OF FRIDAY, APRIL 14, 2000

Second Reading

Favorable with Proposal of Amendment

H. 270

An act relating to prevention and handling of violence in schools.

Reported favorably with recommendation of proposal of amendment by Senator Chard for the Committee on Education.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. STATEMENT OF POLICY

The general assembly recognizes that many family, school and community factors contribute to the well-being of Vermont children. Therefore, it is the purpose of this act to help districts in their efforts to maintain a safe learning environment in all Vermont public schools through appropriate student learning opportunities, appropriate prevention and intervention strategies, the availability of alternative education programs, effective discipline policies and opportunities for community-wide training.

Sec. 2. 16 V.S.A. § 563 is amended to read:

§ 563. POWERS OF SCHOOL BOARDS

The school board of a school district, in addition to other duties and authority specifically assigned by law:

* * *

(5) Shall keep the school buildings and grounds in good repair, suitably equipped, insured *[and]*, in safe and sanitary condition at all times*[. The school board shall regulate or prohibit firearms or other dangerous or deadly weapons on school premises. At a minimum, a school board shall adopt and implement a policy]* *[pursuant to]* , and free of firearms and other dangerous or deadly weapons at least consistent with section 1166 of this title *[relating to a student who brings a weapon to school]*, section 4004 of Title 13, and the federal gun-free school zones act of 1990 as amended from time to time.

* * *

Sec. 3. 16 V.S.A. § 1121 is amended to read:

§ 1121. ATTENDANCE BY CHILDREN OF SCHOOL AGE REQUIRED

A person having the control of a child between the ages of *[seven]* six and *[sixteen]* 16 years shall cause the child to attend *[an approved]* a public school, an approved or recognized independent school or a home study program for the full number of days for which that school is held, unless the child:

(1) is mentally or physically unable so to attend; or

(2) has completed the tenth grade; or

(3) is excused by the superintendent or a majority of the school directors as provided in this chapter; or

(4) is enrolled in and attending a postsecondary school, as defined in subdivision 176(b)(1) of this title, which is approved or accredited in Vermont or another state.

Sec. 4. 16 V.S.A. § 1126 is amended to read:

§ 1126. FAILURE TO ATTEND; NOTICE BY TEACHER

When a pupil between the ages of *[seven]* six and *[sixteen]* 16 years, who is not excused or exempted from school attendance, fails to enter school at the beginning thereof, or being enrolled, fails to attend the same, and when a pupil who has become *[sixteen]* 16 years of age becomes enrolled in a public school and fails to attend, the teacher or principal shall forthwith notify the superintendent or school directors, and the truant officer, unless the teacher or principal is satisfied upon information that the pupil is absent on account of sickness.

Sec. 5. 16 V.S.A. § 1128(a) is amended to read:

(a) A superintendent may and the truant officer shall stop a child between the ages of *[seven]* six and *[sixteen]* 16 years or a child *[sixteen]* 16 years of age or over and enrolled in public school, wherever found during school hours, and shall, unless such child is excused or exempted from school attendance, take *[him]* the child to the school which she or he should attend.

Sec. 6. 16 V.S.A. § 1161a(a) is amended to read:

(a) Each public and each approved independent school shall *[have a policy on discipline. The policy shall include standard due process procedures, and it shall be consistent with this section and with the school board's policies on suspension and expulsion.]* adopt and implement a comprehensive plan for responding to student misbehavior. To the extent appropriate, the plan shall promote the positive development of youth. The plan shall include:

(1) the school's approach to classroom management and response to disruptive behavior, including the use of alternative educational settings;

(2) the manner in which the school will provide information and training to students in methods of conflict resolution, peer mediation and anger management;

(3) procedures for informing parents of the school's discipline policies, for notifying parents of student misconduct, and for working with parents to improve student behavior;

(4) the school's response to significant disruptions, such as threats or use of bombs or weapons;

(5) a description of how the school will ensure that all staff and contractors who have contact with students periodically receive training on the maintenance of a safe, orderly, civil and positive learning environment. The training shall be appropriate to their role of the staff member being trained and shall teach classroom and behavior management, enforcement of the school's discipline policies and positive youth development models; and

(6) a description of behaviors on and off school grounds which constitute misconduct, including harassment and hazing, particularly those behaviors which may be grounds for expulsion.

Sec. 7. 16 V.S.A. § 1162 is amended to read:

§ 1162. SUSPENSION OR EXPULSION OF PUPILS

(a) A superintendent or principal may, pursuant to policies adopted by the school board that are consistent with state board rules, suspend a pupil for a definite period of time or, with the approval of the board of the school district, expel a pupil for *[the remainder of the school year]* up to 12 calendar months for:

(1) misconduct on school property, on a school bus or at a school-sponsored activity when the misconduct makes the continued presence of the pupil harmful to the welfare of the school; or

(2) misconduct not on school property, on a school bus or at a school-sponsored activity where there is a direct connection between the pupil's misconduct and harm to the welfare of the school due to the continued presence of the pupil.

(b) Nothing contained in this section shall prevent a superintendent or principal, subject to subsequent due process procedures, from removing immediately from a school a pupil who poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process of the school.

Sec. 8. 16 V.S.A. § 1163 is added to read:

§ 1163. TRANSFER OF SUSPENSION OR EXPULSION TO OTHER SCHOOLS

(a) If a student transfers from one Vermont school to another, a Vermont public or independent school may choose to continue a suspension or expulsion imposed by the other Vermont public or independent school.

(b) During a period of suspension or expulsion imposed under section 1162 of this title, a student, or parent or guardian, shall not be subject to the provisions of subchapter 3 of this chapter regarding compulsory attendance at school unless the conditions of the suspension or expulsion include participation in a program in the school or an alternative program outside the school. Further, nothing in this section shall prohibit a suspended or expelled student from applying to a different Vermont public or independent school during the period of suspension or expulsion and attending if accepted.

(c) A school district which provides for the education of a suspended or expelled student by paying tuition to an approved public or independent school may, at the discretion of the school board, provide for the education of the student during the period of suspension or expulsion by paying tuition to another approved public or independent school.

Sec. 9. 16 V.S.A. § 2901(a) is amended to read:

(a) It is the policy of the state that each local school district develop and maintain, in consultation with parents, a comprehensive system of education that will result, to the extent appropriate, in all students succeeding in the general education environment. *[This chapter does not require that a child remain in the regular classroom if the child]* A comprehensive system of education includes a full range of services and accommodations which are needed by students in the district. These services could include a separate alternative program if the district finds that some of its students could be better served in an environment outside the classroom, or if the district finds that separate placement is the best way to provide services to a student who is disrupting the class or having difficulty learning in a traditional school setting for educational, emotional or personal reasons and thereby impairing the ability of the classroom teacher to provide quality services to that student or to the other pupils. This chapter does not replace or expand entitlements created by federal law, nor is it the intent of this chapter to create a higher standard for maintaining a student in the general classroom than the standard created in the following federal laws: 20 U.S.C. § 1401 et seq., Individuals with Disabilities Act; 29 U.S.C. § 794, Section 504 of the Rehabilitation Act; and 42 U.S.C. § 12101 et seq., Americans with Disabilities Act.

Sec. 10. 16 V.S.A. § 2902(b) is amended to read:

(b) The educational support system shall:

* * *

(4) Provide clear procedures and methods for handling a student who *[disrupts a class]* is disruptive to the learning environment and shall include provision of educational options, support services and consultation or training for staff where appropriate. Procedures may include provision for removal of the student from the classroom or the school building for as long as appropriate, consistent with state and federal law and the school's policy on student discipline, and after reasonable effort has been made to support the student in the regular classroom environment.

* * *

Sec. 11. 13 V.S.A. § 4004 is amended to read:

§ 4004. -BY PERSONS AT SCHOOL

(a) A person who carries or has in his or her possession a firearm, dirk knife, bowie knife, dagger or other dangerous or deadly weapon while within a school building or on a school bus, shall be imprisoned not more than *[60 days]* one year or fined not more than *[$500.00]* $1,000.00, or both; however, the board of school directors may authorize the possession and use of firearms or other weapons for specific occasions or for instructional purposes when facilities for such instruction are available.

Sec. 12. 33 V.S.A. § 5529d(c) is amended to read:

(c) If the court finds that it is in the best interest of the youthful offender to continue the case past the age of 18 and if the court finds, based on evidence submitted by the department of social and rehabilitation services, that Title IV-E funds and sufficient state matching funds are available to provide services to the youthful offender, it shall make an order continuing the court's jurisdiction up to the age of *[19]* 21.

Sec. 13. TRAINING FOR PREVENTION OF SCHOOL VIOLENCE AND DISRUPTION

The commissioner of education, in consultation with the secretary of human services and commissioner of public safety, shall develop training in the early identification and remediation of potentially violent or disruptive students, methods for de-escalation of violent or disruptive situations, and mediation and other conflict resolution measures. To the extent possible, the commissioner shall use materials and resources, such as those already developed through the BEST initiative, designed for working with potentially violent or disruptive students. The commissioner shall make the training available on a regional basis to school superintendents, school principals, and other representatives of local school districts who agree to transmit the training to their local school districts, including providing information and training to teaching and nonteaching school staff, and to parents, school board members, and other members of the community.

Sec. 14. EDUCATOR PREPARATION AND PROFESSIONAL DEVELOPMENT; STANDARDS BOARD FOR PROFESSIONAL EDUCATORS; STATE BOARD OF EDUCATION

(a) The State Board of Education and Standards Board for Professional Educators shall clarify and strengthen requirements for teacher and administrator training in basic classroom management, understanding of disabilities and special needs, instructional and curricular adaptations and accommodations, working with people of diverse cultural backgrounds, prevention of behavior problems, and working with students who exhibit challenging behaviors.

(b) The Commissioner of Education, in the next guidebook for local Standards Board for Professional Educators shall recommend that each board encourage teachers, in developing their individual professional development plans, to consider the need for further training in classroom management, understanding of disabilities and special needs, adaptations and accommodations, dealing with people of diverse cultural backgrounds, prevention of behavior problems, and handling of students who exhibit challenging behaviors.

(c) The Commissioner of Education shall encourage school administrators to ensure that experienced teachers are available to help newer teachers learn effective classroom management skills, and that experienced teachers avail themselves of ongoing professional development opportunities in this area.

(d) The Commissioner of Education shall meet with representatives of superintendents, the court system, the department of public safety, social and rehabilitation services, and the department of developmental and mental health services, and representatives of the education and juvenile justice communities to develop policies, possible recommendations for legislative change, and internal procedures and training that should be put into place to ensure timely exchange of appropriate information about a student's behavior which may be needed to ensure the safety of other students or in order to be able to provide timely intervention or alternative educational or other services.

(e) The Commissioner of Education and chair of the State Board of Education shall report the results of work carried out under this section to the Senate and House Committees on Education by January 15, 2001.

Sec. 15. COLLABORATIVE COMMUNITY DEMONSTRATION PROJECTS; GRANTS

(a) The commissioner of education, in consultation with the secretary of human services, the court administrator and the commissioner of public safety, may, if funds are available, award grants to school districts or groups of school districts which collaborate with parent groups, local human services agencies, court personnel and law enforcement agencies and other community agencies to establish demonstration projects. The projects shall be designed to increase collaborative community approaches to:

(1) preventing violent behavior in youth;

(2) intervening appropriately and effectively when violent behavior occurs; and

(3) providing alternative discipline techniques for violent students.

(b) In determining which applicants shall receive grants, the commissioner shall give priority to those which demonstrate the highest degree of need based on community indicators or reports to the commissioner that confirm significantly high rates of violence, suspension, expulsion or school dropouts.

Sec. 16. MODEL POLICIES AND PLAN; DATA COLLECTION

(a) The Commissioner of Education, in consultation with the Vermont principals association, the Vermont superintendents association, the Vermont school boards association, the Vermont national education association and the Vermont coalition for disability rights shall, by January 15, 2001, develop and distribute model plans on school discipline and implementation strategies. Model plans shall include a variety of in-school and out-of-school disciplinary measures which, in addition to addressing standard due process procedures, shall provide guidance in:

(1) preventing and responding to the problems caused by violent or disruptive students;

(2) describing which behaviors constitute misconduct both on and off school grounds; and

(3) establishing procedures for responding to misconduct.

(b) On or before January 15, 2001, the state board of education shall develop and distribute a model policy on viewing of confidential records with personally identifiable information and training of personnel who may be identified, pursuant to federal law, as those who may view the records.

(c) The commissioner of education, in consultation with the Vermont superintendents association, the Vermont school boards association, the Vermont national education association, the Vermont principals association and representatives of law enforcement and gun owners shall develop a model policy for distribution to Vermont school boards on the possession of dangerous and deadly weapons on school grounds. In addition, the commissioner shall disseminate written information which explains the federal and state laws regarding weapons on school grounds for use by Vermont school boards and school administrators. The commissioner shall distribute the model policy to all school boards by the beginning of school year 2001-2002.

(d) The Commissioner of Education shall gather data from each school district in order to help policy makers understand the scope of the truancy and dropout problems in Vermont. The Commissioner shall work with others in the education community to develop a common definition of "truancy" and "dropout" for the purpose of collecting data.

Sec. 17. ALTERNATIVE PROGRAMS; STUDY; APPROPRIATION

(a) The amount of $50,000.00 is appropriated to the State Board of Education to:

(1) Review the national research on alternative learning environments.

(2) Describe the nature of Vermont alternative programs. This should include information about the process that went into designing each program, and describe alternatives that were considered or tried and rejected.

(3) Determine whether existing alternatives do and can successfully operate within the current laws and regulations governing public and independent schools.

(4) Describe the cost, funding and finance structures of Vermont's alternative programs.

(b) Based on this research, the commissioner shall develop recommendations on the following:

(1) Whether alternative programs should be held to standards which are different from those to which other public schools are held, and if so:

(A) a description of how the standards will ensure that the alternative program standards allow the flexibility needed to provide services in an alternative way, while also ensuring that the students receive a quality education in a safe environment; and

(B) a clear definition of an alternative program which would be held to the alternate standards.

(2) Changes that may be needed to the education finance structure.

(3) A system which would enable the department of education to:

(A) annually gather information about alternative learning programs, and use the results of the survey to identify unmet needs and best practices; and

(B) monitor, evaluate the effectiveness of, and approve alternative programs to ensure that they are providing a quality education.

(c) On or before January 15, 2001, the State Board of Education shall report to the Senate and House Committees on Education the information gathered, recommendations, and recommended legislation and appropriations to implement the recommendations.

Sec. 18. DECRIMINALIZATION OF TRUANCY; PLAN

(a) It is the intent of the general assembly to decriminalize truancy, and to establish a system of school, community and juvenile justice system supports in which a superintendent can require a youth and his or her family to participate in an increasingly intensive system of responses which can include: individualized support and supervision, or both, working with a community response team, or filing of a petition in court for help in responding to truant students. It is further the intent of the general assembly that responses to truancy shall be designed to encourage students to remain in school until graduation, and to provide help to families so that they can support this goal. Therefore, it is our intent that the courts be given authority to respond to truancy in a variety of appropriate ways which may include provision of social services and suspension of a student's drivers license.

(b) The Commissioner of Social and Rehabilitation Services, the Commissioner of Education and the court administrator shall develop a plan to implement the intent of this section, and shall provide a recommended system together with recommended statutory change to the general assembly on or before January 15, 2001.

Sec. 19. COMPREHENSIVE ARRAY OF SERVICES FOR YOUTH AT RISK OF BECOMING DELINQUENT AND YOUTH ADJUDICATED DELINQUENT; POLICY

It is the policy of the general assembly that each region of the state shall provide a comprehensive and complete array of services for youth at risk of becoming delinquent, and those who have been adjudicated delinquent. Therefore, the Commissioner of Education and the Secretary of Human Services shall evaluate the services provided in each region, evaluate the relative responsibility for funding of the services, identify gaps in services, and whenever possible, provide support and encouragement to help each region provide services which fill the gaps and programs based on risk assessment that include asset and strength based approaches which promote positive youth development.

Sec. 20. LEGISLATIVE STUDY; SUBSTANCE ABUSE PROGRAMS FOR YOUNG OFFENDERS AND POTENTIAL YOUNG OFFENDERS

(a) There is created a legislative committee, made up of three senators chosen by the committee on committees and three representatives chosen by the speaker, to determine the need for improved or increased statewide substance abuse programs designed to serve young offenders and potential young offenders. The committee may meet up to six times.

(b) The committee shall:

(1) review the need for adolescent and pre-adolescent substance abuse treatment programs;

(2) determine what services currently exist;

(3) identify gaps in needed services; and

(4) make recommendations regarding what programs and resources are required to meet the needs of young people in Vermont who are at risk of abusing substances or who do abuse substances.

(c) On or before January 15, 2001, the committee shall report the results of the study and recommendations for changes to law or policy regarding adolescent and pre-adolescent substance abuse programs to the Senate and House Committees on Judiciary, Health and Welfare, and Education.

Sec. 21. USE OF RESTRICTIVE BEHAVIORAL INTERVENTIONS

The commissioner of education shall gather data on use of restrictive behavioral interventions in Vermont schools and shall present the data to the Senate and House Committees on Education on or before January 15, 2001.

Sec. 22. APPROPRIATIONS

(a) The amount of $25,000.00 is appropriated to the legislative study committee created under Sec. 20 of this act.

(b) The amount of $10,000.00 is appropriated to the commissioner of education for the purpose of increasing the capacity of the department of education safe schools coordinator to train education personnel on the subjects of harassment and hazing.

And the committee further proposes that after passage, the title of the bill be amended to read: "AN ACT RELATING TO SUPPORTING SAFE LEARNING ENVIRONMENTS IN VERMONT SCHOOLS"

(Committee Vote: 5-0-0)

Reported favorably with recommendation of proposal of amendment by Senator Sears for the Committee on Judiciary, upon commitment.

The Committee recommends that the recommendation of proposal of amendment of the Committee on Education be amended as follows:

First: By striking out Sec. 2 in its entirety and inserting in lieu thereof a new Sec. 2 to read as follows:

Sec. 2. 16 V.S.A. §563 is amended to read:

§ 563. POWERS OF SCHOOL BOARDS

The school board of a school district, in addition to other duties and authority specifically assigned by law:

* * *

(5) Shall keep the school buildings and grounds in good repair, suitably equipped, insured and in safe and sanitary condition at all times. The school board shall regulate or prohibit firearms or other dangerous or deadly weapons on school premises. At a minimum, a school board shall adopt and implement a policy *[pursuant to]* at least consistent with section 1166 of this title and section 4004 of Title 13, relating to a student who brings a weapon to school.

* * *

Second: In Sec. 6, §1161a(a) of 16 V.S.A., at the end of the subdivision(5), by striking out the word "and", at the end of subdivision (6), by striking out the period and inserting in lieu thereof ; and, and by adding a new subdivision (7) to read:

(7) standard due process procedures for suspension and expulsion of a student.

Third: By striking out Sec. 7 in its entirety and inserting in lieu thereof a new Sec. 7 to read as follows:

Sec. 7. 16 V.S.A. § 1162 is amended to read:

§ 1162. SUSPENSION OR EXPULSION OF PUPILS

(a) A superintendent or principal may, pursuant to policies adopted by the school board that are consistent with state board rules, suspend a pupil for *[a definite period of time]* up to 10 school days or, with the approval of the board of the school district, expel a pupil for up to six calendar months or the remainder of the school year, whichever is longer, for:

(1) misconduct on school property, on a school bus or at a school-sponsored activity when the misconduct makes the continued presence of the pupil harmful to the welfare of the school; or

(2) misconduct not on school property, on a school bus or at a school-sponsored activity where there is a direct connection between the pupil's misconduct and harm to the welfare of the school due to the continued presence of the pupil.

(b) Nothing contained in this section shall prevent a superintendent or principal, subject to subsequent due process procedures, from removing immediately from a school a pupil who poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process of the school.

(c) Principals, superintendents and school boards are authorized and encouraged to provide alternative education services or programs to students during any period of suspension or expulsion authorized under this section.

Fourth: In Sec. 8, §1163(a) of 16 V.S.A., following the words "a Vermont public or independent school" by inserting , following application by the student and a review of whether or not the school can provide the student with appropriate services,

Fifth: By striking out Sec. 11 in its entirety and inserting in lieu thereof a new Sec. 11 to read as follows:

Sec. 11. 13 V.S.A. § 4004 is amended to read:

§ 4004. *[--BY PERSONS AT SCHOOL]* POSSESSION OF DANGEROUS OR DEADLY WEAPON IN A SCHOOL BUS OR SCHOOL BUILDING OR ON SCHOOL PROPERTY

(a) *[A person who carries or has in his or her possession a firearm, dirk knife, bowie knife, dagger or other dangerous or deadly weapon while within a school building, shall be imprisoned not more than 60 days or fined not more than $500.00, or both; however, the board of school directors may authorize the possession and use of firearms or other weapons for specific occasions or for instructional purposes when facilities for such instruction are available.]* No person shall knowingly possess a firearm or a dangerous or deadly weapon while within a school building or on a school bus. A person who violates this section shall, for the first offense, be imprisoned not more than one year or fined not more than $1,000.00, or both, and for a second or subsequent offense shall be imprisoned not more than three years or fined not more than $5,000.00, or both.

(b) No person shall knowingly possess a firearm or a dangerous or deadly weapon on any school property with the intent to injure another person. A person who violates this section shall, for the first offense, be imprisoned not more than two years or fined not more than $1,000.00, or both, and for a second or subsequent offense shall be imprisoned not more than three years or fined not more than $5,000.00, or both.

(c) This section shall not apply to:

(1) A law enforcement officer while engaged in law enforcement duties.

(2) Possession and use of firearms or dangerous or deadly weapons if the board of school directors, or the superintendent or principal if delegated authority to do so by the board, authorizes possession or use for specific occasions or for instructional or other specific purposes.

(d) As used in this section:

(1) "School property" means any property owned by a school, including motor vehicles.

(2) "Owned by the school" means owned, leased, controlled or subcontracted by the school.

(3) "Dangerous or deadly weapon" has the meaning defined in section 4016 of this title.

(4) "Firearm" has the meaning defined in section 4016 of this title.

(5) "Law enforcement officer" has the meaning defined in section 4016 of this title.

(e) The provisions of this section shall not limit or restrict any prosecution for any other offense, including simple assault or aggravated assault.

Sixth: By striking out Sec. 12 in its entirety and inserting in lieu thereof a new Sec. 12 to read as follows:

Sec. 12. 33 V.S.A. § 5529d(c) is amended to read:

(c) If the court finds that it is in the best interest of the youthful offender to continue the case past the age of 18 *[and if the court finds, based on evidence submitted by the department of social and rehabilitation services, that Title IV-E funds and sufficient state matching funds are available to provide services to the youthful offender]*, it shall make an order continuing the court's jurisdiction up to the age of *[19]* 21. The commissioner of corrections shall provide appropriate services to a youthful offender who is over the age of 18.

Seventh: In Sec. 17, subsection (b), at the end of the subsection, by adding a new subdivision (4) to read:

(4) Whether alternative educational services or programs should be required for all students subject to long-term discipline, what would be the costs of such a requirement, and how such a requirement might be implemented, including a timetable for development of such programs.

Eighth: In Sec. 18, subsection (b), following the words "and the court administrator" by inserting , in consultation with the state's attorneys association, juvenile defender and representatives of law enforcement,

(Committee Vote: 5-0-1)

Reported favorably with recommendation of proposal of amendment by Senator Spaulding for the Committee on Appropriations.

The Committee recommends that the Senate propose to the House to amend the bill as recommended by the Committees on Education and Judiciary, with the following amendments thereto:

First: By striking out the Sixth proposal of amendment by the Committee on Judiciary in its entirety and inserting in lieu thereof the following:

Sixth: By striking out Sec. 12 in its entirety and inserting in lieu thereof a new Sec. 12 to read as follows:

Sec. 12. 33 V.S.A. § 5529d(c) is amended to read:

(c) If the court finds that it is in the best interest of the youthful offender to continue the case past the age of 18 *[and if the court finds, based on evidence submitted by the department of social and rehabilitation services, that Title IV-E funds and sufficient state matching funds are available to provide services to the youthful offender]*, it shall make an order continuing the court's jurisdiction up to the age of 19.

Second: In Sec. 17, of the proposal of amendment by the Committee on Education, by striking out the semi-colon and the word "APPROPRIATION" from the title of the section, and in subsection (a) by striking out the following: "(a) The amount of $50,000.00 is appropriated to the State Board of Education to:" and inserting in lieu thereof the following:

(a) The State Board of Education shall:

Third: In the proposals of amendment by the Committee on Education, by striking out Secs. 20 and 22 in their entirety

And by renumbering the sections to be numerically correct.

(Committee Vote: 4-3-0)

(For House amendments, see House Journal for April 29, 1999, page 868; April 30, 1999, page 883)

AMENDMENT TO PROPOSAL OF AMENDMENT OF THE COMMITTEE ON EDUCATION TO H. 270 TO BE OFFERED BY SENATOR McCORMACK

Senator McCormack moves to amend the proposal of amendment of the Committee on Education in Sec. 18(a) by striking out the subsection in its entirety and inserting in lieu thereof a new subsection (a) to read as follows:

(a) It is the intent of the general assembly to decriminalize truancy, and to replace the current truancy system with one that encourages students to remain in school until graduation and provides assistance to families in reaching this goal. It is further the intent of the general assembly that the truancy system begin with adoption by school boards of local or regional comprehensive truancy policies that address the timing and content of responses to truancy and implementation of the policies through the development, collaboratively with a truant student's family and the student, of an individualized plan designed to achieve regular school attendance by the student. If the student or family either fails to cooperate in the development of the plan, or fails to act in conformance with the plan, a petition could be filed in court to gain cooperation or enforce the plan. The court should have broad remedial authority to issue orders reasonably designed to bring about regular school attendance by the student. The individuals charged in subsection (b) of this section with designing the system shall consider whether the courts should have authority to condition a truant student's driving privileges upon regular school attendance.

AMENDMENT TO PROPOSAL OF AMENDMENT OF THE COMMITTEE ON JUDICIARY TO H. 270 TO BE OFFERED BY SENATOR ILLUZZI

Senator Illuzzi moves to amend the proposal of amendment of the Committee on Judiciary, in the third proposal of amendment, after the words "up to six" by inserting the word calendar

UNFINISHED BUSINESS OF MONDAY, APRIL 17, 2000

Second Reading

Favorable with Recommendation of Amendment

H. 847

An act relating to civil unions.

Reported favorably with recommendation of proposal of amendment by Senator Sears for the Committee on Judiciary.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. LEGISLATIVE FINDINGS

The General Assembly finds that:

(1) Civil marriage under Vermont's marriage statutes consists of a union between a man and a woman. This interpretation of the state's marriage laws was upheld by the Supreme Court in Baker v. State.

(2) Vermont's history as an independent republic and as a state is one of equal treatment and respect for all Vermonters. This tradition is embodied in the Common Benefits Clause of the Vermont Constitution, Chapter I, Article 7th.

(3) The state's interest in civil marriage is to encourage close and caring families, and to protect all family members from the economic and social

consequences of abandonment and divorce, focusing on those who have been especially at risk.

(4) Legal recognition of civil marriage by the state is the primary and, in a number of instances, the exclusive source of numerous benefits, responsibilities and protections under the laws of the state for married persons and their children.

(5) Based on the state's tradition of equality under the law and strong families, for at least 25 years, Vermont Probate Courts have qualified gay and lesbian individuals as adoptive parents.

(6) Vermont was one of the first states to adopt legislation prohibiting discrimination on the basis of sexual orientation, through the passage of comprehensive legislation (Act No. 135 of 1992).

(7) The state has a strong interest in promoting stable and lasting families, including families based upon a same-sex couple.

(8) Without the legal protections, benefits and responsibilities associated with civil marriage, same-sex couples suffer numerous obstacles and hardships.

(9) Despite longstanding social and economic discrimination, many gay and lesbian Vermonters have formed lasting, committed, caring and faithful relationships with persons of their same sex. These couples live together, participate in their communities together, and some raise children and care for family members together, just as do couples who are married under Vermont law.

(10) While a system of civil unions does not bestow the status of civil marriage, it does satisfy the requirements of the Common Benefits Clause. Changes in the way significant legal relationships are established under the constitution should be approached carefully, combining respect for the community and cultural institutions most affected with a commitment to the constitutional rights involved. Granting benefits and protections to same-sex couples through a system of civil unions will provide due respect for tradition and long-standing social institutions, and will permit adjustment as unanticipated consequences or unmet needs arise.

(11) The constitutional principle of equality embodied in the Common Benefits Clause is compatible with the freedom of religious belief and worship guaranteed in Chapter I, Article 3rd of the state constitution. Extending the benefits and protections of marriage to same-sex couples through a system of civil unions preserves the fundamental constitutional right of each of the multitude of religious faiths in Vermont to choose freely and without state interference to whom to grant the religious status, sacrament or blessing of marriage under the rules, practices or traditions of such faith.

Sec. 2. PURPOSE

(a) The purpose of this act is to respond to the constitutional violation found by the Vermont Supreme Court in Baker v. State, and to provide eligible same-sex couples the opportunity to "obtain the same benefits and protections afforded by Vermont law to married opposite-sex couples" as required by Chapter I, Article 7th of the Vermont Constitution.

(b) This act also provides eligible blood-relatives and relatives related by adoption the opportunity to establish a reciprocal beneficiaries relationship so they may receive certain benefits and protections and be subject to certain responsibilities that are granted to spouses.

Sec. 3. 15 V.S.A. chapter 23 is added to read:

CHAPTER 23. CIVIL UNIONS

§ 1201. DEFINITIONS

As used in this chapter:

(1) "Certificate of civil union" means a document that certifies that the persons named on the certificate have established a civil union in this state in compliance with this chapter and 18 V.S.A. chapter 106.

(2) "Civil union" means that two eligible persons have established a relationship pursuant to this chapter, and may receive the benefits and protections and be subject to the responsibilities of spouses.

(3) "Commissioner" means the commissioner of health.

(4) "Marriage" means the legally recognized union of one man and one woman.

(5) "Party to a civil union" means a person who has established a civil union pursuant to this chapter and 18 V.S.A. chapter 106.

§ 1202. REQUISITES OF A VALID CIVIL UNION

For a civil union to be established in Vermont, it shall be necessary that the parties to a civil union satisfy all of the following criteria:

(1) Not be a party to another civil union or a marriage.

(2) Be of the same sex and therefore excluded from the marriage laws of this state.

(3) Meet the criteria and obligations set forth in 18 V.S.A. chapter 106.

§ 1203. PERSON SHALL NOT ENTER A CIVIL UNION WITH A RELATIVE

(a) A woman shall not enter a civil union with her mother, grandmother, daughter, granddaughter, sister, brother's daughter, sister's daughter, father's sister or mother's sister.

(b) A man shall not enter a civil union with his father, grandfather, son, grandson, brother, brother's son, sister's son, father's brother or mother's brother.

(c) A civil union between persons prohibited from entering a civil union in subsection (a) or (b) of this section is void.

§ 1204. BENEFITS, PROTECTIONS AND RESPONSIBILITIES OF PARTIES TO A CIVIL UNION

(a) Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.

(b) A party to a civil union shall be included in any definition or use of the terms "spouse," "family," "immediate family," "dependent," "next of kin," and other terms that denote the spousal relationship, as those terms are used throughout the law.

(c) Parties to a civil union shall be responsible for the support of one another to the same degree and in the same manner as prescribed under law for married persons.

(d) The law of domestic relations, including annulment, separation and divorce, child custody and support, and property division and maintenance shall apply to parties to a civil union.

(e) The following is a nonexclusive list of legal benefits, protections and responsibilities of spouses, which shall apply in like manner to parties to a civil union:

(1) laws relating to title, tenure, descent and distribution, intestate succession, waiver of will, survivorship, or other incidents of the acquisition, ownership, or transfer, inter vivos or at death, of real or personal property, including eligibility to hold real and personal property as tenants by the entirety (parties to a civil union meet the common law unity of person qualification for purposes of a tenancy by the entirety);

(2) causes of action related to or dependent upon spousal status, including an action for wrongful death, emotional distress, loss of consortium, dramshop, or other torts or actions under contracts reciting, related to, or dependent upon spousal status;

(3) probate law and procedure, including nonprobate transfer;

(4) adoption law and procedure;

(5) group insurance for state employees under 3 V.S.A. § 631, and continuing care contracts under 8 V.S.A. § 8005;

(6) spouse abuse programs under 3 V.S.A. § 18;

(7) prohibitions against discrimination based upon marital status;

(8) victim's compensation rights under 13 V.S.A. § 5351;

(9) workers' compensation benefits;

(10) laws relating to emergency and nonemergency medical care and treatment, hospital visitation and notification, including the Patient's Bill of Rights under 18 V.S.A. chapter 42 and the Nursing Home Residents' Bill of Rights under 33 V.S.A. chapter 73;

(11) terminal care documents under 18 V.S.A. chapter 111, and durable power of attorney for health care execution and revocation under 14 V.S.A. chapter 121;

(12) family leave benefits under 21 V.S.A. chapter 5, subchapter 4A;

(13) public assistance benefits under state law;

(14) laws relating to taxes imposed by the state or a municipality other than estate taxes;

(15) laws relating to immunity from compelled testimony and the marital communication privilege;

(16) the homestead rights of a surviving spouse under 27 V.S.A. § 105 and homestead property tax allowance under 32 V.S.A. § 6062;

(17) laws relating to loans to veterans under 8 V.S.A. § 1849;

(18) the definition of family farmer under 10 V.S.A. § 272;

(19) laws relating to the making, revoking and objecting to anatomical gifts by others under 18 V.S.A. § 5240;

(20) state pay for military service under 20 V.S.A. § 1544;

(21) application for absentee ballot under 17 V.S.A. § 2532;

(22) family landowner rights to fish and hunt under 10 V.S.A. § 4253;

(23) legal requirements for assignment of wages under 8 V.S.A. § 2235; and

(24) affirmance of relationship under 15 V.S.A. § 7.

(f) The rights of parties to a civil union, with respect to a child of whom either becomes the natural parent during the term of the civil union, shall be the same as those of a married couple, with respect to a child of whom either spouse becomes the natural parent during the marriage.

§ 1205. MODIFICATION OF CIVIL UNION TERMS

Parties to a civil union may modify the terms, conditions, or effects of their civil union in the same manner and to the same extent as married persons who execute an antenuptial agreement or other agreement recognized and enforceable under the law, setting forth particular understandings with respect to their union.

§ 1206. DISSOLUTION OF CIVIL UNIONS

The family court shall have jurisdiction over all proceedings relating to the dissolution of civil unions. The dissolution of civil unions shall follow the same procedures and be subject to the same substantive rights and obligations that are involved in the dissolution of marriage in accordance with chapter 11 of this title, including any residency requirements.

§ 1207. COMMISSIONER OF HEALTH; DUTIES

(a) The commissioner shall provide civil union license and certificate forms to all town and county clerks.

(b) The commissioner shall keep a record of all civil unions.

Sec. 4. 4 V.S.A. § 454 is amended to read:

§ 454. JURISDICTION

Notwithstanding any other provision of law to the contrary, the family court shall have exclusive jurisdiction to hear and dispose of the following proceedings filed or pending on or after October 1, 1990. The family court shall also have exclusive jurisdiction to hear and dispose of any requests to modify or enforce any orders issued by the district or superior court relating to the following proceedings:

* * *

(17) All proceedings relating to the dissolution of a civil union.

Sec. 5. 18 V.S.A. chapter 106 is added to read:

CHAPTER 106. CIVIL UNION;

RECORDS AND LICENSES

§ 5160. ISSUANCE OF CIVIL UNION LICENSE; CERTIFICATION; RETURN OF CIVIL UNION CERTIFICATE

(a) Upon application in a form prescribed by the department, a town clerk shall issue a civil union license in the form prescribed by the department, and shall enter thereon the names of the parties to the proposed civil union, fill out the form as far as practicable and retain a copy in the clerk's office. At least one party to the proposed civil union shall sign the application attesting to the accuracy of the facts stated. The license shall be issued by the clerk of the town where either party resides or, if neither is a resident of the state, by any town clerk in the state.

(b) A civil union license shall be delivered by the parties to a civil union, within 60 days from the date of issue, to a person authorized to certify civil unions by section 5164 of this title. If the proposed civil union is not certified within 60 days from the date of issue, the license shall become void. After a person has certified the civil union, he or she shall fill out that part of the form on the license provided for such use, sign and certify the civil union.

Thereafter, the document shall be known as a civil union certificate.

(c) Within ten days of the certification, the person performing the certification shall return the civil union certificate to the office of the town clerk from which the license was issued. The town clerk shall retain and file the original according to sections 5007 and 5008 of this title.

(d) A town clerk who knowingly issues a civil union license upon application of a person residing in another town in the state, or a county clerk who knowingly issues a civil union license upon application of a person other than as provided in section 5005 of this title, or a clerk who issues such a license without first requiring the applicant to fill out, sign and make oath to the declaration contained therein as provided in section 5160 of this title, shall be fined not more than $50.00 nor less than $20.00.

(e) A person making application to a clerk for a civil union license who makes a material misrepresentation in the declaration of intention shall be deemed guilty of perjury.

(f) Town clerks shall provide persons who apply for civil union license with information prepared by the secretary of state that advises such persons of the benefits, protections and responsibilities of a civil union and that Vermont residency may be required for dissolution of a civil union in Vermont.

§ 5161. ISSUANCE OF LICENSE

(a) A town clerk shall issue a civil union license to all applicants who have complied with the provisions of section 5160 of this title, and who are otherwise qualified under the laws of the state to apply for a civil union license.

(b) An assistant town clerk may perform the duties of a town clerk under this chapter.

§ 5162. PROOF OF LEGAL QUALIFICATIONS OF PARTIES TO A CIVIL UNION; PENALTY

(a) Before issuing a civil union license to an applicant, the town clerk shall be confident, through presentation of affidavits or other proof, that each party to the intended civil union meets the criteria set forth to enter into a civil union.

(b) Affidavits shall be in a form prescribed by the board, and shall be attached to and filed with the civil union certificate in the office of the clerk of the town wherein the license was issued.

(c) A clerk who fails to comply with the provisions of this section, or who issues a civil union license with knowledge that either or both of the parties to a civil union have failed to comply with the requirements of the laws of this state, or a person who, having authority and having such knowledge, certifies such a civil union, shall be fined not more than $100.00.

§ 5163. RESTRICTIONS AS TO MINORS AND INCOMPETENT PERSONS

(a) A clerk shall not issue a civil union license when either party to the intended civil union is:

(1) under 18 years of age;

(2) non compos mentis;

(3) under guardianship, without the written consent of such guardian.

(b) A clerk who knowingly violates subsection (a) of this section shall be fined not more than $20.00. A person who aids in procuring a civil union license by falsely pretending to be the guardian having authority to give consent to the civil union shall be fined not more than $500.00.

§ 5164. PERSONS AUTHORIZED TO CERTIFY CIVIL UNIONS

Civil unions may be certified by a supreme court justice, a superior court judge, a district judge, a judge of probate, an assistant judge, a justice of the peace or by a member of the clergy residing in this state and ordained or licensed, or otherwise regularly authorized by the published laws or discipline of the general conference, convention or other authority of his or her faith or denomination or by such a clergy person residing in an adjoining state or country, whose parish, church, temple, mosque or other religious organization lies wholly or in part in this state, or by a member of the clergy residing in some other state of the United States or in the Dominion of Canada, provided he or she has first secured from the probate court of the district within which the civil union is to be certified, a special authorization, authorizing him or her to certify the civil union if such probate judge determines that the circumstances make the special authorization desirable. Civil unions among the Friends or Quakers, the Christadelphian Ecclesia and the Baha'i Faith may be certified in the manner used in such societies.

§ 5165. CIVIL UNION LICENSE REQUIRED FOR CERTIFICATION; FAILURE TO RETURN

(a) Persons authorized by section 5164 of this title to certify civil unions shall require a civil union license of the parties before certifying the civil union. The license shall afford full immunity to the person who certifies the civil union.

(b) A person who certifies a civil union shall be fined not less than $10.00, if such person:

(1) certifies a civil union without first obtaining the license; or

(2) fails to properly fill out the license and, within ten days from the date of the certification, return the license and certificate of civil union to the clerk's office from which it was issued.

§ 5166. CERTIFICATION BY UNAUTHORIZED PERSON; PENALTY; VALIDITY OF CIVIL UNIONS

(a) An unauthorized person who knowingly undertakes to join others in a civil union shall be imprisoned not more than six months or fined not more than $300.00 nor less than $100.00, or both.

(b) A civil union certified before a person falsely professing to be a justice or a member of the clergy shall be valid, provided that the civil union is in other respects lawful, and that either of the parties to a civil union believed that he or she was lawfully joined in a civil union.

§ 5167. EVIDENCE OF CIVIL UNION

A copy of the record of the civil union received from the town or county clerk, the commissioner of health or the director of public records shall be presumptive evidence of the civil union in all courts.

§ 5168. CORRECTION OF CIVIL UNION CERTIFICATE

(a) Within six months after a civil union is certified, the town clerk may correct or complete a civil union certificate, upon application by a party to a civil union or by the person who certified the civil union. The town clerk shall certify that such correction or completion was made pursuant to this section and note the date. The town clerk may refuse an application for correction or completion; in which case, the applicant may petition the probate court for such correction or completion.

(b) After six months from the date a civil union is certified, a civil union certificate may only be corrected or amended pursuant to decree of the probate court in the district where the original certificate is filed.

(c) The probate court shall set a time for a hearing and, if the court deems necessary, give notice of the time and place by posting such information in the probate court office. After a hearing, the court shall make findings with respect to the correction of the civil union certificate as are supported by the evidence. The court shall issue a decree setting forth the facts as found, and transmit a certified copy of the decree to the supervisor of vital records registration. The supervisor of vital records registration shall transmit the same to the appropriate town clerk to amend the original or issue a new certificate. The words "Court Amended" shall be typed, written or stamped at the top of the new or amended certificate with the date of the decree and the name of the issuing court.

§ 5169. DELAYED CERTIFICATES OF CIVIL UNION

(a) Persons who were parties to a certified civil union ceremony in this state for whom no certificate of civil union was filed, as required by law, may petition the probate court of the district in which the civil union license was obtained to determine the facts, and to order the issuance of a delayed certificate of civil union.

(b) The probate court shall set a time for hearing on the petition and, if the court deems necessary, give notice of the time and place by posting such information in the probate court office. After hearing proper and relevant evidence as may be presented, the court shall make findings with respect to the civil union as are supported by the evidence.

(c) The court shall issue a decree setting forth the facts as found, and transmit a certified copy of said facts to the supervisor of vital records registration.

(d) Where a delayed certificate is to be issued, the supervisor of vital records registration shall prepare a delayed certificate of civil union, and transmit it, with the decree, to the clerk of the town where the civil union license was issued. This delayed certificate shall have the word "Delayed" printed at the top, and shall certify that the certificate was ordered by a court pursuant to this chapter, with the date of the decree. The town clerk shall file the delayed certificate and, in accordance with the provisions of section 5010 of this title, furnish a copy to the department of health.

(e) Town clerks receiving new certificates in accordance with this section shall file and index them in the most recent book of civil unions, and also index them with civil unions occurring at the same time.

Sec. 6. 18 V.S.A. § 5001 is amended to read:

§ 5001. VITAL RECORDS; FORMS OF CERTIFICATES

Certificates of birth, marriage, civil union, divorce, death and fetal death shall be in form prescribed by the commissioner of health and distributed by the health department.

Sec. 7. 18 V.S.A. § 5002 is amended to read:

§ 5002. RETURNS; TABLES

The health commissioner shall prepare from the returns of births, marriages, civil unions, deaths, fetal deaths and divorces required by law to be transmitted to *[him]* the commissioner such tables and append thereto such recommendations as he or she deems proper, and during the month of July in each even year, shall cause the same to be published as directed by the board. *[He]* The commissioner shall file and preserve all such returns. The commissioner shall periodically transmit the original returns or photostatic or photographic copies to the director of public records who shall keep the returns, or photostatic or photographic copies of the returns, on file for use by the public. The commissioner and the director of public records shall each, independently of the other, have power to issue certified copies of such records.

Sec. 8. 18 V.S.A. § 5004 is amended to read:

§ 5004. *[COUNTY]* FAMILY COURT CLERKS; DIVORCE RETURNS

The *[county]* family court clerk shall send to the commissioner, before the tenth day of each month, a report of the number of divorces which became absolute during the preceding month, showing as to each the names of the parties, date of marriage or civil union, number of children, grounds for divorce and such other statistical information available from the *[county]* family court clerk's file as may be required by the commissioner.

Sec. 9. 18 V.S.A. § 5005 is amended to read:

§ 5005. UNORGANIZED TOWNS AND GORES

(a) The county clerk of a county wherein is situated an unorganized town or gore shall perform the same duties and be subject to the same penalties as town clerks in respect to licenses, certificates, records and returns of parties, both of whom reside in an unorganized town or gore in such county or where *[the groom]* one party to a marriage or a civil union so resides and the *[bride]* other party resides in an unorganized town or gore in another county or without the state *[or where the bride resides in an unorganized town or gore in such county and the groom resides without the state]*. The cost of binding such certificates shall be paid by the state.

* * *

Sec. 10. 18 V.S.A. § 5006 is amended to read:

§ 5006. VITAL RECORDS PUBLISHED IN TOWN REPORTS

Town clerks annually may compile and the auditors may publish in the annual town report a transcript of the record of births, marriages, civil unions and deaths recorded during the preceding calendar year.

Sec. 11. 18 V.S.A. § 5007 is amended to read:

§ 5007. PRESERVATION OF DATA

A town clerk shall receive, number and file for record certificates of births, marriages, civil unions and deaths, and shall preserve such certificates together with the burial-transit and removal permits returned to *[him]* the clerk, in a fireproof vault or safe, as provided by section 1178 of Title 24.

Sec. 12. 18 V.S.A. § 5008 is amended to read:

§ 5008. TOWN CLERK; RECORDING AND INDEXING PROCEDURES

A town clerk shall file for record and index in volumes all certificates and permits received in a manner prescribed by the public records director. Each volume or series shall contain an alphabetical index. Marriage certificates shall be filed for record in one volume or series, civil unions in another, birth certificates in another, and death certificates and burial-transit and removal permits in another. However, in a town having less than *[five hundred]* 500 inhabitants, the town clerk may cause marriage, civil union, birth and death certificates, and burial-transit and removal permits to be filed for record in one volume, provided that none of such volumes shall contain more than *[two hundred and fifty]* 250 certificates and permits. All volumes shall be maintained in the town clerk's office as permanent records.

Sec. 13. 18 V.S.A. § 5009 is amended to read:

§ 5009. NONRESIDENTS; CERTIFIED COPIES

On the first day of each month, *[he]* the town clerk shall make a certified copy of each original or corrected certificate of birth, marriage, civil union and death filed in *[his]* the clerk's office during the preceding month, whenever the parents of a child born were, or a *[bride or a groom]* party to a marriage or a civil union or a deceased person was, a resident in any other Vermont town at the time of such birth, marriage, civil union or death, and shall transmit such certified copy to the clerk of such other Vermont town, who shall file the same.

Sec. 14. 18 V.S.A. § 5010 is amended to read:

§ 5010. REPORT OF STATISTICS

The clerk in each town of over 5,000 population or in a town where a general hospital as defined in section 1902(a)(1) of this title, is located, shall each week transmit to the supervisor of vital records registration copies, duly certified, of each birth, death *[and]*, marriage and civil union certificate filed in the town in the preceding week. In all other towns, the clerk shall transmit such copies of birth, death *[and]*, marriage and civil union certificates received during the preceding month on or before the tenth day of each succeeding month.

Sec. 15. 18 V.S.A. § 5011 is amended to read:

§ 5011. PENALTY

A town clerk who fails to transmit such copies of birth, marriage, civil union and death certificates as provided in section 5010 of this title shall be fined not more than $100.00.

Sec. 16. 18 V.S.A. § 5012 is amended to read:

§ 5012. TOWN CLERK TO PROVIDE GENERAL INDEX; MARRIAGES AND CIVIL UNIONS

Except as provided by section 1153 of Title 24, town and county clerks shall prepare and keep a general index to the marriage and civil union records, in alphabetical order and in the following *[form]* forms, respectively:

Book
1

Page
1

Groom to Bride
A. to B.

Date

Book
1

Page
1

Bride to Groom
B. to A.

Date

Book
1

Page
1

Party to Party
A. to B.

Date

Book
1

Page
1

Party to Party
B. to A.

Date

Sec. 17. 8 V.S.A. § 4724(7)(E) is added to read:

(E) Making or permitting unfair discrimination between married couples and parties to a civil union as defined under 15 V.S.A. § 1201, with regard to the offering of insurance benefits to a couple, a spouse, a party to a civil union, or their family. The commissioner shall adopt rules necessary to carry out the purposes of this subdivision. The rules shall ensure that insurance contracts and policies offered to married couples, spouses, and families are also made available to parties to a civil union and their families. The commissioner may adopt by order standards and a process to bring the forms currently on file and approved by the department into compliance with Vermont law. The standards and process may differ from the provisions contained in chapter 101, subchapter 6 and sections 4062, 4201, 4515a, 4587, 4685, 4687, 4688, 4985, 5104 and 8005 of this title where, in the commissioner's opinion, the provisions regarding filing and approval of forms are not desirable or necessary to effectuate the purposes of this section.

Sec. 18. 8 V.S.A. § 4063a is added to read:

§ 4063a. COVERAGE FOR CIVIL UNIONS

(a) As used in this section:

(1) "Dependent coverage" means family coverage or coverage for one or more persons.

(2) "Party to a civil union" is defined for purposes of this section as under 15 V.S.A. § 1201.

(3) "Insurer" shall mean a health insurer as defined in 18 V.S.A. § 9402(7).

(b) Notwithstanding any law to the contrary, insurers shall provide dependent coverage to parties to a civil union that is equivalent to that provided to married insureds. An individual or group health insurance policy which provides coverage for a spouse or family member of the insured shall also provide the equivalent coverage for a party to a civil union.

Sec. 19. 32 V.S.A. § 1712 is amended to read:

§ 1712. TOWN CLERKS

Town clerks shall receive the following fees in the matter of vital registration:

(1) For issuing and recording a marriage or civil union license, $20.00 to be paid by the applicant, $5.00 of which sum shall be retained by the town clerk as a fee and $15.00 of which sum shall be paid by the town clerk to the state treasurer in a return filed quarterly upon forms furnished by the state treasurer and specifying all fees received by him or her during the quarter. Such quarterly period shall be as of the first day of January, April, July and October.

(2) $1.00 for other copies made under the provisions of section 5009 of Title 18 to be paid by the town;

(3) $2.00 for each birth certificate completed or corrected under the provisions of sections 449 and 816 of Title 15 and sections 5073, 5075-5078 of Title 18, for the correction of each marriage certificate under the provisions of section 816 of Title 15, and section 5150 of Title 18, for the correction or completion of each civil union certificate under the provisions of section 5168 of Title 18, and for each death certificate corrected under the provisions of section 5202a of Title 18, to be paid by the town;

(4) $1.00 for each certificate of facts relating to births, deaths, civil unions and marriages, transmitted to the commissioner of health in accordance with the provisions of section 5010 of Title 18. Such sum, together with the cost of binding the certificate shall be paid by the town;

(5) $7.00 for each certified copy of birth, death, civil union or marriage certificate.

Sec. 20. 32 V.S.A. § 3001 is amended to read:

§ 3001. *[PERSON CONSTRUED]* DEFINITIONS

(a) *[The word "person"]* "Person" as used in Parts 2, 4 and 5 of this subtitle shall include a partnership, association, corporation or limited liability company.

(b) "Party to a civil union" is defined for purposes of Title 32 as under subdivision 1201(4) of Title 15.

(c) "Laws of the United States", "federal tax laws" and other references to United States tax law (other than federal estate and gift tax law) shall mean United States tax law applied as if federal law recognized a civil union in the same manner as Vermont law.

Sec. 21. 32 V.S.A. § 5812 is added to read:

§ 5812. INCOME TAXATION OF PARTIES TO A CIVIL UNION

This chapter shall apply to parties to a civil union and surviving parties to a civil union as if federal income tax law recognized a civil union in the same manner as Vermont law.

Sec. 22. 32 V.S.A. § 7401(a) is amended to read:

(a) This chapter is intended to conform the Vermont *[inheritance]* estate tax laws with the estate and gift tax provisions of the United States Internal Revenue Code, except as otherwise expressly provided, in order to simplify the taxpayer's filing of returns, reduce the taxpayer's accounting burdens, and facilitate the collection and administration of these taxes. Because federal estate and gift tax law does not recognize a civil union in the same manner as Vermont law, and because a reduction in the Vermont estate tax liability for parties to a civil union based upon the federal marital deduction would not reduce the total estate tax liability, estates of parties to a civil union shall be subject to tax based on their actual federal estate tax liability and the federal credit for state death taxes, as provided under this chapter.

Sec. 23. 32 V.S.A. § 3802(11) is amended to read:

(11)(A) Real and personal property to the extent of $10,000.00 of appraisal value, except any part used for business or rental, occupied as the established residence of and owned in fee simple by a veteran of any war or a veteran who has received an American Expeditionary Medal, his or her spouse, widow, widower or child, or jointly by any combination of them, if one or more of them are receiving disability compensation for at least *[fifty]* 50 percent disability, death compensation, dependence and indemnity compensation, or pension for disability paid through any military department or the veterans administration if, before May 1 of each year, there is filed with the listers:

*[(A)]*(i) a written application therefor; and *[(B)]*(ii) a written statement from the military department or the veterans administration showing that the compensation or pension is being paid. Only one exemption may be allowed on a property.

(B) The terms used in this subdivision shall have the same definitions as in Title 38, U.S. Code § 101, except that:

(i) the definitions shall apply as if federal law recognized a civil union in the same manner as Vermont law;

(ii) such definitions shall not be construed to deny eligibility for exemption in the case where such exemption is based on retirement for disability and retirement pay is received from a federal agency other than the veterans administration*[,]* ; and

(iii) the age and marital status limits in section 101(4)(A) shall not apply.

An unremarried widow or widower of a previously qualified veteran shall be entitled to the exemption provided in this subdivision whether or not he or she is receiving government compensation or pension. By majority vote of those present and voting at an annual or special meeting warned for the purpose, a town may increase the veterans' exemption under this subsection to up to $20,000.00 of appraisal value. Any increase in exemption shall take effect for the taxable year in which it was voted, and shall remain in effect for future taxable years until amended or repealed by a similar vote.

Sec. 24. 15 V.S.A. § 4 is amended to read:

§ 4. MARRIAGE CONTRACTED WHILE ONE IN FORCE

Marriages contracted while either party has *[another wife or husband]* a living spouse or a living party to a civil union shall be void.

Sec. 25. 15 V.S.A. § 8 is added to read:

§ 8. MARRIAGE DEFINITION

Marriage is the legally recognized union of one man and one woman.

Sec. 26. 18 V.S.A. § 5131 is amended to read:

§ 5131. ISSUANCE OF MARRIAGE LICENSE; SOLEMNIZATION; RETURN OF MARRIAGE CERTIFICATE

(a) Upon application in a form prescribed by the department, a town clerk shall issue to a person a marriage license in the form prescribed by the department and shall enter thereon the names of the parties to the proposed marriage, fill out the form as far as practicable and retain in *[his]* the clerk's office a copy thereof. At least one party to the proposed marriage shall sign the certifying application to the accuracy of the facts so stated. The license shall be issued by the clerk of the town where either the bride or groom resides or, if neither is a resident of the state, by *[a]* any town clerk in the *[county where the marriage is to be solemnized]* state.

* * *

Sec. 27. 18 V.S.A. § 5137 is amended to read:

§ 5137. ISSUANCE OF LICENSE

(a) A town clerk shall issue a marriage license to all applicants who have complied with the provisions of section 5131 of this title and who are otherwise qualified under the laws of the state to apply for a license to marry and to contract for such marriage.

(b) An assistant town clerk may perform the duties of a town clerk under this chapter.

Sec. 28. 18 V.S.A. § 5144 is amended to read:

§ 5144. PERSONS AUTHORIZED TO SOLEMNIZE MARRIAGE

Marriages may be solemnized by a supreme court justice, a superior court judge, a district judge, a judge of probate, an assistant judge or a justice of the peace or by a *[minister of the gospel]* member of the clergy residing in this state and ordained or licensed, or otherwise regularly authorized thereunto by the published laws or discipline of the general conference *[or]*, convention or other authority of his or her faith or denomination or by such a *[minister]* clergy person residing in an adjoining state or country, whose parish, church, temple, mosque or other religious organization lies wholly or in part in this state, or by a *[minister of the gospel]* member of the clergy residing in some other state of the United States or in the Dominion of Canada *[who is ordained or licensed, or otherwise regularly authorized thereunto by the published laws or discipline of the general conference or convention of his denomination]*, provided he or she has first secured from the probate court of the district within which *[said]* the marriage is to be solemnized a special authorization *[to said nonresident]* *[minister]*, authorizing him or her to certify *[said]* the marriage if *[it appear to said]* such probate judge determines that the circumstances *[seem to]* make *[such]* the special authorization desirable. Marriage among the Friends or Quakers, the Christadelphian Ecclesia and the Baha'i Faith may be solemnized in the manner heretofore used in such societies.

Sec. 29. 15 V.S.A. chapter 25 is added to read:

CHAPTER 25. RECIPROCAL BENEFICIARIES

§ 1301. PURPOSE

(a) The purpose of this chapter is to provide two persons who are blood-relatives or related by adoption the opportunity to establish a consensual reciprocal beneficiaries relationship so they may receive the benefits and protections and be subject to the responsibilities that are granted to spouses in the following specific areas:

(1) Hospital visitation and medical decision-making under 18 V.S.A. § 1853;

(2) Decision-making relating to anatomical gifts under 18 V.S.A. § 5240;

(3) Decision-making relating to disposition of remains under 18 V.S.A. § 5220;

(4) Durable power of attorney for health care under 14 V.S.A. § 3456 and terminal care documents under 18 V.S.A. § 5254;

(5) Patient's bill of rights under 18 V.S.A. chapter 42;

(6) Nursing home patient's bill of rights under 33 V.S.A. chapter 73;

(7) Abuse prevention under 15 V.S.A. chapter 21.

(b) This chapter shall not be construed to create any spousal benefits, protections or responsibilities for reciprocal beneficiaries not specifically enumerated herein.

§ 1302. DEFINITIONS

As used in this chapter:

(1) "Commissioner" means the commissioner of health.

(2) "Reciprocal beneficiary" means a person who has established a reciprocal beneficiaries relationship pursuant to this chapter.

(3) A "reciprocal beneficiaries relationship" means that two eligible persons have established such a relationship under this chapter, and may receive the benefits and protections and be subject to the responsibilities that are granted to spouses in specifically enumerated areas of law.

§ 1303. REQUISITES OF A VALID RECIPROCAL BENEFICIARIES RELATIONSHIP

For a reciprocal beneficiaries relationship to be established in Vermont, it shall be necessary that the parties satisfy all of the following criteria:

(1) Be at least 18 years of age and competent to enter into a contract.

(2) Not be a party to another reciprocal beneficiaries relationship, a civil union or a marriage.

(3) Be related by blood or by adoption and prohibited from establishing a civil union or marriage with the other party to the proposed reciprocal beneficiaries relationship.

(4) Consent to the reciprocal beneficiaries relationship without force, fraud or duress.

§ 1304. ESTABLISHING A RECIPROCAL BENEFICIARIES RELATIONSHIP

Two persons who meet the criteria set forth in section 1303 of this title may establish a reciprocal beneficiaries relationship by presenting a signed, notarized declaration of a reciprocal beneficiaries relationship to the commissioner and paying a filing fee of $10.00. The commissioner shall file the declaration and give the parties a certificate of reciprocal beneficiaries relationship showing that the declaration was filed in the names of the parties.

§ 1305. DISSOLUTION OF A RECIPROCAL BENEFICIARIES RELATIONSHIP

(a) Either party to a reciprocal beneficiaries relationship may terminate the relationship by filing a signed notarized declaration with the commissioner.

(b) Within 60 days of the filing of the declaration and payment of a filing fee of $10.00 by a party to a reciprocal beneficiaries relationship, the commissioner shall file the declaration and issue a certificate of termination of a reciprocal beneficiaries relationship to each party of the former relationship.

(c) If a party to a reciprocal beneficiaries relationship enters into a valid civil union or a marriage, the reciprocal beneficiary relationship shall terminate and the parties shall no longer be entitled to the benefits, protections and responsibilities of the reciprocal beneficiaries relationship.

§ 1306. COMMISSIONER OF HEALTH; DUTIES

(a) The commissioner shall provide forms for a declaration of a reciprocal beneficiaries relationship and a declaration of termination of a reciprocal beneficiaries relationship.

(b) The commissioner shall keep a record of all declarations of a reciprocal beneficiaries relationship and declarations of termination of a reciprocal beneficiaries relationship.

(c) The commissioner shall prepare an informative circular or pamphlet that explains how a reciprocal beneficiaries relationship may be established and terminated, and the benefits, protections and responsibilities that are associated with the reciprocal beneficiaries relationship.

Sec. 30. 18 V.S.A. § 1853 is added to read:

§ 1853. HOSPITAL VISITATION POLICY; RECIPROCAL BENEFICIARY

A patient's reciprocal beneficiary, as defined in section 1302 of Title 15, shall have the same rights as a spouse with respect to visitation and making health care decisions for the patient.

Sec. 31. 18 V.S.A. § 5240 is amended to read:

§ 5240. MAKING, REVOKING AND OBJECTING TO ANATOMICAL GIFTS, BY OTHERS

(a) Any member of the following classes of individuals, in the order of priority listed, may make an anatomical gift of all or a part of the decedent's body for an authorized purpose, unless the decedent has made an unrevoked refusal to make that anatomical gift:

(1) The spouse of the decedent.

(2) The reciprocal beneficiary of the decedent.

*[(2)]*(3) An adult son or daughter of the decedent. *[(3)]*(4) Either parent of the decedent. *[(4)]*(5) An adult brother or sister of the decedent. *[(5)]*(6) A grandparent of the decedent. *[(6)]*(7) An individual possessing a durable power of attorney. *[(7)]*(8) A guardian of the person of the decedent at the time of death. *[(8)]*(9) Any other individual authorized or under obligation to dispose of the body.

* * *

Sec. 32. 18 V.S.A. § 5220 is added to read:

§ 5220. DECISION-MAKING REGARDING REMAINS; RECIPROCAL BENEFICIARY

A decedent's reciprocal beneficiary, as defined in section 1302 of Title 15, shall have the same rights as a spouse with respect to matters related to this chapter.

Sec. 33. 14 V.S.A. § 3456 is amended to read:

§ 3456. EXECUTION AND WITNESSES

The durable power of attorney for health care shall be signed by the principal in the presence of at least two or more subscribing witnesses, neither of whom shall, at the time of execution, be the agent, the principal's health or residential care provider or the provider's employee, the principal's spouse, heir, or reciprocal beneficiary, a person entitled to any part of the estate of the principal upon the death of the principal under a will or deed in existence or by operation of law or any other person who has, at the time of execution, any claims against the estate of the principal. The witnesses shall affirm that the principal appeared to be of sound mind and free from duress at the time the durable power of attorney for health care was signed and that the principal affirmed that he or she was aware of the nature of the documents and signed it freely and voluntarily. If the principal is physically unable to sign, the durable power of attorney for health care may be signed by the principal's name written by some other person in the principal's presence and at the principal's express direction.

Sec. 34. 18 V.S.A. § 5254 is amended to read:

§ 5254. EXECUTION AND WITNESSES

The document set forth in section 5253 of this title shall be executed by the person making the same in the presence of two or more subscribing witnesses, none of whom shall be the person's spouse, heir, reciprocal beneficiary, attending physician or person acting under the direction or control of the attending physician or any other person who has at the time of the witnessing thereof any claims against the estate of the person.

Sec. 35. 18 V.S.A. § 1852 is amended to read:

§ 1852. PATIENTS' BILL OF RIGHTS; ADOPTION

(a) The general assembly hereby adopts the "Bill of Rights for Hospital Patients" as follows:

* * *

(3) The patient has the right to obtain, from the physician coordinating his or her care, complete and current information concerning diagnosis, treatment, and any known prognosis in terms the patient can reasonably be expected to understand. If the patient consents or if the patient is incompetent or unable to understand, immediate family members, a reciprocal beneficiary or a guardian may also obtain this information. When it is not medically advisable to give such information to the patient, the information shall be made available to immediate family members, a reciprocal beneficiary or a guardian. The patient has the right to know by name the attending physician primarily responsible for coordinating his or her care.

* * *

(14) Whenever possible, guardians or parents have the right to stay with their children 24 hours per day. Whenever possible, guardians, reciprocal beneficiaries or immediate family members have the right to stay with terminally ill patients 24 hours a day.

* * *

Sec. 36. 33 V.S.A. § 7301 is amended to read:

§ 7301. NURSING HOME RESIDENTS' BILL OF RIGHTS

The general assembly hereby adopts the Nursing Home Residents' Bill of Rights as follows:

The governing body of the facility shall establish written policies regarding the rights and responsibilities of residents and, through the administrator, is responsible for development of, and adherence to, procedures implementing such policies. These policies and procedures shall be made available to residents, to any guardians, next of kin, reciprocal beneficiaries, sponsoring agency, or representative payees selected pursuant to section 205(j) of the Social Security Act, and Subpart Q of 20 CFR Part 404, and to the public. The staff of the facility shall ensure that, at least, each person admitted to the facility:

* * *

(14) if married or in a reciprocal beneficiaries relationship, is assured privacy for visits by his or her spouse or reciprocal beneficiary; if both are residents of the facility, they are permitted to share a room;

* * *

(20) residents and their families, including a reciprocal beneficiary, shall have the right to organize, maintain, and participate in either resident or family councils or both. The facility shall provide space and, if requested, assistance for meetings. Council meetings shall be afforded privacy, with staff or visitors attending only at the council's invitation. The facility shall respond in writing to written requests from council meetings. Resident councils and family councils shall be encouraged to make recommendations regarding facility policies;

(21) residents and their families, including a reciprocal beneficiary, shall have the right to review current and past state and federal survey and inspection reports of the facility, and upon request, to receive from the facility a copy of any report. Copies of reports shall be available for review at any time at one station in the facility. The facility may charge a reasonable amount for more than one copy per resident.

Sec. 37. 33 V.S.A. § 7306 is amended to read:

§ 7306. RESIDENT'S REPRESENTATIVE

(a) The rights and obligations established under this chapter shall devolve to a resident's reciprocal beneficiary, guardian, next of kin, sponsoring agency or representative payee (except when the facility itself is a representative payee) if the resident:

(1) has been adjudicated incompetent;

(2) has been found by his or her physician to be medically incapable of understanding or exercising the rights granted under this chapter; or

(3) exhibits a communication barrier.

* * *

Sec. 38. 15 V.S.A. § 1101(6) is added to read:

(6) "Family" shall include a reciprocal beneficiary.

Sec. 39. CONSTRUCTION

(a) This act shall be construed broadly in order to secure to eligible same-sex couples the option of a legal status with the benefits and protections of civil marriage, in accordance with the requirements of the Common Benefits Clause of the Vermont Constitution. Parties to a civil union shall have all of the same benefits, protections and responsibilities under state law, whether derived from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage. Treating the benefits, protections and responsibilities of civil marriage different from the benefits, protections and responsibilities of civil unions is permissible only when clearly necessary because the gender-based text of a statute, rule or judicial precedent would otherwise produce an unjust, unwarranted, or confusing result, and different treatment would promote or enhance, and would not diminish, the common benefits and protections that flow from marriage under Vermont law.

(b) This act is intended to extend to parties to a civil union the benefits, protections and responsibilities that flow from marriage under Vermont law. Many of the laws of this state are intertwined with federal law, and the general assembly recognizes that it does not have the jurisdiction to control federal laws or the benefits, protections and responsibilities related to them.

Sec. 40. VERMONT CIVIL UNION REVIEW COMMISSION

(a) The Vermont Civil Union Review Commission is established for a term of two years, commencing on the effective date of this act. The commission shall be comprised of 11 members, consisting of two members of the House designated by the Speaker of the House, who shall be of different political party affiliations; two members of the Senate designated by the Senate Committee on Committees, who shall be of different political party affiliations; four members appointed by the Governor representing the public, one of whom shall be an attorney familiar with Vermont family law; one member appointed by the Chief Justice of the Vermont Supreme Court; the chair of the Human Rights Commission or his or her designee; and the Attorney General or his or her designee.

(b) The commission members shall be appointed for a full term of two years; members who were members of the House of Representatives or the Senate at the time of their appointment shall continue as members of the commission, notwithstanding a change in their status as elected officials. A member who resigns, dies or takes up residency in another state or country shall be replaced in the same manner as the member was first selected.

(c) Upon passage of this act, the commission shall prepare and implement a plan to inform members of the public, state agencies, and private and public sector businesses and organizations about the act.

(d) The commission shall:

(1) collect information about the implementation, operation, and effect of this act, from members of the public, state agencies, and private and public sector businesses and organizations;

(2) evaluate the impact and effectiveness of this act, with particular attention to Secs. 1, 2 and 39;

(3) explore and propose methods and techniques, including existing and emerging forms of alternative dispute resolution, to complement the judicial system for the appropriate resolution of questions or disputes that may arise concerning the interpretation, implementation and enforcement of this act; and

(4) examine reciprocal beneficiaries relationships and evaluate whether non-related persons over 62 years of age should be permitted to establish a reciprocal beneficiaries relationship and whether the legal benefits, protections and responsibilities of a reciprocal beneficiaries relationship should be expanded.

(e) The commission shall report its findings, conclusions and recommendations to the general assembly, periodically as deemed necessary by the commission; however, the commission shall report to the general assembly and governor, at least annually, by January 15 of the years 2001 and 2002.

(f) The commission shall elect a chair and vice-chair, shall conduct its meetings pursuant to Robert's Rules of Order, and shall be subject to the public meeting laws pursuant to subchapter 2 of chapter 5 of Title 1.

(g) The commission may request and shall receive the assistance of any agency of the state of Vermont, and may solicit written comments from members of the public, civic organizations, businesses and others. The commission may hold public hearings throughout the state.

(h) The members of the commission shall have the assistance of the staff of legislative council and the joint fiscal office.

Sec. 41. SEVERABILITY

The provisions of this act are severable. If any provision of this act is invalid, or if any application thereof to any person or circumstance is invalid, the invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application.

Sec. 42. EFFECTIVE DATES

(a) This section and Secs. 1, 2 and 40 shall be effective upon passage.

(b) Secs. 17 and 18 (insurance) of this act shall become effective on January 1, 2001.

(c) Secs. 20 (tax definitions) and 21 (income taxation of parties to parties to a civil union) of this act shall apply to taxable years beginning on and after January 1, 2001.

(d) Sec. 23 of this act (veterans' property tax exemption) shall apply to grand lists for 2001 and after.

(e) All other sections of this act shall become effective on July 1, 2000.

(Committee Vote: 4-2-0)

Reported favorably by Senator Rivers for the Committee on Finance.

(Committee vote: 4-3-0)

(For House amendments, see House Journal for March 15, 2000, page 506; March 16, 2000, page 528.)

House Proposal of Amendment

S. 214

An act relating to disarming a law enforcement officer.

The House proposes to the Senate to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. 13 V.S.A. § 3019 is added to read:

§ 3019. DISARMING A LAW ENFORCEMENT OFFICER

(a) As used in this section:

(1) "Firearm" means any weapon, whether loaded or unloaded, which will expel a projectile by the action of an explosive, and includes any weapon commonly referred to as a pistol, revolver, rifle, gun, machine gun or shotgun.

(2) "Weapon" means any device, instrument, material or substance, whether animate or inanimate, excluding a firearm as defined in subdivision (a)(1) of this section, which, in the manner it is used or is intended to be used, is known to be capable of producing death, serious bodily injury, or temporary disability.

(3) "Law enforcement officer" means:

(A) a person certified by the Vermont criminal justice training council as having satisfactorily completed the approved training programs required to meet the minimum training standards applicable to that person pursuant to section 2358 of Title 20; or

(B) a constable who has not been prohibited from exercising law enforcement authority under section 1936a of Title 24 and who has been certified by the Vermont criminal justice training council as having successfully completed a course of training pursuant to section 2358 of Title 20; or

(C) a person certified as a member of the capitol police under section 70 of Title 2.

(b) A person is guilty of disarming a law enforcement officer if:

(1) the person knowingly:

(A) removes a firearm or other weapon from the person of a law enforcement officer; or

(B) deprives a law enforcement officer of the use of a firearm or other weapon; and

(2) the officer is acting within the lawful scope of the officer's duties; and

(3) the person has reasonable cause to know or knows the individual is a law enforcement officer.

(c) A person who is convicted of disarming a law enforcement officer with respect to a firearm shall be imprisoned not more than 10 years or fined not more than $10,000.00, or both.

(d) A person who is convicted of disarming a law enforcement officer with respect to a weapon other than a firearm shall be imprisoned not more than three years or fined not more than $500.00, or both.

Sec. 2. 13 V.S.A. § 1025 is amended to read:

§ 1025. RECKLESSLY ENDANGERING ANOTHER PERSON

A person who recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury shall be imprisoned for not more than one year or fined not more than $1,000.00 or both. Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded, and whether or not the firearm actually was loaded.

(For Senate amendments, see Senate Journal for January 20, 2000, page 99)

NEW BUSINESS

Without Recommendation

Proposed Amendment to the Constitution

PROPOSAL 6

Reported without recommendation by Senator Sears for the Committee on Judiciary.

First: With respect to the proposal as originally introduced, the committee voted to reject Proposal 6, by a committee vote of 6-0.

Pursuant to Rule 77, Proposal 6 as originally introduced is as follows:

PROPOSAL 6

Sec. 1. PURPOSE

This proposal would clarify the definition of marriage.

Sec. 2. Chapter I, Article 22nd of the Vermont Constitution is added to read:

ARTICLE 22nd. [DEFINITION OF MARRIAGE]

That marriage is a special label for a partnership between a man and a woman.

Second: With respect to amendment of Proposal 6, the committee voted to amend Proposal 6 by striking out sections one and two in their entirety and inserting in lieu thereof new sections one and two as set forth below, by a committee vote of 4-2.

Pursuant to Rule 77, Proposal 6, as amended by the Committee on Judiciary, is as follows:

Sec. 1. PURPOSE

This proposal would clarify the definition of marriage to be a union between one man and one woman, and would provide that the benefits and responsibilities of marriage need not be extended by the legislature or the courts to any grouping of people other than one man and one woman.

Sec. 2. Chapter I, Article 22nd of the Vermont Constitution is added to read:

ARTICLE 22nd. [DEFINITION OF MARRIAGE; RIGHTS AND RESPONSIBILITIES]

Marriage is the legal union of one man and one woman. The general assembly shall define the legal benefits and responsibilities associated with marriage. No provision of this constitution shall be held to require that any such benefits and responsibilities be extended by the general assembly or the judiciary to any grouping of people other than one man and one woman.

Third: With respect to Proposal 6, as amended by the Committee on Judiciary, the Committee voted to report Proposal 6, as amended, without recommendation, by a committee vote of 5-1.

AMENDMENT TO PROPOSAL 6 TO BE OFFERED BY

SENATOR CANNS

Senator Canns proposes to amend the recommendation of amendment of the Committee on Judiciary to Proposal 6 by striking out Sec. 1 and Sec. 2 in their entirety and inserting in lieu thereof the following:

Sec. 1. PURPOSE

This proposal would clarify the definition of marriage to be a union between one man and one woman.

Sec. 2. Chapter I, Article 22nd of the Vermont Constitution is added to read:

ARTICLE 22nd. [DEFINITION OF MARRIAGE]

Marriage is the legal union of one man and one woman.

Third Reading

H. 12

An act relating to electroconvulsive therapy.

H. 610

An act relating to insurance agents and brokers.

H. 612

An act relating to residential housing standards.

H. 733

An act relating to livestock dealers.

H. 748

An act relating to gray marketed cigarettes.

H. 815

An act relating to the liability of mortgagees for failure to provide payoff statements and discharge mortgages.

Favorable

Second Reading

Favorable with Proposal of Amendment

H. 185

An act relating to workers' compensation vocational rehabilitation benefits.

Reported favorably with recommendation of proposal of amendment by Senator Costes for the Committee on General Affairs and Housing.

The Committee recommends that the Senate propose to the House to amend the bill as follows:

First: In Sec. 1, § 641 of 21 V.S.A., by striking subsection (c) in its entirety and inserting in lieu thereof the following:

(c) The commissioner may adopt rules necessary to carry out the purpose of this section.

Second: In Sec. 2, in § 652 of 21 V.S.A., in subsection (a), by striking the words "either party, with discretion," and inserting in lieu thereof the following: "either party*[, in his discretion,]*"

Third: By adding two new sections to read as follows:

Sec. 4. 21 V.S.A. § 662(e) is added to read:

(e) In any dispute between employers and insurers arising under subsection (c) or (d) of this section, after payment to the claimant, the commissioner may order that the dispute be resolved through arbitration rather than the formal hearing process under sections 663 and 664 of this title. Qualifications for arbitrators and standards for the arbitration process shall be established by the commissioner by rule. If arbitration is ordered, the process shall proceed as follows:

(1) The parties shall select an arbitrator from a list provided by the commissioner.

(2) The arbitrator shall:

(A) Determine apportionment of the liability for the claim, including costs and attorney fees, among the respective employers or insurers, or both. The apportionment may be limited to one or more parties. If the parties do not agree, the costs of arbitration may be apportioned among the parties by the arbitrator.

(B) Issue a written decision which shall be final.

Sec. 5. RETURN TO WORK STUDY

No later than January 1, 2001, the Commissioner of Labor and Industry shall offer recommendations to the Senate Committee on General Affairs and Housing and the House Committee on General, Housing and Military Affairs regarding measures improving return to work opportunities for employees who have suffered work-related injuries.

(Committee Vote: 6-0-0)

(For House amendments, see House Journal for May 7, 1999, page 1076.)

H. 474

An act relating to assistive technology device warranties.

Reported favorably with recommendation of proposal of amendment by Senator Ptashnik for the Committee on General Affairs and Housing.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. 9 V.S.A. chapter 63, subchapter 1A is added to read:

Subchapter 1A. Assistive Technology

§ 2465. DEFINITIONS

These definitions are for use in this subchapter only:

(1) "Assistive device" means an item, piece of equipment, or product system, whether acquired commercially off-the-shelf, modified, or customized, that is used or designed to be used to increase, maintain, or improve any functional capability of an individual with disabilities. An assistive device system, that as a whole is within the definition of this term, is itself an assistive device, and, in such cases, this term also applies to each component product of the assistive device system that is itself ordinarily an assistive device. For this section only and no other purposes, this term is limited to:

(A) wheelchairs and scooters of any kind, including all their assistive devices and components that enhance the mobility or positioning of an individual, such as motorization, motorized positioning features, and the switches and controls for any motorized features; and

(B) computer equipment with voice output, artificial larynges, voice amplification devices, and other alternative and augmentative communication devices or any devices used for the purpose of communication.

(2) "Assistive device dealer" means a person who is in the business of selling assistive devices to consumers.

(3) "Assistive device lessor" means a person who leases an assistive device to a consumer, or who holds the lessor's rights, under a written lease.

(4) "Collateral costs" means expenses incurred by a consumer in connection with the repair of a nonconformity, including the costs of obtaining an alternative assistive device.

(5) "Consumer" means any of the following:

(A) the purchaser of an assistive device, if the assistive device was purchased from an assistive device dealer or manufacturer for purposes other than resale;

(B) a person to whom the assistive device is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the assistive device;

(C) a person who may enforce the warranty; and

(D) a person who leases an assistive device from an assistive device lessor under a written lease.

(6) "Demonstrator" means an assistive device used primarily for the purpose of demonstration and tryout to the public.

(7) "Early termination cost" means any expense or obligation that an assistive device lessor incurs as a result of both the termination of a written lease before the termination date set forth in that lease and the return of an assistive device to a manufacturer pursuant to this section. Early termination cost includes a penalty for prepayment under a finance arrangement.

(8) "Early termination saving" means any expense or obligation that an assistive device lessor avoids as a result of both the termination of a written lease before that termination date set forth in that lease and the return of an assistive device to a manufacturer pursuant to this section. Early termination saving includes an interest charge that the assistive device lessor would have paid to finance the assistive device or, if the assistive device lessor does not finance the assistive device, the difference between the total amount for which the lease obligates the consumer during the period of the lease term remaining after the early termination and the present value of that amount at the date of the early termination.

(9) "Loaner" means an assistive technology device that is loaned to the user without charge while repairs are made to the user's assistive technology device.

(10) "Manufacturer" means a person who manufactures or assembles assistive devices and agents of that person, including an importer, a

distributor, factory branch, distributor branch and any warrantors of the manufacturer's assistive device, but does not include an assistive device dealer.

(11) "Nonconformity" means a condition or defect that substantially impairs the use, value or safety of an assistive device, and that is covered by an express warranty applicable to the assistive device or to a component of the assistive device, but does not include a condition or defect that is the result of abuse, use which exceeds the manufacturer's recommendations, neglect or unauthorized modification or alteration of the assistive device by a consumer.

(12) "Reasonable attempt to repair" means, within the terms of an express warranty applicable to a new assistive device:

(A) any nonconformity within the warranty that is either subject to repair by the manufacturer, assistive device lessor or any of the manufacturer's authorized assistive device dealers, for at least three times and a nonconformity continues; or

(B) the assistive device is out of service for an aggregate of at least 30 cumulative days because of warranty nonconformity.

§ 2466. WARRANTY

(a) A manufacturer who sells or leases an assistive device, only of the types listed in subdivisions 2465(1)(A) and (B) of this title, to a consumer, either directly or through an assistive device dealer, shall furnish the consumer with an express warranty for the assistive device. By the terms of or in the absence of an express warranty from the manufacturer, the manufacturer shall be deemed to have expressly warranted to the consumer of an assistive device, only as defined in subdivisions 2465(1)(A) and (B) of this title, that, for a period of at least one year from the date of first delivery to the consumer, the assistive device:

(1) has no defects in parts or performance; and

(2) is free from any condition and defect that would substantially impair the device's use, value or safety to the consumer.

(b) The manufacturer through the assistive device lessor or assistive device dealer shall provide the consumer with a loaner if the assistive device, listed in subdivisions 2465(1)(A) and (B) of this title, has any condition or defect that would substantially impair the device's use, value or safety to the consumer and that can not be remedied within one business day.

(c) If a new assistive device listed in subdivisions 2465(1)(A) and (B) of this title does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the assistive device lessor or any of the manufacturer's authorized assistive device dealers, and makes the assistive device available for repair before one year after return delivery of the assistive device to the consumer, the nonconformity shall be repaired at no charge to the consumer, including parts, labor, shipping, delivery and all other costs.

(d) If, after a reasonable attempt to repair, the nonconformity is not repaired, then at the direction of a consumer described in subdivisions 2465(5)(A), (B) or (C) of this title, the manufacturer shall do one of the following:

(1) Accept return of the assistive device and replace the assistive device with a comparable new assistive device and refund any collateral costs.

(2) Accept return of the assistive device and refund to the consumer and to any holder of a perfected security interest in the consumer's assistive device, as their interest may appear, the full purchase price plus any finance charge amount paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use. A reasonable allowance for use may not exceed the amount obtained by multiplying the full purchase price of the assistive device by a fraction, the denominator of which is 1,825 and the numerator of which is the number of days that the assistive device was used before the consumer first reported the nonconformity to the assistive device dealer.

(3) With respect to a consumer described in subdivision 2465(5)(D) of this title, accept return of the assistive device, refund to the assistive device lessor and to any holder of a perfected security interest in the assistive device, as their interest may appear, the current value of the written lease and refund to the consumer the amount that the consumer paid under the written lease, plus any collateral costs, less a reasonable allowance for use.

(e) The current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the assistive device dealer's early termination costs and the value of the assistive device at the lease expiration date if the lease sets forth that value, less the assistive device lessor's early termination savings.

(f) A reasonable allowance for use may not exceed the amount obtained by multiplying the total amount for which the written lease obligates the consumer by a fraction, the denominator of which is 1,825 and the numerator of which is a number of days that the consumer used the assistive device before first reporting the nonconformity to the manufacturer, assistive device lessor or assistive device dealer.

(g) None of the requirements of this subchapter shall be construed to diminish existing assistive device warranties.

§ 2467. LOANERS

A loaner must:

(1) Be in good working order;

(2) Perform the essential functions of the assistive technology device that is being repaired, considering the needs of the user;

(3) Not create a threat to the safety of the user; and

(4) Be provided to the consumer by the manufacturer through the assistive device dealer within two business days after notice from the consumer of the nonconformity, except in the case of an assistive device that requires extensive custom retrofit in order to perform the essential functions. Such a custom device shall be provided as soon as reasonably possible, but in no case later than ten business days after notice.

§ 2468. REMEDIES

(a) To receive a comparable new assistive device or a refund due under subsection 2466(d) of this title, a consumer shall offer to the manufacturer of the assistive device having the nonconformity to transfer possession of that assistive device to that manufacturer. No later than 30 days after that offer, the manufacturer shall provide the consumer with the comparable assistive device or refund. When the manufacturer provides the new assistive device or refund, the consumer shall return the assistive device having the nonconformity to the manufacturer, along with any endorsements necessary to transfer real possession to the manufacturer.

(b) To receive a refund due under subsection 2466(d) of this title, a consumer described in subdivision 2465(5)(D) of this title shall offer to return the assistive device having the nonconformity to its manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the consumer. When the manufacturer provides the refund, the consumer shall return to the manufacturer the assistive device having the nonconformity.

(c) To receive a refund due under subsection 2466(d) of this title, an assistive device lessor shall offer to transfer possession of the assistive device having the nonconformity to its manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the assistive device lessor. When the manufacturer provides the refund, the assistive device lessor shall provide to the manufacturer any endorsements necessary to transfer legal possession to the manufacturer.

(d) If the assistive device was a covered benefit under a health insurance policy or health benefit plan, then the health insurer or other entity providing the benefit shall be subrogated to the consumer's right of recovery to the extent of the benefit provided.

(e) No person shall enforce the lease against the consumer after the consumer offers to return the assistive device under subdivision (a)(2)(B) of this section or returns the assistive device to the vendor pursuant to subdivision (a)(2)(C) of this section.

(f) No assistive device returned by a consumer or assistive device lessor in this state, or by a consumer or assistive device lessor in another state under a similar law of that state, may be sold or leased again in this state, unless full written disclosure of the reasons for return is made to any prospective buyer or lessee.

(g) This subchapter shall not be construed to limit rights or remedies available to a consumer under any other law.

(h) Any waiver by a consumer of rights under this subchapter is void.

(i) A violation of this subchapter or rules adopted under this subchapter is deemed to be an unfair or deceptive practice in commerce and a violation of section 2453 of this title. The attorney general has the same authority to make rules, conduct civil investigations and enter into assurances of discontinuance as provided under subchapter 1 of this chapter.

(j) A consumer aggrieved by a violation of this subchapter or a violation of rules adopted under this subchapter may bring an action in superior court for appropriate equitable relief, the amount of the consumer's damages, punitive damages in the case of a willful violation, the consideration or the value of the consideration given by the consumer and reasonable costs and attorney's fees.

Sec. 2. 9 V.S.A. § 41c is added to read:

§ 41c. RENT-TO-OWN; ASSISTIVE DEVICES

(a) As used in this section:

(1) "Assistive device" means any item, piece of equipment, or product system, whether acquired commercially off-the-shelf, modified, or customized, that is used or designed to be used to increase, maintain, or improve any functional capability of an individual with disabilities. An assistive device system, that as a whole is within the definition of this term, is itself an assistive device, and, in such cases, this term also applies to each component product of the assistive device system that is itself ordinarily an assistive device. This term includes, but is not limited to:

(A) wheelchairs and scooters of any kind, and other aids that enhance the mobility or positioning of an individual, such as motorization, motorized positioning features, and the switches and controls for any motorized features;

(B) computer equipment with voice output, artificial larynges, voice amplification devices, and other alternative and augmentative communication devices or any devices used for the purpose of communication;

(C) computer equipment and reading devices with voice output, optical scanners, talking software, braille printers, and other aids and devices that provide access to text;

(D) hearing aids, telephone communication devices for the deaf, and other assistive listening devices;

(E) voice recognition computer equipment, software and hardware accommodations, switches, and other forms of alternative access to computers;

(F) environmental control units;

(G) simple mechanical aids that enhance the functional capabilities of an individual with disabilities; and

(H) durable medical equipment.

(2) "Assistive devise lessee" means an individual with a disability or a person renting or leasing on behalf of an individual with a disability who is renting or leasing an assistive device for the purpose of increasing, maintaining or improving any functional capability related to the individual's disability.

(b) A person in the business of renting, or renting to own an assistive device to assistive device lessees, who rents an assistive device for more than 60 days or who rents an assistive device to own shall offer such assistive device lessees a purchase option with reasonable terms and conditions. Such a purchase option may be exercised at any time by the assistive device lessees, the reasonable terms and conditions of which shall be included with the consumer's periodic billing.

(1) A person in the business of renting products that may be assistive devices may include the following question in its rental application:

ARE YOU RENTING THIS PRODUCT AS AN ACCOMMODATION FOR A DISABILITY OR AS AN ASSISTIVE DEVICE?

Yes No  

(A) If an assistive device lessee answers "yes" to the question or requests additional information, the business entity shall provide the following statement:

ASSISTIVE DEVICE PURCHASE OPTION RIGHTS

IF YOU ARE RENTING THIS PRODUCT AS AN ACCOMMODATION FOR A DISABILITY OR AS AN ASSISTIVE DEVICE, THE DEALER IS REQUIRED TO OFFER YOU A RENTAL TRANSACTION THAT INCLUDES A PURCHASE OPTION. UNDER THE PURCHASE OPTION YOU MAY ACQUIRE OWNERSHIP OF THE PRODUCT AT ANYTIME BY TENDERING AN AMOUNT EQUAL TO THE CASH PRICE OF THE PRODUCT LESS 50% OF ALL PREVIOUS RENTAL PAYMENTS YOU HAVE MADE. OR, ONCE YOU HAVE MADE RENTAL PAYMENTS EQUAL TO 200% OF THE CASH PRICE YOU MAY ACQUIRE OWNERSHIP OF THE PRODUCT BY PAYING $1.00.

BEFORE YOU DETERMINE WHETHER TO ELECT A TRANSACTION WITH OR WITHOUT A PURCHASE OPTION, THE PERSON IN THE BUSINESS OF RENTING OR RENTING TO OWN THE ASSISTIVE DEVICE MUST FULLY DISCLOSE THE TERMS OF BOTH TRANSACTIONS.

THE VALUE OF A PURCHASE OPTION DEPENDS ON MANY FACTORS, WHICH MAY INCLUDE: (1) HOW LONG YOU INTEND TO USE THE PRODUCT; (2) THE CASH PRICE OF THE PRODUCT; AND (3) THE COST OF MAINTAINING THE PRODUCT.

ASSISTIVE DEVICE PURCHASE OPTION RIGHTS: IF YOU ELECT A RENTAL TRANSACTION WITHOUT A PURCHASE OPTION AND YOU CHANGE YOUR MIND AT A LATER DATE AND DECIDE TO ENTER INTO A PURCHASE OPTION TRANSACTION, PAYMENTS THAT YOU HAVE MADE WILL NOT BE APPLIED TO THE NEW TRANSACTIONS.

(B) The rental dealer may add additional information or explanations to the information required by subdivision (A) of this subsection, as long as the additional information is not stated, utilized, or placed in a manner that will confuse the assistive device lessee or that will contradict, obscure or distract attention from the required information. The additional information or explanation shall not have the effect of circumventing, evading, or complicating the information required by subdivision (A) of this subsection.

(2) Failure to comply with this section is not a violation if the assistive device lessee fails to inform the rental dealer that the product is being rented as an assistive device after the rental dealer makes the written inquiry in subdivision (b)(1) of this section.

(c) When periodic payments made by an assistive device lessee, exclusive of payments for service, total 200 percent of the bona fide cash price, the person in the business of renting or renting to own the assistive device shall notify the individual with a disability and the assistive device lessee that the individual with a disability and the assistive device lessee have the option of acquiring ownership of the assistive device upon payment of $1.00, at which time the rental or rent-to-own agreement shall terminate.

(1) The term "bona fide cash price" means the price at which a merchant, in the ordinary course of business, and taking into account the value of the merchandise and its retail price in the trade area, would offer to sell the merchandise to consumers for cash.

(d) Under a rent to own program, at any time after the initial payment, the assistive device lessee may acquire ownership of the property by tendering an amount equal to the cash price of the merchandise minus 50 percent of all previous rental-purchase payments made.

(e) When an assistive device lessee has acquired ownership of an assistive device under this section, the person in the business of renting or renting to own shall offer, for a reasonable price and term, a contract to maintain and service the device.

(f) This section shall not apply to assistive devices provided pursuant to a Medicare or Medicaid contract that either includes provisions for the acquisition of ownership or prohibits purchase or the acquisition of ownership by an assistive device lessee.

(g) A violation of this section is deemed to be an unfair or deceptive act or practice in commerce and a violation of chapter 63 of this title and all remedies and penalties available to a consumer or the attorney general under that chapter shall apply, and the attorney general shall have the same authority to make rules, conduct civil investigations and enter into assurances of discontinuance as provided under subchapter 1 of chapter 63 of this title.

Sec. 3. EFFECTIVE DATE

This act shall apply to assistive technology devices purchased by, or leased or transferred to a consumer after July 1, 2000.

(Committee Vote: 6-0-1)

(For House amendments, see House Journal for February 22, 2000, page 289; February 23, page 300.)

H. 848

An act relating to zoning of registered or licensed family child care homes.

Reported favorably with recommendation of proposal of amendment by Senator Kittell for the Committee on Government Operations.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. 24 V.S.A. § 4409(f) is amended to read:

(f) A state registered or licensed family *[day]* child care home serving six or fewer children shall be considered by right to constitute a permitted single-family residential use of property. A state registered or licensed family child care home serving no more than six full-time children and four part-time children, as defined in subdivision 4902(3)(A) of Title 33, shall be considered to constitute a permitted use of property but may require site plan approval based on local zoning requirements. A state registered or licensed family child care facility serving more than six full-time and four part-time children may, at the discretion of the municipality, be subject to all applicable municipal zoning

(Committee Vote: 6-0-0) bylaws.

(No House amendments.)

House Proposal of Amendment

S. 10

An act relating to aggravated operation without consent of owner.

The House proposes to the Senate to amend the bill by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. 23 V.S.A. § 1094 is amended to read:

§ 1094. OPERATION WITHOUT CONSENT OF OWNER; AGGRAVATED OPERATION WITHOUT CONSENT OF OWNER

(a) *[A person who, without the consent of the owner, takes, uses, operates or removes, or causes to be taken, used, operated or removed from a garage, stable or other building or place or from any place or locality on a private or public highway, park, parkway, street, lot, field, inclosure or space, a motor vehicle, and operates or drives or causes the same to be operated or driven for his or her own profit, pleasure, use or purpose, shall be imprisoned not more than two years or fined not more than $1,000.00, or both. This section shall not be construed to limit or restrict prosecutions for grand larceny.]*

A person commits the crime of operation without consent of the owner if the person, without the consent of the owner, knowingly takes, obtains, operates, uses or continues to operate the motor vehicle of another.

(b) A person commits the crime of aggravated operation without consent of the owner if the person, without the consent of the owner, knowingly takes, obtains, operates, uses or continues to operate the motor vehicle of another, and:

(1) the motor vehicle is not recovered within 24 hours of the time it is determined the theft occurred regardless of whether the operator is then in actual or constructive possession of the vehicle; or

(2) the person does any of the following:

(A) Attempts to alter or disguise or alters or disguises the appearance of the motor vehicle.

(B) Attempts to alter or remove or alters or removes the vehicle identification number as defined in section 2001(3) of this title.

(C) Uses the motor vehicle in the commission of a felony.

(D) Causes $500.00 or more in property damage while operating the motor vehicle or while attempting to gain access to or exercise control of it.

(E) Causes bodily injury to another while operating or exercising control of the motor vehicle.

(F) Abandons the motor vehicle out side of the state of Vermont.

(G) Unlawfully attaches or otherwise displays in or upon the motor vehicle registration plates other than those officially issued for the motor vehicle.

(c) A person convicted under subsection (a) of this section of operation without consent of the owner shall be imprisoned not more than two years or fined not more than $1,000.00, or both.

(d) A person convicted under subsection (b) of this section of aggravated operation without consent of the owner shall be imprisoned not more than five years or fined not more than $2,000.00, or both.

(e) This section shall not be construed to limit or restrict prosecutions for grand larceny.

*[(b)]*(f) A person convicted of violating this section shall be assessed a surcharge of $50.00, which shall be added to any fine or surcharge imposed by the court. The court shall collect and transfer the surcharge assessed under this subsection to be credited to the DUI enforcement fund. The collection procedures described in 13 V.S.A. § 5240 shall be utilized in the collection of this surcharge.

Sec. 2. 23 V.S.A. § 801(a)(1)(D) is amended to read:

(a) The commissioner shall require proof of financial responsibility to satisfy any claim for damages, by reason of personal injury to or the death of any person, of at least $25,000.00 for one person and $50,000.00 for two or more persons killed or injured and $10,000.00 for damages to property in any one accident, as follows:

(1) From a person who is convicted of any of the following violations of this title:

* * *

(D) Operating, taking, using or removing a motor vehicle without the consent of the owner in violation of section 1094 of this title;

Sec. 3. 23 V.S.A. § 2502(a)(5)(C) is amended to read:

(a) Any person operating a motor vehicle shall have points assessed against his or her driving record for convictions for moving violations of the indicated motor vehicle statutes in accord with the following schedule: (All references are to Title 23 of the Vermont Statutes Annotated.)

* * *

(5) Ten points assessed for:

* * *

(C) § 1094. Operation without owner's consent and aggravated operation without owner's consent;

House Proposal of Amendment

S. 226

An act relating to sexual exploitation of children.

The House proposes to the Senate to amend the proposal of amendment by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. 13 V.S.A. § 2821 is amended to read:

§ 2821. DEFINITIONS

As used in this chapter:

(1) "Child" means any person under the age of 16 years.

(2) "Sexual conduct" means any of the following:

(A) any conduct involving contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the anus or the mouth and the vulva;

(B) any intrusion, however slight, by any part of a person's body or any object into the genital or anal opening of another with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desire of any person;

(C) any intentional touching, not through the clothing, of the genitals, anus or breasts of another with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desire of any person;

*[(B)]*(D) masturbation; *[(C)]*(E) bestiality; or *[(D)]*(F) sadomasochistic abuse for sexual purposes.

(3) "Performance" means:

(A) an event which is photographed, filmed or visually recorded; or

(B) a play, dance or other visual presentation or exhibition before an audience.

(4) "Sexual performance" means any performance or any part of a performance, which includes sexual conduct by a child.

(5) "Promote" means to procure, issue, manufacture, publish, sell, give, provide, lend, mail, deliver, distribute, disseminate, circulate, present, exhibit, advertise, or offer to do the same.

Sec. 2. 13 V.S.A. § 2822 is amended to read:

§ 2822. USE OF A CHILD IN A SEXUAL PERFORMANCE

(a) No person shall, with knowledge of the character and content, promote a sexual performance by a child or a performance *[including]* which contains a lewd exhibition of the genitals *[by]*, anus or breasts of a child, or hire, employ, procure, use, cause or induce a child to engage in such a performance.

(b) In any prosecution arising under this section, the defendant may raise as an affirmative defense that before the child participated in the sexual performance, the defendant, in good faith, had a reasonable and factual basis to conclude that the child had in fact attained the age of 16; and the defendant did not rely solely upon the oral allegations or representations of the child as to his or her age.

Sec. 3. 13 V.S.A. § 2824 is amended to read:

§ 2824. PROMOTING A RECORDING OF *[A]* SEXUAL *[ACT]* CONDUCT

(a) No person may, with knowledge of the character and content, promote any photograph, film or visual recording of sexual conduct by a child, or of a lewd exhibition of a child's genitals or anus . This subsection does not apply to paintings, drawings, or to non-visual or written descriptions of sexual conduct.

(b) In any prosecution arising under this section, the defendant may raise any of the following affirmative defenses:

(1) that the recording was promoted for a bona fide medical, psychological, social work, legislative, judicial or law enforcement purpose, by or to a physician, psychologist, social worker, legislator, judge, prosecutor, law enforcement officer, or other person having such a bona fide interest in the subject matter.

* * *

Sec. 4. 13 V.S.A. § 2826 is amended to read:

§ 2826. EVIDENCE OF AGE

The age of a person who participated in *[a]* sexual conduct or a performance which contains a lewd exhibition of the genitals, anus or breasts or who was solicited for either by means designated under section 2828 of this chapter may be established by any method acceptable under the rules of evidence, including but not limited to the following methods:

(1) inferences drawn by the trier of fact from inspection of a document which depicts sexual conduct;

(2) testimony as to the apparent age of the person by a witness to sexual conduct; or

(3) expert medical testimony based upon the appearance of the person depicted in a recording of sexual conduct.

Sec. 5. 13 V.S.A. § 2827 is added to read:

§ 2827. POSSESSION OF CHILD PORNOGRAPHY

(a) No person shall, with knowledge of the character and content, possess any photograph, film or visual depiction, including any depiction which is stored electronically, of sexual conduct by a child or of a clearly lewd exhibition of a child's genitals or anus.

(b) This section does not apply:

(1) if the depiction was possessed for a bona fide medical, psychological, social work, legislative, judicial or law enforcement purpose, by a physician, psychologist, social worker, legislator, judge, prosecutor, law enforcement officer, or other person having such a bona fide interest in the subject matter;

(2) if the person was a bona fide school, museum or public library, or was a person acting in the course of employment as an employee or official of such an organization or of a retail outlet affiliated with and serving the educational or intended purpose of that school, museum or library;

(3) if the person in good faith had a reasonable basis to conclude that the child in fact had attained the age of 16 when the depiction was made;

(4) to paintings, drawings, or nonvisual or written descriptions of sexual conduct;

(5) to a person who in good faith took reasonable steps, whether successful or not, to destroy or eliminate the depiction.

Sec. 6. 13 V.S.A. § 2828 is added to read:

§ 2828. USE OF ELECTRONIC COMMUNICATION TO LURE A CHILD

No person shall knowingly utilize an electronic communication to solicit, lure, or entice, or to attempt to solicit, lure, or entice, a child under the age of 16 or another person believed by the person to be a child under the age of 16, to engage in a sexual act as defined in section 3251 of this title or engage in lewd and lascivious conduct as defined in section 2602 of this title.

Sec. 7. 13 V.S.A. § 2825 is amended to read:

§ 2825. PENALTIES

(a) A person who violates sections 2822, 2823, or 2824 of this title shall be imprisoned not more than 10 years *[and]* or fined not more than $20,000.00, or both.

(b) Upon conviction for a violation of sections 2822, 2823, or 2824 of this title of a person who has earlier been convicted under any of those sections, the person shall be imprisoned not less than one year nor more than 15 years *[and]* or fined not more than $50,000.00, or both.

(c) A person who violates section 2827 of this title by possessing a photograph, film or visual depiction, including a depiction stored electronically, which constitutes:

(1) a clearly lewd exhibition of a child's genitals or anus, other than a depiction of sexual conduct by a child, shall be imprisoned not more than two years or fined not more than $5,000.00, or both;

(2) sexual conduct by a child shall be imprisoned not more than five years or fined not more than $10,000.00, or both.

(d) A person who is convicted of a second or subsequent violation of section 2827 of this title shall be imprisoned not more than 10 years or fined not more than $50,000.00, or both.

(e) A person who violates section 2828 of this title shall be imprisoned not more than five years or fined not more than $10,000.00, or both.

Sec. 8. EFFECTIVE DATE

This act shall take effect on July 1, 2000.

House Proposal of Amendment

S. 304

An act relating to Class 2 town highway rehabilitation program.

The House proposes to the Senate to amend the bill by adding a new Sec. 3 to read as follows:

Sec. 3. 19 V.S.A. § 306(h) is amended to read:

(h) There shall be an annual appropriation for grants to municipalities for rehabilitation of paved or unpaved class 2 town highways that are rural major connectors. The appropriation shall be allocated by the secretary after consideration of applications submitted by the municipalities.

House Resolutions for Action

J.RH. 233

Joint resolution honoring Carroll Ketchum for his private and public sector contributions to the town of Bethel.

J.R.H. 234

Joint resolution honoring the Windsor County Youth Court on its receipt of the 2000 Vermont NEA Human and Civil Rights Award.

J.R.H. 235

Joint resolution congratulating the Bellows Falls Union High School Terriers 2000 Division II Championship Boys' basketball team.

J.R.H. 236

Joint resolution congratulating the Bellows Falls Union High School Terriers 2000 Division II Girls' Basketball Championship.

J.R.H. 237

Joint resolution honoring Becky Cassidy on the occasion of her retirement from 15 years of service to First Night Burlington.

(For text of Resolutions, see Senate Journal for Monday, April 17, 2000)

NOTICE CALENDAR

Favorable with Proposal of Amendment

H. 343

An act relating to nonpayment of rent and termination of residential tenancies.

Reported favorably with recommendation of proposal of amendment by Senator Backus for the Committee on General Affairs and Housing.

The Committee recommends that the Senate propose to the House to amend the bill as follows:

First: In Sec. 2, in § 4467 of 9 V.S.A., by striking out subdivision (1) of subsection (c) in its entirety and inserting in lieu thereof the following:

(c) Termination for no cause. In the absence of a written rental agreement, the landlord may terminate a tenancy for no cause as follows:

(1) if rent is payable on a monthly basis, by providing actual *[written]* notice *[given]* to the tenant*[;]* of the date on which the tenancy will terminate which shall be:

(A) For tenants who have resided continuously in the same premises for two years or less, at least 60 days *[prior to the termination date specified in the notice]* after the date of the actual notice.

(B) For tenants who have resided continuously in the same premises for more than two years, at least 90 days after the date of the actual notice.

Second: By adding a new Sec. 2a to read:

Sec. 2a. 9 V.S.A. §4467(e) is amended to read:

(e) Termination by landlord under terms of a written rental agreement. If the landlord terminates a tenancy in accordance with the terms of a written rental agreement, the notice to terminate shall be at least 30 days, if rent is payable on a monthly basis *[or]* and the tenancy has continued for two years or less. The notice to terminate shall be at least 60 days if the rent is paid on a monthly basis and the tenancy has continued for more than two years. The notice to terminate shall be at least seven days, if rent is payable on a weekly basis; however, a notice to terminate for nonpayment of rent shall be as provided in subsection (a) of this section.

Third: By adding Secs. 5, 6, 7, 8, 9, 10, and 11 to read as follows:

Sec. 5. 9 V.S.A. § 4456a is added to read:

§ 4456a. RESIDENTIAL RENTAL APPLICATION FEES; PROHIBITED

A landlord or a landlord's agent shall not charge an application fee to any individual in order to apply to enter into a rental agreement for a residential dwelling unit. This section shall not be construed to prohibit a person from charging a fee to a person in order to apply to rent commercial or nonresidential property.

Sec. 6. 9 V.S.A. § 4458 is amended to read:

§ 4458. HABITABILITY; TENANT REMEDIES

(a) If the landlord fails to comply with the landlord's obligations for habitability*[, the tenant shall give the landlord actual notice of the noncompliance. If]* and, after receiving actual notice of the noncompliance from the tenant, a governmental entity or a qualified independent inspector, the landlord fails to make repairs within a reasonable time and the noncompliance materially affects health and safety, the tenant may:

* * *

Sec. 7. 12 V.S.A. § 4528 is amended to read:

§ 4528. DECREE FORECLOSING EQUITY OF REDEMPTION; WRIT OF POSSESSION

If a decree is made foreclosing the right of redemption, the time of redemption shall be six months from the date of the decree unless a shorter time *[be]* is ordered. If the premises are not redeemed agreeably to the decree, the clerk of the court may issue a writ of possession. Such writ shall have the same force and effect and be executed in the same manner as similar writs issued after judgment by a court of law in ejectment proceedings. Where the premises are occupied by a residential tenant, the writ shall be served on the tenant, and no sooner than 30 days after the writ is served the plaintiff shall be placed in possession of the property without further proceedings.

Sec. 8. 12 V.S.A. § 4523 is amended to read:

§ 4523. VENUE; JOINDER OF PARTIES; RECORDING

* * *

(c) If the mortgaged property is subject to a residential rental agreement, as defined in 9 V.S.A. § 4451:

(1) The plaintiff shall join as a party defendant any person occupying the mortgaged property pursuant to a residential rental agreement as of the date the copy of the complaint is recorded in the land records. Service of the complaint on the tenant shall be sufficient if mailed to the tenant by first class mail at the address specified in the rental agreement, if the agreement is recorded, or to the "occupant" at the address of the leased premises if the agreement is not recorded.

(2) The summons and complaint served on any person occupying the premises pursuant to a residential rental agreement shall contain the following notice, written in at least 14 point type: THE PROPERTY IN WHICH YOU LIVE IS BEING FORECLOSED UPON. YOU ARE NAMED AS A DEFENDANT IN THE FORECLOSURE BECAUSE YOUR RIGHT TO REMAIN ON THE PREMISES MAY END WHEN THE FORECLOSURE IS COMPLETED. YOU MUST NOTIFY THE COURT OF YOUR NAME AND ADDRESS IN ORDER TO BE KEPT INFORMED OF THE STATUS OF THE FORECLOSURE.

(3) Upon receipt of the complaint, the owner of the mortgaged property shall notify each tenant who enters into a residential rental agreement, that the premises are the subject of a pending foreclosure action and that, in the event the owner is unable to redeem the premises, the tenant may be required to vacate the premises upon 30 days notice.

(d) All proceedings shall be before the presiding judge alone, and trial shall be without jury.

Sec. 9. 12 V.S.A. § 4852 is amended to read:

§ 4852. MODE OF PROCESS; DECLARATION; TRIAL BY JURY

The process may issue as a summons or writ of attachment, requiring the defendant to appear and answer to the complaint of the plaintiff which shall state that the defendant is in the possession of the lands or tenements in question (describing them), which *[he]* the tenant holds unlawfully and against the right of the plaintiff. A copy of the rental agreement and any notice to terminate the defendant's tenancy shall be attached to the complaint. Either party shall have the right to a trial by jury.

Sec. 10. STATE RENTAL HOUSING REGISTRY; DESIGN

The department of labor and industry and the department of housing and community affairs shall cooperatively design a process for creating a registry of all the rental housing units in Vermont from which to create a database that will be updated regularly to provide valid contemporary information relating to each rental housing unit in the state. The design shall include an estimate of human and financial resources needed to assure the success and thoroughness of the registry. The rental housing registry design proposal shall be presented to the general assembly in a report on or before January 1, 2001. At a minimum, the report shall include:

(1) An estimate of the cost of creating and maintaining the registry and database.

(2) A detailed description of the data collection process, including specific data to be collected and procedures for updating and assuring the contemporary accuracy of the information, including identification of any existing rental housing inventories or databases that may be used to enhance the completion and accuracy of the registry.

(3) A fee structure that will adequately finance the creation and ongoing administration of the registry, including methods for payment and collection of fees.

(4) An estimate of the number and qualifications of personnel needed to develop and, later, maintain and update the registry and the fee collection system.

(5) A process for authorizing those municipalities that already have registries and effective housing code enforcement programs to continue, and methods to assure that local registries and enforcement efforts interface with the state housing code enforcement activities.

(6) A description of the specific information about each rental housing unit that will be included in the registry, such as the size, location, number of floors, type of heating system, extent of housing code compliance, accessibility features, and any other information deemed useful or relevant to future housing code compliance efforts that should be included in the registry.

(7) A process that prioritizes rental housing inspections and provides systematic inspections, including the number of inspectors necessary to fulfill this goal.

(8) A process and time frame for transferring habitability code enforcement from town health officers to the department of labor and industry.

(9) A sub-registry of accessible rental housing units.

Sec. 11. 24 V.S.A. § 5011 is added to read:

§ 5011. MUNICIPAL RENTAL HOUSING REGISTRY

A municipality may require owners of rental housing units located within the municipality to register those units with the municipality, and to certify that the rental units meet the minimum state and local rental housing code standards. Any rental housing registry established under this section shall be consistent with any state rental housing registry. Annually, a municipality shall provide the department of labor and industry with a copy of all registry information collected. The municipality may establish a rental housing registration fee, provided the fee is reasonably related to the cost of administering the registry and any housing inspection program associated with the registry. An owner of rental housing units who properly registers with a municipality that has established a registry with a fee shall be exempt from payment of a state rental housing registration fee.

(Committee Vote: 6-0-0)

(For House amendments, see House Journal for May 25, 1999, page 1288.)

H. 408

An act relating to historic downtown development.

Reported favorably with recommendation of proposal of amendment by Senator Ready for the Committee on Natural Resources and Energy, upon commitment.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. 24 V.S.A. § 2791 is amended to read:

§ 2791. DEFINITIONS

As used in this chapter:

* * *

(5) *["Downtown development nonprofit corporation" means a nonprofit corporation that is designated to implement the community reinvestment agreement under subdivision 2793(b)(2) of this title. A nonprofit corporation established by the Vermont economic development authority shall be considered qualified for purposes of this chapter.]* "Local downtown organization" means either a nonprofit corporation, including a nonprofit corporation established by the Vermont economic development authority, or a board, council, or commission created by the legislative body of the municipality, whose primary purpose is to administer and implement the community reinvestment agreement and other matters regarding the revitalization of the downtown district under subdivision 2793(b)(2) of this title.

* * *

(10) *["Local board" means a board, council, commission or organization selected or appointed by the legislative body of a municipality which is empowered by law with the primary administration, oversight, regulation or adjudication of matters of a district listed in subdivision 2793(b)(1) of Title 32.]*

(11) "Expressway interchange area" means the part of a municipality that is located within 2,000 feet of the intersection of any entrance or exit ramp that provides access to any divided arterial highway for through traffic that has full control of access, and grade separation at major intersections.

Sec. 2. 24 V.S.A. § 2793 is amended to read:

§ 2793. DESIGNATION OF DOWNTOWN DEVELOPMENT DISTRICTS

(a) A municipality, by its legislative body, may apply to the state board for designation of a downtown area within that municipality as a downtown development district. An application by a municipality shall contain a map delineating the district, evidence that the regional planning commission and the regional development corporation have been notified of the municipality's intent to apply and information showing that the district meets the standards for designation established in subsection (b) of this section.

(b) Within 45 days of receipt of a completed application, the state board shall designate a downtown development district if the state board finds, with respect to that district, that the municipality has:

(1) a planning process confirmed under section 4350 of this title and has otherwise demonstrated a planning commitment through the adoption of a design control district, an historic district, an urban renewal district, or through the creation of a development review board authorized to undertake local Act 250 reviews pursuant to section 4449 of this title; and

(2) provided a community reinvestment agreement that has been executed by the authorized representatives of the municipal government, business and property owners within the district, and community groups with an articulated purpose of supporting downtown interests, and that contains the following provisions:

(A) a delineation of the area that meets the requirements set forth in subdivision 2791(3) of this title and that is part of or contains a district that is listed or eligible for listing on the National Register of Historic Places pursuant to 16 U.S.C. § 470a;

(B) a capital improvement plan to improve or preserve public infrastructure within the district, including facilities for public transit, parking, pedestrian amenities, lighting and public space;

(C) a source of funding and resources necessary to fulfill the community reinvestment agreement, demonstrated by a commitment by the legislative body of the municipality to implement at least one of the following:

(i) a special assessment district created to provide funding to the downtown district;

(ii) authority to enter into a tax stabilization agreement for the purposes of economic development in a downtown district;

(iii) a commitment to implement a tax incremental financing district pursuant to subchapter 5 of chapter 53 of this title; or

(iv) other multiple-year financial commitments among the parties subject to the approval of the state board;

(D) an organizational structure necessary to sustain a comprehensive long-term downtown revitalization effort, including a local *[board or designation of the entity that will qualify as the downtown development nonprofit corporation]* downtown organization as defined under subdivision 2791(5) of this title;

(E) evidence that any private or municipal sewage system and private or public water supply serving the proposed downtown district is in compliance with the requirements of chapters 47 and 56 of Title 10, and that the municipality has dedicated a portion of any unallocated reserve capacity of the sewage and public water supply for growth within the proposed downtown district. Any municipality proposing a municipal sewage system and public water supply to serve the proposed downtown district shall provide evidence to the state board of a commitment to construct or maintain such a system and supply in compliance with requirements of chapters 47 and 56 of Title 10, or a commitment to construct, as applicable, a permittable potable water supply, wastewater system, indirect discharge or public water supply within no more than ten years. A commitment to construct does not relieve the property owners in the district from meeting the applicable regulations of the agency of natural resources regarding wastewater systems, potable water supplies, public water supplies, indirect discharges, and the subdivision of land. In the event that a municipality fails in its commitment to construct a municipal sewage system and public water supply, the state board shall revoke designation *[and the incentives that accrue pursuant to 24 V.S.A. § 2794 from that date forward]*, unless the municipality demonstrates to the state board that all good faith efforts were made and continue to be made to obtain the required approvals and permits from the agency of natural resources, and failure to construct was due to unavailability of state or federal matching loan funds.

(c) A municipality with a designated downtown shall be eligible for additional incentives listed under subsection 2794(c) of this title, if the municipality demonstrates and the board determines both of the following:

(1) That the municipality is making substantial progress in implementing measures to attain each of the goals established in subsection 4302(c) of this title. Implementation measures shall be designed to achieve the state goals that encourage the development of downtown areas and foster compact settlements separated by rural countryside, continue the use of farm and forest land for farming and managed forestry, and protect important features of the area, including open spaces and views, and important environmental and historic features. Implementation measures shall discourage scattered, low-density growth patterns and inefficient use of land and public services. The implementation measures shall be designed to guide public investment in support of these goals. Implementation measures shall be commensurate with the resources of the municipality, the status of the municipality when it commenced planning, and the length of time that the municipality has been planning, and shall include the adoption of bylaws and ordinances, where applicable. These measures may include easements, land trust actions, a town fund for the protection of land, trail networks and their management, agri-tourism development plans, farm stands, affordable housing for rural farm and forestry workers, sites for sawmills or other forestry infrastructure, other land protection strategies, public education activities, and local land use controls.

(2) That the municipality has adopted under chapter 117 of this title a statement of objectives, a plan, and bylaws consistent with the plan, for present and prospective development of expressway interchange areas. The plan and bylaws shall include provisions for the protection of public investment in the interstate interchanges, the preservation of scenic qualities adjacent to the interchange, the achievement of the state goals of compact settlements separated by rural countryside, and the management of access to properties.

(d) The state board shall review a community's designation every three years. If a municipality fails to demonstrate substantial progress in implementing the municipal plan, the board shall remove the district's designation, with removal not affecting any of the district's previously awarded benefits. If the state board determines that the downtown development district no longer meets the standards for designation established in subsection (b) of this section, it may take any of the following actions:

(1) require corrective action;

(2) provide technical assistance through the Vermont downtown program; or

(3) remove the district's designation, with such removal not affecting any of the district's previously awarded benefits.

Sec. 3. 24 V.S.A. § 2794(c) and (d) are added to read:

(c) A municipality with a designated downtown that has been determined eligible for additional incentives under subsection 2793(c) of this title shall be eligible for the following:

(1) notwithstanding the provisions of sections 4755 and 4758 of this title, placement on the secretary's annual project priority list for loans from the Vermont pollution control revolving fund or the Vermont water supply revolving fund under chapter 120 of this title, provided the municipality otherwise meets the eligibility criteria for these loans. A loan granted to a municipality under this subdivision shall be a zero interest loan;

(2) eligibility for prioritized planning funds from the municipal and regional planning fund, established under section 4306 of this title;

(3) eligibility on a priority basis, beginning in fiscal year 2002, for aid from state general fund and transportation fund allocations for designated downtowns, or from the state infrastructure bank, created under 10 V.S.A. chapter 12, to finance any or all of the following, in addition to other eligible infrastructure:

(A) lighting, benches, trees, signs, and other components of streetscape projects;

(B) humps, roundabouts, and other traffic-calming projects;

(C) sidewalk construction or other special pedestrian construction projects, such as alternative paving and pedestrian signs;

(4) whenever the commissioner of the department of buildings and general services or other state officials in charge of selecting a site are planning to lease or construct buildings suitable to being located in a downtown, the option of utilizing existing space in a downtown development district shall be given thorough investigation and priority.

(d) If a designated downtown development district is severely damaged by fire, flood, or other disaster, the board shall give the district special priority in the allocation of benefits.

Sec. 4. 24 V.S.A. § 4407 is amended to read:

§ 4407. PERMITTED TYPES OF REGULATIONS

Any municipality may adopt zoning regulations that may include, but shall not be limited to, any of the following provisions:

* * *

(20) Ridgeline and hilltop protection. Pursuant to the authority of this chapter, any municipality may adopt zoning and subdivision regulations that provide for development restrictions on ridgelines or hilltops, or both, as defined in the regulations. In adopting regulations for the protection of ridgelines or hilltops, a municipality shall not be subject to the extraordinary majority voting provisions established in subsection 4404(e) of this title.

Sec. 5. 24 V.S.A. § 4753(a)(1), (2), and (3) are amended to read:

(a) There is hereby established a series of special funds to be known as:

(1) The Vermont environmental protection agency (EPA) pollution control revolving fund which shall be used to provide loans to municipalities for planning sewage systems and sewage disposal plants as defined in sections 3501(6) and 3601 of this title, for constructing publicly-owned sewage systems and sewage disposal plants as defined in sections 3501(6) and 3601 of this title, and for implementing related management programs. The fund also may be used to provide municipally sponsored loans for: decentralized wastewater systems in rural and suburban areas to correct existing water pollution problems, including new system installation of single and clustered systems; replacement, upgrade, or modification of inadequate or failing systems; prevention of water pollution in compact village centers; costs associated with the establishment of a centralized management entity; and capital costs associated with centralized management systems. "Decentralized" wastewater systems include onsite disposal systems such as septic systems and alternative systems such as mounds and cluster systems.

(2) The Vermont pollution control revolving fund which shall be used to provide loans to municipalities for planning pollution control facilities and for constructing publicly-owned pollution control facilities. The fund also may be used to provide municipally sponsored loans for decentralized wastewater systems in rural and suburban areas to correct existing water pollution problems.

(3) The Vermont environmental protection agency (EPA) drinking water state revolving fund which shall be used:

(A) to provide loans to municipalities and certain privately-owned water systems for:

*[(A)]*(i) planning, designing, constructing, repairing or improving a public water system in order to comply with state and federal standards and protect public health; and *[(B)]*(ii) implementing related management programs;

(B) to provide municipally sponsored loans for decentralized drinking water systems in rural and suburban areas to correct drinking water problems.

Sec. 6. 24 V.S.A. § 4758 is amended to read:

§ 4758. LOAN PRIORITIES

Periodically, and at least annually, the secretary shall prepare and certify to the bond bank a project priority list of those municipalities whose publicly-owned projects are eligible for financing or assistance under this chapter. In determining financing priority under this chapter, the secretary of the agency having jurisdiction shall apply the following criteria:

(1) the probable public benefit to be gained or preserved by the project to be financed;

(2) the long-term costs and the resulting benefits to be derived from the project. In determining benefits, induced growth from a project that is not consistent with a town, city, or village plan, duly adopted under 24 V.S.A. chapter 117, will not be considered;

(3) the cost of comparable credit or financing alternatives available to the municipality;

(4) the existence of immediate public health, safety and welfare factors, and compliance therewith;

(5) the existence of an emergency constituting a threat to public health, safety and welfare; *[and]*

(6) the current area and population to be served by the proposed project;

(7) whether all or a substantial portion of the project is located in a downtown designated under section 2793 of this title. For purposes of this section, a "substantial portion" of a project shall be deemed to be located in a designated downtown if 50 percent or more of the project construction costs are associated with the designated downtown. The secretary shall give projects meeting this criterion preference over other projects with equivalent priority points but which are not located in a designated downtown; and

(8) whether and the extent to which the project and foreseeable induced growth is consistent with community character including community size, land use composition, road network, and scale of development and with protection of important natural resources including forestry and agricultural soils, water quality, habitat, open space, and views.

(b) Before including on the priority list a project that serves an area located outside a downtown designated under section 2793 of this title, the secretary, in consultation with the municipality, shall determine that the project will not promote scattered, low-density growth patterns and inefficient use of land and public services, except the secretary may include projects as necessary to allow reasonable growth capacity in limited areas that are contiguous to established growth centers or that are in-fill areas in existing growth areas, or to abate documented threats to public health.

(c) In preparing the project priority list, the secretary shall give due consideration to funding decentralized wastewater and potable water systems as an alternative to publicly-owned, centralized sewage treatment and drinking water systems. The secretary may fund a decentralized system whenever the secretary determines that the decentralized system is appropriate technology and a cost effective option for the particular conditions of the area.

Sec. 7. 32 V.S.A. § 5930n is amended to read:

§ 5930n. TAX CREDIT FOR SUBSTANTIAL REHABILITATION OF HISTORIC BUILDINGS ALSO CLAIMING FEDERAL REHABILITATION TAX CREDIT

* * *

(b) State board credit allocation.

(1) *[Prior to the commencement of any rehabilitation work, a]* An owner or long-term lessee of a building in a downtown development district designated under the provisions of chapter 76A of Title 24 may apply to the state board for an historic building tax credit allocation under this section. The board shall grant approval for an historic building tax credit allocation, and issue a letter of approval, if it finds that the applicant meets the provisions of subdivision (2) of this subsection. The burden of proof shall be on the applicant.

* * *

(f)(1) In any *[calendar]* fiscal year after 1998, the state board *[shall not]* may award *[a total amount of]* tax credits to all applicants under this subchapter *[and]*, subchapter 11G of this chapter *[that exceeds $300,000.00]*, and section 9819 of this title concerning the reallocation of sales tax revenues, not to exceed $2,300,000.00 nor more than 40 percent of the same amount for any single municipality.

* * *

(4) If within five years after the building is placed in service upon completion of the certified rehabilitation project any of the following events occur, the taxpayer shall be liable for a recapture penalty:

(A) the owner of the building for which a tax credit has been awarded under this subchapter disposes of the building; or

(B) *[the division finds that the taxpayer performed any work on the building not contained in the application for certified rehabilitation as defined in subdivision (a)(3) of this section or not otherwise certified by the National Park Service, or]* the National Park Service has revoked certification for unapproved alterations or for work not done as described in the historic preservation certification application, or the taxpayer has knowingly failed to supply information, or knowingly failed to supply true information required by the division or the state board for certification under this section; or

(C) the taxpayer failed to satisfy any requirement of certification imposed by the state board in the tax credit allocation; or

(D) the taxpayer performed any subsequent work during the five-year period that resulted in loss of status as a certified rehabilitation.

* * *

Sec. 8. 32 V.S.A. § 5930a(l) is added to read:

(l) Approval shall be granted under this section for any application only if the development cabinet, in consultation with the municipality to which the application pertains, finds that the enterprise will not promote scattered, low density growth patterns and inefficient use of land and public services. Decisions of the development cabinet under this subsection shall be similar to decisions of the economic progress council under subsection (g) of this section, in that they shall not be subject to contested case hearing requirements and shall be final and not subject to judicial review.

Sec. 9. 32 V.S.A. § 5930p is amended to read:

§ 5930p. REHABILITATION TAX CREDIT FOR OLDER OR HISTORIC BUILDINGS

* * *

(b)(1) Prior to the commencement of any rehabilitation work, a property owner or lessee may apply to the state board for a rehabilitation tax credit allocation under this section. The state board, within 45 days of receipt of a completed application, shall decide, based on the availability of credit, whether or not to grant a rehabilitation tax credit allocation. In granting such tax credits, the board shall issue a letter of approval after receiving certification by the local board of the district in which the project is located that the project meets the requirements of subdivisions (2) and (3) of this subsection. In all instances the burden of proof shall be upon the applicant.

* * *

(3) The local board shall also find all of the following:

(A) the qualified expenditures for a 24-month period selected by the taxpayer and ending within the taxable year exceed $5,000.00; and

(B) the total qualified rehabilitation expenditures of the project do not exceed the adjusted basis of the structure if the structure is listed or, individually eligible for listing in the National Register of Historic Places as determined by the local board in consultation with the division, or the application is solely for the expenses of an exterior elevator access *[in]* addition to a structure otherwise undergoing a rehabilitation that applies for the state tax credit under subchapter 11F of this chapter and for which the costs of such an addition is not a qualified rehabilitation expenditure; and

(f)(1) In any *[calendar]* fiscal year after 1998 the state board *[shall not]* may award *[a total amount of]* tax credits to all applicants under this subchapter *[and]* , subchapter 11F of this chapter *[that exceeds $300,000.00]*, and section 9819 of this title concerning the reallocation of sales tax revenues, not to exceed $2,300,000.00 nor more than 40 percent of the same amount for any single municipality.

(2) The owner or long-term lessee of a building that is listed in the National Register of Historic Places, or is determined to be individually eligible by the division as part of the local board's review of the application for the tax credit allocation, whose proposed qualified rehabilitation *[expenses]* expenditures equal or exceed the adjusted basis of the building, shall be eligible for a tax credit under subchapter 11F of this chapter, but shall not be eligible for a tax credit under this subchapter.

* * *

(6) If within five years after the building is placed in service upon completion of the qualified rehabilitation project any of the following events occur, the taxpayer shall be liable for a recapture penalty:

(A) the owner of a building for which a tax credit has been awarded under this subchapter disposes of the building; or

(B) the local board finds that the taxpayer performed any *[remedial]* work on the building not contained in the application, knowingly failed to supply any information or true information required by the local board for certification under this section, or failed to satisfy any requirement of certification imposed by the local board; or

* * *

Sec. 10. 32 V.S.A. § 9819 is amended to read:

§ 9819. REALLOCATION OF RECEIPTS

(a) Receipts from the tax imposed by this chapter on sales of construction materials used in qualified projects under chapter 76A of Title 24 shall be allocated by the commissioner of taxes and paid to the municipality in which the project is located *[in the following amounts]* pursuant to the following requirements:

(1) In a municipality in which the population is 7,500 residents or less, all receipts from sales in excess of $100,000.00 of construction materials used in each separate qualified project located in that municipality*[, provided that a total of no more than $600,000.00 may be allocated under this section to all municipalities of 7,500 residents or less]*.

(2) In a municipality in which the population is greater than 7,500 residents but less than 30,000 residents, all receipts from sales in excess of $200,000.00 of construction materials used in each separate qualified project located in that municipality*[, provided that a total of no more than $600,000.00 may be allocated under this section to all municipalities of more than 7,500 but less than 30,000 residents]*.

(3) In a municipality in which the population is more than 30,000 residents, all receipts from sales in excess of $1,000,000.00 of construction materials used in each separate qualified project located in that municipality*[, provided that no more than $800,000.00 may be allocated under this section to all municipalities of more than 30,000 residents]*.

(b) In any fiscal year after 1998, the Vermont downtown development board established under 24 V.S.A. § 2792 may certify for allocation to municipalities sales tax revenues under this section, in combination with the total amount of rehabilitation tax credits awarded to all applicants under subchapters 11F and 11G of chapter 151 of this title, not to exceed $2,300,000.00 nor more than 40 percent of the same amount for any single municipality.

(c) For the purposes of this section:

(1) "Construction materials" means all materials purchased by the owner or owner's representative, project manager, construction manager, general contractor, or subcontractor to be incorporated into a qualified project.

(2) "Qualified project" means expansion or rehabilitation of contiguous real property that is or will be used at the completion of the expansion or rehabilitation as a structure in a downtown development district designated under chapter 76A of Title 24, but only to the extent that the expansion or rehabilitation becomes an integral component of the real property *[and the project does not seek qualification for either tax credit authorized under subchapter 11F or subchapter 11G of chapter 151 of Title 32]*. "Qualified project" also means new construction of contiguous real property that will be used at the completion of the construction as a structure in a downtown development district designated under chapter 76A of Title 24 but only to the extent that the new construction is compatible with the buildings that contribute to the integrity of the district in terms of materials, features, size, scale and proportion, and massing of buildings.

*[(c)]*(d) The owner or owner's representative of a qualified project shall report all sales taxes paid on purchases of qualified construction materials to the treasurer of the municipality in which the project is located. The treasurer of the municipality shall submit requests for allocation of revenues under this section to the *[Vermont]* downtown development board *[established under section 2792 of Title 24]* and the board shall certify the qualified projects and sales taxes paid thereon to the commissioner of taxes, who shall allocate the appropriate amounts of sales tax revenues due under this section to the municipalities. Revenues allocated to a municipality under this section shall be used by the municipality only for expenditures related to the support of the qualified project located in that municipality which generated those revenues.

Sec. 11. STUDY ON LAND USE ISSUES RELATED TO INTERCHANGES AND BYPASSES

(a) There is established a study committee on land use issues related to interchanges and bypasses. The committee shall consist of four members of the senate, appointed by the committee on committees, including at least one member each from the committees on natural resources and energy, transportation, and general affairs and housing; and four members appointed by the speaker of the house, including at least one member each from the committees on natural resources and energy, transportation, and general, housing, and military affairs. The committee shall conduct a study which shall determine and make recommendations regarding:

(1) How to protect state public investment*[,]* and implement access management and land use planning policies when developing expressway interchange areas.

(2) How Vermont can, based on approaches taken in other states, establish enforceable transportation and land use planning agreements between the state of Vermont and municipalities prior to the construction of new interchanges or for the future development of existing expressway interchange areas.

(3) Land use effects and the economic impacts on existing downtowns of proposed bypasses in Vermont, using the Chittenden County circumferential highway project for analysis.

(4) The impacts of transportation investment alternatives to these bypasses on land use patterns and downtown economic activity.

(5) State and federal tax policies, budget expenditures and fees that could be modified or established to enhance downtown viability, encourage smart growth, and reduce sprawl.

(b) The committee shall be entitled to staff support from the legislative council and the joint fiscal office, and shall receive assistance, on request, from state agencies. The committee may meet up to 10 times, and committee members shall be entitled to compensation and expenses, as provided in 2 V.S.A. § 406. The committee's report shall consist of draft legislation, along with supporting documentation that it deems necessary to implement any recommendation by the committee and shall be submitted to the legislature by January 15, 2001.

Sec. 12. APPROPRIATIONS

For fiscal year 2001, $96,000.00 shall be available from the municipal allocation from the municipal and regional planning fund on a competitive basis to designated downtowns for implementation of their plans, as provided under 24 V.S.A. § 2793(c)(1).

(Committee Vote: 6-0-0

(For House amendments, see House Journal for March 12, 1999, page 1180; March 13, 1999, page, 1231.)

H. 629

An act relating to containing special education costs while continuing to meet the needs of all Vermont students.

Reported favorably with recommendation of proposal of amendment by Senator Hull Maynard for the Committee on Education.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. FINDINGS AND PURPOSE

(a) The general assembly finds that:

(1) School districts are working hard to control special education costs while continuing to provide appropriate services that meet the needs of all Vermont students.

(2) Nevertheless, special education costs are increasing more rapidly than general education costs and this rate of increase should be moderated to an extent consistent with meeting the educational needs of students. The increase in special education costs is due to many complex factors, including an increase in the percentage of students found eligible for special education services as well as an increase in the proportion of those special education students who need very expensive services.

(3) The blue ribbon commission on special education costs and the fiscal review panel found that strengthening the educational support systems across the state, improving the consistency of the delivery of special education throughout the state, improving the recruitment, training and retention of special education teachers and administrators, and improving the ability of all teachers and administrators to meet the educational needs of all students could help districts to control special education costs.

(4) Early prevention and intervention services targeted to children who are at risk of becoming special education eligible can reduce the number of students who will eventually need special education services.

(5) Early prevention and intervention services are often less expensive than special education services, and may only be necessary for a short time in order to enable a student to succeed in the general education environment.

(6) The department of education should provide more technical and legal assistance to help school districts control special education costs and improve educational outcomes for students.

(7) In its work with school districts, the department of education should emphasize effective and efficient management of delivering special education services statewide.

(b) Therefore, it is the intent of the general assembly to provide services that will help school districts to contain increases in total special education spending in Vermont, while continuing to deliver appropriate services that meet the needs of Vermont's students.

Sec. 2. CO-CURRICULAR ACTIVITIES; ELIGIBILITY

Co-curricular activities are an important part of a student's educational experience. Therefore, a decision made by the Vermont principal's association denying a student the opportunity to participate in a co-curricular activity may be appealed to the state board of education. A decision of the state board regarding eligibility shall be final.

Sec. 3. 16 V.S.A. § 2902(a) is amended to read:

(a) Within each school district's comprehensive system of educational services, each public school shall develop and maintain an educational support system for children who require additional assistance in order to succeed or be challenged in the general education environment. For each school it maintains, a school district board shall assign responsibility for developing and maintaining the educational support system to the superintendent pursuant to a contract entered into under section 267 of this title, or to the principal. The educational support system shall, at a minimum, include an educational support team and a range of support and remedial services, including instructional and behavioral interventions and accommodations.

Sec. 4. 16 V.S.A. § 2904 is added to read:

§ 2904. REPORTS

Annually, each superintendent shall report to the commissioner in a form prescribed by the commissioner, on the status of the educational support systems in each school in the supervisory union. The report shall describe the services and supports that are a part of the education support system, how they are funded, and how building the capacity of the educational support system has been addressed in the school action plans. The report shall include a description and justification of how the following funds were used:

(1) as required under subsection 2959a(e) of this title, funds received due to Medicaid reimbursement,

(2) for a school district required to provide learning readiness experiences for preschool age children or early reading and math experiences for school age children pursuant to subsection 4011(d) of this title, funds attributable to an increase in student count due to the poverty ratio of the district and the number of students with limited English proficiency.

Sec. 5. 16 V.S.A. § 2904(2) is amended to read:

(2) "Special education" means, to the extent required by federal law, specially designed instruction, at no cost to parents or guardian, to meet the unique educational needs of a child with a disability, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions. The term includes "related services" as defined in federal law.

Sec. 6. 16 V.S.A. § 2959b is added to read:

§ 2959b. INDIVIDUALIZED EDUCATION PLANS

A school district or supervisory union responsible for developing an individualized education plan for a child with a disability may consider the cost of the provision of special education or related services to the child if:

(1) the district or supervisory union has developed the individualized education plan in accordance with federal law through an individualized plan team that included the parents;

(2) the individualized education plan team has determined that the child's placement contained in the plan is appropriate for the child as that term is defined in federal law; and

(3) all the options under consideration by the district or supervisory union for fulfilling the requirements of the child's individualized education plan would constitute a free appropriate public education in the least restrictive environment for the child, as those terms are defined in federal law.

Sec. 7. 16 V.S.A. § 2974(a) is amended to read:

(a) Annually, the commissioner shall report on:

(1) special education expenditures by school districts,

(2) the rate of growth or decrease in special education costs,

(3) outcomes for special education students,

(4) the availability of special education staff,

(5) the consistency of special education program implementation statewide, and

(6) the status of the education support systems in school districts.

Sec. 8. COMMISSIONER OF EDUCATION; PLAN TO CONTAIN SPECIAL EDUCATION COSTS WHILE CONTINUING TO MEET THE NEEDS OF ALL VERMONT STUDENTS

(a) During the next two school years, the commissioner of education and the state board of education shall develop and implement a plan which shall include the elements described in this section. The goals of the plan shall be to help:

(1) reduce statewide increases in special education costs while continuing to meet the needs of all Vermont students;

(2) increase the capacity of general education, especially the educational support system, to meet the needs of more students outside special education;

(3) use cost-effective practices; and

(4) operate special education programs consistently and within state and federal requirements across the state.

(b) The commissioner shall help to increase the capacity of general education to meet the needs of more students outside special education by forming a partnership with higher education to accomplish the goals of this subsection. The plan shall also describe how the commissioner and higher education will each contribute to accomplishing the goals. The goals are to:

(1) provide increased and improved training opportunities for general education teachers, administrators and para-educators, on techniques for meeting the instructional needs of all students; and

(2) improve the preparation of all teachers to be effective in an inclusive classroom.

(c) The commissioner shall help to increase the capacity of the educational support system to meet the needs of more students outside special education by focusing department resources and time on strengthening the educational support system in Vermont public schools, and working with higher education, superintendents, principals, teachers, school boards and other interested groups to seek and use federal and other funds, including Medicaid reimbursements for students served under Section 504 of the Rehabilitation Act of 1973 as amended, to accomplish this purpose. The commissioner shall focus on strengthening the following components of each educational support system:

(1) pre-school through fourth grade literacy;

(2) prevention and intervention for emotional and behavioral difficulties;

(3) other prevention and intervention components; and

(d) The commissioner shall provide support for special education teachers and administrators, and help in using cost-effective practices by:

(1) forming a partnership with higher education and school districts to develop and implement a plan to build the capacity to increase the availability of qualified staff in critical need areas, including special education teachers, speech pathologists, related services providers and administrators by improving their recruitment and retention, and developing additional training opportunities and incentives in these areas. The plan shall also include training opportunities for staff, including para-educators, currently working in school districts and describe how higher education institutions, the department of education and school districts will each contribute to meeting these critical needs;

(2) providing legal support, information and training to avoid conflict and assist in making cost-effective legal and procedural decisions;

(3) hiring staff or consultants, or both, who are experts in provision of special education services, including experts in particular disability areas, and making them available to provide technical assistance and training;

(4) providing guidance to school districts on reducing the rate of increase in special education costs to a sustainable level during the preparation of district special education service plans; and

(5) working with the University of Vermont to develop a decision-making model for individualized education program teams to use, and working with higher education to ensure that pre-service training and professional development opportunities are available to teach special educators and others who serve on individualized education program teams to use the decision-making model.

(e) The commissioner shall help to ensure that special education programs are being operated consistently and in a cost-effective manner across the state by:

(1) studying the individualized education plans of most common disability areas, and by June 30, 2001, providing schools with data on the types and range of services provided statewide and associated costs;

(2) increasing departmental capacity to audit and monitor special education programs in Vermont public schools, and auditing every supervisory union and district by December 31, 2002. The commissioner shall provide school districts with more specific guidance regarding cost allocation to special education, and what documentation and data needs to be maintained to complete an audit;

(3) providing training to school district leaders who shall advise and train school staff on cost-effective practices in special education, and how to ensure that eligibility decisions and development of individualized education plans are more consistent across the state; and

(4) working with the state board of education to adopt rules which more clearly define eligibility criteria for special education, and to provide guidelines on the implementation of eligibility criteria which emphasize cost containment and consistent application of eligibility criteria. Following adoption of the rules, the commissioner shall provide training and materials to school district staff on the rule revisions and guidelines. The rule revisions and guidelines shall, at a minimum, address the adverse effect criterion used to identify when a disability has a negative effect on a child's academic progress, and the following:

(A) Emotional disability.

(B) Learning disability.

(C) Developmental delay.

(D) Other health impairment.

(E) Attention deficit disorder.

(f) The commissioner and state board of education shall work with the general assembly, the education coalition and school districts to:

(1) develop recommendations regarding changes to the special education funding formula that do not shift a greater burden onto the local level. On or before January 15, 2004, the commissioner shall recommend to the governor and the general assembly a fiscally sustainable formula for funding special education; and

(2) address additional areas that require attention in order to contain costs and strengthen the special education system, including the residential placement review process, third party billing for special education medical services and cost effectiveness of regional programs for children with special needs.

Sec. 9. COMMISSIONER OF EDUCATION; REPORTS

(a) On or before January 15 in years 2001 and 2002, the commissioner shall report to the Senate and House committees on education concerning the progress made toward strengthening the educational support system in Vermont public schools, containing special education costs and improving outcomes for students with disabilities.

(1) In year 2001, the report shall include:

(A) an update on the activities carried out under the plan made pursuant to Sec. 8 of this act;

(B) an examination of the equity of the core staff rules adopted under 16 V.S.A. § 2961 regarding calculation of state aid for special education, including proposed changes that would make the rules more equitable, and actions that have been taken or contemplated to make the rules more equitable;

(C) recommendations for additional steps to ensure that Vermont will achieve a sustainable level of growth in special education costs by fiscal year 2003, and

(D) recommendations, including the potential for the use of technology, to reduce the overly burdensome paperwork associated with the provision of special education and related services.

(2) In year 2002, the report shall include:

(A) a final report on all applicable items in the year 2001 report;

(B) recommendations for statutory change that would enable further strengthening of the educational support system, including the most effective funding mechanism for achieving this end;

(C) a plan to increase consistency of delivery of special education statewide; and

(D) a plan for future actions that will continue to contain special education costs, and a projection of special education cost increases through fiscal year 2007.

(b) The commissioner of education shall monitor external factors, outside the control of the school district and the department of education, which affect the cost of providing special education services. Annually through the year 2007, on or before January 15, the commissioner shall report to the governor and the general assembly on external factors that have contributed to cost increases and quantify the amount of increase directly attributable to these factors.

Sec. 10. ASSISTANCE TO SCHOOL DISTRICTS WITH UNUSUAL SPECIAL EDUCATION COSTS

(a) In fiscal years 2002 through 2004, the commissioner may use up to two percent of the funds appropriated for special education expenditures as that term is defined in subsection 2967(b) of Title 16 for the purpose of directly assisting school districts with special education expenditures of an unusual and unexpected nature. These funds shall not be used for exceptional circumstances which are funded under section 2963a of Title 16. A decision of the commissioner as to eligibility for assistance and amount of assistance received shall be final.

(b) In order to be eligible for assistance under this subsection, during at least two of the quarters of the prior fiscal year, a school district shall have submitted Medicaid bills for services reimbursement for at least 85 percent of its Medicaid eligible students who received medically-related special education services. However, the commissioner may provide assistance to a school district which does not reach the 85 percent target if the district made a reasonable attempt to reach the target but was prevented from reaching it by extraordinary circumstances.

(c) The state board of education shall adopt rules necessary to establish standards and procedures for implementation of this section.

(d) Annually, on or before January 15, the commissioner shall report to the general assembly on the amount and use of funds expended under this subsection.

Sec. 11. TARGETS FOR INCREASES IN STATEWIDE TOTAL SPECIAL EDUCATION EXPENDITURES

(a) The general assembly hereby establishes the following targets for limiting increases in statewide total education expenditures as that term is used in 16 V.S.A. § 2967(b):

(1) in fiscal year 2002, the average annual change in the actual nominal Vermont State Domestic Product for the preceding five years as published by the United States Department of Commerce, plus four percentage points;

(2) in fiscal year 2003, the average annual change in the actual nominal Vermont State Domestic Product for the preceding five years as published by the United States Department of Commerce, plus three percentage points;

(3) in fiscal year 2004, the average annual change in the actual nominal Vermont State Domestic Product for the preceding five years as published by the United States Department of Commerce, plus two percentage points.

(b) Notwithstanding the provisions of chapter 101 of Title 16, in fiscal years 2002 through 2004, the amount appropriated by the general assembly to provide state aid for special education shall be no more than the amount that would be appropriated if statewide total special education expenditures grew by the target amounts.

(c) If, in any fiscal year, the actual increase in special education costs is less than the target amount, an amount equal to the state share, if spending had increased at the target amount, shall be appropriated from the education fund to be paid for support of special education in accordance with subsection 2967(b) of Title 16.

Sec. 12. REPEAL

In order to enable the commissioner of education to use the tools provided in this act to strengthen the educational support system and reduce the rate of increase in special education costs to a sustainable level, and in order to give the general assembly time to assess the cost saving effects of the provisions of this act, implementation of the caps imposed in Sec. 120(a) of No. 71 of the Acts of 1998, relating to limits to state aid for special education, is repealed.

Sec. 13. COMMITTEE ON INTERAGENCY COORDINATION AND FUNDING FOR PROVISION OF SPECIAL EDUCATION SERVICES

There is hereby created a committee to be made up of three senators appointed by the committee on committees and three representatives appointed by the speaker to study interagency coordination and funding regarding special education. The committee shall:

(1) work with the secretary of the agency of human services, the commissioner of employment and training and commissioner of education to study how each agency should provide for and share in paying for special education services for eligible persons under 22 years of age, in school or out-of-school;

(2) assess the extent to which school districts have absorbed service costs for special needs children that were historically paid by other service providers, including the extent to which:

(A) children formerly admitted to institutional care are now being provided services through special education,

(B) costs now found in school budgets historically were part of the budgets of non-school agencies, and

(C) costs now found in school budgets should be attributable to non-school agencies;

(3) examine whether the upper limit of age eligibility should be 21 or 22 years of age;

(4) examine the interagency agreement regarding coordination of special education services entered into pursuant to 20 U.S.C. § 1412(a)(12) to determine if services are currently provided and paid for in the most appropriate and cost-effective way; and

(5) report its findings and recommendations to the general assembly by January 15, 2001.

And the committee further recommends that after passage, the title of the bill be amended to read: AN ACT TO STRENGTHEN THE CAPACITY OF VERMONT'S EDUCATION SYSTEM TO MEET THE EDUCATIONAL NEEDS OF ALL STUDENTS

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for March 13, 2000, page 448; March 17, 2000, page 551.)

H. 711

An act relating to an independent performance audit of Vermont's health care system.

Reported favorably with recommendation of proposal of amendment by Senator Riehle for the Committee on Health and Welfare.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. FINDINGS AND PURPOSE

(a) The General Assembly finds that:

(1) As of 1998, approximately 87,598 Vermonters were covered by Medicaid, 86,588 Vermonters were covered by Medicare, 378,171 Vermonters were covered by private health insurance, and 38,526 Vermonters were uninsured.

(2) It is the policy of the state of Vermont to insure that all residents have access to quality health services at costs that are affordable.

(3) It is further the policy of Vermont that the health care system should facilitate universal access to preventive and medically necessary health care.

(2) Vermont, unlike most other states, has developed both public and private mechanisms for collecting and analyzing a wide variety of health care data. The challenge is to put this wealth of information in a format that is usable and understandable to policy makers and the public.

(3) The state of Vermont's health care financing and delivery system is under extreme pressure and must be stabilized to insure continued high quality access that is affordable to all Vermonters.

(4) According to the 1994 report of the commission on the public's health care values and priorities, Vermonters assign a high priority to two conflicting health care goals: extending care to everyone and lowering or containing health care costs. The commission also found that Vermonters should continue to have insurance through the Medicare and Medicaid programs, Vermonters should receive quality health care, regardless of their ability to pay, and in addition to receiving quality health care, uninsured Vermonters should accept responsibility for paying a fair share of their health care costs.

(b) It is the purpose of this assessment to provide a resource for understanding and subsequently improving Vermont's health care system by collecting current health care data, evaluating the causes of and the potential solutions to the current cost pressures in the system, and by integrating the public's understanding of the expenses of the health care system with Vermonters' health care values and priorities.

Sec. 2. INDEPENDENT ASSESSMENT OF VERMONT'S HEALTH CARE SYSTEM

(a) The General Assembly hereby directs that an independent assessment of Vermont's health care system be conducted. This assessment shall emphasize an analysis of Vermonters' desired health care values and priorities coupled with the costs of achieving those goals, as well as an analysis of the health insurance marketplace and the provider delivery system. The assessment shall use previously collected relevant data and any other available relevant data related to Vermont's health care system. The assessment shall include:

(1) An evaluation of currently identified areas of concern that have led to premium increases to residents of Vermont, including the status of the health insurance marketplace, pricing strategies, the interplay between public and private health insurance reimbursement systems, cost shifting caused by Medicaid and Medicare reimbursement policies, and bad debt and free care.

(2) An evaluation of the appropriateness of Vermont's provider delivery system with respect to access, utilization, cost, changes in technology, growth in benefits, and pressures on labor costs, including the financing and missions of the not-for-profit hospital system in Vermont in addition to other hospitals which deliver a significant amount of care to Vermonters.

(b) The commission on public health care values and priorities will develop a mechanism to educate Vermonters, then conduct a dialogue and facilitate Vermonters' ability to make informed decisions regarding the development of an acceptable health care system, including a consideration of ethical choices.

(c)(1) The independent health care assessment committee is created, consisting of three members appointed by the governor with knowledge and expertise in health care. The governor's appointments shall be made on or before 60 days following passage of this act.

(2) The committee's role, with the assistance of the joint fiscal office, shall be to administer and develop the request for proposal contract process for purposes of accomplishing the purposes of this act as defined in subdivisions (a)(1) and (2) of this section. The committee shall facilitate cooperation between state agencies and the contractor to accomplish performance of the assessment. The committee shall have all powers necessary to carry out the purposes of this section, including:

(A) Those general powers provided to a business corporation under Title 11A.

(B) The power to hire or contract for professional administrative staff.

(C) The power to hold one or more public hearings.

(D) The power to award one or more contracts to conduct the assessment required by this section.

(3) Upon request by the committee, all officials and employees of any agency or instrumentality of the state shall provide information and assistance to the committee and to the contractor, necessary or desirable in carrying out the duties of the committee. The contractor shall have access to any information from Vermonters' health care providers, facilities, and insurers necessary to perform the assessment authorized by this act, subject to assurances of confidentiality and other protections consistent with current laws and regulations.

(4) The agency of human services is authorized to apply for federal or private grants to extend the scope of the assessment of the committee. The agency may apply for grants that will support an assessment of the most effective methods to provide affordable health insurance coverage to the citizens of the state, or other such grants that will assist the committee in the performance of its duties.

(5) The committee shall issue its request for proposals to conduct the assessment no later than September 1, 2000.

(6) Members of the committee shall receive compensation and reimbursement of expenses in accordance with section 1010 of Title 32.

Sec. 3. REPORTING REQUIREMENT

The contractor's assessment, the committee's report, and the commission's report shall be submitted to the general assembly and the governor on or before September 15, 2001. The joint fiscal office shall examine the resources necessary to provide ongoing assessments of Vermont's changing health care system, and provide their recommendation in the form of a report to the general assembly and the governor on or before November 1, 2001.

Sec. 4. APPROPRIATION

(a) The sum of $200,000.00 is appropriated from the general fund to the independent health care assessment committee in fiscal year 2000. This sum is to be carried forward into fiscal year 2001, to accomplish the purposes of this act.

(b) The sum of $100,000.00 is appropriated from the general fund to the secretary of administration in fiscal year 2000. This sum is to be carried forward into fiscal year 2001, to support the activities of the Commission on Health Care Values and Priorities, in accordance with the provisions of Executive Order 13-98.

Sec. 5. EFFECTIVE DATE

This act shall take effect on passage.

(Committee Vote: 4-1-0)

(For House amendments, see House Journal for March 13, 2000, page 456; March 14, 2000, page 474.)

H. 738

An act relating to professional regulation.

Reported favorably with recommendation of proposal of amendment by Senator Ankeney for the Committee on Government Operations.

The Committee recommends that the Senate propose to the House to amend the bill as follows:

First: In Sec. 44, § 4185 of 26 V.S.A., by striking out subsection (b) in its entirety and inserting in lieu thereof the following:

(b) The director shall adopt general rules necessary to perform his or her duties under this chapter, maintain and make available a list of approved programs for continuing education, and by January 1, 2001, in consultation with the commissioner of health, the Vermont medical society, and the Vermont chapter of the American College of Nurse-Midwives, adopt specific rules defining the scope and practice standards, including risk-assessment criteria, based at a minimum, on the practice standards of the Vermont Midwives Alliance (VMA) and the Midwives Alliance of North America (MANA), and defining a protocol and formulary for drug use by licensed midwives, including anti-hemorrhagic drugs and oxygen.

Second: In Sec. 44, by striking out § 4186 of 26 V.S.A. in its entirety and inserting in lieu thereof the following:

§ 4186. ADVISOR APPOINTEES

(a) The secretary of state shall appoint two licensed midwives and one physician, licensed under chapter 23 of this title and who has professional experience with home births, to serve as advisors in matters relating to licensed midwives. They shall be appointed for staggered five-year terms and shall serve at the pleasure of the secretary. One of the initial appointments may be for less than five years.

(b) The midwife appointees shall not have less than three years' experience as midwives qualified to be licensed under this chapter during the period immediately preceding appointment and shall be actively engaged in midwifery during their incumbency.

(c) The office of professional regulation shall investigate complaints regarding licensed midwives or applicants for licensing or renewal and, when appropriate, refer them to an administrative law officer established under subsection 129(j) of Title 3.

(d) The director shall seek the advice of the persons appointed under this section in carrying out the provisions of this chapter. Such appointees shall be entitled to compensation and expenses as provided in section 1010 of Title 32 for attendance at any meeting called by the director for this purpose.

(Committee Vote: 6-0-0)

Reported favorably with recommendation of proposal of amendment by Senator Riehle for the Committee on Finance.

The Committee recommends that the Senate propose to the House to amend the bill by as recommended as follows:

First: By striking out Sec.14 in its entirety and inserting in lieu thereof the following:

Sec. 14. 26 V.S.A. § 1257 is amended to read:

§ 1257. UNPROFESSIONAL CONDUCT

(a) A funeral director shall not engage in unprofessional conduct.

(b) Unprofessional conduct means:

* * *

*[(11)]*(4) Failure to make available at the licensee's place of business, by color picture or display, the three least expensive caskets, as available. For the purposes of this section and related administrative rules, the three least expensive caskets shall include one cloth, one metal, and one wood casket.

Second: In Sec. 44, by striking out 26 V.S.A. § 4188 in its entirety and renumbering the remaining sections to be numerically correct

Third: In Sec. 46, by striking out 26 V.S.A. § 4410 in its entirety and renumbering the remaining sections to be numerically correct

Fourth: By adding a new Sec. 54 to read as follows:

Sec. 54. REVIEW AND REPORT ON PROFESSIONAL REGULATORY FEE POLICY BY THE SECRETARY OF STATE

In consultation with the secretary of administration or designee, the attorney general or designee, the chair of the Senate Committee on Finance, the chair of the House Committee on Ways and Means, and the Interboard Advisory Committee, the secretary of state shall review and recommend alternative options for professional regulatory fee policy, articulated in section 124 of Title 3, addressing the variability of Vermont markets for regulated professional services, the variability in numbers of practitioners in each profession, and the ability to pay or transfer the cost of the fees onto the consumer as the ultimate beneficiary of the program. The secretary of state shall report the results of the review and any recommendations to the House and Senate Committees on Government Operations, the Senate Committee on Finance and the House Committee on Ways and Means on or before January 1, 2001.

(Committee Vote: 5-0-2)

(For House amendments, see House Journal for March 20, 2000, page 569.)

CONFIRMATIONS

The following appointments will be considered by the Senate, as a group, under suspension of the Rules, as moved by the President pro tempore, for confirmation together and without debate, by consent thereby given by Senate. However, upon request of any senator, any appointment may be singled out and acted upon separately by the Senate, with consideration given to the report of the Committee to which the appointment was referred, and with full debate; and further, all appointments for the positions of Secretaries of Agencies, Commissioners of Departments, Judges, and members of the Public Service Board shall be fully and separately acted upon.

Michael J. Hogan of Marshfield - Commissioner of the Department of Liquor Control - By Senator Bartlett for the Committee on General Affairs and Housing. (3/14)

Alice Hafner of Danville - Member of the Parole Board - By Senator Canns for the Committee on Institutions. (3/28)

Martha O'Connor of Brattleboro - Vermont State Colleges Board of Trustees - By Senator Chard for the Committee on Education. (3/31)

Public Hearings

Wednesday, April 19, 2000 - Room 10 - 7:00-9:00 P.M. - Re: H. 355 - Financial Reports by Nonprofit Corporations Receiving State Funds - House Committee on Commerce.

TABLE OF CONTENTS

Action Calendar

H. 663 Ban on single cigarettes 2nd Reading 1051

H. 598 Vermont State Song 2nd Reading 1051

H. 270 Violence in Schools Education Report 1052

[2nd Reading] Judiciary Report 1062

Appr. Report 1065

McCormack Amend. 1066

Illuzzi Amend. 1066

H. 847 Civil Union Bill Judiciary Report 1067

[2nd Reading] Finance Report 1091

S. 214 Law Enforcement H.P.A. 1092

Constitutional Proposal 6 2nd Reading - (1st Biennium) 1093

Judiciary Amend. 1094

Canns Amend. 1094

H. 12 Electroconvulsive Therapy 3rd Reading 1095

H. 610 Ins. Agents & Brokers 3rd Reading 1095

H. 612 Housing Standards 3rd Reading 1095

H. 733 Livestock Dealers 3rd Reading 1095

H. 748 Gray Marketed Cigarettes 3rd Reading 1095

H. 815 Discharge of Mortgages 3rd Reading 1095

H. 185 Vocational Rehabilitation 2nd Reading 1095

H. 474 Assistive Technology 2nd Reading 1096

H. 848 Daycare Zoning 2nd Reading 1105

S. 10 Aggravated Operation H.P.A. 1106

S. 226 Child Pornography H.P.A. 1108

S. 304 Class 2 Highways H.P.A. 1111

J.R.H. 233 Honoring Carroll Ketchum Action 1112

J.R.H. 234 Windsor County Youth Court Action 1112

J.R.H. 235 Bellows Falls Boys Basketball Action 1112

J.R.H. 236 Bellows Falls Girls Basketball Action 1112

J.R.H. 237 Honoring Becky Cassidy Action 1112

Notice Calendar

H. 343 Evictions NOTICE 1112

H. 408 Downtown Bill NOTICE 1117

H. 629 Special Education NOTICE 1129

H. 711 Health Care Audit NOTICE 1138

H. 738 Professional Regulation NOTICE 1141