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Journal of the House

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THURSDAY, MAY 15, 2003

At nine o'clock and thirty minutes in the forenoon the Speaker called the House to order.

Devotional Exercises

Devotional exercises were conducted by Speaker Walter Freed of Dorset.

Message from Governor

A message was received from His Excellency, the Governor, by Mr. Neale Lunderville, Secretary of Civil and Military Affairs, as follows:

Mr. Speaker:

I am directed by the Governor to inform the House that on the fourteenth day of May, 2003, he approved and signed bills originating in the House of the following titles:

H. 29 An act relating to scholarships for children of Vermont National Guard members killed while on duty

H. 54 An act relating to school district participation in federal school meals programs

H. 80 An act relating to enabling a holder of a Vermont or a New York license to fish in Lake Champlain

Message from the Senate No. 68

A message was received from the Senate by Mr. Marshall, its Assistant Secretary, as follows:

Mr. Speaker:

I am directed to inform the House that the Senate has considered a joint resolution originating in the House of the following title:

J.R.H. 20. Joint resolution designating the first week of May 2003 as Public Service Recognition Week in Vermont.

And has adopted the same in concurrence.

Committee Relieved of Consideration

and Bill Committed to Other Committee

S. 119

Rep. Mazur of South Burlington moved that the committee on Transportation be relieved of House bill, entitled

An act relating to underinsured motor vehicles;

And that the bill be committed to the committee on Judiciary, which was agreed to.

Action on Bill Postponed

H. 113

House bill, entitled

An act relating to harassment in schools;

Was taken up and pending the reading of the report of the committee on Education, on motion of Rep. Hingtgen of Burlington, action on the bill was postponed for two legislative days.

Favorable Report; Third Reading Ordered

S. 11

Rep. Smith of New Haven, for the committee on Agriculture, to which had been referred House bill, entitled

An act relating to agriculture;

Reported in favor of its passage. The bill, having appeared on the Calendar one day for notice, was taken up, read the second time and third reading ordered.

Joint Resolution Adopted

J.R.H. 21

Joint resolution, entitled

Joint resolution urging the U.S. Congress to appropriate sufficient federal medical research funds to find a cure for amyotrophic lateral sclerosis

Was taken up and adopted on the part of the House.

Joint Resolution Adopted in Concurrence

J.R.S. 33

Joint resolution, entitled

Joint resolution urging Congress to amend the Help America Vote Act in order to assist small rural states and to remove those provisions which threaten personal privacy and fundamental civil liberties;

Was taken up read and adopted in concurrence.

Senate Proposal of Amendment Not Concurred in;

Committee of Conference Requested and Appointed

H. 175

The Senate proposes to the House to amend House bill, entitled

An act relating to consolidated environmental appeals and revisions of land use development law;

First: By striking out Secs. 1 through 67 in their entirety and inserting in lieu thereof the following:

Sec. 1. 10 V.S.A. chapter 220 is added to read:

Chapter 220. Environmental Permitting Review, Issuance, and Appeals

§ 8501. PURPOSE

It is the purpose of this chapter to enable and encourage people to get involved in the environmental permitting process at the initial stages of review by the permitting authority by providing adequate notice and scoping of proposed projects, with the hope of identifying and resolving issues and concerns amicably at the initial stages.

§ 8502. DEFINITIONS

As used in this chapter:

(1) “District coordinator” means a district coordinator under chapter 151 of this title;

(2) “Environmental board” means the environmental board established under chapter 151 of this title;

(3) “Person” means any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont or any agency, department or subdivision of the state, any federal agency, or any other legal or commercial entity;

(4) “Person aggrieved” means any person who demonstrates an interest which may be affected by the outcome of the proceeding and who is so situated that the disposition of the proceeding may as a practical matter impair or impede the person’s ability to protect that interest.

(5) “Secretary” means the secretary of the agency of natural resources or the secretary’s duly authorized representative. For the purposes of this chapter, “secretary” also means the commissioner of the department of environmental conservation, the commissioner of the department of forests, parks and recreation, and the commissioner of the department of fish and wildlife, with respect to those statutes that refer to the authority of that commissioner or department.

(6) “Water resources board” means the water resources board established under chapter 37 of this title.

§ 8503. APPLICABILITY

(a) This chapter shall govern all applications for permits, or other applications or requests requiring the act or decision of the secretary, and appeals of those permits, acts, or decisions of the secretary, excluding enforcement actions under chapters 201 and 211 of this title, and rulemaking under the following authorities:

(1) 10 V.S.A. chapter 23 (air pollution control).

(2) 10 V.S.A. chapter 37 (water resources management).

(3) 10 V.S.A. chapter 41 (regulation of stream flow).

(4) 10 V.S.A. chapter 43 (dams).

(5) 10 V.S.A. chapter 47 (water pollution control).

(6) 10 V.S.A. chapter 48 (groundwater protection).

(7) 10 V.S.A. chapter 55 (aid to municipalities for water supply, pollution abatement and sewer separation).

(8) 10 V.S.A. chapter 56 (public water supply).

(9) 10 V.S.A. chapter 59 (underground liquid storage tanks).

(10) 10 V.S.A. chapter 64 (potable water supply and wastewater permit).

(11) 10 V.S.A. chapter 83 (regulation of heavy cutting).

(12) 10 V.S.A. chapter 123 (protection of endangered species).

(13) 10 V.S.A. chapter 159 (waste management).

(14) 29 V.S.A. chapter 11 (encroachment into lakes and ponds).

(b) This chapter shall govern all applications for and appeals of permits or other acts or decisions of the environmental board or a district commission under chapter 151 of this title.

§ 8504. DETERMINING PROJECT SCOPE

(a) In conjunction with the secretary, an applicant with a project that requires one or more permits, certifications, or other authorizations subject to the provisions of this chapter, except for professional licenses, may prepare a project review sheet. The project review sheet shall indicate:

(1) all permits required for the entire project, including permits issued by the secretary and land use permits issued by the district commission or environmental board, even where the pending application relates only to a portion of the entire project; and

(2) a project identification number assigned by the secretary for use on all applications, notices, permits, and decisions issued by the secretary.

(b) The project review sheet shall be prepared based on the information submitted by the project applicant. If, based on supplemental information, or for other good cause, the secretary determines that a project will require other permits, certifications, or other authorizations, or the district coordinator or the environmental board determines that a land use permit under chapter 151 of this title is required notwithstanding the fact that the permit requirement did not appear on the initial project review sheet, the project review sheet shall be amended. Any failure by the applicant, the secretary, a district coordinator, or the board to identify a required permit, certification, or authorization issued by the secretary, or a land use permit issued under chapter 151 of this title, on the project review sheet shall not constitute a waiver of jurisdiction.

§ 8505. PUBLIC NOTICE AND OPPORTUNITY FOR REVIEW

(a) An applicant for a permit, certification, or other authorization issued by the secretary who has a completed project review sheet may elect to initiate a project scoping process, or that process shall be initiated upon request of the secretary or a district commission. If a project scoping process is to be initiated, upon completion of the project review sheet or upon a determination that an application for any one or more permits, certifications, or other authorization identified on the project review sheet is administratively complete, whichever occurs first, the secretary shall schedule a scoping conference and create a public notice of the project that shall include, at a minimum, the following information:

(1) the name of the project applicant;

(2) the project identification number;

(3) the location of the project;

(4) a brief description of the project;

(5) the name, address, and telephone number of the person or persons to contact in order to submit comments, receive further information, and be placed on a status report mailing list for the project;

(6) the closing date of the comment period and the address to which the comments must be sent;

(7) the date, time, and place of the scoping conference; and

(8) the address where a complete project review sheet or complete application may be reviewed.

(b) At least 30 days prior to the date of the scoping conference, the applicant shall send a complete copy of the public notice by first class mail, postage prepaid, to each of the following: the owner of the land where the project is located, if the applicant is not the owner; the municipality in which the project is located; the municipal and regional planning commissions for any municipality in which the project is located; the municipal and regional planning commission in any adjacent Vermont municipality if the project is located on a boundary; any state agency identified on the project review sheet as directly affected by the project; and all adjoining property owners and residents. In addition, the applicant shall assure that this notice is published in a newspaper of general circulation in the area of the proposed project. The applicant shall furnish by affidavit to the secretary the names of those furnished notice.

(c) Any interested person who wishes to receive all notices relating to a particular project may do so by submitting a written request to the secretary. The secretary shall provide relevant notices to all persons making a written request.

§ 8506. SCOPING CONFERENCE AND REPORT

(a) The applicant or a representative of the applicant and the secretary shall attend the scoping conference, present a description of the proposed project, and be available for questions from the public concerning the proposed project. The following persons should be present at the scoping conference: the district coordinator, if the proposed project will require a land use permit under chapter 151 of this title, and a representative of a local permitting authority or a member of the legislative body of the municipality in which the project is located, if no local permitting authority exists. The purpose of the scoping conference is to provide public information about the full project and allow informal discussion of the full project, and to identify and, if possible, resolve potential issues or conflicts at the beginning of the project review process.

(1) For those projects that a district coordinator, or the environmental board on review, has determined do not require a land use permit under chapter 151 of this title, the secretary shall convene the scoping conference.

(2) For those projects that a district coordinator, or the environmental board on review, has determined do require a land use permit under chapter 151 of this title, the district coordinator shall convene the scoping conference.

(b) Following the scoping conference, the secretary, in conjunction with the district coordinator if the project requires a land use permit under chapter 151 of this title, shall prepare and provide to all those persons who requested the conference, as well as those persons and entities provided notice under section 8505 of this title, a scoping report documenting the proceedings. The report shall include, at a minimum, the following information:

(1) the name of the project applicant;

(2) the project identification number;

(3) the location of the project;

(4) a brief description of the project;

(5) identification of all persons known to be in attendance at the scoping conference;

(6) a summary of the issues raised by attendees of the scoping conference;

(7) an outline of the processing of the various permits required for the project, and whether that processing shall be conducted by sequential or concurrent review; and

(8) whether further proceedings should be convened in order to resolve remaining issues that present the reasonable possibility of resolution.

§ 8507. APPEALS TO THE ENVIRONMENTAL BOARD AND WATER RESOURCES BOARD

(a) Any person aggrieved by an act or decision of the secretary or of a district commission may appeal that act or decision within 30 days of the date of the act or decision as provided in this section.

(1) Acts or decisions of the secretary under the following authorities, excluding enforcement actions under chapters 201 and 211 of this title and rulemaking, may be appealed to the water resources board:

(A) 10 V.S.A. chapter 37 (water resources management);

(B) 10 V.S.A. chapter 41 (regulation of stream flow);

(D) 10 V.S.A. chapter 47 (water pollution control);

(E) 10 V.S.A. chapter 48 (groundwater protection);

(F) 10 V.S.A. chapter 55 (aid to municipalities for water supply, pollution abatement, and sewer separation);

(G) 10 V.S.A. chapter 56 (public water supply);

(H) 10 V.S.A. chapter 64 (potable water supply and wastewater permit); and

(I) 29 V.S.A. chapter 11 (encroachment into lakes or ponds).

(2) Acts or decisions of the secretary under chapter 159 of this title (waste management), excluding enforcement actions under chapters 201 and 211 of this title and rulemaking, may be appealed to the environmental board.

(3) Requests for variances or appeals under chapter 23 of this title (air pollution control) and requests for variances under chapter 159 of this title (waste management) may be taken to the environmental board.

(4) Acts or decisions of a district commission under chapter 151 of this title may be appealed to the environmental board.

(5) Acts or decisions of the secretary under chapter 59 of this title (underground storage tanks) and chapter 123 (endangered species) may be appealed to the superior court.

(6) Acts or decisions under chapter 83 of this title (heavy cutting) may be appealed to the environmental court.

(b) Any person may intervene in a pending appeal if that person meets the standard for intervention under Rule 24 of the Vermont Rules of Civil Procedure.

(c) The environmental board or the water resources board shall hold a de novo hearing on those issues which have been appealed, and that hearing shall be conducted as a contested case.

(d) Any appeal of an authorization to discharge under the terms of a general permit shall be limited in scope to whether the permitted activity complies with the terms and conditions of the general permit. The secretary is prohibited from issuing a general permit by rule.

§ 8508. APPEALS TO THE SUPREME COURT

(a) Any person aggrieved by an act or decision of the environmental board or water resources board may appeal to the supreme court within 30 days of the date of entry of the judgment or order appealed, provided that the person was a party to the proceedings before the relevant board. Notwithstanding this requirement, a person aggrieved may appeal such an act or decision if the supreme court determines that:

(1) there was a procedural defect which prevented the person from participating in the proceeding; or

(2) some other condition exists which would result in manifest injustice if the person’s right to appeal was disallowed.

(b) The supreme court’s review of a decision by the environmental board or water resources board shall be on the record.

Sec. 2. 10 V.S.A. § 6001(30) is added to read:

(30) “Person aggrieved” means any person who demonstrates an interest which may be affected by the outcome of the proceeding and who is so situated that the disposition of the proceeding may as a practical matter impair or impede the person’s ability to protect that interest.

Sec. 3. 10 V.S.A. § 6084 is amended to read:

§ 6084. NOTICE

(a) On or before the date of filing of application the applicant shall send notice and a copy of the application to the owner of the land if the applicant is not the owner; any adjoining property owner; the municipality in which the land is located; the municipal and regional planning commissions for the municipality in which the land is located; any adjacent Vermont municipality and municipal and regional planning commission if the land is located on a boundary. The applicant shall furnish to the district commission the names of those furnished notice by affidavit, and shall post a copy of the notice in the town clerk's office of the town or towns wherein the land lies.

(b) The district commission shall forward notice and a copy of the application to the board and any state agency directly affected, the solid waste management district in which the land is located, if the development or subdivision constitutes a facility pursuant to subdivision 6602(10) of this title, and any other municipality, state agency, or person the district commission or board deems appropriate. In addition, the district commission shall forward notice to any Vermont municipality whose boundary at any point meets the boundary of the municipality where the project is located, and its municipal and regional planning commissions. Notice shall also be published in a local newspaper generally circulating in the area where the land is located not more than 7 seven days after receipt of the application.

Sec. 4. 10 V.S.A. § 6085 is amended to read:

§ 6085. HEARINGS; PARTY STATUS

(a) Anyone required to receive notice by section 6084 of this title and any adjoining property owner may request a hearing by filing a request within 15 days of receipt of notice. Upon receipt of notice, the district commission shall treat the application as a contested case pursuant to section 814 of Title 3. The district commission may order a hearing without a request within 20 days of receipt of the application.

(b) The hearing or a prehearing conference shall be held within 40 days of receipt of the application or notice of appeal. The parties shall be given not less than ~~10 days~~ 20 days’ notice. Notice shall also be published in a local newspaper generally circulating in the area where the land is located not less than 10 days before the hearing date, and shall be provided to all persons receiving notice under section 6084 of this title.

(c)(1) Parties shall be those who have received notice, adjoining property owners who have requested a hearing, and such other persons as the board may allow by rule. For the purposes of appeal to the supreme court, only the applicant, the landowner if the applicant is not the landowner, a state agency, the regional and municipal planning commissions and the municipalities required to receive notice shall be considered parties. An adjoining property owner may participate in hearings and present evidence only to the extent the proposed development or subdivision will have a direct effect on his or her property under section 6086(a)(1) through (a)(10) of this title. Party status. In proceedings before the board and district commissions, the following persons shall be entitled to party status:

(A) The applicant;

(B) The landowner, if the applicant is not the landowner;

(C) The municipality in which the project site is located, and the municipal and regional planning commissions for that municipality; and if the project site is located on a boundary, any Vermont municipality adjacent to that border and the municipal and regional planning commissions for that municipality; and the solid waste management district in which the land is located, if the development or subdivision constitutes a facility pursuant to subdivision 6602(10) of this title;

(D) Any state agency directly affected by the proposed project, and any state agency receiving notice of the proceedings through the interagency Act 250 review committee;

(E) Any person aggrieved, as defined in subdivision 6001(30) of this title;

(F) Any person other than those listed in subdivisions (c)(1)(A) – (E) of this section who meets the requirements of Rule 24 of the Vermont Rules of Civil Procedure.

(2) Content of petitions. All persons seeking to participate in proceedings before the board or district commission as parties pursuant to subdivision (c)(1)(E) or (F) of this section must petition for party status. Any petition for party status may be made orally or in writing to the district commission and shall be made in writing to the board, unless waived by the chair. All petitions must include:

(A) A detailed statement of the petitioner’s interest under the relevant criteria of the proceeding, including, if known, whether the petitioner’s position is in support of or in opposition to the relief sought by the permit applicant, appellant, or petitioner.

(B) In the case of an organization, a description of the organization

and its purposes.

(C) A statement of the reasons the petitioner believes the board or district commission should allow the petitioner party status in the pending proceeding.

(D) In the case of a person seeking party status under subdivision (c)(1)(F) of this section:

(i) if applicable, a description of the location of the petitioner’s property in relation to the proposed project, including a map, if available;

(ii) a description of the potential effect of the proposed project upon the petitioner’s interest with respect to each of the relevant criteria or subcriteria under which party status is being requested.

(3) Timeliness. A petition for party status pursuant to subdivision (c)(1)(E) or (F) of this section must be made at or prior to an initial prehearing conference held pursuant to board rule or at the commencement of the hearing, whichever shall occur first, unless the board or district commission, within their respective jurisdictions, directs otherwise. The board or district commission, within their respective jurisdictions, may grant an untimely petition if it finds that the petitioner has demonstrated good cause for failure to request party status in a timely fashion, and that the late appearance will not unfairly delay the proceedings or place an unfair burden on the parties.

(4) Conditions. Where a person has been granted party status pursuant to subdivision (c)(1)(E) or (F) of this section, the board or district commission shall restrict the person’s participation to only those issues in which it has demonstrated an interest, and may encourage the person to join with other persons with respect to representation, presentation of evidence, or other matters in the interest of promoting judicial expediency.

(5) Amicus curiae. The board or district commission, on its own motion or by petition, may appoint amicus curiae to participate in a proceeding. Participation may be limited to the filing of memoranda, proposed findings of fact and conclusions of law, and argument on legal issues. However, if approved by the board or the district commission, participation may be expanded to include the provision of testimony, the filing of evidence, or the cross‑examination of witnesses. A petition for leave to participate as amicus curiae shall identify the interest of the petitioner and the desired scope of participation and shall state the reasons why the participation of the petitioner will be beneficial to the board or the district commission. Except where all parties consent or as otherwise ordered by the board or district commissions or their respective chairs, all amicus curiae shall file their memoranda, testimony, or evidence within the times allowed other parties.

~~(2)~~(6) Re-examination of party status. A district commission~~, according to the procedures established in the rules of the board, shall determine party status with respect to individuals and organizations at the commencement of the hearing process and~~ shall re‑examine ~~those~~ party status determinations before the close of hearings and state the results of that re‑examination in the district commission decision. In the re‑examination of party status coming before the close of district commission hearings, persons having attained party status up to that point in the proceedings shall be presumed to retain party status. However, on motion of a party, or on its own motion, a commission shall consider the extent to which parties continue to qualify for party status. Determinations made before the close of district commission hearings shall supersede any preliminary determinations of party status.

(d) Any person aggrieved by an act or decision of the district commission or the board may appeal the act or decision in accordance with chapter 220 of this title.

~~(d)~~(e) If no hearing has been requested or ordered within the prescribed period, no hearing need be held by the district commission. In such an event a permit shall be granted or denied within 60 days of receipt; otherwise, it shall be deemed approved and a permit shall be issued.

~~(e)~~(f) The board and any district commission, acting through one or more duly authorized representatives at any prehearing conference or at any other times deemed appropriate by the board or by the district commission, shall promote expeditious, informal, and nonadversarial resolution of issues, require the timely exchange of information concerning the application, and encourage participants to settle differences. No board member or district commissioner who is participating as a decisionmaker in a particular case may act as a duly authorized representative for the purposes of this subsection. These efforts at dispute resolution shall not affect the burden of proof on issues before a commission or the board, nor shall they affect the requirement that a permit may be issued only after the issuance of affirmative findings under the criteria established in section 6086 of this title.

~~(f)~~(g) A hearing shall not be closed until a commission or the board provides an opportunity to all parties to respond to the last permit or evidence submitted. Once a hearing has been closed, a commission or the board shall conclude deliberations as soon as is reasonably practicable. A decision of a commission or the board shall be issued within 20 days of the completion of deliberations.

Sec. 5. 10 V.S.A. § 6086(b) is amended to read:

(b) At the request of an applicant, or upon its own motion, the district commission or the board shall consider whether to review any criterion or group of criteria of subsection (a) of this section before proceeding to or continuing to review other criteria. This request or motion may be made at any time prior to or during the proceedings. The district commission or the board, in its sole discretion, shall, within 20 days of the completion of deliberations on the criteria that are the subject of the request or motion, either issue its findings and decision thereon, or proceed to a consideration of the remaining criteria. If the district commission or the board first issues a partial decision under this subsection, the applicant or a party may appeal that decision within 30 days under section 6089 of this title, or may appeal it after the final decision on the complete application. If the applicant or party has not taken a prior appeal of a partial decision under this subsection with respect to particular criteria, then any findings on the complete application, relating to those criteria, may be appealed under section 6089 of this title any appeal of that decision must be taken within 30 days of the date of that decision.

Sec. 6. CONSOLIDATION OF APPEALS BOARDS

(a) The waste facility panel established under 10 V.S.A. chapter 151 is hereby eliminated. All powers, duties, and responsibilities of the waste facility panel are transferred to the full environmental board established under 10 V.S.A. chapter 151.

(b) The solid waste and air quality variance board established under 10 V.S.A. chapter 23 is hereby eliminated. All powers, duties, and responsibilities of the solid waste and air quality variance board are transferred to the full environmental board established under 10 V.S.A. chapter 151.

(c) Notwithstanding the repeal of their respective enabling authorities, the waste facility panel and the air and solid waste variance board shall continue to exist and have jurisdiction with their preexisting membership to complete their consideration of any action pending before them as of July 1, 2003, except that appeals, petitions, and requests for variances received before July 1, 2003 where the panel or board have not yet initiated proceedings shall be transferred as provided under this act.

Second: in Sec. 69, 24 V.S.A. § 4303, by striking out in its entirety the subdivision (7) that is being renumbered as (21), and inserting in lieu thereof the following:

~~(7)~~(21) “Public notice” means the form of notice prescribed by ~~section~~ ~~4447~~ sections 4444, 4449, or 4464 of this title, as the context requires.

Third: by striking out Sec. 70 in its entirety and inserting in lieu thereof the following:

Sec. 70. 24 V.S.A. § 4382(a)(10) is amended to read:

(10) A housing element that shall include a recommended program for addressing low and moderate income persons’ housing needs as identified by the regional planning commission pursuant to section 4348a(a)(9) of this title. The program ~~may include provisions for conditionally~~ should account for permitted accessory ~~apartments~~ dwelling units, as defined in subdivision 4412(1)(E) of this title, ~~within or attached to single family residences~~ which provide affordable housing ~~in close proximity to cost-effective care and supervision for relatives or disabled or elderly persons~~.

Fourth: In Sec. 76, 24 V.S.A. § 4410, in the last sentence, by striking out the following: “10” and by inserting in lieu thereof the following: 9, 10,

Fifth: In Sec. 76, 24 V.S.A. § 4411(a), by striking out the first sentence, and inserting the following:

A municipality may regulate land development in conformance with its adopted municipal plan and for the purposes set forth in section 4302 of this title to govern the use of land and the placement, spacing, and size of structures and other factors specified in the bylaws.

Sixth: In Sec. 76, 24 V.S.A. § 4412(1), by striking out subdivisions (E) through (G) and inserting the following:

(E) No bylaw shall have the effect of excluding as a permitted use one accessory dwelling unit that is located within an owner‑occupied single‑family dwelling, or within an accessory building appurtenant to that dwelling. An accessory dwelling unit means an efficiency or one‑bedroom apartment that is clearly subordinate to a single‑family dwelling, and has facilities and provisions for independent living, including sleeping, food preparation, and sanitation, provided the unit complies with all the following:

(i) Has sufficient wastewater capacity.

(ii) Does not exceed 30 percent of the total habitable floor area of the single‑family dwelling.

(iii) Meets any applicable setback, coverage, and parking requirements specified in the bylaws.

(F) Nothing in subdivision (1)(E) of this section shall be construed to prohibit a bylaw that is less restrictive of accessory dwelling units.

(G) A residential care home or group home, serving not more than eight individuals who have a handicap or disability as defined in 9 V.S.A. § 4501, that is to be operated under state licensing or registration, shall be considered to constitute a permitted single‑family residential use of property, except that a residential care or group home shall not be so considered if it is located within 1,000 feet of another residential care or group home.

Seventh: In Sec. 76, 24 V.S.A. § 4412(5), after the following: “Child care.” by inserting the following:

A “family child care home or facility” as used in this subdivision means a home or facility where the owner or operator is to be licensed or registered by the state for child care.

Eighth: In Sec. 76, 24 V.S.A. § 4413, by striking out subsection (b) and inserting the following:

(b) A bylaw under this chapter shall not regulate public utility power generating plants and transmission facilities regulated under 30 V.S.A. § 248.

Ninth: In Sec. 76, 24 V.S.A. § 4413, by adding new subsections (e) and (f) to read:

(e) A bylaw enacted under this chapter shall be subject to the restrictions created under 24 V.S.A. § 2295, with respect to the limits on municipal power to regulate hunting, fishing, trapping, and other activities specified under that section.

(f) This section shall apply in every municipality, notwithstanding any existing bylaw to the contrary.

Tenth: In Sec. 76, 24 V.S.A. § 4417(a) (Planned unit development), in the first sentence, by striking out the word “shall” and inserting the word should

Eleventh: In Sec. 81, 24 V.S.A. § 4449(a)(1), by striking out the third, fourth, and fifth sentences in their entirety

Twelfth: In Sec. 82, 24 V.S.A. § 44531 (challenges to housing provisions in bylaws), by striking out the first two sentences and inserting in lieu thereof the following:

The attorney general or a designee shall investigate when there is a complaint that a bylaw or its manner of administration violates subdivision 4412(1) of this title, relating to equal treatment of housing and adequate provision of affordable housing. Upon determining that a violation has occurred, the attorney general may file an action in the environmental court to challenge the validity of the bylaw or its manner of administration.

Thirteenth: In Sec. 85, 24 V.S.A. § 4464(a)(1)(C), at the end of the subdivision, by adding the following: The notification shall include a description of the proposed project and shall be accompanied by information that clearly informs the recipient where additional information may be obtained and that participation in the local proceeding is a prerequisite to the right to take any subsequent appeal.

Fourteenth: In Sec. 85, 24 V.S.A. § 4464(a)(2)(B), at the end of the subdivision, by adding the following: The notification shall include a description of the proposed project and shall be accompanied by information that clearly informs the recipient where additional information may be obtained and that participation in the local proceeding is a prerequisite to the right to take any subsequent appeal.

Fifteenth: In Sec. 85, 24 V.S.A. § 4464(a)(3), at the end of the subdivision, by adding the following: The applicant may be required to demonstrate proof of delivery to adjoining landowners either by certified mail, return receipt requested, or by actual notice supported by a sworn certificate of service.

Sixteenth: In Sec. 85, 24 V.S.A. § 4464(a)(5), in the second sentence, by striking out the word “defect” and inserting in lieu thereof the word defective

Seventeenth: In Sec. 87, 24 V.S.A. § 4465(b)(4), in the first sentence, by striking out the following: “or a number of these persons equal to at least one percent of the registered voters of the municipality, whichever is greater,” and in the second sentence, by striking out the words “principal contact” and by inserting in lieu thereof the words representative of the petitioners

Eighteenth: In Sec. 90, by striking out 24 V.S.A. § 4481 in its entirety and inserting in lieu thereof the following:

§ 4481. SAVING CLAUSE

The amendment of this chapter and the repeal of prior enabling laws relating to zoning ordinances, subdivision regulations, or bylaws or any ordinance or regulation similar to a bylaw authorized by this chapter shall not invalidate any zoning ordinance, subdivision regulation, or bylaw or any such ordinance or regulation enacted under those prior enabling laws, except as follows. Effective September 1, 2004, the provisions of sections 4412 and 4413 of this title, and the provisions of subchapters 9, 10 and 11 of this chapter and the related definitions in section 4302 of this title, shall control over any inconsistent municipal regulations, ordinances or bylaws. With respect to other provisions of this chapter, any previously enacted zoning ordinance, subdivision regulation, bylaw or such similar ordinance or regulation shall be amended to conform with the provisions of this chapter by September 1, 2010.

Nineteenth: In Sec. 92, in the second sentence, by striking out the words “the Regional Planning Commissions and” and by inserting the following before the period at the end of the section: , which includes regional planning commissions, municipal representatives, and education providers

Twentieth: By adding six new sections to read:

Sec. 93. 10 V.S.A. § 6086(c) and (d) are amended to read:

(c) A permit may contain such requirements and conditions as are allowable proper exercise of the police power and which are appropriate within the respect to (1) through (10) of subsection (a), including but not limited to those set forth in sections ~~4407(4)~~ 4414(4), ~~(8) and (9)~~ 4424(2), ~~4411(a)(2)~~ 4414(1)(D)(i), ~~4415, 4416~~ 4463(b), and ~~4417~~ 4464 of Title 24, the dedication of lands for public use, and the filing of bonds to insure compliance. The requirements and conditions incorporated from Title 24 may be applied whether or not a local plan has been adopted. General requirements and conditions may be established by rule.

(d) The board may by rule allow the acceptance of a permit or permits or approval of any state agency with respect to (1) through (5) of subsection (a) or a permit or permits of a specified municipal government with respect to (1) through (7) and (9) and (10) of subsection (a), or a combination of such permits or approvals, in lieu of evidence by the applicant. The board shall accept determinations issued by a development review board under the provisions of 24 V.S.A. § ~~4449~~ 4420, with respect to local Act 250 review of municipal impacts. The acceptance of such approval, positive determinations, permit, or permits shall create a presumption that the application is not detrimental to the public health and welfare with respect to the specific requirement for which it is accepted. In the case of approvals and permits issued by the agency of natural resources, technical determinations of the agency shall be accorded substantial deference by the commissions and the board. The acceptance of negative determinations issued by a development review board under the provisions of 24 V.S.A. § ~~4449~~ 4420, with respect to local Act 250 review of municipal impacts shall create a presumption that the application is detrimental to the public health and welfare with respect to the specific requirement for which it is accepted. Any determinations, positive or negative, under the provisions of 24 V.S.A. § ~~4449~~ 4420 shall create presumptions only to the extent that the impacts under the criteria are limited to the municipality issuing the decision. Such a rule may be revoked or amended pursuant to the procedures set forth in 3 V.S.A., chapter 25, the Vermont Administrative Procedure Act. The board shall not approve the acceptance of a permit or approval of such an agency or a permit of a municipal government unless it satisfies the appropriate requirements of subsection (a) of this section.

Sec. 94. 24 V.S.A. § 1201 is amended to read:

§ 1201. DEFINITIONS

As used in this chapter:

(1) "Contested hearing" means one of the following:

(A) A case in which an applicant for a land use permit under 10 V.S.A. chapter 151 is required to obtain local Act 250 review of municipal impacts by a municipality that has taken steps required under section ~~4449~~ 4420 of this title to allow it to conduct that local review.

* * *

(4) "Party," for purposes of proceedings under chapter 117 of this title, other than those related to local Act 250 review of municipal impacts, means "interested person," as defined by subsection ~~4464(b)~~ 4465(b) of this title. "Party," for purposes of local Act 250 review of municipal impacts, means a person whose interests, under relevant provisions of 10 V.S.A. § 6086(a) being reviewed at the municipal level, may be affected by a proposed development or subdivision, as those terms are defined in 10 V.S.A. chapter 151. "Party" for purposes of other proceedings under this chapter, shall have the meaning established under statutes controlling those proceedings.

Sec. 95. 24 V.S.A. § 2791(2) and (6) are amended to read:

(2) "Design ~~control~~ review district" means a district created pursuant to subdivision ~~4407(6)~~ 4414(1)(E) of this title.

(6) "Historic district" means a district created pursuant to subdivision ~~4407(15)~~ 4414(1)(F) of this title.

Sec. 96. 24 V.S.A. § 2793(b) is amended to read:

(b) Within 45 days of receipt of a completed application, the state board shall designate a downtown development district if the state board finds, in its written decision, that the municipality has:

(1) demonstrated a planning commitment through the adoption of a design ~~control~~ review district, an historic district, or through the creation of a development review board authorized to undertake local Act 250 reviews pursuant to section ~~4449~~ 4420 of this title;

* * *

Sec. 97. 24 V.S.A. § 2793b(b) is amended to read:

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

(1) a confirmed planning process under section 4350 of this title, and developed a municipal center plan and regulations to implement the plan, including an official map, and a design ~~control~~ review district created under this title; and

* * *

Sec. 98. EFFECTIVE DATE

This act shall take effect on July 1, 2003, except as otherwise specifically provided in 24 V.S.A. § 4481.

Pending the question, Shall the House not concur in the Senate proposal of amendment and ask for a Committee of Conference? Rep. Deen of Westminster demanded the Yeas and Nays, which demand was sustained by the Constitutional number. The Clerk proceeded to call the roll and the question, Will the House not concur in the Senate proposal of amendment and ask for a Committee of Conference? was decided in the affirmative. Yeas, 85. Nays, 54.

Those who voted in the affirmative are:

Thereupon, the Speaker appointed as members of the Committee of Conference on the part of the House:

Rep. Johnson of Canaan

Rep. Winters of Williamstown

Rep. Nitka of Ludlow

Rules Suspended; Proposal of Amendment Agreed to

and Third Reading Ordered

S. 114

On motion of Rep. Symington of Jericho, the rules were suspended and Senate bill, entitled

An act relating to access to juvenile proceedings;

Appearing on the Calendar for notice, was taken up for immediate consideration.

Rep. Marek of Newfane, for the committee on Judiciary, to which the bill had been referred, reported in favor of its passage in concurrence with proposal of amendment, as follows:

By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. 13 V.S.A. § 5320 is amended to read:

§ 5320. NOTIFICATION OF CONDITIONS OF RELEASE TO VICTIM IN

DELINQUENCY PROCEEDINGS

~~Upon request, the~~ The victim in a delinquency proceeding based on a listed crime shall be notified promptly by the prosecutor’s office when conditions of release are initially ordered or modified by the court, and of the identity of the child when the conditions of release relate to the victim. The victim in a delinquency proceeding based on an act that is not a listed crime shall be notified promptly by the court when conditions of release are initially ordered or modified by the court, and of the identity of the child when the conditions of release relate to the victim.

Sec. 2. 33 V.S.A. § 5502(a)(19) is added to read:

§ 5502. DEFINITIONS AND PROVISIONS OF GENERAL APPLICATION

(a) As used in this chapter, unless the context otherwise requires:

* * *

(19) “Listed crime” means the same as defined in 13 V.S.A. § 5301.

Sec. 3. 33 V.S.A. § 5523 is amended to read:

§ 5523. CONDUCT OF HEARINGS

* * *

(c) Except in hearings to declare a person in contempt of court, the general public shall be excluded from hearings under this chapter and only the parties, their counsel, witnesses, and other persons accompanying a party for his or her assistance and such other persons as the court finds to have a proper interest in the case or in the work of the court, may be admitted by the court. If the court finds that it is to the best interest and welfare of the child, ~~his~~ the child’s presence may be temporarily excluded, except while a charge of ~~his~~ delinquency is being heard at the hearing on the petition.

(d) There shall be no publicity given by any person to any proceedings under the authority of this chapter except with the consent of the child and ~~his~~ the child’s parent or guardian. This subsection shall not prohibit the victim’s exercise of his or her rights under sections 5529a and 5529g of this title, 13 V.S.A. § 5320, and as otherwise provided by law.

Sec. 4. 33 V.S.A. § 5529a is amended to read:

§ 5529a. VICTIM’S STATEMENT AT DISPOSITION PROCEEDING;

VICTIM NOTIFICATION

(a) Upon the filing of a delinquency petition, the court shall notify the victim of his or her rights as provided by law and his or her responsibilities regarding the confidential nature of juvenile proceedings.

(b) The victim of a delinquent act has the right in a disposition proceeding to file with the court a written or recorded statement ~~or oral tape recording of~~ ~~his or her views concerning the delinquent act, disposition~~ of the impact of the delinquent act on the victim and the need for restitution. The victim of a delinquent act involving a listed crime also has the right to be present at the disposition hearing for the sole purpose of presenting to the court the impact of the delinquent act on the victim and the need for restitution. The court shall take those views into consideration in the court’s disposition order. The victim shall not be allowed to be personally present at any portion of the disposition hearing except to present the impact statement unless authorized by the court.

~~(b)~~(c) After an adjudication of delinquency involving an act that is not a listed crime has been made, upon request of the victim, the court may release to the victim the identity of the child if the court finds that release of the child’s identity to the victim is in the interest of justice and furthers the rehabilitation of the child. After an adjudication of delinquency involving an act that is a listed crime has been made, upon request of the victim, the prosecutor’s office shall release to the victim the identity of the child.

(d) ~~The~~ In a delinquency proceeding not involving a listed crime, the court shall inform the victim of the disposition in the case ~~without revealing the identity of the juvenile~~. In a delinquency proceeding involving a listed crime, the prosecutor’s office shall inform the victim of the disposition in the case.

Sec. 5. 33 V.S.A. § 5529g is added to read:

§ 5529g. RIGHTS OF VICTIMS IN DELINQUENCY PROCEEDINGS

INVOLVING A LISTED CRIME

The victim in a delinquency proceeding involving a listed crime shall have the following rights:

(1) To be notified by the prosecutor’s office in a timely manner when a court proceeding is scheduled to take place, and when a court proceeding of which he or she has been notified will not take place as scheduled.

(2) To be notified by the prosecutor’s office as to whether delinquency has been found and disposition has occurred, including any conditions or restitution relevant to the victim.

(3) To present a victim’s impact statement at the disposition hearing in accordance with subsection 5529a(b) of this title and to be notified as to the disposition pursuant to subsection 5529a(d).

(4) To be notified by the agency having custody of the delinquent child before he or she is released from a residential facility. An agency’s inability to give notification shall not preclude the release. However, in such an event, the agency shall take reasonable steps to give notification of the release as soon thereafter as practicable. Notification efforts shall be deemed reasonable if the agency attempts to contact the victim at the address or telephone number provided to the agency in the request for notification.

(5) To obtain the name of the child in accordance with sections 5320 and 5529a of this title.

(6) To be notified by the court of the victim’s rights under this section.

Sec. 6. 13 V.S.A. § 7554 is amended to read:

§ 7554. RELEASE PRIOR TO TRIAL

(a) Any person charged with an offense, other than a person held without bail under section 7553 or 7553a of this title, shall at his or her appearance before a judicial officer be ordered released pending trial in accordance with this section.

* * *

(3) A judicial officer may ~~as a condition of release~~ order that a defendant not harass or cause to be harassed a victim or potential witness. This order shall take effect immediately, regardless of whether the defendant is incarcerated or released.

* * *

Sec. 7. 3 V.S.A. § 163 is amended to read:

§ 163. JUVENILE COURT DIVERSION PROJECT

* * *

(e) The requirements of subdivisions (c)(1), (2), (3), and (4) of this section shall not apply to mandatory conditions imposed by the diversion board, following an adjudication of a civil violation pursuant to section 656 of Title 7. Subdivision (c)(5) of this section shall not restrict the diversion board from notifying the commissioner of motor vehicles that a person has failed to timely complete imposed conditions. The diversion board may disclose all relevant information about a person in an administrative or judicial proceeding related to whether a suspension is proper. After notice to all parties of record, the court shall order the sealing of all court files and records, law enforcement records other than entries in the juvenile court diversion project’s centralized filing system, fingerprints, and photographs applicable to a juvenile court diversion proceeding if:

(1) two years have elapsed since the successful completion of the juvenile court diversion program by the participant and the dismissal of the case by the state’s attorney; and

(2) the participant has not been convicted of a subsequent felony or misdemeanor during the two-year period and no proceedings are pending seeking such conviction.

(f) Upon the entry of an order sealing such files and records under this section, the proceedings in the matter under this section shall be considered never to have occurred, all index references thereto shall be deleted, and the participant, the court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such participant inquiry in any matter. Copies of the order shall be sent to each agency or official named therein.

(g) Inspection of the files and records included in the order may thereafter be permitted by the court only upon petition by the participant who is the subject of such records, and only to those persons named therein.

(h) Subject to the approval of the attorney general, the Vermont association of court diversion programs may develop and administer programs to assist persons under this section charged with delinquent, criminal, and civil offenses.

Sec. 8. 3 V.S.A. § 164 is amended to read:

§ 164. ADULT COURT DIVERSION PROJECT

* * *

(e) ~~On application of a participant in an adult diversion program or on the court’s own motion, and after~~ After notice to all parties of record ~~and hearing~~, the court shall order the sealing of all court files and records, law enforcement records other than entries in the adult court diversion project’s centralized filing system, fingerprints and photographs applicable to the proceeding if ~~it finds~~:

(1) two years have elapsed since the successful completion of the adult diversion program by the participant and the dismissal of the case by the state’s attorney; and

(2) the participant has not been convicted of a subsequent felony or misdemeanor ~~after the initial charge of the participant and prior to the above hearing~~ during the two-year period and no proceedings are pending seeking such conviction~~; and~~

~~(3) rehabilitation of the participant has been attained to the satisfaction of the court~~.

(f) ~~Notice of hearing held under this section shall in any event be given to~~

~~(1) the state’s attorney having jurisdiction;~~

~~(2) the law enforcement officers or department having custody of the files and records; and~~

~~(3) the participant.~~

~~(g)~~ Upon the entry of an order sealing such files and records under this section, the proceedings in the matter under this section shall be considered never to have occurred, all index references thereto shall be deleted, and the participant, the court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such participant inquiry in any matter. Copies of the order shall be sent to each agency or official named therein.

~~(h)~~(g) Inspection of the files and records included in the order may thereafter be permitted by the court only upon petition by the participant who is the subject of such records, and only to those persons named therein.

(i) The requirements of subdivisions (c)(1), (2), (3), and (4) of this section shall not apply to mandatory conditions imposed by the diversion board following an adjudication of a civil violation pursuant to section 656 of Title 7. Subdivision (c)(5) of this section shall not restrict the diversion board from notifying the commissioner of motor vehicles that a person has failed to timely complete imposed conditions. The diversion board may disclose all relevant information about a person in an administrative or judicial proceeding related to whether a suspension is proper.

~~(j)~~(h) Subject to the approval of the attorney general, the Vermont association of court diversion programs may develop and administer programs to assist persons under this section charged with delinquent, criminal and civil offenses.

Thereupon the bill was read the second time and the recommendation of proposal of amendment agreed to and third reading ordered.

Favorable Reports;

Bill Read Second Time and Third Reading Ordered

S. 149

On motion of Rep. Symington of Jericho, the rules were suspended and Senate bill, entitled

An act relating to educational assistance for National Guard members;

Appearing on the Calendar for notice, was taken up for immediate consideration.

Rep. Endres of Milton, for the committee on Education, to which the bill had been referred recommended that the bill ought to pass in concurrence.

Rep. Livingston of Manchester, for the committee on Appropriations, recommended that the bill ought to pass in concurrence.

Thereupon, the bill was read the second time and third reading ordered.

Rules Suspended; Senate Proposal of Amendment Not Concurred in;

Committee of Conference Requested and Appointed

H. 19

On motion of Rep. Symington of Jericho, the rules were suspended and House bill, entitled

An act relating to attempting to elude an enforcement officer while operating a motor vehicle;

Appearing on the Calendar for notice, was taken up for immediate consideration.

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

Sec. 1. 23 V.S.A. § 1133 is amended to read:

§ 1133. ATTEMPTING TO ELUDE A POLICE OFFICER

(a) An No operator of a motor vehicle ~~who fails~~ shall fail to bring his or her vehicle to a stop when signaled to do so by an enforcement officer:

(1) ~~wearing~~ displaying insignia identifying him or her as such,; or

(2) operating a law enforcement vehicle sounding a siren and displaying a flashing blue or blue and white signal lamp~~, shall be imprisoned for not more than six months or fined not more than $500.00, or both~~.

(b)(1) A person who violates subsection (a) of this section shall be imprisoned for not more than six months or fined not more than $1,000.00, or both.

(2) In the event that serious bodily injury to any person other than the operator is proximately caused by the operator’s knowing violation of subsection (a) of this section, the operator shall be imprisoned for not more than five years or fined not more than $3,000.00, or both.

(c) In a prosecution under this section, the operator may raise as an affirmative defense, to be proven by a preponderance of the evidence, that the operator brought his or her vehicle to a stop in a manner, time, and distance that was reasonable under the circumstances.

(d) 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.

(e) As used in this section:

(1) “Operator” includes an operator who, after being signaled to stop under subsection (a) of this section, leaves the vehicle and attempts to elude the officer by other means.

(2) “Serious bodily injury” has the meaning defined in 13 V.S.A. § 1021.

Pending the question, Will the House concur in the Senate proposal of amendment? Rep. Grad of Moretown moved that the House refuse to concur and ask for a Committee of Conference, which was agreed to, and the Speaker appointed as members of the Committee of Conference on the part of the House:

Rep. Grad of Moretown

Rep. Flory of Pittsford

Rep. Gervais of Enosburg

Rules Suspended; Senate Proposal of Amendment Not Concurred in;

Committee of Conference Requested and Appointed

H. 128

On motion of Rep. Symington of Jericho, the rules were suspended and House bill, entitled

An act relating to hospital and health care system accountability, capital spending and annual budget;

Appearing on the Calendar for notice, was taken up for immediate consideration.

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

Sec. 1. PURPOSE

The purpose of this act is to:

(1) strengthen the health planning process and to reflect concerns about health care access, quality, and costs;

(2) develop tools and resources to assist consumers and payers with making health care decisions by providing accessible, useful information comparing hospital costs and performance;

(3) require consistent and open dialogue between hospitals and their communities regarding health service needs, strategic planning, and health policy;

(4) increase opportunities for public involvement in health policy planning;

(5) develop a health resource allocation plan that can guide health facility planning, capital expenditures, and budget reviews; and

(6) create an efficient and effective regulatory system that is fair, predictable, enforceable, and capable of achieving Vermont’s health care cost containment and other health care policy goals.

* * * General Provisions * * *

Sec. 2. 18 V.S.A. § 9402 is amended to read:

§ 9402. DEFINITIONS

As used in this chapter, unless otherwise indicated:

(1) “Commissioner” means the commissioner of the department of banking, insurance, securities, and health care administration, or the commissioner’s designee.

(2) “Community needs assessment” means a process by which a hospital identifies and prioritizes the health care needs of the service area or patient population for which a hospital provides services, as required by subsection 9504(c) of this title.

(3) “Community report” means the hospital report prepared under section 9405a of this title.

~~(2)~~(4) “Department” means the department of banking, insurance, securities, and health care administration.

~~(3)~~(5) “Division” means the division of health care administration.

~~(4)~~(6) “Expenditure analysis” means the expenditure analysis developed pursuant to section 9406 of this title.

~~(5)~~(7) “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, and the buildings in which those services are offered. 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)~~ subdivision 9432(7) of this title, except health maintenance organizations.

~~(6)~~(8) “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.

~~(7)~~(9) “Health insurer” means any health insurance company, nonprofit hospital and medical service corporation, managed care organizations, and, to the extent permitted under federal law, any administrator of an insured, self‑insured, or publicly funded health care benefit plan offered by public and private entities.

~~(8) “Health resource management plan” means the plan for distribution of the health care resources in~~ ~~Vermont~~ ~~adopted~~ ~~March 15, 1996~~.

~~(9)~~(10) “Health maintenance organization” means any person certified to operate a health maintenance organization by the commissioner pursuant to chapter 139 of Title 8.

(11) “Health resource allocation plan” means the plan developed by the commissioner and adopted by the governor under section 9405 of this title.

(12) “Hospital” means an acute care hospital licensed under chapter 43 of this title and falling within one of the following four distinct categories, as defined by the commissioner by rule:

(A) Category A1: tertiary teaching hospitals.

(B) Category A2: regional medical centers.

(D) Category A4: critical access hospitals.

~~(10)~~(13) “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.

~~(11)~~(14) “Public oversight commission” means the commission established in section 9407 of this title.

~~(12) “Resident” means a person who is domiciled in~~ ~~Vermont~~ ~~as evidenced by an intent to maintain a principal dwelling place in~~ ~~Vermont~~ ~~indefinitely and to return to~~ ~~Vermont~~ ~~if temporarily absent, coupled with an act or acts consistent with that intent.~~

~~(13)~~(15) “Unified health care budget” means the budget established in accordance with section 9406 of this title.

~~(14)~~(16) “State health plan” means the plan developed under section 9405 of this title.

~~(15) “Technical panel” means the panel established in section 9407 of this title.~~

Sec. 3. 18 V.S.A. § 9405 is amended to read:

§ 9405. STATE HEALTH PLAN; HEALTH RESOURCE ~~MANAGEMENT~~ ALLOCATION PLAN~~; STATE HEALTH PLAN~~

(a) No later than ~~March 15, 1999~~ January 1, 2005, the secretary of human services, in consultation with the commissioner and health care professionals and after receipt of public comment, shall adopt a state health plan that sets forth the health goals and values for the state~~, after receipt of public comment~~. The secretary may amend the plan as the secretary deems necessary and appropriate. The plan shall include health promotion, health protection, nutrition, and disease prevention priorities for the state, identify available human resources as well as human resources needed for achieving the state’s health goals and the planning required to meet those needs, and identify geographic parts of the state needing investments of additional resources in order to improve the health of the population in sufficient detail to guide development of the state health resource allocation plan. Copies of the plan shall be submitted to members of the senate and house committees on health and welfare no later than January 15, 2005.

(b) ~~In order to attain the goals of the state plan, no later than~~ ~~March 15, 1999~~, and annually on January 1 thereafter, the secretary shall adopt a state health action plan that outlines the priorities and concerns for that year. The action plan shall consider the changing realities of the health care distribution system and the needs and values of the state. The secretary may consult other health care plans created by the state or any of its subdivisions or any persons that create or compile health care information to the extent the secretary determines such consultations are useful in formulating the state health action plan. On January 1, 2000, and annually thereafter, the secretary shall report to the general assembly on the success in meeting the goals of the annual state health action plan and the state health plan On or before July 1, 2005, the commissioner, in consultation with the secretary of human services, shall submit to the governor a four-year health resource allocation plan. The plan shall identify Vermont needs in health care services, programs, and facilities; the resources available to meet those needs; and the priorities for addressing those needs on a statewide basis.

(1) The plan shall include:

(A) A statement of principles reflecting the policies enumerated in sections 9401 and 9431 of this chapter to be used in allocating resources and in establishing priorities for health services.

(B) Identification of the current supply and distribution of hospital, nursing home, and other inpatient services; home health and mental health services; treatment and prevention services for alcohol and other drug abuse; emergency care; ambulatory care services, including primary care resources, federally qualified health centers, and free clinics; major medical equipment; and health screening and early intervention services.

(C) Consistent with the principles set forth in subdivision (A) of this subdivision (1), guidelines for the appropriate supply and distribution of resources, programs, and services identified in subdivision (B) of this subdivision (1), options for implementing such guidelines and mechanisms which will encourage the appropriate integration of these services on a local or regional basis. To arrive at such guidelines, the commissioner shall consider at least the following factors: the values and goals reflected in the state health plan; the needs of the population on a statewide basis; the needs of particular geographic areas of the state, as identified in the state health plan; the needs of uninsured and underinsured populations; the use of Vermont facilities by out‑of‑state residents; the use of out‑of‑state facilities by Vermont residents; the needs of populations with special health care needs; the desirability of providing high quality services in an economical and efficient manner, including the appropriate use of midlevel practitioners; the cost impact of these resource requirements on health care expenditures; the services appropriate for the four categories of hospitals described in subdivision 9402(12) of this title; the overall quality and use of health care services as reported by the Vermont program for quality in health care and the Vermont ethics network; the overall quality and cost of services as reported in the annual hospital community reports; information from the hospital community needs assessments; individual hospital four-year capital budget projections; the unified health care budget; and the four-year projection of health care expenditures prepared by the division.

(2) In the preparation of the plan, the commissioner shall assemble an advisory committee of no fewer than nine nor more than 13 members who shall reflect a broad distribution of diverse perspectives on the health care system, including health care professionals, payers, third-party payers, consumer representatives, and up to three members of the public oversight commission. The advisory committee shall review drafts and provide recommendations to the commissioner during the development of the plan. Upon adoption of the plan, the advisory committee shall be dissolved.

(3) The commissioner, with the advisory committee, shall conduct at least five public hearings, in different regions of the state, on the plan as proposed and shall give interested persons an opportunity to submit their views orally and in writing. To the extent possible, the commissioner shall arrange for hearings to be broadcast on interactive television. Not less than 30 days prior to any such hearing, the commissioner shall publish in the manner prescribed in section 174 of Title 1 the time and place of the hearing and the place and period during which to direct written comments to the commissioner. In addition, the commissioner may create and maintain a website to allow members of the public to submit comments electronically and review comments submitted by others.

(4) The commissioner shall develop a mechanism for receiving ongoing public comment regarding the plan and for revising it biannually, as needed, in consultation with the public oversight commission.

(5) The commissioner shall seek grants to assist with the preparation of the health resource allocation plan and, in consultation with appropriate health care organizations and state entities, shall inventory and assess existing state health care data and expertise. Based on this assessment and no later than January 15, 2004, the commissioner shall submit a report to the general assembly stating his or her recommendations regarding the professional assistance, budget, staff, and process needed to integrate available health care data and expertise into the health resource allocation plan.

(6) The commissioner may retain such professional staff or other staff as needed to assist in his or her responsibilities under this section. The reasonable expenses of such staff shall be funded to the maximum extent possible with grant money. Any additional amounts needed, not to exceed $300,000.00, shall be assessed and collected from hospitals licensed under chapter 43 of this title, proportionate to their annual operating budgets. The commissioner’s assessment authority under this subdivision shall begin on July 1, 2003 and shall expire on July 1, 2005.

(7) The plan or any revised plan proposed by the commissioner shall be the health resource allocation plan for the state after it is approved by the governor or upon passage of three months from the date the governor receives the plan, whichever occurs first, unless the governor disapproves the plan, in whole or in part. If the governor disapproves, he or she shall specify the sections of the plan which are objectionable and the changes necessary to meet the objections. The sections of the plan not disapproved shall become part of the health resource allocation plan. Upon its adoption, the plan shall be submitted to the appropriate legislative committees.

~~(c) Prior to adoption of a state health plan, the health resource management plan shall continue in effect until~~ ~~March 14, 1999~~.

Sec. 4. 18 V.S.A. § 9405a is added to read:

§ 9405a. COMMUNITY NEEDS ASSESSMENT AND STRATEGIC PLANNING

On or before January 1, 2005, each hospital shall conduct a four-year community needs assessment. The assessment shall identify and prioritize the health care needs of the service area or patient population for which a hospital provides services, and engage the public in the hospital’s strategic planning process. It shall be accomplished in collaboration with community members, including other health care professionals in the community, local government officials, community organizations, and local businesses. The process for assessing the community’s health care needs shall include at least one public meeting held solely for soliciting public comment, notice for which shall be provided pursuant to section 174 of Title 1. The needs assessment shall be prepared in a uniform format approved by the commissioner and shall be summarized in the hospital’s community report. In addition, each hospital shall develop a mechanism for receiving ongoing public comment regarding the community needs assessment and for revising it biannually, as needed.

Sec. 5. 18 V.S.A. § 9405b is added to read:

§ 9405b. HOSPITAL COMMUNITY REPORTS

(a) The commissioner, in consultation with representatives from the public oversight commission, hospitals, and other groups of health care professionals shall adopt rules establishing a standard format for community reports, as well as the contents, which shall include:

(1) measures of quality, including process and outcome measures, that are valid, reliable and useful, including comparisons to appropriate national benchmarks for high quality and successful outcomes;

(2) measures of patient safety that are valid, reliable, and useful, including comparisons to appropriate industry benchmarks for safety;

(3) measures of the hospital’s financial health, including comparisons to appropriate national benchmarks for efficient operation and fiscal health;

(4) a summary of the hospital’s budget, including revenue by source and quantification of cost shifting to private payers;

(5) measures that provide valid, reliable, useful, and efficient information for payers and the public for the comparison of charges for higher volume health care services;

(6) a plan for achieving openness for the purpose of ensuring transparency and inclusiveness in its formal information and strategic

decision-making affairs so that employees and other interested persons may have knowledge of and access to related management processes and outcomes. The plan shall include a consumer complaint resolution process and shall identify the hospital officer or employee responsible for its implementation;

(7) information concerning recently completed or ongoing quality improvement and patient safety projects;

(8) a summary of the community needs assessment, including a description of strategic initiatives discussed with or derived from the assessment; the one-year and four-year capital expenditure plans; and the depreciation schedule for existing facilities; and

(9) information on membership and governing body qualifications, a listing of the current governing body members, and a schedule of meetings of the hospital’s governing body, including times scheduled for public participation.

(b) On or before January 1, 2005, and annually thereafter, the board of directors or other governing body of each hospital licensed under chapter 43 of this title shall publish its community report in a uniform format approved by the commissioner, and in accordance with the standards and procedures adopted by rule under this section, and shall hold one or more public hearings to permit community members to comment on the report. Notice of meetings shall be by publication, consistent with section 174 of Title 1. Hospitals located outside this state which serve a significant number of Vermont residents, as determined by the commissioner, shall be invited to participate in the community report process established by this subsection.

(c) The community reports shall be provided to the public oversight commission and the commissioner. The commissioner shall publish the reports on a public website and shall develop and include a format for comparisons of hospitals within the same categories of quality and financial indicators.

Sec. 6. 18 V.S.A. § 9406 is amended to read:

§ 9406. EXPENDITURE ANALYSIS; UNIFIED HEALTH CARE BUDGET

(a) ~~Beginning July 1, 1994, and annually thereafter~~ Annually, the commissioner shall ~~adopt~~ develop a unified health care budget and develop an expenditure analysis to promote the policies set forth in section 9401 of this title.

(1) The budget shall:

(A) Serve as the basic framework within which health care costs are controlled, resources directed, and quality and access assured.

(B) Identify the total amount of money that has been and is projected to be expended annually for all health care services provided by health care facilities and providers in Vermont, and for all health care services provided to residents of this state.

(C) ~~Be consistent with the~~ ~~health resource management plan or~~ Identify any inconsistencies with the state health plan~~, whichever applies~~ and the health resource allocation plan.

(D) ~~When preparing the budget, the commissioner shall consider~~ Analyze health care costs and the impact of the budget on those who receive, provide, and pay for health care services.

~~(3)~~(2) ~~Based on the advice and recommendations of the technical panel, the~~ The commissioner shall adopt, by rule, the various sectors of the health care system to be separately identified in the budget, the methods and processes to be used to allocate resources among such sectors, the economic indicators to be used to define the parameters of the rate of growth in the cost of the system and various sectors of the system, and processes and criteria for responding to exceptional and unforeseen circumstances which affect the system and the budget.

~~(4)~~(3) The commissioner shall enter into discussions with health care facilities and with health care provider bargaining groups created under section 9409 of this title concerning matters related to the unified health care budget.

(b)(1) Annually the division ~~of health care administration~~ shall prepare a three‑year projection of health care expenditures made on behalf of Vermont residents, based on the format of the health care budget and expenditure analysis adopted by the commissioner under this section, projecting expenditures in broad sectors such as hospital, physician, home health, or pharmacy. The projection shall include estimates for:

(A) ~~Expenditures~~ expenditures for the health plans of any hospital and medical service corporation, health maintenance organizations, Medicaid program, or other health plan regulated by this state which covers more than five percent of the state population.; and

(B) ~~Expenditures~~ expenditures for Medicare, all self-insured employers, and all other health insurance.

(2) Each health plan payer identified under subdivision (1)(A) of this subsection may comment on the division’s proposed projections, including comments concerning whether the plan agrees with the proposed projection, alternative projections developed by the plan, and a description of what mechanisms, if any, the plan has identified to reduce its health care expenditures. Comments may also include a comparison of the plan’s actual expenditures with the applicable projections for the prior year, and an evaluation of the efficacy of any cost containment efforts the plan has made.

(3) The division’s projections prepared under this subsection shall be used as a tool in the evaluation of health insurance rate and trend filings with the department~~. The division’s projections~~ and shall be made available ~~to the public oversight commission~~ in connection with the hospital budget review process under subchapter 7 of this chapter, the certificate of need process under subchapter 5 of this chapter, and the development of the health resource allocation plan.

(4) The division shall prepare a report of the final projections made under this subsection, and file the report with the general assembly on or before ~~January 1, 1999, and annually thereafter on~~ January 1 of each year.

Sec. 7. 18 V.S.A. § 9407 is amended to read:

§ 9407. PUBLIC OVERSIGHT COMMISSION; ~~TECHNICAL PANEL~~ DUTIES

(a) With the advice and consent of the senate, the governor shall appoint a public oversight commission ~~to be composed~~ of 13 members who shall reflect in the broadest sense the various health care needs and the demographic and geographic diversity of the state of Vermont. ~~Nine members shall be sitting members, and four members shall be designated alternates to be assigned to create a quorum or to replace any sitting member who has a conflict of interest.~~ The governor shall appoint a chair. Members of the commission shall be appointed for staggered terms of three years and shall serve no more than two consecutive terms. ~~The commission shall review hospital budgets and certificate of need applications and make recommendations thereon to the commissioner.~~

(b) The commissioner shall appoint a technical panel to be composed of nine members and shall designate a chair. The panel shall include experts in medicine, law, business, hospital administration, economics and consumer health care issues. The technical panel shall advise the public oversight commission and the commissioner on technical matters arising under this chapter relating to the unified health care budget, resource allocation, utilization review recommendations, hospital budgets, quality assurance, the state health plan, and make recommendations regarding amendments to the health resource management plan and any other matter the commissioner may deem appropriate. The commissioner may impanel additional members as needed to advise on specific technical issues, who shall not serve as permanent members.

The public oversight commission shall:

(1) review certificate of need applications and make recommendations to the commissioner;

(2) review hospital one-year capital expenditure plans and four-year capital expenditure projections and engage in dialogue with hospitals regarding the health resource allocation plan and the health policy needs of the state;

(3) consult with the commissioner on developing and updating hospital quality and financial measures; and

(4) consult with the commissioner in the periodic updating and revision of the health resource allocation plan.

(c) Members of the public oversight commission ~~and members of the technical panel~~ shall be compensated as provided in 32 V.S.A. § 1010(b) and (c).

(d) The public oversight commission shall rely on the department for administrative support.

* * * Health Facility Planning * * *

Sec. 8. 18 V.S.A. § 9431 is amended to read:

§ 9431. POLICY AND PURPOSE

(a) It is declared to be the public policy of this state that the general welfare and protection of the lives, health and property of the people of this state require that all new ~~institutional health services~~ health care projects be offered or developed in a manner which avoids unnecessary duplication, and contains or reduces increases in the cost of delivering services, while at the same time ~~maintain~~ maintaining and ~~improve~~ improving the quality of and access to health care services, and ~~promotes~~ promoting rational allocation of health care resources in the state; and that the need, cost, type, level, quality, and feasibility of providing any new ~~institutional health services~~ health care project be subject to review and assessment prior to any offering or development.

(b) In order to carry out the policy goals of this subchapter, the department shall develop certificate of need guidelines to assist in its decision-making. The certificate of need guidelines shall be consistent with the state health plan and the health resource allocation plan, upon its adoption.

Sec. 9. 18 V.S.A. § 9432 is amended to read:

§ 9432. DEFINITIONS

As used in this subchapter:

(1) “Ambulatory surgical center” means a facility or portion of a facility that provides surgical care not requiring an overnight stay. The office of a dentist in which activities are limited to dentistry and oral or maxillofacial surgical procedures shall not be deemed an ambulatory surgical center for purposes of this subchapter. In order to be considered an ambulatory surgical center, a facility shall meet all the following criteria:

(A) Charge, or intend to charge, a facility fee in addition to professional fees for the services performed.

(B) Have an operating room or recovery room in the facility.

(D) Provide one or more outpatient services for which Medicare coverage is provided.

(2) “Applicant” means a person who has submitted an application or proposal requesting issuance of a certificate of need.

(3) “Bed capacity” means the number of licensed beds operated by the facility under its most current license under chapter 43 of this title and of facilities under chapter 71 of Title 33.

(4) “Capital expenditure” means an expenditure for the plant or equipment which~~, under generally accepted accounting principles,~~ is not properly chargeable as an expense of operation and maintenance and includes acquisition by purchase, donation or, leasehold expenditure, or operating lease calculated over the length of the lease for plant or equipment, and includes assets having an expected life of at least three years. A capital expenditure includes the cost of studies, surveys, designs, plans, working drawings, specifications and other activities essential to the acquisition, improvement, expansion or replacement of the plant and equipment.

(5) “Construction” ~~includes~~ means actual commencement of any construction or fabrication of any new building, or addition to any existing facility, or any expenditure ~~of more than $750,000.00~~ relating to the alteration, remodeling, renovation, modernization, improvement, relocation, repair, or replacement of a health care facility, including expenditures necessary for compliance with life and health safety codes.

(6) “To develop,” when used in connection with health services, means to undertake activities which on their completion will result in the offer of a new ~~institutional health service~~ health care project, or the incurring of a financial obligation in relation to the offering of a service.

(7) “Health care facility” means all ~~facilities and~~ institutions, including mobile facilities, whether public or private, proprietary or not for profit, which offer diagnosis, treatment, inpatient or ambulatory care to two or more unrelated persons, and the buildings in which those services are offered. The term shall not apply to any ~~facility~~ institution operated by religious groups relying solely on spiritual means through prayer for healing, but shall include but is not limited to:

(A) hospitals, including general hospitals, mental hospitals, chronic disease facilities, birthing centers, maternity hospitals and psychiatric facilities including any hospital conducted, maintained or operated by the state of Vermont, or its subdivisions, or a duly authorized agency thereof~~, and health related therapeutic community residences~~;

(B) nursing homes, ~~intermediate care facilities for the mentally retarded, homes for the terminally ill~~ health maintenance organizations, home health agencies, outpatient diagnostic or therapy programs, kidney disease treatment centers, mental health agencies or centers, diagnostic imaging facilities, independent diagnostic laboratories, cardiac catheterization laboratories, radiation therapy facilities or any inpatient or ambulatory surgical, diagnostic or treatment center.

(8) “Health care provider” means a person, partnership, corporation, 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.

(9) “Health services” mean activities and functions of a health care facility that are directly related to care, treatment, or diagnosis of patients.

(10) “Home for the terminally ill” means a place providing services specifically for three or more dying people, including room, board, personal care and other assistance for the residents’ emotional, spiritual and physical well-being.

~~(11)~~ “Obligation” means an obligation for a capital expenditure which is deemed to have been incurred by or on behalf of a health care facility or health maintenance organization.

~~(12)~~(11) “To offer,” when used in connection with health services, means that a health care provider holds itself out as capable of providing, or as having the means for the provision of, specified health services.

~~(13)~~(12) “Annual operating expense” means that expense which, by generally accepted accounting principles, is incurred by a new health care service during the first fiscal year in which the service is in full operation after completion of the project.

~~(14) “Cardiac catheterization laboratory” means a facility, or portion of a facility, in which cardiac catheterization procedures, whether diagnostic or therapeutic, are conducted.~~

Sec. 10. 18 V.S.A. § 9434 is amended to read:

§ 9434. CERTIFICATE OF NEED; GENERAL RULES

(a) No A nonhospital health care facility shall not develop, or have developed on its behalf a new ~~institutional health service shall be offered or developed within this state by any person,~~ health care project without ~~a determination of need and~~ issuance of a certificate of need by the commissioner~~, as provided in this subchapter~~. ~~“New institutional health service”~~ For purposes of this subsection, a “new health care project” includes the following:

(1) ~~the~~ The construction, development, purchase, renovation, or other establishment of a ~~new~~ health care facility ~~except for the purchase or lease of an existing health care facility other than the purchase of a hospital~~, or any capital expenditure by or on behalf of a health care facility, for which the capital cost exceeds $1,500,000.00.

(2) any expenditure by or on behalf of a hospital in excess of $1,500,000.00 or any expenditure by or on behalf of any other health care facility in excess of $750,000.00, which, under generally accepted accounting principles, consistently applied, is a capital expenditure;

(3) acquisition by purchase, or by lease or other comparable arrangement, by or on behalf of a health care provider of a single piece of diagnostic or therapeutic equipment for which the cost, or in the case of a donation the value, is in excess of $500,000.00. For purposes of this subdivision, the purchase or lease of one or more articles of diagnostic or therapeutic equipment which are necessarily interdependent in the performance of their ordinary functions or which would constitute any health care facility included under section 9432(10)(B) of this title, as determined by the commissioner, shall be considered together in calculating the amount of an expenditure. The commissioner’s determination of functional interdependence of items of equipment under this subdivision shall have the effect of a final decision and is subject to appeal under this subchapter.

~~(4) a~~ A change from one licensing period to the next in the number of licensed beds of a health care facility through ~~the~~ addition or conversion, or through ~~the~~ relocation from one physical facility or site to another;.

~~(5)~~(3) the offering of health services in or through a health care facility which were not offered on a regular basis in or through such health care facility within the twelve-month period prior to the time such services would be offered if such services have an annual operating expense in excess of $300,000.00 or the The offering of any home health service;.

~~(6) the purchase of an existing hospital;~~

~~(7) the offering of any cardiac catheterization laboratory service~~

(4) The purchase, lease, or other comparable arrangement of a single piece of durable medical equipment for which the cost, or in the case of a donation the value, is in excess of $1,000,000.00. For purposes of this subdivision, the purchase or lease of one or more articles of diagnostic or therapeutic equipment which are necessarily interdependent in the performance of their ordinary functions or which would constitute any health care facility included under subdivision 9432(7)(B) of this title, as determined by the commissioner, shall be considered together in calculating the amount of an expenditure. The commissioner’s determination of functional interdependence of items of equipment under this subdivision shall have the effect of a final decision and is subject to appeal under this subchapter.

(5) The offering of a health care service or technology having an annual operating expense which exceeds $500,000.00 for the next budgeted fiscal year, if the service or technology was not offered or employed by the health care facility within the previous three fiscal years.

(b) A nonhospital health care facility that proposes to develop a project described in subdivision (1) or (4) of subsection (a) of this section which is exempt from the requirements of this subchapter solely because the cost or value of the proposed project does not exceed the financial thresholds of those subdivisions shall file a letter of intent with the commissioner, if the cost or value is greater than $750,000.00. Upon review, the commissioner may require the health care facility to obtain a certificate of need if, within 30 days of receiving the letter of intent, he or she finds that the proposed development is inconsistent with the health resource allocation plan, upon its adoption, and:

(1) has the potential for significantly increasing utilization or rates; or

(2) substantially changes the type, scope, or volume of service.

(c) A hospital shall not develop, or have developed on its behalf a new health care project without issuance of a certificate of need by the commissioner. For purposes of this subsection, a “new health care project” includes the following:

(1) The construction, development, purchase, renovation or other establishment of a health care facility, or any capital expenditure by or on behalf of a hospital, for which the capital cost exceeds $3,000,000.00.

(2) The purchase, lease, or other comparable arrangement of a single piece of durable medical equipment for which the cost, or in the case of a donation the value, is in excess of $1,000,000.00. For purposes of this subdivision, the purchase or lease of one or more articles of diagnostic or therapeutic equipment which are necessarily interdependent in the performance of their ordinary functions or which would constitute any health care facility included under subdivision 9432(7)(B) of this title, as determined by the commissioner, shall be considered together in calculating the amount of an expenditure. The commissioner’s determination of functional interdependence of items of equipment under this subdivision shall have the effect of a final decision and is subject to appeal under this subchapter.

(3) The offering of a health care service or technology having an annual operating expense which exceeds $500,000.00 for the next budgeted fiscal year, if the service or technology was not offered or employed by the hospital within the previous three fiscal years.

(4) A change from one licensing period to the next in the number of licensed beds of a health care facility through addition or conversion, or through relocation from one physical facility or site to another.

(d) A hospital that proposes to develop a project described in subdivision (c)(1) of this section which is exempt from the requirements of this subchapter solely because the cost or value of the proposed project does not exceed the financial thresholds of those subdivisions shall file a letter of intent with the commissioner, if the cost or value is greater than $1,500,000.00. Upon review, the commissioner may require the health care facility to obtain a certificate of need if, within 30 days of receiving the letter of intent, he or she finds that the proposed development is inconsistent with the health resource allocation plan, upon its adoption, and:

(1) has the potential for significantly increasing utilization or rates;

(2) substantially changes the type, scope, or volume of service; or

(3) has the potential to place an undue financial burden on the hospital’s resources.

(e) In the case of a project which requires a certificate of need under this section, expenditures for which are anticipated to be in excess of $20,000,000.00, the applicant first shall secure a conceptual development phase certificate of need, in accordance with the standards and procedures established in this subchapter, which permits the applicant to make expenditures for architectural services, engineering design services, and any other planning services needed in connection with the project. Upon completion of the conceptual development phase of the project, and before offering or further developing the project, the applicant shall secure a final certificate of need, in accordance with the standards and procedures established in this subchapter. Applicants shall not be subject to sanctions for failure to comply with the provisions of this subsection if such failure is solely the result of good faith reliance on verified project cost estimates issued by qualified persons, which cost estimates would have lead a reasonable person to conclude the project was not anticipated to be in excess of $20,000,000.00 and therefore not subject to this subsection.

(f) If the commissioner determines that a person required to obtain a certificate of need under this subchapter has separated a single project into components in order to avoid cost thresholds or other requirements under this subchapter, the person shall be required to submit an application for a certificate of need for the entire project, and the commissioner may proceed under section 9445 of this title. The commissioner’s determination under this subsection shall have the effect of a final decision and is subject to appeal under this subchapter.

(g) Beginning January 1, 2005, and biannually thereafter, the commissioner may by rule adjust the monetary jurisdictional thresholds contained in this section. In doing so, the commissioner shall reflect the same categories of health care facilities, services, and programs recognized in this section. Any adjustment by the commissioner shall not exceed the consumer price index rate of inflation.

Sec. 11. 18 V.S.A. § 9435 is amended to read:

§ 9435. EXCLUSIONS

(a) Excluded from this subchapter are offices of physicians, dentists, or other practitioners of the healing arts, meaning the physical places which are occupied by such providers on a regular basis in which such providers perform the range of diagnostic and treatment services usually performed by such providers on an outpatient basis.

~~(b) The provisions of subsection (a) of this section shall not apply to the purchase of diagnostic or therapeutic equipment which would be~~ unless they are subject to review under subdivision ~~(a)(3) of section 9434~~ 9434(a)(4) of this title. Also excluded from this subchapter are community mental health centers supervised by the commissioner of developmental and mental health services under chapter 177 of this title, provided the commissioner of developmental and mental health services makes a written approval of the proposed health care project. The community mental health center shall submit a copy of the approval with a letter of intent to the commissioner.

~~(c)~~(b) The provisions of subsection (a) of this section shall not apply to offices owned or operated by a hospital or its subsidiary, parent, or holding company, outpatient diagnostic or therapy programs, kidney disease treatment centers, ~~mental health agencies or centers,~~ independent diagnostic laboratories, cardiac catheterization laboratories, radiation therapy facilities, ambulatory surgical centers, and diagnostic imaging facilities and similar facilities owned or operated by a physician, dentist, or other practitioner of the healing arts.

Sec. 12. REPEAL

Section 9436 of Title 18 (general criteria for granting a certificate of need) is repealed.

Sec. 13. 18 V.S.A. § 9437 is amended to read:

§ 9437. ~~REQUIRED FINDINGS~~ CRITERIA

In addition to the provisions of section 9436 of this title, with regard to any proposed new institutional health service for the provision of health services, the commissioner shall not grant a certificate of need, or otherwise find that such proposed new institutional health services are needed, unless the commissioner finds that:

~~(1) superior alternatives to such services, in terms of cost, efficiency, and appropriateness, do not exist, and the development of such alternatives is not practicable;~~

(2) in the case of new construction, alternatives to new construction, such as modernization or sharing arrangements, have been considered and have been implemented to the maximum extent practicable;

(3) in the absence of the proposed new service, patients would experience serious problems in terms of costs, availability, or, or such other difficulties as may be identified by the commissioner, in obtaining care of the type proposed;

(4) in the case of a proposal for the addition of beds for the provision of skilled nursing or intermediate care, the number of beds to be approved is not inconsistent with the considerations identified under section 9439(e) of this title; and

(5) The proposed new institutional health service is consistent with the certificate of need guidelines published by the department in accordance with its rules, and is within the portion of the unified health care budget, applicable to the proposed health care facility.

In making a determination as to whether a certificate of need should be issued, the commissioner and the commission shall determine that:

(1) the application is consistent with the certificate of need guidelines and the health resource allocation plan;

(2) the cost of the project is reasonable, because:

(A) the applicant’s financial condition will sustain any financial burden likely to result from completion of the project;

(B) the project will not result in an undue increase in the costs of medical care; and

(3) there is an identifiable, existing, or reasonably anticipated need for the proposed project which is appropriate for the applicant to provide;

(4) the project will improve the quality of health care in the state or provide greater access to health care for Vermont’s residents, or both;

(5) the project will not have an undue adverse impact on any other existing services provided by the applicant; and

(6) the project will serve the public good.

Sec. 14. 18 V.S.A. § 9439(f) is added to read:

(f) The commissioner shall establish, by rule, annual cycles for the review of applications for certificates under this subchapter, in addition to the review cycles for skilled nursing and intermediate care beds established under subsections (d) and (e) of this section. A review cycle may include in the same group some or all of the types of projects subject to certificate of need review. Such rules may exempt emergency applications, pursuant to subsection 9440(d) of this title.

Sec. 15. 18 V.S.A. § 9440 is amended to read:

§ 9440. PROCEDURES

(a)(1) The application shall be in such form and contain such information as the commissioner establishes. In addition, the commissioner may require of an applicant any or all of the following information that the commissioner deems necessary:

~~(1)~~(A) institutional utilization data, including an explanation of the unique character of services and a description of case mix;

~~(2)~~(B) a population based description of the institution’s service area;

~~(3)~~(C) the applicant’s financial statements;

~~(4)~~(D) third party reimbursement data;

~~(5)~~(E) copies of feasibility studies, surveys, designs, plans, working drawings, or specifications developed in relation to the proposed project;

~~(6)~~(F) annual reports and ~~three-year long-range~~ four-year long range plans; ~~and~~

(G) leases, contracts, or agreements of any kind that might affect quality of care or the nature of services provided;

(H) the status of all certificates issued to the applicant under this subchapter during the three years preceding the date of the application. As a condition to deeming an application complete under this section, the commissioner may require that an applicant meet with the commissioner to discuss the resolution of the applicant’s compliance with those prior certificates; and

~~(7)~~(I) additional information as needed by the commissioner.

(2) In addition to the information required for submission, an applicant may submit, and the commissioner shall consider, any other information relevant to the application or the review criteria.

(b) The application process shall be as follows:

(1) Applications shall be accepted only at such times as the commissioner shall establish by rule.

~~(1)~~(2) Prior to filing an application for a certificate of need, an applicant shall file a letter of intent with the commissioner no less than 30 days or, in the case of review cycle applications under section 9439 of this title, no less than 45 days prior to the date on which the application is to be filed. The letter of intent shall form the basis for determining the applicability of this subchapter to the proposed expenditure or action. A letter of intent shall become invalid if an application is not filed within six months of the date that the letter of intent is received or, in the case of review cycle applications under section 9439 of this title, within such time limits as the commissioner shall establish by rule. Public notice of such letters of intent shall be provided in newspapers having general circulation in the region of the state affected by the letter of intent. The notice shall identify the applicant, the proposed new health care project, and the date by which a competing application or petition to intervene must be filed. In addition, a copy of the public notice shall be sent to the clerk of the municipality in which the health care facility is located. Upon receipt, the clerk shall post the notice in or near the clerk’s office and in at least two other public places in the municipality.

~~(2)~~(3) ~~Upon a determination by~~ The commissioner shall review each letter of intent and, within 15 days, determine whether the project described in the letter will require a certificate of need. If the commissioner determines that a certificate of need is required for a proposed expenditure or action, an application for a certificate of need shall be filed before development of the project begins.

(3) The commissioner, upon making an interim determination on the basis of a letter of intent that a project will be uncontested, may accept a preliminary application immediately upon making such a determination and issue proper public notice. If no interested party comes forth, the commissioner may then formally declare the application uncontested and may issue a certificate of need without further process or may declare, on its own motion, that the application is contested.

(4) Within 15 days or, in the case of review cycle applications under section 9439 of this title, within 30 days of receipt of an application, the commissioner shall notify the applicant that the application contains all necessary information required and is complete, or that additional information is required.

(5) If an applicant fails to respond to an information request under subdivision (4) of this subsection within six months, or, in the case of review cycle applications under section 9439 of this title, within such time limits as the commissioner shall establish by rule, the application will be deemed inactive. If an applicant fails to respond to an information request within 12 months, or, in the case of review cycle applications under section 9439 of this title, within such time limits as the commissioner shall establish by rule, the application will become invalid.

(6) For purposes of this section, “interested party” status shall be granted to persons or organizations representing the interests of persons who demonstrate that they will be substantially~~, adversely~~ and directly affected by the new ~~institutional health service~~ health care project under review ~~or that they will materially assist~~. Persons able to render material assistance to the commissioner by providing nonduplicative evidence relevant to the determination may be admitted in an amicus curiae capacity but shall not be considered parties. A petition seeking party or amicus curiae status must be filed within 20 days following public notice of the letter of intent, or within 20 days following public notice that the application is complete. The commissioner shall grant or deny a petition to intervene under this subdivision within 15 days after the petition is filed. The commissioner shall grant or deny the petition within an additional 30 days upon finding that good cause exists for the extension. Once interested party status is granted, the commissioner shall provide the information necessary to enable the party to participate in the review process. Such information includes information about procedures, copies of all written correspondence, and copies of all entries in the application record.

(7) Once an application has been deemed to be complete, public notice of the application will be provided in newspapers having general circulation in the region of the state affected by the application. The notice shall identify the applicant, the proposed new ~~institutional health service~~ health care project, and the date by which a competing application under section 9439 of this title or a petition to intervene must be filed.

(8) The health care ombudsman’s office established under section 4089j of Title 8 or, in the case of nursing homes, the long term care ombudsman’s office established under section 7502 of Title 33, is authorized but not required to participate in any administrative or judicial review of an application under this subchapter and shall be considered an interested party in such proceedings upon filing a notice of intervention with the commissioner.

(1) The public oversight commission shall review:

(A) ~~the~~ The application materials provided by the applicant ~~and the arguments raised in favor of or against the proposal, if any, and may request the technical panel’s advice, recommendations and comments on the merits of the application~~.

(B) The assessment of the applicant’s materials provided by the department.

(2) The public oversight commission shall hold a public hearing during the course of a review ~~if requested by persons directly affected by the review~~.

(3) The public oversight commission shall make a written findings and a recommendation to the commissioner in favor of or against each application. A record shall be maintained of all information reviewed in connection with each application.

(4) A review shall be completed and the commissioner shall make a final decision within 120 days after the date of notification under subdivision (b)(4) of this section. Whenever it is not practicable to complete a review within 120 days, the commissioner may extend the review period up to an additional 30 days. Any review period may be extended with the written consent of ~~all applicants~~ the applicant and all other applicants in the case of a review cycle process.

~~(4)~~(5) After reviewing each application and after considering the recommendations of the public oversight commission, the commissioner shall make a decision either to issue ~~a certificate of need~~ or to deny the application for a certificate of need. ~~Notice of the decision shall be sent to the applicant. This notice shall state the basis of the decision.~~ The decision shall be in the form of an approval in whole or in part, or an approval subject to such conditions as the commissioner may impose in furtherance of the purposes of this subchapter, or a denial. In granting a partial approval or a conditional approval the commissioner shall not mandate a new health care project not proposed by the applicant or mandate the deletion of any existing service. Any partial approval or conditional approval must be directly within the scope of the project proposed by the applicant and the criteria used in reviewing the application.

(6) Before rendering a final decision denying an application in whole or in part, or approving a contested application, the commissioner shall serve the parties with notice of a proposed decision containing a brief description of the findings of fact and conclusions of law supporting his or her proposed decision, and shall provide the parties an opportunity to file exceptions and present briefs and oral argument to the commissioner.

(7) Notice of the final decision shall be sent to the applicant, competing applicants, and interested parties. This notice shall make written findings and conclusions stating the basis of the decision.

(8) The commissioner shall establish rules governing the compilation of the record used by the public oversight commission and the commissioner in connection with decisions made on applications filed and certificates issued under this subchapter.

(d) The commissioner shall adopt rules governing procedures for the expeditious processing of applications ~~including those regarding~~ ~~expenditures~~ for replacement, repair, rebuilding, or re-equipping of any part of a health care facility or health maintenance organization destroyed or damaged as the result of fire, storm, flood, act of God, or civil disturbance, or any other circumstances beyond the control of the applicant where the commissioner finds that the circumstances require action in less time than normally required for review. If the nature of the emergency requires it, an application under this subsection may be reviewed by the commissioner only, without notice and opportunity for public hearing or intervention by any party.

(e) Any ~~party~~ applicant, competing applicant, or interested party aggrieved by a final decision of the commissioner under this section may appeal the decision to the supreme court. If the commissioner’s decision is contrary to the recommendation of the public oversight commission, the commissioner shall have the burden of establishing the grounds for the decision by a preponderance of the evidence.

Sec. 16. 18 V.S.A. § 9440a is added to read:

§ 9440a. APPLICATIONS, INFORMATION, AND TESTIMONY; OATH REQUIRED

(a) Each application filed under this subchapter, any information required or permitted to be submitted in connection with an application or with the monitoring of an order, decision or certificate issued by the commissioner, and any testimony taken before the public oversight commission, the commissioner, or a hearing officer appointed by the commissioner shall be submitted or taken under oath, on a form and in a manner prescribed by the commissioner. The authority granted to the commissioner under this section is in addition to any other authority granted to the commissioner under law.

(b) Each application shall be filed by the applicant’s chief executive officer under oath, as provided by subsection (a) of this section. The commissioner may direct that information submitted with the application be submitted under oath by persons with personal knowledge of such information.

(c) A person who knowingly makes a false statement under oath or who knowingly submits false information under oath to the commissioner or the public oversight commission or a hearing officer appointed by the commissioner or who knowingly testifies falsely in any proceeding before the commissioner or the public oversight commission or a hearing officer appointed by the commissioner shall be guilty of perjury and punished as provided in section 2901 of Title 13.

Sec. 17. 18 V.S.A. § 9441 is amended to read:

§ 9441. FEES

(a) The commissioner shall charge a fee for the filing of certificate of need applications. The fee shall be calculated at the rate of 0.125 percent of project costs.

(b) The maximum fee shall not exceed $20,000.00 and the minimum filing fee is $250.00 regardless of project cost. No fee shall be charged on projects amended as part of the review process.

(c) The commissioner may retain such additional professional or other staff as needed to assist in particular proceedings under this subchapter and may assess and collect the reasonable expenses for such additional staff from the applicant. The commissioner, on petition by the applicant and opportunity for hearing, may reduce such assessment upon a proper showing by the applicant that such expenses were excessive or unnecessary. The authority granted to the commissioner under this section is in addition to any other authority granted to the commissioner under law.

Sec. 18. 18 V.S.A. § 9442 is amended to read:

§ 9442. ~~RECOMMENDATION AND~~ ~~DECISION REGARDING~~ ~~CERTIFICATE OF NEED; ISSUANCE OF CERTIFICATE OF~~ ~~NEED~~ BONDS

Upon completion of its review, the commissioner shall render a final decision on the application, based solely upon the criteria which were duly adopted and published at least 90 days prior to the submission of the original application under review, the evidence introduced into the record, and facts which have been officially noticed. The decision shall be in the form of an approval in whole or in part, or a denial. In granting a partial approval the commissioner shall not mandate any new institutional health service not proposed by the applicant or mandate the deletion of any existing service. Any partial approval must be directly within the scope of the project proposed by the applicant and the criteria used in reviewing the application. In the case of a final decision to approve, in whole or in part, an application regarding a proposed new institutional health service, the commissioner shall issue a certificate of need to the applicant. The commissioner shall make a decision either to approve or deny within the time period specified for the review.

In any circumstance in which bonds are to be or may be issued in connection with a new health care project subject to the provisions of this subchapter, the certificate of need shall include the requirement that all information required to be provided to the bonding agency shall be provided also to the commissioner within a reasonable period of time. The commissioner shall be authorized to obtain any information from the bonding agency deemed necessary to carry out the duties of monitoring and oversight of a certificate of need. The bonding agency shall consider the recommendations of the commissioner in connection with any such proposed authorization.

Sec. 19. 18 V.S.A. § 9445 is amended to read:

§ 9445. ENFORCEMENT

(a) Any person who offers or develops any new ~~institutional health service~~ health care project within the meaning of this subchapter without first obtaining a certificate of need as required herein, or who otherwise violates any of the provisions of this subchapter, shall be subject to the following sanctions:

(1) The state shall not issue a license to any health care facility to operate, offer, or develop any new ~~institutional health service~~ health care project in violation of this subchapter and without a certificate of need or certificate of exemption issued pursuant thereto.

(2) The state shall not furnish from any reimbursement program administered by the state, nor shall any entity chartered under the laws of this state or any person doing business in the state provide reimbursement for any new ~~institutional health service~~ health care project offered or developed in contravention of the requirements of this subchapter.

(3) In addition to all other sanctions, if any person offers or develops any new ~~institutional health service~~ health care project without first having been issued a certificate of need or certificate of exemption therefore, or violates any other provision of this subchapter or any lawful rule or regulation promulgated thereunder, the commissioner and health care providers or consumers located in the state shall have standing to maintain a civil action in the superior court of the county wherein such alleged violation has occurred, or wherein such person may be found, to enjoin, restrain, or prevent such violation. Upon written request by the commissioner, it shall be the duty of the attorney general of the state to furnish appropriate legal services and to prosecute an action for injunctive relief to an appropriate conclusion, which shall not be reimbursed under subdivision (2) of this subsection.

(b) Any person who violates this subchapter or rules adopted hereunder shall be subject to a fine of not less than $1,000.00 nor more than $10,000.00 for each violation which shall not be reimbursed under subdivision (2) of subsection (a) of this section. After notice and an opportunity for hearing, the commissioner may impose on a person who knowingly violates a provision of this subchapter, or a rule adopted pursuant to this subchapter, a civil administrative penalty of no more than $40,000.00, or in the case of a continuing violation, a civil administrative penalty of no more than $100,000.00 or one-tenth of one percent of the gross annual revenues of the health care facility, whichever is greater, which shall not be reimbursed under subdivision (a)(2) of this section. A person aggrieved by a decision of the commissioner under this subdivision may appeal the commissioner’s decision to the supreme court.

* * * Bonds * * *

Sec. 20. 16 V.S.A. § 3856(j) is added to read:

(j) In the case of bonds issued in connection with a new health care project subject to the provisions of subchapter 5 of chapter 221 of Title 18, the agency shall not authorize bonds on behalf of an eligible institution defined under subdivision 3851(c)(5) of this title, unless the project and the capital expenditures associated with the project have been approved by the commissioner of banking, insurance, securities, and health care administration, pursuant to subchapter 5 of chapter 221 of Title 18. The agency shall consider the recommendations of the commissioner in connection with any such proposed authorization.

* * * Charges for Examinations * * *

Sec. 21. 8 V.S.A. § 18 is amended to read:

§ 18. CHARGES FOR EXAMINATIONS, APPLICATIONS, REVIEWS AND INVESTIGATIONS

Every person subject to regulation by the department shall pay the department the reasonable costs of any examination, review, or investigation that is conducted or caused to be conducted by the department of such person, or of any application or filing made by such person, or of any examination, review, or investigation of any order, decision, or certificate issued by the commissioner, at a rate to be determined by the commissioner. The department may retain experts or other persons who are independently practicing their professions to assist in such examination, review, or investigation. The department shall be reimbursed for all reasonable costs and expenses, including the reasonable costs and expenses of such persons retained by the department, by the person examined, submitting the application or filing reviewed or , investigated, or subject to or under the jurisdiction of an order, decision, or certificate issued by the commissioner under this title or under Title 18. A An examination, review, or investigation subject to this section shall include, but not be limited to, a an examination, review, or investigation of any application, information, rate filing, or form filing submitted, or any order, decision, or certificate issued under this title, or under Title 18. In unusual circumstances, the commissioner may waive reimbursement for the costs and expenses of any review in the interests of justice. Those institutions subject to assessment or fees for services provided under section 19 of this title shall not be billed for a regular examination performed under subsection 115010(a) of this title or for services for which such fees under subsection 19(a) of this title have been paid. The authority granted to the commissioner by this section is in addition to any other authority granted to the commissioner by law.

* * * Hospital Budget Reviews * * *

Sec. 22. 18 V.S.A. § 9453 is amended to read:

§ 9453. POWERS AND DUTIES

(a) ~~With the advice and recommendations of the technical panel, the~~ The commissioner shall:

(1) adopt uniform formats that hospitals shall use to report financial, scope-of-services, and utilization data and information;

(2) designate a data organization with which hospitals shall file financial, scope-of-services, and utilization data and information; and

(3) designate a data organization or organizations to process, analyze, store, or retrieve data or information.

(b) To effectuate the purposes of this subchapter the commissioner may adopt rules under chapter 25 of Title 3.

Sec. 23. 18 V.S.A. § 9454 is amended to read:

§ 9454. HOSPITALS; DUTIES

(a) Hospitals shall file the following information at the time and place and in the manner established by the commissioner:

(1) a budget for the forthcoming fiscal year;

(2) financial information, including but not limited to costs of operation, revenues, assets, liabilities, fund balances, other income, rates, charges, units of services, and wage and salary data;

(3) scope-of-service and volume-of-service information, including but not limited to inpatient services, outpatient services, and ancillary services by type of service provided;

(4) utilization information;

(5) new hospital services and programs proposed for the forthcoming fiscal year;

(6) ~~a projected three-year capital expenditure budget~~ known depreciation schedules on existing buildings, a four-year capital expenditure projection, and a one-year capital expenditure plan; and

(7) such other information as the commissioner may require.

(b) Hospitals shall adopt a fiscal year which shall begin on October 1.

Sec. 24. 18 V.S.A. § 9456 is amended to read:

§ 9456. BUDGET REVIEW

(a) The commissioner shall conduct reviews of each hospital’s proposed budget based on the information provided pursuant to this subchapter, and in accordance to with a schedule established by the commissioner.

(b) In conjunction with budget reviews, the commissioner shall:

(1) review utilization information;

(2) consider the goals and recommendations of the ~~health resource management plan or state health plan, whichever applies~~ health resource allocation plan;

(3) consider the expenditure analysis for the previous year and the proposed expenditure analysis for the year under review;

(4) consider any reports from professional review organizations;

(5) solicit public comment on all aspects of hospital costs and use and on the budgets proposed by individual hospitals;

(6) meet with hospitals to review and discuss hospital budgets for the forthcoming fiscal year;

(7) give public notice of the meetings with hospitals, and invite the public to attend and to comment on the proposed budgets;

(8) consider the extent to which costs incurred by the hospital in connection with services provided to Medicaid beneficiaries are being charged to non-Medicaid health benefit plans and other non-Medicaid payers;

(9) require each hospital to file an analysis that reflects a reduction in net revenue needs from non-Medicaid payers equal to any anticipated increase in Medicaid reimbursements resulting from appropriations designed to reduce the Medicaid cost shift~~; and~~

~~(10) seek the advice and recommendations of the public oversight commission~~.

(1) be consistent with the health resource ~~management~~ allocation plan ~~or state health plan, whichever applies~~;

(2) take into consideration national, regional, or instate peer group norms, according to indicators, ratios, and statistics established by the commissioner;

(3) promote efficient and economic operation of the hospital;

(4) reflect budget performances for prior years; and

(5) include a finding that the analysis provided in subdivision (b)(10) of this section is a reasonable methodology for reflecting a reduction in net revenues for non-Medicaid payers.

(d) ~~Beginning~~ ~~October 1, 1996, and annually thereafter~~ Annually, the commissioner shall ~~consider the recommendations of the public oversight commission and~~ establish a budget for each hospital by September 15 followed by a0 written decision by October 1. Each hospital shall operate within the budget established under this section.

(e) The commissioner may establish, by rule, a process to define, on an annual basis, criteria for hospitals to meet, such as utilization and inflation benchmarks. The rule ~~may~~ shall permit the commissioner to waive one or more of the review processes listed in subsection (b) of this section, but not for more than ~~one year~~ two years consecutively. Tertiary teaching hospitals shall not be eligible for a waiver.

(f) The commissioner may, upon application, adjust a budget established under this section upon a showing of need based upon exceptional or unforeseen circumstances in accordance with the criteria and processes established under section ~~9406~~ 9405 of this title.

(0g) The commissioner may request, and a hospital shall provide, information determined by the commissioner to be necessary to determine whether the hospital is operating within a budget established under this section.

(h)(1) If a hospital violates a provision of this section, the commissioner may maintain an action in the superior court of the county in which the hospital is located to enjoin, restrain or prevent such violation.

(2) After notice and an opportunity for hearing, the commissioner may impose on a person who knowingly violates a provision of this subchapter, or a rule adopted pursuant to this subchapter, a civil administrative penalty of no more than $40,000.00, or in the case of a continuing violation, a civil administrative penalty of no more than $100,000.00 or one-tenth of one percent of the gross annual revenues of the hospital, whichever is greater. This subdivision shall not apply to violations of subsection (d) of this section caused by exceptional or unforeseen circumstances.

(3)(A) The commissioner shall require the officers and directors of a hospital to file under oath, on a form and in a manner prescribed by the commissioner, any information designated by the commissioner and required pursuant to this subchapter. The authority granted to the commissioner under this subsection is in addition to any other authority granted to the commissioner under law.

(B) A person who knowingly makes a false statement under oath or who knowingly submits false information under oath to the commissioner or to the public oversight commission or to a hearing officer appointed by the commissioner or who knowingly testifies falsely in any proceeding before the commissioner or the public oversight commission or a hearing officer appointed by the commissioner shall be guilty of perjury and punished as provided in section 2901 of Title 13.

* * * Report on Hospital Collaboration * * *

Sec. 25. REPORT ON COLLABORATION AMONG HOSPITALS

The commissioner of banking, insurance, securities, and health care administration shall invite Fletcher Allen Health Care and the Dartmouth Hitchcock Medical Center to identify fields of excellence or discrete areas of specialty focus for the respective health care institutions, and to make recommendations for collaboration. The commissioner shall report to the general assembly on or before December 15, 2003 and annually thereafter on the progress of the collaboration.

Sec. 26. STATUTORY REVISION

(a) In chapter 221 of Title 18, all references to the “technical panel” shall be stricken.

(b) In chapter 221 of Title 18, the phrase “institutional health service” shall be replaced with the phrase “health care project.”

Sec. 27. EFFECTIVE DATE

This act shall take effect on July 1, 2003, except that:

(1) Secs. 6, 7, and 22 through 24 shall apply to hospital budget reviews for fiscal years 2005 and thereafter.

(2) Secs. 16, 17, and 21 shall take effect on passage and shall apply to the certificate of need applications pending on or before the date of passage.

(3) Secs. 12 and 13 shall take effect on July 1, 2005 or upon adoption by the governor of the health resource allocation plan, whichever occurs first.

(4) Except for Secs. 16, 17, and 21, this act shall not apply to certificate of need applications pending on July 1, 2003.

Pending the question, Will the House concur in the Senate proposal of amendment? Rep. Donahue of Northfield moved that the House refuse to concur and ask for a Committee of Conference, which was agreed to, and the Speaker appointed as members of the Committee of Conference on the part of the House:

Rep. Koch of Barre Town

Rep. Keogh of Burlington

Rep. Donahue of Northfield

Rules Suspended; Senate Proposals of Amendment Concurred in

H. 458

On motion of Rep. Symington of Jericho, the rules were suspended and House bill, entitled

An act relating to the creation of the department of information and innovation;

Appearing on the Calendar for notice, was taken up for immediate consideration.

The Senate proposes to the House to amend the bill as follows:

First: In Sec. 4, 3 V.S.A. § 2294, in the second sentence, by striking out the word “seven” and in the third sentence, after “Vermont Interactive Television”, by adding “Vermont Technical College”

Second: In Sec. 6, 22 V.S.A. § 901(1), after “software,” by inserting “accessibility,”

Which proposals of amendment was considered and concurred in.

Rules Suspended; Senate Proposal of Amendment, to House Proposal of Amendment, Concurred in with a further Amendment Thereto

S. 15

On motion of Rep. Symington of Jericho, the rules were suspended and Senate bill, entitled

An act relating to a juvenile justice legislative oversight committee;

Appearing on the Calendar for notice, was taken up for immediate consideration.

The Senate proposes to the House to amend the bill as follows:

By striking out the House proposal of amendment in its entirety and inserting in lieu thereof the following:

Sec. 1. 3 V.S.A. § 3085c is amended to read:

§ 3085c. COMMISSION ON JUVENILE JUSTICE

* * *

(e)~~(1) A juvenile justice policy subcommittee is created within the commission. The subcommittee shall be composed of the following members:~~

~~(A) the secretary of the agency of human services, who shall be the chair;~~

~~(B) three representatives, who shall be appointed by the speaker of the house;~~

~~(C) three senators, who shall be appointed by the committee on committees;~~

~~(D) the secretary of the agency of administration;~~

~~(E) the defender general;~~

~~(F) a representative of the runaway youth coalition of~~ ~~Vermont~~;

~~(G) a representative of the~~ ~~Vermont~~ ~~parent child center network;~~

~~(H) a representative of the~~ ~~Vermont~~ ~~coalition of residential programs;~~

~~(I) a representative of the department of developmental and mental health services’ designated community mental health centers;~~

~~(J) a representative of the~~ ~~Vermont~~ ~~center for crime victim services;~~

~~(K) a representative of the state’s attorneys’ association;~~

~~(L) a representative from the judicial branch of state government; and~~

~~(M) a representative from the police chiefs’ association.~~

~~(2) The subcommittee shall:~~

~~(A) Advise the commission on the development of a comprehensive juvenile justice system.~~

~~(B) Hold monthly public meetings to determine how issues related to juvenile justice are impacting~~ ~~Vermont~~ ~~communities.~~

~~(C) Coordinate with the children and family council for prevention programs on the juvenile justice block grant budget and on any other federal grants relating to juvenile justice.~~

(D) Report to the governor and the general assembly no later than December 1 of each year. The report shall include an evaluation of the strengths and weaknesses and successes and failures of the comprehensive juvenile justice and youthful offender system; recommendations to improve the program; and a detailed report on the development, implementation, and operation of the program.

~~(E) Examine existing policy and, where needed, make policy recommendations in at least the following areas: access to early care, education and prevention; effective use of~~ ~~Vermont’s home visiting and family support resources; provision of juvenile justice; coordination of out‑of‑schooltime services; and efforts to eradicate adolescent substance abuse.~~

~~(f)~~ The ~~departments of social and rehabilitation services and of corrections~~ agency of human services shall provide the commission with administrative support.

~~(g)~~(f) The juvenile justice commission, ~~the juvenile justice policy subcommittee,~~ the children and family council for prevention programs, and the governor’s cabinet for children and youth shall coordinate activities and, wherever possible, consolidate meetings to promote effective and efficient uses of resources and to minimize duplication.

(g) Annually, the commission shall prepare a report of its findings and activities during the preceding year. The report shall include a detailed description of the progress made on the development, implementation, and ongoing operation of the comprehensive juvenile justice and youthful offender system. On or before December 1 of each year, the commission shall file its report with the governor, the general assembly, and the senate and house committees on judiciary, and make the report available to the public.

Sec. 2. 13 V.S.A. § 5361 is amended to read:

§ 5361. CENTER FOR CRIME VICTIMS SERVICES

(a) The center for crime victims services is created and shall be responsible for the following:

* * *

(3) Administer the victims compensation program ~~and~~, the victims assistance program, and the restitution unit.

(4) Assist in the development and administration of other programs and services for crime victims and witnesses, as needed.

* * *

Sec. 3. 13 V.S.A. § 5362 is added to read:

§ 5362. RESTITUTION UNIT

(a) A restitution unit is created within the center for crime victims services for purposes of assuring that crime victims receive restitution when it is ordered by the court.

(b) The restitution unit shall administer the restitution fund established under section 5363 of this title.

(1) Collect restitution from the defendant when it is ordered by the court, deposit the funds collected into the restitution fund, and make payments to victims out of the fund.

(2) Bring an action to enforce a restitution order as a civil judgment under section 7043 of this title.

(3) Share and access information, consistent with Vermont and federal law, from the court, the department of corrections, the department of taxes, and the department of employment and training in order to carry out its collection and enforcement functions.

Sec. 4. 13 V.S.A. § 5363 is added to read:

§ 5363. CRIME VICTIMS’ RESTITUTION SPECIAL FUND

(a) There is hereby established in the state treasury a fund to be known as the crime victims’ restitution special fund, to be administered by the victims compensation board established by section 5352 of this title, and from which payments may be made to provide restitution to crime victims.

(b) There shall be deposited into the fund:

(1) All monies collected from persons against whom restitution has been ordered pursuant to section 7043 of this title.

(2) All fees imposed by the clerk of court and designated for deposit into the fund pursuant to section 7282 of this title.

(3) Such sums as may be appropriated to the fund by the general assembly.

(c) All balances in the fund at the end of any fiscal year shall be carried forward and remain a part of the fund. Disbursements from the fund shall be made by the state treasurer on warrants drawn by the commissioner of finance and management.

(d) Notwithstanding anything in this section or any other provision of law to the contrary, revenue from the surcharge fees deposited into the crime victims’ restitution special fund shall be used exclusively to support the restitution unit and restitution for crime victims, and for no other purpose.

Sec. 5. 13 V.S.A. § 7041 is amended to read:

§ 7041. DEFERRED SENTENCE

* * *

(b) Upon violation of the terms of probation or of the deferred sentence agreement, the court shall impose sentence. Upon fulfillment of the terms of probation and of the deferred sentence agreement, the court shall strike the adjudication of guilt and discharge the respondent~~, except that~~ ~~a person shall not be discharged from probation imposed under this section until restitution has been paid in full, absent a finding of good cause by the court~~. Upon discharge the record of the criminal proceedings shall be expunged as if an application pursuant to section 5538 of Title 33 had been granted, except that the record shall not be expunged until restitution has been paid in full, absent a finding of good cause by the court.

(c)~~(1)~~ A deferred sentence imposed under subsection (a) of this section may include a restitution order issued pursuant to section 7043 of this title. If a court determines that a person subject to a deferred sentence has failed to comply with a restitution order issued under section 7043 of this title, the court may impose sentence upon finding the defendant has the present ability to pay. Nonpayment of restitution shall not constitute grounds for imposition of the underlying sentence.

(2) No sentence shall be imposed or continued pursuant to this subsection after compliance with the restitution order. This subsection shall not apply to the violation of any condition of probation other than a failure to comply with a restitution order.

Sec. 6. 13 V.S.A. § 7043 is amended to read:

§ 7043. RESTITUTION

(a)(1) Restitution shall be considered in every case in which a victim of a crime, as defined in subdivision 5301(4) of this title, has suffered a material loss ~~or has incurred medical expenses. Whether or not any other sentence or disposition is imposed, a term of probation may be ordered, with restitution as the only condition~~.

(2) For purposes of this section, “material loss” means uninsured property loss, uninsured out-of-pocket monetary loss, and uninsured medical expenses.

(b) When ordered, restitution may include:

(1) return of property wrongfully taken from the victim;

(2) cash, credit card, or installment payments~~, including interest at the statutory rate for civil judgments, or voluntarily assigned wages or assets,~~ paid to the victim, to the restitution fund, or to the victims’ compensation fund established under chapter 167 of this title to compensate for damages to the victim’s property or person; or

(3) payments in kind, if acceptable to the victim.

~~(c) In awarding restitution, the court shall consider the ability of the defendant to pay.~~

(d) Restitution, if imposed, shall be due at the time of sentencing, unless the court finds on the record that there is good cause for an extension, and made to the victim, or if the victim has died, to the victim’s estate. To the extent that the victims’ compensation board has made payment to or on behalf of the victim in accordance with chapter 167 of this title, restitution, if imposed, shall be paid to the victims’ compensation fund.

(e) Restitution orders If not paid at the time of sentencing, restitution may be enforced as conditions of probation, supervised community sentence, furlough, preapproved furlough or parole if the convicted person is sentenced to preapproved furlough, probation or supervised community sentence, or is sentenced to imprisonment and later placed on parole, or otherwise in the manner of civil judgments. Unless otherwise specifically ordered by the court, an order for restitution as a condition of preapproved furlough, probation or supervised community sentence shall remain in effect if the defendant violates preapproved furlough, probation or supervised community sentence and is sentenced to imprisonment.

~~(f) When restitution is not ordered, the court shall set forth on the record its reasons for not ordering restitution.~~

~~(g) No restitution ordered under this section precludes a person granted such relief from pursuing an independent civil action.~~

(h) The court may modify a restitution order if, upon motion by the state’s attorney, the center for crime victims services, the victim, or the defendant, the court finds that a modification is warranted by a substantial change in circumstances.

~~(i)(1) If the defendant fails to pay restitution as ordered by the court, the victim,~~ the center for crime victims services, the department of corrections, or the state’s attorney may notify the court of the defendant’s default. The court shall set the matter for hearing, and shall provide notice thereof to the victim, the department of corrections, the state, and the defendant. If the court determines the defendant has failed to comply with the restitution order, the court may take any action the court deems necessary to ensure the defendant will make the required restitution payments, including:

~~(A) amending or modifying the court’s restitution order;~~

~~(B) requiring the disclosure of assets and income by the defendant, in which case the defendant may voluntarily assign wages or assets to satisfy the compliance requirement;~~

~~(C) upon finding the defendant has the ability to pay, revoking the defendant’s probation, and ordering the defendant to serve all or part of the underlying sentence.~~

(2) Any monies owed by the state to an offender who is under a restitution order, including, but not limited to, lottery winnings and tax refunds, shall be assigned to discharge the restitution order to the full extent of the unpaid total financial losses, regardless of the payment schedule in the restitution payment plan. In the case of a tax refund, the monies shall be paid pursuant to subchapter 12 of chapter 151 of Title 32. Monies paid under this subsection shall be paid directly to the department of corrections, without any reductions for collection or supervision fees.

(j) The department of corrections shall, in conjunction with the center for crime victims services, establish guidelines for assessing the defendant’s ability to pay restitution. The guidelines shall describe pertinent financial information to be collected, procedures for the verification of information, staff responsible for collecting the information, methods of relaying that information to the court, and a recommended payment schedule.

(k) A standard condition of probation, parole, supervised community sentence, preapproved furlough or other sentence shall be a requirement that the defendant comply with all requests from the department of corrections or the center for crime victims services to furnish information, including financial information, which will enable the department to collect restitution from the defendant.

~~(l) The court shall not discharge a defendant from probation until restitution has been paid in full, absent a finding of good cause by the court.~~

~~(m) A restitution obligation shall be nondischargeable, to the maximum extent provided under 11 U.S.C. § 523, in the United States Bankruptcy Court.~~

~~(n) A transfer of property made with the intent to avoid a restitution obligation shall be deemed a fraudulent conveyance for purposes of chapter 57 of Title 9.~~

(1) The total amount of the material loss incurred by the victim. If sufficient documentation of the material loss is not available at the time of sentencing, the court shall set a hearing on the issue, and notice thereof shall be provided to the defendant.

(2) The defendant’s current ability to pay restitution, based on financial information which the defendant has filed with the court.

(d) An order of restitution shall establish the amount of the material loss incurred by the victim, which shall be the restitution judgment order. In the event the defendant is unable to pay the restitution judgment order at the time of sentencing, the court shall establish a payment schedule for the defendant based upon the defendant’s current and reasonably foreseeable ability to pay, subject to modification under subsection (k) of this section.

(e)(1) If not paid at the time of sentencing, restitution may be ordered as a condition of probation, supervised community sentence, furlough, preapproved furlough, or parole if the convicted person is sentenced to preapproved furlough, probation, or supervised community sentence, or is sentenced to imprisonment and later placed on parole. A person shall not be placed on probation solely for purposes of paying restitution. A defendant may not be charged with a violation of probation, furlough, or parole for nonpayment of restitution.

(2) The department of corrections shall work collaboratively with the restitution unit to assist with the collection of restitution. The department shall provide the restitution unit with information about the location and employment status of the defendant.

(f) When restitution is requested and not ordered, the court shall set forth on the record its reasons for not ordering restitution.

(g) Restitution ordered under this section shall not preclude a person from pursuing an independent civil action for all claims not covered by the restitution order.

(h)(1) The court shall transmit a copy of a restitution order to the restitution unit, which shall make payment to the victim from the restitution fund established under section 5363 of this title. If the victim has died, payment shall be made to the victim’s estate.

(2) A payment out of the restitution fund shall not exceed $25,000.00, except as provided in subdivision (j)(2) of this section.

(3) To the extent that the victims compensation board has made payment to or on behalf of the victim in accordance with chapter 167 of this title, restitution, if imposed, shall be paid to the victims compensation fund.

(i) The restitution unit may bring an action to enforce a restitution order against a defendant in the superior court of the county where the order was issued. In an action under this subsection, a restitution order issued by the district court shall be enforceable in superior court in the same manner as a civil judgment. Superior court filing fees shall be waived for an action under this subsection.

(j)(1) All restitution payments by a defendant shall be made to the restitution unit.

(2) If the restitution unit collects in excess of $25,000.00 from the defendant, the amount in excess of $25,000.00 shall be paid to the victim until the victim has received the full amount of the restitution order. Any excess remaining after the victim has received the full amount of the restitution order shall be divided between the victims compensation fund and the restitution unit in proportion to the amount which each paid to the victim.

(k) The sentencing court may modify the payment schedule of a restitution order if, upon motion by the restitution unit or the defendant, the court finds that modification is warranted by a substantial change in circumstances.

(l) If the defendant fails to pay restitution as ordered by the court, the restitution unit may file an action to enforce the restitution order in superior or small claims court. The court shall set the matter for hearing and shall provide notice to the restitution unit, the victim, and the defendant. If the court determines the defendant has failed to comply with the restitution order, the court may take any action the court deems necessary to ensure the defendant will make the required restitution payment, including:

(1) amending the payment schedule of the restitution order;

(2) ordering, in compliance with the procedures required in Rule 4.1 of the Vermont Rules of Civil Procedure, the disclosure, attachment, and sale of assets and accounts owned by the defendant;

(3) ordering the defendant’s wages withheld pursuant to subsection (n) of this section; or

(4) ordering the suspension of any recreational licenses owned by the defendant.

(m)(1) Any monies owed by the state to an offender who is under a restitution order, including lottery winnings and tax refunds, shall be used to discharge the restitution order to the full extent of the unpaid total financial losses, regardless of the payment schedule in the restitution payment plan.

(2) When an offender is entitled to a tax refund, any restitution owed by the offender shall be withheld from the refund pursuant to subchapter 12 of chapter 151 of Title 32.

(3)(A) For all Vermont lottery games, the lottery commission shall, before issuing prize money of $500.00 or more to a winner, determine whether the winner has an outstanding restitution order. If the winner owes restitution, the lottery commission shall withhold the entire amount of winnings and pay it to the restitution unit. The restitution unit shall offset the winnings by the amount of restitution owed and the remainder of the winnings, if any, shall be sent to the winner. The winner shall be notified by the restitution unit of the offset prior to payment to the victim and given a period not to exceed 20 days to contest the accuracy of the information.

(B) The restitution unit shall inform the lottery commission of persons with outstanding restitution orders upon request. Each person subject to such an order shall be identified by name, address, and Social Security number.

(4) Monies paid under this subsection shall be paid directly to the restitution fund, which shall notify the victim that the monies have been received.

(n)(1) The sentencing court at the time of sentencing, or the superior or small claims court in a subsequent proceeding, may issue a wage withholding order directing current and subsequent employers of the defendant to pay a portion of the defendant’s wages directly to the restitution unit until the defendant’s restitution obligation is satisfied. The wages of the defendant shall be exempt as follows:

(A) to the extent provided under Section 303(b) of the Consumer Credit Protection Act (15 U.S.C. § 1673(b)); or

(B) if the court finds the weekly expenses reasonably incurred by the debtor for his or her maintenance and that of dependents exceed the amounts exempted by subdivision (1)(A) of this subsection, such greater amount of earnings as the court shall order.

(2) The court shall transmit all wage withholding orders issued under this section to the restitution unit, which shall forward the orders to the defendant’s employers. Upon receipt of a wage withholding order from the restitution unit, an employer shall:

(A) withhold from the wages paid to the defendant the amount specified in the order for each wage period;

(B) forward the withheld wages to the restitution unit within seven working days after wages are withheld, specifying the date the wages were withheld;

(D) cease withholding wages upon notice from the restitution unit; and

(E) notify the restitution unit within 10 days of the date the defendant’s employment is terminated.

(3) In addition to the amounts withheld pursuant to this section, the employer may retain not more than $5.00 per month from the defendant’s wages as compensation for administrative costs incurred.

(4) Any employer who fails to withhold wages pursuant to a wage withholding order within 10 working days of receiving actual notice or upon the next payment of wages to the employee, whichever is later, shall be liable to the restitution unit in the amount of the wages required to be withheld.

(5) An employer who makes an error in the amount of wages withheld shall not be held liable if the error was made in good faith.

(6) For purposes of this subsection, “wages” means any compensation paid or payable for personal services, whether designated as wages, salary, commission, bonuses, or otherwise, and shall include periodic payments under pension or retirement programs and workers’ compensation or insurance policies of any type.

(p) A restitution obligation shall be nondischargeable, to the maximum extent provided under 11 U.S.C. § 523, in the United States Bankruptcy Court.

(q) A transfer of property made with the intent to avoid a restitution obligation shall be deemed a fraudulent conveyance for purposes of chapter 57 of Title 9.

Sec. 7. 13 V.S.A. § 7282 is amended to read:

§ 7282. ASSESSMENT

(a) In addition to any penalty or fine imposed by the court or judicial bureau for a criminal offense or any civil penalty imposed for a traffic violation, including any violation of a fish and wildlife statute or regulation, violation of a motor vehicle statute, or violation of any local ordinance relating to the operation of a motor vehicle, except violations relating to seat belts and child restraints and ordinances relating to parking violations, the clerk of the court or judicial bureau shall levy an additional fee of:

(1) $5.00 for any offense or violation committed prior to June 1, 1990.

(2) $8.00 for any offense or violation committed after May 31, 1990, but before July 1, 1991, of which $3.00 shall be deposited into a special fund account to be known as the Victims’ Compensation Fund.

(3) $10.00 for any offense or violation committed after June 30, 1991, but before July 1, 1993, of which $5.00 shall be deposited into a special fund account to be known as the Victims’ Compensation Fund.

(4) $17.50 for any offense or violation committed after June 30, 1993, but before July 1, 2001, of which $12.50 shall be deposited into a special fund account to be known as the Victims’ Compensation Fund.

(5) $20.50 for any offense or violation committed after June 30, 2001, of which $13.50 shall be deposited into a special fund account to be known as the victims’ compensation fund, and $2.00 shall be deposited into the criminal justice training council special fund established in section 2363 of Title 20.

(6)(A) $21.00 for any offense or violation committed after June 30, 2003, of which $13.75 shall be deposited into a special fund account to be known as the victims’ compensation fund, and $2.25 shall be deposited into the criminal justice training council special fund established in section 2363 of Title 20; and

(B) an amount equal to 15 percent of the fine imposed for the offense, rounded upward to the nearest whole dollar, which shall be deposited into the crime victims’ restitution special fund established by section 5363 of this title.

(b) The fees imposed by this section shall be used for the purposes set out in section 7281 of this title and shall not be waived by the court.

Sec. 8. 28 V.S.A. § 253 is amended to read:

§ 253. MODIFICATION OF CONDITIONS; REVOCATIONS

* * *

(c) When restitution or reparation to the victim has been ordered under section 252(b)(6) of this title, and the offender has failed to comply with the order, the state's attorney, after receiving an affidavit filed with the state's attorney by the victim or the probation officer, asserting noncompliance, may initiate a proceeding for revocation of probation.

Sec. 9. 28 V.S.A. § 255 is amended to read:

§ 255. DISCHARGE

* * *

(b) When restitution or reparation to the victim has been ordered under subdivision 252(b)(6) of this title, the period of probation shall not terminate until the offender has complied with the order, absent a finding of good cause by the court.

Sec. 10. 28 V.S.A. § 301 is amended to read:

§ 301. SUMMONS OR ARREST OF PROBATIONER

At any time before the discharge of the probationer or the termination of the period of probation:

* * *

(2) Arrest of person on probation. Any correctional officer may arrest a probationer without a warrant if, in the judgment of the correctional officer, the probationer has violated a condition or conditions of his or her probation other than a condition that the probationer pay restitution; or may deputize any other law enforcement officer to arrest a probationer without a warrant by giving him or her a written statement setting forth that the probationer has, in the judgment of the correctional officer, violated a condition or conditions of his or her probation other than a condition that the probationer pay restitution. The written statement delivered with the person by the arresting officer to the supervising officer of the correctional facility to which the person is brought for detention shall be sufficient warrant for detaining him or her.

* * *

Sec. 11. 28 V.S.A. § 506 is amended to read:

§ 506. TERMINATION AND DISCHARGE

* * *

(c) When restitution or reparation to the victim has been ordered under subdivision 252(b)(6) of this title, the board shall not discharge the parolee from supervision until the offender has complied with the order, unless the sentence has been served in full.

Sec. 12. 32 V.S.A. § 3102 is amended to read:

§ 3102. CONFIDENTIALITY OF TAX RECORDS

* * *

(e) The commissioner may, in his or her discretion and subject to such conditions and requirements as he or she may provide, including any confidentiality requirements of the Internal Revenue Service, disclose a return or return information:

* * *

(13) to ~~the commissioner of corrections or~~ the center for crime victims services for the purpose of determining or verifying a defendant’s assets and income pursuant to section 7043 of Title 13.

Sec. 13. 32 V.S.A. § 5932 is amended to read:

§ 5932. DEFINITIONS

As used in this chapter:

* * *

(4) “Debt” means any obligation to pay a sum of money to a claimant agency, the amount of which is fixed by agreement between the debtor and the claimant agency or by operation of law. ~~Such obligations do not include orders of restitution entered on behalf of a victim of a crime that may be collected by a claimant agency.~~

Sec. 13a. 13 V.S.A. § 5359 is added to read:

§ 5359. VICTIMS’ COMPENSATION SPECIAL FUND

(a) There is created a fund to be known as the victims’ compensation fund. This fund shall be administered by the victims’ compensation board established by section 5352 of this title. The purpose of this fund shall be to support the activities and the operating costs of the victims’ compensation board and the center for crime victims services.

(b) The victims’ compensation fund shall consist of:

(1) Fees imposed by the court clerk and designated for deposit into the fund pursuant to section 7282 of this title.

(2) Restitution as ordered by the court pursuant to section 7043 of this title.

(3) Funds received from inmate labor contribution from the prison industries enhancement program or from any other source.

(4) Appropriations by the general assembly.

Sec. 14. REPORTS

(a) The center for crime victims services and the department of corrections shall jointly develop a plan for transferring authority over restitution management and collection from the department to the center, including plans for the transition period, for existing restitution orders, and for restitution orders issued during the transition period. The center and the department shall report the plan to the house and senate committees on judiciary on or before January 1, 2004.

(b) On or before January 1, 2005, and annually thereafter, the restitution unit of the center for crime victims services shall report its activities during the preceding year to the house and senate committees on judiciary. The report shall include the following information from the preceding year:

(1) the total number of restitution orders issued;

(2) the total amount of restitution ordered;

(3) the total amount of restitution paid out of the crime victims’ restitution special fund;

(4) the average amount and median amount of restitution ordered;

(5) the number of restitution orders issued for each $1,000.00 increment less than $25,000.00; and

(6) the rates of collection, including the total amount of restitution collected by the unit, the amount ordered but uncollected, and the amount ordered but determined by the unit to be unrecoverable.

Sec. 15. EFFECTIVE DATE

This act shall take effect on July 1, 2004, except for Secs. 1, 3, 4, 7, 13a and 14, which shall take effect on passage.

Sec. 16. SUNSET

This act shall expire on July 1, 2007.

And that after passage of the bill the title of the bill be amended to read as follows:

AN ACT RELATING TO A JUVENILE JUSTICE LEGISLATIVE OVERSIGHT COMMITTEE AND TO RESTITUTION PROCEDURES

Rep. Kainen of Hartford moved that the House concur in the Senate proposal of amendment to the House proposal of amendment with the following amendment thereto:

First: in Sec. 6, subsection 7043(h) of 13 V.S.A., by striking subdivision (2) in its entirety and inserting in lieu thereof a new subdivision (2) to read as follows:

(2) A payment out of the restitution fund shall not exceed $10,000.00, except as provided in subdivision (j)(2) of this section.

Second: in Sec. 6, subsection 7282(j) of 13 V.S.A., by striking subdivision (2) in its entirety and inserting in lieu thereof a new subdivision (2) to read as follows:

(2) If the restitution unit collects in excess of $10,000.00 from the defendant, the amount in excess of $10,000.00 shall be paid to the victim until the victim has received the full amount of the restitution order. Any excess remaining after the victim has received the full amount of the restitution order shall be divided between the victims compensation fund and the restitution unit in proportion to the amount which each paid to the victim.

Third: in Sec. 14, subsection (b), by striking subdivision (5) in its entirety and inserting in lieu thereof a new subdivision (5) to read as follows:

(5) the number of restitution orders issued for each $1,000.00 increment less than $10,000.00; and

Fourth: In Sec. 7(a)(5) after “June 30, 2001,” by inserting the following: but before July 1, 2003,

Fifth: In Sec. 7(a)(6) by striking subdivision (A) and inserting in lieu thereof the following:

For any offense or violation committed after June 30, 2003:

(A) $21.00, of which $13.75 shall be deposited into a special fund account to be known as the victims’ compensation fund, and $2.25 shall be deposited into the criminal justice training council special fund established in section 2363 of Title 20; and

Which was agreed to.

Bills Messaged to Senate Forthwith

On motion of Rep. Symington of Jericho, the rules were suspended and the following bills were ordered messaged to the Senate forthwith:

H. 175

House bill, entitled

An act relating to consolidated environmental appeals and revisions of land use development law;

H. 19

House bill, entitled

An act relating to attempting to elude an enforcement officer while operating a motor vehicle;

H. 128

House bill, entitled

An act relating to hospital and health care system accountability, capital spending and annual budget;

S. 15

Senate bill, entitled

An act relating to a juvenile justice legislative oversight committee;

Rules Suspended; Action Ordered Messaged to Senate Forthwith

and Bill Delivered to the Governor Forthwith

On motion of Rep. Symington of Jericho, the rules were suspended and action on the bill was ordered messaged to the Senate forthwith and the bill delivered to the Governor forthwith.

H. 458

House bill, entitled

An act relating to the creation of the department of information and innovation;

Recess

At twelve o’clock and fifty minutes in the afternoon, the Speaker declared a recess until three o’clock and thirty minutes in the afternoon.

Afternoon

At three o’clock and thirty minutes in the afternoon, the Speaker called the House to order.

Adjournment

At three o’clock and thirty-five minutes in the afternoon, on motion of Rep. Branagan of Georgia, the House adjourned until tomorrow at nine o’clock and thirty minutes in the forenoon.