Senate Calendar

tuesday, april 11, 2006

99th DAY OF ADJOURNED SESSION

TABLE OF CONTENTS

                                                                                                                Page No.

UNFINISHED BUSINESS OF THURSDAY, APRIL 6, 2006

House Proposal of Amendment

S. 22       Off label use of prescription drugs for cancer................................... 1164

NEW BUSINESS

Third Reading

H. 384    Medical ins. for seasonal emp. of Dept. of Forests, Parks & Rec..... 1168

H. 860    Vermont’s participation in the regional greenhouse gas initiative........ 1168

                  Sen. Coppenrath amendment....................................................... 1168

H. 876    Relating to management of exposure to mercury.............................. 1168

Second Reading

Favorable with Proposal of Amendment

H. 677    Standards board and licensing hearing panels for educators.............. 1168

                  Education Committee Report....................................................... 1168

                  Appropriations Committee Report............................................... 1185

NOTICE CALENDAR

Favorable with Proposal of Amendment

H. 856    Sentences/preventing risks posed by dangerous sex offenders.......... 1185

                  Judiciary Committee Report......................................................... 1185

                  Appropriations Committee Report............................................... 1221

H. 861    Health care affordability for Vermonters.......................................... 1222

                  Health and Welfare Committee Report......................................... 1222

H. 869    Relating to the state’s transportation program.................................. 1250

                  Transportation Committee Report................................................ 1250

                  Finance Committee Report.......................................................... 1276

                  Appropriations Committee Report............................................... 1276

                  Senator Illuzzi amendment............................................................ 1276

                  Senator Illuzzi amendment............................................................ 1278

House Proposal of Amendment

S. 117     Relating to state recognition of the Abenaki People.......................... 1278

ORDERED TO LIE

S. 112     Relating to the practice of optometry............................................... 1281

S. 157     Relating to rulemaking for Vermont origin........................................ 1281

S. 315     Relating to creation of the Vermont Land Bank program.................. 1281

S. 316     Relating to access to broadband services throughout Vermont......... 1281

S. 319     Relating to expanding the scope of the net metering program............ 1281



 

ORDERS OF THE DAY

ACTION CALENDAR

UNFINISHED BUSINESS OF THURSDAY, APRIL 6, 2006

House Proposal of Amendment

S. 22

An act relating to off-label use of prescription drugs for cancer.

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

Sec. 1.  8 V.S.A. chapter 107, subchapter 9 is added to read:

Subchapter 9.  Off-Label Use of Prescription Drugs for Cancer

§ 4100e.  REQUIRED COVERAGE FOR OFF-LABEL USE

(a)  A health insurance plan that provides coverage for prescription drugs shall provide coverage for off-label use in cancer treatment in accordance with the following:

(1)  A health insurance plan contract may not exclude coverage for any drug used for the treatment of cancer on grounds that the drug has not been approved by the federal Food and Drug Administration, provided the use of the drug is a medically accepted indication for the treatment of cancer.

(2)  Coverage of a drug required by this section also includes medically necessary services associated with the administration of the drug.

(3)  This section shall not be construed to require coverage for a drug when the federal Food and Drug Administration has determined its use to be contraindicated for treatment of the current indication.

(4)  A drug use that is covered under subdivision (1) of this subsection may not be denied coverage based on a “medical necessity” requirement except for a reason unrelated to the legal status of the drug use.

(5)  A health insurance plan contract that provides coverage of a drug as required by this section may contain provisions for maximum benefits and coinsurance and reasonable limitations, deductibles, and exclusions to the same extent these provisions are applicable to coverage of all prescription drugs and are not inconsistent with the requirements of this section.

(b)  As used in this section, the following terms have the following meanings:

(1)  “Health insurance plan” means a health benefit plan offered, administered, or issued by a health insurer doing business in Vermont.

(2)  “Health insurer” is defined by subdivision 9402(9) of Title 18.  As used in this subchapter, the term includes the state of Vermont and any agent or instrumentality of the state that offers, administers, or provides financial support to state government, including Medicaid, the Vermont health access plan, the VScript pharmaceutical assistance program, or any other public health care assistance program.

(3)  “Medically accepted indication” includes any use of a drug that has been approved by the federal Food and Drug Administration and includes another use of the drug if that use is prescribed by the insured’s treating oncologist and supported by medical or scientific evidence.  For purposes of this subchapter, “medical or scientific evidence” means one or more of the following sources:

(A)  peer-reviewed scientific studies published in or accepted for publication by medical journals that meet nationally recognized requirements for scientific manuscripts and that submit most of their published articles for review by experts who are not part of the editorial staff.

(B)  peer-reviewed literature, biomedical compendia, and other medical literature that meet the criteria of the National Institutes of Health’s National Library of Medicine for indexing in Index Medicus, Excerpta Medicus (EMBASE), Medline, and MEDLARS database Health Services Technology Assessment Research (HSTAR).

(C)  medical journals recognized by the federal Secretary of Health and Human Services, under Section 1861(t)(2) of the federal Social Security Act.

(D)  the following standard reference compendia:  the American Hospital Formulary Service-Drug Information, the American Medical Association Drug Evaluation, and the United States Pharmacopoeia-Drug Information.

(E)  findings, studies, or research conducted by or under the auspices of federal government agencies and nationally recognized federal research institutes, including the Agency for Health Care Policy and Research, National Institutes of Health, National Cancer Institute, National Academy of Sciences, Center for Medicare and Medicaid Services, and any national board recognized by the National Institutes of Health for the purpose of evaluating the medical value of health services.

(F)  peer-reviewed abstracts accepted for presentation at major medical association meetings.

(4)  “Off-label use” means the prescription and use of drugs for medically accepted indications other than those stated in the labeling approved by the federal Food and Drug Administration.

(c)  A determination by a health insurer that an off-label use of a prescription drug under this section is not a medically accepted indication supported by medical or scientific evidence is eligible for review under section 4089f of this title.

Sec. 2.  8 V.S.A. § 4089f(b)(3) is amended to read:

(b)  An insured who has exhausted all applicable internal review procedures provided by the health benefit plan shall have the right to an independent external review of a decision under a health benefit plan to deny, reduce or terminate health care coverage or to deny payment for a health care service.  The independent review shall be available when requested in writing by the affected insured, provided the decision to be reviewed requires the plan to expend at least $100.00 for the service and the decision by the plan is based on one of the following reasons:

* * *

(3)  The health care treatment has been determined to be experimental, investigational or an off-label drug.  A health benefit plan that denies use of a prescription drug for the treatment of cancer as not medically necessary or as an experimental or investigational use shall treat any internal appeal of such denial as an emergency or urgent appeal, and shall decide such appeal within the time frames applicable to emergency and urgent internal appeals under regulations adopted by the commissioner.

Sec. 3.  APPLICATION

(a)  Sec. 1 of this act shall apply to all health insurance plans issued or offered on and after October 1, 2006 and to all other health insurance plans on and after October 1, 2006 upon renewal or their anniversary date, whichever is sooner, but in no event later than October 31, 2007.

(b)  Sec. 2 of this act is intended to clarify existing administrative regulations and shall apply to all appeals subject to 8 V.S.A. § 4089f (independent external review of health care service decisions) pending on and after the effective date of this act.

* * * Wholesale Drug Distributors:  Accreditation; Pedigrees * * *

Sec. 4.  26 V.S.A. § 2068 is amended to read:

§ 2068.  REQUIREMENTS; APPLICANTS; LICENSES

An applicant shall satisfy the board that it has, and licensees shall maintain, the following:

* * *

(10)  Compliance with standards and procedures which the board shall adopt by rule concerning provisions for initial and periodic on-site inspections, criminal and financial background checks, ongoing monitoring, reciprocity for out-of-state wholesale drug distributors inspected by a third party organization recognized by the board or inspected and licensed by a state licensing authority with legal standards for licensure that are comparable to the standards adopted by the board pursuant to this subdivision, protection of a wholesale drug distributor’s proprietary information, and any other requirements consistent with the purposes of this subdivision.  The board rules may recognize third party accreditation in satisfaction of some or all of the requirements of this subdivision.

Sec. 5.  ELECTRONIC PEDIGREE STUDY

The board of pharmacy shall study the feasibility of an electronic pedigree system that would verify the chain of distribution for all prescription drugs.  The board shall report its findings and recommendations to the general assembly not later than January 15, 2007.  The study shall include consultation with drug manufacturers, wholesale drug distributors, and pharmacies responsible for the sale and distribution of prescription drugs and consideration of any relevant national standards or initiatives.  The board shall include a proposed implementation date in the study.

* * * Drug and Medical Supply Repository Program:  Study * * *

Sec. 6.  DRUG AND MEDICAL SUPPLY REPOSITORY STUDY

The department of health, in consultation with the office of Vermont health access, the board of pharmacy, the department of disabilities, aging, and independent living, and the board of medical practice, shall study the feasibility of creating a repository program through which licensed facilities, wholesale drug distributors, and drug manufacturers can donate unused, unopened prescription drugs and medical supplies to pharmacies, hospitals, and clinics in order to dispense such drugs and supplies, for only a handling fee, to persons who are income‑eligible or uninsured.  The study shall include findings and recommendations concerning the cost the department would incur in creating and overseeing such a program, including any costs related to consultation with experts, the benefits of a repository program, and any other standards or procedures necessary for the development and implementation of the program.  The department of health shall report its findings and recommendations to the general assembly not later than January 15, 2007.

NEW BUSINESS

Third Reading

H. 384

An act relating to medical insurance for seasonal employees of the department of forests, parks and recreation.

H. 860

An act relating to Vermont’s participation in the regional greenhouse gas initiative.

PROPOSAL OF AMENDMENT TO H. 860 TO BE OFFERED BY SENATOR COPPENRATH BEFORE THIRD READING

Senator Coppenrath moves that the Senate propose to the House to amend the bill in Sec. 1, 30 V.S.A., § 254(c)(2) by striking out subparagraph (F) in its entirety and inserting in lieu thereof a new subparagraph (F) to read as follows:

(F)  ensure that carbon credits allocated under this program and revenues associated with their sale remain power system assets managed for the benefit of electric consumers.  To that end, at least 50% of the revenues shall be used to directly mitigate electricity ratepayer impacts by reducing electric rates paid by consumers, and the remaining credits may be used for investments in energy efficiency and other low-cost, low-carbon power system investments;

H. 876

An act relating to management of exposure to mercury.

Second Reading

Favorable with Proposal of Amendment

H. 677

An act relating to a standards board and licensing hearing panels for professional educators.

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

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

Sec. 1.  16 V.S.A. § 212(14) is added to read:

(14)  Annually, convene a meeting of directors of Vermont educator preparation programs and representatives of school boards, superintendents, principals, educators, and the Vermont standards board to determine subject and geographic areas in which there is a critical need for educators and to discuss ways to meet the need.

Sec. 2.  16 V.S.A. chapter 51 is amended to read:

CHAPTER 51.  EXAMINATION AND LICENSING OF TEACHERS PROFESSIONAL EDUCATORS

§ 1691.  PURPOSE

The purpose of this chapter is to establish a board of professional educators to oversee the training, licensing, and professional standards of teachers and administrators and to establish hearing panels to determine compliance with those standards to help assure high caliber professionals and high quality public educational programs for Vermont students.

§ 1691a.  Definitions

As used in this chapter:

(1)  “Administrator” means an individual licensed under this chapter the majority of whose employed time in a public school, school district, or supervisory union is assigned to developing and managing school curriculum, evaluating and disciplining personnel, or supervising and managing a public school system or public school program.

(2)  “Applicant” means an individual applying for a license.

(3)  “Educator” means any teacher or administrator requiring a license under this chapter.

(4)  “Endorsement” means the grade level and field in which an educator is authorized to serve.  A license shall bear one or more endorsements.

(5)  “Hearing panel” means the persons assigned in individual cases to find facts, reach conclusions of law, and make decisions regarding compliance with standards for obtaining, retaining, and renewing licenses.

(6)  “License” means a license to engage in teaching or school administration, as the context requires, in the state and includes, unless the context requires otherwise, the endorsements the licensee has applied for or possesses.  “Licensee” means an individual licensed under this chapter.

(7)  “Licensing action” means action that suspends, revokes, limits, or conditions licensure or certification in any way and includes warnings, reprimands, probation, and administrative penalties.

(8)  “Office” means the office within the department of education responsible for professional standards and educator licensing.

(9)  “Standards board” means the Vermont standards board for professional educators established under section 1693 of this title.

(10)  “Teacher” means an individual licensed under this chapter the majority of whose employed time in a public school district or supervisory union is assigned to furnish to students direct instructional or other educational services, as defined by rule of the standards board, or who is otherwise subject to licensing as determined by the standards board.

§ 1692.  REQUIREMENT AS TO LICENSE; AGE LIMIT

A person shall not teach Except for a substitute teacher in accordance with rules adopted by the standards board, a person shall not be employed as a teacher or administrator in a public school without having a license then in force.  A license shall not be issued to a person under seventeen years of age.

§ 1693.  STANDARDS BOARD FOR PROFESSIONAL EDUCATORS

(a)  There is hereby established the Vermont standards board for professional educators comprising 13 members as follows:  seven teachers, two administrators, one public member, one school board member, one representative of educator preparation programs from a public institution of higher education, and one representative of educator preparation programs from a private institution of higher education.

(b)  Appointment and qualifications.  When a vacancy occurs, except in the case of the public member position, the state board of education shall solicit up to five nominations from any of the following organizations if their members may be eligible for the vacant position:  the Vermont national education association, the Vermont school boards association, the Vermont principals association, the Vermont superintendents association, the Vermont State Colleges, the University of Vermont, and the association of independent colleges.  The state board may add other names to the list but may not remove nominations submitted by the organizations and shall forward the list to the governor.  The governor shall appoint a person on the list or, in the case of the public position, the governor shall appoint a person of his or her choosing, for a term of three years which shall begin July 1 of the year of appointment.  No person shall be eligible for more than one sequential reappointment.  The governor shall appoint a replacement to fill any vacancy on the standards board for the remainder of the term.  Appointments shall be consistent with the following requirements:

(1)  Each member of the standards board shall be a citizen of the United States and a resident of Vermont.

(2)  The educator members shall be generally representative of elementary and secondary schools and of programs of study taught in Vermont public schools and of administrative positions in Vermont public schools.  Teacher members shall hold a license and have at least five years’ experience in public school teaching, at least three of which shall have been within the five years preceding appointment.  Administrator members shall hold a license and be endorsed as an administrator and have at least five years’ experience in public school administration, at least three of which shall have been within the five years preceding appointment.

(3)  The school board member shall be a current school district board member or have served on a school district board at some period during the three years prior to appointment.

(4)  The public member shall not be a member of the state board of education or an employee of any school and shall not derive primary livelihood in the field of public or independent education at any level of responsibility.

(c)  Standards board officers; meetings.  The standards board shall elect from its members a chair, vice chair, and secretary who shall serve for one year and until their successors are elected and seated.  The board shall meet at the request of the chair or at such other times and places as the board may determine.  Seven members of the board shall constitute a quorum for the transaction of business.

(d)  Compensation.  The department of education shall compensate standards board members for the performance of their duties and reimburse them for their actual and necessary expenses in accordance with section 1010 of Title 32.

(e)  Administration.  The standards board shall be attached for administrative purposes to the office.  With respect to the standards board, the commissioner shall:

(1)  with the advice of the standards board, employ a director, prepare an annual budget, and administer money appropriated to the standards board by the general assembly.  The budget of the standards board shall be part of the budget of the department;

(2)  employ administrative staff of the office;

(3)  incur such other expenses as the commissioner determines are necessary;

(4)  act as custodian of the records of the standards board; and

(5)  annually, conduct a training for members of the standards board and the hearing panels established in this chapter, which shall include workshops regarding the powers and duties of the standards board and the panels and an opportunity for the standards board and hearing panel members to discuss the practical application of standards in quasi-judicial proceedings.

§ 1694.  POWERS AND DUTIES OF THE STANDARDS BOARD FOR PROFESSIONAL EDUCATORS

In addition to any other powers and duties prescribed by law or incidental or necessary to the exercise of such lawful powers and duties, the standards board shall:

(1)  Adopt rules pursuant to chapter 25 of Title 3 with respect to the licensing of teachers and administrators, and of speech-language pathologists and audiologists as provided in chapter 87 of Title 26;

(2)  Establish standards for educator preparation programs in Vermont and approve those that meet the standards so that a person graduating from an approved program shall be eligible for a license to engage in teaching or school administration in accordance with standards board rules.  The standards board may accept accreditation of an educator preparation program in Vermont or another state from a national accreditation entity as sufficient for approval;

(3)  Establish standards, including endorsements, according to which individuals may obtain a license or have one renewed or reinstated;

(4)  Oversee and monitor the application and licensing process administered by the office; and

(5)  Develop a code of professional ethics and act as advisor to professional educators regarding its interpretation.

§ 1695.  CREDENTIALS GRANTED IN ANOTHER STATE REVIEW OF LICENSING STANDARDS

The board shall make regulations relating to the recognition of teachers’ licenses, diplomas and educational credentials granted in any other state, provided such other state shall recognize, by substantially reciprocal regulations or laws, such licenses, diplomas and educational credentials issued in this state.  Prior to the prefiling by the standards board of a licensing standard or procedure proposed for rulemaking pursuant to section 820 of Title 3, the commissioner may object to it before the state board of education on the grounds that it would have significant adverse financial or operational impact on the public school system.  If the state board of education agrees, it may remand the proposed rule to the standards board for further deliberations consistent with its written decision.  The commissioner may also object on the same grounds to a substantive change to a proposed rule, once initiated, before a final proposal is filed pursuant to section 841 of Title 3.

§ 1696.  LICENSING

(a)  Qualifications of applicants.  An applicant shall submit to the commissioner evidence satisfactory to the commissioner that the applicant either has completed all requirements of an approved educator preparation program or has otherwise acquired the knowledge and skills required for a license through coursework and experiences apart from an approved educator preparation program.

(b)  License by reciprocity.  By rule, the standards board shall establish standards according to which an applicant who meets the licensing standards of another state with standards substantially similar to Vermont’s may be accorded a license in this state, provided the other state recognizes, by substantially reciprocal regulations or laws, licenses issued in this state.

(c)  Temporary licenses.  By rule, the standards board may establish standards, if any, by which an applicant who otherwise does not meet the standards for a license may obtain, for a period not to exceed two years, a temporary license.

(d)  Junior Reserve Officer Training Corps instructors.  The board shall accept certification of a junior Reserve Officer Training Corps instructor by the federal Department of Defense as qualification for a license to provide junior Reserve Officer Training Corps instruction to a student enrolled in a junior Reserve Officer Training Corps program.

(e)  Denial of license.  The commissioner may deny a license for:

(1)  Failure to meet the conditions for issuance of a license or endorsement or renewal or reinstatement thereof; or

(2)  Failure of a licensee to demonstrate the competencies specified in the rules of the standards board.

(f)  Appeal.  An applicant aggrieved by a decision of the commissioner regarding the issuance or renewal of a license may appeal that decision by notifying the commissioner in writing within 30 days of receiving the decision.  The commissioner forthwith shall transmit notice of the appeal to the administrative officer for hearing panels to initiate the appeal process set forth in section 1700 of this title.

§ 1697.  FEES

(a)  Each applicant and licensee shall be subject to the following fees:

(1)  Initial processing of application                               $35.00

(2)  Issuance of initial license                                         $35.00 per year

                                                                                    for the term of the                                                                                         license

(3)  Renewal of license                                 $35.00 per year

                                                                    for the term of the renewal

(4)  Replacement of license                                           $10.00

(5)  Duplicate license                                                    $3.00

(6)  Peer review process                                               $1,200.00

                                                                                    one-time fee.

(b)  Fees collected under this section shall be credited to special funds established and managed pursuant to chapter 7, subchapter 5 of chapter 7 of Title 32, and shall be available to the department to offset the costs of providing those services.

§ 1698.  CAUSES FOR LICENSING ACTION

Any one of the following, or any combination of the following, constitutes potential cause for licensing action whether occurring within or outside the state:

(1)  Unprofessional conduct which means:

(A)  Grossly negligent conduct or greater, on or off duty, that places a student or students in meaningful physical or emotional jeopardy, or conduct that evidences moral unfitness to practice as an educator.

(B)  Conviction for a criminal offense in which the underlying circumstances, conduct, or behavior, by gross negligence or greater, places a student or students in meaningful physical or emotional jeopardy, or conviction of a crime that evidences moral unfitness to practice as an educator.

(C)  Conviction of grand larceny under 13 V.S.A. § 2501 or embezzlement as defined in subchapter 2 of chapter 57 of Title 13, provided charges were brought after July 1, 2006.

(D)  Conviction of a crime charged after July 1, 2006, which involves fraudulent misrepresentation, dishonesty, or deceit, including conviction for any of the following:  13 V.S.A. §§ 1101, 1102, 1103, 1104, 1106, 1107, 1108, 3006, or 3016, provided that conviction under 13 V.S.A. §§ 2002, 2502, 2561, 2575, 2582, and 2591, if the value or amount involved is $500.00 or less, shall not be considered a conviction under this subdivision unless it is part of a larger pattern of dishonesty, deceit, or fraud.

(E)  A pattern of willful misconduct or a single egregious act of willful misconduct in violation of duties and obligations of the position.

(F)  Falsification, misrepresentation, or misstatement of material information provided in connection with the application for or renewal or reinstatement of a license or endorsement.

(G)  With respect to a superintendent, the failure to maintain the confidentiality and privileged status of information provided pursuant to subsection 1700(c) and subdivision 1708(f)(3) of this title.

(2)  Incompetence, which means the inability or incapacity to perform the duties and competencies required by the license.

§ 1699.  REPORTS OF ALLEGED UNPROFESSIONAL CONDUCT OR INCOMPETENCE

(a)  An individual who has reasonable cause to believe a licensee has engaged in unprofessional conduct or is incompetent may, and a superintendent who has reasonable cause to believe a licensee has engaged in unprofessional conduct or is incompetent shall, submit a written report to the commissioner concerning allegations of unprofessional conduct or incompetence about a licensee.  A principal submitting a report under this section shall submit it to the superintendent and may also submit it to the commissioner.

(b)  Except as provided in section 1708 of this title, information provided the licensing office under this section shall be confidential.

(c)  A person who acts in good faith under the provisions of this section shall not be liable for damages in any civil action.

§ 1700.  INVESTIGATION

(a)  Investigation committee.  Upon receiving notice of either an applicant’s appeal of a licensing office decision or an allegation of unprofessional conduct or incompetence on the part of a licensee, the hearing panel administrative officer shall assign one or more of its licensee members to serve on an investigation committee with an investigator and prosecuting attorney assigned by the commissioner of education to investigate the licensing decision or allegation and make recommendations to the commissioner in accordance with subsections (b) and (d) of this section.  Teacher members shall be assigned to assist in the investigation of matters involving teachers and administrator members in matters involving administrators.  Members shall not serve on a hearing panel regarding any matter they assisted in investigating.  If the administrative officer is unable to assign one or more members to the investigation committee by reason of disqualification, resignation, vacancy, or necessary absence, the officer shall appoint ad hoc members who shall meet the requirements of subsection 1693(b) of this title.

(b)  Preliminary review.  After conducting a preliminary review of an allegation of unprofessional conduct or incompetence or of a denial of a license based on alleged unprofessional conduct or incompetence, the investigation committee shall make a recommendation to the commissioner regarding whether to conduct a formal investigation.

(c)  Formal investigation.  If the commissioner decides to conduct a formal investigation, the commissioner shall:

(1)  notify the educator and direct the investigation committee to proceed with a formal investigation; and

(2)  notify the superintendent of the school district in which the educator may be employed, or if the educator is currently employed as a superintendent, the chair of the board of the supervisory union or supervisory district that employs the superintendent, that the office has commenced a formal investigation of an allegation of unprofessional conduct or incompetence and shall specify the provisions of section 1698 of this title that best describe the allegation.

(d)  Recommendation.  Upon completing its investigation, the investigation committee shall recommend that the commissioner, with respect to a license application, affirm or reverse a licensing office decision or, with respect to alleged unprofessional conduct or incompetence, issue or not issue formal charges.

(e)  Professional guidance.  In its recommendation as to whether the commissioner should issue formal charges and, if so, what form they should take, the committee may consider the effect it believes its professional guidance may have in mitigating the need for and nature of licensing action.

§ 1701.  COMMISSIONER’S DETERMINATION

(a)  Matters involving denial of licensure.  With respect to an applicant’s appeal, the commissioner shall, within 10 days of receiving the committee’s recommendation, affirm or reverse the licensing decision and notify the applicant in writing.  If the commissioner reverses the decision, the office shall issue a license accordingly.  If the commissioner affirms the decision, the applicant may appeal by notifying the commissioner in writing within 10 days of receiving the commissioner’s decision.  The commissioner shall forthwith notify the hearing panel administrative officer of the appeal.

(b)  Matters involving alleged unprofessional conduct or incompetence.  With respect to a licensee alleged either incompetent or to have engaged in unprofessional conduct, the commissioner shall, within 10 days of receiving the investigation committee’s recommendation, determine whether to issue a formal charge and what, if any, licensing action should be imposed.  If the commissioner determines no formal charge is warranted, the commissioner shall notify in writing the licensee and, if the licensee is employed, the superintendent of the school district of employment.  If the commissioner determines a formal charge is warranted, the commissioner shall prepare a formal charge, file it with the hearing panel administrative officer, and cause a copy to be served upon the licensee charged together with a notice of hearing and procedural rights, as provided in this chapter.  The commissioner shall provide a copy of the formal charge to the superintendent of the school district, if any, in which the licensee is employed, or if the licensee is employed as a superintendent, to the chair of the supervisory union that employs the superintendent, provided the superintendent or board chair agrees to maintain the confidentiality and privileged status of the information as provided in subsection 1708(d) of this title.  If the commissioner finds that public health, safety, or welfare imperatively requires emergency action and incorporates a finding to that effect in the formal charge, the hearing panel may order summary suspension of a license pending proceedings for revocation or other action.  These proceedings shall be promptly instituted and determined.

§ 1702.  HEARING PANELS

(a)  Appointment.  The governor shall appoint seven teachers, four administrators, and three members of the public to serve on hearing panels for terms of three years beginning on July 1 of the year of appointment.  No person shall be eligible for more than one sequential reappointment.  The governor shall ensure appointments are consistent with the requirements found in subdivisions 1693(b)(1)–(3) of this title.  By appointment, the governor shall fill any vacancy for the remainder of its term.  Panel members shall be considered appointive officers for the purposes of chapter 29 of Title 3 and shall be compensated in accordance with section 1010 of Title 32.

(b)  Administration.  The hearing panels shall be attached for administrative purposes to the office.  Annually, the panel members shall meet collectively to:

(1)  elect an administrative officer for the purpose of assigning hearing panels in licensing matters;

(2)  approve a pool, based upon the commissioner’s recommendation, of impartial hearing officers who shall be attorneys admitted to practice in this state; and

(3)  plan professional development activities. 

(c)  Powers and duties of hearing panels.  Hearing panels shall have the authority to determine compliance by applicants, licensees, and the office with standards board standards according to which individuals may obtain, renew, and retain a license.  Upon notification that the applicant has appealed under subsection 1701(a) of this title or that the commissioner has issued a formal charge under subsection 1701(b) of this title, the administrative officer shall appoint a hearing officer and a panel, as well as a chair for the panel.  Panels hearing appeals of teachers shall comprise two teacher members and one public member.  Panels hearing appeals of administrators shall comprise two administrator members and one public member.  In the conduct of proceedings, the hearing officer, or the panel if it takes additional evidence under subsection 1706(a) of this title, may:

(1)  Issue subpoenas to compel the attendance of witnesses and the furnishing of evidentiary material in connection with a hearing;

(2)  Authorize depositions to be taken as needed in any investigation, hearing, or proceeding;

(3)  Conduct administrative hearings in accordance with this section, section 1705 of this title, and chapter 25 of Title 3 regarding appeals of licensing decisions and charges of unprofessional conduct or incompetence;

(4)  In the case of the hearing officer, recommend and, in the case of a hearing panel, make decisions regarding appeals of licensing decisions and formal charges; and

(5)  Undertake any other actions and procedures specified in or required or appropriate to carry out the provisions of this chapter.

§ 1703.  TIME AND NOTICE OF HEARING

The chair of the panel shall fix the time of hearing, which shall be between 30 and 60 days after, as applicable, filing of the license application appeal or service of the charge on the licensee.  The chair shall provide the applicant or licensee notice of the hearing, in it stating the following:  the time and place of the hearing; the right of the applicant or licensee charged to file with the chair a written response within 20 days of the date of service; the fact that a record of the proceeding will be kept; the rights of the applicant or licensee charged at the hearing to appear personally, to be represented by counsel, to produce witnesses and evidence, to cross-examine witnesses, and to examine such documentary evidence as may be produced; and, in the case of formal charges against the licensee, the range of licensing actions to which the licensee charged may be subject if the formal charges are substantiated.

§ 1704.  BURDEN OF PROOF

(a)  Denial of licensure.  Except as provided in subsection (b) of this section, the burden of proof in matters involving the denial of an initial license or the addition of an endorsement to a license once issued shall be on the applicant by a preponderance of the evidence.

(b)  Alleged unprofessional conduct or incompetence.  The burden of proof in matters involving alleged unprofessional conduct or incompetence, including denial of a license based on alleged unprofessional conduct or incompetence, shall be on the commissioner by a preponderance of the evidence, except that in the case of revocation or suspension for more than one year, the proof shall be by clear and convincing evidence.

§ 1705.  HEARING OFFICER RECOMMENDATION

The hearing officer shall conduct the hearing for the purpose of issuing recommended findings of fact, conclusions of law, and a proposed decision to the hearing panel.  The hearing officer may administer oaths and otherwise exercise the powers of a judicial officer regarding the conduct of a fair and impartial hearing.  Within 30 days of the hearing, the hearing officer shall recommend to the hearing panel findings of fact, conclusions of law, and a decision and by certified mail provide a copy to the applicant or licensee.

§ 1706.  DECISION AND ORDER

(a)  Hearing panel decision.  The hearing panel may take additional evidence and may accept, reject, or modify the recommendations of the hearing officer and shall issue findings of fact, conclusions of law, and an order within 30 days of receiving the recommendations, unless the hearing panel grants an extension for good cause.  The hearing panel shall provide a copy of the decision to the commissioner and, by certified mail, the applicant or licensee charged.  If formal charges are not substantiated, the hearing panel shall include in its order a statement that the charges were not substantiated by the evidence, and it shall dismiss the charges.

(b)  Charges substantiated.  If formal charges are substantiated, the hearing panel, in its order, may:  take no action; issue a warning; issue a private reprimand; issue a public reprimand; or condition, limit, suspend, or revoke the license to practice.  An administrative penalty not to exceed $1,000.00 may be imposed by itself or in connection with the issuance of a warning or of a private or public reprimand.

§ 1707.  APPEAL FROM PANEL ORDER

(a)  Appeal to state board of education.

(1)  A party aggrieved by a final decision of a hearing panel may, within 30 days of the decision, appeal that decision by filing a notice of appeal with the administrative officer of the hearing panel who shall refer the case to the state board of education.  The parties may agree to waive this review by written stipulation filed with the state board of education.  The state board of education shall conduct its review on the basis of the record created before the hearing panel, and it shall allow the presentation of evidence regarding alleged irregularities in hearing procedure not shown in the record.

(2)  The state board of education shall not substitute its judgment for that of the hearing panel as to the weight of the evidence on questions of fact.  It may affirm the decision or may reverse and remand the matter with recommendations if substantial rights of the appellant have been prejudiced because the hearing panel’s finding, inferences, conclusions, or decisions are:

(A)  in violation of constitutional or statutory provisions;

(B)  in excess of the statutory authority of the hearing panel;

(C)  made upon unlawful procedure;

(D)  affected by other error of law;

(E)  clearly erroneous in view of the evidence on the record as a whole;

(F)  arbitrary or capricious; or

(G)  characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(b)  Following appeal or waiver of appeal to the state board of education, a party may appeal to the superior court in Washington County which shall review the matter de novo.

§ 1708.  ACCESSIBILITY AND CONFIDENTIALITY OF LICENSING MATTERS

(a)  It is the purpose of this section both to protect the reputation of licensees from public disclosure of unwarranted complaints and to fulfill the public’s right to know of any action taken against an applicant or a licensee when that action is based on a determination of unprofessional conduct or incompetence.

(b)  All meetings and hearings of the standards board and hearing panels shall be held in accordance with chapter 5 of Title 1.

(c)  The commissioner shall prepare and maintain a register of all complaints which shall be a public record and which shall show:

(1)  with respect to all complaints for which a formal investigation is initiated under subsection 1700(c) of this title, the following information:

(A)  the date and the nature of the complaint, but not the identity of the licensee or information that could be used to identify the licensee; and

(B)  a summary of the completed investigation; and

(2)  only with respect to complaints resulting in the filing of a formal charge under subsection 1701(b) of this title, the following additional information:

(A)  the name and business addresses of the licensee and the name of the complainant if disclosure is permitted under federal or state law and does not provide personally identifying information about a student;

(B)  formal charges, provided they have been served or a reasonable  effort to serve them has been made;

(C)  except as provided under chapter 5 of Title 1, the findings, conclusions, and order of the hearing panel; and

(D)  final disposition of the matter.

(d)  The hearing panel and the commissioner shall not disclose to anyone but the applicant or the licensee charged any information regarding a complaint, proceeding, or record, except the information required to be released under this section.

(e)  A licensee or applicant shall have the right to inspect and copy all  information in the possession of the department of education pertaining to the licensee or applicant, except investigatory files not resulting in formal charges and attorney work product.

(f)  Nothing in this section shall prohibit the disclosure of information:

(1)  Regarding complaints to state or federal law enforcement agencies in the course of an investigation, provided the agency agrees to maintain the confidentiality and privileged status of the information as provided in subsection (d) of this section;

(2)  Regarding denials of licensure for cause, and license suspensions or revocations, and including reinstatements of licenses, to the National Association of State Directors of Teacher Education and Certification, consistent with the member agreement executed between it and the state of Vermont.  For the purposes of this subdivision, “cause” includes any circumstance or activity also deemed to be a revocable offense; or

(3)  As is necessary in investigating a complaint, to the superintendent of a school district in which the licensee is employed or, if the licensee is employed as a superintendent, to the chair of the board that employs the superintendent, provided the superintendent or chair agrees to maintain the confidentiality and privileged status of the information as provided in subsection (d) of this section.  Where, in the judgment of the commissioner, the alleged unprofessional conduct or incompetence places the students in immediate physical or emotional jeopardy, the office shall inform the superintendent of the school district in which the licensee is employed.  The superintendent may take only such action as is both necessary to protect students and consistent with the rights of the licensee.  The superintendent shall not do anything which compromises the integrity of the investigation.

§ 1709.  REPORTS

The commissioner of education shall issue annually a report to the standards board which shall contain:

(1)  the number of new licensees and endorsements they receive, the number of licenses that have lapsed without renewal, and the total number of licensees;

(2)  a summary of all complaints requiring preliminary review, formal investigation and formal charges; and

(3)  an accounting of all fees and administrative penalties received by the office and all expenditures and costs of the office for the year.

Sec. 3.  16 V.S.A. § 1931(20) is amended to read:

(20)  “Teacher” shall mean any licensed teacher, principal, supervisor, superintendent, or any professional licensed by the state board of education Vermont standards board for professional educators regularly employed for the full normal working time for his or her position in a public day school within the state, or in any school or teacher-training institution located within the state, controlled by the state board of education, and supported wholly by the state; or any teacher, principal, supervisor, superintendent, or any professional regularly employed for the full normal working time for his or her position in any nonsectarian independent school which serves as a high school for the town or city in which the same is located, provided such school is not conducted for personal profit.  It shall also mean any person employed in a teaching capacity in certain public independent schools designated for such purposes by the board of trustees in accordance with section 1935 of this title. In all cases of doubt the board of trustees, herein defined, shall determine whether any person is a teacher as defined in this chapter.  It shall not mean a person who is teaching with an emergency license.

Sec. 4.  16 V.S.A. § 1981(1) and (5) are amended to read:

(1)  “Administrator” means any person so licensed by the state board of education Vermont standards board for professional educators, the majority of whose employed time in a school or a school district is devoted to serving as superintendent, assistant superintendent, assistant to the superintendent, supervisor, principal, or assistant principal.

(5)  “Teacher” means any person licensed employable as a teacher by the state board of education Vermont standards board for professional educators who is not an administrator as herein defined.

Sec. 5.  26 V.S.A. § 4451(3), (10), and (14) are amended to read:

(3)  “Board” means the state board of education Vermont standards board for professional educators unless the context clearly requires otherwise.

(10)  “Private practice” means any work performed by a licensed

speech-language pathologist or audiologist that is not within the jurisdiction of the state board of education.

(14)  “Within the jurisdiction of the state board of education” means conduct or work performed by a licensed speech-language pathologist or audiologist on behalf of a supervisory union or public school district in Vermont or an independent school approved for special education purposes, or conduct otherwise subject to discipline under the state board of education licensing rules of the board.

Sec. 6.  26 V.S.A. § 4454(b) is amended to read:

(b)  This chapter shall not be construed to limit the authority of the state board of education to determine and evaluate the qualifications of, issue licenses to, or discipline licensees who are within the jurisdiction of the state board of education or the Vermont standards board for professional educators.

Sec. 7.  26 V.S.A. § 4455(b) is amended to read:

(b)  The secretary shall seek the advice of the individuals appointed under this section in matters related to qualifications or alleged misconduct not within the jurisdiction of the state board of education.  The advisors shall be entitled to compensation and necessary expenses as provided in section 1010 of Title 32 for meetings called by the director.

Sec. 8.  26 V.S.A. § 4456(a)(6) is amended to read:

(6)  refer all complaints and disciplinary matters not within the jurisdiction of the state board of education to the secretary of state;

Sec. 9.  26 V.S.A. § 4457 is amended to read:

§ 4457.  LICENSURE; APPLICATIONS; ELIGIBILITY

Applicants for licenses under this chapter shall submit an application to the department on a form furnished by the department, along with payment of the specified fee and evidence of the eligibility qualifications established by the state board of education which shall include, at a minimum:

* * *

Sec. 10.  26 V.S.A. § 4458(a) is amended to read:

(a)  A license shall be renewed at an interval determined by the state board of education which shall be no fewer than every two years and no more than every seven years upon payment of the renewal fee, provided the person applying for renewal completes professional development activities in accord with the processes approved by the department or the Vermont standards board for professional educators, during the interval.  The board shall establish, by rule, guidelines and criteria for the renewal or reinstatement of licenses issued under this chapter.

Sec. 11.  VERMONT EDUCATORS; CRITICAL NEEDS

At the 2006 meeting convened pursuant to subdivision 212(14) of Title 16, the group shall discuss, at a minimum, the need for teachers of children with autism and for speech-language pathologists.  If the group determines that there is a need for speech-language pathologists in Vermont, it shall discuss whether a new level of licensure which does not require a master’s degree would help to meet the need.

Sec. 12.  REPEAL

16 V.S.A. § 164(5) is repealed.

Sec. 13.  TRANSITION; EFFECTIVE DATE

(a)  The current Vermont standards board for professional educators shall continue to perform its duties under existing state board of education rules and its appointed members shall continue in their positions during fiscal year 2007. Notwithstanding any state board rule to the contrary, the state board may reappoint current standards board members for fiscal year 2007.

(b)  Regulations and standards adopted by the state board of education which relate to the areas under the authority of the Vermont standards board for professional educators pursuant to this act shall remain in effect upon passage of this act until the standards board officially changes them.

(c)  During fiscal year 2007, the governor shall appoint members of the Vermont standards board for professional educators and the individuals to serve on the hearing panels for staggered terms commencing July 1, 2007.

(d)  This section shall become effective on passage.  The remainder of this act shall take effect on July 1, 2007.

and that after passage, the title be changed to read as follows:  “AN ACT RELATING TO A STANDARDS BOARD AND LICENSING HEARING PANELS FOR PROFESSIONAL PUBLIC EDUCATORS”

(Committee Vote: 5-0-0)

Reported favorably by Senator Miller for the Committee on Appropriations.

(Committee vote: 6-0-1)

(For House amendments, see House Journal for February 28, 2006, page 476; March 1, 2006, page 503.)

NOTICE CALENDAR

Favorable with Proposal of Amendment

H. 856

An act relating to enhancing sentences for and preventing risks posed by dangerous sexual offenders.

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

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

Sec. 1.  SHORT TITLE

This act may be known as the “Sexual Violence Prevention Act.”

Sec. 2.  LEGISLATIVE INTENT

The General Assembly intends that any increase in the rate of incarceration of sexual offenders caused by this act be offset by a decrease in the rate of incarceration of non-violent offenders.

* * * Prevention * * *

Sec. 3.  SEXUAL VIOLENCE PREVENTION TASK FORCE

(a)  The general assembly acknowledges that many diverse organizations in Vermont currently provide sexual violence prevention education in Vermont schools with minimal financial support from the state.  In order to further the goal of comprehensive, collaborative statewide sexual violence prevention efforts, the anti-violence partnership at the University of Vermont shall convene a task force to identify opportunities for sexual violence prevention education in Vermont schools.  The task force shall conduct an inventory of  sexual violence prevention activities currently offered by Vermont schools and by nonprofit and other nongovernmental organizations, and shall provide information to them concerning the changes to law made by this act and concerning the consequences of sexual activity among minors.

(b)  The task force established by this section shall include representatives from:

(A)  The department of education.

(B)  The department of health.

(C)  The department of children and families.

(D)  The judiciary department.

(E)  An organization which works with youthful sex offenders.

(F)  Prevent child abuse-Vermont.

(G)  The Vermont network against domestic and sexual violence.

(H)  The Vermont center for prevention and treatment of sexual abuse.

(I)  The University of Vermont college of education and social services.

(c)  On or before January 15, 2007, and on or before January 15 for five years thereafter, the task force shall report on its activities during the preceding year to the house and senate committees on education and judiciary.  The task force shall cease to exist after it files the report due on January 15, 2012.

* * * Investigation * * *

Sec. 4.  24 V.S.A. § 1940 is amended to read:

§ 1940.  TASK FORCES; SPECIALIZED INVESTIGATIVE UNITS; BOARD; GRANTS

(a)  Pursuant to the authority established under section 1938 of this title, and in collaboration with law enforcement agencies, investigative agencies, victims advocates and social service providers, the department of state’s attorneys shall coordinate efforts to provide access in each region of the state to special investigative unit to investigate sex crimes, child abuse, domestic violence, or crimes against those with physical or developmental disabilities.  The general assembly intends that access to special investigative units be available to all Vermonters as soon as reasonably possible, but not later than July 1, 2009.

(b)  A task force or specialized investigative unit organized and operating under section 1938 of this title section may accept, receive, and disburse in furtherance of its duties and functions any funds, grants, and services made available by the state of Vermont and its agencies, the federal government and its agencies, any municipality or other unit of local government, or private or civic sources.  Any employee covered by an agreement establishing a special investigative unit shall remain an employee of the donor agency.

(b)(c)  A specialized investigative unit grants board is created which shall be comprised of the attorney general, the secretary of administration, the executive director of the department of state’s attorneys, the commissioner of the department of public safety, the executive director of the center for crime victim services, and the executive director of the Vermont League of Cities and Towns.  Specialized investigative units organized and operating under section 1938 of this title section for the investigation of sex crimes, child abuse, elder abuse, domestic violence, or crimes against those with physical or developmental disabilities may apply to the board for a grant or grants covering the costs of salaries and employee benefits to be expended during a given year for the performance of unit duties as well as unit operating costs for rent, utilities, equipment, training, and supplies.  Grants under this section shall be approved by a majority of the entire board and shall not exceed 50 percent of the yearly salary and employee benefit costs of the unit.  Preference shall be given to grant applications which include the participation of the department of public safety, the department of children and families, and municipalities within the region.  

(c)(d)  The board may adopt rules relating to grant eligibility criteria, processes for applications, awards, and reports related to grants authorized pursuant to this section.  The attorney general shall be the adopting authority.

* * * Sentencing * * *

Sec. 5.  13 V.S.A. § 1021(2) is amended to read:

§ 1021.  DEFINITIONS

For the purpose of this chapter:

* * *

(2)  “Serious bodily injury” means:

(A)  bodily injury which creates any of the following:

(i)  a substantial risk of death or which causes;

(ii)  a substantial loss or impairment of the function of any bodily member or organ or;

(iii)  a substantial impairment of health,; or

(iv)  substantial disfigurement; or

(B)  strangulation by intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person.

Sec. 6.  13 V.S.A. § 1375 is amended to read:

§ 1375.  DEFINITIONS

As used in this chapter:

* * *

(5)  “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health, or substantial disfigurement shall have the same meaning as in subdivision 1021(2) of this title.

* * *

Sec. 7.  13 V.S.A. § 2602 is amended to read:

§ 2602.  LEWD OR LASCIVIOUS CONDUCT WITH CHILD

(a)(1)  No person shall wilfully and lewdly commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of 16 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of such person or of such child.

(2)  This section shall not apply if the child was 15 years old and the actor was no more than three years older than the child, and the conduct was consensual.

(b)  A person who violates subsection (a) of this section shall be:

(1)  For a first offense, imprisoned not less than one year and not more than 15 years or, and, in addition, may be fined not more than $5,000.00, or both.

(2)  For a second offense, imprisoned not less than two five years and not more than 30 years a maximum term of life  or, and, in addition, may be fined not more than $10,000.00 $25,000.00, or both.

(3)  For a third or subsequent offense, imprisoned not less than three ten years and up to and including a maximum term of life or, and, in addition, may be fined not more than $25,000.00, or both. 

(c)(1)  Except as provided in subdivision (2) of this subsection, a sentence ordered pursuant to subdivision (b)(2) of this section shall include at least a five-year term of imprisonment and a sentence ordered pursuant to subdivision (b)(3) of this section shall include at least a ten-year term of imprisonment.  The five-year and ten-year terms of imprisonment required by this subdivision shall be served and may not be suspended, deferred, or served as a supervised sentence.  The defendant shall not be eligible for probation, parole, furlough, or any other type of early release until the expiration of the five-year or ten-year term of imprisonment.

(2)  The court may depart downwardly from the five-year and ten-year terms of imprisonment required by subdivisions (b)(2) and (b)(3) of this section and impose a lesser term of incarceration if the court makes written findings on the record that the downward departure will serve the interests of justice and public safety.

(d)  A person convicted of violating subdivision (b)(2) or (b)(3) of this section shall be sentenced under section 3271 of this title.

Sec. 8.  13 V.S.A. § 2828 is amended to read:

§ 2828.  USE OF ELECTRONIC COMMUNICATION TO LURE LURING A CHILD

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

(b)  This section applies to solicitation, luring, or enticement by any means, including in person, through written or telephonic correspondence or electronic communication.

(c)  This section shall not apply if the child was at least 15 years old and the actor was no more than three years older than the child, and the communication was consensual.

Sec. 9.  13 V.S.A. chapter 72 is amended to read:

CHAPTER 72.  SEXUAL ASSAULT

Subchapter 1.  Crimes; Trial

§ 3251.  DEFINITIONS

As used in this chapter:

* * *

(4)  “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health, or substantial disfigurement shall have the same meaning as in subdivision 1021(2) of this title;

* * *

§ 3252.  SEXUAL ASSAULT

(a)  A No person who engages shall engage in a sexual act with another person and

(1)  Compels compel the other person to participate in a sexual act:

(A)(1)  Without without the consent of the other person; or

(B)(2)  By by threatening or coercing the other person; or

(C)(3)  By by placing the other person in fear that any person will suffer imminent bodily injury; or.

(2)  Has impaired (b)  No person shall engage in a sexual act with another person and impair substantially the ability of the other person to appraise or control conduct by administering or employing drugs or intoxicants without the knowledge or against the will of the other person; or.

(3)  The other person (c)  No person shall engage in a sexual act with a child who is under the age of 16, except:

(1)  where the persons are married to each other and the sexual act is consensual; or

(2)  the child was at least 15 years old and the actor was no more than three years older than the child, and the sexual act was consensual.

(4)  The other person (d)  No person shall engage in a sexual act with a child who is under the age of 18 and is entrusted to the actor’s care by authority of law or is the actor’s child, grandchild, foster child, adopted child, or step-child;

shall be imprisoned for not more than 20 years, or fined not more than $10,000.00, or both stepchild.

(b)(e)  A No person who engages shall engage in a sexual act with another person a child under the age of 16 and if:

(1)  the victim is entrusted to the actor’s care by authority of law or is the actor’s child, grandchild, foster child, adopted child, or step-child stepchild; or

(2)  the actor is at least 18 years of age, resides in the victim’s household, and serves in a parental role with respect to the victim;

shall be imprisoned for not more than 35 years, or fined not more than $25,000.00, or both.

(f)(1)  A person who violates subsection (a), (b), (d), or (e) of this section shall be imprisoned not less than three years and for a maximum term of life, and, in addition, may be fined not more than $25,000.00.

(2)  A person who violates subsection (c) of this section shall be imprisoned for not more than 20 years, and, in addition, may be fined not more than $10,000.00.

(g)  A person convicted of violating subsection (a), (b), (d), or (e) of this section shall be sentenced under section 3271 of this title.

§ 3253.  AGGRAVATED SEXUAL ASSAULT

(a)  A person commits the crime of aggravated sexual assault if the person commits sexual assault under any one of the following circumstances:

(1)  At the time of the sexual assault, the actor causes serious bodily injury to the victim or to another.

(2)  The actor is joined or assisted by one or more persons in physically restraining, assaulting or sexually assaulting the victim.

(3)  The actor commits the sexual act under circumstances which constitute the crime of kidnapping.

(4)  The actor has previously been convicted in this state of sexual assault under subdivision 3252(a)(1) or (2) subsection 3252 (a) or (b) of this title or aggravated sexual assault or has been convicted in any jurisdiction in the United States or territories of an offense which would constitute sexual assault under subdivision 3252(a)(1) or (2) subsection 3252 (a) or (b) of this title or aggravated sexual assault if committed in this state.

(5)  At the time of the sexual assault, the actor is armed with a deadly weapon and uses or threatens to use the deadly weapon on the victim or on another.

(6)  At the time of the sexual assault, the actor threatens to cause imminent serious bodily injury to the victim or to another and the victim reasonably believes that the actor has the present ability to carry out the threat.

(7)  At the time of the sexual assault, the actor applies deadly force to the victim.

(8)  The victim is under the age of 10 12 and the actor is at least 18 years of age.

(9)  The victim is subjected by the actor to repeated nonconsensual sexual acts as part of the same occurrence or the victim is subjected to repeated nonconsensual sexual acts as part of the actor’s common scheme and plan.

(b)  A person who commits the crime of aggravated sexual assault shall be imprisoned up to and including not less than ten years and a maximum term of life or, and, in addition, may be fined not more than $50,000.00, or both.  No person who receives a minimum sentence under this section shall be eligible for early release or furlough until the expiration of the minimum sentence imposed.  A minimum sentence ordered pursuant to this section shall include at least a ten-year term of imprisonment which shall be served and may not be suspended, deferred, or served as a supervised sentence.  The defendant shall not be eligible for probation, parole, furlough, or any other type of early release until the expiration of the ten-year term of imprisonment.

(c)  A person convicted of violating this section shall be sentenced under section 3271 of this title.

* * *

Subchapter 2.  Sentencing, Treatment, and Supervision

§ 3271.  INDETERMINATE LIFE SENTENCE

(a)  A person who commits one of the following offenses shall be sentenced under this section:

(1)  Lewd and lascivious conduct with a child, second or subsequent offense, in violation of subdivision 2602(b)(2) of this title.

(2)  Sexual assault in violation of section 3252(a), (b), (d), or (e) of this title.

(3)  Aggravated sexual assault in violation of section 3253 of this title.

(b)  If a person is sentenced under this section, the person’s maximum sentence shall be imprisonment for life.

(c)  If a person sentenced under this section receives a sentence that is wholly or partially suspended, sex offender conditions and treatment shall be a condition of the person’s probation agreement.

(d)  If a person sentenced under this section receives a sentence for an unsuspended term of incarceration, the person shall not be released until the person successfully completes all sex offender treatment and programming required by the department of corrections, unless the department determines that the person poses a sufficiently low risk of reoffense to protect the community or that a program can be implemented which adequately supervises the person and addresses any risk the person may pose to the community.

Sec. 10.  28 V.S.A. § 204 is amended to read:

§ 204.  SUBMISSION OF WRITTEN REPORT; PROTECTION OF RECORDS

* * *

(c)  The report ordered by the court under this section or section 204a of this title shall be made not less than one week nor more than three weeks from the date of the order. This three week limit may be extended by order of the court.

* * *

(e)  The presentence report ordered by the court under this section or section 204a of this title shall include the comments or written statement of the victim, or the victim's guardian or next of kin if the victim is incompetent or deceased, whenever the victim or the victim's guardian or next of kin choose to submit comments or a written statement.

(f)  If the offense charged is aggravated sexual assault, sexual assault, lewd and lascivious behavior, lewd or lascivious behavior with a child, or sexual exploitation of children, the report shall address the issue of the availability of appropriate treatment programs within correctional facilities and on an outpatient basis in the community, including recommendation as to the defendant's eligibility for such treatment programs and shall include a statement of the relevant policies of the department of corrections regarding parole recommendations for the offense of which the offender was convicted.

Sec. 11.  28 V.S.A. § 204a is added to read:

§ 204a.  SEXUAL OFFENDERS; PRE-SENTENCE INVESTIGATIONS;

RISK ASSESSMENTS; PSYCHOSEXUAL EVALUATIONS

(a)  The department of corrections shall conduct a presentence investigation for all persons convicted of:

(1)  lewd and lascivious conduct in violation of section 2601 of this title;

(2)  lewd and lascivious conduct with a child in violation of section 2602 of this title;

(3)  sexual assault in violation of section 3252 of this title;

(4)  aggravated sexual assault in violation of section 3253 of this title; or

(5)  an offense involving sexual exploitation of children in violation of chapter 64 of this title.

(b)  A presentence investigation required by this section:

(1)  shall include an assessment of the offender’s risk of reoffense and a determination of whether the person is a high risk offender;

(2)  shall include a psychosexual evaluation if so ordered by the court; and

(3)  shall be completed before the defendant is sentenced.  Upon completion, the department shall submit copies to the court, the state’s attorney, and the defendant’s attorney.

(c)(1)  The department of corrections shall prepare a recommendation for programming and treatment for all persons for whom a presentence investigation is required under subsection (a) of this section.  The department shall consider the information contained in the presentence investigation when recommending the programming and treatment appropriate for the offender.

(2)  The recommendation required by this subdivision shall address the issue of the availability of appropriate treatment programs within correctional facilities and on an outpatient basis in the community, including recommendation as to the defendant's eligibility for such treatment programs, and shall include a statement of the relevant policies of the department of corrections regarding parole recommendations for the offense of which the offender was convicted.

(3)(A) The court may order the department to provide a report including:

(i)  the minimum and maximum sentences necessary to permit admission of the offender to any of the available treatment programs; and

(ii)  the results of a pre-assessment of the offender.

(B)  A pre-assessment under this subdivision shall consist of:

(i)  an interview with the defendant;

(ii)  an assessment of the offender’s risk level;

(iii)  completion of testing and any other steps necessary to make an appropriate programming decision for the defendant;

(iv)  identification of the treatment program within a correctional facility to which the offender will be referred based on the information available at the time of sentencing, provided the defendant agrees to treatment and is sentenced to a term which permits participation in the program.

(C)(i)  Except as provided in subdivision (ii) of this subdivision (C), the department shall provide a report to the court under this subdivision within 60 days after it is ordered.

(ii)  If the department requires a psychosexual evaluation in order to determine whether the offender will be admitted into any of the available treatment programs, the department shall complete the evaluation and provide it to the court along with its report within 90 days after the report is ordered.

(d)  The requirement that a presentence investigation be performed pursuant to subsection (a) of this section:

(1)  may be waived if the court finds that a report is not necessary for purposes of sentencing; and

(2)  shall not be interpreted to prohibit the performance of a presentence investigation, psychosexual evaluation, or risk assessment at any other time during the proceeding, including prior to the entry of a plea agreement or prior to sentencing for a violation of probation.

(e)  Nothing in this section shall be construed to infringe in any manner upon the department’s authority to make decisions about programming for defendants or to create a right on the part of the offender to receive treatment in a particular program. 

* * * Treatment * * *

Sec. 12.  REPORT

On or before January 15, 2007, the department of corrections shall report to the corrections oversight committee:

(1)  the total current resources and expenditures allocated for providing sex offender programming and treatment to incarcerated offenders;

(2)  the resources and expenditures necessary to provide sex offender programming and treatment to all incarcerated offenders who are amenable to treatment; and

(3)  any significant programmatic changes, including but not limited to elimination of a program. 

*** Vermont Sentencing Commission ***

Sec. 13.  13 V.S.A. chapter 169 is added to read:

Chapter 169.  VERMONT SENTENCING COMMISSION

§ 5451.  CREATION OF COMMISSION

(a)  The Vermont sentencing commission is established for the purpose of overseeing criminal sentencing practices in the state, reducing geographical disparities in sentencing,  and making recommendations regarding criminal sentencing to the general assembly.

(b)  The committee shall consist of the following members:

(1)  the chief justice of the Vermont supreme court, or designee;

(2)  the administrative judge, or designee, provided that the  designee is a sitting or retired Vermont judge;

(3)  a district or superior court judge with substantial criminal law experience appointed by the administrative judge;

(4)  the chair of the senate judiciary committee;

(5)  the chair of the house judiciary committee;

(6)  the attorney general or designee;

(7)  the defender general or designee;

(8)  the executive director of the department of state’s attorneys and sheriffs, or designee;

(9)  the appellate defender;

(10)  a state’s attorney appointed by the executive director of the department of state’s attorneys and sheriffs;

(11)  a staff public defender with experience in juvenile defense matters appointed by the defender general;

(12)  an attorney with substantial criminal law experience appointed by the Vermont bar association;

(13)  the commissioner of corrections or designee;

(14)  the commissioner of public safety or designee;

(15)  the executive director of  the Vermont center for crime victim services or designee;

(16)  the executive director of the Vermont center for justice research; and

(17)  one member of the public appointed by the governor.

(c)  The Chief Justice shall appoint a chair and vice chair of the commission.   Legislative members of the commission shall serve only while in office.  A substitute shall be appointed for a legislator who no longer serves in such capacity.  All other members of the commission shall serve on the committee for renewable two-year terms for as long as the member continues to hold the position which made the member eligible for appointment to or membership on the committee.  Vacancies shall be appointed in the same manner as original appointments.

(d)  The commission shall meet at least quarterly and at any additional times at the call of the chair.  The commission shall take minutes of its meetings and may hold public hearings.  Ten members of the commission shall constitute a quorum.

(e)  The commission shall have the assistance and cooperation of the department of public safety, the department of corrections, the department of social and rehabilitation services, the judiciary department, the department of sheriff’s and state’s attorneys, the office of defender general, the Vermont center for crime victim services, and all other state and local agencies and departments. 

(f)  Legislative members of the commission shall be entitled to per diem compensation and reimbursement for expenses in accordance with section 406 of Title 2.  Members of the commission who are not otherwise compensated by their employer shall be entitled to per diem compensation and reimbursement for expenses in the same manner as board members are compensated under section 1010 of Title 32.

§ 5452.  DUTIES

(a)  In addition to the general responsibilities set forth in subsection 5451 of this title, the commission shall:

(1)  Report on historical and existing sentencing practices in Vermont, including the frequency and duration of incarcerative and non-incarcerative sentences for particular offenses.

(2)  Report on geographical sentencing disparities which result in a defendant’s sentence for an offense varying substantially on the basis of the county in which it is committed.

(3)  Propose a system of statewide discretionary sentencing guidelines which take into account historical and existing sentencing practices and establish rational and consistent statewide sentencing standards. 

(4)  Review alternatives to the traditional prosecutorial model and make recommendations for alternative sentencing methods to the general assembly;

(5)  Review practices involving probation, parole, early or conditional release, pre-approved furlough, supervised community sentence, graduated sanctions, and the awarding of sentencing credits, and make recommendations concerning such practices to the department of corrections and the general assembly;

(6)  Review developments in criminal law, including statutory modifications and judicial decisions, and make recommendations to the general assembly when the commission determines that legislative changes are advisable;

(7)  Review proposed legislation and make recommendations concerning the proposals to the general assembly;

(8)  Consider any other issue the commission finds relevant to criminal sentencing and the criminal justice system.

(b)  The commission shall report its activities and recommendations, including any proposals for legislative action, to the general assembly and the governor no later than December 1, 2007, and no later than December 1 of each year thereafter.

*** Non-Violent Offenders ***

Global Positioning System

Sec. 14.  Sec. 23 of No. 63 of the Acts of 2005 is amended to read:

Sec. 23.  ELECTRONIC MONITORING

(a)  The department of corrections is authorized to implement a pilot program using a global positioning system (“GPS”) or other electronic monitoring within the community pursuant to the terms of the plan submitted by the department to the house committees on appropriations and institutions in January 2005 (the “pilot program”); provided that the pilot program may only involve:

(1)  20 100 offenders at any one time.

(2)  Offenders convicted of D.U.I. pursuant to Title 23 and nonviolent offenders who might otherwise be incarcerated for violating the conditions of their release

(b)  When the department of corrections determines that an offender shall be subject to electronic monitoring under this subdivision, the department shall provide notice of its determination to the victim of the offense, if the victim has filed a request for notification with the department.

(c)  On or before January 15, 2006, 2007, the commissioner of corrections shall report to the house and senate committees on appropriations and on judiciary regarding the department’s progress in implementing the pilot program.

Term Probation for Non-Violent Felons

Sec. 15.  28  V.S.A. § 205 is amended to read:

§ 205. PROBATION

(a)(1) After passing sentence, a court may suspend all or part of the sentence and place the person so sentenced in the care and custody of the commissioner upon such conditions and for such time as it may prescribe in accordance with law or until further order of court.

(2)  The term of probation for misdemeanors shall be for a specific term not to exceed two years unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.

(3)(A)  The term of probation for non-violent felonies shall not exceed the statutory maximum term of imprisonment for the offense unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.

(B)  As used in this subdivision, “non-violent felonies” means an offense which is not:

(i)  a listed crime as defined in subdivision 5301(7) of Title 13; or

(ii)  an offense involving sexual exploitation of children in violation of chapter 6 of Title 13.

(4)  Nothing in this subsection shall prevent the court from terminating the period of probation and discharging a person pursuant to section 251 of this title.

(5)  The probation officer of a person on probation for a specific term shall review the person's case file during probation and, not less than 45 days prior to the expiration of the probation term, may file a petition with the court requesting the court to extend the period of probation for a specific term not to exceed one year in order to provide the person the opportunity to complete programming consistent with special conditions of probation. A hearing on the petition for an extension of probation under this subsection shall comply with the procedures set forth in Rule 32.1 of the Vermont Rules of Criminal Procedure.

* * *

Non-Violent Felony Unit in Defender General’s Office

Sec. 16.  DEFENDER GENERAL; NON-VIOLENT FELONY UNIT

(a)  A non-violent felony unit dedicated to defending non-violent felonies is established within the office of the defender general.

(b)  As used in this section, “non-violent felonies” means an offense which is not:

(1)  a listed crime as defined in subdivision 5301(7) of Title 13; or

(2)  an offense involving sexual exploitation of children in violation of chapter 6 of Title 13.

*** Sex Offender Registry ***

Violent Offender Registry

Sec. 17.  13  V.S.A. § 5401 is amended to read:

§ 5401. DEFINITIONS

As used in this subchapter:

* * *

(17)   “Violent Offender” means a person who has been convicted of a violent offense as defined in subdivision 18 of this section.

(18)   “Violent Offense” means murder as defined in 13 V.S.A. § 2301, aggravated murder as defined in 13 V.S.A. § 2311, kidnapping as defined in 13 V.S.A. § 2405, arson causing death as defined in 13 V.S.A. § 501, any attempt to commit a crime listed herein or a comparable offense in another jurisdiction of the United States.

(19) “Violent Predator” means a person who has been convicted of a violent offense as defined in subdivision (18) of this section, and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory violent offenses.

Sec. 18.  13  V.S.A. § 5402 is amended to read:

§ 5402. SEX OFFENDER AND VIOLENT OFFENDER REGISTRY

(a) The department of public safety shall establish and maintain a sex offender and violent offender registry, which shall consist of the information required to be filed under this subchapter.

(b) All information contained in the registry may be disclosed for any purpose permitted under the law of this state, including use by:

(1) local, state and federal law enforcement agencies exclusively for lawful law enforcement activities;

(2) state and federal governmental agencies for the exclusive purpose of conducting confidential background checks;

(3) any employer, including a school district, who is authorized by law to request records and information from the Vermont criminal information center, where such disclosure is necessary to protect the public concerning persons required to register under this subchapter. The identity of a victim of an offense that requires registration shall not be released; and

(4) a person identified as a sex offender or violent offender in the registry for the purpose of reviewing the accuracy of any record relating to him or her. The identity of a victim of an offense that requires registration shall not be released.

* * *

Sec. 19.  13  V.S.A. § 5403 is amended to read:

§ 5403. REPORTING UPON CONVICTION

(a) Upon conviction and prior to sentencing, the court shall order the sex offender or violent offender to provide the court with the following information, which the court shall forward to the department forthwith:

(1) name;

(2) date of birth;

(3) general physical description;

(4) current address;

(5) Social Security number;

(6) fingerprints;

(7) current photograph;

(8) current employment; and

(9) name and address of any postsecondary educational institution at which the sex offender or violent offender is enrolled as a student.

(b) Within 10 days after sentencing, the court shall forward to the department the sex offender's or violent offender’s conviction record, including offense, date of conviction, sentence and any conditions of release or probation.

Sec. 20.  13 V.S.A. § 5404 is amended to read:

§ 5404. REPORTING UPON RELEASE FROM CONFINEMENT OR SUPERVISION

(a) Upon receiving a sex offender or violent offender from the court on a probationary sentence or any alternative sentence under community supervision by the department of corrections, or prior to releasing a sex offender or violent offender from confinement or supervision, the department of corrections shall forward to the department the following information concerning the sex offender or violent offender:

(1) an update of the information listed in subsection 5403(a) of this title;

(2) the address upon release;

(3) name, address, and telephone number of the local department of corrections office in charge of monitoring the sex offender or violent offender; and

(4) documentation of any treatment or counseling received.

(b) The department of corrections shall notify the department within 24 hours of the time a sex offender or violent offender changes his or her address or place of employment, or enrolls in or separates from any postsecondary educational institution. In addition, the department of corrections shall provide the department with any updated information requested by the department.

(c) The information required to be provided by subsection (a) of this section shall also be provided by the department of corrections to a sex offender's or violent offender’s parole or probation officer within three days of the time a sex offender or violent offender is placed on probation or parole by the court or parole board.

(d) If it has not been previously submitted, upon receipt of the information to be provided to the department pursuant to subsection (a) of this section, the department shall immediately transmit the conviction data and fingerprints to the Federal Bureau of Investigation.

Sec. 21.  13  V.S.A. § 5405 is amended to read:

§ 5405. COURT DETERMINATION OF SEXUALLY VIOLENT PREDATORS AND VIOLENT PREDATORS

(a) The general assembly finds that some sexual offenders and violent offenders should be subject to increased sex offender or violent offender registry and community notification procedures. It is the intent of the general assembly that state's attorneys utilize the provisions in this section to petition the court to designate those offenders who pose a greater risk to the public as sexually violent predators or violent predators to ensure that those offenders will be required to register as sex offenders or violent offenders for life, and that they will be among those offenders who are included on the state's internet sex offender and violent offender registry.

(b) Within 15 days after the conviction of a sex offender or violent offender, the state may file a petition with the court requesting that the person be designated as a sexually violent predator or violent predator.

(c) The determination of whether a person is a sexually violent predator or violent predator shall be made by the court at the time of sentencing.

(d) The court shall order a presentence investigation which, in the case of a sex offender, shall include a psychosexual evaluation of the offender.

(e) In making a determination of whether the person is a sexually violent predator or violent predator, the court shall examine the following:

(1) the person's criminal history;

(2) any testimony presented at trial, including expert testimony as to the person's mental state;

(3) the person's history of treatment for a personality disorder or mental abnormality connected with his or her criminal sexual behavior or violent behavior;

(4) any mitigating evidence, including treatment history, evidence of modified behavior, or expert testimony, which the convicted sex offender or violent offender wishes to provide to the court prior to the determination; and

(5) any other relevant evidence.

(f) The standard of proof when the court makes such a determination shall be clear and convincing evidence that the convicted sex offender or violent offender suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses or predatory violent offenses.

(g) The court shall determine whether the offender was eligible to be charged as a habitual offender as provided in section 11 of this title or a violent career criminal as provided in section 11a of this title and shall make findings as to such.

(h) After making its determinations, the court shall issue a written decision explaining the reasons for its determinations and provide a copy of the decision to the department within 10 days.

(i) A person who is determined to be a sexually violent predator or violent predator shall be subject to sex offender or violent offender lifetime registration and community notification and inclusion on the internet sex offender and violent offender registry as provided in this subchapter.

Sec. 22.  13  V.S.A. § 5406 is amended to read:

§ 5406. DEPARTMENT OF CORRECTIONS DUTY TO PROVIDE NOTICE

Upon receiving a sex offender or violent offender from the court on a probationary sentence or any alternative sentence under community supervision by the department of corrections, or upon the release of a sex offender or violent offender from a correctional facility, the department of corrections shall do each of the following:

(1) inform the sex offender or violent offender of the duty to register and keep the registration current as provided in section 5407 of this title;

(2) inform the sex offender or violent offender that if the sex offender or violent offender changes residence to another state, the sex offender or violent offender shall notify the department of the new address and shall also register with the designated law enforcement agency in the new state not later than three days after establishing residence in the new state, if the new state has a registration requirement;

(3) require the sex offender or violent offender to read and sign a form stating that the duty of the sex offender or violent offender to register under this section has been explained and is understood. The registration form shall be sent to the department without delay; and

(4) inform the sex offender or violent offender that if he or she crosses into another state for purposes of employment, carrying on a vocation, or being a student, the sex offender or violent offender must notify the department of the new address, and shall register with the designated law enforcement agency in the other state, if the other state has a registration requirement.

Sec. 23.  13  V.S.A. § 5407 is amended to read:

§ 5407. SEX OFFENDER'S AND VIOLENT OFFENDER’S DUTY TO REPORT

(a) A sex offender or violent offender shall report to the department as follows:

(1) if convicted of a registry offense in another state, within 10 days after either establishing residence in this state or crossing into this state for purposes of employment, carrying on a vocation, or being a student, the sex offender or violent offender shall provide the information listed in subsection 5403(a) of this title;

(2) annually within 10 days after the registrant's birthday, or if a person is determined to be a sexually violent predator or violent predator, that person shall report to the department every 90 days;

* * *

(b) If a sex offender or violent offender changes residence to another state, or crosses into another state for purposes of employment, carrying on a vocation, or being a student, the sex offender or violent offender shall notify the department of the new address and shall also register with the designated law enforcement agency in the new state not later than three days after establishing residence in the new state, if the new state has a registration requirement.

(c) Upon a sex offender's or violent offender’s change of residence to another state, the department shall immediately notify the designated law enforcement agency in the new state, if the new state has a registration requirement.

(d) The report required by this section shall include the information required by sections 5403 and 5404 of this chapter.

(e) Except as provided for in subsection (f) of this section, a person required to register as a sex offender or violent offender under this subchapter shall continue to comply with this section, except during periods of incarceration, until 10 years have elapsed since the person was released from prison or discharged from parole, supervised release, or probation, whichever is later. The 10-year period shall not be affected or reduced in any way by the actual duration of the offender's sentence as imposed by the court, nor shall it be reduced by the sex offender's or violent offender’s release on parole or ending of probation or other early release.

(f) A person required to register as a sex offender or violent offender under this subchapter shall continue to comply with this section for the life of that person, except during periods of incarceration, if that person:

(1) has at least one prior conviction for an offense described in subdivision 5401(10) or subdivision 5401(18) of this subchapter or a comparable offense in another jurisdiction of the United States;

(2) has been convicted of a sexual assault as defined in section 3252 of this title or aggravated sexual assault as defined in section 3253 of this title; however, if a person convicted under section 3252 is not more than six years older than the victim of the assault and if the victim is 14 years or older, then the offender shall not be required to register for life if the age of the victim was the basis for the conviction; or

(3)  has been convicted of  murder as defined in section 2301 of this title, aggravated murder as defined in section 2311 of this title , kidnapping as defined in section 2405 of this title, or arson causing death as defined in section 501 of this title; or

(4)  has been determined to be a sexually violent predator pursuant to section 5405 of this subchapter.

(g) The department shall adopt forms and procedures for the purpose of verifying the addresses of persons required to register under this subchapter in accordance with the requirements set forth in section (b)(3) of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act and in accordance with federal violent offender registration laws.  Every 90 days for sexually violent predators and violent predators, and annually for other registrants, the department shall verify addresses of registrants by sending a nonforwardable address verification form to each registrant at the address last reported by the registrant. The registrant shall be required to sign and return the form to the department within 10 days of receipt.

(h) A registrant who has no permanent address shall report to the department to notify it as to his or her temporary residence. Temporary residence, for purposes of this section, need not include an actual dwelling or numbered street address, but shall identify a specific location. A registrant shall not be required to check in daily if he or she makes acceptable other arrangements with the department to keep his or her information current.

Sec. 24.  13  V.S.A. § 5410 is amended to read:

§ 5410. VICTIM NOTIFICATION

If requested by a victim, the department shall promptly notify the victim of the initial registration of a sex offender or violent offender and any time the sex offender or violent offender changes address, where such disclosure is necessary to protect the victim or the public concerning a person required to register under this subchapter.

Sec. 25.  13  V.S.A. § 5411 is amended to read:

§ 5411. NOTIFICATION TO LOCAL LAW ENFORCEMENT AND LOCAL COMMUNITY

(a) Upon receiving a sex offender's or violent offender’s registration materials from the department of corrections, notification that a nonresident sex offender or violent offender has crossed into Vermont for the purpose of employment, carrying on a vocation, or being a student, or a sex offender's or violent offender’s release or change of address, including changes of address which involve taking up residence in this state, the department shall immediately notify the local law enforcement agency of the following information, which may be used only for lawful law enforcement activities:

(1) name;

(2) general physical description;

(3) nature of offense;

(4) sentence;

(5) the fact that the registry has on file additional information, including the sex offender's or violent offender’s photograph and fingerprints;

(6) current employment;

(7) name and address of any postsecondary educational institution at which the sex offender or violent offender is enrolled as a student; and

(8) whether the offender complied with treatment recommended by the department of corrections.

(b)(1) Except as provided for in subsections (c) and (e) of this section, the department, the department of corrections, and any authorized local law enforcement agency shall release registry information concerning persons required to register under state law if the requestor can articulate a concern about the behavior of a specific person regarding the requestor's personal safety or the safety of another, or the requestor has reason to believe that a specific person may be a registered sex offender or violent offender and can articulate a concern regarding the requestor's personal safety or the safety of another. However, the identity of a victim of an offense shall not be released.

(2) The department, the department of corrections, and any authorized local law enforcement agency shall release the following registry information if the requestor meets the requirements in subdivision (1) of this subsection:

(A) a general physical description of the offender;

(B) date of birth;

(C) the date and nature of the offense;

(D) whether the offender complied with treatment recommended by the department of corrections; and

(E) whether there is an outstanding warrant for the offender's arrest.

(c)(1) Except as provided for in subsection (e) of this section, upon request of a member of the public about a specific person, the department, the department of corrections, and any authorized local law enforcement agency shall release registry information on the following registrants:

(A) Sex offenders who have been convicted of section 3253 of this title (aggravated sexual assault), subdivision 2405(a)(1)(D) of this title if a registrable offense (kidnapping and sexual assault of a child), or 33 V.S.A. § 6913(d)(sexual activity with a vulnerable adult).

(B) Violent offenders who have been convicted of a violation of section 2301 of this title (murder), section 2311 of this title (aggravated murder), section 501 of this title (arson causing death).

(B) (C) Sex offenders or violent offenders who have at least one prior conviction for an offense described in subdivision 5401(10) of this subchapter or a comparable offense in another jurisdiction.

(C) (D) Sex offenders or violent offenders who have failed to comply with sex offender or violent offender registration requirements and for whose arrest there is an outstanding warrant for such noncompliance.

(D) (E) Sex offenders or violent offenders who have been designated as sexual predators pursuant to section 5405 of this title.

(E) (F) Sex offenders or violent offenders who have been designated by the department of corrections, pursuant to section 5411b of this title, as high risk.

(2) The department, the department of corrections, and any authorized local law enforcement agency shall release the following registry information to a requestor in accordance with subdivision (1) of this subsection:

(A) the offender's known aliases;

(B) the offender's date of birth;

(C) a general physical description of the offender;

(D) the offender's town of residence;

(E) the date and nature of the offender's conviction;

(F) if the offender is under the supervision of the department of corrections, the name and telephone number of the local department of corrections office in charge of monitoring the offender;

(G) whether the offender complied with treatment recommended by the department of corrections;

(H) whether there is an outstanding warrant for the offender's arrest; and

(I) the reason for which the offender information is accessible under subdivision (1) of this subsection.

(d) The department, the department of corrections, and any local law enforcement agency authorized to release registry information shall keep a log of requests for registry information and follow the procedure for verification of the requestor's identity recommended by the department. Such log shall include the requestor's name, address, telephone number, the name of the person for whom the request was made, the reason for the request, and the date of the request. Information about requestors shall be confidential and shall only be accessible to criminal justice agencies.

(e) After 10 years have elapsed from the completion of the sentence, a person required to register as a sex offender or violent offender for life pursuant to section 5407 of this title may petition the district court for a termination of notification. The state shall make a reasonable attempt to notify the victim of the proceeding, and consider victim testimony regarding the petition. If the registrant was convicted of a crime which requires lifetime registration, there shall be a rebuttable presumption that the person is a high-risk sex offender or violent offender. Should the registrant present evidence that he or she is not a high-risk offender, the state shall have the burden of proof to establish by a preponderance of the evidence that the person remains a high risk to reoffend. The court shall consider whether the offender has successfully completed sex offender or violent offender treatment. The court may require the offender to submit to a psychosexual evaluation. If the court finds that there is a high risk of reoffense, notification shall continue. The Vermont Rules of Civil Procedure shall apply to these proceedings. A registrant may petition the court to be removed from the registry once every 60 months. The presumption under this section that a lifetime registrant is a high-risk offender shall not automatically subject the offender to increased public access to his or her status as a sex offender or violent offender and related information under subdivision (c)(1)(E) of this section or section 5411a of this title.

Sec. 26.  13  V.S.A. § 5411b is amended to read:

§ 5411B. DESIGNATION OF HIGH-RISK SEX OFFENDER OR VIOLENT OFFENDER

(a) The department of corrections may evaluate a sex offender or violent offender for the purpose of determining whether the offender is "high-risk" as defined in section 5401 of this title. The designation of high-risk under this section is for the purpose of identifying an offender as one who should be subject to increased public access to his or her status as a sex offender or violent offender and related information, including internet access.

(b) After notice and an opportunity to be heard, a sex offender or violent offender who is designated as high-risk shall have the right to appeal de novo to the superior court in accordance with Rule 75 of the Vermont Rules of Civil Procedure.

(c) The department of corrections shall adopt rules for the administration of this section. The department of corrections shall not implement this section prior to the adoption of such rules.

(d) The department of corrections shall identify those sex offenders and violent offenders under the supervision of the department as of the date of passage of this act who are high-risk and shall designate them as such no later than September 1, 2005.

Sec. 27.  13  V.S.A. § 5412 is amended to read:

§ 5412. ACTIVE COMMUNITY NOTIFICATION BY THE DEPARTMENT OF PUBLIC SAFETY, THE DEPARTMENT OF CORRECTIONS, AND LOCAL LAW ENFORCEMENT; IMMUNITY

(a) The department, the department of corrections, any authorized local law enforcement agency, and their employees shall be immune from liability in carrying out the provisions under this subchapter except in instances of gross negligence or willful misconduct, provided that the agencies complied with the rules adopted pursuant to this subchapter.

(b) The department, the department of corrections, and any authorized local law enforcement agency are authorized to notify members of the public who are likely to encounter a sex offender or violent offender who poses a danger under circumstances that are not enumerated in this subchapter.

(c) Notification of the community beyond those persons likely to encounter a sex offender or violent offender shall be authorized only under circumstances which constitute a compelling risk to public safety and only after consultation with the Vermont crime information center and the department of corrections.

(d) Active community notification regarding registered sex offenders and violent offenders who may pose a danger to members of the community is an important public safety tool which the general assembly intends for authorized agencies to use at their discretion in accordance with this subchapter.

Sec. 28.  13  V.S.A. § 5413 is amended to read:

§ 5413. EXPUNGEMENT OF RECORDS

A person whose conviction of a sex offense or violent offense is reversed and dismissed shall not be required to register for that conviction under the provisions of this subchapter and any information about that conviction contained in the registry shall be removed and destroyed. If any information about that conviction was provided to any person or agency under subsection 5402(b) of this subchapter, that person or agency shall be notified that the conviction was reversed and shall be required to remove and destroy the information. If the person whose conviction is reversed and dismissed has more than one entry in the registry, only the entry related to the dismissed case shall be removed and destroyed.

Sec. 29.  13  V.S.A. § 5414 is amended to read:

§ 5414. PARTICIPATION IN NATIONAL SEX OFFENDER AND VIOLENT OFFENDER REGISTRATION

The department shall participate in the National Sex Offender Registry Program managed by the Federal Bureau of Investigation in accordance with guidelines issued by the U.S. Attorney General, including transmission of current address information and other information on registrants to the extent provided by the guidelines. The department shall also participate in any violent offender registry program which may be managed by the Federal Bureau of Investigation, including transmission of current address information and other information on registrants to the extent provided by federal guidelines.

Violation of Registry Requirements (S.184)

Sec. 30.  Rule 3 of the Vermont Rules of Criminal Procedure is amended to read:

Rule 3.  Arrest Without A Warrant; Citation to Appear

* * *

(c)  Nonwitnessed Misdemeanor Offenses.  If an officer has probable cause to believe a person has committed or is committing a misdemeanor outside the presence of the officer, the officer may issue a citation to appear before a judicial officer in lieu of arrest.  The officer may arrest the person without a warrant if the officer has probable cause to believe: 

* * *

(17)  The person is a sex offender or violent offender who has failed to comply with the provisions of subchapter 3 of chapter 167 of Title 13 (sex offender and violent offender registration and notification).

Sec. 31.  13 V.S.A. § 5408 is amended to read:

§ 5408.  RECORD OF ADDRESSES; ARREST WARRANT

(a) The department shall maintain a record of the addresses of all sex offenders and violent offenders. The record shall be updated at least every three months. At any time, if the department is unable to verify the whereabouts and address of a sex offender or violent offender subject to this subchapter, it shall immediately notify the local law enforcement agency in writing that the sex offender's or violent offender’s whereabouts are unknown. The department shall also send a copy of the notification to the state's attorney of the county in which the sex offender's or violent offender’s most recent address is located.

(b)  A sex offender’s failure to report a change of address as required by this subchapter shall be grounds to issue a warrant for the arrest of the sex offender and the provisions of Rule 3 of the Vermont Rules of Criminal Procedure shall not apply to such an arrest.

Sec. 32.  13 V.S.A. § 5409 is amended to read:

§ 5409.  PENALTIES

(a)  A  Except as provided in subsection (b) of this section, a  sex offender or violent offender who knowingly fails to comply with any provision of this subchapter shall:

(1)  Be imprisoned for not more than two years or fined not more than $1,000.00, or both.  A sentence imposed under this subdivision shall run consecutively to any sentence being served by the sex offender or violent offender at the time of sentencing.

(2)  For the second or subsequent offense, be imprisoned not more than three years or fined not more than $5,000.00, or both.  A sentence imposed under this subdivision shall run consecutively to any sentence being served by the sex offender or violent offender at the time of sentencing.

(b)  A sex offender or violent offender who knowingly fails to comply with any provision of this subchapter for a period of more than five consecutive days shall be imprisoned not more than five years or fined not more than $5,000.00, or both.  A sentence imposed under this subsection shall run consecutively to any sentence being served by the sex offender or violent offender at the time of sentencing.

Addresses

Sec. 33.  13  V.S.A. § 5411(c)(3) is added to read:

(3)(A)  The department, the department of corrections, and any authorized local law enforcement agency may, at the discretion of an authorized law enforcement officer, release the current address of the offender. 

(B)  For purposes of this subdivision, “authorized law enforcement officer” means a sheriff, a chief of police, the commissioner of public safety, or a designee.  The designee shall be a certified law enforcement officer whose authority is granted or given by the sheriff, chief of police, or commissioner of public safety, either through explicit order or department policy.

Kidnapping With Intent to Commit Sexual Assault; Registration of Offenders Under Age 18 (S.202)

Sec. 34.  13 V.S.A. § 5401(10) is amended to read:

(10)  “Sex offender” means:

(A) A person who is convicted in any jurisdiction of the United States, including a state, territory, commonwealth, the District of Columbia, or military, federal, or tribal court of any of the following offenses:

* * *

(v) second or subsequent conviction for voyeurism as defined in 13 V.S.A. § 2638(b) or (c); and

(vi)  kidnapping with intent to commit sexual assault as defined in 13  V.S.A. § 2405(a)(1)(D); and

(vi) (vii) an attempt to commit any offense listed in this subdivision.

(B)  A person who is convicted of any of the following offenses against a victim who is a minor, except that, for purposes of this subdivision, conduct which is criminal only because of the age of the victim shall not be considered an offense for purposes of the registry if the perpetrator is under the age of 18 and the victim is at least 12 years old:

(i)  any offense listed in subdivision (A) of this subdivision (10);

* * *

High Risk Offender Duty to Report

Sec. 35.  13  V.S.A. § 5407(a)(3) is amended to read:

(3) within three days after any change of address, or if a person is designated as a high-risk sex offender or high-risk violent offender pursuant to section 5411b of this title, that person shall report to the department within 36 hours;

*** Internet Registry; Expansion and Repeat Offenders; Removal of Log-In Requirement ***

Sec. 36.  13  V.S.A. § 5411a is amended to read:

§ 5411A. ELECTRONIC POSTING OF THE SEX OFFENDER AND VIOLENT OFFENDER REGISTRY

(a) Notwithstanding sections 2056a-2056e of Title 20, the department shall electronically post information on the internet in accordance with subsection (b) of this section regarding the following sex offenders  and violent offenders , upon their release from confinement:

(1) Sex offenders who have been convicted of a violation of section 3253 of this title (aggravated sexual assault), section 2602 of this title (lewd or lascivious conduct with child), or subdivision 2405(a)(1)(D) of this title if a registrable offense (kidnapping and sexual assault of a child).

(2)  Violent offenders who have been convicted of a violation of section 2301 of this title (murder), section 2311 of this title (aggravated murder), section 501 of this title (arson causing death).

(2) (3) Sex offenders who are convicted of a violation of section 3252 (sexual assault) or 2602 (lewd or lascivious conduct with child) of this title, and who have a prior conviction of a violation of section 3252 (sexual assault) or 2602 (lewd or lascivious conduct with child) of this title. Comparable offenses in another jurisdiction shall be included in this subsection who have at least one prior conviction for an offense described in subdivision 5401(10) of this subchapter.

(3) (4) Sex offenders or violent offenders who have failed to comply with sex offender or violent offender registration requirements and for whose arrest there is an outstanding warrant for such noncompliance. Information on offenders shall remain on the internet only while the warrant is outstanding.

(4) (5) Sex offenders or violent offenders who have been designated as sexual predators or violent predators pursuant to section 5405 of this title.

(5) (6) Sex offenders or violent offenders who have not complied with sex offender or violent offender treatment recommended by the department of corrections or who are ineligible for sex offender or violent offender treatment. The department of corrections shall establish rules for the administration of this subdivision and shall specify what circumstances constitute noncompliance with treatment and criteria for ineligibility to participate in treatment. Offenders subject to this provision shall have the right to appeal the department of corrections' determination in superior court in accordance with Rule 75 of the Vermont Rules of Civil Procedure. This subdivision shall apply prospectively and shall not apply to those sex offenders or violent offenders who did not comply with treatment or were ineligible for treatment prior to March 1, 2005.

(6) (7) Sex offenders or violent offenders who have been designated by the department of corrections, pursuant to section 5411b of this title, as high-risk.

(b) The department shall electronically post the following information on sex offenders or violent offenders designated in subsection (a) of this section:

(1) the offender's name and any known aliases;

(2) the offender's date of birth;

(3) a general physical description of the offender;

(4) a digital photograph of the offender;

(5) the offender's town of residence;

(6) the date and nature of the offender's conviction;

(7) if the offender is under the supervision of the department of corrections, the name and telephone number of the local department of corrections office in charge of monitoring the sex offender or violent offender;

(8) whether the offender complied with treatment recommended by the department of corrections;

(9) a statement that there is an outstanding warrant for the offender's arrest, if applicable; and

(10) the reason for which the offender information is accessible under this section.

(c) The department shall have the authority to take necessary steps to obtain digital photographs of offenders whose information is required to be posted on the internet and to update photographs as necessary. An offender who is requested by the department to report to the department or a local law enforcement agency for the purpose of being photographed for the internet shall comply with the request within 30 days.

(d) An offender's street address shall not be posted electronically. The identity of a victim of an offense that requires registration shall not be released.

(e) Information regarding a sex offender shall not be posted electronically if the conduct that is the basis for the offense is criminal only because of the age of the victim and the perpetrator is within 38 months of age of the victim.

(f) Information regarding a sex offender shall not be posted electronically prior to the offender reaching the age of 18, but such information shall be otherwise available pursuant to section 5411 of this title.

(g) Information on sex offenders and violent offenders shall be posted on the internet for the duration of time for which they are subject to notification requirements under section 5401 et seq. of this title.

(h) Posting of the information shall include the following language: "This information is made available for the purpose of complying with 13 V.S.A. § 5401 et seq., which requires the Department of Public Safety to establish and maintain a registry of persons who are required to register as sex offenders or violent offenders and to post electronically information on sex offenders and violent offenders. The registry is based on the legislature's decision to facilitate access to publicly available information about persons convicted of sexual offenses. EXCEPT FOR OFFENDERS SPECIFICALLY DESIGNATED ON THIS SITE AS HIGH-RISK, THE DEPARTMENT OF PUBLIC SAFETY HAS NOT CONSIDERED OR ASSESSED THE SPECIFIC RISK OF REOFFENSE WITH REGARD TO ANY INDIVIDUAL PRIOR TO HIS OR HER INCLUSION WITHIN THIS REGISTRY AND HAS MADE NO DETERMINATION THAT ANY INDIVIDUAL INCLUDED IN THE REGISTRY IS CURRENTLY DANGEROUS. THE MAIN PURPOSE OF PROVIDING THIS DATA ON THE INTERNET IS TO MAKE INFORMATION MORE EASILY AVAILABLE AND ACCESSIBLE, NOT TO WARN ABOUT ANY SPECIFIC INDIVIDUAL. If you have questions or concerns about a person who is not listed on this site or you have questions about sex offender information listed on this site, please contact the Department of Public Safety or your local law enforcement agency. Please be aware that many nonoffenders share a name with a registered sex offender.  IF YOU HAVE QUESTIONS OR CONCERNS ABOUT A PERSON WHO IS NOT LISTED ON THIS SITE OR YOU HAVE QUESTIONS ABOUT SEX OFFENDER OR VIOLENT OFFENDER INFORMATION LISTED ON THIS SITE, PLEASE CONTACT THE DEPARTMENT OF PUBLIC SAFETY OR YOUR LOCAL LAW ENFORCEMENT AGENCY. PLEASE BE AWARE THAT MANY NONOFFENDERS SHARE A NAME WITH A REGISTERED SEX OFFENDER OR VIOLENT OFFENDER. Any person who uses information in this registry to injure, harass, or commit a criminal offense against any person included in the registry or any other person is subject to criminal prosecution."

(i) The department shall post electronically general information about the sex offender and violent offender registry and how the public may access registry information. Electronically posted information regarding sex offenders or violent offenders listed in subsection (a) of this section shall be organized and available to search by the sex offender's or violent offender’s name and the sex offender's or violent offender’s county of residence.

(j) Any member of the public who seeks to access information on specific sex offenders on the sex offender website shall register on the website. Registration information about site users shall not be public. The website shall require the person's name and address and shall require the person to acknowledge that he or she has read the following disclaimer: "THE IDENTIFYING INFORMATION REGARDING A REGISTERED USER OF THIS SITE IS MAINTAINED PURSUANT TO LAW AND IS CONFIDENTIAL AND NOT SUBJECT TO PUBLIC DISCLOSURE. THE INFORMATION IS COLLECTED TO IDENTIFY A PATTERN OR PRACTICE OF MISUSE OF SEX OFFENDER REGISTRATION INFORMATION SUCH AS THE COMMISSION OF A CRIME AGAINST A REGISTERED SEX OFFENDER OR ANY ATTEMPT TO PORTRAY FALSELY AN INDIVIDUAL AS A SEX OFFENDER. USING AND SHARING SEX OFFENDER INFORMATION RESPONSIBLY TO ENSURE THE SAFETY OF YOURSELF, YOUR FAMILY, AND YOUR COMMUNITY IS NOT A PATTERN OR PRACTICE OF MISUSE."

(k) The department shall adopt rules for the administration of this section and shall expedite the process for the adoption of such rules. The department shall not implement this section prior to the adoption of such rules.

( l ) (j)  If a sex offender's or violent offender’s information is required to be posted electronically pursuant to subdivision (a)(2) of this section, the department shall list the offender's convictions for any crime listed in subdivision 5401(10) of this title, regardless of the date of the conviction or whether the offender was required to register as a sex offender or violent offender based upon that conviction.

*** Approval of Residence ***

Sec.  37.  28  V.S.A. § 710 is added to read:

§ 710.  APPROVAL OF RESIDENCE

(a)  Before approving a residence for a sex offender who is being released from confinement or whom the court has released on a probationary sentence or an alternative sentence under community supervision by the department, the commissioner or the commissioner’s designee shall give careful consideration to the proximity of the residence to any risk group associated with the offender.

(b)  For purposes of this section, “sex offender” shall have the same meaning as in subdivision 5401(10)(B) of Title 13.

*** Rules of Evidence in Sex Offender Cases ***

Sec. 38.  Rule 413 of the Vermont Rules of Evidence is added to read:

RULE 413.  EVIDENCE OF SIMILAR CRIMES IN SEXUAL ASSAULT CASES

(a)  In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the state intends to offer evidence under this rule, the prosecutor disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c)  This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d)  For purposes of this rule and Rule 415, "offense of sexual assault" means:

(1)  lewd and lascivious conduct in violation of section 2601 of this title;

(2)  lewd and lascivious conduct with a child in violation of section 2602 of this title;

(3)  sexual assault in violation of section 3252 of this title; or

(4)  aggravated sexual assault in violation of section 3253 of this title;

Sec. 39.  Rule 414 of the Vermont Rules of Evidence is added to read:

RULE 414.  EVIDENCE OF SIMILAR CRIMES IN CHILD MOLESTATION CASES

(a)  In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b)  In a case in which the state intends to offer evidence under this rule, the prosecutor shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c)  This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d)  For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means:

(1)  lewd and lascivious conduct with a child in violation of section 2602 of this title;

(2)  sexual assault with a child in violation of section 3252 of this title; or

(3)  aggravated sexual assault in violation of section 3253 of this title;

Sec. 40.  Rule 415 of the Vermont Rules of Evidence is added to read:

RULE 415.  EVIDENCE OF SIMILAR ACTS IN CIVIL CASES CONCERNING SEXUAL ASSAULT OR CHILD MOLESTATION

(a)  In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 41 and Rule 414 of these rules.

(b)  A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c)  This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

*** Appropriations; Positions Created ***

Sec. 42.  APPROPRIATIONS

(a)(1)  The amount of $130,000.00 is appropriated from the general fund in fiscal year 2007 to the University of Vermont to support implementation of “The Vermont Approach:  A Strategic Plan for Sexual Violence Prevention,” produced by the Vermont network against domestic and sexual violence, the Vermont department of health, and the anti-violence partnership at the University of Vermont.  The funds appropriated under this subsection shall be used to hire a coordinator and to support the statewide project safe choices program, with the goal of beginning a statewide, collaborative, comprehensive approach to ending sexual violence in our communities.

(2)  The General Assembly encourages and authorizes the acceptance of contributions on a matching or any other basis from non-state sources for the purposes of this subsection, but the amount appropriated by this subsection is not conditioned on the receipt of such contributions.

(b)(1)  The amount of $363,000.00 is appropriated in fiscal year 2007 from the general fund to the department of state’s attorneys to fund specialized investigative unit grants awarded by the specialized investigative unit grants board under section 1940 of Title 24.

(2)  Any amounts appropriated by this section not expended in fiscal year 2007 shall not revert but shall be carried forward for expenditure for specialized investigative unit grants in fiscal year 2008.

(c)(1)  $80,000.00 is appropriated from the general fund to the department of corrections for purposes of funding the pre-sentence investigations authorized by section 204a of Title 28.

(2)  Notwithstanding any other provision of law, the unused balance of the $50,000.00 appropriation made to the department of corrections pursuant to Sec. 11 of No. 79 of the Acts of 2005 shall be used by the department of sheriff’s and state’s attorneys for the purpose of funding the psycho-sexual evaluations authorized by section 204a of Title 28.

(3)  $50,000.00 is appropriated from the general fund to the defender general for purposes of funding psycho-sexual evaluations necessitated by section 204a of Title 28.

(4)  This appropriation made under this subsection shall be used only for the purposes defined in this subsection, and any unexpended balance of this appropriation shall carry forward and not be reverted to the general fund.  The department of corrections shall include in its annual budget proposal for fiscal year 2007 and thereafter an allocation to fund these investigations.  The annual allocation shall be estimated based on the need for such investigations experienced in the current and previous two fiscal years.

(d)  $190,000.00 is appropriated from the general fund for purposes of funding the global positioning system pilot program established by section 14 of this act.

(e)  $100,000.00 is appropriated from the general fund to the judiciary for purposes of funding salary, benefits and operating expenses associated with the position of executive director of the Vermont sentencing commission created by subsection (a) of section 43 of this act.  

(f)  $5,000.00 is appropriated from the general fund to the judiciary for purposes of funding the per diem compensation and reimbursement for expenses authorized by subsection 5451(f) of Title 13 for members of  the Vermont sentencing commission. 

(g)  $175,000.00 is appropriated from the general fund to the office of the defender general for purposes of funding the non-violent felony unit established by section 16 of this act.

Sec. 43.  POSITIONS CREATED

(a)  There is created within the judiciary one permanent position entitled executive director of the Vermont sentencing commission.  The executive director shall provide professional and administrative support to the Vermont sentencing commission established by section 5451 of Title 13, and shall provide any other assistance necessary for the commission to satisfy its statutory duties.

(b)  The following positions are created within the office of the defender general for purposes of staffing the non-violent felony unit established by section 5 of this act:

(1)  One level III, step 1 attorney.

(2)  One level II, step 2 attorney.

(3)  One support secretary.

Sec. 44.  EFFECTIVE DATE

This act shall take effect on passage.

(Committee Vote: 6-0-1)

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

The Committee recommends that the bill be amended as recommended by the Committee on Judiciary, with the following amendments thereto:

     First:  In Sec. 42, subsection (b) by striking out subdivision (3) in its entirety and renumbering the remaining subdivision to be numerically correct

     Second:  In Sec. 42, by striking out subsection (g) in its entirety

     Third:  By striking out Sec. 43 in its entirety and inserting in lieu thereof a new Sec. 43 to read as follows:

Sec. 43.  POSITION CREATED

There is created within the judiciary one permanent position entitled executive director of the Vermont sentencing commission.  The executive director shall provide professional and administrative support to the Vermont sentencing commission established by section 5451 of Title 13, and shall provide any other assistance necessary for the commission to satisfy its statutory duties.

(Committee vote: 6-0-1)

(For House amendments, see House Journal for February 21, 2006, page 2006; February 22, 2006, page 394.)


Favorable with Proposal of Amendment

H. 861

An act relating to health care affordability for Vermonters.

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

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

Sec. 1.  HEALTH CARE REFORM PRINCIPLES

The general assembly adopts the following guidelines, modeled after the Coalition 21 principles, as a framework for reforming health care in Vermont:

(1)  It is the policy of the state of Vermont to ensure universal access to and coverage for essential health care services for all Vermonters. 

(2)  Health care coverage needs to be comprehensive and continuous. 

(3)  Vermont’s health delivery system must model continuous improvement of health care quality and safety. 

(4)  The financing of health care in Vermont must be sufficient, equitable, fair, and sustainable. 

(5)  Built-in accountability for quality, cost, access, and participation must be the hallmark of Vermont’s health care system.

(6)  Vermonters must be engaged, to the best of their ability, to pursue healthy lifestyles, to focus on preventive care and wellness efforts, and to make informed use of all health care services throughout their lives.

Sec. 2.  LEGISLATIVE PURPOSE AND INTENT

(a)  It is the intent of the general assembly that all Vermonters receive affordable and appropriate health care at the appropriate time and that health care costs be contained over time.  The general assembly finds that effective first steps to achieving this purpose are the prevention and management of chronic conditions; coverage of the uninsured through catamount health, a self‑insured, comprehensive benefit plan with sliding-scale premiums; and providing minimum preventive services starting with immunizations for all Vermonters.  The general assembly finds that chronic care management is one tool to contain health care costs and ensure that the costs of Vermont’s health care system become sustainable.

(b)  It is also the intent of the general assembly to ensure that any reduction in the “cost shift” is returned to consumers by slowing the rate of growth in insurance premiums.  The cost shift results when the costs of health services are inadequately paid for by public health care programs and when individuals are unable to pay for services.  Raising Medicaid payment rates and reducing the number of uninsured will reduce the cost shift.  In addition, standardizing the minimum criteria and reporting requirements for uncompensated care and bad debt write-offs by hospitals will more clearly identify and account for the cost shift. 

Sec. 3.  3 V.S.A. § 2222a is added to read:

§ 2222a.  HEALTH CARE SYSTEM REFORM; QUALITY AND AFFORDABILITY

(a)  The secretary of administration shall be responsible for the coordination of health care system reform among executive branch agencies, departments, and offices.

(b)  The secretary shall ensure that those executive branch agencies, departments, and offices responsible for the development, improvement, and implementation of Vermont’s health care system reform do so in a manner that is timely, patient-centered, and seeks to improve the quality and affordability of patient care.

(c)  Vermont’s health care system reform initiatives include:

(1)  the state’s chronic care infrastructure, prevention, and management program contained in the blueprint for health established by chapter 13 of Title 18, the goal of which is to achieve a unified, comprehensive, statewide system of care that improves the lives of Vermonters with or at risk for a chronic condition or disability.

(2)  the Vermont health information technology project pursuant to section 9417 of Title 18.

(3)  the multi-payer data collection project pursuant to section 9410 of Title 18.

(4)  the common claims administration project pursuant to section 9408 of Title 18.

(5)  the consumer price and quality information system pursuant to section 9410 of Title 18.

(6)  any information technology work done by the quality assurance system pursuant to section 9416 of Title 18.

(7)  the public health promotion programs of the department of health and the department of disabilities, aging, and independent living.

(8)  Medicaid, the Vermont health access plan, Dr. Dynasaur, VPharm, and Vermont Rx, established in chapter 19 of Title 33, which are programs to provide health care coverage to elderly, disabled, and low to middle income Vermonters.

(9)  Catamount health, established in subchapter 6 of chapter 19 of Title 33, which provides a comprehensive benefit plan with a sliding-scale premium based on income to uninsured Vermonters.

(10)  the uniform hospital uncompensated care policies.

(d)  The secretary shall report to the commission on health care reform, the health access oversight committee, the house committee on health care, the senate committee on health and welfare, and the governor on or before December 1, 2006 with a five-year strategic plan for implementing Vermont’s health care system reform initiatives, together with any recommendations for administration or legislation.  Annually, beginning January 15, 2007, the secretary shall report to the general assembly on the progress of the reform initiatives.

(e)  The secretary of administration or designee shall provide information and testimony on the activities included in this section to any legislative committee upon request and during adjournment of the general assembly to the health access oversight committee and the commission on health care reform.

* * * Chronic Care Infrastructure and Prevention * * *

Sec. 4.  BLUEPRINT FOR HEALTH

(a)  The general assembly endorses the “blueprint for health” chronic condition prevention and chronic care management initiative as a foundation which it intends to strengthen by broadening its scope and coordinating the initiative with other public and private chronic care coordination and management programs.

(b)  The charge and the strategic plan for the blueprint for health are codified in Sec. 5 of this act as chapter 13 of Title 18. 

(c)(1)  The department of health shall revise the current strategic plan for the blueprint for health and provide the revised plan to the commission on health care reform, the health access oversight committee, the house committee on health care, and the senate committee on health and welfare no later than October 1, 2006

(2)  The revised strategic plan shall provide that a model for the patient registry under the blueprint for health is fully designed no later than January 1, 2007.

(3)  Due to the increase in funding and expected expanded capacity of the blueprint for health, the commissioner of health, in collaboration with the executive committee established under section 702 of Title 18, shall consider and include recommendations in the revised strategic plan for an implementation structure and time line.  The considerations and recommendations shall include at minimum an assessment of the options for an organizational structure, and a recommendation as to which structure is most likely to achieve the statewide goals of the blueprint for health, to maintain an effective partnership between the public and private sectors, and to broaden the participation of stakeholders statewide.  The commissioner of health shall submit a preliminary report on the implementation structure no later than June 15, 2006 to the commission on health care reform.

Sec. 5.  18 V.S.A. chapter 13 is added to read:

Chapter 13.  CHRONIC CARE INFRASTRUCTURE

AND PREVENTION

§ 701.  DEFINITIONS

For the purposes of this chapter:

(1)  “Blueprint for health” means the state’s plan for chronic care infrastructure, prevention of chronic conditions, and chronic care management program, and includes an integrated approach to patient self-management, community development, health care system and professional practice change, and information technology initiatives.

(2)  “Chronic care” means health services provided by a health care professional for an established disease, condition, or disability that is expected to last a year or more and that requires ongoing clinical management attempting to restore the individual to highest function, minimize the negative effects of the condition or disability, and prevent complications related to chronic conditions or disabilities.  Examples of chronic conditions include diabetes, hypertension, cardiovascular disease, cancer, asthma, pulmonary disease, substance abuse, mental illness, and hyperlipidemia.

(3)  “Chronic care management” means a system of coordinated health care interventions and communications for individuals with chronic conditions or disabilities, including significant patient self-care efforts, systemic supports for the physician and patient relationship, and a plan of care emphasizing prevention of complications utilizing evidence-based practice guidelines, patient empowerment strategies, and evaluation of clinical, humanistic, and economic outcomes on an ongoing basis with the goal of improving overall health.

(4)  “Health care professional” means an individual, partnership, corporation, facility, or institution licensed or certified or authorized by law to provide professional health care services.

(5)  “Health risk assessment” means screening by a health care professional for the purpose of assessing an individual’s health, including tests or physical exams and a survey or other tool used to gather information about an individual’s health, medical history, and health risk factors during a health screening.

(6)  “Patient registry” means the electronic database developed under the blueprint for health that will include information on all cases of a particular disease or health condition in a defined population of individuals.

§ 702.  BLUEPRINT FOR HEALTH; STRATEGIC PLAN

(a)  In coordination with the secretary of administration under section 2222a of Title 3, the commissioner of health shall be responsible for the development and implementation of the blueprint for health, including the five-year strategic plan.

(b)(1)  The commissioner shall establish an executive committee to advise the commissioner on creating and implementing a strategic plan for the development of the statewide system of chronic care and prevention as described under this section.  The executive committee shall consist of no fewer than 10 individuals, including a representative from the department of banking, insurance, securities, and health care administration, the office of Vermont health access, the Vermont medical society, the Vermont program for quality in health care, the Vermont association of hospitals and health systems, two representatives of private health insurers, a consumer, a representative of the complementary and alternative medicine profession, and a primary care professional serving low-income or uninsured Vermonters. 

(2)  The executive committee shall engage a broad range of health care professionals who provide services under section 2024 of Title 33, health insurance plans, professional organizations, community and nonprofit groups, consumers, businesses, school districts, and state and local government in developing and implementing a five-year strategic plan. 

(c)(1)  The strategic plan shall include:

(A)  a description of the Vermont blueprint for health model, which includes general, standard elements established in section 703 of this title, patient self-management, community initiatives, and health system and information technology reform, to be used uniformly statewide by private insurers, third party administrators, and public programs;

(B)  a description of prevention programs and how these programs are integrated into communities, with chronic care management, and the blueprint for health model;

(C)  a plan to develop and implement reimbursement systems aligned with the goal of managing the care for individuals with or at risk for conditions in order to improve outcomes and the quality of care;

(D)  the involvement of public and private groups, health care professionals, insurers, third party administrators, associations, and firms to facilitate and assure the sustainability of a new system of care;

(E)  the involvement of community and consumer groups to facilitate and assure the sustainability of health services supporting healthy behaviors and good patient self-management for the prevention and management of chronic conditions;

(F)  alignment of any information technology needs with other health care information technology initiatives;

(G)  the use and development of outcome measures and reporting requirements, aligned with existing outcome measures within the agency of human services, to assess and evaluate the system of chronic care;

(H)  target timelines for inclusion of specific chronic conditions to be included in the chronic care infrastructure and for statewide implementation of the blueprint for health;

(I)  identification of resource needs for implementation and sustaining the blueprint for health and strategies to meet the needs; and

(J)  a strategy for ensuring statewide participation no later than January 1, 2009, by insurers, third-party administrators, health care professionals, hospitals and other providers, and consumers in the chronic care management plan, including common outcome measures, best practices and protocols, data reporting requirements, payment methodologies, and other standards.

(2)  The strategic plan shall be reviewed biennially and amended as necessary to reflect changes in priorities.  Amendments to the plan shall be reported to the general assembly in the report established under subsection (d) of this section.

(d)(1)  The commissioner of health shall report annually on the status of implementation of the Vermont blueprint for health to the house committee on health care, the senate committee on health and welfare, and the health access oversight committee.  The report shall include the number of participating insurers, health care professionals, and patients, the progress for achieving statewide participation in the chronic care management plan, including the measures established under subsection (c) of this section, the expenditures and savings for the period, the results of health care professional and patient satisfaction surveys, and other information as requested by the committees.  The surveys shall be developed in collaboration with the executive committee established under subdivision (b) of this section.

(2)  If statewide participation in the blueprint for health is not achieved by January 1, 2009, the commissioner shall evaluate the blueprint for health and recommend to the general assembly changes necessary to create alternative measures to ensure statewide participation by health insurers, third party administrators, and health care professionals.

§ 703.  CHRONIC CARE MANAGEMENT PROGRAM

(a)(1)  The secretary of administration or designee shall create a chronic care management program administered or provided by a private entity for individuals with chronic conditions who are enrolled in Medicaid, the Vermont health access plan, Dr. Dynasaur, or catamount health. 

(2)  With the goal of including all individuals, the secretary may initially target the chronic care management program to certain groups of individuals to ensure successful implementation and quality of services and to maximize cost savings.  Individuals with chronic conditions who are enrolled in catamount health shall be included in the chronic care management program upon enrollment.  The secretary may provide a time period for implementing chronic care management to individuals currently enrolled in Medicaid, the Vermont health access plan, or Dr. Dynasaur in order to allow sufficient time for health care professionals and the entity administering the proposal to identify and enroll these individuals.

(3)  The secretary or designee shall apply for a waiver or other approval from the Centers for Medicare and Medicaid Services to include individuals who are dually eligible for Medicare and Medicaid.   

(b)  The secretary shall include a broad range of chronic conditions in the chronic care management program.

(c)  The chronic care management program shall be designed to include:

(1)  a method involving the health care professional in identifying eligible patients, including the use of the patient registry, an enrollment process which provides incentives and strategies for maximum patient participation, and a standard statewide health risk assessment for each individual;

(2)  the process for coordinating care among health care professionals;

(3)  the methods of increasing communication among health care professionals and patients, including patient education, self-management, and follow‑up plans;

(4)  the educational, wellness, and clinical management protocols and tools used by the care management organization, including management guideline materials for health care professionals to assist in patient-specific recommendations;

(5)  process and outcome measures to provide performance feedback for health care professionals and information on the quality of care, including patient satisfaction and health status outcomes;

(6)  payment methodologies to align reimbursements and create financial incentives and rewards for health care professionals to establish management systems for chronic conditions, to improve health outcomes, and to improve the quality of care, including case management fees, pay for performance, payment for technical support and data entry associated with patient registries, the cost of staff coordination within a medical practice, and any reduction in a health care professional’s productivity;

(7)  payment to the care management organization which would guarantee net savings to the state or put the care management organization’s fee at risk if the management is not successful in reducing costs to the state;

(8)  a requirement that the data on enrollees be shared, to the extent allowable under federal law, with the secretary in order to inform the health care reform initiatives under section 2222a of Title 3;

(9)  a method for the care management organization to participate closely in the blueprint for health and other health care reform initiatives; and

(10)  participation in the pharmacy best practices and cost-control program under subchapter 5 of chapter 19 of Title 33, including the multi-state purchasing pool and the statewide preferred drug list.

(d)  The secretary shall ensure that the chronic care management program is modified over time to comply with the Vermont blueprint for health strategic plan and to the extent feasible, collaborate in its initiatives.

Sec. 6.  PREVENTION AND CHRONIC CARE MANAGEMENT; AGENCY OF HUMAN SERVICES; IMPLEMENTATION PLAN

(a)  No later than January 1, 2007, the agency of human services shall develop an implementation plan for prevention of chronic conditions and for chronic care management which at minimum meets the criteria and requirements of chapter 13 of Title 18.  The agency’s implementation plan shall be revised periodically to reflect changes to the Vermont blueprint for health strategic plan.  In addition to the chronic care management provided under section 703 of Title 18, the agency may provide additional care coordination services to appropriate individuals as specified in its strategic plan.  The agency shall ensure that Medicaid, Medicaid waiver programs, and Dr. Dynasaur change the payment methodologies in order to comply with the recommendation of the strategic plan and the request for proposals developed under chapter 13 of Title 18.  The agency shall analyze and include a recommendation as to any waivers or waiver modifications needed to implement a chronic care management program.

(b)  Where permitted under federal law, the agency shall require recertification or reapplication for Medicaid, the Vermont health access plan, and Dr. Dynasaur no more often than once a year.

Sec. 7.  PREVENTION AND CHRONIC CARE MANAGEMENT; STATE EMPLOYEES

The commissioner of human resources shall include in any request for proposals for the administration of the state employees health benefit plans a request for a description of any chronic care management program provided by the entity and how the program aligns with the Vermont blueprint for health strategic plan developed under section 702 of Title 18.  The commissioner shall also work with the secretary of administration or designee, and the Vermont state employees’ association on how and when to align the state employees’ health benefit plan with the goals and statewide standards developed by the Vermont blueprint for health in section 702 of Title 18.

* * * Administration of Medicaid and Catamount Health * * *

Sec. 7a.  REQUEST FOR PROPOSALS; MEDICAID; CATAMOUNT HEALTH

(a)  The agency of administration shall issue a request for proposals no later than January 1, 2007 for a single, private entity to provide coverage for health services for individuals with chronic conditions who are enrolled in Medicaid, the Vermont health access plan, Dr. Dynasaur, or catamount health as provided for in section 703 of Title 18 and for health services for individuals enrolled in catamount health as provided for in chapter 19 of Title 33.  The request for proposals shall provide that responses may allow an entity to accept the financial risk and administration of the programs, to administer the programs without accepting financial risk, or to provide for a combination of risk sharing.

(b)  The secretary shall review the request for proposals with the commission on health care reform prior to issuance.  The issuance of the requests for proposals is conditioned on the approval of the commission in order to ensure that the request meets the intent of this section, section 702 of Title 18, and chapter 19 of Title 33.

(c)  Within 10 days of the receipt of the proposals, the secretary shall provide copies of the proposals to an independent actuary or other appropriate consultant retained by the joint fiscal committee to review the proposals and provide the commission on health care reform and the joint fiscal committee with an analysis and recommendation.

(d)  The implementation of the programs is conditional upon approval by act of the general assembly, or, if the general assembly is not in session and the speaker and the president pro tempore determine that it will not reconvene within the next 30‑day period, by a majority vote of the combined membership of the joint fiscal committee and the commission on health care reform at a joint meeting.  Prior to consideration by the general assembly, the commission on health care reform and the joint fiscal committee shall provide the general assembly with recommendations on the proposals.   

* * * Medicaid Initiatives * * *

Sec. 8.  MEDICAID REIMBURSEMENT

(a)(1)  The office of Vermont health access shall adjust Medicaid and the Vermont health access plan reimbursement to reflect the following priorities in the following order:

(A)  an increase in base rates for evaluation and management procedure codes to enhance payment to primary care specialties for primary care services to a level equivalent to the 2006 rates in the Medicare program;

(B)  an increase in the PCPlus case management rates by $5.00 per member per month for patients whose primary care provider participates in the Vermont blueprint for health established in section 702 of Title 18;

(C)  the provision of incentives and payment restructuring for health care professionals participating in the care coordination program;

(D)  an increase in base rates for frequently used current procedural terminology (CPT) codes which are significantly lower than the 2006 Medicare reimbursement levels; and

(E)  an increase in dental reimbursement by increasing the dental cap for adults and rate increases.   

(2)  The Medicaid reimbursement rate increases in subdivision (1) of this section shall be effective on January 1, 2007 for fiscal year 2007, and July 1 for fiscal years 2008 through 2010.

(b)  For fiscal year 2007, the office of Vermont health access shall increase Medicaid reimbursement rates for inpatient services to hospitals by five percent effective January 1, 2007.  In fiscal year 2008 and thereafter, the office shall increase Medicaid reimbursement rates for inpatient services to hospitals by five percent annually on July 1. 

(c)  In fiscal years subsequent to 2007, it is the intent of the general assembly that Medicaid reimbursement increases to health care professionals and hospitals under Medicaid, the Vermont health access plan, and Dr. Dynasaur should be tied to the standards and quality or performance measures developed under the Vermont blueprint for health strategic plan established in section 702 of Title 18.  Prior to implementation, these standards shall be approved by the general assembly through the appropriations process.

(d)  No later than October 31, 2006, the office shall report to the health access oversight committee with a plan for allocation of the appropriated amounts for fiscal year 2007 among the priorities established in subsection (a) of this section and among inpatient services for hospitals as provided for in subsection (b) of this section.  Prior to the implementation of the reimbursement adjustments in this section, the health access oversight committee shall review and determine if the allocation among the priorities is equitable and reflects legislative intent.

Sec. 9.  VHAP PREMIUM REDUCTIONS 

Sec. 147(d) of No. 66 of the Acts of 2003, as amended by Sec. 129 of No. 122 of the Acts of the 2003 Adj. Sess. (2004) and Sec. 279 of No. 71 of the Acts of 2005, is further amended to read:

(d)  VHAP, premium-based.

* * *

(2)  The agency shall establish per individual premiums for the VHAP Uninsured program for the following brackets of income for the VHAP group as a percentage of federal poverty level (FPL):

(A)  Income greater than 50 percent and less than or equal to 75 percent of FPL:  $11.00 $7.00 per month.

(B)  Income greater than 75 percent and less than or equal to 100 percent of FPL:  $39.00 $25.00 per month.

(C)  Income greater than 100 percent and less than or equal to 150 percent of FPL:  $50.00 $33.00 per month.

(D)  Income greater than 150 percent and less than or equal to 185 percent of FPL:  $75.00 $49.00 per month.

Sec. 10.  DR. DYNASAUR AND SCHIP PREMIUM REDUCTIONS

Sec. 147(f) of No. 66 of the Acts of 2003, as amended by Sec. 280 of No. 71 of the Acts of 2005, is amended to read:

(f)  Dr. Dynasaur and SCHIP premium changes.

(1)  The agency is authorized to amend the rules for individuals eligible for Dr. Dynasaur under the federal Medicaid and SCHIP programs to require beneficiary households to pay a monthly premium based on the following:

(A)  for individuals living in households whose incomes are greater than 225 percent of FPL and less than or equal to 300 percent of FPL, and who have no other insurance coverage:  $80.00 $40.00 per household per month.

(B)  for individuals living in households whose incomes are greater than 225 percent of FPL and less than or equal to 300 percent of FPL, and who have other insurance coverage:  $40.00 $20.00 per household per month.

(C)  for individuals living in households whose incomes are greater than 185 percent of FPL and less than or equal to 225 percent of FPL:  $30.00 $15.00 per household per month.

* * *

Sec. 11.  PREMIUM ASSISTANCE PROGRAM; EMPLOYER‑SPONSORED INSURANCE

(a)  No later than October 1, 2007, the agency of human services shall establish a premium assistance program to assist individuals eligible for or enrolled in the Vermont health access plan and catamount health and their dependents to purchase an approved employer-sponsored insurance plan if offered to that individual by an employer.  Children who are eligible for Medicaid or Dr. Dynasaur may be enrolled in either the premium assistance program or the Medicaid or Dr. Dynasaur programs.  

(b)  VHAP-eligible premium assistance.  For individuals enrolled in the Vermont health access plan on October 1, 2007 or for those who apply for enrollment in the Vermont health access plan on or after October 1, 2007 who have access to an approved employer‑sponsored insurance plan, the employer premium assistance program shall provide:

(1)  A subsidy of premiums or cost‑sharing amounts based on the household income of the eligible individual to ensure that the individual is obligated to make out‑of‑pocket expenditures for premiums and cost‑sharing amounts which are substantially equivalent to or less than the premium and cost‑sharing obligations on an annual basis under the Vermont health access plan.

(2)  A requirement that eligible individuals enroll in an approved employer‑sponsored insurance plan as a condition of continued assistance under this section or coverage under the Vermont health access plan, except that dependents who are children of eligible individuals shall not be required to enroll in the premium assistance program.

(3)  Supplemental benefit coverage to some or all individuals eligible for premium assistance under this subsection if offered by the office of Vermont health access.

(c)  Catamount health─eligible premium assistance.  For individuals who are eligible for catamount health and who have access to an approved employer‑sponsored insurance plan, the employer premium assistance program shall provide:

(1)  A subsidy of premiums or cost‑sharing amounts which are substantially equivalent to or less than the premium and cost‑sharing obligations on an annual basis under catamount health. 

(2)  A requirement that eligible individuals enroll in an approved employer‑sponsored insurance plan as a condition of continued assistance under this section or coverage under catamount health, except that dependents who are children of eligible individuals shall not be required to enroll in the premium assistance program.

(d)  In consultation with the department of banking, insurance, securities, and health care administration, the agency shall develop criteria for approving employer‑sponsored health insurance plans to ensure the plans provide comprehensive and affordable health insurance when combined with the assistance under this section.  At minimum, an approved employer-sponsored insurance plan shall include covered benefits and chronic care management to be substantially similar, as determined by the agency, to the benefits covered under catamount health.

(e)  In the event that the agency determines that appropriations for the premium assistance program are insufficient to meet the projected costs of enrolling new program participants, the agency may suspend or terminate new enrollment for participants in the program or restrict enrollment to eligible lower-income individuals.

(f)  The agency of human services shall request federal approval for an amendment to the Global Commitment for Health Medicaid Section 1115 waiver for the premium assistance program authorized by this section.

(g)  There is appropriated to the agency in fiscal year 2007 the amount of $1,000,000 for the establishment, administration, and development of the employer-sponsored insurance premium assistance program under this section. Of this amount, no more than $250,000 may be expended until additional information and analysis is provided to determine the specific parameters involved in an employer-sponsored premium assistance program, the costs of the program, and savings that may be attributable to the transition of individuals from the Vermont health access plan to an available employer-sponsored plan.  Expenditures of any additional amounts appropriated by this section may be made after November 15, 2006 only upon approval by a majority of the combined membership of the joint fiscal committee and the health access oversight committee at a joint meeting upon receipt of a report from the agency including the following:

(1)  A plan for additional expenditures;

(2)  A survey to determine whether individuals currently enrolled in Vermont health access plan, including those eligible as caretakers, are potentially eligible for employer-sponsored premium assistance under this section; and

(3)  A report on the anticipated budgetary impact of an employer-sponsored insurance premium assistance program for fiscal year 2008, including savings attributable to enrolling current VHAP enrollees in the premium assistance program established under this section and the cost of providing the subsidy to these enrollees.

Sec. 12.  ENROLLMENT INITIATIVES

The secretary of administration or designee and the director of the office of Vermont health access shall engage interested groups and parties in assisting with outreach and informational initiatives to ensure Vermonters have information about health care coverage options provided by Medicaid, the Vermont health access plan, Dr. Dynasaur, and catamount health.  

* * * Private Insurance Cost Shift Reviews * * *

Sec. 13.  8 V.S.A. § 4062d is added to read:

§ 4062d.  COST SHIFT REVIEW OF HEALTH INSURANCE PREMIUMS

In connection with insurers’ rate filings made pursuant to sections 4062, 4062b, 4515a, 4587, and 5104 of this title and any other applicable provisions of law, the commissioner shall ensure that health insurers appropriately account for reductions in hospital and provider charges attributable to any increase in Medicaid or other public insurance program reimbursements for health care providers or facilities and to a reduction in bad debt or charity care.

Sec. 14.  COST SHIFT TASK FORCE

The department of banking, insurance, securities, and health care administration shall convene a task force of health care professionals, insurers, hospitals, employers offering private health insurance, and other interested parties to determine how to ensure that reductions in hospital and provider charges, and reductions in private insurance claims through the nongroup market security trust and the provision of minimum preventive services through catamount health are reflected in a slower rate of growth in health insurance premiums.  The task force shall make written recommendations on statutory or administrative changes needed to ensure that a reduction in the cost shift is reflected in health insurance premiums to the commission on health care reform no later than December 1, 2006.

* * * Catamount Health * * *

Sec. 15.  33 V.S.A. chapter 19, subchapter 6 is added to read:

Subchapter 6.  Catamount Health

§ 2021.  POLICY AND PURPOSE

Catamount health is established to provide uninsured Vermont residents a defined benefit package of primary, preventive, hospital, acute episodic care, and chronic care, including assistance in preventing and managing chronic conditions.  Catamount health will also provide certain minimum preventive services without cost to all Vermonters.

§ 2022.  DEFINITIONS

As used in this subchapter:

(1)  “Administrator” means the private entity that administers and, if applicable, assumes financial risk for catamount health.

(2)  “Agency” means the agency of administration.

(3)  “Benefits” means health services and amounts of coverage provided by catamount health, including allocation of cost-sharing amounts, deductibles, and benefit limits.

(4)  “Catamount health” means the health benefit plan offered under this subchapter.

(5) “Chronic care” means health services provided by a health care professional for an established disease, condition, or disability that is expected to last a year or more and that requires ongoing clinical management attempting to restore the individual to highest function, minimize the negative effects of the condition or disability, and prevent complications related to chronic conditions or disabilities.  Examples of chronic conditions include diabetes, hypertension, cardiovascular disease, cancer, asthma, pulmonary disease, substance abuse, mental illness, and hyperlipidemia.

(6)  “Chronic care management” means a system of coordinated health care interventions and communications for individuals with chronic conditions or disabilities, including significant patient self-care efforts, systemic supports for the physician and patient relationship, and a plan of care emphasizing prevention of complications utilizing evidence-based practice guidelines, patient empowerment strategies, and evaluation of clinical, humanistic, and economic outcomes on an ongoing basis with the goal of improving overall health.

(7)  “Health care professional” means an individual, partnership, corporation, facility, or institution licensed or certified or authorized by law to provide professional health care services.

(8)  “Health risk assessment” means screening by a health care professional for the purpose of assessing an individual’s health, including tests or physical examinations and a survey or other tool used to gather information about an individual’s health, medical history, and health risk factors during a health screening.

(9)  “Health service” means any medically necessary treatment or procedure to maintain, diagnose, or treat an individual’s physical or mental condition, including services ordered by a health care professional and services to assist in activities of daily living.

(10)  “Immunizations” means vaccines and the application of the vaccines as recommended by the practice guidelines for children and adults established by the Advisory Committee on Immunization Practices (ACIP) to the Centers for Disease Control and Prevention (CDC).

(11)  “Preventive care” means health services provided by health care professionals to identify and treat asymptomatic individuals who have developed risk factors or preclinical disease, but in whom the disease is not clinically apparent, including immunizations and screening, counseling, treatment, and medication determined by scientific evidence to be effective in preventing or detecting a condition or disability.

(12)  “Primary care” means health services provided by health care professionals specifically trained for and skilled in first-contact and continuing care for individuals with signs, symptoms, or health concerns, not limited by problem origin, organ system, or diagnosis, and shall include prenatal care and the treatment of mental illness.

(13)  “Uninsured” means an individual who does not qualify for Medicare, Medicaid, the Vermont health access plan, or Dr. Dynasaur, had no private insurance or employer-sponsored coverage that includes both hospital and physician services within 12 months prior to the month of application, or lost private insurance or employer-sponsored coverage during the prior 12 months for the following reasons:

(A)  the individual’s employer-sponsored coverage ended because of:

(i)  loss of employment;

(ii)  death of the principal insurance policyholder;

(iii)  divorce or dissolution of a civil union;

(iv)  no longer qualifying as a dependent under the plan of a parent or caretaker relative; or

(v)  no longer qualifying for COBRA, VIPER, or other state continuation coverage; or

(B)  college or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, or otherwise terminated studies.

(14)  “Vermont resident” means an individual 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.

§ 2023.  ELIGIBILITY

(a)(1)  Except as provided in subdivision (2) of this section, an individual shall be eligible for catamount health if the individual is an uninsured Vermont resident.  Any Vermont resident shall be eligible for the minimum preventive care offered under section 2025 of this title.

(2)  An individual shall not be eligible for catamount health if the individual is of the age of majority and is claimed on a tax return as a dependent of a resident of another state.

(b)  An individual receiving Medicaid, the Vermont health access plan, or Dr. Dynasaur within 12 months of applying for catamount health shall not be required to wait 12 months to be eligible for catamount health.  An individual who has coverage under catamount health may purchase an insurance policy designed to provide health services not covered by catamount health and remain eligible.

(c)  The agency shall establish rules pursuant to chapter 25 of Title 3 on the specific criteria to demonstrate eligibility, including criteria for and proof of residency, income, and insurance status.

(d)  Nothing in this subchapter shall require an individual already covered by health insurance to terminate that insurance or enroll in catamount health.

(e)(1)  If the monies available in the catamount fund established under section 2028 of this title are insufficient to support ongoing, new enrollment in catamount health, the agency shall recommend to the health access oversight committee a plan to cap or limit enrollment.

(2)  The agency’s determinations that monies available are insufficient shall be based on monthly enrollment figures and the official revenue estimates for the catamount fund under section 305a of Title 32.

(3)  A plan to cap or limit enrollment submitted to the health access oversight committee under this section shall be deemed approved unless the committee disapproves the plan within 21 days of submission by the agency.

(4)  If at any time after enrollment is capped or limited under this subsection, expenditures are anticipated to be equal to or less than the aggregate amount of funds appropriated for catamount health, the agency shall recommend for approval by the health access oversight committee a plan to open enrollment in catamount health.

§ 2024.  BENEFITS

(a)  The agency shall develop by rule pursuant to chapter 25 of Title 3 a comprehensive benefit package of health services and chronic care management to be provided under catamount health beginning October 1, 2007.

(b)(1)  The benefits shall include primary care, preventive and chronic care, acute episodic care, and hospital services.  The benefits shall be actuarially equivalent to the Vermont Freedom Plan with a preferred provider organization, $200.00 deductible, and $10.00 office co‑payment offered by Blue Cross Blue Shield of Vermont in 2006. 

(2)(A)  The agency shall propose to the general assembly reasonable sliding‑scale premiums for individuals up to 300 percent of the federal poverty level, deductibles, co‑payments, benefit limits, or other cost‑sharing amounts applicable to the catamount health benefits under this section.  Co‑payment amounts shall not apply to chronic care for individuals in chronic care management or to preventive care.  Individuals with incomes above 300 percent of federal poverty level shall be charged a premium reflecting the actual cost of catamount health.

(B)  The agency may include financial or other incentives to encourage healthy lifestyles and patient self‑management.  These incentives shall comply with the rules developed by the department of banking, insurance, securities, and health care administration for health promotion and prevention programs offered by health insurers.

(c)  To the extent catamount health provides coverage for any particular type of health service or for any particular medical condition, it shall cover those health services and conditions when provided by any type of health care professional acting within the scope of practice authorized by law.  Catamount health may establish a term or condition that places a greater financial burden on an individual for access to treatment by the type of health care professional only if it is related to the efficacy or cost-effectiveness of the type of service.

(d)  The agency shall ensure that catamount health will provide a choice of services and health care professionals, contain costs over time, include chronic care management, and improve quality of care and health outcomes.  In determining the amount, duration, and scope of benefits to be provided under this subchapter, the agency shall consider:

(1)  credible, evidence-based, scientific research and comment by health care professionals both nationally and internationally concerning clinical efficacy and risk;

(2)  the cost-effectiveness of health services and technology; and

(3)  revenues anticipated to be available to finance catamount health.

§ 2025.  MINIMUM PREVENTIVE SERVICES

(a)  Notwithstanding the eligibility, premium, and cost-sharing criteria in this subchapter, any Vermont resident may receive minimum preventive services through catamount health.  For the purposes of this section, minimum preventive services shall include immunizations and may include additional services as funding permits.

(b)  For the purposes of this section, catamount health shall be the secondary payer to Medicaid, the Vermont health access plan, Dr. Dynasaur, Medicare, and any federal health insurance or federal program covering immunizations.

§ 2026.  ADMINISTRATION

(a)  Catamount health shall be administered by a private entity, which also may contract to assume partial or all financial risk of the program.  Catamount health shall include a chronic care management program as provided for in section 703 of Title 18.  The agency shall include criteria for an aggressive enrollment strategy by the administrator.  The agency or administrator shall ensure that each individual receives a health risk assessment upon enrollment in catamount health.  The agency shall weigh the costs and benefits of purchasing a reinsurance policy for catamount health as a method of managing risk and reducing the cost of the premium amounts.  The agency may purchase reinsurance if it determines that it is cost-effective and prudent to do so.  The agency may also include in the contract for the administration of catamount health any utilization review procedures and other benefit management provisions consistent with section 703 of Title 18 and any federal requirements, if applicable, through the Global Commitment for Health Medicaid Section 1115 waiver.

(b)  The agency or administrator of catamount health shall make available the necessary information, forms, and billing procedures to health care professionals to ensure payment for health services covered under catamount health.  To facilitate enrollment, the agency or administrator shall use a single, uniform, simplified form to determine eligibility for Medicaid, any Medicaid waiver program, Dr. Dynasaur, any state‑funded pharmacy program, or catamount health.  The agency or administrator shall collect data necessary to evaluate catamount health, including the individual’s reason for not having insurance, whether the individual’s employer offers insurance, and how the individual got information about catamount health.  Receipt of this information shall not be an eligibility requirement.  If permitted under federal law, the agency or administrator shall require individuals to reapply or recertify no more often than annually.  

(c)  The agency shall structure the administration of catamount health to ensure that individuals may transition smoothly between Medicaid, the Vermont health access plan, Dr. Dynasaur, and catamount health.  The agency may also modify the administrative systems for Medicaid, the Vermont health access plan, or Dr. Dynasaur to achieve this purpose.

(d)  If pharmacy benefits are offered under catamount health, the agency or administrator shall ensure that catamount health complies with the pharmacy best practices and cost-control program under subchapter 5 of this chapter.  The agency or administrator shall collaborate with the office of Vermont health access in negotiating prescription drug prices and shall participate in the multi-state drug purchasing pool and the preferred drug list administered by the office of Vermont health access.  To the extent feasible, the agency or administrator shall offer pharmacy benefits through pharmacies able to access the federal Section 340B of U.S. Public Law 102-585 price.

(e)  An individual enrolled in catamount health who is aggrieved by an adverse decision of the agency or the administrator may grieve or appeal the decision under rules and procedures consistent with 42 C.F.R. § 438.402.

§ 2027.  PAYMENT; HEALTH CARE PROFESSIONALS; HOSPITALS

(a)  Except as provided for in subsection (b) of this section, the agency or administrator shall pay health care professionals using the Medicare payment methodologies at a level at least ten percent greater than for levels paid under the Medicare program.  Payments under this subsection shall be indexed to the Medicare economic index developed by the Centers for Medicare and Medicaid Services.  

(b)  Payments for hospital services shall be calculated using the Medicare payment methodology adjusted for each hospital to ensure payments at 110 percent of the hospital’s actual cost for services.  Payments under this subsection shall be indexed to changes in the Medicare payment rules.

(c)  Payments for chronic care and chronic care management shall meet the requirements in section 703 of Title 18.

(d)  If Medicare does not pay for a service covered under catamount health, the commissioner shall establish some other payment amount for such services determined after consultation with affected providers.  Members of catamount health shall not be billed any additional amount for health services, except as provided for as cost sharing in section 2024 of this title.

§ 2028.  Catamount Fund

(a)  The catamount fund is established in the treasury as a special fund to be a source of financing for catamount health.

(b)  Into the fund shall be deposited:

(1)  revenues established for funding catamount health;

(2)  premium amounts paid by individuals unless paid directly to a third-party administrator; and

(4)  the proceeds from grants, donations, contributions, taxes, and any other sources of revenue as may be provided by statute, rule, or act of the general assembly.

(c)  The fund shall be administered pursuant to subchapter 5 of chapter 7 of Title 32, except that interest earned on the fund and any remaining balance shall be retained in the fund.  The agency shall maintain records indicating the amount of money in the fund at any time.

(d)  All monies received by or generated to the fund shall be used only as allowed by appropriation of the general assembly for the administration and delivery of catamount health and transfers to the state health care resources fund established in section 1901d of this title.

Sec. 16.  CATAMOUNT HEALTH; PREMIUMS

Subject to amendment in the fiscal year 2008 budget, the agency of administration shall establish individual and family premium amounts for catamount health under subchapter 6 of chapter 19 of Title 33.  The agency shall establish family premium amounts by income bracket based on the individual premium amounts and the average family size.  The individual premiums shall be by income bracket as a percentage of federal poverty level (FPL):

(1)  Income less than or equal to 200 percent of FPL:  $60.00 per month.

(2)  Income greater than 200 percent and less than or equal to 225 percent of FPL:  $90.00 per month.

(3)  Income greater than 225 percent and less than or equal to 250 percent of FPL:  $110.00 per month.

(4)  Income greater than 250 percent and less than or equal to 275 percent of FPL:  $125.00 per month.

(5)  Income greater than 275 percent and less than or equal to 300 percent of FPL:  $135.00 per month.

(6)  Income greater than 300 percent of FPL:  the actual cost of catamount health, which for fiscal year 2008 is estimated at $350.00 per month.

Sec. 16a.  IMMUNIZATIONS; ADMINISTRATION

(a)  The secretary of administration or designee shall study methods to ensure that all Vermonters have access to immunizations through catamount health as provided for in section 2025 of Title 33.  In conducting the study, the secretary shall consult with the immunization program advisory committee, the department of health, the department of banking, insurance, securities, and health care administration, the office of Vermont health access, and other interested parties.

(b)  The study shall include findings and recommendations concerning the following:

(1)  Effective strategies for improving immunization rates, including options for:

(A)  enhancing access to vaccination services in both medical and public health settings; and

(B)  strengthening school and child care immunization requirements;

(2)  Recommendations for expanding the immunization program to adults, including recording of immunizations for adults in the Vermont immunization registry;

(3)  Recommendations for improving quality assurance and quality improvement in assuring proper vaccine storage and handling, measuring immunization coverage rates, and addressing barriers to coverage; and 

(4)  Options for sustainable funding of the purchase and administration of vaccines, including:

(A)  Equitable sharing of cost of the state’s immunization program between public and private resources;

(B)  Payment by the state of a reasonable fee to health care professionals for individuals receiving coverage for immunizations through catamount health.

(c)  The secretary shall report the findings and recommendations of the study to the house committee on health care and the senate committee on health and welfare no later than January 15, 2007.

Sec. 17.  RULES PROCESS AND OVERSIGHT

(a)  The secretary of administration or designee shall submit any final proposed rules, developed under chapter 25 of Title 3, required to implement this act to the commission on health care reform established by Sec. 277c of No. 71 of the Acts of 2005 and the health access oversight committee for consideration.  The commission and committee may submit separate recommendations, limit comment to certain provisions in the rules, or to the extent feasible, make joint recommendations to the joint legislative committee on administrative rules.

(b)  The health access oversight committee shall monitor the development, implementation, and ongoing operation of catamount health established by subchapter 6 of chapter 19 of Title 33.  The agency of administration shall submit to the committee quarterly progress reports that shall include revenue and expenditures for catamount health for the prior months, enrollment and projected enrollment, projected expenditures related to enrollment for the fiscal year, and other information as requested by the committee.  At least annually, the secretary shall report the results of health care professional and patient satisfaction surveys regarding the administration of catamount health.

(c)  The agency shall submit annual reports on the receipts, expenditures, and balances in the catamount fund established in section 2028 of Title 33 to the joint fiscal committee at its September meeting.

Sec. 18.  GLOBAL COMMITMENT FINANCING

To the extent feasible and allowable under federal law, the agency of administration and human services shall finance catamount health through the Global Commitment for Health Medicaid Section 1115 waiver.  No later than July 1, 2006, the agency shall seek a waiver amendment from the Centers for Medicare and Medicaid Services to include catamount health in the premium amount paid to the office of Vermont health access under Global Commitment.  The agency may require the office of Vermont health access to use revenue from the capitation payments related to beneficiaries covered under Global Commitment as described in Term and Condition 40 to finance some or all of catamount health.  The agency may administer catamount health in the manner required by the Global Commitment.

* * * Nongroup Health Insurance Market * * *

Sec. 19.  8 V.S.A. § 4062d is added to read:

§ 4062d.  NONGROUP MARKET SECURITY TRUST

(a)  The commissioner shall establish the nongroup market security trust for the purpose of lowering the cost of and thereby increasing access to health care coverage in the individual or nongroup health insurance market.

(b)  The nongroup market security trust shall permit nongroup carriers to transfer five percent of the carriers’ claims costs, based on the earned premium as reported on the most recent annual statement of the carrier.  At the close of the year, the commissioner shall reconcile the amount paid against the actual expenses of the carriers and collect or expend the necessary funds to ensure that five percent of the actual expenses are paid under this section.  The individuals incurring the claims shall remain enrolled policyholders, members, or subscribers of the carrier’s or insurer’s plan, and shall be subject to the same terms and conditions of coverage, premiums, and cost sharing as any other policyholder, member, or subscriber.

(c)  The commissioner may develop the nongroup market security trust in a manner that permits the trust to be eligible for a federal grant to administer the trust, including a grant under the federal Trade Adjustment Act.

(d)  All of the revenues appropriated shall be deposited into the nongroup market security trust to be administered by the commissioner for the sole purpose of providing financial support for the nongroup market security trust authorized by this section.  The trust shall be administered in accordance with subchapter 5 of chapter 7 of Title 32, except that interest earned shall remain in the trust.

(e)  The commissioner may adopt rules for the nongroup market security trust relating to:

(1)  Criteria governing the circumstances under which a nongroup carrier may transfer five percent of the claims expenses of the carrier to the trust as provided for in this section.

(2)  Eligibility criteria for providing financial support to carriers under this section, including carrier claims’ expenses eligible for financial support, standards and procedures for the treatment and chronic care management as defined in section 701 of Title 18, and any other eligibility criteria established by the commissioner.

(3)  The operation of the trust.

(4)  Any other standards or procedures necessary or desirable to carry out the purposes of this section.

(f)  As used in this section, “nongroup carrier” means a nongroup carrier registered under section 4080b of this title, that has an annual earned premium in excess of $100,000.00.

Sec. 20.  8 V.S.A. § 4080b(n) is amended to read:

(n)  On or before January 15, 1993, the commissioner shall report to the senate finance committee and the house commerce committee concerning implementation of the community rating provisions set forth in subsection (h) of this section, describing areas in which additional legislation may be needed  The commissioner shall ensure that any rates filed by any registered nongroup carrier, whether initial or revised, for nongroup insurance policies reflect the reduction in claims costs attributable to the nongroup market security trust established in section 4062d of this title.

* * * Hospital Uncompensated Care * * *

Sec. 21.  HOSPITAL UNCOMPENSATED CARE; FINDINGS

(a)  The general assembly finds that all of Vermont’s community hospitals are nonprofit charity hospitals which provide care regardless of patient ability to pay for it.  Any uncompensated care received is paid for by someone other than the patient receiving it.  This uncompensated care is substantial. 

(b)  Uncompensated care is already being paid for.  It is subsidized through the “cost shift” and is absorbed principally by the payers of private health insurance premiums, including self‑insurance plans.  This cost shift functions as a hidden surcharge for the cost of care to lower income individuals.

Sec. 22.  HOSPITAL UNCOMPENSATED CARE; STANDARDS; REPORTING

(a)  The commissioner of banking, insurance, securities, and health care administration, in consultation with representatives of the Vermont association of hospitals and health systems, third-party payers, and health care consumers, shall review the uncompensated care and bad debt policies of Vermont’s hospitals and recommend a standard statewide uniform uncompensated care and bad debt policy.  The standard policy shall include criteria for payment forgiveness for the cost of health services received by low income patients, criteria for a sliding scale payment amount for patients under certain income levels, a method for calculating the amount of services received by the patient, and other criteria necessary for ensuring that the care received by the uninsured and underinsured patients is billed in a uniform and consistent manner.  In addition to a standard policy, the commissioner may recommend reasons for and a method of approving deviations from the standard policy by a hospital or may recommend a set of standard policies to be applied to hospitals based on particular criteria, such as a designation as a critical access hospital, the income median in an area, or an other rationale.

(b)  The commissioner, in consultation with the representatives listed in subsection (a) of this section, shall determine a fair and thorough method for calculating and reporting information about uncompensated care and bad debt to the department of banking, insurance, securities, and health care administration to ensure accurate accounting in the hospital budgets and other health care facility planning, as well as collecting information about the types of patients accessing uncompensated care or who are unable to pay for the care received.  The commissioner shall consider collecting information about the patient receiving the care, including the patient’s primary insurance status and employer, the actual cost of the care received, any amounts paid toward the care, and any discounts provided to the patient by the hospital.

(c)  The commissioner’s findings and recommendations shall be submitted in a report to the senate committee on health and welfare and the house committee on health care not later than January 15, 2007.

* * * Health Care Coverage Planning * * *

Sec. 23.  SCHEDULE FOR ATTAINING UNIVERSAL HEALTH CARE

(a)  By February 15, 2007, the commission on health care reform shall recommend to the general assembly a schedule, benchmarks, and additional analysis needed for incremental expansions over time to Vermont’s health care system with the goal of achieving universal health care for all Vermonters no later than 2011.

(b)  In making its recommendations, the commission shall give priority to:

(1)  extending universal access to diagnostic or other services to all Vermonters;

(2)  methods of reducing the cost of health insurance or providing alternative coverage through catamount health to individuals who pay 10 percent or more of their gross income for premiums and cost-sharing or medical expenses;

(3)  strategies for reducing the cost of health insurance or providing alternative coverage through catamount health to individuals in the individual or other high cost markets; and

(4)  determining needed analysis and criteria for implementing a health insurance requirement on January 1, 2011 if 98 percent of Vermonters do not have health insurance by 2010, including methods of enforcement, providing proof of insurance to individuals, and any other criteria necessary for the requirement to be effective in achieving universal health care coverage.

(c)  Recommendations by the commission shall be based on data received by the secretary of administration or designee, review of the strategic plan developed under section 2222a of Title 3, information on Vermont’s current health care system reform initiatives, other research and assistance provided by the commission’s staff, and public input received by the commission.

Sec. 24.  REQUIRED COVERAGE; HEALTH CARE

If 98 percent of Vermonters do not have coverage for health services by January 1, 2010, every individual who resides in Vermont is required to have coverage under health insurance, employer-sponsored insurance, or a federal or state program providing payment for health services no later than January 1, 2011.

Sec. 25.  COMMUNITY PLANNING; HEALTH CARE COVERAGE

In fiscal year 2007, the department of health shall provide a planning grant of $100,000.00 to one community organization or corporation to assist in establishing a local initiative to provide health care coverage or insurance to a community, region, or geographic area of the state.

* * * Technical Amendments * * *

Sec. 26.  32 V.S.A. § 305a is amended to read:

§ 305a.  OFFICIAL STATE REVENUE ESTIMATE

On or about January 15 and on or about July 15 of each year, and at such other times as the emergency board or the governor deems proper, the joint fiscal office and the secretary of administration shall provide to the emergency board their respective estimates of state revenues in the general, transportation, education, and health access trust catamount health, state health care resources, and Global Commitment funds.  The January revenue estimate shall be for the current and next two succeeding fiscal years, and the July revenue estimate shall be for the current and immediately succeeding fiscal years.  Federal fund estimates shall be provided at the same times for the current fiscal year.  Within 10 days of receipt of such estimates, the board shall determine an official state revenue estimate for deposit in the respective funds for the years covered by the estimates.  For the purpose of revising an official revenue estimate only, a majority of the legislative members of the emergency board may convene a meeting of the board.  The health access trust fund estimate secretary shall include estimated caseloads and estimated per member per month expenditures for the current and next succeeding fiscal years for each population category eligible for state health care assistance programs supported by the fund.

* * * Oversight and Reporting * * *

Sec. 27.  REPORT; HEALTH CARE REFORM

No later than January 15, 2009, the agency of administration shall report to the general assembly on:

(1)  the percentage of uninsured Vermonters and the number of insured Vermonters by coverage type;

(2)  an analysis of the trends of catamount health costs and trends in the revenue sources for catamount health;

(3)  the feasibility of allowing individuals who are not uninsured and employers to buy into catamount health at full premium cost; and

(4)  the number of individuals enrolled in any chronic care management program which complies with the requirements in chapter 13 of Title 18, including those covered by private insurance.

Sec. 28.  COMMISSION ON HEALTH CARE REFORM

Any reports required by this act shall be provided to the commission on health care reform established by Sec. 277c of No. 71 of the Acts of 2005 until the time that the commission dissolves.

Sec. 29.  APPROPRIATIONS

(a)(1)  For fiscal year 2007, the sum of $2,500,000.00 (federal and state) is appropriated from the Global Commitment fund for the increase in Medicaid rates to health care professionals on January 1, 2007 under Sec. 8(a) of this act.

(2)  For fiscal year 2007, the sum of $1,000,000.00 (federal and state) is appropriated from the Global Commitment fund for the increase in Medicaid rates to hospitals on January 1, 2007 under Sec. 8(b) of this act.

(b)  For fiscal year 2007, the sum of $100,000.00 is appropriated from the general fund for the planning grant established in Sec. 25 of this act.

Sec. 30.  EFFECTIVE AND IMPLEMENTATION DATES

This act shall take effect upon passage, except as follows:

(1)  Secs. 8 (Medicaid reimbursement), 13 (cost shift review), and 25 (community health care planning grant) shall take effect July 1, 2006

(2)  Secs. 9 (VHAP premiums) and 10 (Dr. Dynasaur premiums) shall take effect July 1, 2007

(3)  Sec. 15 (catamount health) shall take effect June 30, 2006 for the purposes of establishing and administering the catamount fund under section 2028 of Title 33, and preparing for administration of and enrollment in catamount health; implementation of the catamount health program, however, shall not commence until October 1, 2007.

(4)  Sec. 24 (health care coverage requirement) shall take effect on January 1, 2008.

Sec. 31.  TECHNICAL PROVISION

It is the intent of the general assembly that the provisions of Sec. 3 of this act, adding section 2222a of Title 3, are complementary to the provisions in Sec. 15 of S. 310 (2006), an act relating to common sense initiatives, also adding section 2222a of Title3.  Any additional provisions contained in Sec. 3 of this act that are not contained in Sec. 15 of S.310 shall not be superseded.  Any technical revisions necessary to ensure accuracy or conformity between the sections, such as the numbering of subdivisions, may be made by the office of legislative council.

(Committee vote: 5-0-1)

(For House amendments, see House Journal for February 23, 2006, page 452; March 3, 2006, Page 571.)

Favorable with Proposal of Amendment

H. 869

An act relating to the state’s transportation program.

Reported favorably with recommendation of proposal of amendment by Senator Mazza for the Committee on Transportation.

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

Sec. 1.  TRANSPORTATION PROGRAM; ADVANCEMENTS, CANCELLATIONS, AND DELAYS

(a)  The state’s proposed fiscal year 2007 transportation program appended to the agency of transportation’s proposed fiscal year 2007 budget, as amended by this act, is adopted to the extent federal, state, and local funds are available. 

(b)  As used in this act, unless otherwise indicated, the term “agency” means the agency of transportation and the term “secretary” means the secretary of transportation.  As used in this act, the table heading “As Proposed” means the transportation program referenced in subsection (a) of this section; the table heading “As Amended” means the amendments as made by this act; the table heading “Change” means the difference obtained by subtracting the “As Proposed” figure from the “As Amended” figure; and the term “change” or “changes” in the text refers to the project- and program-specific amendments, the aggregate sum of which equals the net “Change” in the applicable table heading.

* * * Program Development – Roadway * * *

Sec. 2.  PROGRAM DEVELOPMENT – ROADWAY

The following modifications are made to the program development – roadway program:

(1)  A project designated as Middlebury STP 5900( ), formerly known as Middlebury M 5900(2), also known as the Cross Street Bridge project, for the extension of Cross Street (TH 47) westerly over the Vermont Railway and the Otter Creek to connect US 7 to VT 30 and VT 125, is added to the roadway program.

(2)  Authorized spending on the Hartford Rt. 5 project RS 0113(40) is amended to read:

FY07                         As Proposed         As Amended             Change

PE                                    25,000                  25,000                      0

ROW                               40,000                  40,000                      0

Construction                2,500,000             2,500,000                      0

Other                                        0                           0                      0

Total                           2,565,000             2,565,000                      0

Sources of funds

State                              641,250                475,000          -166,190

Federal                        1,923,750             2,014,940             91,190

Local                                         0                  75,000             75,000

Total                           2,565,000             2,565,000                      0

(3)  Authorized spending on the Hartford-Newbury project IM 091-2(67) is amended to read:

FY07                         As Proposed         As Amended             Change

PE                                             0                           0                      0

ROW                                        0                           0                      0

Construction                4,500,000             2,500,000       -2,000,000

Other                                        0                           0                      0

Total                           4,500,000             2,500,000       -2,000,000

Sources of funds

State                              450,000                250,000          -200,000

Federal                        4,050,000             2,250,000       -1,800,000

Local                                         0                           0                      0

Total                           4,500,000             2,500,000       -2,000,000

(4)  Authorized spending on the Ryegate-St. Johnsbury project IM IR 091-2(8) is amended to read:

FY07                         As Proposed         As Amended             Change

PE                                    50,000                  50,000                      0

ROW                                        0                           0                      0

Construction                1,000,000                450,000          -550,000

Other                                        0                           0                      0

Total                           1,050,000                500,000          -550,000

Sources of funds

State                              105,000                  50,000            -55,000

Federal                           945,000                450,000          -495,000

Local                                         0                           0                      0

Total                           1,050,000                500,000          -550,000

(5)  Authorized spending for the Waterbury Main Street project FEGC
F-013-4(13) is amended as follows.  The agency shall plan the development of the project in phases and include in the agency’s proposed transportation program for fiscal year 2008 a separate report detailing the agency’s proposed phases and time table for implementation of the proposed phases through project completion.  The funds authorized for expenditure in fiscal year 2007 shall be used to redesign the intersection of Park Row and
Main Street, to advance the Park Row and Main Street intersection improvements, and otherwise to advance the project as the agency deems appropriate.

FY07                         As Proposed         As Amended             Change

PE                                    50,000                           0            -50,000

ROW                                        0                           0                      0

Construction                              0                           0                      0

Other                                        0                250,000           250,000

Total                                50,000                250,000           200,000

Sources of Funds

State                                  1,500                    7,500               6,000

Federal                             47,500                237,500           190,000

Local                                  1,000                    5,000               4,000

Total                                50,000                250,000           200,000

(6)  Authorized spending on program development – roadway development and evaluation is amended to read:

FY07                         As Proposed    As Amended             Change

PE                                             0                      0                      0

ROW                                        0                      0                      0

Construction                              0                      0                      0

Other                          9,230,000        8,230,000       -1,000,000

Total                           9,230,000        8,230,000       -1,000,000

Sources of Funds

State                           1,235,650        1,135,650          -100,000

Federal                        7,760,850        6,860,850          -900,000

Local                              233,500           233,500                      0

Total                           9,230,000        8,230,000         -1,00,000

(7)  The agency shall include under project Waitsfield-Moretown-Duxbury STP F 013-4-(12)S an underground cattle pass on Vermont Route 100 to serve the so-called Turner Farm and, to the extent eligible under federal regulations,  phase the project to expedite construction of the cattle pass.  As an interim measure, in fiscal year 2007, the expenditure of $25,000.00 of transportation funds is authorized by the agency for the sole purpose of planning for the underground cattle pass and implementing temporary measures to improve safety conditions in and around the existing at-grade cattle crossing.  The agency shall include in the proposed transportation program for fiscal year 2008 a timetable for implementation of this project.

* * * Program Development – Paving * * *

Sec. 3.  PROGRAM DEVELOPMENT – PAVING

The following modifications are made to the program development – paving program: 

(1)  Authorized spending on the statewide district leveling program is amended to read:

FY07                         As Proposed         As Amended             Change

PE                                             0                           0                      0

ROW                                        0                           0                      0

Construction                1,483,000                983,000          -500,000

Other                                        0                           0                      0

Total                           1,483,000                983,000          -500,000

Sources of funds

State                           1,483,000                983,000          -500,000

Federal                                      0                           0                      0

Local                                         0                           0                      0

Total                           1,483,000                983,000          -500,000

* * * Program Development – Safety and Traffic Operations * * *

Sec. 4.  PROGRAM DEVELOPMENT – SAFETY AND TRAFFIC OPERATIONS

The following modifications are made to the program development – safety and traffic operations program:

(1)  Authorized spending for the Manchester STP 0137(17) project is amended to read:

FY07                         As Proposed         As Amended             Change

PE                                             0                           0                      0

ROW                             300,000                300,000                      0

Construction                1,000,000             1,000,000                      0

Other                                        0                           0                      0

Total                           1,300,000             1,300,000                      0

Sources of funds

State                              115,960                  26,760            -89,200

Federal                        1,054,040             1,243,240           189,200

Local                              130,000                  30,000          -100,000

Total                           1,300,000             1,300,000                      0

(2)  Project Colchester TCSP TCSE ( ) has received a transportation community system preservation (TCSP) earmark in the amount of $250,000 for a project identified as Route 15 streetscape and pedestrian crossing signal.  This project shall be added to program development safety and traffic operations development and evaluation as follows:  Colchester TCSP TCSE ( ) Route 15 Streetscape and Pedestrian Crossing Signal.

* * * Program Development – State Bridge * * *

Sec. 5.  PROGRAM DEVELOPMENT – STATE BRIDGE

The following modifications are made to the program development state bridge program:

(1)  Authorized spending on the Jay culvert project ST CULV(2) is amended to read:

FY07                         As Proposed         As Amended             Change

PE                                    10,000                  10,000                      0

ROW                                        0                           0                      0

Construction                   700,000                700,000                      0

Other                                        0                           0                      0

Total                              710,000                710,000                      0

Sources of funds

State                              710,000                150,000          -560,000

Federal                                      0                560,000           560,000

Local                                         0                           0                      0

Total                              710,000                710,000                      0

(2)  Authorized spending on the Springfield culvert project STP CULV(5) is amended to read:

FY07                         As Proposed         As Amended             Change

PE                                      8,000                    8,000                      0

ROW                                        0                           0                      0

Construction                   344,000                344,000                      0

Other                                        0                           0                      0

Total                              352,000                352,000                      0

Sources of funds

State                              352,000                  76,800          -275,200

Federal                                      0                275,200           275,200

Local                                         0                           0                      0

Total                              352,000                352,000                      0

(3)  With respect to the Williamstown project BRS 0204(4) the agency shall endeavor to complete the right-of-way process in fiscal year 2007 to the extent required to allow construction of the project in fiscal year 2008.

* * * Program Development – Bike and Pedestrian Facilities * * *

Sec. 6.  PROGRAM DEVELOPMENT – BIKE AND PEDESTRIAN FACILITIES

The following modifications are made to the program development – bike and pedestrian facilities program:

(1)  Project Winooski TCSP TCSE ( ) has received a transportation community system preservation (TCSP) earmark in the amount of $150,000 for a project identified as Winooski east bicycle and pedestrian path.  This project shall be added to program development bike and pedestrian facilities development and evaluation as follows:  Winooski TCSP TCSE ( ) Winooski East Bicycle and Pedestrian Path.

* * * Maintenance * * *

Sec. 7.  MAINTENANCE

(a)  Total authorized spending in the maintenance program is modified as follows:

FY07                         As Proposed    As Amended             Change

Personal Services      32,216,294      32,043,294          -173,000

Operating Expenses   27,946,300      27,941,800              -4,500

Grants                            672,000           368,000          -304,000

Total                         60,834,594      60,353,094          -481,500

Sources of Funds

State                         57,800,594      57,446,094          -354,500

Federal                        3,034,000        2,907,000          -127,000

Total                         60,834,594      60,353,094          -481,500

(b)  These changes are made to reduce funding for projects in the intelligent transportation system program.

(c)  The agency shall utilize $25,000 of the transportation funds authorized in subsection (a) of this section to sweep and repair highway shoulders to improve the shoulder paths available to bicyclists as provided in Secs. 9(a) and 9(b) of No. 80 of the Acts of 2005.

* * * Aviation * * *

Sec. 8.  AVIATION

The following modifications are made to the aviation program:

(1)  Authorized spending on facilities improvements AIR 04-3144 is amended to read:

FY07                         As Proposed         As Amended             Change

PE                                             0                           0                      0

ROW                                        0                           0                      0

Construction                              0                           0                      0

Other                          1,300,000             1,100,000          -200,000

Total                           1,300,000             1,100,000          -200,000

Sources of funds

State                              700,000                  500,00          -200,000

Federal                           600,000                600,000                      0

Local                                         0                           0                      0

Total                           1,300,000             1,100,000          -200,000

* * * Transportation Buildings * * *

Sec. 9.  OPERATIONS – TRANSPORTATION BUILDINGS

The following modifications are made to the operations – transportation buildings program:

(1)  Authorized spending for the Ferrisburgh maintenance and DMV facility project is amended to read:

FY07                         As Proposed         As Amended             Change

PE                                             0                           0                      0

ROW                                        0                           0                      0

Construction                1,562,879             1,000,000          -562,879

Other                                        0                           0                      0

Total                           1,562,879             1,000,000          -562,879

Sources of funds

State                           1,562,879             1,000,000          -562,879

Federal                                      0                           0                      0

Local                                         0                           0                      0

Total                           1,562,879             1,000,000          -562,879

* * * Statewide Bridge Maintenance * * *

Sec. 10.  BRIDGE MAINTENANCE

The following modifications are made to the bridge maintenance program:

(1)  Authorized spending on statewide bridge maintenance (100% state) is amended to read:

FY07                         As Proposed         As Amended             Change

PE                                             0                           0                      0

ROW                                        0                           0                      0

Construction                              0                           0                      0

Other                             855,000                500,000          -355,000

Total                              855,000                500,000          -355,000

Sources of funds

State                              855,000                500,000          -355,000

Federal                                      0                           0                      0

Local                                         0                           0                      0

Total                              855,000                500,000          -355,000

* * * Department of Motor Vehicles * * *

Sec. 11.  DEPARTMENT OF MOTOR VEHICLES

(a) Authorized spending by the department of motor vehicles is amended to read:

FY07                         As Proposed         As Amended             Change

Personal Services      16,580,740           16,580,740                      0

Operating Expenses     7,177,547             7,050,064          -127,483

Grants                            311,300                311,300                      0

Total                         24,069,587           23,942,104          -127,483

Sources of funds

State                         22,744,734           22,617,251          -127,483

Federal                        1,324,853             1,324,853                      0

Local                                         0                           0                      0

Total                         24,069,587           23,942,104          -127,483

(b) This change is made to eliminate $127,483 in funding for drivers education.

* * * Town Bridge * * *

Sec. 12.  TOWN BRIDGE

The following modifications are made to the town bridge program:

(1)  Authorized spending on the town bridge initiative program is amended to read:

FY07                         As Proposed         As Amended             Change

PE                                             0                           0                      0

ROW                                        0                           0                      0

Construction                              0                           0                      0

Other                             511,111                590,000             78,889

Total                              511,111                590,000             78,889

Sources of funds

State                              460,000                    5,000          -455,000

Federal                                      0                520,000           520,000

Local                                51,111                  65,000             13,889

Total                              511,111                590,000             78,889

(2)  Authorized spending on the Barton-Orleans project BRO 1449(29) is amended to read:

FY07                         As Proposed         As Amended             Change

PE                                             0                           0                      0

ROW                                        0                           0                      0

Construction                1,181,438                581,438          -600,000

Other                                        0                           0                      0

Total                           1,181,438                581,438          -600,000

Sources of funds

State                              118,144                  58,144            -60,000

Federal                           945,150                465,150          -480,000

Local                              118,144                  58,144            -60,000

Total                           1,181,438                581,438          -600,000

(3)  Authorized spending on the Bradford project TH3 9641 is amended to read:

FY07                         As Proposed         As Amended             Change

PE                                             0                           0                      0

ROW                                        0                           0                      0

Construction                1,200,000                600,000          -600,000

Other                                        0                           0                      0

Total                           1,200,000                600,000          -600,000

Sources of funds

State                              240,000                120,000          -120,000

Federal                           960,000                480,000          -480,000

Local                                         0                           0                      0

Total                           1,200,000                600,000          -600,000

* * * Town Emergency Fund * * *

Sec. 13.  TOWN EMERGENCY FUND

Funding of the town emergency fund is modified to read:

FY07                         As Proposed         As Amended             Change

PE                                             0                           0                      0

ROW                                        0                           0                      0

Construction                              0                           0                      0

Other                             750,000             1,000,000           250,000

Total                              750,000             1,000,000           250,000

Sources of funds

State                              750,000             1,000,000           250,000

Federal                                      0                           0                      0

Local                                         0                           0                      0

Total                              750,000             1,000,000           250,000

* * * U.S. Route 5; Hartford Utility Relocations * * *

Sec. 14.  U.S. ROUTE 5; HARTFORD UTILITY RELOCATIONS

(a)  Notwithstanding 19 V.S.A. chapter 16 or any other law or rule of law pertaining to relocation of utility facilities to accommodate highway construction, the agency of transportation, in connection with the Hartford RS 0113(40) (reconstruction of U.S. 5) project, is authorized to pay the cost of relocating municipal utilities located within the state highway right-of-way.

(b)  The town of Hartford shall be responsible for reimbursing the agency for:

(1)  nonfederal funds required to match the $1.2-million federal earmark provided in the Safe, Accountable, Flexible, Efficient Transportation Equity Act:  A Legacy for Users (SAFETEA-LU), Pub. L. 109-59;

(2)  municipal utility relocation costs which are in excess of the earmarked federal funds and any nonfederal funds required to match the earmarked federal funds; and

(3)  municipal utility relocation costs which are not eligible for federal participation. 

* * * Cancellation of Projects * * *

Sec. 15.  CANCELLATION OF PROJECTS

Pursuant to 19 V.S.A. § 10g(f) (legislative approval for cancellation of projects), the general assembly approves cancellation of the following projects:

(1)  Program development ‑ roadway:

(A)  Wilmington NH 010-1(33) (VT 9 bypass of Wilmington village) (town vote rejected bypass recommendation contained in final environmental impact statement).

* * * Railroads * * *

Sec. 16.  APPROVAL OF TRANSACTIONS REGARDING STATE-OWNED RAILROAD PROPERTY

(a)  Subject to the rights of the Washington County Railroad Company under its June 4, 2003 operating agreement, the secretary of transportation, as agent for the state of Vermont, is authorized to sell, for fair market value, the following parcels of land along the state-owned railroad line between Hartford (White River Junction) and Newport City:

(1)  town of St. Johnsbury; valuation section V43/61; 2,035 square feet on the westerly side of railroad, currently under lease and used as parking lot for retail store, to be conveyed to ECH, LC;

(2)  town of Lyndon; valuation section V43/70; land on westerly side of Lyndonville railroad yard, to be conveyed to abutting landowner Hebert Properties, LLC;

(3)  town of Lyndon; valuation section V43/70; land on westerly side of Lyndonville railroad yard, to be conveyed to Estate of Donald B. Pearson;

(4)  town of Lyndon; valuation section V43/70; land on westerly side of Lyndonville railroad yard, between church and railroad and currently used for church parking, to be conveyed to Lyndonville United Methodist Church;

(5)  town of Lyndon; valuation section V43/70; land on westerly side of Lyndonville railroad yard, between parsonage and railroad and currently used for church parking, to be conveyed to Lyndonville United Methodist Church;

(6)  town of Lyndon; valuation section V43/70; land on westerly side of the railroad, to be conveyed to Wheeler Building Supply, Inc.;  

(7)  town of Barton; valuation section V43/90; approximately 7,430 square feet of land under and surrounding single-family dwelling house owned by Curtis E. Varney, to be conveyed to Curtis E. Varney;

(8)  town of Barton; valuation section V43/90; approximately 1,564 square feet of land between U.S. 5 and former Libby property (144 Lake Street), to be conveyed to abutting landowner Armand St. Martin;

(9)  town of Barton; valuation section V43/90; approximately 2,109 square feet of land between U.S. 5 and former Metcalf property (146 Lake Street), to be conveyed to abutting landowner Armand St. Martin; 

(10)  town of Barton; valuation section V43/90; approximately 0.11 acres of land located between U.S. 5 and property known as 112 Lake Street, to be conveyed to abutting landowner Jackaline J. Swett; and

(11)  town of Barton; valuation section V43/90; approximately 0.12 acres of land located between U.S. 5 and property known as 120 Lake Street, to be conveyed to abutting landowner Jackaline J. Swett.

(b)  The secretary of transportation, as agent for the state of Vermont, is authorized to sell, for fair market value, the following parcels of land along the state-owned railroad line between St. Johnsbury and Swanton:

(1)  town of Danville; valuation section V50/7; land between previous and current location of Town Highway #63, to be conveyed to abutting landowners Mark A. Palmieri and Carol J. Palmieri; 

(2)  town of Morristown; valuation section V50/51; approximately 3.7 acres adjacent to engine house and currently leased for batch plant, to be conveyed to lessee S. T. Griswold & Company, Inc.; however, if this conveyance is not consummated, the Lamoille Economic Development Corporation shall have the option to purchase; and

(3)  town of Morristown; valuation section V50/51; approximately 5.3 acres under and surrounding engine house, to be conveyed to the Lamoille Economic Development Corporation. 

(c)  The conveyances authorized by this section shall not include any lands within 33 feet of the centerline of any active railroad track (unless otherwise agreed by the railroad operator) or, in the case of the former Lamoille Valley Railroad, any land within 33 feet of the centerline of the former main line track.  The conveyances shall include appropriate covenants for the protection of continuing railroad operations or, in the case of the former Lamoille Valley Railroad, railbanking and interim trail use.  The prospective purchasers shall be required to bear the cost of any required surveys as well as the cost of obtaining any required subdivision or boundary adjustment approvals.

(d)  Prior to selling any parcel which has a fair market value of over $50,000.00, the secretary of transportation shall obtain the approval of the chairs of the senate and house committees on transportation.

(e)  The authority granted by this section shall expire on June 30, 2008.

Sec. 17.  5 V.S.A. § 3587 is amended to read:

§ 3587.  OBSTRUCTING CROSSING MORE THAN FIVE MINUTES; PENALTY; EXEMPTION

(a)  When a railroad crosses a highway or road required for farm use at rail level, the company operating such railroad shall not, nor shall its officer, agent, or employees permit an engine or railroad car, or any portion thereof, to stand on any part of such highway or road for a longer period than five minutes at any one time, or in shunting, to obstruct public traffic for a longer period than five minutes at any one time.  A person or corporation violating the provisions of this section shall be fined not more than $50.00 nor less than $5.00.

(b)  The provisions of this section shall not apply to:

(1)  any grade crossings now existing or hereinafter established over the line of railroad extending through the city of Rutland between the River Street underpass and the Pine Street overpass; and

(2)  the grade crossing in the town of Norton between the St. Lawrence & Atlantic Railroad and the class 4 town highway known as Gagnon Road (town highway #12).

Sec. 18.  AGENCY OF TRANSPORTATION POLICY FOR SELLING RAILROAD PROPERTY

(a)  The agency of transportation is directed to establish a policy for selling state-owned railroad property.  The policy shall, at least, address the following issues and shall set forth the criteria by which:

(1)  A decision is made or not made to sell the property.

(2)  A selling price is derived.

(3)  All offers to sell are either in or out of a bidding process and the specifics of the bidding process.

(b)  Prior to any sale of railroad property, the agency shall notify all agencies and departments of state government to afford the option of acquiring the property, and shall obtain the approval of the chairs of both the senate and house committees on transportation for parcels selling for over $50,000.00.

(c)  The agency shall report to the members of the house and senate committees on transportation by January 15, 2007 on the policy required by subsection (a) of this section.

Sec. 19.  AMTRAK

The agency shall not purchase, contract for construction, or otherwise contract for the use of any railroad locomotion or rolling stock equipment intended for use in connection with Amtrak services without the approval of the general assembly if in session, and if not in session, of the joint fiscal committee and the joint transportation oversight committee.  The agency shall notify members of the house and senate committees on transportation of any such submission to the joint fiscal committee and joint transportation oversight committee.  The house and senate committees on transportation shall meet and make recommendations regarding the proposed action to the joint fiscal committee and the joint transportation oversight committee.

Sec. 20.  RAIL AUTHORITY STUDY

The members of the rail authority study committee established pursuant to the provisions of Sec. 33(a) of No. 80 of the Acts of 2005 shall reconvene in August 2006 to review the state’s rail program and make recommendations regarding a rail authority to the house and senate committees on transportation by January 15, 2007.  Legislative members of the committee shall be entitled to per diem compensation and expense reimbursement as provided in 2 V.S.A. § 406(a).  Other members of the committee who are not state employees shall be entitled to per diem compensation and expense reimbursement as provided in 32 V.S.A. § 1010.

Sec. 21.  19 V.S.A. § 10e(c) is added to read:

(c)  The agency of transportation shall, by January 15 of each year, submit a rail report to the members of the house and senate committees on transportation.  The report shall include the status of projects programmed for delivery during the previous calendar year and a summary of any changes to the agency’s organizational structure which may affect project delivery.

* * * Federal Earmarks * * *

Sec. 22.  19 V.S.A. § 7(k) is amended to read:

(k)  Upon being apprised of the enactment of a federal law which makes provision for a federal earmark for a transportation project within the state of Vermont, the agency of transportation shall promptly notify the members of the House and Senate Transportation Committees house and senate committees on transportation and the joint fiscal office.  Such notification shall include all available summary information regarding the terms and conditions of the federal earmark.  For purposes of this section, federal earmark means a congressional designation of federal aid funds for a specific transportation project or program.  When the general assembly is not in session, upon obtaining the approval of the joint transportation oversight committee, the agency is authorized to add new projects to the transportation program in order to secure the benefits of federal earmarks.

* * * Municipal Equipment Loan Fund * * *

Sec. 23.  29 V.S.A. § 1602(a) and (b) are amended to read:

(a)  Upon application of a municipality or two or more municipalities applying jointly, the state treasurer may loan money from the fund to that municipality or municipalities for the purchase of equipment.  Purchases of equipment eligible for loans from the fund shall have a useful life of at least three five years and a purchase price of at least $20,000.00 but shall not be eligible for loans in excess of $90,000.00 $110,000.00 from this fund.

(b)  The treasurer is authorized to establish terms and conditions, including repayment schedules of up to three five years for loans from the fund to assure repayment of loans to the fund.  Before a municipality may receive a loan from the fund, it shall give to the treasurer security for the repayment of the funds.  The security shall be in such form and amount as the treasurer may determine and may include a lien on the equipment financed by the loan.

* * * Motor Vehicle and Highway User Fees * * *

Sec. 24.  23 V.S.A. § 114(a)(14) is amended to read:

(14)  Certified copy three-year operating record                           8.00 10.00

Sec. 25.  23 V.S.A. § 115(b) is amended to read:

(b)  Every identification card shall expire, unless earlier canceled, on the fourth birthday of the applicant following the date of original issue, and may be renewed every four years upon payment of a $15.00 $20.00 fee.

Sec. 26.  23 V.S.A. § 304(b)(1) is amended to read:

(1)  Except as otherwise provided, at the request of the registrant of any motor vehicle, upon application and upon payment of an annual fee of $30.00 $35.00 in addition to the annual fee for registration.  He or she may not issue two sets of special number plates bearing the same initials or letters unless the plates also contain a distinguishing number.  Special number plates are subject to reassignment if not renewed within 60 days of expiration of the registration.

Sec. 27.  23 V.S.A. § 307 is amended to read:

§ 307.  CARRYING OF REGISTRATION CERTIFICATE

A person shall not operate a motor vehicle nor draw a trailer or semi-trailer unless the registration certificate thereof is carried in some easily accessible place in such motor vehicle.  In case of the loss, mutilation or destruction of such certificate the owner of the vehicle described therein shall forthwith notify the commissioner and remit a fee of $7.00 $10.00 whereupon the commissioner shall furnish such owner with a duplicate certificate.  A corrected registration certificate shall be furnished by the commissioner upon request and receipt of a fee of $7.00 $10.00.

Sec. 28.  23 V.S.A. § 323 is amended to read:

§ 323.  TRANSFER FEES

A person who transfers the ownership of a registered motor vehicle to another, upon the filing of a new application, and upon the payment of a fee of $15.00 $20.00 may have registered in his or her name another motor vehicle for the remainder of the registration period without payment of any additional registration fee, provided the proper registration fee of the motor vehicle sought to be registered is the same as the registration fee of the transferred motor vehicle.  However, if the proper registration fee of the motor vehicle sought to be registered by such person is greater than the registration fee of the transferred motor vehicle, the applicant shall pay, in addition to such fee of $15.00 $20.00, the difference between the registration fee of the motor vehicle previously registered and the proper fee for the registration of the motor vehicle sought to be registered.

Sec. 29.  23 V.S.A. § 361 is amended to read:

§ 361.  PLEASURE CARS

The annual fee for registration of any motor vehicle of the pleasure car type, and all vehicles powered by electricity, shall be $49.00 $59.00 and the biennial fee shall be $90.00 $108.00.

Sec. 30.  23 V.S.A. § 364 is amended to read:

§ 364.  MOTORCYCLES

The annual fee for registration of a motorcycle, with or without side car, shall be $30.00 $35.00.

Sec. 31.  23 V.S.A. § 367(a)(1) and (f)(1) are amended to read:

(a)(1)  The annual fee for registration of tractors, truck-tractors, or motor trucks except truck cranes, truck shovels, road oilers, bituminous distributors, and farm trucks used as hereinafter specified shall be based on the total weight of the truck-tractor or motor truck including body and cab plus the heaviest load to be carried.  In computing the fees for registration of tractors, truck-tractors or motor trucks with trailers or semi-trailers attached, except trailers or semi-trailers with a gross weight of less than 6,000 pounds, the fee shall be based upon the weight of the tractor, truck-tractor or motor truck, the weight of the trailer or semi-trailer, and the weight of the heaviest load to be carried by the combined vehicles.  In addition to the fee set out in the following schedule, the fee for vehicles weighing between 10,000 and 25,999 pounds inclusive shall be an additional $26.25 $28.88, the fee for vehicles weighing between 26,000 and 39,999 pounds inclusive shall be an additional $52.50 $57.75, the fee for vehicles weighing between 40,000 and 59,999 pounds inclusive shall be an additional $183.75 $202.13, and the fee for vehicles 60,000 pounds and over shall be an additional $288.75 $317.63.  The fee shall be computed at the following rates per thousand pounds of weight determined as above specified and rounded up to the nearest whole dollar, the minimum fee for registering a tractor, truck-tractor, or motor truck to 6,000 pounds shall be the same as for the pleasure car type:

$11.24 $12.36 when the weight exceeds 6,000 pounds but does not exceed 8,000 pounds.

$12.86 $14.15 when the weight exceeds 8,000 pounds but does not exceed 12,000 pounds.

$14.18 $15.60 when the weight exceeds 12,000 pounds but does not exceed 16,000 pounds.

$15.17 $16.69 when the weight exceeds 16,000 pounds but does not exceed 20,000 pounds.

$15.86 $17.45 when the weight exceeds 20,000 pounds but does not exceed 30,000 pounds.

$16.22 $17.84 when the weight exceeds 30,000 pounds but does not exceed 40,000 pounds.

$16.60 $18.26 when the weight exceeds 40,000 pounds but does not exceed 50,000 pounds.

$16.75 $18.43 when the weight exceeds 50,000 pounds but does not exceed 60,000 pounds.

$17.32 $19.05 when the weight exceeds 60,000 pounds but does not exceed 70,000 pounds.

$17.90 $19.70 when the weight exceeds 70,000 pounds but does not exceed 80,000 pounds.

$18.48 $20.33 when the weight exceeds 80,000 pounds but does not exceed 90,000 pounds.

(f)(1)  The annual fee for registration of a farm truck of a total weight, determined as provided in subsection (a) of this section, used only for the transportation of agricultural products produced on, and material to be used in connection with the operation of, a farm or farms owned, operated or occupied by the registrant, or motor trucks which are agricultural custom service vehicles as defined in subdivision 4(70) of this title, shall be $40.00 $59.00 if the total weight is less than 18,000 pounds. If the gross weight is at least 18,000 pounds but is less than 35,000 pounds, the fee shall be $61.00 $92.50.  If the gross weight is at least 35,000 pounds but does not exceed 60,000 pounds, the fee shall be $115.00 $172.50.  If the gross weight exceeds 60,000 pounds but does not exceed 80,000 pounds, the fee shall be $182.50 $272.50.

Sec. 32.  23 V.S.A. § 371(a)(1) is amended to read:

(a)(1)  The one-year and two-year fees for registration of a trailer or semi-trailer, except contractor’s trailer or farm trailer, shall be as follows:

(A)  $15.00 $20.00 and $30.00 $40.00, respectively, when such trailer or semi-trailer has a gross weight of trailer and load of less than 1,500 pounds;

(B)  $30.00 $40.00 and $60.00 $80.00, respectively, when such trailer or semi-trailer has a gross weight of trailer and load of 1,500 pounds or more, and is drawn by a vehicle of the pleasure car type;

(C)  $30.00 $40.00 and $60.00 $80.00, respectively, when such trailer or semi-trailer is drawn by a motor truck or tractor, when such trailer or

semi-trailer has a gross weight of 1,500 pounds or more, but not in excess of 3,000 pounds;

(D)  $30.00 $40.00 and $60.00 $80.00, respectively, when such trailer or semi-trailer is used in combination with a truck-tractor or motor truck registered at the fee provided for combined vehicles under section 367 of this title.  Excepting for the fees, the provisions of this subdivision shall not apply to trailer coaches as defined in section 4 of this title nor to modular homes being transported by trailer or semi-trailer.

Sec. 33.  23 V.S.A. § 608(a) is amended to read:

(a)  The four-year fee required to be paid the commissioner for licensing an operator of motor vehicles shall be $35.00 $40.00.  The two-year fee required to be paid the commissioner for licensing an operator or junior operator shall be $23.00 $28.00.

Sec. 34.  23 V.S.A. § 617(d) is amended to read:

(d)  An applicant shall pay $10.00 $15.00 to the commissioner for each learner’s permit that is not a motorcycle learner’s permit or a duplicate or renewal thereof.

Sec. 35.  23 V.S.A. § 634(a) is amended to read:

(a)  The fee for an examination for a learner’s permit shall be $20.00.  The fee for an examination to obtain an operator’s license when the applicant is required to pass an examination pursuant to section 632 of this title shall be $5.00 $15.00.

Sec. 36.  23 V.S.A. § 675(a) is amended to read:

(a)  Before a suspension or revocation issued by the commissioner of a person’s operator’s license or privilege of operating a motor vehicle may be terminated or before a person’s operator’s license or privilege of operating a motor vehicle may be reinstated, there shall be paid to the commissioner a fee of $50.00 $60.00 in addition to any other fee required by statute.  This section shall not apply to suspensions issued under the provisions of chapter 11 of this title nor suspensions issued for physical disabilities or failing to pass re-examination.  The commissioner shall not reinstate the license of a driver whose license was suspended pursuant to section 1205 of this title until the commissioner receives certification from the court that the costs due the state have been paid.

Sec. 37.  23 V.S.A. § 2002(a) is amended to read:

(a)  The commissioner shall be paid the following fees:

(1)  For any certificate of title, including a salvage certificate of title, $15.00 $25.00;

* * *

(3)  For a certificate of title after a transfer, $15.00 $25.00;

* * *

(5)  For a duplicate certificate of title, including a salvage certificate of title, $15.00 $25.00;

(6)  For an ordinary certificate of title issued upon surrender of a distinctive certificate, $15.00 $25.00;

* * *

(10)  For a certificate of title after a security interest has been released, $15.00 $25.00;

* * *

(12)  For a corrected certificate of title, $15.00 $25.00.

Sec. 38.  23 V.S.A. § 4110(a)(8) is amended to read:

(8)  The application shall be accompanied by the proper fee.  The four-year fee shall be $65.00 $75.00.  The two-year fee shall be $45.00 $50.00.  In those instances where the applicant surrenders a valid Vermont Class D license, the total fees due shall be reduced by:

(A)  one-quarter of the four-year fee established by section 601 of this title for each remaining full year of validity; or

(B)  one-half of the two-year fee paid for each remaining full year of validity.

Sec. 39.  32 V.S.A. § 8903(a) and (b) are amended to read:

(a)(1)  There is hereby imposed upon the purchase in Vermont of a motor vehicle by a resident a tax at the time of such purchase, payable as hereinafter provided.  The amount of the tax shall be six percent of the taxable cost of a:

pleasure car as defined in 23 V.S.A. § 4;

motorcycle as defined in 23 V.S.A. § 4;

motor home as defined in subdivision 8902(11) of this title; or

vehicle weighing up to 10,099 pounds, registered pursuant to 23 V.S.A. § 367, other than a farm truck.

(2)  For any other motor vehicle it shall be six percent of the taxable cost of the motor vehicle or $1,100.00 $1,500.00 for each motor vehicle, whichever is smaller, except that pleasure cars which are purchased, leased or otherwise acquired for use in short-term rentals shall be subject to taxation under subsection (d) of this section.

(b)(1)  There is hereby imposed upon the use within this state a tax of six percent of the taxable cost of a:

pleasure car as defined in 23 V.S.A. § 4;

motorcycle as defined in 23 V.S.A. § 4;

motor home as defined in subdivision 8902(11) of this title; or

vehicle weighing up to 10,099 pounds, registered pursuant to 23 V.S.A. § 367, other than a farm truck.

(2)  For any other motor vehicle it shall be six percent of the taxable cost of a motor vehicle, or $1,100.00 $1,500.00 for each motor vehicle, whichever is smaller, by a person at the time of first registering or transferring a registration to such motor vehicle payable as hereinafter provided, except no use tax shall be payable hereunder if the tax imposed by subsection (a) of this section has been paid, or the vehicle is a pleasure car which was purchased, leased or otherwise acquired for use in short-term rentals, in which case the vehicle shall be subject to taxation under subsection (d) of this section.

Sec. 40.  32 V.S.A. § 602(2)(B) is amended to read:

For purposes of this chapter:

* * *

(2)  “Fee”:

* * *

(B)  The following charges are exempt from the provisions of this subchapter:

(i)  A charge established under the jurisdiction of the public service board as provided by sections 20, 21, and 218 of Title 30.

(ii)  A charge established by the liquor control board as provided by Title 7.

(iii)  A duly adopted charge concerning only inmates of a correctional or detention facility, students enrolled in an educational institution, or patients admitted to a hospital or rehabilitation facility.

(iv)  Monies paid into an enterprise or internal service fund.

(v)  A transfer between agencies of state government or between state government and a political subdivision, as compensation for a service, to support a regulatory activity, or to account for surplus property.

(vi)  Monies from interest and premium payments, rent or lease payments, proceeds of fair market or negotiated sales, or sales of commercially available items.

(vii)  Except for the purposes of section 605 of this title, motor vehicle and other highway user fees authorized by the general assembly for the support of the transportation fund.

(viii)  Any other charge exempt by law.

* * * Special Purpose Vehicle Registration * * *

Sec. 41.  23 V.S.A. § 4(74) and (75) are added to read:

(74)  “Category I special purpose vehicle” means a vehicle that is used exclusively as a backhoe, bucket loader, grader, truck shovel (wheeled excavator), street sweeper, or forklift truck.

(75)  Category II special purpose vehicle" means a vehicle that is used exclusively as a truck crane, wrecker, concrete form truck, bituminous distributor, calcium chloride distributor, full or semi-flotation applicator, well driller tender truck (these vehicles may tow another vehicle), permanently mounted well drilling machine, road oiler, water tanker used for dust control, or a truck used to transport a building by the use of a "transportation dolly" as defined in subdivision 54 of section 4 of this title.

Sec. 42.  23 V.S.A. § 367(b), (c), (d), (e), (g), (h), and (j) are amended to read:

(b)  The annual fee for registration of a truck crane or truck shovel category I special purpose vehicle shall be $105.00 $175.00, and the annual fee for a category II special purpose vehicle shall be $350.00.

(c)  The annual fee for registration of the so-called fork lift truck, without load, shall be $65.00.

(d)  The annual fee of a truck carrying a permanently mounted water well drilling machine is $65.00, and the annual fee for a well drilling tender truck is $105.00.

(e)  The annual fee for registration of each road oiler, calcium chloride distributor or bituminous distributor shall be $105.00.

(g)  The annual fee for registration of a truck utilized for the single purpose of carrying concrete forms shall be $105.00.

(h)  The annual fee for registration of each street sweeper, full or semi-flotation applicator vehicles, grader, rubber-tired loader and loader backhoe combination shall be $105.00. Loader backhoes used primarily for agricultural related purposes are exempt from the provision of this subsection section.

(j)  The annual registration fee for registration of a truck used exclusively to transport a building by the use of a “transportation dolly” as defined in subdivision (54) of section 4 of this title shall be $105.00.

* * * Elders and Persons with Disabilities Funding Formula * * *

Sec. 43.  PUBLIC TRANSIT; ELDERS AND PERSONS WITH DISABILITIES FUNDING FORMULA

The agency of transportation shall, in concert with the elders and persons with disabilities advisory committee, review the elders and persons with disabilities funding formula for the effectiveness of the mileage component.  The agency shall adjust the funding formula, if appropriate, before the state fiscal year 2007 allocations are announced.

* * * Closed Season for Snowmobile Operation * * *

Sec. 44.  23 V.S.A. § 3201(12) is amended to read:

For the purposes of this chapter:

* * *

(12)  “Closed season” shall be defined as the time from April 16 to the Sunday in December preceding the third Monday December 15.

* * * Transportation Program * * *

Sec. 45.  19 V.S.A. § 10g(d) and (e) are amended to read:

(d)(1)  In addition to the multiyear transportation program described in subsection (a) of this section, the agency shall annually present to the general assembly an analysis of the balance between the state’s commitments to transportation projects and total available resources for projects over the ten‑year period commencing with the fiscal year of the transportation program.  The analysis shall include, on a current dollar basis, an estimate of the total remaining cost of all projects in construction, development, and evaluation or candidate status in the agency’s proposed multiyear transportation program, including individual estimates and projected schedules for all projects with a total project cost estimate in excess of $10 million, and an estimate, on a current dollar basis, of the total resources projected to be available to cover project expenses during the ten-year period.

(2)  The projection of available resources called for in subdivision (1) of this subsection shall be determined in the following manner.  Total appropriations to the agency exclusive of internal service funds for each of the five previous fiscal years shall be determined.  From that total for each fiscal year shall be deducted appropriations for annual programs and other noncapital project agency activities.  Appropriations for administration, overhead, and other ongoing agency functions required for the support of capital project activities shall be apportioned on a reasonable basis and added back to the total which shall represent the total of appropriations for and in support of the agency’s capital project activities for that fiscal year.  The resulting appropriations totals of capital project-related appropriations shall be adjusted for inflation in a procedure approved by the joint fiscal committee.  The resulting inflation adjusted figures for the five previous fiscal years shall be averaged, and the average multiplied by ten shall be used as the estimate of the total resources projected to be available to cover project expenses during the ten-year period.

(3)  To the extent the estimate of remaining costs exceeds the estimate of available resources, the agency shall submit to the general assembly a plan to bring costs and resources into balance.  The plan shall include recommendations regarding the scheduling, suspension, or cancellation of projects, cost saving initiatives, revenue raising initiatives, and other organizational, project design, project execution, or financial measures or initiatives which shall ensure that the state’s commitments will be adequately and realistically funded.

(e)(1)  In addition to the multiyear transportation program described in subsection (a) of this section, the agency shall annually present to the general assembly The agency’s annual transportation program shall include a separate report referencing this subsection description of describing all projects not previously reported under this subsection with respect to which, as of the fiscal year covered by the transportation program:

(1)(A)  the The total  project cost estimate exceeds $5,000,000.00;

(2)(B)  federal Federal funds are proposed to be used to cover a portion of the project costs; and

(3)(C)  approval Approval of the proposed activity and expenditure of federal funds on the project would expose the state to potential liability to reimburse the federal government in the event the project is subsequently  cancelled.

(2)  All projects with front-of-the-book status in any approved transportation program for fiscal year 2007 or earlier shall be exempt from the reporting requirements of subdivision (1) of this subsection.

* * * Prioritization Schedule for all Transportation Projects * * *

Sec. 46.  19 V.S.A. § 10b(c) is added to read:

(c)  The agency of transportation, in developing each of the program prioritization systems schedules for all modes of transportation, shall include the following throughout the process:

(1)  The agency shall annually solicit input from each of the regional planning commissions on regional priorities within each schedule, and those inputs shall be factored into the prioritizations for each program area and shall afford the opportunity of adding new projects to the schedules.

(2)  Each year the agency shall provide in the front of the transportation program book a detailed explanation describing the factors in the prioritization system that creates each project list.

* * * Town Highway Bridge and Culvert Inventory * * *

Sec. 47.  TOWN HIGHWAY BRIDGE AND CULVERT INVENTORY

The agency of transportation is directed to complete and deploy an integrated software product by November 1, 2006 to handle data entry, access and status reporting of town bridge and culvert inventories currently collected by regional planning commissions (RPCs), the metropolitan planning organization, and towns and their contractors.  The software product shall conform to the specifications defined in the VGIS Bridge and Culvert Data Exchange Standard (VGIS Handbook:  Part 2 - Standards - Section H).  All town bridge and culvert inventory data which have been collected and which hereafter are collected by regional planning commissions in a data format conforming to the specifications of the VGIS Bridge and Culvert Data Exchange Standard shall be made available by the regional planning commissions to the Vermont center for geographic information which shall make such data available to the agency and to the general public on its website.  The agency of transportation shall encourage the RPCs and the metropolitan planning organization to complete the inventories for their region, and shall annually update the house and senate committees on transportation on the status of the data collection by regional planning commissions.

* * *  Transfers to the Central Garage Fund * * *

Sec. 48.  Sec. 69b(c) of No. 6 of the Acts of 2005 as amended by Sec. 77 of H.617 of the Acts of 2006 is amended to read:

(c)  In fiscal year 2006, the agency of transportation shall revert $2,600,000 from the appropriation of transportation funds for paving and bridge projects and transfer that amount to the highway central garage fund appropriations to the agency of transportation for the paving and state bridge and town bridge projects referenced in subsection (a) of this section shall be reduced by the aggregate amount of $2,600,000, and $2,600,000 shall be transferred to the highway central garage fund.

* * * DMV Study of Commercial Bus Registration Fees * * *

Sec. 49.  DEPARTMENT OF MOTOR VEHICLE STUDY OF MOTOR BUS FEES AND TAXES

The joint fiscal office, in cooperation with the department of motor vehicles, shall examine the options for assessing registration fees for motor buses that do not operate on a fixed route and to assess the options for removing or otherwise modifying the diesel fuel tax exemption for these vehicles and to make recommendations to the senate and house committees on transportation by January 15, 2007.

* * * Vehicles Approaching Tow Trucks on Highways * * *

Sec. 50.  23 V.S.A. § 1050(b) is amended to read:

(b)  The operator of a vehicle which is approaching a stationary law enforcement vehicle which is displaying a blue or blue and white signal lamp, or of a vehicle which is approaching a stationary ambulance, fire apparatus, a vehicle operated by a volunteer firefighter, or a motor vehicle used in rescue operations as set forth in section 1252 of this title which is displaying a red signal lamp, or a stationary towing and repair vehicle displaying an amber signal lamp shall proceed with caution, and, if traveling on a four-lane highway, and safety conditions permit, make a lane change.

* * * Towing Abandoned Vehicles from Public Property ‑ Funding * * *

Sec. 51.  23 V.S.A. § 2158 is added to read:

§ 2158.  FEES FOR TOWING; PUBLIC PROPERTY; FUNDING

(a)  A towing service may charge a fee of up to $40.00 for towing an abandoned motor vehicle from public property under the provisions of sections 2151–2157 of this title.  This fee shall be paid to the towing service upon the issuance by the department of motor vehicles of a certificate of abandoned motor vehicles under section 2156 of this title.  The commissioner of motor vehicles shall notify the commissioner of finance and management who shall issue payment to the towing service for vehicles removed from public property.  Payments under this section shall terminate upon the payment of a total of $16,000.00 for towing abandoned motor vehicles from public property in any fiscal year.

(b)  The commissioner of motor vehicles is authorized to expend up to $16,000.00 of the department's annual appropriation for the purpose of this section.

(Committee Vote: 6-0-0)

Reported favorably by Senator Maynard for the Committee on Finance.

(Committee vote: 5-1-1)

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

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

     First:  In Sec. 39, 32 V.S.A. § 8903(a)(2) and (b)(2), by striking out the following: "$1,500.00" where it twicely appears and inserting in lieu thereof the following: $1,680.00

     Second: By adding a new section to be numbered Sec. 52 to read as follows:

Sec. 52.  19 V.S.A. § 11a is amended to read:

§ 11a.  Transportation Funds Appropriated For Support Of Government

The maximum amount of transportation funds that may be appropriated for the support of government, other than for the agency of transportation, the transportation board, transportation pay act funds, the cost of maintaining and staffing rest areas, construction of transportation capital facilities used by the agency of transportation, and transportation debt service, for fiscal year 2006 shall not exceed 18.0 percent of the total of the prior fiscal year transportation fund appropriations and, for fiscal year 2007 shall not exceed $38,221,563 38,349,046, and for fiscal year 2008 shall not exceed $37,000,000.

(Committee Vote: 6-0-1)

(For House amendments, see House Journal for March 16, 2006, page 668; March 17, 2006, page 702.)

PROPOSAL OF AMENDMENT TO H. 869 TO BE OFFERED BY SENATOR ILLUZZI

Senator Illuzzi moves that the Senate propose to the House to amend the bill by adding two new sections to be numbered Secs. 52 and 53 to read as follows:

Sec. 52.  23 V.S.A. § 513 is amended to read:

§ 513.  MISUSE OF PLATES

Except as provided in section 321 of this title, an owner of a motor vehicle shall not attach or cause to be attached thereto to the vehicle number plates that were not assigned by the commissioner of motor vehicles to such owner to be attached to such motor vehicle.  A person shall not operate a motor vehicle, except as provided in section 321 of this title, to which number plates are attached that were not assigned to such the vehicle by the commissioner of motor vehicles. An inspector of motor vehicles and any law enforcement officer shall have authority to remove from a motor vehicle any plates which have been attached in violation of the provisions of this section.

Sec. 53.  23 V.S.A. § 674 is amended to read:

§ 674.  OPERATING AFTER SUSPENSION OR REVOCATION OF LICENSE; PENALTY; REMOVAL OF REGISTRATION PLATES; TOWING

* * *

(c)(1)  An enforcement officer shall have the authority to remove from a motor vehicle any number plates which is being operated by a person in violation of subsection (a) or (b) of this section.  The plates shall be forwarded to the commissioner who may, in his or her sole discretion, return them to the registered owner for good cause shown.  The vehicle shall be towed to the tow operator’s place of business and shall not be released until the tow operator is shown proof that the plates have been returned to the registered owner or leasee by the commissioner, or that the vehicle has been reregistered, and the towing and storage fees are paid.

(2)  No person shall register any motor vehicle in this state while the person’s operating license or nonresident operating privilege or the privilege of an unlicensed operator to operate a vehicle is suspended or revoked.  The commissioner shall revoke any registration obtained in violation of this subsection, and the registrants shall not be entitled to the refund of any fees or taxes paid in connection with the registration.

(c)(d)  Notwithstanding any other provision of this title, when a conviction for a violation of this section and a conviction for a violation of section 1201 of this title result from the same incident, any penalty or suspension or revocation of a person’s license or privilege to operate shall be imposed to be consecutive and not concurrent.

(d)(e)  In determining appropriate fines under this section, the court may take into account the income of the defendant.

(e)(f)  For purposes of this section and section 676 of this title, the suspension period for a violation of section 1201 or 1205 of this title shall not be deemed to expire until the person has complied with section 1209a of this title and the person’s license has been reinstated.

(f)(g)  In establishing a prima facie case against a person accused of violating this section, the court shall accept as evidence a printout attested to by the law enforcement officer as the person’s motor vehicle record showing convictions and resulting license suspensions.  The admitted motor vehicle record shall establish a permissive inference that the person was under suspension on the dates and time periods set forth in the record.  No certified copy shall be required from the department of motor vehicles to establish the permissive inference.

(g)(h)  At the time of sentencing after a second or subsequent conviction under subsection (b) of this section, the court may, in addition to any penalty imposed by law, order that the motor vehicle operated by the person at the time of the offense be immobilized.  At the time of sentencing after a third or subsequent conviction under subsection (b) of this section, the court may, in addition to any penalty imposed by law, order that the motor vehicle operated by the person at the time of the offense be forfeited and sold.  Immobilization and forfeiture procedures under this section shall be conducted in accordance with the procedures in section 1213c of this title.

(h)(i)  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.

PROPOSAL OF AMENDMENT TO H. 869 TO BE OFFERED BY SENATOR ILLUZZI

Senator Illuzzi moves that the Senate propose to the House to amend the bill in Sec. 42, 23 V.S.A. §367 subsection (b) by striking out the following: “$175.00” and inserting in lieu thereof the following: $1,750.00

House Proposal of Amendment

S. 117

An act relating to state recognition of the Abenaki People.

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

Sec. 1.  1 V.S.A. chapter 23 is added to read:

CHAPTER 23.  ABENAKI PEOPLE

§ 851.  FINDINGS

The general assembly finds that:

(1)  At least 1,700 Vermonters claim to be direct descendants of the several indigenous Native American peoples, now known as Western Abenaki tribes, who originally inhabited all of Vermont and New Hampshire, parts of western Maine, parts of southern Quebec, and parts of upstate New York for hundreds of years, beginning long before the arrival of Europeans.

(2)  There is ample archaeological evidence that demonstrates that the Missisquoi Abenaki were indigenous to and farmed the river floodplains of Vermont at least as far back as the 1100s A.D.

(3)  The Western Abenaki, including the Missisquoi, have a very definite and carefully maintained oral tradition that consistently references the Champlain valley in western Vermont.

(4)  Many contemporary Abenaki families continue to produce traditional crafts and intend to continue to pass on these indigenous traditions to the younger generations.  In order to create and sell Abenaki crafts that may be labeled as Indian- or Native American-produced, the Abenaki must be recognized by the state of Vermont.

(5)  Federal programs may be available to assist with educational and cultural opportunities for Vermont Abenaki and other Native Americans who reside in Vermont.

§ 852.  VERMONT COMMISSION ON NATIVE AMERICAN AFFAIRS  ESTABLISHED; AUTHORITY

(a)  In order to recognize the historic and cultural contributions of Native Americans to Vermont, to protect and strengthen their heritage, and to address their needs in state policy, programs, and actions, there is hereby established the Vermont commission on Native American affairs (the “commission”). 

(b)  The commission shall comprise seven members appointed by the governor for two-year terms from a list of candidates compiled by the division for historic preservation.  The governor shall appoint a chair from among the members of the commission.  The division shall compile a list of candidates’ recommendations from the following:

(1)  Recommendations from the Missisquoi Abenaki and other Abenaki and other Native American regional tribal councils and communities in Vermont.

(2)  Applicants who apply in response to solicitations, publications, and website notification by the division of historical preservation.

(c)  The commission shall have the authority to assist Native American tribal councils, organizations, and individuals to:

(1)  Secure social services, education, employment opportunities, health care, housing, and census information.

(2)  Permit the creation, display, and sale of Native American arts and crafts and legally to label them as Indian- or Native American‑produced as provided in 18 U.S.C. § 1159(c)(3)(B) and 25 U.S.C. § 305e(d)(3)(B).

(3)  Receive assistance and support from the federal Indian Arts and Crafts Board, as provided in 25 U.S.C. § 305 et seq.

(4)  Become eligible for federal assistance with educational, housing, and cultural opportunities.

(5)  Establish and continue programs offered through the U.S. Department of Education Office on Indian Education pursuant to Title VII of the Elementary and Secondary Education Act established in 1972 to support educational and cultural efforts of tribal entities that have been either state or federally recognized.

(d)  The commission shall meet at least three times a year and at any other times at the request of the chair.  The agency of commerce and community development and the department of education shall provide administrative support to the commission.

(e)  The commission may seek and receive funding from federal and other sources to assist with its work.

§ 853.  RECOGNITION OF ABENAKI PEOPLE

(a)  The state of Vermont recognizes the Abenaki people and recognizes all Native American people who reside in Vermont as a minority population. 

(b)  Recognition of the Native American or Abenaki people provided in subsection (a) of this section shall be for the sole purposes specified in subsection 852(c) of this title and shall not be interpreted to provide any Native American or Abenaki person with any other special rights or privileges that the state does not confer on or grant to other state residents.

(c)  This chapter shall not be construed to recognize, create, extend, or form the basis of any right or claim to land or real estate in Vermont for the Abenaki people or any Abenaki individual and shall be construed to confer only those rights specifically described in this chapter.

Sec. 2.  Effective Date; Appointments To Commission

(a)  This act shall take effect on passage.

(b)  The governor shall make appointments to the commission no later than 90 days after the effective date of this act.


ORDERED TO LIE

S. 112

An act relating to the practice of optometry.

PENDING ACTION:  Second reading of the bill.

S. 157

An act relating to rulemaking for Vermont origin.

PENDING ACTION:  Second reading of the bill.

S. 315

An act relating to creation of the Vermont Land Bank program.

Pending Action:  Second Reading of the bill.

S. 316

An act to accelerate access to broadband services throughout Vermont.

Pending Action:  Second Reading of the bill.

S. 319

An act relating to expanding the scope of the net metering program.

Pending Action:  Second Reading of the bill.

CONFIRMATIONS

     The following appointments will be considered by the Senate, as a group, under suspension of the Rules, as moved by the President pro tempore, for confirmation together and without debate, by consent thereby given by the Senate.  However, upon request of any senator, any appointment may be singled out and acted upon separately by the Senate, with consideration given to the report of the Committee to which the appointment was referred, and with full debate; and further, all appointments for the positions of Secretaries of Agencies, Commissioners of Departments, Judges, Magistrates, and members of the Public Service Board shall be fully and separately acted upon.

     Robert Alberts of Bridport – Member of the Vermont Housing Finance Agency – By Sen. Ayer for the Committee on Finance.  (2/10)

     John Valente of Rutland – Member of the Vermont Municipal Bond Bank – By Sen. Maynard for the Committee on Finance.  (2/24)

     Paul Andrew of South Burlington – Member of the Vermont Municipal Bond Bank – By Sen. Ayer for the Committee on Finance.  (3/15)

     Thomas James of Essex Junction – Member of the State Board of Education – By Sen. Collins for the Committee on Education.  (3/15)

     Dagyne Canney of North Clarendon – Member of the Vermont Housing Finance Agency – By Sen. Maynard for the Committee on Finance.  (3/27)

     John Hall of St. Johnsbury – Commissioner of the Department of Housing and Community Affairs – By Sen. Gander for the Committee on Economic Development, Housing and General Affairs.  (4/11)

     Patricia McDonald of Berlin – Chair of the Vermont Employment Security Board (November 15, 2004-February 28, 2005)– By Sen. Miller for  the Committee on Economic Development, Housing and General Affairs.  (4/12)

     Patricia McDonald of Berlin – Chair of the Vermont Employment Security Board (March 1, 2005-February 28, 2007) – By Sen. Miller for  the Committee on Economic Development, Housing and General Affairs.  (4/12)

     Patricia McDonald of Berlin – Commissioner of the Department of Labor – By Sen. Miller for the Committee on Economic Development, Housing and General Affairs.  (4/12)

     Bruce Hyde of Granville – Commissioner of the Department of Tourism and Marketing – By Sen. Miller for the Committee on Economic Development, Housing and General Affairs.  (4/12)

PUBLIC HEARINGS

Tuesday, April 11, 20066:30-8:30 P.M. – Room 11 – Re:  NAIS -  National Animal Identification System and Vermont Agency of Agriculture Implementation – Senate and House Committees on Agriculture.