Journal of the House

________________

TUESDAY, APRIL 12, 2005

At ten o'clock in the forenoon the Speaker called the House to order.

Devotional Exercises

Devotional exercises were conducted by The Right Reverend Thomas Ely, Bishop of the Episcopal Diocese, Burlington.

Pledge of Allegiance

Page Hillary Chutter-Ames of South Hero led the House in the Pledge of Allegiance.

Committee Bill Introduced

H. 524

Rep. Tracy of Burlington, for the committee on Health Care, introduced a bill, entitled

An act relating to universal access to health care in Vermont;

Which was read the first time and, under the rule, placed on the Calendar for notice tomorrow.

Senate Bill Referred

S. 150

Senate bill, entitled

An act relating to motor vehicles;

Was taken up, read the first time and referred to the committee on Transportation.

Consideration Resumed; Bill Amended; Third Reading Ordered

H. 115

Consideration resumed on House bill, entitled

An act relating to advance directives for health care;

The recurring question, Shall the bill be amended as recommended by  Reps. Pugh of South Burlington and Lippert of Hinesburg? amendment as follows:

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

Sec. 1.  18 V.S.A. Part 10 is added to read:

PART 10.  HEALTH CARE AND DECISION-MAKING

CHAPTER 231.  ADVANCE DIRECTIVES FOR HEALTH CARE AND DISPOSITION OF REMAINS

§ 9700.  PURPOSE AND POLICY

The state of Vermont recognizes the fundamental right of an adult to determine the extent of health care the individual will receive, including treatment provided during periods of incapacity and at the end of life.  This chapter enables adults to retain control over their own health care through the use of advance directives, including appointment of an agent and directions regarding health care and disposition of remains.  During periods of incapacity, the decisions by the agent shall be based on the express instructions, wishes, or beliefs of the individual, to the extent those can be determined.

§ 9701.  DEFINITIONS

As used in this chapter:

(1)  “Advance directive” means a written record executed pursuant to section 9703 of this title, which may include appointment of an agent, identification of a preferred primary care clinician, instructions on health care desires or treatment goals, an anatomical gift as defined in subdivision 5238(1) of this title, disposition of remains, and funeral goods and services.  The term includes documents designated under prior law as a durable power of attorney for health care or a terminal care document.

(2)  “Agent” means an adult to whom authority to make health care decisions is delegated under an advance directive, including an alternate agent if the agent is not reasonably available.

(3)  “Capacity” means an individual’s ability to make and communicate a decision regarding the issue that needs to be decided.  An individual shall be deemed to have capacity:

(A)  to appoint an agent if the individual has a basic understanding of

what it means to have another individual make health care decisions for oneself and of who would be an appropriate individual to make those decisions, and can identify whom the individual wants to make health care decisions for the individual; and

(B)  to make a health care decision if the individual has a basic understanding of the diagnosed condition and the benefits, risks, and alternatives to the proposed health care. 

(4)  “Clinician” means a medical doctor licensed to practice under chapter 23 of Title 26, an osteopathic physician licensed pursuant to subdivision 1750(9) of Title 26, an advance practice registered nurse licensed pursuant to subdivision 1572(4) of Title 26, and a physician’s assistant certified pursuant to section 1733 of Title 26 acting within the scope of the license under which the clinician is practicing.

(5)  “Commissioner” means the commissioner of the department of health.

(6)  “Do-not-resuscitate order” or “DNR order” means a written order of the principal’s clinician directing health care providers not to attempt resuscitation by providing external cardiac compressions, defibrillation, or intubation for the principal.

(7)  “DNR identification” means a document, bracelet, other jewelry, wallet card, or other means of identifying the principal as an individual who has a DNR order.

(8)  “Emergency medical personnel” shall have the same meaning as provided in section 2651 of Title 24.

(9)  “Health care” means any treatment, service, or procedure to maintain, diagnose, or treat an individual’s physical or mental condition, including services provided pursuant to a clinician’s order, and services to assist in activities of daily living provided by a health care provider or in a health care facility or residential care facility.

(10)  “Health care decision” means consent, refusal to consent, or withdrawal of consent to any health care.

(11)  “Health care facility” shall have the same meaning as provided in subdivision 9432(7) of this title. 

(12)  “Health care provider” shall have the same meaning as provided in subdivision 9432(8) of this title and shall include emergency medical personnel.

(13)  “Informed consent” means the consent given voluntarily by an individual with capacity after being fully informed of the nature, benefits, risks, and consequences of the proposed health care, alternative health care, and no health care.

(14)  “Interested individual” means:

(A) the principal’s spouse, adult child, parent, adult sibling, adult grandchild, reciprocal beneficiary, or clergy person; or

(B) any adult who has exhibited special care and concern for the principal and who is familiar with the principal’s values.

(15)  “Life sustaining treatment” means any medical intervention, including nutrition and hydration administered by medical means and antibiotics, which is intended to extend life and without which the principal is likely to die.

(16)  “Ombudsman” means an individual appointed as a long-term care ombudsman under the program established within the department of aging and independent living pursuant to the Older Americans Act of 1965, as amended.

(17)  “Patient’s clinician” means the clinician who currently has responsibility for providing health care to the patient.

(18)  “Principal” means an adult who has executed an advance directive.

(19)  “Principal’s clinician” means the clinician who currently has responsibility for providing health care to the principal.

(20)  “Reasonably available” means able to be contacted with a level of diligence appropriate to the seriousness and urgency of a principal’s health care needs, and willing and able to act in a timely manner considering the urgency of the principal’s health care needs.

(21)  “Registry” means a secure, web-based database created by the commissioner to which individuals may submit an advance directive or information regarding the location of an advance directive that is accessible to principals and agents and, as needed, to individuals appointed to arrange for the disposition of remains, organ procurement organizations, tissue and eye banks, health care providers, health care facilities, residential care facilities, funeral directors, crematory operators, cemetery officials, and the employees thereof.

(22)  “Residential care facility” means a residential care home or an assisted living residence as those terms are defined in section 7102 of Title 33.

(23) “Resuscitate” or “resuscitation” includes chest compressions and mask ventilation; intubation and ventilation; defibrillation or cardioversion; bag-valve-mask ventilation; and emergency cardiac medications provided according to the guidelines of the American Heart Association’s Cardiac Life Support program. 

(24)  “Suspend” means to terminate the applicability of all or part of an advance directive for a specific period of time or while a specific condition exists.

§ 9702.  ADVANCE DIRECTIVE

(a)  An adult may do any or all of the following in an advance directive:

(1)  except as provided in subsection (b), appoint one or more agents and alternate agents to whom authority to make health care decisions is delegated and specify the scope of such authority;

(2)  affirm that the agent and alternate agents have been notified of and have accepted the appointment and will be given copies of the advance directive;

(3)  specify a circumstance or condition, which may be unrelated to the principal’s capacity, which, when met, makes the authority of an agent effective or ineffective, and may specify the manner in which the condition shall be determined to have been met;

(4) provide that the advance directive will become effective upon execution;

(5)  direct the type of health care desired or not desired by the principal,  which may include instructions regarding transfer from home, hospitalization, and specific treatments that the principal desires or rejects when being treated for a mental or physical condition or disability;

(6)  execute a provision under subsection 9707(h) of this title which permits the agent to authorize or withhold health care over the principal’s objection in the event the principal lacks capacity;

(7)  direct which life sustaining treatments, as defined in subdivision (15) of section 9701 of this title, whether emergency, short-term, or long-term, and including nutrition and hydration administered by medical means, are desired or not desired by the principal;

(8)  direct which life sustaining treatment the principal would desire or not desire if the principal is pregnant at the time an advance directive becomes effective;

(9)  identify those adults or minors with whom the agent shall or shall not consult, or to whom the agent is or is not authorized to provide information regarding the principal’s health care;

(10)  identify those interested individuals, otherwise qualified to bring an action under section 9718 of this title, who shall not have authority to bring an action under that section; 

(11)  authorize release to named individuals in addition to the agent of health information pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 42 U.S.C. § 1320d, and 45 C.F.R. §§ 160-164;

(12)  provide any other direction that the principal desires to give regarding the principal’s future health care or personal circumstances;

(13)  identify a preferred primary care clinician and affirm that the clinician has been notified;

(14)  nominate one or more individuals to serve as the principal’s guardian if a guardian should at some later time need to be appointed;

(15)  make, limit, or refuse to make an anatomical gift pursuant to chapter 109 of this title;

(16)  direct the manner of disposition of the principal’s remains and the funeral goods and services to be provided;

(17)  identify a pre-need contract entered into with a funeral director, crematory, or cemetery; and

(18)  except as provided in subsection (c) of this section, appoint an individual to make or refuse to make an anatomical gift, and to arrange for the disposition of the principal’s remains, including funeral goods and services.

(b) The absence of an advance directive or of any specific instruction in an advance directive shall have no effect on determining the principal’s intent or wishes regarding health care or any other matter.

(c)  The principal’s health care provider may not be the principal’s agent.  Unless related to the principal by blood, marriage, civil union or adoption, an agent may not be an owner, operator, employee, agent, or contractor of a residential care facility, a health care facility, or a correctional facility in which the principal resides. 

(d)  Unless related to the principal by blood, marriage, civil union or adoption, an individual may not exercise the authority pursuant to an advance directive for disposition of remains, anatomical gifts, or funeral goods and services while serving the interests of the principal in one of the following capacities:

(1)  a funeral director or employee of the funeral director;

(2)  a crematory operator or employee of the crematory operator; or

(3)  a cemetery official or employee of the cemetery.

§ 9703.  FORM AND EXECUTION

(a)  An adult with capacity may execute an advance directive at any time.

(b)  The advance directive shall be dated, executed by the principal or by another individual in the principal’s presence at the principal’s express direction if the principal is physically unable to do so, and signed in the presence of two or more witnesses at least 18 years of age, who shall sign and affirm that the principal appeared to understand the nature of the document and to be free from duress at the time the advance directive was signed.

(c)  Neither the agent appointed by the principal nor the principal’s spouse, reciprocal beneficiary, parent, adult sibling, adult child, or adult grandchild may witness the advance directive.

(d)  An advance directive shall not be effective if, at the time of execution, the principal is being admitted to or is a resident of a nursing home as defined in section 7102 of Title 33 or a residential care facility unless an ombudsman, a recognized member of the clergy, an attorney licensed to practice in this state, or a responsible, knowledgeable individual independent of a health care facility designated by the probate court for the county in which the facility is located signs a statement affirming that he or she has explained the nature and effect of the advance directive to the principal.  It is the intent of this subsection to ensure that residents of nursing homes and residential care facilities are willingly and voluntarily executing advance directives.

(e)  An advance directive shall not be effective if, at the time of execution, the principal is being admitted to or is a patient in a hospital, unless an ombudsman, a recognized member of the clergy, an attorney licensed to practice in this state, a responsible, knowledgeable individual independent of a health care facility designated by the probate court for the county in which the facility is located, or an individual designated under subdivision 9709(c) of this title by the hospital signs a statement that he or she has explained the nature and effect of the advance directive to the principal. 

(f)  A durable power of attorney for health care, terminal care document, or advance directive executed prior to the enactment of this chapter shall be a valid advance directive if the document complies with the statutory requirements in effect at the time the document was executed or with the provisions of this chapter.

§ 9704.  AMENDMENT, SUSPENSION AND REVOCATION

(a)(1) A principal with capacity may amend, suspend, or revoke an advance directive or any specific instruction in an advance directive by executing a new advance directive or instruction pursuant to section 9703 of this title.

(2) A provision in a subsequently executed advance directive amends an earlier provision in an advance directive to the extent of any conflict between them.

(b)(1)  Except as provided in subdivision (2) of this subsection, a principal with or without capacity may suspend or revoke all or part of an advance directive:

(A) by signing a statement suspending or revoking the designation; 

(B) by personally informing the principal’s clinician, who shall make a written record of the suspension or revocation in the principal’s medical record;

(C) by burning, tearing, or obliterating the advance directive, either by the principal personally or by another person at the principal’s express direction and in the presence of the principal; or

(D)  For any provision other than the designation of an agent, orally, in writing, or by any other act evidencing a specific intent to suspend or revoke.

(2) A provision in an advance directive executed pursuant to subsection 9707(h) of this section may be suspended or revoked only if the principal has capacity.

(3) To the extent possible, the principal shall communicate any suspension or revocation to the agent or other interested individual.

(c)  A health care provider, employee of a health care facility, employee of a residential care facility, or agent, who becomes aware of an amendment, suspension or revocation shall make reasonable efforts to ensure that the amendment, suspension, or revocation is:

(1)  confirmed;

(2)  recorded in the principal’s medical record; and

(3)  communicated promptly to:

(A)  the principal’s agent, guardian, and any person designated in the advance directive to receive such notice;

(B)  the principal’s clinician, health care provider, health care facility or residential care facility at which the principal is residing or receiving care;

(C) the registry; and

(D)  any entity or individual known to hold a copy of the principal’s advance directive.

(d)(1)  The filing of an action or motion for annulment, divorce, dissolution of a civil union, legal separation, or an order for relief from abuse under chapter 21 of Title 15 or subchapter 2 of chapter 69 of Title 33 by, on behalf of, or against the principal suspends a previous designation of the spouse or other party opposing the principal in the action as agent unless otherwise specified in the advance directive, decree, or order of the court.

(2) A designation of agent suspended under subdivision (1) of this subsection shall no longer be in effect, and the agent shall be reinstated, upon the withdrawal of the action or motion for annulment, divorce, dissolution of civil union, legal separation, or order for relief from abuse.

(3) A designation of agent suspended under subdivision (1) of this subsection shall become permanent when the annulment, divorce, dissolution of civil union, or legal separation becomes final, or when the motion for relief from abuse is granted.

(e)  Unless otherwise provided for in an advance directive, each provision of an advance directive is severable from the other provisions in an advance directive if it can be given effect independently.

§ 9705.  DUTY TO DELIVER

An individual possessing a duly executed advance directive to whom it becomes known that the terms of the advance directive may be applicable shall deliver the advance directive to the principal’s clinician, other health care provider, health care facility, or residential care facility, unless the individual knows that another copy has previously been delivered and is available.

§ 9706.  WHEN ADVANCE DIRECTIVE BECOMES EFFECTIVE

(a)  An advance directive regarding health care shall become effective:

(1)  when a principal’s clinician:

(A) determines that the principal lacks capacity, and makes specific findings regarding the cause, nature, and projected duration of the principal’s lack of capacity;

(B)  has made reasonable efforts to notify the principal of the determination ; and

(C)  has notified the principal’s agent or guardian of the determination; or

(2)  when the circumstance or condition specified pursuant to subdivision 9702(a)(3) of this title has been met; or

(3)  upon execution, if specified pursuant to subdivision 9702(a)(4) of this title.

(b) When a principal has a clinician, the clinician shall certify in the principal’s medical record the facts that have caused an advance directive to become effective.

(c)  Upon the request of the principal, agent, guardian, ombudsman, health care provider, or any interested individual, the principal’s clinician or the clinician’s designee shall reexamine the principal to determine whether the principal has regained capacity.  The principal’s clinician shall document the results of the reexamination in the principal’s medical record and shall make reasonable efforts to notify the principal and the agent or guardian, as well as the individual who initiated the new determination of capacity, of the results of the reexamination.

(d)  The authority of an agent to make health care decisions for a principal shall cease in accordance with subsection 9711(c) of this title.

(e)  An advance directive regarding disposition of the principal’s remains shall become effective upon the death of the principal.

§ 9707.  AUTHORITY AND OBLIGATIONS OF HEALTH CARE PROVIDERS, HEALTH CARE FACILITIES, AND RESIDENTIAL CARE FACILITIES REGARDING HEALTH CARE INSTRUCTIONS

(a)  A health care provider, health care facility, and residential care facility shall not provide health care to a patient without capacity, except on an emergency basis, without first attempting to determine whether the patient has an advance directive in effect.

(b)  A health care provider, health care facility, and residential care facility having knowledge that a principal’s advance directive is in effect shall follow the instructions of the agent or guardian or the instructions contained in the advance directive, unless:

(1)  the instruction is clearly inconsistent with the advance directive or this chapter, and:

(A) the agent has failed to substantiate that the decision is proper under subsection 9711(d) of this title; or

(B) the guardian has not obtained an order from probate court authorizing the instruction;

(2)  the instruction would cause the provider to violate any criminal law or the standards of professional conduct required by a professional licensing board or agency, in which case the provider shall make reasonable efforts to notify the principal, if possible, and any agent and guardian that the provider cannot follow the instruction; or

(3)  because of a moral, ethical, or other conflict with an instruction in the advance directive or given by the agent or guardian, a principal’s provider, or an employee thereof is unwilling to follow that instruction, in which case the provider shall promptly:

(A)  inform the principal, if possible, and any appointed agent and guardian of the conflict;

(B)  assist the principal, agent, or guardian in the transfer of care to another provider or employee who is willing to honor the instruction;

(C)  provide ongoing health care until a new provider or employee has been found to provide the services; and

(D)  document in the principal’s medical record the conflict, the steps taken to resolve the conflict, and the resolution of the conflict.

(c) A health care provider, health care facility, or residential care facility which refuses pursuant to subdivision (b)(1) or (2) of this section to follow the instructions of the agent or the guardian or the instructions contained in the advance directive shall:

(1) inform the principal, if possible, and any appointed agent and guardian of the reasons for the refusal;

(2) document in the principal’s medical record the refusal, the reasons for the refusal, who was notified of the refusal, and any other steps taken to resolve the refusal. 

(d)  An employee with a conflict under subdivision (b)(3) of this section shall be required only to inform the employee’s employer.  The employer shall be responsible for otherwise complying with the requirements of that subdivision.

(e)  Unless otherwise required by the advance directive, in those circumstances where there is more than one adult identified as the agent, the principal’s clinician, health care provider, or residential care provider may rely on the decision of one of the identified agents as long as that agent confirms that:

(1) all agents agree on the pending health care decision;

(2) all agents agree that this agent can make any pending health care decisions; or

(3) the other agent or agents are not reasonably available.

(f)  The health care provider shall make reasonable efforts to inform the principal of any proposed health care or of any proposal to withhold or withdraw health care.

(g)(1)  Irrespective of a principal’s lack of capacity, health care shall not be given to or withheld from a principal over the principal’s objection unless:

(A)(i) The principal’s advance directive contains a provision , executed in compliance with subsection (h) of this section, which permits the agent to authorize or withhold health care over the principal’s objection in the event the principal lacks capacity; and

(ii) The agent authorizes providing or withholding the health care; or

(B) The principal will suffer serious and irreversible bodily injury or death if the health care cannot be provided within 24 hours.

(2)  The health care provider shall notify the agent or guardian if a principal requests or declines health care which the agent appears to have the authority to authorize or withhold under the principal’s advance directive.

(h)(1)  An advance directive may contain a  provision permitting the agent, in the event that the principal lacks capacity, to authorize or withhold health care over the principal’s objection. In order to be valid, the provision shall comply with the following requirements:

(A) The principal shall not be a patient in a hospital at the time the advance directive is executed.

(B) An agent shall be named in the advance directive.

(C) The agent shall accept in writing the responsibility of authorizing or withholding health care over the principal’s objection in the event the principal lacks capacity.

(D) A clinician for the principal shall sign the advance directive and affirm that the principal appeared to understand the nature and consequences of the provision.

(E) The provision shall include an explicit statement that the principal desires or does not desire the proposed treatment even over the principal’s objection at the time treatment is being offered or withheld.

(F) The provision shall include an acknowledgment that the principal is knowingly and voluntarily waiving the right to refuse or receive treatment at a time of incapacity, and that the principal understands that a clinician will determine capacity.

(2) If an advance directive contains a provision executed in compliance with this section:

(A) The agent may, in the event the principal lacks capacity, make health care decisions over the principal’s objection, provided that the decisions are made in compliance with subsection 9711(d) of this title.

(B) A clinician shall follow instructions of the agent authorizing or withholding health care over the principal’s objection.

§ 9708.  AUTHORITY AND OBLIGATIONS OF HEALTH CARE

              PROVIDERS, HEALTH CARE FACILITIES, AND RESIDENTIAL

              CARE FACILITIES REGARDING DO-NOT-RESUSCITATE

              ORDERS 

(a)  A do-not-resuscitate (“DNR”) order must:

(1)  be signed by the patient’s clinician;

(2)  certify that the clinician has consulted, or made an effort to consult, with the patient, and the patient’s agent or guardian, if there is an appointed agent or guardian with authority to make health care decisions;

(3)  include either:

(A) the name of the patient, agent, or other individual giving informed consent for the DNR and the individual’s relationship to the patient; or

(B) certification that the patient’s clinician and one other named clinician have determined that resuscitation would not prevent the imminent death of the patient, should the patient experience cardiopulmonary arrest; and

(4)  if the patient is in a health care facility or a residential care facility, certify that the requirements of the facility’s DNR protocol required by section 9709 of this title have been met.

(b)  A clinician who issues a DNR order may authorize issuance of a DNR identification to the principal.                 

(c)  Every health care provider, health care facility, and residential care facility shall honor a DNR order or a DNR identification unless the provider or facility:

(1)  believes in good faith, after consultation with the agent or guardian where possible and appropriate, that:

(A)  the principal wishes to have the DNR order revoked; or

(B)  the principal with the DNR identification is not the individual for whom the DNR order was issued; and

(2)  documents the basis for that belief in the principal’s medical record.

(d)  A DNR order precludes efforts to resuscitate only in the event of cardiopulmonary arrest and does not affect other therapeutic interventions that may be appropriate for the patient.

§ 9709.  OBLIGATIONS OF HEALTH CARE PROVIDERS, HEALTH

  CARE FACILITIES, RESIDENTIAL CARE FACILITIES, AND 

  HEALTH INSURERS REGARDING SYSTEMS, PROTOCOLS, AND NONDISCRIMINATION

(a)  Every health care provider, health care facility, and residential care provider shall develop systems:

(1)  to ensure that a principal’s advance directive and DNR order, if any, are promptly available when services are to be provided, including that the existence of the advance directive or DNR order is prominently noted on any file jacket or folder, and that a note is entered into any electronic database of the provider or facility;

(2)  for maintaining advance directives received from individuals who anticipate future care but are not yet patients of that provider or facility; and

(3)  within 120 days of the commissioner announcing the availability of the registry, to ensure that the provider or facility checks the registry at the time any individual without capacity is admitted or provided services to determine whether the individual has an advance directive.

(b)  Every health care facility and residential care facility shall develop written protocols to ensure that:

(1)  A patient is asked if the patient has an advance directive:

(A) prior to admission, when possible;

(B) if not possible prior to admission, as soon thereafter as possible; and

(C) periodically while at the facility.

(2)(A) A patient’s advance directive is reviewed to determine whether the facility would decline to follow any of the advance directive’s instructions pursuant to subsection 9707(b) of this title, in which case the facility shall comply with the requirements of subsection 9707(c) or subdivision 9707(b)(3) of this title.

(B) The review of a patient’s advance directive required by this subdivision shall occur:

(i) prior to admission, when possible;

(ii) if not possible prior to admission, as soon thereafter as possible; and

(iii) when a patient executes an advance directive or an amendment to an advance directive. 

(3)  A patient with an advance directive is encouraged and helped to submit the advance directive or a notice of the advance directive to the registry.

(4)  DNR orders are issued, revoked, and handled pursuant to the same process and standards that are used for each patient receiving health care.

(5)  Upon transfer from the facility, a copy of any advance directive, DNR order, and clinician order for life sustaining treatment is transmitted with the principal or, if the transfer is to a health care facility or residential care facility, is promptly transmitted to the subsequent facility, unless the sending facility has confirmed that the receiving facility has a copy of any advance directive, DNR order, or clinician order for life sustaining treatment.

(6) Unless otherwise specified in an advance directive or guardianship order, an agent or guardian shall have the same rights as the principal to request, receive, examine, copy, and consent to the disclosure of health care information, and to participate in any meetings, discussions, or conferences concerning health care decisions related to the principal.

(c)  Every hospital shall designate an adequate number of individuals to explain the nature and effect of an advance directive to patients as required by subsection 9703(e) of this title.

(d)  No health care provider, health care facility, residential care facility, health insurer as defined in section 9402 of this title, insurer issuing disability insurance, or self-insured employee welfare benefit plan shall charge an individual a different rate or require any individual to execute an advance directive or to obtain a DNR order or DNR identification as a condition of admission to a facility or as a condition of being insured for or receiving health care or residential care.  No health care shall be refused except as  provided herein because an individual is known to have executed an advance directive.

§ 9710.  [RESERVED]

§ 9711.  AUTHORITY AND OBLIGATIONS OF AGENT

(a)  When the requirements of subsection 9706(a) are met, and subject to the provisions of this chapter, other applicable law, and any express instructions regarding the agent’s authority set forth in an advance directive or a court order, an agent shall have the authority to make any health care decisions on the principal’s behalf that the principal could make if the principal had capacity.

(b)  A principal with capacity retains concurrent authority with the principal’s agent to make health care decisions.

(c)  The authority of an agent ceases to be effective:

(1)  if the advance directive became effective pursuant to subdivision 9706(a)(1), upon a clinician’s determination that the principal has recovered capacity; or

(2) when the circumstance or condition specified pursuant to subdivision 9702(a)(3) of this title no longer is met.

(d)(1)  After consultation with the principal, to the extent possible, and with the principal’s clinician and any other appropriate health care providers and any individuals identified in the advance directive as those with whom the agent shall consult, the agent shall make health care decisions by attempting to determine what the principal would have wanted under the circumstances.  In making the determination, the agent shall consider the following:

(A)  the principal’s most recent wishes expressed to the agent, guardian, or health care provider to the extent those expressions are applicable;

(B)  the principal’s specific instructions contained in an advance directive to the extent those directions are applicable;

(C)  the principal’s wishes expressed to the agent, guardian, or health care provider prior to the execution of an advance directive, if any, to the extent those expressions are applicable; or

(D)  the agent’s knowledge of the principal’s values or religious or moral beliefs.

(2) If the agent cannot determine what the principal would have wanted under the circumstances, the agent shall make the determination through an assessment of the principal’s best interests.

(3) When making a determination under this subsection, the agent shall not consider the agent’s own interests, wishes, values, or beliefs.

(4) If an agent cannot make a determination on an issue in compliance with the requirements of this subsection, the agent shall recuse himself or herself with respect to the issue.

(e)  When making decisions for the principal, the agent shall not authorize the provision or withholding of health care on the basis of the principal’s economic status or preexisting, long-term mental or physical disability, unless the principal has explicitly expressed a desire that those factors be considered.

(f)  Unless otherwise specified in an advance directive or guardianship order, an agent or guardian shall have the same rights as the principal to request, receive, examine, copy, and consent to the disclosure of health care information, and to participate in any meetings, discussions, or conferences concerning health care decisions related to the principal.

(g)  Nothing in this chapter shall be construed to give an agent authority to consent to voluntary sterilization.

(h)  Unless the probate court expressly orders otherwise in a guardianship proceeding pursuant to subdivision 3069(b)(5) of Title 14, the authority of an agent appointed and the instructions contained in an advance directive executed prior to the appointment of the guardian shall remain in effect, and the ward may not execute an advance directive.

§ 9712.  OBLIGATIONS OF FUNERAL DIRECTORS, CREMATORY

              OPERATORS, CEMETERY OFFICIALS, AND INDIVIDUALS APPOINTED TO ARRANGE FOR THE DISPOSITION OF THE PRINCIPAL’S REMAINS

(a)  An individual appointed to arrange for the disposition of the principal’s remains shall make those decisions based upon the principal’s specific instructions contained in an advance directive or pre-need contract entered into with a funeral director, crematory operator, or cemetery official, or, if there are no such instructions, in accordance with the principal’s wishes expressed orally or the knowledge of the agent or guardian of the principal’s values or religious or moral beliefs.

(b)  Any funeral director, crematory operator, or cemetery official having knowledge of a principal’s advance directive shall follow the advance directive and any instructions of the individual appointed in an advance directive to arrange for the disposition of the principal’s remains, except:

(1)  if any instruction would cause the director, operator, or official to violate the standards of professional conduct required by a professional licensing board or agency or any criminal law, the director, operator, or official shall notify the individual appointed that the director, operator, or official cannot follow the instruction; or

(2)  if the principal’s estate is without sufficient funds to dispose of the remains or provide funeral goods and services in accordance with the advance directive, the disposition shall occur in a manner approximating the principal’s wishes to the extent it is financially possible.

(c)  Every funeral director, crematory operator, and cemetery official shall develop systems to ensure that a principal’s advance directive is promptly available when services are to be provided, including that the existence of an advance directive is prominently noted on any file jacket or folder, and that a note is entered into any electronic database of the director, operator, or official.

(d)  In the event the principal’s instructions in an advance directive regarding disposition of remains or for funeral goods and services are in apparent conflict with a contract entered into by the principal for the disposition of remains, funeral goods, or services, the most recent document created by the principal shall be followed to the extent of the conflict.  Nothing in this subsection shall be construed as limiting any other available remedies.

§ 9713.  IMMUNITY

(a)  No individual acting as an agent or guardian shall be subjected to criminal or civil liability for making a decision in good faith pursuant to the terms of an advance directive and the provisions of this chapter.

(b)  No health care provider, health care facility, residential care facility, or any other person acting for or under such person’s control shall be subjected to civil or criminal liability for providing or withholding health care in good faith pursuant to the provisions of an advance directive, a DNR identification of the principal, the consent of a principal with capacity or of the principal’s agent or guardian, a decision or objection of a principal, or the provisions of this chapter.  Nothing in this subsection shall be construed to establish immunity for the failure to follow standards of professional conduct and to exercise due care in the provision of services.

(c)  No health care provider, health care facility, residential care facility, funeral director, crematory operator, cemetery official, or employee of any of them shall be subjected to civil or criminal liability or be deemed to have engaged in unprofessional conduct for relying on a suspended or revoked advance directive, unless the provider, facility, director, operator, official or employee knew or should have known of the suspension or revocation or failed to make reasonable efforts to confirm the suspension or revocation.

(d)  No employee shall be subjected to an adverse employment decision or evaluation for:

(1)  providing or withholding health care in good faith pursuant to the direction of a principal, the provisions of an advance directive, a DNR identification of the principal, the consent of the principal’s agent or guardian, a decision or objection of a principal, or the provisions of this chapter.  This subdivision shall not be construed to establish a defense for the failure to follow standards of professional conduct and to exercise due care in the provision of services;

(2)  relying on a suspended or revoked advance directive, unless the employee knew or should have known of the suspension or revocation; or

(3)  providing notice to the employer of a moral or other conflict pursuant to subdivision 9707(b)(3) of this title, so long as the employee has provided ongoing health care until a new employee or provider has been found to provide the services.

§ 9714.  FAILURE TO FOLLOW ADVANCE DIRECTIVE;                                                    UNAUTHORIZED ACCESS OF REGISTRY; ADMINISTRATIVE                         PENALTIES

(a)  A health care provider, health care facility, residential care facility, funeral director, crematory operator, or cemetery official, or an employee of any of them having actual knowledge of an advance directive or an instruction of the principal, agent, or guardian is subject to review and disciplinary action by the appropriate licensing entity for failing to act in accordance with the advance directive or instruction or with subsection 9707(b) of this title.

(b)  A health care provider, health care facility, residential care facility, funeral home director, crematory operator, or cemetery official, or an employee of any of them who accesses the registry without authority or when authority has been denied specifically by the principal, agent, or guardian is subject to review and disciplinary action by the appropriate licensing entity. 

(c)  Nothing in this section shall be construed as limiting any other available remedies.

(d)  Liability for the cost of health care, disposition of remains, anatomical gifts, or funeral goods and services provided pursuant to an advance directive or pursuant to an instruction of the agent, guardian, or individual designated in an advance directive to make decisions regarding disposition of remains shall be the same as if the services were provided pursuant to the principal’s decision.

§ 9715.  INTERPRETATION WITH OTHER LAWS

(a)  The withholding or withdrawal of life sustaining treatment from a principal who has executed an advance directive limiting the provision of life sustaining treatment shall not be construed as a suicide.

(b)  Nothing in this chapter shall be construed to limit or abrogate an individual’s ability to create a document of anatomical gift pursuant to chapter 109 of this title.

(c)  Nothing in this chapter shall be interpreted to affect the statutory or common law in existence at the time of enactment applicable to

death intentionally hastened through the use of prescription medication.  Professionally appropriate use of medication to relieve suffering which may have the unintended effect of hastening death is not death intentionally hastened through the use of prescription medication.

§ 9716.  RECIPROCITY; CHOICE OF LAW

Nothing in this chapter limits the enforceability of an advance directive or similar instrument executed in another state or jurisdiction in compliance with the law of that state or jurisdiction. Advance directives executed in Vermont shall be governed and interpreted by this chapter; advance directives executed in another state or jurisdiction shall be governed and interpreted by the laws of that state or jurisdiction.

§ 9717.  PRESUMPTION OF VALIDITY

An advance directive executed as provided in this chapter shall be presumed valid.  No third party shall require an additional or different form of advance directive.  A photocopy or facsimile of a duly executed original advance directive shall be relied upon to the same extent as the original.

§ 9718.  PETITION FOR REVIEW BY PROBATE COURT

(a)  A petition may be filed in probate court under this section by:

(1)  a, principal, guardian, agent, ombudsman, or interested individual; or

(2)  a social worker or health care provider employed by or directly associated with the health care provider, health care facility, or residential care facility providing care to the principal.

(b) A petition filed in probate court under this section shall include a supporting affidavit and may request:

(1)  that the advance directive be revoked on the grounds that the principal lacked capacity to understand the nature of the advance directive, was under duress, or was the subject of fraud or undue influence when the advance directive was executed, except that, if the principal is deceased, this subdivision shall not apply to any part of an advanced directive making an anatomical gift ;

(2)  a declaratory judgment concerning the construction of an advance directive or the rights, legal status, or other legal relationship of the parties with respect to an advance directive; or 

(3)  an order for disposition of the remains of the principal. 

(c)  A principal, an agent, an interested individual, or a responsible adult directly interested in the principal may file a petition in probate court with a supporting affidavit challenging a determination that the condition specified pursuant to subdivision 9702(a)(3) of this title is met.

(d)  The principal or an agent may file a petition in probate court challenging a determination under section 9706(a)(1) or (b) of this title if:

(1)  the petitioner provides notice to any agent, the principal, an interested individual, or a person entitled to notification of a determination of capacity under section 9706(a)(1) or (b) of this title prior to filing;

(2)  the petition includes a supporting affidavit setting forth specific facts challenging a capacity determination under section 9706(a)(1) or (b) of this title;

(3)(A)  prior to filing, the petitioner obtains a determination from a clinician that the principal’s capacity is not as the principal’s clinician has determined; or

(B)  if the petitioner is unable to obtain the determination required by subdivision (A) of this subdivision (3), the petitioner includes in the supporting affidavit the facts regarding the attempts to obtain a second determination of capacity and supporting the challenge to the capacity determination by the petitioner’s clinician; and

(4)  the petitioner notifies the principal’s clinician that a petition challenging the determination of capacity has been filed and provides the supporting determination or affidavit to the principal’s clinician.

(e)  The probate court may limit the frequency of a capacity redetermination pursuant to subsection (b) of this section upon a finding that there have been multiple requests for redetermination, and that those requests have been frivolous or requested in bad faith.  

(f)  The agent, if any, shall have the opportunity to appear in any action brought under subdivision (a)(1) or subsection (b) or (c) of this section.

(g)  A petitioner filing under subsection (b) or (c) of this section shall provide notice to the following persons if known:  the principal, an agent, a guardian, interested individuals, and a responsible adult directly interested in the individual.

§ 9719.  OBLIGATIONS OF STATE AGENCIES

(a)  Within 180 days of the effective date of this chapter, and from time to time thereafter, the commissioner, in consultation with all appropriate agencies and organizations, shall adopt rules pursuant to chapter 25 of Title 3 to effectuate the intent of this chapter.  The rules shall cover at least one optional form of an advance directive, the form and content of clinician orders for life sustaining treatment, a model DNR order which meets the requirements of subsection 9708(a) of this title, DNR identification, and revocation of a DNR identification.  The commissioner shall also provide, but without the obligation to adopt a rule, optional forms for advance directives for individuals with disabilities, limited English proficiency, and cognitive translation needs.

(b)(1)  Within 180 days of the effective date of this chapter, the commissioner shall develop and maintain a registry to which a principal may submit his or her advance directive, including a terminal care document and a durable power of attorney.  In no event shall the information in the registry be accessed or used for any purpose unrelated to decision-making for health care or disposition of remains, except that the information may be used for statistical or analytical purposes as long as the individual’s identifying information remains confidential.

(2)(A)  Within 180 days of the effective date of this chapter, the commissioner shall adopt rules pursuant to chapter 25 of Title 3 on the process for securely submitting, revoking, amending, replacing, and accessing the information contained in the registry.  The rules shall provide for incorporation into the registry of notifications of amendment, suspension, or revocation under subsection 9704(c) of this title and revocations of appointment under subsection 9704(d) of this title.

(B) The commissioner shall provide to any individual who submits an advance directive to the registry a sticker that can be placed on a driver’s license or identification card indicating that the holder has an advance directive in the registry. 

(c)(1)  Within 180 days of the effective date of this chapter, the commissioner shall provide on the department’s public website information on advance directives and the registry to appropriate state offices.  The commissioner shall also include information on advance directives, and on the registry and the optional forms of an advance directive.

(2)  Within 180 days of the effective date of this chapter, the commissioner of motor vehicles shall provide motor vehicle licenses and identity cards, as soon as existing licenses or cards have been depleted, which allow the license holder or card holder to indicate that he or she has an advance directive and whether it is in the registry.

§ 9720.  Severability

If any provisions of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and, to this end, provisions of this chapter are severable.

Sec. 2.  14 V.S.A. § 3062 is amended to read:

§ 3062.  JURISDICTION

The probate court shall have exclusive original jurisdiction over all proceedings brought under the authority of this chapter or pursuant to section 9718 of Title 18.

Sec. 3.  4  V.S.A. § 311 is amended to read:

§ 311.  JURISDICTION GENERALLY

The probate court shall have jurisdiction of the probate of wills, the settlement of estates, trusts created by will, trusts of absent person's estates, charitable, cemetery and philanthropic trusts, irrevocable trusts created by inter vivos agreements solely for the purpose of removal and replacement of trustees pursuant to subsection 2314(c) of Title 14, the appointment of guardians, and of the powers, duties and rights of guardians and wards, proceedings concerning chapter 231 of Title 18, accountings of attorneys in fact where no guardian has been appointed and the agent has reason to believe the principal is incompetent, relinquishment for adoption, adoptions, uniform gifts to minors, changes of name, issuance of new birth certificates, amendment of birth certificates, correction or amendment of marriage certificates, correction or amendment of death certificates, emergency waiver of premarital medical certificates, proceedings relating to cemetery lots, trusts relating to community mausoleums or columbariums, proceedings relating to the conveyance of a homestead interest of an insane a spouse under a legal disability, the issuance of declaratory judgments, issuance of certificates of public good authorizing the marriage of persons under 16 years of age, appointment of administrators to discharge mortgages held by deceased mortgagees, appointment of trustees for persons confined under sentences of imprisonment, fixation of compensation and expenses of boards of arbitrators of death taxes of Vermont domiciliaries, and as otherwise provided by law.

Sec. 4.  4  V.S.A. § 311a is amended to read:

§ 311A. VENUE GENERALLY

For proceedings authorized to probate courts, venue shall lie in a district of the court as follows:

* * *

(29) Proceedings concerning chapter 231 of Title 18: in the district where the principal resides or in the district where the principal is a patient admitted to a health care facility. 

Sec. 5.  18 V.S.A. § 1852(a) is amended to read:

§ 1852.  PATIENTS’ BILL OF RIGHTS; ADOPTION

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

* * *

(16)  The patient has the right to receive professional assessment of pain and professional pain management.

(17)  The patient has the right to be informed in writing of the availability of hospice services and the eligibility criteria for those services.

Sec. 6.  ANNUAL PAIN MANAGEMENT PROGRESS REPORTS

The office of the attorney general shall report annually by January 15 through 2007 to the house committee on human services and the senate committee on health and welfare regarding the progress made on the issues and recommendations from the committee on pain and symptom management of the attorney general’s initiative on end of life care.

Sec. 7.  STATUTORY REVISION

Legislative council shall make technical statutory revisions necessary to conform existing statutory law to the changes reflected in this act, including any changes in terminology.

Sec. 8.  TRANSITIONAL PROVISIONS

(a)  This act shall not invalidate a power of attorney executed before July 1, 1988, a durable power of attorney for health care, a terminal care document, and an advance directive properly executed prior to the effective date of this act.

(b)  Notwithstanding any provision of law to the contrary, any irrevocable pre-need contract in effect prior to July 1, 2005 shall be considered an advance directive, may not be amended except by the principal, and shall be enforced as if entered into on or after July 1, 2005.

Sec. 9.  REPEAL

18 V.S.A. chapter 111 (advance directives for health care and end of life) is repealed.

Sec. 10.  REPORT

(a)(1) On or before January 15, 2006, and on or before January 15 during each of the following two years, the commissioner of the department of health shall submit a report to the chairs of the following committees:  the house and senate committees on judiciary, the house committee on human services, and the senate committee on health and welfare. The report shall describe the status and utilization of the registry established by this act.  

(2) On or before January 15, 2006, and on an annual basis thereafter, the commissioner shall make information describing the utilization and status of the registry available in an appropriate format to the public.

(b) The report submitted pursuant to this section on or before January 15, 2006 shall:

(1) assess the advisability and feasibility of including do-not-resuscitate orders in the registry, and recommend how to include them if doing so would be advisable and feasible;

(2) recommend how to link organ donation designations on motor vehicle operator’s licenses with the registry established by this act; and

(3) recommend a method to communicate to citizens of this state, in conjunction with the renewal of motor vehicle operator’s licenses, the advisability of having and periodically updating an advance directive, and of organ donation designations.  

Which was agreed to and third reading ordered.

Bill Amended; Third Reading Ordered

H. 28

Rep. Canfield of Fair Haven, for the committee on Natural Resources and Energy, to which had been referred House bill, entitled

An act relating to establishing guidelines for the use of outdoor lighting;

Reported in favor of its passage when amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  10 V.S.A. chapter 24 is added to read:

Chapter 24.  Outdoor Lighting

§ 591.  OUTDOOR LIGHTING

(a)  Legislative purpose.  It is the purpose of this chapter to develop voluntary guidelines to be available for use in the design and installation of  outdoor lighting in order to facilitate the use of lighting fixtures and design criteria that minimize the causes of sky glow, light trespass, and glare, while still providing a comfortable, visually effective, energy efficient, safe, and secure outdoor environment.  It is the intent of the general assembly that the use of outdoor lighting should not interfere with the beauty and quality of the Vermont night landscape and night sky.  It is the intent of the general assembly to conserve energy without decreasing safety, utility, security, and productivity, while enhancing nighttime enjoyment of property within the state.  It is also the intent of the general assembly to minimize the intrusion of lighting across property lines, thereby avoiding disruption of the quality of life for nearby government and nongovernment buildings and grounds and for private residences, and to avoid the disruption of natural instinctive cycles of flora and fauna, particularly, but not only, within nearby natural areas.  On a pragmatic basis, it is assumed that appropriate lighting is safer and more efficient than inappropriate lighting.  Appropriate lighting is an energy conservation practice that will save energy and reduce greenhouse gas emissions.

(b)  Definitions.  For purposes of this chapter, the following definitions apply:

(1)  “Candela” is the unit that describes the intensity of a light source in a specified direction, and is equal to one lumen per steradian (lm/sr).

(2)  “Cutoff” means a luminaire light distribution where the candela per 1,000 lamp lumens does not numerically exceed 25 (2.5 percent) at an angle of 90 degrees above nadir, and 100 (10 percent) at a vertical angle of 80 degrees above nadir.

(3)  “Efficacy” is a measurement of the ratio of light produced by a light source to the electrical power used to produce that light, expressed in lumens per watt.

(4)  “Full cutoff” means a luminaire light distribution where zero candela intensity occurs at an angle of 90 degrees above nadir, and at all greater angles from nadir.  Additionally, the candela per 1,000 lamp lumens does not numerically exceed 100 (10 percent) at a vertical angle of 80 degrees above nadir.

(5)  “Glare” occurs when a bright source causes the eye to be drawn continually toward the bright image or when the brightness of the source prevents the viewer from adequately viewing the intended target.

(6)  “Installation” means the attachment or assembly of any outdoor lighting fixture, and its fixing in place, whether or not connected to a power source.

(7)  “Light pollution” means the upward emitting of stray light which  may illuminate clouds, dust, and other airborne matter, and may obscure the night sky.

(8)  “Light trespass” means any artificial light greater than 0.10 footcandles falling outside the boundaries of the property upon which the outdoor luminaire is installed.  “Light trespass” occurs when neighbors of an illuminated space are affected by the lighting system’s inability to contain its light within the area intended.

(9)  “Lumen” means the unit of measurement of the quantity of light produced by a lamp or emitted from a luminaire.

(10)  “Luminaire” means a complete lighting unit, often referred to as a light fixture.  A luminaire consists of the lamp or light source, optical reflector and housing, and electrical components for safely starting and operating the lamp or light source.

(11)  “Nadir” means the point directly below the luminaire. 

(12)  “Noncutoff” means a luminaire light distribution where there is no candela limitation in the zone above maximum candela.

(13)  “Outdoor lighting fixture (or luminaire)” means any outdoor electrically powered luminaire, permanently installed or portable, used for illumination, decoration, or advertisement.  Such devices shall include general ambient lighting, street and area luminaires, decorative lighting, accent or feature lighting, as well as searchlights, spotlights, and floodlights, any of which being for use at or on:

(A)  Buildings and structures.

(B)  Recreational areas.

(C)  Parking lot and area lighting.

(D)  Landscape lighting.

(E)  Outdoor signage, both internally and externally lit (advertising or other).

(F)  Street lighting.

(G)  Product display area lighting.

(H)  Building overhangs, eaves, and open and closed canopies.

(I)  Farms, dairies, or feedlots.

(J)  Gas canopy lighting.

(K)  Outdoor walkways.

(14)  “Semicutoff” means a luminaire light distribution where the candela per 1,000 lamp lumens does not numerically exceed 50 (five percent) at an angle of 90 degrees above nadir, and 200 (20 percent) at a vertical angle of 80 degrees above nadir.

(15)  “Sky glow,” the result of scattered light in the atmosphere, means the haze or glow of light that reduces the ability to view the nighttime sky.

(c)  Advisory board.  There is created a 14‑member legislative outdoor lighting advisory board. To constitute the board, the governor shall appoint: one representative of the regional planning commissions recommended by the Vermont Association of Planning and Development Agencies; one municipal planner recommended by the Vermont Planners’ Association; one representative of the Vermont Energy Investment Corporation (VEIC) recommended by the VEIC; one representative of the utility industry in a single recommendation from the state’s municipal, cooperative, and private utility companies; one Vermont representative of outdoor lighting manufacturers or outdoor lighting engineers recommended by the Vermont section of the American Society of Civil Engineers; one astronomer recommended by the Vermont Astronomical Society; one representative of the natural sciences and environment recommended by the Vermont Natural Resources Council; one commercial property owner and one outdoor recreation facility owner or operator recommended jointly by the Vermont Chamber of Commerce and Vermont Businesses for Social Responsibility; one municipal official recommended by the Vermont League of Cities and Towns; one professional Vermont outdoor light designer or architect who has substantial experience in outdoor lighting applications and who is determined well‑qualified within the profession as recommended by the Vermont Chapter of the American Institute of Architects (AIA); and one landscape architect recommended by the Vermont Association of Landscape Architects.  If the governor fails to receive a particular recommendation under this subsection, the governor may make the appointment in question, without having received that recommendation.  The board shall include one member of the house of representatives, appointed by the speaker, and one member of the senate, appointed by the committee on committees.  The board shall be convened by the legislative members, shall be administratively staffed by the legislative council, and shall be entitled to the support of the natural resources board, the agency of transportation, the department of buildings and general services, the department of public service, the department of labor and industry, the agency of commerce and community development, the department of public safety, the office of the attorney general, and the agency of natural resources.  Effective July 1, 2006, ongoing support for the board shall be provided by the department of public service.

(d)  Outdoor lighting guidelines.  By no later than June 30, 2006, the board shall develop and make available performance-based, outdoor lighting guidelines, in a format that will be informative to the general public and usable by municipalities, regional planning commissions, architects and designers, commercial interests, and the general public.  In developing the guidelines, the board shall consider the recommendations and national standards of the Illuminating Engineering Society of North America (IESNA), the International Dark Sky Association (IDA), and the International Crime Prevention Through Environmental Design (CPTED) Association and shall consider luminaires that are full cutoff luminaires and luminaires that are constructed so that no more than two percent of the total luminaire lumens in the zone of 90 degrees to 180 degrees vertical angle is permitted if the related output of the luminaire is greater than 3,200 lumens.  The guidelines shall be updated as necessary, but no less frequently than every three years.

(1)  In developing the guidelines with respect to minimizing sky glow, light pollution, or energy waste, the board shall consider provisions that would encourage:

(A)  An evaluation of the need for lighting at all.

(B)  Turning off noncritical lighting after business hours and at other times when it is not required.

(C)  Limitations on the use of noncutoff and semicutoff light fixtures.

(D)  Use of outdoor lighting fixtures that emit no more than two percent of light above the horizontal plane.

(E)  Use of shielding that minimizes the extent to which light passes above horizontal, when fixtures need to be tilted or aimed.

(F)  Providing uniform and appropriate lighting in parking lots.

(2)  In developing the guidelines with respect to minimizing light trespass, the board shall consider provisions that would encourage:

(A)  The careful selection of lamp wattage and outdoor lighting fixture type and placement, together with appropriate reflector selection.

(B)  The aiming and shielding of outdoor light fixtures, so as to keep the projection of the light within the property boundaries.

(3)  With respect to minimizing glare, the board shall consider provisions that would encourage:

(A)  Use of full cutoff light fixtures as well as louvers and exterior visors to help prevent the direct image of a bright source.

(B)  Use of quality prismatic or translucent lens materials to spread the bright image over a larger area and reduce the brightness of the source.

(C)  Appropriate mounting heights of necessary floodlights, so as to reduce glare in an unintended field of view and with a total effect that conforms to reasonable ambient lighting levels, based on the environment of the proposed installation. 

(4)  The guidelines shall acknowledge different needs for urban, suburban, and rural communities and for different land uses; shall be adaptable to various situations so as to avoid creating a minimum standard that is counterproductive; and shall focus initially on commercial properties, convenience stores with gas canopies, parking lots, roadways, and signage.

(5)  The guidelines shall consider energy conservation provisions that would set maximum footcandle levels or standards for a range of outdoor lighting applications and locations and shall encourage the use of high efficiency lamp and control technologies.  The guidelines shall encourage lamp technologies with high efficacy.

(6)  The guidelines shall consider all of the following:

(A)  Significant safety or security concerns.

(B)  Historic or residential streets that require special product aesthetics or vertical illuminance criteria, for example, to limit the lamp lumens or wattage to control glare and light trespass.

(C)  Temporary lighting used for emergency or nighttime work.

(D)  Lighting used solely to enhance the beauty of an object.

(E)  Special public events.

(e)  Outreach.  The board shall take appropriate measures to inform the general public of the legislative purpose of this section and of the guidelines developed under this section.  As part of this effort, the board shall work with planners, the electricians’ licensing board, the board of professional engineering, the board of architecture, public and private utility companies, and any others responsible for designing and installing outdoor lighting to:

(1)  assure that practitioners of these professions have a knowledge of the legislative purpose of this section, and of the guidelines developed under this section; and

(2)  encourage these practitioners to impart that knowledge to their customers in a manner that encourages consumer choices that are consistent with the guidelines developed under this section.

(f)  Assessment.  No less frequently than every three years, the board shall assess progress made within the state in bringing existing outdoor lighting into conformance with the purposes of this section and the guidelines developed under this section, and in encouraging new development to conform to the purposes of this section and the guidelines developed under this section.

(g)  State and state-funded installations.  State-owned and state‑funded outdoor lighting installations shall be constructed, maintained, and operated in a manner consistent with the outdoor lighting guidelines created under this section, provided that in case of conflict in state and local requirements those measures shall be subject to the requirements of 24 V.S.A. § 4413. Operators of outdoor lighting installations on property leased by the state shall be encouraged to comply voluntarily with the guidelines, and as leases are negotiated or renegotiated, compliance shall be sought. The department of buildings and general services shall conduct a program for the upgrading of outdoor luminaires, consistent with available resources, as required in order to be consistent with the guidelines created under this section. This shall take place within a reasonable timeline recommended by the outdoor lighting advisory board.

(h)  Utilities.  If regulated utilities are required by the state or any municipality to accelerate replacement of outdoor lighting fixtures, the public service board shall allow reasonable recovery for the costs of replacement in rates approved by the board.

Sec. 2.  24 V.S.A. § 2291 is amended to read:

§ 2291.  ENUMERATION OF POWERS

For the purpose of promoting the public health, safety, welfare, and convenience, a town, city, or incorporated village shall have the following powers:

* * *

(23)  To manage outdoor lighting design and installations in a manner that will promote energy efficiency and minimize any combination of the following: illumination levels, glare, light pollution, and light trespass.  In this process, due consideration should be given to the guidelines established by the outdoor lighting advisory board created under 10 V.S.A. chapter 24,

Sec. 3.  24 V.S.A. § 4414 is amended to read:

§ 4414.  ZONING; PERMISSIBLE TYPES OF REGULATIONS

Any of the following types of regulations may be adopted by a municipality in its bylaws in conformance with the plan and for the purposes established in section 4302 of this title.

* * *

(13)  Regulation of outdoor lighting design and installations.  A municipality may adopt bylaws that include provisions governing outdoor lighting design and installations, in order to promote energy efficiency and to minimize any combination of the following: illumination levels, glare, light pollution, and light trespass.  In this process, the municipality should give due consideration to the guidelines established by the outdoor lighting advisory board created under 10 V.S.A. chapter 24.

Sec. 4.  24 V.S.A. § 4418(2) is amended to read:

(2)  Subdivision bylaws may include:

* * *

(E)  Provisions governing outdoor lighting design and installations, in situations in which outdoor lighting is necessary, in order to promote energy efficiency and minimize any combination of the following: illumination levels, glare, light pollution, and light trespass.  Due consideration should be given to the guidelines established by the outdoor lighting advisory board created under 10 V.S.A. chapter 24.

Rep. Bohi of Hartford, for the committee on Government Operations, recommends the bill ought to pass when amended as recommended by the Committee on Natural Resources and Energy and when further amended as follows:

     In Sec. 1, 10 V.S.A. § 591(g) by striking the third complete sentence and inserting in lieu thereof the following:

The department of buildings and general services, or the owner of a state funded outdoor lighting installation, shall conduct a program for the upgrading of outdoor luminaires, consistent with available resources, as required in order to be consistent with the guidelines created under this section. 

Rep. Nitka of Ludlow, for the committee on Appropriations, recommends the bill ought to pass when amended as recommended by the committee on Natural Resources and Energy and when further amended as follows:

In Sec. 1, 10 V.S.A. § 581(c), after the sentence that reads: “The board shall include one member of the house of representatives, appointed by the speaker, and one member of the senate, appointed by the committee on committees.”

by inserting the following:

Legislative membership on and legislative council staffing of the board shall cease as soon as the board makes available its performance-based, outdoor lighting guidelines, as required under subsection (d) of this section.

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time, and the report of the committees on Government Operations and Appropriations were agreed to.

Pending the question, Shall the House amend the bill as recommended by the committee on Natural Resources and Energy, as amended? Rep. McCullough of Williston moved to amend the recommendation of amendment of the committee on Natural Resources and Energy, as amended, as follows:

     In Sec. 1, 10 V.S.A. § 591(g), before the sentence that begins with the words “This shall take place” by inserting the following:

Being “consistent with available resources” shall require upgrading of outdoor luminaires as part of any project in which outdoor luminaire improvements are being made, or pursuant to a program specifically directed toward upgrading those luminairesThat upgrade shall not be required as part of indoor improvements that are not related to outdoor luminaires.

Thereupon, Rep. McCullough of Williston asked and was grated leave of the House to withdraw his amendment.

Thereupon, the report of the committee on Natural Resources and Energy, as amended, was agreed to and third reading was ordered.

Bill Amended; Third Reading Ordered

H. 505

Rep. Metzger of Milton, for the committee on Government Operations, to which had been referred House bill, entitled

An act relating to amending the charter of the city of Burlington;

Reported in favor of its passage when amended as follows:

By adding a new Sec. 6 to read as follows:

Sec. 6.  EFFECTIVE DATE

This act shall take effect upon passage.

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time, report of the committee on Government Operations agreed to and third reading ordered.

Joint Resolution Adopted

J.R.H. 31

Joint resolution, entitled

Joint resolution strongly urging the federal government to take immediate steps to lower retail gasoline prices;

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

Adjournment

At twelve o’clock and fifteen minutes in the afternoon, on motion of Rep. Sunderland of Rutland Town, the House adjourned until tomorrow at one o’clock and fifteen minutes in the afternoon.