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Journal of the Senate

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MONDAY, MAY 3, 1999

The Senate was called to order by the President.

Devotional Exercises

A moment of silence was observed in lieu of devotions.

Pledge of Allegiance

The President then led the members of the Senate in the Pledge of Allegiance.

Joint Resolution Placed on Calendar

Joint Senate resolution of the following title was offered, read the first time and is as follows:

Whereas, the Vermont Housing and Finance Agency (VHFA) was established in 1974 to finance and promote affordable, safe and decent housing opportunities for low and moderate income Vermonters, and

Whereas, VHFA obtains its funding through several sources, including the sale of both tax-exempt and taxable bonds, the agency's reserves and the state and federal governments, and

Whereas, VHFA has provided home ownership assistance to over 21,000 Vermonters, and

Whereas, VHFA has financed the construction of 44,168 affordable rental residential units for low and moderate income Vermonters, and

Whereas, VHFA is the federal Department of Housing and Urban Development's contract administrator for 21 Section 8 rental properties for persons with limited financial resources, and

Whereas, VHFA administers the low income housing tax credit program in Vermont and was instrumental in creating Housing Vermont, one of the first nonprofit organizations in the United States to sponsor an equity fund for utilizing housing tax credits, and

Whereas, VHFA has been a primary participant in promoting residential energy conservation through its support of the Vermont Energy Investment Corporation and Energy Rated Homes of Vermont, and

Whereas, the innovative ideas and diligent efforts of the VHFA staff have enabled thousands of Vermonters to live in affordable housing and, in many instances, to become homeowners, a dream that would otherwise never have been fulfilled, now therefore be it

RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES:

That the General Assembly congratulates the Vermont Housing and Finance Agency on its 25th anniversary and for the important contribution that the organization has made to providing housing opportunities for Vermonters.

Thereupon, in the discretion of the Chair, under Rule 51, the joint resolution was placed on the Calendar for action tomorrow.

Proposal of Amendment; Third Reading Ordered

Senator McCormack, for the Committee on Judiciary, to which was referred House bill entitled:

H. 16. An act relating to protection of self-directed retirement accounts.

. Exemptions under this subdivision shall not exceed $5,000.00 for the purpose of attachment of assets by the office of child support pursuant to 15 V.S.A. § 799;

And that the bill ought to pass in concurrence with such proposal of amendment.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, the proposal of amendment was agreed to, and third reading of the bill was ordered.

House Proposals of Amendment to Senate Proposals of Amendment Concurred In

House proposals of amendment to Senate proposals of amendment to House bill entitled:

H. 537. An act relating to the state's transportation capital program and project development plan.

Were taken up.

The House proposes to the Senate to amend the Senate proposals of amendment as follows:

First: In the twelfth and thirteenth proposals of amendment, by striking "(#04088133001)" and inserting in lieu thereof the following: "(#0408813300)"

Second: In Sec. 11, by striking the second sentence

Third: In the seventeenth proposal of amendment, by striking after the word "Senate" the word "committee" and inserting in lieu thereof the following: "and House committees"

Fourth: In the twenty-fifth proposal of amendment, by adding a new subdivision (3) to read as follows:

(3) Third, of any remaining fund balance after subdivisions (1) and (2) of this section, up to $500,000 shall be appropriated to the agency of transportation project development program (account #0408811700) for the state paving program.

Fifth: In the thirty-fourth proposal of amendment, in Sec. 41k, by adding a period after the words "to the construction phase" and striking the remainder of the sentence

Sixth: By striking the thirty-fifth proposal of amendment

Seventh: In the thirty-seventh proposal of amendment, in Sec. 41o(c), by adding before the period in the first sentence, the following: "and the Senate and House committees on transportation" and in the third sentence, by striking after "Senate" the word "Committee" and inserting in lieu thereof "and House Committees"

Eighth: In the fortieth proposal of amendment, in Sec. 41s, by striking "1999" and inserting in lieu thereof "1998"

Ninth: In the forty-first proposal of amendment, by striking after the word "senate" the word "committee" and inserting in lieu thereof the words "and house committees"

Tenth: In the forty-forth proposal of amendment, by striking after the word "senate" the word "committee" and inserting in lieu thereof "and house committees"

Eleventh: In the forty-sixth proposal of amendment, by adding after the words "agency of transportation" the following: "policy and planning program (account #0408811906)"

Twelfth: By adding a new Sec. 41z to read:

Sec. 41z. POLICY FOR SUPPLEMENTAL GUIDE SIGNS

The Travel Information Council shall develop a policy for supplemental guide signs on the interstates and state highways and a plan for implementing the policy. The Travel Information Council shall report the policy and plan to the House and Senate Committees on Transportation on January 15, 2000.

Thirteenth: In the Senate thirtieth proposal of amendment, in Sec. 41 § 494(6), by striking the following: "for *[the]* people who are language delayed" and inserting in lieu thereof the following: for people with disabilities

Thereupon, the question, Shall the Senate concur in the House proposals of amendment to the Senate proposals of amendment? Was decided in the affirmative.

Bills Passed in Concurrence

House bills of the following titles were severally read the third time and passed in concurrence:

H. 302. An act relating to designating the state pie and state fruit.

H. 451. An act relating to confidentiality of HIV reporting.

Bill Passed in Concurrence with Proposal of Amendment

House bill of the following title was read the third time and passed in concurrence with proposal of amendment:

H. 351. An act relating to health insurance and chiropractic services.

Joint Resolution Adopted on the Part of the Senate

Joint Senate resolution of the following title was read the third time and adopted on the part of the Senate:

J.R.S. 36. Joint resolution relating to reducing the risks of an accidental nuclear attack.

Third Reading Ordered

Senator Ankeney, for the Committee on Government Operations, to which was referred House bill entitled:

H. 34. An act relating to doing business in Burma (Myanmar).

Reported that the bill ought to pass in concurrence.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, and third reading of the bill was ordered.

Joint Resolution Adopted in Concurrence

Joint House resolution entitled:

J.R.H. 101. Joint resolution congratulating the 1999 state drama champion Yoh Theatre Players of Woodstock High School.

Having been placed on the Calendar for action, was taken up.

Thereupon, the pending question, Shall the joint resolution be adopted in concurrence? was decided in the affirmative.

Rules Suspended; Third Reading Ordered

Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and House bill entitled:

H. 562. An act relating to City of Winooski charter.

Was taken up for immediate consideration.

Senator Ankeney, for the Committee on Government Operations, to which the bill was referred, reported that the bill ought to pass in concurrence.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, and third reading of the bill was ordered.

Rules Suspended; Proposal of Amendment; Bill Passed in Concurrence with Proposals of Amendment

Pending entry on the Calendar for action tomorrow, on motion of Senator Shumlin, the rules were suspended and House bill entitled:

H. 16. An act relating to protection of self-directed retirement accounts.

Was placed on all remaining stages of its passage in concurrence with proposal of amendment forthwith.

Thereupon, pending third reading of the bill, Senator McCormack moved that the Senate propose to the House to amend the bill in Sec. 1, in §2740(16) of 12 V.S.A., second sentence, by striking out the word "exempt" where it secondly appears and inserting in lieu thereof the word deductible

Which was agreed to.

Thereupon, the bill was read the third time and passed in concurrence with proposals of amendment.

Proposal of Amendment; Third Reading Ordered

Senator Crowley, for the Committee on Education, to which was referred House bill entitled:

H. 290. An act relating to an endowment trust fund to provide financial aid to Vermont postsecondary students and institutions.

Sec. 1. 16 V.S.A. chapter 90 is added to read:

CHAPTER 90. FUNDING OF POSTSECONDARY INSTITUTIONS

§ 2885. VERMONT HIGHER EDUCATION ENDOWMENT TRUST FUND

(a) A Vermont higher education endowment trust fund is established in the office of the state treasurer to be comprised of the following:

(1) Appropriations made by the general assembly.

(2) In any year in which a general fund surplus exists and the general fund stabilization reserve is funded to its required statutory level, funds raised by the estate tax levied under chapter 190 of Title 32 which are more than 125 percent in excess of the amount projected by the emergency board in the July annual forecast made pursuant to section 305a of Title 32.

(3) Contributions from any other sources.

(b) The state treasurer may invest the monies in the fund.

(c) In August of each year, beginning in the year 2000, the state treasurer shall withdraw five percent of the assets which were in the fund on the previous June 30, and shall divide the amount equally among the University of Vermont, the Vermont state colleges and the Vermont student assistance corporation. Therefore, up to five percent of the fund assets are hereby annually appropriated pursuant to this section, provided that the amount appropriated shall not exceed an amount which would bring the fund balance below the initial appropriation made in fiscal year 2000. The University of Vermont and the Vermont state colleges shall use the funds to provide nonloan financial aid to Vermont students attending their institutions; the Vermont student assistance corporation shall use the funds to provide nonloan financial aid to Vermont students attending a Vermont postsecondary institution.

(d) In August of each year, beginning in the year 2000, the commission on higher education funding may authorize the state treasurer to make an amount equal to up to two percent of the assets which were in the fund on the previous June 30 available to Vermont public institutions for the purpose of creating or increasing a permanent endowment. Therefore, up to two percent of the fund assets are hereby annually appropriated pursuant to this section, provided that the amount appropriated shall not exceed an amount which would bring the fund balance below the initial appropriation made in fiscal year 2000. One-half of the amount appropriated shall be available to the University of Vermont and one-half shall be available to the Vermont state colleges. The University of Vermont or Vermont state colleges may withdraw funds upon receipt of private donations which are double the amount withdrawn and upon a finding by the commission that the funds will be used to create or increase a permanent endowment.

(e) Annually, the state treasurer shall render a financial report on the receipts, disbursements and earnings of the fund to the commission on higher education funding.

(f) All balances in the fund at the end of any fiscal year shall be carried forward and used only for the purposes set forth in this section. Earnings of the fund which are not withdrawn pursuant to this section shall remain in the fund.

§ 2886. COMMISSION ON HIGHER EDUCATION FUNDING

(a) A commission on higher education funding is created for the purpose of:

(1) developing and, when necessary, refining Vermont's goals for higher education funding;

(2) developing and, when necessary, updating a multiyear plan to meet Vermont's higher education funding needs;

(3) annually recommending to the governor a level of state financial support for higher education which best uses state resources to meet the goals developed by the commission;

(4) reviewing expenditures made from the higher education endowment trust fund, evaluating the impact of the expenditures made, and making recommendations to the general assembly for further expenditures from the fund.

(b) The commission shall consist of 14 members as follows:

(1) The president of the University of Vermont or a designee;

(2) The president of the Vermont student assistance corporation;

(3) The chancellor of the Vermont state colleges;

(4) A sitting president of a Vermont state college, appointed by the chancellor in consultation with the governor;

(5) The president of the association of Vermont independent colleges and one sitting president of an independent college, selected by the association in consultation with the governor;

(6) A representative of the Vermont low income advocacy council;

(7) Two members at large appointed by the governor;

(8) Four legislative members, who shall be entitled to per diem expenses from the legislative appropriation, as follows:

(A) Two members from the house appointed by the speaker of the house;

(B) Two members of the senate appointed by the committee on committees;

(9) The secretary of administration who shall be the chair.

(c) The executive, legislative and higher education staff shall provide support to the commission as appropriate to accomplish its tasks.

(d) The cost of the commission, including any costs for per diem and expenses for at-large members and the representative of the low income advocacy council, shall be equally apportioned among the following: the administration, the University of Vermont, Vermont state colleges, the Vermont student assistance corporation and the association of Vermont independent colleges.

Sec. 2. EFFECTIVE DATES

(a) This act shall take effect on July 1, 1999.

(b) Fiscal year 2000 shall be the first year in which funds raised by the estate tax are eligible for payment to the Vermont Higher Education Endowment Trust Fund pursuant to subdivision 2885(a)(2) of Title 16.

And that the bill ought to pass in concurrence with such proposal of amendment.

Senator Bartlett, for the Committee on Appropriations, to which the bill was referred, reported that the bill ought to pass in concurrence.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, and the question, Shall the Senate propose to the House to amend the bill as recommended by the Committee on Education? was decided in the affirmative.

Thereupon, Senator Bartlett, on behalf of the Committee on Appropriations, moved to amend the Senate proposal of amendment in Sec. 1, in §2885(a)(2) of 16 V.S.A., following the words "In any" by inserting the word fiscal and following the words "more than 125 percent" by deleting the words "in excess"

Which was agreed to.

Thereupon, Senator Crowley, on behalf of the Committee on Education, moved to amend the Senate proposal of amendment by adding two new sections, to be numbered Secs. 2 and 3 to read as follows:

Sec. 2. 10 V.S.A. § 541 is amended to read:

§ 541. HUMAN RESOURCES INVESTMENT COUNCIL; STATE WORKFORCE INVESTMENT BOARD; MEMBERS; TERMS

(a) The human resources investment council is created as the successor to and the continuation of the governor's human resources investment council and shall be the state workforce investment board under Public Law 105-220, the Workforce Investment Act of 1998. The council shall consist of the following members: the governor, the commissioner of employment and training, the chancellor of Vermont state colleges, the president of the University of Vermont, the secretary of human services, *[the commissioner of agriculture, food and markets, one member representing independent colleges appointed by the governor]* the president of the association of Vermont independent colleges, the secretary of commerce and community development, the commissioner of education, *[the commissioner of labor and industry,]* *[five representatives of business appointed by the governor and representing as much as possible the diversity of business interests within the state, five]* the director of Vermont associates for training and development, the president of the Vermont student assistance corporation, the director of the Vermont jobs corps center, at least four representatives of labor appointed by the governor, at least one of which shall be from names submitted by labor organizations, one representative of the low income community appointed by the governor, *[one member]* two members of the senate appointed by the senate committee on committees, *[one member]* and two members of the house appointed by the speaker*[, and one representative of the office of the governor appointed by the governor]*. In addition, the governor shall appoint enough other members who are representatives of business or employers so that one-half plus one of the members of the council are representatives of business or employers. At least one-third of those appointed by the governor as representatives of business or employers shall be chosen from a list submitted by the regional workforce investment boards. In this section, "representative of business" means a business owner, a chief executive operating officer or other business executive and "employer" means an individual with policy-making or hiring authority, including a public school superintendent or school board member and including the nonprofit, social services and health sectors of the economy.

(b) Members representing business, employers, labor and the low income community shall be appointed for terms of three years. Appointed members, except legislative appointees, shall serve at the pleasure of the governor.

(c) A vacancy shall be filled for the unexpired term in the same manner as the initial appointment.

(d) *[The chancellor of Vermont state colleges, representing the Vermont higher education council, and the commissioner of employment and training shall be co-chairs of the council and shall jointly appoint all staff of the council.]* The governor shall appoint one of the business or employer members to chair the council.

* * *

(h) The human resources investment council shall:

(1) Advise the governor on *[Vermont's work force]* the establishment of an integrated network of workforce education and training *[system]* for Vermont.

(2) Coordinate planning and services for *[Vermont's work force]* an integrated network of workforce education and training *[system]*, and oversee its implementation.

(3) Establish and oversee *[work force]* workforce investment boards as provided in section 542 of this title.

(4) Establish goals for and coordinate the state's *[work force]* workforce education and training policies.

(5) Appoint an executive director, who shall be an exempt employee.

(6) Receive annual reports from the legislative joint fiscal office on the workforce education and training revenues and expenditures of agencies and institutions which are members of the council.

(7) Annually review and comment on workforce education and training revenues and expenditures of member agencies and institutions.

(8) Negotiate memoranda of understanding between the council and agencies and institutions involved in Vermont's integrated network of workforce education and training in order to ensure that each is working to achieve annual objectives developed by the council.

(9) Carry out the duties assigned to the state workforce investment board, as required for a single-service delivery state, under P.L. 105-220, the Workforce Investment Act of 1998 and any amendments that may be made to it.

(10) Annually, on or before January 15, report to the general assembly on activities carried out during the previous year in order to accomplish its mandate.

Sec. 3. 10 V.S.A. § 542 is amended to read:

§ 542. *[WORK FORCE]* REGIONAL WORKFORCE INVESTMENT BOARDS

(a) At the request of a regional group recognized by the council as interested in *[work force]* workforce training, the human resources investment council shall establish a regional *[work force]* workforce investment board in the region. *[Work force]* Regional workforce investment boards shall act with oversight from the human resources investment council.

(b) Members of each *[work force]* regional workforce investment board shall *[be approved by the human resources investment council from a slate of nominees submitted by a regional group recognized by the council as interested in work force training. In approving members, the council shall ensure a balance between employers, employees and work force program providers, but shall also ensure that employer and employee interests predominate. Members may]* include individuals or representatives of employers and employees from large and small businesses, secondary and post-secondary educational institutions, regional technical centers, economic development organizations *[work force]* or chambers of commerce, or both, workforce, education and training organizations, and public agencies with work force education and training responsibilities. The human resources investment council shall review the regional workforce investment board membership to ensure a balance between employers, employees and workforce program providers with 51 percent of membership representing employers. Members shall not receive compensation or reimbursement for expenses.

(c) Each *[work force]* regional workforce investment board may:

(1) Coordinate a delivery system of *[work force]* workforce education and training services that is responsive to the needs of employers, employees and individuals interested in receiving *[work force]* workforce training and is consistent with policies established by the human resources investment council. The system shall avoid duplication of services among *[work force ]*workforce education and training programs and service providers.

(2) Perform periodic regional needs assessments and establish priorities for regional *[work force]* workforce development, and report on such assessments and priorities to the human resources investment council.

(3) Determine whether each program and provider collaborates and coordinates its activities with other programs.

(4) Review and endorse requests by *[work force]* workforce programs and providers for waivers of state and federal regulations in support of high performance, if such requests are consistent with the goals of the statewide *[work force]* integrated network of workforce education and training *[system]* as established by the human resources investment council.

(5) Ensure the most effective use of funds by encouraging collaborative work on budget preparation and grant proposals submitted by programs and providers.

(6) Encourage partnerships with businesses and providers to develop new education and training opportunities that meet regional labor market needs and that are consistent with policies established by the human resources investment council.

(7) *[Coordinate the]* Continue to support school-to-work efforts through a youth council and integrate school-to-work, and welfare reform initiatives so that these initiatives are integrated into the *[work force]* workforce education and training system.

(8) *[Coordinate service delivery by regional work force education and training providers, including one-stop-shopping career centers]* Develop an integrated network of service providers including department of employment and training career resource centers consistent with policies established by the human resources investment council.

(9) Maintain a process for sharing information about program needs and opportunities among programs, providers, employers and the general public.

(10) Coordinate the dissemination of, and assure access to pertinent labor market information.

(11) Coordinate the dissemination of, and assure access to pertinent *[work force]* workforce education and training program and services information for individuals and businesses.

(12) Explore new ideas and models *[for programs]* that advance policies established by the human resources investment council, and act as a clearinghouse for all providers and programs in the region.

(13) Ensure that new program ideas complement the goals of the human resources investment council including the goal of *[developing a coordinated system of]* *[work force]* an integrated network of workforce education and training.

(14) Conduct an inventory of businesses for potential alternate learning environments.

(15) Advise the human resources investment council about standards and procedures for a uniform accountability and information data base for programs and providers.

(16) Perform such other duties identified by the human resources investment council to be necessary or desirable in carrying out the purposes of this chapter.

(d) Each work force investment board shall report to the human resources investment council in the manner described by the council.

Which was agreed to.

Thereupon, third reading of the bill was ordered.

Bill Passed

Senate bill of the following title was read the third time and passed:

S. 26. An act relating to alternative wastewater system standards, loans for system replacement and amnesty for certain subdivision violations.

Rules Suspended; Bill Passed in Concurrence

Pending entry on the Calendar for action tomorrow, on motion of Senator Shumlin, the rules were suspended and House bill entitled:

H. 562. An act relating to City of Winooski charter.

Was placed on all remaining stages of its passage in concurrence forthwith.

Thereupon, the bill was read the third time and passed in concurrence.

Committee Relieved of Further Consideration; Bill Committed

On motion of Senator Riehle, the Committee on Health and Welfare was relieved of further consideration of House bill entitled:

H. 181. An act relating to providing that up to 12 children may be served by a child care facility as a permitted single-family residential use of property.

Thereupon, pending entry of the bill on the Calendar for notice tomorrow, on motion of Senator Riehle, the bill was committed to the Committee on Government Operations.

Recess

At 3:00 P.M., on motion of Senator Shumlin, the Senate recessed until 3:20 P.M.

At 4:15 P.M., the Senate was reconvened by the President.

Bill Amended; Third Reading Ordered

Senator Leddy, for the Committee on Judiciary, to which was referred Senate bill entitled:

S. 105. An act relating to health insurer and managed care negligence.

Sec. 1. 12 V.S.A. chapter 205 is added to read:

Chapter 205. Health Insurer and Managed Care Negligence

§ 5796. PURPOSE

The purpose of this subchapter is to hold health insurance companies and managed care organizations directly accountable for the medical decisions they make so as to ensure that treating physicians and health care providers, rather than health insurance companies and managed care organizations, are in charge of the quality of patient care.

§ 5797. DEFINITIONS

As used in this subchapter:

(1) "Health care facility" means all facilities and institutions, whether public or private, proprietary or nonprofit, which offer diagnosis, treatment, inpatient or ambulatory care to two or more unrelated persons. The term shall not apply to any facility operated by religious groups relying solely on spiritual means through prayer or healing, but includes all facilities and institutions included in section 9432(10) of Title 18, except health maintenance organizations.

(2) "Health care plan" means a policy, contract, certificate or agreement entered into, offered or issued by a health insurer to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services.

(3) "Health care provider" means a person, partnership or corporation, other than a facility or institution, licensed or certified or authorized by law to provide professional health care service in this state to an individual during that individual's medical care, treatment or confinement.

(4) "Health care treatment decision" means a determination made when medical services are actually provided by the health care plan and a decision which affects the quality of the diagnosis, care, or treatment provided to the plan's insureds.

(5) "Health insurer" means any health insurance company, nonprofit hospital and medical service corporation, managed care organizations, the Medicaid health care plan administered by the department of social welfare, and, to the extent permitted under federal law, any administrator or managed care organization acting on behalf of an insured, self-insured, or publicly funded health care plan offered by public and private entities. The term does not include an employer, including a self-insured employer, purchasing coverage or acting on behalf of its employees or the employees of one or more subsidiaries or affiliated corporations of the employer.

(6) "Health maintenance organization" means any person certified to operate a health maintenance organization by the commissioner pursuant to chapter 139 of Title 8.

(7) "Insured" means the beneficiary of a health care plan, including the subscriber and all others covered by the plan.

(8) "Managed care organization" means any financing mechanism or system that manages health care delivery for its members or subscribers, including health maintenance organizations and any other similar health care delivery system or organization.

(9) "Nonprofit hospital and medical service corporation" means a corporation organized under chapter 123 or 125 of Title 8.

(10) "Ordinary care" means, in the case of a health insurer, that degree of care that a health insurer of ordinary prudence would use under the same or similar circumstances. In the case of a person who is an employee, agent, ostensible agent, or representative of a health insurer, "ordinary care" means that degree of care that a person of ordinary prudence in the same profession, specialty, or area of practice as such person would use in the same or similar circumstances.

§ 5798. CIVIL ACTION; MEDICAL NEGLIGENCE

(a) A health insurer for a health care plan has the duty to exercise ordinary care when making health care treatment decisions and is liable for damages for harm to an insured proximately caused by its failure to exercise such ordinary care.

(b) A health insurer for a health care plan is also liable for damages for harm to an insured proximately caused by the health care treatment decisions made by its employees, agents, ostensible agents, or representatives who are acting on its behalf and over whom it has the right to exercise influence or control or has actually exercised influence or control which result in the failure to exercise ordinary care.

(c) It shall be a defense to any action asserted against a health insurer for a health care plan that:

(1) neither the health insurer, nor any employee, agent, ostensible agent, or representative for whose conduct such health insurer is liable under subsection (b) of this section controlled, influenced, or participated in the health care treatment decision;

(2) the health insurer did not deny or delay payment for any treatment prescribed or recommended by a provider to the insured; or

(3) the treatment prescribed or recommended by a provider to the insured is not covered by the health care plan of the insured.

(d) The standards established in subsections (a) and (b) of this section create no obligation on the part of the health insurer to provide to an insured treatment which is not covered by the health care plan of the health insurer.

(e) This chapter does not create any liability on the part of an employer, including a self-insured employer, or an employer group purchasing organization, that purchases coverage or assumes risk on behalf of its employees.

(f) Nothing in this section shall be construed to do any of the following:

(1) abrogate or limit any other theory of liability otherwise available at law;

(2) create any new or additional liability on the part of a health insurer for the sole medical negligence of a treating health care provider; or

(3) alter existing law with respect to the medical negligence of a treating health care provider.

(g) Nothing in any law of this state prohibiting a health insurer from practicing medicine or being licensed to practice medicine may be asserted as a defense by such health insurer in an action brought against it pursuant to this section or any other law.

(h) A health insurer may not remove a health care provider from its plan or refuse to renew a health care provider with its plan for advocating on behalf of an insured for appropriate and medically necessary health care for the insured.

(i) A health insurer may not enter into a contract with a health care provider or a health care facility which includes an indemnification or hold harmless clause for the acts, omissions or conduct of the health insurer. Any such indemnification or hold harmless clause in a contract in effect on the effective date of this section shall be unenforceable.

(j) A health insurer may not enter into a contract with an employer or an employer group purchasing organization which includes an indemnification or hold harmless clause for the acts, omissions or conduct of the health insurer. Any such indemnification or hold harmless clause in a contract in effect on the effective date of this section shall be unenforceable.

§ 5799. LIMITATIONS ON CAUSE OF ACTION

(a) A person may not maintain a cause of action under this subchapter against a health insurer unless the affected insured or the insured's representative:

(1) has exhausted the plan's utilization review and grievance requirements; and

(2) gives written notice of the claim and agrees to submit the claim to a review by an independent review organization on the request of the plan.

(b) If the insured has not complied with subsection (a) of this section, an action shall not be dismissed by the court, but the court may, in its discretion, order the parties to submit to an independent review or mediation or other nonbinding alternative dispute resolution and may abate the action for a period not to exceed 30 days for such purposes. Such orders shall be the sole remedy available to a party complaining of an insured's failure to comply with subsection (a) of this section.

(c) The insured is not required to comply with subsection (a) of this section if the insured has filed a pleading alleging that:

(1) harm to the insured has already occurred because of the conduct of the plan or because of an act or omission of an agent of the plan for whose conduct the plan is liable, and

(2) the review would not be beneficial to the insured, unless the court, upon motion by a defendant health insurer, finds after hearing, that such pleading was not made in good faith, in which case the court may enter an order pursuant to subsection (b) of this section.

(d) Nothing in this section shall prohibit an insured from pursuing other appropriate remedies, including injunctive relief, a declaratory judgment, or other relief available under law, if the requirement of exhausting the process for external review places the insured's health in serious jeopardy.

(e) Notwithstanding any other provision of law, actions under this chapter to recover damages for harm to an insured shall be brought within three years of the date of the health care treatment decision or two years from the date the harm is or reasonably should have been discovered, whichever occurs later, but not later than seven years from the date of the health care treatment decision.

And that when so amended the bill ought to pass.

(b) If the insured has not complied with subsection (a) of this section, an action shall not be dismissed by the court, but the court may, in its discretion, order the parties to submit to an independent review or mediation or other nonbinding alternative dispute resolution and may abate the action for such period of time as the court determines is needed for such purposes. Such orders shall be the sole remedy available to a party complaining of an insured's failure to comply with subsection (a) of this section.

Which was agreed to.

Thereupon, the recurring question, Shall the bill be read the third time? was decided in the affirmative on a roll call, Yeas 21, Nays 6.

Senator McCormack, having demanded the yeas and nays, they were taken and are as follows:

Roll Call

Those Senators who voted in the affirmative were: Ankeney, Backus, Bloomer, Chard, Costes, Crowley, Cummings, Doyle, Ide, Illuzzi, Kittell, Leddy, MacDonald, Mazza, McCormack, Munt, Ptashnik, Rivers, Sears, Shumlin, Spaulding.

Those Senators who voted in the negative were: Bahre, Brownell, Greenwood, Maynard, Morrissey, Riehle.

Those Senators absent and not voting were: Bartlett, Canns, Ready.

Rules Suspended; Bills Messaged

On motion of Senator Shumlin, the rules were suspended and the following bills were ordered messaged to the House forthwith:

S. 26, H. 16, H. 302, H. 351, H. 451, H. 537, H. 562.

Rules Suspended; Proposal of Amendment; Bill Passed in Concurrence with Proposal of Amendment

Pending entry on the Calendar for action tomorrow, on motion of Senator Shumlin, the rules were suspended and House bill entitled:

H. 290. An act relating to an endowment trust fund to provide financial aid to Vermont postsecondary students and institutions.

Was placed on all remaining stages of its passage in concurrence with proposal of amendment forthwith.

Which was agreed to.

Thereupon, the bill was read the third time and passed in concurrence with proposal of amendment.

Rules Suspended; Bill Passed in Concurrence

Pending entry on the Calendar for action tomorrow, on motion of Senator Shumlin, the rules were suspended and House bill entitled:

H. 34. An act relating to doing business with Burma (Myanmar).

Was placed on all remaining stages of its passage in concurrence forthwith.

Thereupon, the bill was read the third time and passed in concurrence.

Rules Suspended; Bills Messaged

On motion of Senator Shumlin, the rules were suspended and the following bills were ordered messaged to the House forthwith:

H. 34, H. 290.

Adjournment

On motion of Senator Shumlin, the Senate adjourned until eight o'clock and thirty minutes in the morning.