Journal of the House

________________

TUESDAY, MAY 9, 2006

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

Devotional Exercises

Devotional exercises were conducted by Speaker Gaye Symington of Jericho, Vt.

Pledge of Allegiance

Speaker Gaye Symington of Jericho led the House in the Pledge of Allegiance.

House Resolution Adopted

H.R. 18

Reps. Obuchowski of Rockingham and Partridge of Windham offered a House resolution, entitled

House resolution congratulating United States Army Brigadier General Todd Semonite on his recent military promotion;

Whereas, the United States Army Corps of Engineers is an essential unit in our nation’s military, and

Whereas, in April 2006, United States Army Brigadier General Todd Semonite, a Bellows Falls native, was promoted to his current rank, elevating him to the select circle of military engineers, numbering just 17, who have reached a general’s rank, and

Whereas, in the entire United States Army, approximately only 300 officers wear a general’s stars on their uniforms, and

Whereas, Brigadier General Semonite is a 1979 graduate of the U.S. Military Academy at West Point, and

Whereas, since graduating from West Point, he has held a number of leadership roles in the U.S. Army Corps of Engineers, including Assistant Commandant at the U.S. Army Engineering School, and

Whereas, Brigadier General Semonite’s foreign deployments have included both Bosnia and Iraq, and

Whereas, while stationed in the Middle East, he helped in the reconstruction of 25 damaged electric power stations, and the story of his role in this work was a front‑page feature in the Wall Street Journal, and

Whereas, he is the recipient of many military awards, including the Legion of Merit, Bronze Star, Meritorious Service Medal, Army Commendation Medal, Army Achievement Medal, Army Superior Unit Award, NATO Award, Ranger Tab, and the Parachutist Badge, and

Whereas, several of these awards have been awarded to Brigadier General Semonite on more than one occasion, and

Whereas, many family members attended the promotion ceremony held at Fort Leonard Wood, Missouri which was his first assignment after West Point, and

Whereas, Brigadier General Semonite takes great pride in the accomplishments of every member of the U.S. Army Corps of Engineers, now therefore be it

Resolved by the House of Representatives:

That this legislative body congratulates United States Army Brigadier General Todd Semonite on his recent military promotion, and be it further

Resolved:  That the clerk of the House be directed to send a copy of this resolution to Brigadier General Todd Semonite at Fort Leonard Wood, Missouri and to his father, Bill Semonite, in Bellows Falls.

Which was read and adopted.

Remarks Journalized

On motion of Rep. Lavoie of Swanton, the following remarks by Rep. Clark of Vergennes were ordered printed in the Journal:

“Madam Speaker:

     By now most of us have heard the news that Ray Pelligrini died over the weekend.  Ray was most recently the executive director of the VPA, but that was just a job.  Ray was a good friend of mine but most importantly, he was a strong educational leader and an advocate for kids.  He knew that kids were what are important and not some of the other issues that surround the educational process.  He supported those of us who worked under him in the classroom while insisting that we be accountable.  He used humor to get all of us to follow him.  He was a great human being who will be missed by all who knew him.  I hope we’ll all take a moment to think of Ray and his family today as they deal with their great loss.”

Message from the Senate No. 74

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

Madam Speaker:

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

H. 875.  An act relating to approval of amendments to the charter of the village of Jacksonville.

And has passed the same in concurrence.

The Senate has considered a bill originating in the House of the following title:

H. 12.  An act relating to municipal regulation of amateur radio antennas.

And has passed the same in concurrence with proposal of amendment in the adoption of which the concurrence of the House is requested.

The Senate has considered a joint resolution originating in the House of the following title:

J.R.H. 77.  Joint resolution authorizing the 2006 Girls’ State civics educational program to meet at the State House.

And has adopted the same in concurrence.

The Senate has considered House proposal of amendment to Senate bill of the following title:

S. 259.  An act relating to establishing greenhouse gas reduction goals and a plan for meeting those goals.

And has concurred therein.

The Senate has considered House proposal of amendment to Senate proposal of amendment to House bill entitled:

H. 97.  An act relating to operating with a suspended license and failing to pay penalties for traffic offenses.

And has refused to concur therein and asks for a Committee of Conference upon the disagreeing votes of the two Houses.

The President pro tempore announced the appointment as members of such Committee on the part of the Senate:

          Senator Campbell

          Senator Sears

          Senator Scott

     The Senate has on its part adopted Senate concurrent resolutions of the following titles:

     S.C.R. 79.  Senate concurrent resolution congratulating United States Olympic halfpipe snowboarding coach Robert “Bud” Keene on his coaching success.

     S.C.R. 80.  Senate concurrent resolution congratulating Fred Laferriere of St. Johnsbury on being named the Northeast Kingdom Chamber 2006 Citizen of the Year.

     S.C.R. 81.  Senate concurrent resolution congratulating the Sandglass Theater on its 20th anniversary in Vermont and its contributions to theatrical puppetry.

     S.C.R. 82.  Senate concurrent resolution honoring Patricia “Pat” McDonald of Berlin for her outstanding leadership in Vermont state government.

     S.C.R. 83.  Senate concurrent resolution congratulating the Mutuo Club of Barre on its 100th anniversary.

     S.C.R. 84.  Senate concurrent resolution congratulating the Vermont Philatelic Society on its 50th anniversary.

     S.C.R. 85.  Senate concurrent resolution honoring United States Senator James M. Jeffords.

     The Senate has on its part adopted concurrent resolutions originating in the House of the following titles:

     H.C.R. 360.  House concurrent resolution honoring Ellie Dixon and Robert” Bob” Dixon of Lyndon for their respective career accomplishments in journalism academia, and politics in the Northeast Kingdom.

     H.C.R. 361.  House concurrent resolution congratulating Keith and Cora Mae Smith on being named the 2006 Outstanding Sugarmakers of Vermont.

     H.C.R. 362.  House concurrent resolution congratulating Jennifer Harper on her designation as the 2006 Vermont Teacher of the Year.

     H.C.R. 363.  House concurrent resolution congratulating Representative Peter Hunt on the publication of Roll Call:  A Legislative Guide to Great Eats.

     H.C.R. 364.  House concurrent resolution congratulating the 2006 Black River Union High School girls state snowboarding championship team.

     H.C.R. 365.  House concurrent resolution congratulating George Scribner on being named the 2006 Vermont state game warden of the year.

     H.C.R. 366.  House concurrent resolution congratulating the Essex High School team in the “We the People . . . the Citizen and the Constitution” competition on winning honorable mention in national competition.

     H.C.R. 367.  House concurrent resolution congratulating Sister Nancy Audette, Sister Rita Hammond, Sister Lucy Ploof, and Sister Janice Ryan on the 50th anniversary of their entry into the Sisters of Mercy religious order.

     H.C.R. 368.  House concurrent resolution honoring James E. Ross of Moretown for his public service.

     H.C.R. 369.  House concurrent resolution in memory of Tom Belville of Barre.

Committee of Conference Appointed

H. 97

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on House bill, entitled

     An act relating to operating with a suspended license and failing to pay penalties for traffic offenses;

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

   Rep. Kainen of Hartford

   Rep. Lippert of Hinesburg

               Rep. Grad of Moretown

Joint Resolution Adopted

J.R.H. 79

Joint resolution, entitled

Joint resolution requesting the Governor to include five-year fiscal projections in the FY 2008 state budget presentation;

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

Joint Resolutions Adopted

The Speaker placed before the House the following Joint resolutions, which were read and adopted on the part of the House.

J.R.S. 67

Joint resolution, entitled

Joint resolution supporting establishment of a Taiwan-United States free trade agreement;

J.R.S. 69

Joint resolution, entitled

Joint resolution urging Congress to amend the federal Deficit Reduction Act of 2005 to eliminate the financial burden the act imposes on small and rural pharmacies.

Report of Committee of Conference Adopted

S. 314

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon Senate bill, entitled

An act relating to early childhood education;

Respectfully reports that it has met and considered the same and recommends

that the Senate accede to the House proposal of amendment and that the bill be further amended by striking all after the enacting clause and inserting in lieu thereof:

Sec. 1.  PREKINDERGARTEN EDUCATION STUDY COMMITTEE

(a)  There is created a prekindergarten education study committee to be made up of three senators not all from the same political party chosen by the committee on committees, three representatives not all from the same political party chosen by the speaker, the commissioner of education, the commissioner of the department for children and families, and one representative of the business community appointed by the governor.  The committee may meet up to six times, and in addition shall conduct one information gathering meeting prior to January 15, 2007.  The committee shall conduct an additional final meeting prior to January 30, 2007 to share findings and answer questions.  The committee shall receive per diem and expenses pursuant to 2 V.S.A. § 406 and 32 V.S.A. § 1010, and shall receive staff services from the legislative council, the joint fiscal office, the department of education, and the agency of human services.

(b)  The committee shall, at a minimum, gather the following information:

(1)  How many private and public or publicly funded prekindergarten education services currently exist in Vermont.

(2)  What kinds of services and educational programs are offered by existing prekindergarten education programs.

(3)  The costs of existing prekindergarten education programs and how they are funded.

(4)   Current department of education and agency of human services standards for prekindergarten education facilities. 

(c)  The committee shall, at a minimum, study and make findings regarding:

(1)  What the research says about the effects of prekindergarten education.

(2)  Whether prekindergarten education services should be offered at public expense and, if so:

(A)  whether services should be provided by public schools, private providers, or both;

(B)  the estimated costs of providing public prekindergarten programs and what public monies should be used to support them;

(C)  what would be the mechanism for dispersing these monies; and

(D)  what state agency or agencies should have responsibility for developing standards regarding the quality and content of prekindergarten education programs and for determining educator qualifications, and whether standards for public schools should differ from those for private providers.

(3)  Which groups of children benefit academically and socially from receiving prekindergarten educational services. 

(4)  Whether all groups of prekindergarten children benefit from an inclusionary educational environment.

(5)  Whether enrollment in a prekindergarten education program should be voluntary.

(6)  Whether participation may take place outside the district of residence.

(7)  Whether a community should conduct a needs assessment before starting or expanding a program, and if so, how private providers and school districts should be involved in the assessment. 

(8)  Whether publicly funded early education services are an effective economic development strategy.

(d)  On or before January 30, 2007, the committee shall present the information it has gathered, its findings, and its recommendations to the senate and house committees on education, the senate committee on health and welfare, and the house committee on human services.

Sec. 2.   INTERIM PROVISIONS

(a)  In order to enable the legislative prekindergarten education study committee to accomplish its work and give the general assembly the time to consider and respond to the recommendations of the committee, the state board of education shall not change, repeal, or adopt any rules regarding provision of early childhood or prekindergarten education services prior to June 30, 2008.

(b)   During the 2007–2008 school year, a school district which begins a new program of prekindergarten education shall contract with qualified early childhood education service providers in the school district unless it determines that it cannot efficiently and effectively provide quality services using these providers, or that no qualified programs exist in the district or no private programs are interested in providing the services in collaboration with the school district.  In determining efficiency and effectiveness, school districts shall emphasize affordability, access, and high quality in early learning experiences.  The commissioner of education shall determine whether a school district has met the requirements of this subsection, and a decision of the commissioner shall be final.

Sec. 3.  EFFECTIVE DATE

This act shall take effect July 1, 2006.

Sen. Donald Collins

Sen. James Condos

Sen. William Doyle

Committee on the part of the Senate

Re. George Cross

Rep. Kathy Lavoie

Rep. Tim Jerman

Committee on the part of the House

Which was considered and adopted on the part of the House.

Senate Proposal of Amendment Concurred in

H. 890

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

     An act relating to emergency management and public safety;

First:  In Sec. 5. 20 V.S.A. §3a(a) subdivision (1) after the follows: “lives and property” by inserting the following: including domestic animals

Second:  In Sec. 22, by striking out subsection (a) in its entirety and inserting in lieu thereof a new subsection (a) to read as follows:

§ 30.  STATE EMERGENCY RESPONSE COMMISSION; CREATION

(a)  A state emergency response commission is created within the department of public safety.  The commission shall consist of 11 15 members, six ex officio members, including the commissioner of public safety, the secretary of natural resources, the secretary of transportation, the commissioner of health, the secretary of agriculture, food and markets, and the commissioner of labor and industry, or their designees; and five nine public members, including two representatives of a representative from each of the following:  local government, one of which shall represent a local emergency planning committee, a regional planning commission, the fire service and one shall represent the police, a representative of the transportation industry, a representative of, law enforcement, emergency medical service, a hospital, an industry required to report to the commission, and one representative of the  a representative of the Vermont Humane Federation and the Humane Society of the United States one representative of the public.  The director of emergency management shall be the secretary of the commission without vote.

     Which proposal of amendment was considered and concurred in.

     Rep. Kitzmiller of Montpelier in Chair.

Report of Committee of Conference Adopted

S. 142

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon Senate bill, entitled

An act relating to creation of designated growth centers and downtown tax credit program;

Respectfully reports that it has met and considered the same and recommends that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  24 V.S.A. § 2790(d) is added to read:

(d)  The general assembly finds that Vermont’s communities face challenges as they seek to accommodate growth and development while supporting the economic vitality of the state’s downtowns, village centers, and new town centers and maintaining the rural character and working landscape of the surrounding countryside.  While it is the intention of the general assembly to give the highest priority to facilitating development and growth in downtowns and village centers whenever feasible, when that is not feasible, the general assembly further finds that:

(1)  A large percentage of future growth should occur within duly designated growth centers that have been planned by municipalities in accordance with smart growth principles and Vermont’s planning and development goals pursuant to section 4302 of this title.

(2)  Designated growth centers, if properly located and scaled, will serve to support the state’s downtowns, village centers, and new town centers by encouraging new residential neighborhoods and compatible civic, commercial, and industrial uses to locate within proximity to historic community centers.

(3)  Designated growth centers will provide a cost-effective means of allocating and targeting limited municipal and state resources to those areas specifically planned to accommodate and support concentrated development and a large percentage of future growth.

(4)  Designated growth centers will provide a mechanism for concentrating private investment in those areas targeted for growth and development through public investments and incentives, and by establishing a process that will effectively reduce cost and delay in the permitting and approval of development.

(5)  Designated growth centers will accomplish these goals if they are economically viable, they are appropriately planned to accommodate future growth needs and a mix of uses, they originate at the municipal or regional level, and they are recognized by the state under state planning, financing, and permitting programs.

Sec. 2.  24 V.S.A. § 2791(12)–(14) are added to read:

(12)(A)  “Growth center” means an area of land that contains substantially the characteristics specified in subdivision (B) of this subdivision (12) and that is located in one or a combination of the following:

(i)  A designated downtown, village center, or new town center;

(ii)  An area of land that is in or adjacent to a designated downtown, village center, or new town center, with clearly defined boundaries that have been approved by one or more municipalities in their municipal plans to accommodate a majority of growth anticipated by the municipality or municipalities over a 20‑year period.  Adjacent areas shall include those lands which are contiguous to the designated downtown, village center, or new town center.  In situations where contiguity is precluded by natural or physical constraints to growth center development, adjacent areas may include lands lying close to and not widely separated from the majority of the lands within the designated growth center.  Noncontiguous land included as part of a growth center must exhibit strong land use, economic, infrastructure, and transportation relationships to the designated downtown, village center, or new town center; be planned to function as a single, integrated growth center; and be essential to accommodate a majority of growth anticipated by the municipality or municipalities over a 20‑year period.

(B)  A growth center contains substantially the following characteristics:

(i)  It incorporates a mix of uses that typically include or have the potential to include the following:  retail, office, services, and other commercial, civic, recreational, industrial, and residential uses, including affordable housing and new residential neighborhoods, within a densely developed, compact area;

(ii)  It incorporates existing or planned public spaces that promote social interaction, such as public parks, civic buildings (e.g., post office, municipal offices), community gardens, and other formal and informal places to gather.

(iii)  It is organized around one or more central places or focal points, such as prominent buildings of civic, cultural, or spiritual significance or a village green, common, or square.

(iv)  It promotes densities of land development that are significantly greater than existing and allowable densities in parts of the municipality that are outside a designated downtown, village center, growth center, or new town center, or, in the case of municipalities characterized predominately by areas of existing dense urban settlement, it encourages in-fill development and redevelopment of historically developed land.

(v)  It is supported by existing or planned investments in infrastructure and encompasses a circulation system that is conducive to pedestrian and other nonvehicular traffic and that incorporates, accommodates, and supports the use of public transit systems.

(vi)  It results in compact concentrated areas of land development that are served by existing or planned infrastructure and are separated by rural countryside or working landscape.

(vii)  It is planned in accordance with the planning and development goals under section 4302 of this title, and to conform to smart growth principles.

(viii)  It is planned to reinforce the purposes of 10 V.S.A. chapter 151.

(13)  “Smart growth principles” means growth that:

(A)  Maintains the historic development pattern of compact village and urban centers separated by rural countryside.

(B)  Develops compact mixed-use centers at a scale appropriate for the community and the region.

(C)  Enables choice in modes of transportation.

(D)  Protects the state’s important environmental, natural and historic features, including natural areas, water quality, scenic resources, and historic sites and districts.

(E)  Serves to strengthen agricultural and forest industries and minimizes conflicts of development with these industries.

(F)  Balances growth with the availability of economic and efficient public utilities and services.

(G)  Supports a diversity of viable businesses in downtowns and villages.

(H)  Provides for housing that meets the needs of a diversity of social and income groups in each community.

(I)  Reflects a settlement pattern that, at full build-out, is not characterized by:

(i)  scattered development located outside of compact urban and village centers that is excessively land consumptive;

(ii)  development that limits transportation options, especially for pedestrians;

(iii)  the fragmentation of farm and forest land;

(iv)  development that is not serviced by municipal infrastructure or that requires the extension of municipal infrastructure across undeveloped lands in a manner that would extend service to lands located outside compact village and urban centers;

(v)  linear development along well-traveled roads and highways that lacks depth, as measured from the highway.

(14)  “Important natural resources” means headwaters, streams, shorelines, floodways, rare and irreplaceable natural areas, necessary wildlife habitat, wetlands, endangered species, productive forest lands, and primary agricultural soils, all of which are as defined in 10 V.S.A. chapter 151.

Sec. 3.  24 V.S.A. § 2792(f) is added to read:

(f)  In situations in which the state board is considering applications for designation as a growth center, in addition to the permanent members of the state board, membership shall include as a full voting member a member of the Vermont planners association (VPA) designated by the association; the chair of the natural resources board or a representative of the land use panel of the natural resources board designated by the chair; and a representative of a regional planning commission designated by the Vermont association of regional planning and development agencies (VAPDA) and an alternate representative designated by VAPDA to enable all applications to be considered by a representative from a regional planning commission other than the one to which the applicant municipality is a member.  The alternate designated by VAPDA may vote only when the designated representative does not vote.

Sec. 4.  24 V.S.A. § 2793c is added to read:

§ 2793c.  DESIGNATION OF GROWTH CENTERS

(a)  Regional planning commission technical planning assistance.  Regional planning commissions, pursuant to section 4345a of this title, are uniquely positioned to assist municipalities with growth center planning.  To this end, at the request of a municipality contemplating growth center designation, the regional planning commission shall provide technical assistance in support of that designation. 

(1)  Technical support shall include:

(A)  preparing population, housing, and employment growth projections for a period of not less than 20 years;

(B)  GIS mapping, including identification of development capacity, land use, existing and planned infrastructure and service areas, important natural resources and historic resources, and physical constraints to development and associated features; and

(C)  build-out analyses for potential growth centers to document whether the geographic area of proposed growth centers will accommodate a majority of the projected growth over a 20-year period in a manner that is consistent with the definition under subdivision 2791(12) of this title.

(2)  These projections and build-out analyses may be prepared on a municipal or regional basis.

(b)  Growth center designation application assistance.

(1)  By October 1, 2006, the chair of the land use panel of the natural resources board and the commissioner of housing and community affairs jointly shall constitute a planning coordination group which shall develop a coordinated process to:

(A)  ensure consistency between regions and municipalities regarding growth centers designation and related planning;

(B)  provide municipalities with a preapplication review process within the planning coordination group early in the local planning process;

(C)  coordinate state agency review on matters of agency interest; and

(D)  provide the state board with ongoing, coordinated staff support and expertise in land use, community planning, and natural resources protection.

(2)  This program shall include the following:

(A)  The preparation of a “municipal growth centers planning manual and implementation checklist” to assist municipalities and regional planning commissions to plan for growth center designation.  The implementation manual shall identify state resources available to assist municipalities and shall include a checklist indicating the issues that should be addressed by the municipality in planning for growth center designation.  The manual shall address other relevant topics in appropriate detail, such as:  methodologies for conducting growth projections and build-out analyses; defining appropriate boundaries that are not unduly expansive; enacting plan policies and implementation bylaws that accommodate reasonable densities, compact settlement patterns, and an appropriate mix of uses within growth centers; planning for infrastructure, transportation facilities, and open space; avoiding or mitigating impacts to important natural resources and historic resources; and strategies for maintaining the rural character and working landscape outside growth center boundaries. 

(B)  A preapplication review process that allows municipalities to submit a preliminary application to the planning coordination group, consisting of a draft growth center map and a brief explanation of planning and implementation policies that the municipality anticipates enacting in order to guide development inside the growth center and maintain the rural character of the surrounding area, to the extent that it exists.  Department and land use panel staff shall solicit comments from state agencies regarding areas of respective agency interest; evaluate the preliminary application for conformance with the requirements of this section; identify potential issues related to the growth center boundary and implementation tools; and provide recommendations for addressing those issues through adjustment to the growth centers boundary, revisions to planned implementation tools, or consideration of alternative implementation tools.  Preliminary review shall be available to municipalities while they are engaged in the municipal planning process so that recommendations may be considered prior to the adoption of the municipal plan and associated implementation measures.

(C)  Ongoing assistance to the state board to review applications for growth center designation, including coordinating review by state agencies on matters of agency interest and evaluating applications and associated plan policies and implementation measures for conformance with the definition under subdivision 2791(12) of this title and any designation requirements established under subsection (e) of this section.

(D)  The Vermont municipal planning grant program shall make funding for activities associated with growth centers planning a priority funding activity, and the Vermont community development program shall make funding for activities associated with growth centers planning a priority funding activity under the planning grant program.

(c)  Public involvement and review.  Any decision to apply for growth center designation shall be made by vote of the municipal legislative body, subject to the process established under sections 1972 and 1973 of this title.

(d)  Application and designation requirements.  Any application for designation as a growth center shall be to the state board and shall include the following:

(1)  a demonstration that the growth center proposal meets the definition of a growth center established in subdivision 2791(12) of this title;

(2)  a map and a conceptual plan for the growth center;

(3)  identification of important natural resources and historic resources within the proposed growth center, the anticipated impacts on those resources, and any proposed mitigation;

(4)  when the secretary of agriculture, food and markets has developed guidelines in compliance with 6 V.S.A. § 8, the applicant shall demonstrate that the approved municipal plan and the regional plan both have been updated during any five-year plan readoption that has taken place since the date the secretary of agriculture developed those guidelines, have been used to identify areas proposed for agriculture, and have been designed so as to avoid the conversion of primary agricultural soils, wherever possible;

(5)  a demonstration:

(A)  that the applicant has a regionally confirmed planning process and an approved municipal plan, pursuant to section 4350 of this title;

(B)  that the approved plan contains provisions that are appropriate to implement the designated growth center proposal;

(C)  that the applicant has adopted bylaws in conformance with the municipal plan that implement the provisions in the plan that pertain to the designated growth center;

(D)  that the approved plan and the implementing bylaws further the goal of retaining a more rural character in the area surrounding the growth center, to the extent that a more rural character exists, and provide reasonable protection for important natural resources and historic resources located outside the proposed growth center;

(6)  a capital budget and program adopted in accordance with section 4426 of this title, together with a demonstration that existing and planned infrastructure is adequate to implement the growth center;

(7)  a build-out analysis and needs study that demonstrates that the growth center:

(A) is of an appropriate size sufficient to accommodate a majority of the projected population and development over a 20-year planning period in a manner that is consistent with the definition under subdivision 2791(12) of this title; and

(B)  does not encompass an excessive area of land that would involve the unnecessary extension of infrastructure to service low-density development, or result in a scattered or low-density pattern of development at the conclusion of the 20 year planning period.

(8)  a demonstration:

(A)  that the growth center will support and reinforce any existing designated downtown, village center, or new town center located in the municipality or adjacent municipality by accommodating concentrated residential neighborhoods and a mix and scale of commercial, civic, and industrial uses that is consistent with the anticipated demand for those uses within the municipality and region;

(B)  that the proposed growth center growth cannot reasonably be achieved within an existing designated downtown, village center, or new town center located within the applicant municipality.

(e)  Designation decision.

(1)  Within 90 days of the receipt of a completed application, after providing notice as required in the case of a proposed municipal plan or amendment under subsection 4384(e) of this title, and after providing an opportunity for the public to be heard, the state board formally shall designate a growth center if the state board finds, in a written decision:

(A)  that the growth center proposal meets the definition of a growth center established in subdivision 2791(12) of this title;

(B)  that the applicant has identified important natural resources and historic resources within the proposed growth center and the anticipated impacts on those resources, and has proposed mitigation;

(C)  that the approved municipal plan and the regional plan both have been updated during any five-year plan readoption that has taken place since the date the secretary of agriculture, food and markets has developed guidelines in compliance with 6 V.S.A. § 8, have been used to identify areas proposed for agriculture, and have been designed so as to avoid the conversion of primary agricultural soils, wherever possible;

(D)(i)  that the applicant has a regionally confirmed planning process and an approved municipal plan, pursuant to section 4350 of this title;

(ii)  that the approved plan contains provisions that are appropriate to implement the designated growth center proposal;

(iii)  that the applicant has adopted bylaws in conformance with the municipal plan that implement the provisions in the plan that pertain to the designated growth center;

(iv)  that the approved plan and the implementing bylaws further the goal of retaining a more rural character in the areas surrounding the growth center, to the extent that a more rural character exists, and provide reasonable protection for important natural resources and historic resources located outside the proposed growth center.

(E)  that the applicant has adopted a capital budget and program in accordance with section 4426 of this title, and that existing and planned infrastructure is adequate to implement the growth center;

(F)  that the growth center is of an appropriate size sufficient to accommodate a majority of the projected population and development over a 20-year planning period in a manner that is consistent with the definition under subdivision 2791(12) of this title, and that the growth center does not encompass an excessive area of land that would involve the unnecessary extension of infrastructure to service low-density development or result in a scattered or low-density pattern of development at the conclusion of the 20‑year planning period;

(G)(i)  that the growth center will support and reinforce any existing designated downtown, village center, or new town center located in the municipality or adjacent municipality by accommodating concentrated residential neighborhoods and a mix and scale of commercial, civic, and industrial uses consistent with the anticipated demand for those uses within the municipality and region;

(ii)  that the proposed growth center growth cannot reasonably be achieved within an existing designated downtown, village center, or new town center located within the applicant municipality.

(2)  The board, as a condition of growth center designation, may require certain regulatory changes prior to the effective date of designation.  In addition, the growth center designation may be modified, suspended, or revoked if the applicant fails to achieve the required regulatory changes within a specified period of time.  As an option, municipalities applying for growth center designation may make certain regulatory changes effective and contingent upon formal designation.

(3)  Except as otherwise provided in this section, growth center designation shall extend for a period of 20 years.  The state board shall review a growth center designation no less frequently than every five years, after providing notice as required in the case of a proposed municipal plan or amendment under subsection 4384(e) of this title, and after providing an opportunity for the public to be heard.  For each applicant, the state board may adjust the schedule of review under this subsection so as to coincide with the review of the related and underlying designation of a downtown, village center, or new town center.  If, at the time of the review, the state board determines that the growth center no longer meets the standards for designation established in this section, it may take any of the following actions:

(A)  require corrective action;

(B)  provide technical assistance through the coordinated assistance program; or

(C)  remove the growth center’s designation, with that removal not affecting any of the growth center’s previously awarded benefits.

(4)  At any time a municipality shall be able to apply to the state board for amendment of a designated growth center or any related conditions or other matters, according to the procedures that apply in the case of an original application.

(f)  Review by land use panel and issuance of Act 250 findings of fact and conclusions of law.  Subsequent to growth center designation by the state board, an applicant municipality may submit a request for findings of fact and conclusions of law under specific criteria of 10 V.S.A. § 6086(a) to the land use panel of the natural resources board for consideration in accordance with the following: 

(1)  In requesting findings of fact, the applicant municipality shall specify any criteria for which findings and conclusions are requested and the nature and scope of the findings that are being requested. 

(2)  The panel shall notify all landowners of land located within the proposed growth center, entities that would be accorded party status before a district commission under 10 V.S.A. § 6085(c)(1)(C) and (D), and all owners of land adjoining the proposed growth center of a hearing on the issue.  The panel may fashion alternate and more efficient means of providing adequate notice to persons potentially affected under this subdivision.  Persons notified may appear at the hearing and be heard, as may any other person who has a particularized interest protected by 10 V.S.A. chapter 151 that may be affected by the decision. 

(3)  The panel shall review the request in accordance with and shall issue findings of fact and conclusions of law under the applicable criteria of 10 V.S.A. § 6086(a) which are deemed to have been satisfied by the applicant’s submissions during the formal designation process, any additional submissions, as well as associated municipal plan policies, programs, and bylaws.  Findings and conclusions of law shall be effective for a period of five years, unless otherwise provided.  The panel, before issuing its findings and conclusions, may require specific changes in the proposal, or regulatory changes by the municipality, as a condition for certain findings and conclusions.  These findings and conclusions shall be subject to appeal to the environmental court pursuant to 10 V.S.A. chapter 220 within 30 days of issuance.

(4)  During the period of time in which a growth center designation remains in effect, any findings and conclusions issued by the panel or any final adjudication of those findings and conclusions shall be applicable to any subsequent application for approval by a district commission under chapter 151 of Title 10 and shall be binding upon the district commission and the persons provided notice in the land use panel proceeding, according to the rules of the land use panel, provided the proposed development project is located within the designated growth center. 

(5)  In any application to a district commission under chapter 151 of Title 10 for approval of a proposed development or subdivision to be located within the designated growth center, the district commission shall review de novo any relevant criteria of 10 V.S.A. § 6086(a) that are not subject to findings of fact and conclusions of law issued by the land use panel pursuant to this section.

(6)  The decision of the state board pursuant to this section shall not be binding as to the criteria of 10 V.S.A. § 6086(a) in any proceeding before the panel or a district commission.

(g)  Review by district commission.  In addition to its other powers, in making its determinations under 10 V.S.A. § 6086, a district commission may consider important resources within a proposed growth center that have been identified in the designation process and the anticipated impacts on those resources, and may require that reasonable mitigation be provided as an alternative to permit denial.

(h)  Concurrent designation.  A municipality may seek designation of a growth center concurrently with the designation of a downtown pursuant to section 2793 of this title, the designation of a village center pursuant to section 2793a of this title, or the designation of a new town center pursuant to section 2793b of this title.

(i)  Benefits from designation.  A growth center designated by the state board pursuant to this section is eligible for the following development incentives and benefits:

(1)  Financial incentives. 

(A) A municipality may use tax increment financing for infrastructure and improvements in its designated growth center pursuant to the provisions of Title 24 and Title 32.  A designated growth center under this section shall be presumed to have met any locational criteria established in Vermont statutes for tax increment financing.  The state board may consider project criteria established under those statutes, and as appropriate, may make recommendations as to whether any of those project criteria have been met.

(B)  Vermont economic development authority (VEDA) incentives shall be provided to designated growth centers.

(2)  State assistance and funding for growth centers.

(A)  It is the intention of the general assembly to give the highest priority to facilitating development and growth in designated downtowns and village centers whenever feasible.  The provisions in this section and elsewhere in law that provide and establish priorities for state assistance and funding for designated growth centers are not intended to take precedence over any other provisions of law that provide state assistance and funding for designated downtowns and village centers.

(B)  On or before January 15, 2007, the secretary of administration, in consultation with the secretaries of natural resources, transportation, commerce and community development, and agriculture, food and markets, shall report to the general assembly on the priorities and preferences for state assistance and funding granted in law to downtown centers, village centers, and designated growth centers, and the manner in which such priorities are applied.

(3)  State infrastructure and development assistance.

(A)  With respect to state grants and other state funding, priority should be given to support infrastructure and other investments in public facilities located inside a designated growth center to consist of the following:

(i)  Agency of natural resources funding of new, expanded, upgraded, or refurbished wastewater management facilities serving a growth center in accordance with the agency’s rules regarding priority for pollution abatement, pollution prevention, and the protection of public health and water quality.

(ii)  Technical and financial assistance for brownfields remediation under the Vermont brownfields initiative.

(iii)  Community development block grant (CDBG) program implementation grants.

(iv)  Technical, financial, and other benefits made available by statute or rule.

(B)  Whenever the commissioner of the department of buildings and general services or other state officials in charge of selecting a site are planning to lease or construct buildings suitable to being located in a designated growth center after determining that the option of utilizing existing space in a downtown development district pursuant to subdivision 2794(a)(13) of this title or within a designated village center pursuant to subdivision 2793a(c)(6) of this title or within a designated new town center pursuant to subdivision 2793b(c)(2) of this title is not feasible, the option of locating in a designated growth center shall be given thorough investigation and priority in consultation with the legislative body of the municipality. 

(4)  State investments.  The state shall:

(A)  Expand the scope of the downtown transportation fund, as funds are available, to include access to downtowns with the first priority being projects located in designated downtowns, the second priority being projects located in designated village centers, and the third priority being projects located in designated growth centers.

(B)  Extend priority consideration for transportation enhancement improvements located within or serving designated downtowns, village centers, and growth centers.

(C)  Grant to projects located within designated growth centers priority consideration for state housing renovation and affordable housing construction assistance programs.

(5)  Regulatory incentives.

(A)  Master plan permit application.  At any time while designation of a growth center is in effect, any person or persons who exercise ownership or control over an area encompassing all or part of the designated growth center or any municipality within which a growth center has been formally designated may apply for a master plan permit for that area or any portion of that area to the district commission pursuant to the rules of the land use panel.  Municipalities making an application under this subdivision are not required to exercise ownership of or control over the affected property.  The district commission shall be bound by any conclusions or findings of the land use panel, or any final adjudication of those findings and conclusions, pursuant to subsection (f) of this section but shall consider de novo any of the criteria of 10 V.S.A. § 6086(a) that were not subject to the final issuance of findings and conclusions by the land use panel pursuant to that subsection.  In approving a master permit, the district commission may set forth specific conditions that an applicant for an individual project permit will be required to meet.   

(B)  Individual project permits within a designated growth center.  The district commission shall review individual Act 250 permit applications in accordance with the specific findings of fact and conclusions of law issued by the land use panel under this section, if any, and in accordance with the conditions, findings, and conclusions of any applicable master plan permit.  Any person proposing a development or subdivision within a designated growth center where no master plan permit is in effect shall be required to file an application with the district environmental commission for review under the criteria of 10 V.S.A. § 6086(a).

Sec. 5.  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.

(1)  Zoning districts.  A municipality may define different and separate zoning districts, and identify within these districts which land uses are permitted as of right, and which are conditional uses requiring review and approval, including the districts set forth in this subdivision (1).

(A)  Downtown, village center, and new town center, and growth center districts.  The definition or purpose stated for local downtown, village center, or new town center, or growth center zoning districts should conform with the applicable definitions in section 2791 of this title.  Municipalities may adopt downtown, village center, or new town center, or growth center districts without seeking state designation under section 2793 chapter 76A of this title.  A municipality may adopt a manual of graphic or written design guidelines to assist applicants in the preparation of development applications.  The following objectives should guide the establishment of boundaries, requirements, and review standards for these districts:

* * *

Sec. 6.  10 V.S.A. § 6001 is amended to read:

§ 6001.  DEFINITIONS

When used in this chapter:

* * *

(3)(A)  “Development” means:

* * *

(B)  Notwithstanding the provisions of subdivision (3)(A) of this section, if a project consists exclusively of any combination of mixed income housing or mixed use and is located entirely within a growth center designated pursuant to 24 V.S.A. § 2793c or within a downtown development district designated pursuant to 24 V.S.A. § 2793, “development” means:

* * *

(iv)  Construction of mixed income housing with 20 25 or more housing units or a mixed use project with 20 25 or more housing units, in a municipality of less than 5,000.

* * *

(C)  For the purposes of determining jurisdiction under subdivisions (3)(A) and (3)(B) of this section:

(i)  Housing units constructed by a person partially or completely outside a designated downtown development district or designated growth center shall not be counted to determine jurisdiction over housing units constructed by a person entirely within a designated downtown development district or designated growth center.

(ii)  Within any continuous period of five years, housing units constructed by a person entirely within a designated downtown district or designated growth center shall be counted together with housing units constructed by a person partially or completely outside a designated downtown development district or designated growth center to determine jurisdiction over the housing units constructed by a person partially or completely outside the designated downtown development district or designated growth center and within a five-mile radius.

(iii)  All housing units constructed by a person within a designated downtown development district or designated growth center within any continuous period of five years, commencing on or after the effective date of this subdivision, shall be counted together.

* * *

(v)  Notwithstanding subdivision (3)(C)(iii) of this section, any affordable housing units, as defined by this section, that are subject to housing subsidy covenants as defined in 27 V.S.A. § 610 that preserve their affordability for a period of 99 years or longer, and that are constructed by a person within a designated downtown development district, designated village center, or designated growth center, shall count toward the total number of housing units used to determine jurisdiction only if they were constructed within the previous 12-month period, commencing on or after the effective date of this subdivision.

* * *

(8)  “Forest and secondary agricultural Productive forest soils” means  those soils which are not primary agricultural soils but which have a reasonable potential for commercial forestry or commercial agriculture, and which have not yet been developed.  In order to qualify as productive forest or secondary agricultural soils, the land containing such soils shall be characterized by of a size and location, relative to adjoining land uses, natural conditions condition, and ownership patterns so that those soils will be capable of supporting or contributing to present or potential a commercial forestry or commercial agriculture operationIf a tract of land includes other than forest or secondary agricultural soils only the forest or secondary agricultural soils shall be impacted by criteria relating specifically to such soils.  Land use on those soils may include commercial timber harvesting and specialized forest uses, such as maple sugar or Christmas tree production.

* * *

(15)  “Primary agricultural soils” means soils which have a potential for growing food and forage crops, are sufficiently well drained to allow sowing and harvesting with mechanized equipment, are well supplied with plant nutrients or highly responsive to the use of fertilizer, and have soil map units with the best combination of physical and chemical characteristics that have a potential for growing food, feed, and forage crops, have sufficient moisture and drainage, plant nutrients or responsiveness to fertilizers, few limitations for cultivation or limitations which may be easily overcome.  In order to qualify as primary agricultural soils, the, and an average slope of the land containing such soils that does not exceed 15 percent, and such land is.  Present uses may be cropland, pasture, regenerating forests, forestland, or other agricultural or silvicultural uses.  However, the soils must be of a size and location, relative to adjoining land uses, so that those soils will be capable, following removal of any identified limitations, of supporting or contributing to an economic or commercial agricultural operation.  If a tract of land includes other than primary agricultural soils, only the primary agricultural soils shall be impacted by criteria relating specifically to such soils.  Unless contradicted by the qualifications stated in this subdivision, primary agricultural soils shall include important farmland soils map units with a rating of prime, statewide, or local importance as defined by the Natural Resources Conservation Service (N.R.C.S.) of the United States Department of Agriculture (U.S.D.A.).

* * *

(29)  “Affordable housing” means either of the following:

(A)  Owner-occupied housing in which the owner’s Housing that is owned by its occupants whose gross annual household income does not exceed 80 percent of the county median household income, for which the annual housing costs, which include payment of or 80 percent of the standard metropolitan statistical area income if the municipality is located in such an area, as defined by the United States Department of Housing and Urban Development, and the total annual cost of the housing, including principal, interest, taxes, and insurance, are and condominium association fees, is not more than 30 percent of the gross annual household income.

(B)  Rental housing in which the renter’s Housing that is rented by the occupants whose gross annual household income does not exceed 80 percent of the county median household income, and for which the annual housing costs, which include or 80 percent of the standard metropolitan statistical area income if the municipality is located in such an area, as defined by the United States Department of Housing and Urban Development, and the total annual cost of the housing, including rent and, utilities expenses, are and condominium association fees, is not more than 30 percent of the gross annual household income.

(30)  “Designated growth center” means a growth center designated by the Vermont downtown development board under the provisions of 24 V.S.A. chapter 76A.

Sec. 7.  10 V.S.A. § 6086(a)(9) is amended to read:

(9)  Is in conformance with a duly adopted capability and development plan, and land use plan when adopted.  However, the legislative findings of sections subdivisions 7(a)(1) through 7(a)(19) of this act shall not be used as criteria in the consideration of applications by a district commission.

* * *

(B)  Primary agricultural soils.  A permit will be granted for the development or subdivision of primary agricultural soils only when it is demonstrated by the applicant that, in addition to all other applicable criteria, either, the subdivision or development will not significantly reduce result in any reduction in the agricultural potential of the primary agricultural soils; or,:

(i)  the applicant can realize a reasonable return on the fair market value of his land only by devoting the primary agricultural soils to uses which will significantly reduce their agricultural potential the development or subdivision will not significantly interfere with or jeopardize the continuation of agriculture or forestry on adjoining lands or reduce their agricultural or forestry potential; and

(ii)  except in the case of an application for a project located in a designated growth center, there are no nonagricultural or secondary lands other than primary agricultural soils owned or controlled by the applicant which are reasonably suited to the purpose of the development or subdivision; and

(iii)  except in the case of an application for a project located in a designated growth center, the subdivision or development has been planned to minimize the reduction of agricultural potential by providing for reasonable population densities, reasonable rates of growth, and the use of cluster planning and new community planning designed to economize on the cost of roads, utilities and land usage of the primary agricultural soils through innovative land use design resulting in compact development patterns, so that the remaining primary agricultural soils on the project tract are capable of supporting or contributing to an economic or commercial agricultural operation; and

(iv)  the development or subdivision will not significantly interfere with or jeopardize the continuation of agriculture or forestry on adjoining lands or reduce their agricultural or forestry potential suitable mitigation will be provided for any reduction in the agricultural potential of the primary agricultural soils caused by the development or subdivision, in accordance with section 6093 of this title and rules adopted by the land use panel.

(C)  Forest and secondary agricultural Productive forest soils.  A permit will be granted for the development or subdivision of productive forest or secondary agricultural soils only when it is demonstrated by the applicant that, in addition to all other applicable criteria, either, the subdivision or development will not significantly reduce result in any reduction in the potential of those soils for commercial forestry, including but not limited to specialized forest uses such as maple production or Christmas tree production, potential of those or adjacent primary agricultural soils for commercial agriculture; or:

(i)  the applicant can realize a reasonable return on the fair market value of his land only by devoting the forest or secondary agricultural soils to uses which will significantly reduce their forestry or agricultural potential the development or subdivision will not significantly interfere with or jeopardize the continuation of agriculture or forestry on adjoining lands or reduce their agricultural or forestry potential; and

(ii)  except in the case of an application for a project located in a designated growth center, there are no nonforest or secondary agricultural lands other than productive forest soils owned or controlled by the applicant which are reasonably suited to the purpose of the development or subdivision; and

(iii)  except in the case of an application for a project located in a designated growth center, the subdivision or development has been planned to minimize the reduction of forestry and agricultural potential by providing for reasonable population densities, reasonable rates of growth, and the use of cluster planning and new community planning designed to economize on the cost of roads, utilities and land usage the potential of those productive forest soils through innovative land use design resulting in compact development patterns, so that the remaining forest soils on the project tract may contribute to a commercial forestry operation.  

Sec. 8.  10 V.S.A. § 6093 is added to read:

§ 6093.  mitigation of PRIMARY Agricultural SOILS

(a)  Mitigation for loss of primary agricultural soils.  Suitable mitigation for the conversion of primary agricultural soils necessary to satisfy subdivision 6086(a)(9)(B)(iv) of this title shall depend on where the project tract is located. 

(1)  Project located in growth center.  If the project tract is located in a designated growth center, an applicant who complies with subdivision 6086(a)(9)(B)(iv) of this title shall deposit an offsite mitigation fee into the Vermont housing and conservation trust fund established under section 312 of this title for the purpose of preserving primary agricultural soils of equal or greater value with the highest priority given to preserving prime agricultural soils as defined by the U.S. Department of Agriculture.  Any required offsite mitigation fee shall be derived by:

(A)  determining the number of acres of primary agricultural soils affected by the proposed development or subdivision;

(B)  multiplying the number of affected acres of primary agricultural soils by a factor resulting in a ratio established as follows:

(i)  for development or subdivision within a designated growth center, the ratio shall be 1:1;

(ii)  for residential construction that has a density of at least eight units of housing per acre, of which at least eight units per acre or at least 40 percent of the units, on average, in the entire development or subdivision, whichever is greater, meets the definition of affordable housing established in this chapter, no mitigation shall be required.  However, all affordable housing units shall be subject to housing subsidy covenants, as defined in 27 V.S.A. § 610, that preserve their affordability for a period of 99 years or longer.  For purposes of this section, housing that is rented shall be considered affordable housing when its inhabitants have a gross annual household income that does not exceed 60 percent of the county median income or 60 percent of the standard metropolitan statistical area income if the municipality is located in such an area.

(C)  multiplying the resulting product by a “price‑per‑acre” value, which shall be based on the amount that the secretary of agriculture, food and markets has determined to be the recent, per-acre cost to acquire conservation easements for primary agricultural soils in the same geographic region as the proposed development or subdivision. 

(2)  Project located outside designated growth center.  If the project tract is not located in a designated growth center, mitigation shall be provided on site in order to preserve primary agricultural soils for present and future agricultural use, with special emphasis on preserving prime agricultural soils.  Preservation of primary agricultural soils shall be accomplished through innovative land use design resulting in compact development patterns which will maintain a sufficient acreage of primary agricultural soils on the project tract capable of supporting or contributing to an economic or commercial agricultural operation and shall be enforceable by permit conditions issued by the district commission.  The number of acres of primary agricultural soils to be preserved shall be derived by:

(A)  determining the number of acres of primary agricultural soils affected by the proposed development or subdivision; and

(B)  multiplying the number of affected acres of primary agricultural soils by a factor based on the quality of those primary agricultural soils, and other factors as the secretary of agriculture, food and markets may deem relevant, including the soil’s location; accessibility; tract size; existing agricultural operations; water sources; drainage; slope; the presence of ledge or protected wetlands; the infrastructure of the existing farm or municipality in which the soils are located; and the N.R.C.S. rating system for Vermont soils.  This factor shall result in a ratio of no less than 2:1, but no more than 3:1, protected acres to acres of impacted primary agricultural soils.

(3)  Mitigation flexibility.

(A)  Notwithstanding the provisions of subdivision (1) of this subsection pertaining to a development or subdivision on primary agricultural soils within a designated growth center, the district commission may, in appropriate circumstances, require onsite mitigation with special emphasis on preserving prime agricultural soils if that action is deemed consistent with the agricultural elements of local and regional plans and the goals of section 4302 of Title 24.  In this situation, the approved plans must designate specific soils that shall be preserved inside growth centers.  For projects located within a designated growth center, all factors used to calculate suitable mitigation acreage or fees, or some combination of these measures, shall be as specified in this subsection, subject to a ratio of 1:1.

(B)  Notwithstanding the provisions of subdivision (2) of this subsection pertaining to a development or subdivision on primary agricultural soils outside a designated growth center, the district commission may, in appropriate circumstances, approve off‑site mitigation or some combination of onsite and off‑site mitigation if that action is deemed consistent with the agricultural elements of local and regional plans and the goals of section 4302 of Title 24.  For projects located outside a designated growth center, all factors used to calculate suitable mitigation acreage or fees, or some combination of these measures, shall be as specified in this subsection, subject to a ratio of no less than 2:1, but no more than 3:1.

(4)  Industrial parks.

(A)  Notwithstanding any provision of this chapter to the contrary, a conversion of primary agricultural soils located in an industrial park as defined in subdivision 212(7) of this title and permitted under this chapter and in existence as of January 1, 2006, shall be allowed to pay a mitigation fee computed according to the provisions of subdivision (1) of this subsection, except that it shall be entitled to a ratio of 1:1, protected acres to acres of affected primary agricultural soil.  If an industrial park is developed to the fullest extent before any expansion, this ratio shall apply to any contiguous expansion of such an industrial park that totals no more than 25 percent of the area of the park or no more than 10 acres, whichever is larger; provided any expansion based on percentage does not exceed 50 acres.  Any expansion larger than that described in this subdivision shall be subject to the mitigation provisions of this subsection at ratios that depend upon the location of the expansion.

(B)  In any application to a district commission for expansion of an existing industrial park, compact development patterns shall be encouraged that assure the most efficient use of land and the realization of maximum economic development potential through appropriate densities. 

Industrial park expansions and industrial park infill shall not be subject to requirements established in subdivision 6086(a)(9)(B)(iii) of this title, nor to requirements established in subdivision (9)(C)(iii).

(b)  Easements required for protected lands.  All primary agricultural soils preserved for commercial or economic agricultural use by the Vermont housing and conservation board pursuant to this section shall be protected by permanent conservation easements (grant of development rights and conservation restrictions) conveyed to a qualified holder, as defined in section 821 of this title, with the ability to monitor and enforce easements in perpetuity.

Sec. 8a.  Sec. 7 of No. 44 of the Acts of 1995, as amended by Sec. 1 of No. 14 of the Acts of 2001 is amended to read:

Sec. 7.  APPLICATION DEADLINE

Applications to participate in the program established under 10 V.S.A. § 6615a shall not be accepted after July 1, 2006 2012.

Sec. 9.  10 V.S.A. § 8503(b) is amended to read:

(b)  This chapter shall govern:

(1)  All appeals from an act or decision of a district commission under chapter 151 of this title, excluding appeals of application fee refund requests.

(2)  Appeals from district coordinator jurisdictional opinions under chapter 151 of this title.

(3)  Appeals from findings of fact and conclusions of law issued by the land use panel in its review of a designated growth center for conformance with the criteria of subsection 6086(a) of this title, pursuant to authority granted at 24 V.S.A. § 2793c(f).

Sec. 10.  PLANNING AND RESOURCES

(a)(1)  By no later than January 15, 2007 the secretary of agriculture, food and markets in compliance with the requirements of 6 V.S.A. § 8 shall establish guidelines to assist the municipal and regional planning commissions of the state in identifying agricultural lands, and shall provide those guidelines to the senate and house committees on agriculture and on natural resources and energy.

(2)  By no later than March 15, 2007, the secretary shall compile the inventory of the amount of agricultural land conserved in the state, and in each county, the percentage of land conserved, the density of land conserved, and other related and relevant information.

(b)  By no later than January 1, 2007, the secretary of agriculture, food and markets shall report to the general assembly with a work plan and budget estimate for the following:

(1)  a state soils inventory to be developed by the agency of agriculture, food and markets working with the federal Natural Resources Conservation Service and the Vermont center for geographic information.  The soils inventory shall be produced in map form and shall include, in digitized form to the extent available, the location of prime and statewide agricultural soils in the state that remain undeveloped.  The agency shall present the inventory to the committees on agriculture and on natural resources and energy of the general assembly;

(2)  an analysis of options and recommendations with respect to how to treat the state’s remaining primary agricultural soils that are not developed, including recommendations as to how these soils can be put into productive use and how to give a higher priority to their conservation.  These recommendations shall be developed by a six member working group consisting of the secretary of agriculture, food and markets, or the secretary’s designee, a representative of the Vermont housing and conservation board, and a member appointed by each of the following entities: the Vermont farm bureau, the Vermont land trust, the Vermont natural resources council, and the Vermont association of planning and development agencies.  The secretary of agriculture, food and markets shall call the first meeting of the group, and the group shall elect a chair and vice chair.  The working group shall consider such factors as soil type, availability of necessary infrastructure, proximity to local and regional markets, and how best to encourage the agricultural use of smaller parcels.  The recommendations shall be made available to regional and municipal planning commissions;

(3)  completion of soils mapping of Essex and Caledonia counties and certification of the soils mapping of Chittenden County by the federal Natural Resources Conservation Service.

(c)  The working group specified in subdivision (b)(2) of this section shall, with a long term perspective for a range of growth and development scenarios, identify and evaluate options by which the state might best establish long range agricultural lands conservation goals and maximize public and private resources to achieve these goals.  The group also shall develop recommendations on how to balance long term agricultural land conservation with local land use preferences and local development needs.

(d)(1)  By January 15, 2007, the secretary of commerce and community affairs, the chair of the land use panel, and one or more representatives of the downtown board established in 24 V.S.A. chapter 76A shall report to the general assembly with a budget estimate of resources needed to implement this act.

(2)  The secretary of agriculture, food and markets, the commissioner of education, the commissioner of taxes, and a representative of the Vermont housing and conservation board shall report to the general assembly by January 15, 2007 on the effect of school construction on the loss of primary agricultural lands and on the financial effect of agricultural lands mitigation on school spending.

Sec. 11.  TRANSITION

Following or concurrent with the filing of a “notice of intent” to file an application for growth center designation with the state board, a municipality with a proposed growth center identified in a regionally approved town plan may apply by June 1, 2008 to the planning and coordination group established under 24 V.S.A. § 2793c and seek approval for the designated growth center agricultural mitigation benefits as described in 10 V.S.A. § 6093.  The planning and coordination group shall recommend to the expanded downtown development board (state board) that the benefits of 10 V.S.A. § 6093 be granted to the municipality if it determines that the growth center in question meets the definition set forth in 24 V.S.A. § 2791(12), and that the municipality certifies that it is actively engaged in a planning process leading to the filing of a complete application for growth center designation.  The state board will review the information provided by the municipality and the recommendations of the planning and coordination group and shall award the benefit, if warranted.  The temporary grant of the primary agricultural soils mitigation benefit shall not exceed 18 months.  In its discretion, the downtown board may approve a reasonable extension of the grant of the primary agricultural soils mitigation benefit, provided that the municipality continues to make progress toward filing a complete application in accordance with the requirements of this section.  This section shall be repealed on September 1, 2008.

* * * Vermont Downtown and Village Center Tax Credit Program * * *

Sec. 12.  32 V.S.A. chapter 151, subchapter 11J is added to read:

Subchapter 11J.  Vermont Downtown and Village Center

Tax Credit Program

§ 5930aa.  DEFINITIONS

As used in this subchapter:

(1)  “Qualified applicant” means an owner or lessee of a qualified building involving a qualified project, but does not include a religious entity operating with a primarily religious purpose; a state or federal agency or a political subdivision of either; or an instrumentality of the United States.

(2)  “Qualified building” means a building built prior to 1983, located within a designated downtown or village center, which upon completion of the project supported by the tax credit will be an income‑producing building not used solely as a single‑family residence.

(3)  “Qualified code improvement project” means a project:

(A)  To install or improve platform lifts suitable for transporting personal mobility devices, elevators, sprinkler systems, and capital improvements in a qualified building, and the installations or improvements are required to bring the building into compliance with the statutory requirements and rules regarding fire prevention, life safety, and electrical, plumbing, and accessibility codes as determined by the department of public safety.

(B)  To abate lead paint conditions or other substances hazardous to human health or safety in a qualified building.

(C)  To redevelop a contaminated property in a designated downtown or village center under a plan approved by the secretary of natural resources pursuant to 10 V.S.A. § 6615a.

(4)  “Qualified expenditures” means construction-related expenses of the taxpayer directly related to the project for which the tax credit is sought but excluding any expenses related to a private residence.

(5)  “Qualified façade improvement project” means the rehabilitation of the façade of a qualified building that contributes to the integrity of the designated downtown or designated village center.  Façade improvements to qualified buildings listed, or eligible for listing, in the State or National Register of Historic Places must be consistent with Secretary of the Interior Standards, as determined by the Vermont division for historic preservation.

(6)  “Qualified historic rehabilitation project” means an historic rehabilitation project that has received federal certification for the rehabilitation project.

(7)  “Qualified project” means a qualified code improvement, façade improvement, or historic rehabilitation project as defined by this subchapter.

(8)  “State board” means the Vermont downtown development board established pursuant to chapter 76A of Title 24.

§ 5930bb.  ELIGIBILITY AND ADMINISTRATION

(a)  Qualified applicants may apply to the state board to obtain the tax credits provided by this subchapter for qualified code improvement, façade improvement, or historic rehabilitation projects at any time before one year after completion of the qualified project.

(b)  To qualify for any of the tax credits under this subchapter, expenditures for the qualified project must exceed $5,000.00.

(c)  Application shall be made in accordance with the guidelines set by the state board.

§ 5930cc.  DOWNTOWN AND VILLAGE CENTER PROGRAM TAX

                 CREDITS

(a)  Historic rehabilitation tax credit.  The qualified applicant of a qualified historic rehabilitation project shall be entitled, upon the approval of the state board, to claim against the taxpayer’s state individual income tax, corporate income tax, or bank franchise or insurance premiums tax liability a credit of ten percent of qualified rehabilitation expenditures as defined in the Internal Revenue Code, 26 U.S.C. § 47(c), properly chargeable to the federally certified rehabilitation.

(b)  Façade improvement tax credit.  The qualified applicant of a qualified façade improvement project shall be entitled, upon the approval of the state board, to claim against the taxpayer’s state individual income tax, state corporate income tax, or bank franchise or insurance premiums tax liability a credit of 25 percent of qualified expenditures up to a maximum tax credit of $25,000.00.

(c)  Code improvement tax credit.  The qualified applicant of a qualified code improvement project shall be entitled, upon the approval of the state board, to claim against the taxpayer’s state individual income tax, state corporate income tax, or bank franchise or insurance premiums tax liability a credit of 50 percent of qualified expenditures up to a maximum tax credit of $12,000.00 for installation or improvement of a platform lift, a maximum tax credit of $50,000.00 for installation or improvement of an elevator, a maximum tax credit of $50,000.00 for installation or improvement of a sprinkler system, and a maximum tax credit of $25,000.00 for the combined costs of all other qualified code improvements.

§ 5930dd.  CLAIMS; AVAILABILITY

(a)  A taxpayer claiming credit under this subchapter shall submit to the department of taxes with the first return on which a credit is claimed a copy of the state board’s tax credit allocation.

(b)  A credit under this subchapter shall be available for the first tax year in which the qualified project is complete. 

(c)  If within five years after the date of the credit allocation to the applicant no claim for tax credit has been filed, the tax credit allocation shall be rescinded.

(d)  Any unused credit under this section may be carried forward for no more than nine tax years following the first year for which the tax credit is claimed.

(e)  In lieu of using a tax credit to reduce its own tax liability, an applicant may request the credit in the form of a bank credit certificate that a bank may accept in return for cash, or may accept for adjusting the rate or term of the applicant’s mortgage or loan related to an ownership or leasehold interest in the qualified building.  The amount of the bank credit certificate shall equal the unused portion of the credit allocated under this subchapter, and an applicant requesting a bank credit certificate shall provide to the state board a copy of any returns on which any portion of the allocated credit under this section was claimed.  A bank that purchases a bank credit certificate may use it to reduce its franchise tax liability under section 5836 of this title in the first tax year in which the qualified building is placed back in service after completion of the qualified project or in the subsequent nine years.

§ 5930ee.  LIMITATIONS

Beginning in fiscal year 2007 and thereafter, the state board may award tax credits to all qualified applicants under this subchapter, provided that:

(1)  The total amount of tax credits awarded annually, together with sales tax reallocated under section 9819 of this title, does not exceed $1,500,000.00.

(2)  A total annual allocation of no more than 30 percent of these tax credits in combination with sales tax reallocation may be awarded in connection with all of the projects in a single municipality.

(3)  Façade tax credits shall not be available for projects that qualify for the federal rehabilitation tax credit.

(4)  No credit shall be allowed under this subchapter for the cost of acquiring any building or interest in a building.

(5)  Credit under any one subsection of 5930cc of this subchapter may not be allocated more often than once every two years with respect to the same building.

§ 5930ff.  RECAPTURE

If within five years after completion of the qualified project either of the following events occurs, the applicant shall be liable for a recapture penalty in an amount equal to the total tax credit claimed plus an amount equal to any value received from a bank for a bank credit certificate; and any credit allocated but unclaimed shall be disallowed to the applicant:

(1)  The state board finds that any work performed on the qualified project is inconsistent with the approved application; or the applicant knowingly failed to supply any information, or supplied incorrect or untrue information required by the state board or failed to comply with any award condition required by the state board.

(2)  The National Park Service revoked certification for unapproved alterations or for work not done as described in the historic preservation certification application.

Sec. 13.  32 V.S.A. § 9819(b) and (c) are amended to read:

(b)(1)  In any fiscal year after 1998 Beginning in fiscal year 2007, the Vermont downtown development board, established under 24 V.S.A. § 2792, may certify for allocation to municipalities sales tax revenues under this section, so that the total shall not exceed $1,000,000.00 $1,500,000.00, when considered together with the following:

(A)  credits Credits awarded under sections 5930n and 5930p subsections 5930cc(a) and (b) of this title, concerning substantial historic rehabilitation and historic and older building rehabilitation; qualified historic rehabilitation projects and qualified façade improvement projects.

(B)  credits Credits awarded under section 5930q subsection 5930cc(c) of this title, concerning platform lifts, elevators and sprinklers; and

(C)  credits awarded under section 5930r of this title, concerning village general stores and post office structures qualified code improvement projects.

(2)  A total annual allocation of no more than 40 30 percent of these tax credits in combination with sales tax reallocation may be awarded in connection with all of the projects in a single municipality.

(c)  For the purposes of this section:

* * *

(2)  “Qualified project” means expansion or rehabilitation of contiguous real property that is or will be used at the completion of the expansion or rehabilitation as a structure in a downtown development district designated under chapter 76A of Title 24, but only to the extent that the expansion or rehabilitation becomes an integral component of the real property and the project does not seek qualification for either tax credit authorized under section 5930n or 5930p subsection 5930cc(a) or (b) of this title.  “Qualified project” also means new construction of contiguous real property that will be used at the completion of the construction as a structure in a downtown development district designated under chapter 76A of Title 24 but only to the extent that the new construction is compatible with the buildings that contribute to the integrity of the district in terms of materials, features, size, scale and proportion, and massing of buildings.

Sec. 14.  24 V.S.A. § 2793a(c) is amended to read:

(c)  A village center designated by the state board pursuant to subsection (a) of this section is eligible for the following development incentives and benefits:

* * *

(4)  a state tax credit of five percent under section 5930n of Title 32 to owners or lessees of certified historic structures located in village centers for qualified expenditures;

(5)  a state tax credit of 50 percent under section 5930r of Title 32 to owners or lessees of buildings in village centers that serve as general stores or house post offices; The following state tax credits for projects located in a designated village center:

(A)  A state historic rehabilitation tax credit of ten percent under 32 V.S.A. § 5930cc(a) that meets the requirements for the federal rehabilitation tax credit. 

(B)  A state façade improvement tax credit of 25 percent under 32 V.S.A. § 5930cc(b).

(C)  A state code improvement tax credit of 50 percent under 32 V.S.A. § 5930cc(c).

(6)  whenever (5)  Whenever the commissioner of the department of buildings and general services or other state officials in charge of selecting a site are planning to lease or construct buildings suitable to being located in a village center after determining that the option of utilizing existing space in a downtown development district pursuant to subdivision 2794(a)(14) of this title is not feasible, the option of utilizing existing space in a designated village center shall be given thorough investigation and priority, in consultation with the community.

Sec. 15.  24 V.S.A. § 2794(a) is amended to read:

(a)  Upon designation by the Vermont downtown development board under section 2793 of this title, a downtown development district and projects in a downtown development district shall be eligible for the following:

(1)  priority Priority consideration by any agency of the state administering any state or federal assistance program providing funding or other aid to a municipal downtown area with consideration given to such factors as the costs and benefits provided and the immediacy of those benefits, provided the project is eligible for the assistance program;.

(2)  a state tax credit of ten percent under section 5930n of Title 32 to owners or long term lessees of certified historic structures located in downtown development districts that meet the requirements for the federal rehabilitation tax credit; The following state tax credits:

(A)  A state historic rehabilitation tax credit of 10 percent under 32 V.S.A. § 5930cc(a) that meets the requirements for the federal rehabilitation tax credit.

(B)  A state façade improvement tax credit of 25 percent under 32 V.S.A. § 5930cc(b).

(C)  A state code improvement tax credit of 50 percent under 32 V.S.A. § 5930cc(c).

(3)  a state tax credit of 25 percent under section 5930p of Title 32 to owners or lessees of older and historic buildings located in downtown development districts for qualified expenditures;

(4)  a A planning grant, in an amount not to exceed $8,000.00 per site, for an initial site assessment of a suspected contaminated site, if the site otherwise qualifies under the community development block grant program in chapter 29 of Title 10;.

(5)  financing (4)  Financing of transportation projects under the state infrastructure bank, created under chapter 12 of Title 10;.

(6)  assistance (5)  Assistance from the secretary of the agency of natural resources for current owners and prospective purchasers who otherwise qualify under the redevelopment of contaminated sites program under subsection 6615a(f) of Title 10, or in the case of current owners, who are innocent owners.  For the purposes of this subsection, an “innocent owner” is an owner who did not do any of the following:

(A)  hold Hold an ownership interest in the property or in any related fixtures or appurtenances, excluding a secured lender’s holding indicia of ownership in the property primarily to assure the repayment of a financial obligation at the time of any disposal of hazardous materials on the property;.

(B)  directly Directly or indirectly cause or contribute to any releases or threatened releases of hazardous materials at the property;.

(C)  operate Operate, or control the operation, at the property of a facility for the storage, treatment, or disposal of hazardous materials at the time of the disposal of hazardous materials at the property;.

(D)  dispose Dispose of, or arrange for the disposal of hazardous materials at the property; or.

(E)  generate Generate the hazardous materials that were disposed of at the property;.

(7)  technical (6)  Technical assistance by the department of housing and community affairs with regard to planning and coordination issues, including but not limited to, adaptive reuse of buildings within the district, development of a marketing plan for the downtown district that includes a heritage tourism component, development of a program to encourage merchants and building owners to rehabilitate, restore, and improve building façades, and, in coordination with the agency of transportation, planning for multi-modal transportation needs of the community;.

(8)  hospitality (7)  Hospitality training to be arranged by the department of tourism and marketing;.

(9)  promotion (8)  Promotion of the downtown development district by the department of tourism and marketing as part of the department’s integrated marketing and promotion program;.

(10)  consistent (9)  Consistent with the department’s available resources and subject to the department’s priority for ensuring public safety, technical support from the department of labor and industry public safety for the rehabilitation of older and historic buildings;.

(11)  a (10)  A rebate of the cost of a qualified sprinkler system in an amount not to exceed $2,000.00 for building owners or lessees.  Rebates shall be paid by the department of labor and industry public safety.  To be qualified, a sprinkler system must be a complete automatic fire sprinkler system installed in accord with department of labor and industry public safety rules in an older or historic building that is certified for a state tax credit under either section 5930n or section 5930p subsection 5930cc(a) or (b) of Title 32 and is located in a downtown development district.  A total of no more than $40,000.00 of rebates shall be granted in any calendar year by the department.  If in any year applications for rebates exceed this amount, the department shall grant rebates for qualified systems according to the date the building was certified for a state tax credit under section 5930n or section 5930p subsection 5930cc(a) or (b) of Title 32 with the earlier date receiving priority;.

(12)  participation (11)  Participation in the downtown transportation and related capital improvement fund program established by section 2796 of this title;.

(13)  when considering leasing existing space or constructing a building,

(12)  Priority for locating proposed state functions by the commissioner of buildings and general services or other state officials, in consultation with the legislative body of a municipality and based on the suitability of the state function to a downtown location, shall give priority to locating proposed state functions in a downtown;.

(14)  a (13)  A reallocation of receipts related to the tax imposed on sales of construction materials as provided in 32 V.S.A. § 9819;.

(15)  a state tax credit under section 5930q of Title 32 for the installation or improvement of platform lifts, elevators or sprinkler systems;

(16)  the (14)  The authority to create a special taxing district pursuant to chapter 87 of this title for the purpose of financing both capital and operating costs of a project within the boundaries of a downtown development district.

Sec. 16.  EFFECTIVE DATE; TAX CREDIT FILING LIMITATIONS;

               CARRY FORWARD PROVISIONS

(a)  This act shall take effect July 1, 2006.

(b)  The tax credits created in Sec. 12 of this act are enacted to replace the tax credits in sections 5930n, 5930p, 5930q, and 5930r of Title 32.  After June 30, 2006, the Vermont downtown development board established under chapter 76A of Title 24 may no longer allocate tax credits under the following sections of Title 32: 

(1)  Section 5930n, tax credit for substantial rehabilitation of historic buildings also claiming federal rehabilitation credit.

(2)  Section 5930p, rehabilitation tax credit for older or historic buildings.

(3)  Section 5930q, tax credit for platform lifts, elevators, or sprinkler systems.

(4)  Section 5930r, tax credit for code improvements to commercial buildings.

(c)  All provisions of sections 5930n, 5930p, 5930q, or 5930r shall remain in effect for credits allocated prior to the effective date of this act, except that, for any credit allocated prior to the date of this act, if within five years after the date of this act no claim for that tax credit has been filed, that allocation shall be rescinded.  The downtown development board may extend the five-year period for filing the initial claim for up to an additional five years.

Sen. Virginia Lyons

Sen. Diane Snelling

Sen. Claire Ayer

Committee on the part of the Senate

Rep. Jim Masland

Rep. Joseph Krawczyk

Rep. Mary Peterson

Committee on the part of the House

Which was considered and adopted on the part of the House.

Report of Committee of Conference Adopted

S. 194

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon Senate bill, entitled

An act relating to sealing juvenile records relating to a delinquent act;

Respectfully reports that it has met and considered the same and recommended that the House recede from its proposal of amendment and that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

The general assembly finds that:

(1)  As stated in 33 V.S.A. § 5501, one of the primary purposes of Vermont’s current approach to the juvenile system of justice is “to remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior and to provide a program of treatment, training, and rehabilitation consistent with the protection of the public interest.”  This policy recognizes that children are not simply small adults and that they should be given special consideration by the courts due to their youth, immaturity, and amenability to rehabilitation.

(2)  Currently, applications for sealing are filed in less than five percent of delinquency adjudications.  The general assembly believes this is because children or adults who have a past adjudication of delinquency are often under the false impression that such records are completely sealed under our current system. 

(3)  This act establishes a system that favors the sealing of juvenile records if, after a period of time, the juvenile does not commit a serious crime or offense, while allowing a judge the discretion to deny the sealing if he or she believes the juvenile has not been rehabilitated.  The act shifts the burden from the child to the state to prove that the child’s records should not be used against the child in the future.  If the state presents strong evidence that the child has not been rehabilitated, the general assembly is confident that the court will wisely order that the record not be sealed.

Sec. 2.  33 V.S.A. § 5538 is amended to read:

§ 5538.  SEALING OF RECORDS

(a)(1)  On application of a child who has been adjudicated delinquent or in need of care or supervision, or on the court’s own motion, and after notice to all parties of record and hearing  In matters relating to a child who has been adjudicated delinquent on or after July 1, 1996, the court shall order the sealing of all files and records of the court applicable related to the proceeding if it two years have elapsed since the final discharge of the person unless, on motion of the state’s attorney, the court finds;:

(1)  Two years have elapsed since the final discharge of the person,

(2)  He (A)  the person has not been convicted of a felony or misdemeanor involving moral turpitude listed crime as defined in 13 V.S.A.

§ 5301 or adjudicated delinquent or in need of care or supervision of such an offense after such initial adjudication and prior to the hearing and no, or a proceeding is pending seeking such conviction or adjudication, and; or

(3)(B)  His rehabilitation of the person has not been attained to the satisfaction of the court. 

(2)  At least 60 days prior to the date upon which a person is eligible to have his or her delinquency record automatically sealed pursuant to subdivision (1) of this subsection, the court shall provide such person’s name and other identifying information to the state’s attorney in the county in which the person was adjudicated delinquent.  The state’s attorney may object and a hearing may be held to address the state’s attorney’s objection.

(3)  The order to seal shall include all the files and records relating to the matter in accordance with subsection (d) of this section; however, the court may limit the order to the court files and records only upon good cause shown by the state’s attorney.

(4)  The process of sealing files and records under this subsection for a child who was adjudicated delinquent on or after July 1, 1996, but before July 1, 2001 shall be completed by January 1, 2010.  The process of sealing files and records under this subsection for a child who was adjudicated delinquent on or after July 1, 2001 but before July 1, 2004 shall be completed by January 1, 2008.

(b)  In matters relating to a child who has been adjudicated delinquent prior to July 1, 1996, on application of the child or on the court’s own motion and after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds:

(1)  the person has not been convicted of a listed crime or adjudicated delinquent for such an offense after such initial adjudication, and no new proceeding is pending seeking such conviction or adjudication; and

(2)  the person’s rehabilitation has been attained to the satisfaction of the court.  

(c)  On application of a person who, while a child, was found to be in need of care or supervision or, on the court’s own motion, after notice to all parties of record and hearing, the court may order the sealing of all files and records related to the proceeding if it finds:

(1)  the person has reached the age of majority; and

(2)  sealing the person’s record is in the interest of justice.

(d)  The application or motion and the order may Except as provided in subsection (a)(3) and (h) of this section or otherwise provided, orders issued in accordance with this section shall include the files and records specified in sections 5536 and 5537 of this title of the court, law enforcement, prosecution, and the department for children and families related to the specific court proceeding that is the subject of the sealing.

(b)  Notice of a hearing held under this section shall in any event be given to:

(1)  The state’s attorney having jurisdiction,

(2)  If the final discharge was from an institution or from parole, the authority granting the discharge, and

(3)  If the files and records specified in sections 5536 and 5537 of this title are included in the application or motion, the law enforcement officers or department having custody of the files and records.

(c)(e)(1)  Upon Except as provided in subdivision (2) of this subsection, upon the entry of an order sealing such files and records under this section, the proceedings in the matter under this act shall be considered never to have occurred, all general index references thereto shall be deleted, and the person, the court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter.  Copies of the order shall be sent to each agency or official named therein.

(2)(A)  Any court, agency, or department that seals a record pursuant to an order under this section may keep a special index of files and records that have been sealed.  This index shall only list the name and date of birth of the subject of the sealed files and records and the docket number of the proceeding which was the subject of the sealing.  The special index shall be confidential and may be accessed only for purposes for which a department or agency may request to unseal a file or record pursuant to subsection (f) of this section. 

(B)  Access to the special index shall be restricted to the following persons:

(i)  the clerk of the district or family court;

(ii)  the commissioner and general counsel of any administrative department;

(iii)  the secretary and general counsel of any administrative agency;

(iv)  a sheriff;

(v)  a police chief;

(vi)  a state’s attorney;

(vii)  the attorney general;

(viii)  the director of the Vermont crime information center; and

(ix)  a designated clerical staff person in each office identified in subdivisions (i)–(viii) of this subdivision (B) who is necessary for establishing and maintaining the indices for persons who are permitted access.

(C)  Persons authorized to access an index pursuant to subdivision (B) of this subdivision (2) may access only the index of their own department or agency.

(d)(f)(1)  Inspection Except as provided in subdivisions (2), (3), and (4) of this subsection, inspection of the files and records included in the order may thereafter be permitted by the court only upon petition by the person who is the subject of such records, and only to those persons named therein.

(2)  Upon a confidential motion of any department or agency that was required to seal files and records pursuant to subsection (d) of this section, the court may permit the department or agency to inspect its own files and records if it finds circumstances in which the department or agency requires access to such files and records to respond to a legal action, a legal claim, or an administrative action filed against the department or agency in relation to incidents or persons that are the subject of such files and records.  The files and records shall be unsealed only for the minimum time necessary to address the circumstances enumerated in this subdivision, at which time the records and files shall be resealed.

(3)  Upon a confidential motion of the department for children and families, the court may permit the department to inspect its own files and records if the court finds extraordinary circumstances in which the state’s interest in the protection of a child clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the state’s interest.  The motion may be heard ex parte if the court, based upon an affidavit, finds a compelling purpose exists to deny notice to the subject of the files and records when considering whether to grant the order.  If the order to unseal is issued ex parte, the court shall send notice of the unsealing to the subject of the files and records within 20 days unless the department provides a compelling reason why the subject of the files and records should not receive notice.  The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances at which time the files and records shall be resealed.

(4)  Upon a confidential motion of a law enforcement officer or prosecuting attorney, the court may permit the department or agency to inspect its own files and records if the court finds extraordinary circumstances in which the state’s interest in public safety clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the state’s interest.  The motion may be heard ex parte if the court, based upon an affidavit, finds a compelling public safety purpose exists to deny notice to the subject of the files and records when considering whether to grant the order.  If the order to unseal is issued ex parte, the court shall send notice of the unsealing to the subject of the files and records within 20 days unless the law enforcement officer or prosecuting attorney provides a compelling public safety reason why the subject of the files and records should not receive notice.   The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances at which time the files and records shall be resealed. 

(5)  The order unsealing a record must state whether the record is unsealed entirely or in part and the duration of the unsealing.  If the court's order unseals only part of the record or unseals the record only as to certain persons, the order must specify the particular records that are unsealed or the particular persons who may have access to the record, or both. 

(e)(g)  On application of a person who has pleaded guilty to or has been convicted of the commission of a crime committed under the laws of this state prior to attaining the age of majority, or on the motion of the court having jurisdiction over such a person, the files and records may be sealed after proceedings in conformity with and subject to the limitations of subsections (a), (b), (c) and (d) of this section after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds:

(1)  two years have elapsed since the final discharge of the person;

(2)  the person has not been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent for such an offense after the initial conviction and no new proceeding is pending seeking such conviction or adjudication; and

(3)  the person’s rehabilitation has been attained to the satisfaction of the court.  

(h)(1)  In matters relating to a person who was charged with a criminal offense on or after July 1, 2006 and prior to the person attaining the age of majority, the files and records of the court applicable to the proceeding shall be sealed immediately if the case is dismissed.

(2)  In matters relating to a person who was charged with a criminal offense prior to July 1, 2006 and prior to the person attaining the age of majority, the person may apply to seal the files and records of the court applicable to the proceeding.  The court shall order the sealing, provided that two years have elapsed since the dismissal of the charge.

(i)  Upon receipt of a court order to seal a record relating to an offense for which there is an identifiable victim, a state’s attorney shall record the name and date of birth of the victim, the offense, and the date of the offense.  The name and any identifying information regarding the defendant shall not be recorded.  Victim information retained by a state’s attorney pursuant to this subsection shall be available only to victims’ advocates, the victims’ compensation program, and the victim and shall otherwise be confidential.

(j)  For purposes of this section, to “seal” a file or record means to physically and electronically segregate the record in a manner that ensures confidentiality of the record and limits access only to those persons who are authorized by law or court order to view the record.  A “sealed” file or record is retained and shall not be destroyed unless a court issues an order to expunge the record.

(k)  The court shall provide assistance to persons who seek to file an application for sealing under this section.

(l)  Any entities subject to sealing orders pursuant to this section shall establish policies for implementing this section and shall provide a copy of such policies to the house and senate committees on judiciary no later than January 15, 2007.  State’s attorneys, sheriffs, municipal police, and the judiciary are encouraged to adopt a consistent policy that may apply to each of their independent offices and may submit one policy to the general assembly.

Sec. 3.  13 V.S.A. § 7041(d) is amended to read:

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

Sec. 4.  3 V.S.A. § 163(e) is amended to read:

§ 163.  JUVENILE COURT DIVERSION PROJECT

* * *

(e)  Within 30 days of the two-year anniversary of a successful completion of juvenile diversion, the court shall provide notice to all parties of record of the court’s intention to order the sealing of all court files and records, law enforcement records other than entries in the juvenile court diversion project’s centralized filing system, fingerprints, and photographs applicable to a juvenile court diversion proceeding.  The court shall give the state’s attorney an opportunity for a hearing to contest the sealing of records.  The court shall seal the records if it unless, upon motion, the court finds:

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

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

(3)(2)  rehabilitation of the participant has not been attained to the satisfaction of the court.

Sec. 5.  33 V.S.A. § 5514 is amended to read:

§ 5514.  DETENTION; TEMPORARY CARE PENDING HEARING

(a)  A child taken into custody under section 5510 of this title and not immediately released to his the child’s parents, guardian or custodian, or delivered to a designated shelter, shall be by order of the court provided temporary shelter care or detention prior to a detention hearing on a petition held under this chapter or a hearing before a probate or other court upon a transfer thereto under section 5529(b) of this title in one or more of the following places:

(1)  The home of his the child’s parents, guardian, custodian, or other suitable person designated by the court, upon their undertaking to bring the child before the court at the detention hearing,

(2)  A licensed foster home or a home approved by the court,.

(3)  A facility operated by a licensed child caring agency,.

(4)  A detention home or center for delinquent children which is under the direction or supervision of or approved by the department of social and rehabilitation services, or

(5)  In the event that the child has been or will be or may be transferred under section subsection 5529(b) of this title, in any other suitable place designated by the court; or shall transfer legal custody of the child to the commissioner of social and rehabilitation services, if the court believes the child may be found delinquent, if the court believes the child may be found in need of care or supervision, pending such detention or other hearing.

(b)  If the court concludes that a child taken into custody under section 5510 of this title may be found delinquent or in need of care or supervision, the court may transfer legal custody of the child to the commissioner pending a detention hearing.  Unless ordered otherwise at or after the detention hearing, the commissioner shall have sole authority to place the child in a family home, a treatment, rehabilitative, detention, or educational institution or facility, subject to the provisions of section 5535 of this title.

(c)  If a parent, guardian or custodian fails, when requested to bring a child before the court as provided in subdivision (1) of subsection (a) of this section, the court may issue its warrant directing that the child be taken into custody and brought before the court.

(c)(d)  A child shall not be detained under this section in a jail or other facility intended or used for the detention of adults, unless the child is alleged to have committed a crime punishable by death or life imprisonment, and it appears to the satisfaction of the court that public safety and protection reasonably require such detention.

(d)(e)  The official in charge of a jail or other facility intended or used for the detention of adult offenders or persons charged with crime shall inform the court immediately when a minor, who is or appears to be under the age of 18 years, is received at the facility other than pursuant to subsection (c)(d) of this section or section 5530 of this title, and shall deliver the minor to the court upon request of the court, or transfer the minor to the detention facility designated by the court by order.

Sec. 6.  33 V.S.A. § 5515(d) is amended to read:

(d)  If a petition with respect to the child has been filed with the court under section 5517 of this title during or prior to the detention hearing, and in the event the court finds, upon the detention hearing, that the continued detention of the child would be to his the child’s best interests and welfare or that public safety and protection reasonably require such detention, he it shall forthwith order the continued detention or custody of the child pending the full hearing held under section 5519 of this title.  Upon a finding at the detention hearing that no other suitable placement is available and the child presents a risk of injury to him or herself, to others or to property, the court may order that the child be placed in a secure facility used for the detention of delinquent children until the commissioner determines that a suitable placement is available for the child.  Alternatively, the court may order that the child be placed at a secure facility used for the detention of delinquent children for up to seven days.  Any order for placement at a secure facility shall expire at the end of the seventh day following its issuance unless, after hearing, the court extends the order for a time period not to exceed seven days. 

Sec. 7.  33 V.S.A. § 5515(f)(4) is amended to read:

(f)  At the conclusion of the detention hearing, the court shall make written findings on whether reasonable efforts were made to prevent unnecessary removal of the child from the home.  "Reasonable efforts" means the exercise of due diligence by the department for children and families to use appropriate and available services to prevent unnecessary removal of the child from the home.  When making the reasonable efforts determination, the court may find that no services were appropriate or reasonable considering the circumstances. If the court makes written findings that aggravated circumstances are present, the court may make, but shall not be required to make, written findings as to whether reasonable efforts were made to prevent removal of the child from the home.  Aggravated circumstances may include:

* * *

(4)  the parental rights of the parent with respect to a sibling have been terminated involuntarily.

Sec. 8.  STUDY

(a)  A committee shall be established for the purpose of studying and recommending legislative changes to chapter 55 of Title 33, relating to juvenile delinquency and children in need of care or supervision proceedings. 

(b)  The committee shall include:

(1)  the administrative judge or his or her designee;

(2)  the juvenile defender;

(3)  the executive director of the department of state’s attorneys and sheriffs or his or her designee;

(4)  the commissioner of the department for children and families or his or her designee;

(5)  the director of juvenile justice;

(6)  the attorney general or his or her designee;

(7)  an attorney specializing in representing children in juvenile proceedings appointed by the Vermont bar association;

(8)  an attorney specializing in representing parents in juvenile proceedings appointed by the Vermont bar association;

(9)  the commissioner of public safety or his or her designee; and

(10)  a representative from the Vermont center for crime victim services.

(c)  The judge shall convene the meetings and chair the committee.  Administrative support shall be provided jointly by the court administrator’s office and the department for children and families.

(d)  The committee shall report its findings and recommendations to the house and senate committees on judiciary by January 15, 2007, after which the committee shall cease to exist.

Sec. 9.  14 V.S.A. § 3061 is amended to read:

§ 3061.  DEFINITIONS

The words and phrases used in this subchapter shall be defined as follows:

* * *

(4)  "Mentally retarded" “Developmentally disabled” means significantly subaverage intellectual functioning which exists concurrently with deficits in adaptive behavior;

* * *

(11)  "Respondent" means a person who is the subject of a petition filed pursuant to section 3063 of this title or a ward who is the subject of any subsequent petition, motion or action filed pursuant to this subchapter.

(12)  “Party” shall have the same meaning as defined by Rule 17(a)(3) and (b) of the Vermont Rules of Probate Procedure.

(13)  “Ward” means a person under a guardianship order.

Sec. 10.  14 V.S.A. § 3065 is amended to read:

§ 3065.  COUNSEL

(a)(1)  Counsel shall be appointed for the respondent in initial proceedings relating to an involuntary guardianship up to and including the appointment of a guardian under section 3069 or 3070 of this title or dismissal of the petition under section 3068 of this title. Counsel shall have the right to withdraw after a guardian is appointed or after dismissal.  The respondent shall have the right to be represented by counsel of his or her own choosing at any stage of a guardianship proceeding.  Unless a respondent is already represented, the court:

(A)  shall appoint counsel for the respondent when an initial petition for guardianship is filed;

(B)  shall appoint counsel for the respondent in any subsequent proceeding if the respondent or a party requests appointment in writing; and

(C)  may appoint counsel for the respondent on the court’s initiative in any subsequent proceeding.

(2)  Appointed counsel shall have the right to withdraw upon conclusion of the proceeding for which he or she has been appointed.

(b)  Counsel shall receive a copy of the petition upon appointment and copies of all other documents upon filing with the court.  Counsel shall consult with the respondent prior to the any hearing and, to the maximum extent possible, explain to the respondent the meaning of the proceedings and of all relevant documents.  Counsel for the respondent shall act as an advocate for the respondent and shall not substitute counsel’s own judgment for that of the respondent on the subject of what may be in the best interest of the respondent.  Counsel’s role shall be distinct from that of a guardian ad litem if one is appointed.  At a minimum, counsel shall endeavor to ensure that:

(1)  the wishes of the respondent, including those contained in an advance directive, as to the matter before the court are presented to the court;

(2)  there is no less restrictive alternative to guardianship or to the matter before the court;

(3)  proper due process procedure is followed;

(4)  no substantial rights of the respondent are waived, except with the respondent’s consent and the court’s approval, provided that the evaluation and report required under section 3067 of this title and the hearing required under section 3068 of this title may not be waived;

(5)  the petitioner proves allegations in the petition by clear and convincing evidence in an initial proceeding, and applicable legal standards are met in subsequent proceedings;

(6)  the proposed guardian is a qualified person to serve or to continue to serve, consistent with section 3072 of this title; and

(7)  if a guardian is appointed, the initial order or any subsequent order is least restrictive of the ward's personal freedom consistent with the need for supervision.

     (c)  Respondent's counsel shall be compensated from the respondent's estate unless the respondent is found indigent in accordance with Rule 3.1 of the Rules of Civil Procedure.  For indigent respondents, the court shall maintain a list of pro bono counsel from the private bar to be used before appointing nonprofit legal services organizations to serve as counsel.

Sec. 11.  14 V.S.A. § 3068a is added to read:

§ 3068a.  RIGHTS OF A WARD

A ward retains the same legal and civil rights guaranteed to all Vermont residents under the Vermont and United States constitutions and all the laws and regulations of Vermont and the United States.  These rights include:

(1)  The right to participate in decisions made by the guardian and to have personal preferences followed unless:

(A)  the preference is unreasonable and would result in actual harm; or

(B)  the ward does not have a basic understanding of the benefits and consequences of his or her chosen preference.

(2)  The right, without interference from anyone, to retain an attorney and to communicate freely with counsel, the court, ombudsmen, advocates of his or her choosing, and other persons authorized by law to act as an advocate for the ward. 

Sec. 12.  14 V.S.A. § 3069(b)(5) is amended to read:

(5)  to consent to surgery or other medical procedures, subject to the provisions of section 3075 of this title, subsection 9711(g) of Title 18, and any constitutional right of the ward to refuse treatment;

Sec. 13.  14 V.S.A. § 3073 is amended to read:

§ 3073.  CHANGE OF RESIDENTIAL PLACEMENT

(a)(1)  When a guardian who has been granted the power to choose or change the residence of the ward pursuant to section subdivision 3069(b)(1) of this title wishes to admit the ward to a nursing home or change the residential placement of the ward from a private home to a boarding home, nursing home, residential care home, assisted living residence, group home, or other similar facility, the guardian must first file a motion for permission to do so. 

(2)  For any other change of residence sought by a guardian who has been granted the power to choose or change the residence of the ward pursuant to subdivision 3069(b)(1) of this title, the guardian shall give notice to all parties and to such other persons as the court directs as soon as practicable prior to the change of placement.

(b)(1)  In an emergency, the a guardian who has been granted the power to choose or change the residence of the ward pursuant to subdivision 3069(b)(1) of this title may change the residential placement of the ward from a private home to a boarding home, nursing home, residential care home, group home or other similar facility without petitioning the probate court for prior permission without petitioning the court for prior permission or without giving prior notice to parties.  Immediately after the any emergency change in residential placement for which prior permission under subsection (a) of this section would be required in the absence of an emergency, the guardian shall file a motion for permission to continue the placement.  A hearing on the change in residential placement

(2)  Immediately after any emergency change of placement for which prior permission under subsection (a) of this section is not required, the guardian shall give notice of the change of placement to all parties and to such other persons as the court directs.

(3)  Any party may request a hearing on a change in residential placement.  The hearing shall be set for the earliest possible date and shall be given precedence over other probate matters.

(c)  In a hearing on a change of placement, the court shall consider:

(1)  the need for the change of placement;

(2)  the appropriateness of the new placement;

(3)  the wishes of the ward, if known; and

(4)  whether the guardian has considered alternatives.

Sec. 14.  STUDY; GUARDIANSHIP MONITORS

(a)  The general assembly finds:

(1)  Current law requires guardians to file annual reports with the court about the financial and personal status of the person in need of guardianship. Frequently, annual accountings and personal status reports either are not filed or are filed but contain incomplete or inaccurate information.

(2)  Currently, courts may not have the resources to monitor every guardianship and must rely on the information provided by the guardian in the annual report to identify problems that arise in the guardianship.  Mistakes, conflicts of interest, and abuses of power may go unnoticed unless the guardian or a person interested in the welfare of the ward brings it to the court’s attention.

(3)  Current law requires annual notices to wards of the right to petition to terminate or modify guardianships.  Even when annual notices are sent, wards may not be able to take steps on their own to bring issues to the attention of the court, even when real issues exist.

(4)  A system of comprehensive monitoring may help protect the rights and interests of persons under guardianship.

(b)  A committee is established to study the need for and feasibility of establishing a pilot guardianship monitor program in at least two probate court districts.

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

(1)  Two sitting probate judges appointed by the Vermont association of probate judges.  The association shall designate one of its appointees as the convening authority.

(2)  A member of the court administrator’s office.

(3)  A representative of the elder law committee of the Vermont bar association.

(4)  A representative of the disability law committee of the Vermont bar association.

(5)  A representative of Vermont Legal Aid, Inc.

(6)  Two representatives appointed by the secretary of the agency of human services, including a representative from the department of disabilities, aging, and independent living.

(7)  A representative of the community of Vermont elders.

(8)  A representative of Vermont protection and advocacy.

(9)  A representative of the Vermont coalition of disability rights.

(d)  The committee shall report its findings and recommendations to the house and senate committees on judiciary and the governor on or before January 15, 2007.  The report shall include a recommendation of whether a system of guardianship monitoring is needed and, if so, a complete description, analysis, and recommendations for the following:

(1)  The duties and responsibilities of the monitor.

(2)  The number of monitors needed to staff a pilot program.

(3)  The location and supervision of the monitor.

(4)  The relationship of the monitor to the probate judges and the court administrator’s office.

(5)  The average caseload of a monitor.

(6)  The cost of establishing a pilot guardianship monitor program and the cost of a statewide guardianship monitor program.

(7)  The probate court districts which will be included in a pilot program.

(8)  The method for measuring the outcome of a pilot program.

(9)  The duration of a pilot program.

Sec. 15.  STATUTORY REVISION

The office of legislative council shall revise subchapter 12 of chapter 111 of Title 14 by substituting the term “developmentally disabled” for the term “mentally retarded” wherever it appears.

Sec. 16.  EFFECTIVE DATE

Secs. 8 and 14 of this act shall take effect upon passage, and the remainder of the act shall take effect September 1, 2006.

and that upon passage, the title be amended to read “An Act Relating to the Sealing of Juvenile Records, Care of Children in the Custody of the State, and Rights of Persons Under a Guardianship Order”

Michael Kainen

William Lippert

Willem Jewett

Committee on the part of the House

Richard Sears

Wendy Wilton

James Leddy

Committee on the part of the Senate

Which was considered and adopted on the part of the House.

Report of Committee of Conference Adopted

H. 373

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon House bill, entitled

An act relating to stalking;

Respectfully reports that it has met and considered the same and recommend that the Senate recede from its proposal of amendment and that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  12 V.S.A. chapter 178 is added to read:

Chapter 178.  Orders Against Stalking

or Sexual Assault

§ 5131.  DEFINITIONS

As used in this subchapter:

(1)  “Course of conduct” means a pattern of conduct composed of two or more acts over a period of time, however short, evidencing a continuity of purpose.  Constitutionally protected activity is not included within the meaning of “course of conduct.”

(2)  “Following” means maintaining over a period of time a visual or physical proximity to another person in such manner as would cause a reasonable person to have fear of unlawful sexual conduct, unlawful restraint, bodily injury, or death.

(3)  “Lying in wait” means hiding or being concealed for the purpose of attacking or harming another person.

(4)  “Nonphysical contact” includes telephone calls, mail, e‑mail or other electronic communication, fax, and written notes. 

(5)  “Sexually assaulted the plaintiff” means that the defendant engaged in conduct that meets elements of lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602, sexual assault as defined in 13 V.S.A. § 3252, or aggravated sexual assault as defined in 13 V.S.A. § 3253, and that the plaintiff was the victim of the offense.

(6)  “Stalk” means to engage in a course of conduct which consists of following or lying in wait for a person, or threatening behavior directed at a specific person or a member of the person’s family, and:

(A)  serves no legitimate purpose; and

(B)  would cause a reasonable person to fear for his or her safety or would cause a reasonable person substantial emotional distress.

(7)  “Stay away” means to refrain from knowingly:

(A)  initiating or maintaining a physical presence near the plaintiff;

(B)  engaging in nonphysical contact with the plaintiff directly or indirectly;

(C)  engaging in nonphysical contact with the plaintiff through third parties who may or may not know of the order.

(8)  “Threatening behavior” means acts which would cause a reasonable person to fear unlawful sexual conduct, unlawful restraint, bodily injury, or death, including verbal threats, written, telephonic, or other electronically communicated threats, vandalism, or physical contact without consent.

§ 5132.  JURISDICTION AND VENUE

(a)  The superior court shall have jurisdiction over proceedings under this chapter.

(b)  Proceedings under this chapter may be commenced in the county in which the plaintiff resides.  If the plaintiff has left his or her residence to avoid being stalked or sexually assaulted, the plaintiff shall have the option to bring an action in the county of the previous residence or the county of the new residence.

§ 5133.  REQUESTS FOR AN ORDER AGAINST STALKING OR

              SEXUAL ASSAULT

(a)  A person, other than a family or household member as defined in 15 V.S.A. § 1101(2), may seek an order against stalking or sexual assault on behalf of him or herself or his or her children by filing a complaint under this chapter.  The plaintiff shall submit an affidavit in support of the order.

(b)  Except as provided in section 5134 of this title, the court shall grant the order only after notice to the defendant and a hearing.  The plaintiff shall have the burden of proving by a preponderance of the evidence that the defendant stalked or sexually assaulted the plaintiff.

(c)  In a hearing under this chapter, neither opinion evidence of nor evidence of the reputation of the plaintiff’s sexual conduct shall be admitted.  Evidence of prior sexual conduct of the plaintiff shall not be admitted; provided, however, where it bears on the credibility of the plaintiff or it is material to a fact at issue and its probative value outweighs its private character, the court may admit:

(1)  Evidence of the plaintiff’s past sexual conduct with the defendant.

(2)  Evidence of specific instances of the plaintiff’s sexual conduct showing the source of origin of semen, pregnancy, or disease.

(3)  Evidence of specific instances of the plaintiff’s past false allegations of violations of chapter 59 or 72 of Title 13.

(d)(1)  If the court finds by a preponderance of evidence that the defendant has stalked or has been convicted of sexually assaulting the plaintiff, the court shall order the defendant to stay away from the plaintiff or the plaintiff’s children, or both, and may make any other such order it deems necessary to protect the plaintiff or the plaintiff’s children, or both.

(2)  If the court finds by a preponderance of evidence that the defendant has sexually assaulted the plaintiff and there is a danger of the defendant further harming the plaintiff, the court shall order the defendant to stay away from the plaintiff or the plaintiff’s children, or both, and may make any other such order it deems necessary to protect the plaintiff or the plaintiff’s children, or both.  The court may consider the defendant’s past conduct as relevant evidence of future harm.

(e)  Relief shall be granted for a fixed period, at the expiration of which time the court may extend any order, upon motion of the plaintiff, for such additional time as it deems necessary to protect the plaintiff or the plaintiff’s children, or both.  It is not necessary for the court to find that the defendant stalked or sexually assault the plaintiff during the pendency of the order to extend the terms of the order.  The court may modify its order at any subsequent time upon motion by either party and a showing of a substantial change in circumstance.

(f)  No filing fee shall be required.

(g)  Every order under this chapter shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge.

(h)  Form complaints and form orders for an “Order Against Stalking or Sexual Assault” shall be provided by the court administrator and shall be maintained by the clerks of the courts.

(i)  When findings are required under this section, the court shall make either written findings of fact or oral findings of fact on the record.

(j)  Every final order issued under this section shall bear the following language:  “VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.”

(k)  Affidavit forms required pursuant to this section shall bear the following language:  “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904.”

(l)  A finding by the court pursuant to this chapter that the defendant stalked or sexually assaulted the plaintiff shall not be admissible in any subsequent civil proceedings for the purpose of establishing liability.

§ 5134.  EMERGENCY RELIEF

(a)  In accordance with the Vermont Rules of Civil Procedure, a person other than a family or household member as defined in 15 V.S.A. § 1001(2) may file a complaint for a temporary order against stalking or sexual assault.  Such complaint shall be filed during regular court hours.  The plaintiff shall submit an affidavit in support of the order.  The court may issue a temporary order under this chapter ex parte, without notice to the defendant, upon motion and findings by the court that the defendant has stalked or sexually assaulted the plaintiff.  An order may be granted requiring the defendant to refrain from stalking or sexually assaulting the plaintiff and to refrain from interfering with the plaintiff’s personal liberty.

(b)  Every order issued under this section shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge.  Every order issued under this section shall state upon its face a date, time, and place that the defendant may appear to petition the court for modification or discharge of the order.  This opportunity to contest shall be scheduled as soon as reasonably possible, which in no event shall be more than 10 days from the date of issuance of the order.  At such hearings, the plaintiff shall have the burden of proving by a preponderance of the evidence that the defendant stalked or sexually assaulted the plaintiff.  If the court finds that the plaintiff has met his or her burden, it shall continue the order in effect and make such other orders as it deems necessary to protect the plaintiff or the plaintiff’s children, or both.

(c)  Form complaints and form orders shall be provided by the court administrator and shall be maintained by the clerks of the courts.

(d)  Every order issued under this chapter shall bear the following language:  “VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.”

(e)  Affidavit forms required pursuant to this section shall bear the following language:  “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904.”

§ 5135.  SERVICE

(a)  A complaint or ex parte temporary order or final order issued under this chapter shall be served in accordance with the Vermont Rules of Civil Procedure and may be served by any law enforcement officer.  Orders against stalking or sexual assault shall be served at the earliest possible time and shall take precedence over other summonses and orders, with the exception of abuse prevention orders issued pursuant to chapter 21 of Title 15.  Orders shall be served in a manner calculated to ensure the safety of the plaintiff.  Methods of service which include advance notification to the defendant shall not be used.  The person making service shall file a return of service with the court stating the date, time, and place that the order was delivered personally to the defendant.

(b)  If service of a notice of hearing issued under section 5133 or 5134 of this title cannot be made before the scheduled hearing, the court shall continue the hearing and extend the terms of the order upon request of the plaintiff for such additional time as it deems necessary to achieve service on the defendant.

§ 5136.  PROCEDURE

(a)  Except as otherwise specified in this chapter, proceedings commenced under this chapter shall be in accordance with the Vermont Rules of Civil Procedure and shall be in addition to any other available civil or criminal remedies.

(b)  The court administrator is authorized to contract with public or private agencies to assist plaintiffs to seek relief and to gain access to superior court.  Law enforcement agencies shall assist in carrying out the intent of this section.

(c)  The office of the court administrator shall ensure that the superior court and the district court have procedures in place so that the contents of orders and pendency of other proceedings can be known to both courts for cases in which an order against stalking or sexual assault proceeding is related to a criminal proceeding.

§ 5137.  FILING ORDERS WITH LAW ENFORCEMENT PERSONNEL;

              DEPARTMENT OF PUBLIC SAFETY PROTECTION ORDER

              DATABASE

(a)  Police departments, sheriff’s departments, and state police district offices shall establish procedures for filing notice against stalking or sexual assault orders issued under this chapter and for making their personnel aware of the existence and contents of such orders.

(b)  Any court in this state that issues a notice against stalking or sexual assault order under this chapter shall transmit a copy of the order to the department of public safety’s protection order database.

§ 5138.  ENFORCEMENT

(a)  Law enforcement officers are authorized to enforce orders issued under this chapter.  A foreign abuse prevention order as defined in 15 V.S.A. § 1101 shall be accorded full faith and credit throughout this state and shall be enforced as if it were an order of this state.  Law enforcement officers may rely upon a copy of any order issued under this chapter or any foreign abuse prevention order.  Enforcement may include, but is not limited to, making an arrest in accordance with the provisions of Rule 3 of the Vermont Rules of Criminal Procedure.

(b)  In addition to the provisions of subsection (a) of this section, violation of an order issued under this chapter may be prosecuted as a criminal contempt under Rule 42 of Vermont Rules of Criminal Procedure.  The prosecution for criminal contempt may be initiated by the state’s attorney in district or superior court in the unit or county in which the violation occurred.  The maximum penalty which may be imposed under this subsection shall be a fine of $1,000.00 or imprisonment for six months, or both.  A sentence of imprisonment upon conviction for criminal contempt may be stayed in the discretion of the court, pending the expiration of the time allowed for filing notice of appeal or pending appeal if any appeal is taken.  After two years have passed from conviction under this subsection, the court may on motion of the defendant expunge the record of the criminal proceeding and conviction unless the defendant has been convicted of a felony or misdemeanor involving moral turpitude or a violation of a protection order after such initial adjudication.

Sec. 2.  13 V.S.A. § 1030 is amended to read:

§ 1030.  VIOLATION OF ABUSE PREVENTION ORDER OR AN ORDER

               AGAINST STALKING OR SEXUAL ASSAULT

(a)  A person who commits an act prohibited by a court or who fails to perform an act ordered by a court in violation of an abuse prevention order issued under chapter 21 of Title 15 or chapter 69 of Title 33, or an order against stalking or sexual assault issued under chapter 178 of Title 12, after the person has been served notice of the contents of the order as provided in those chapters; or a foreign abuse prevention order issued by a court in any other state, federally recognized Indian tribe, territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia; shall be imprisoned not more than one year or fined not more than $5,000.00, or both.

(b)  A person who is convicted of a second or subsequent offense under this section shall be imprisoned not more than three years or fined not more than $25,000.00, or both.

(c)  Upon conviction under this section for a violation of an order issued under chapter 21 of Title 15, the court shall, unless the circumstances indicate that it is not appropriate or not available, order the defendant to participate in domestic abuse counseling or a domestic abuse program approved by the department of corrections.  The defendant may at any time request the court to approve an alternative program.  The defendant shall pay all or part of the costs of the counseling or program unless the court finds that the defendant is unable to do so.

(d)  Upon conviction for a violation of an order issued under chapter 178 of Title 12, the court may order the defendant to participate in mental health counseling or sex offender treatment approved by the department of corrections.  The defendant shall pay all or part of the costs of the counseling unless the court finds that the defendant is unable to do so.

(d)(e)  Nothing in this section shall be construed to diminish the inherent authority of the courts to enforce their lawful orders through contempt proceedings.

(e)(f)  Prosecution for violation of an abuse prevention order or an order against stalking or sexual assault shall not bar prosecution for any other crime, including any crime that may have been committed at the time of the violation of the abuse prevention order.

Sec. 3.  15 V.S.A. § 1101 is amended to read:

§ 1101.  DEFINITIONS

The following words as used in this chapter shall have the following meanings:

* * *

(1)  “Abuse” means the occurrence of one or more of the following acts between family or household members:

(A)  attempting Attempting to cause or causing physical harm;.

(B)  placing Placing another in fear of imminent serious physical harm;.

(C)  abuse Abuse to children as defined in subchapter 2 of chapter 49 of Title 33.

(D)  Stalking as defined in 12 V.S.A. § 5131(6).

(E)  Sexual assault as defined in 12 V.S.A. § 5131(5).

* * *

(3)  A “foreign abuse prevention order” means any protection order issued by the court of any other state that contains provisions similar to relief provisions authorized under this chapter, the Vermont Family Court Rules or, chapter 69 of Title 33, or chapter 178 of Title 12.

* * *

Sec. 4.  15 V.S.A. § 1103 is amended to read:

§ 1103.  REQUESTS FOR RELIEF

(a)  Any family or household member may seek relief from abuse by another family or household member on behalf of him or herself or his or her children by filing a complaint under this chapter.  The plaintiff shall submit an affidavit in support of the order.

* * *

(c)  If the court finds that the defendant has abused the plaintiff and that there is a danger of further abuse, the court shall make such orders as it deems necessary to protect the plaintiff, the children, or both, which may include the following:

* * *

(6)  if the court finds that the defendant has a duty to support the child or children, a temporary order of child support pursuant to chapter 5 of this title, for a period not to exceed three months.  A support order granted under this section may be extended if the relief from abuse proceeding is consolidated with an action for legal separation, divorce, or parentage;

(7)  an order concerning the possession, care and control of any animal owned, possessed, leased, kept, or held as a pet by either party or a minor child residing in the household. 

(d)  In a hearing under this chapter, neither opinion evidence of nor evidence of the reputation of the plaintiff’s sexual conduct shall be admitted.  Evidence of prior sexual conduct of the plaintiff shall not be admitted; provided, however, where it bears on the credibility of the plaintiff or it is material to a fact at issue and its probative value outweighs its private character, the court may admit:

(1)  Evidence of the plaintiff’s past sexual conduct with the defendant.

(2)  Evidence of specific instances of the plaintiff’s sexual conduct showing the source of origin of semen, pregnancy, or disease.

(3)  Evidence of specific instances of the plaintiff’s past false allegations of violations of chapter 59 or 72 of Title 13.

(e)  Relief shall be granted for a fixed period, at the expiration of which time the court may extend any order, upon motion of the plaintiff, for such additional time as it deems necessary to protect the plaintiff, the children, or both, from abuse.  It is not necessary for the court to find that abuse has occurred during the pendency of the order to extend the terms of the order.  The court may modify its order at any subsequent time upon motion by either party and a showing of a substantial change in circumstance.

(e)(f)  No filing fee shall be required.

(f)(g)  Every order under this chapter shall contain the name of the court, the names of the parties, the date of the petition, the date and time of the order, and shall be signed by the judge.

(g)(h)  Form complaints and form orders shall be provided by the court administrator and shall be maintained by the clerks of the courts.

(h)(i)  When findings are required under this section, the court shall make either written findings of fact or oral findings of fact on the record.

(i)(j)  Every final order issued under this section shall bear the following language:  “VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.”

(k)  Affidavit forms required pursuant to this section shall bear the following language:  “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904.”

Sec. 5.  15 V.S.A. § 1104 is amended to read:

§ 1104.  Emergency relief

(a)  In accordance with the rules of civil procedure, temporary orders under this chapter may be issued ex parte, without notice to defendant, upon motion and findings by the court that defendant has abused plaintiff, his or her children, or both.  The plaintiff shall submit an affidavit in support of the order. Relief under this section shall be limited as follows:

(1)  upon a finding that there is an immediate danger of further abuse, an order may be granted requiring the defendant:

(A)  to refrain from abusing the plaintiff, his or her children, or, both, or from cruelly treating as defined in 13 V.S.A. § 352 or 352a or killing any animal owned, possessed, leased, kept, or held as a pet by either party or a minor child residing in the household; and

* * *

(e)  Affidavit forms required pursuant to this section shall bear the following language:  “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904.”

Sec. 6.  15 V.S.A. § 1105 is amended to read:

§ 1105.  SERVICE

(a)  A complaint or ex parte temporary order or final order issued under this chapter shall be served in accordance with the rules of civil procedure and may be served by any sheriff, deputy sheriff, or any municipal or state police law enforcement officer.  Abuse orders shall be served at the earliest possible time and shall take precedence over other summonses and orders.  Orders shall be served in a manner calculated to insure the safety of the plaintiff.  Methods of service which include advance notification to the defendant shall not be used. The person making service shall file a return of service with the court stating the date, time and place at which the order was delivered personally to the defendant.

* * *

Sec. 7.  15 V.S.A. § 1107 is amended to read:

§ 1107.  FILING ORDERS WITH LAW ENFORCEMENT PERSONNEL;

              DEPARTMENT OF PUBLIC SAFETY RELIEF FROM ABUSE

              PROTECTION ORDER DATABASE

(a)  Police departments, sheriff’s departments and state police district offices shall establish procedures for filing abuse prevention orders issued under this chapter, chapter 69 of Title 33, chapter 178 of Title 12, and foreign abuse prevention orders and for making their personnel aware of the existence and contents of such orders.

(b)  Any court in this state that issues an abuse prevention order under section 1104 or 1103 of this chapter, or that files a foreign abuse prevention order in accordance with subsection 1108(d) of this chapter, shall transmit a copy of the order to the department of public safety relief from abuse protection order database.

Sec. 8.  33 V.S.A. § 6939 is amended to read:

§ 6939.  FILING ORDERS WITH LAW ENFORCEMENT PERSONNEL;

              DEPARTMENT OF PUBLIC SAFETY PROTECTION ORDER

              DATABASE

(a)  Police departments, sheriff’s departments and state police district offices shall establish procedures for filing orders issued under this subchapter and for making personnel aware of the existence and contents of such orders.

(b)  Any court in this state that issues an order under this subchapter shall transmit a copy of the order to the department of public safety protective order database.

Sec. 9.  REPORT FROM COURT ADMINISTRATOR

The court administrator shall report to the senate and house committees on judiciary on or before January 15, 2009 on the number of orders issued pursuant to this act and the implementation and administration of the provisions of the act concerning orders against stalking and sexual assault.

Sec. 10.  13 V.S.A. § 7554(a)(3) is amended to read:

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

Sec. 11.  STATEMENT OF LEGISLATIVE INTENT

It is not the intent of the general assembly that Sec. 10 of this act restrict attorneys who are representing criminal defendants from contacting witnesses or the alleged victim in cases for which no contact orders have been issued. 

Sec. 12.  STUDY

(a)  A study committee is hereby established for the purpose of reviewing and addressing the rights of victims under current law to facilitate better enforcement of such rights and to consider specially the following issues:

(1)  scheduling and continuances of court hearings as they relate to victims;

(2)  the victim’s input with plea agreements and sentencing recommendations;

(3)  victim notification by the department of corrections and the parole board; and

(4)  the role of the victim at parole board hearings.

(b)  The committee shall consist of the following 15 members:

(1)  the executive director of the Vermont center for crime victim services or his or her designee;

(2)  the coordinator of the network against domestic and sexual violence or his or her designee;

(3)  two victims/survivors of crime who are members of the Vermont victim/survivor of crime council;

(4)  a representative of the prisoner’s rights office;

(5)  a representative of the Vermont chapter of the American Civil Liberties Union;

(6)  a defense attorney appointed by the Vermont bar association;

(7)  the attorney general or his or her designee;

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

(9)  the court administrator or his or her designee;

(10)  the defender general or his or her designee;

(11)  the commissioner of public safety or his or her designee;

(12)  the commissioner of the department of corrections or his or her designee;

(13)  the chair of the Vermont parole board; and

(14)  an attorney appointed by the Vermont bar association.

(c)  In its deliberations, the committee shall consult with the governor’s criminal justice cabinet, as needed.

(d)  The committee shall have the assistance and cooperation of all state and local agencies and departments.  The center for crime victim services shall provide professional and administrative support for the committee.

(e)  The at-large members and victims/survivors of crime shall be entitled to per diem compensation and reimbursement for expenses in the same manner as legislative members, provided they are not state employees, through the center for crime victim services.

(f)  The committee shall present its findings and recommendations, including proposals for legislative action, to the general assembly no later than January 15, 2007.

Sec. 13.  EFFECTIVE DATE

Secs. 1–8 of this act shall take effect October 1, 2006.

and, that upon passage, the title be amended to read “An Act Relating to Orders Against Stalking or Sexual Assault”

Michael Kainen

Avis Gervais

Allison Clarkson

Committee on the part of the House

John Campbell

Wendy Wilton

James Leddy

Committee on the part of the Senate

Which was considered and adopted on the part of the House.

Bills Messaged to Senate Forthwith

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

S. 142

Senate bill, entitled

An act relating to creation of designated growth centers and downtown tax credit program;

S. 194

Senate bill, entitled

An act relating to sealing juvenile records relating to a delinquent act;

Message from Governor

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

Madam Speaker:

I am directed by the Governor to inform the House that on the sixth day of May, 2006, he approved and signed bills originating in the House of the following titles:

H. 791    An act relating to allocation of funds from the solid waste                                                management assistance account of the waste management                                                       assistance fund to the environmental contingency fund;

H. 717    An act relating to direct sellers and unemployment insurance.

Recess

At eleven o’clock and thirty-five minutes in the forenoon, the Speaker declared a recess until one o’clock in the afternoon.

At six o’clock and ten minutes in the evening, the Speaker called the House to order.

Message from the Senate No. 75

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

Madam Speaker:

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

H. 81.  An act relating to operation of a vessel used for towing persons on water skis.

And has passed the same in concurrence with proposal of amendment in the adoption of which the concurrence of the House is requested.

The Senate has considered a joint resolution originating in the House of the following title:

J.R.H. 79.  Joint resolution requesting the governor to include five-year fiscal projection in the FY 2008 state budget presentation.

And has adopted the same in concurrence.

The Senate has considered the reports of the Committees of Conference upon the disagreeing votes of the two Houses upon Senate bills of the following titles:

S. 142.  An act relating to creation of designated growth centers and downtown tax credit program.

S. 194.  An act relating to sealing juvenile records relating to a delinquent act.

S. 256.  An act relating to sexual exploitation of an inmate.

And has accepted and adopted the same on its part.

The Senate has considered the reports of the Committees of Conference upon the disagreeing votes of the two Houses upon House bills of the following titles:

H. 97.  An act relating to operating with a suspended license and failing to pay penalties for traffic offenses.

H. 856  An act relating to enhancing sentences for and preventing risks posed by dangerous sexual offenders.

H. 859.  An act relating to the energy security and reliability act.

H. 880.  An act relating to education finance simplification.

And has accepted and adopted the same on its part.

The Governor has informed the Senate that on the sixth day of May, 2006, he approved and signed a bill originating in the Senate of the following title:

S. 103.  An act relating to lawsuits arising from exercise of right to freedom of speech or to petition government for redress of grievances.

Bill Read Second Time; Third Reading Ordered

S. 48

Rep. Sweaney of Windsor spoke for the committee on Government Operations.

Senate bill entitled

An act relating to election for statewide and national offices by the instant runoff voting method;

Having appeared on the Calendar one day for notice, was taken up and read the second time.

Pending the question, Shall the bill be read the third time? Rep. Partridge of Windham demanded the Yeas and Nays, which demand was sustained by the Constitutional number.  The Clerk proceeded to call the roll and the question, Shall the bill be read the third time? was decided in the affirmative.  Yeas, 75.  Nays, 65.

Those who voted in the affirmative are:


Ancel of Calais

Aswad of Burlington

Atkins of Winooski

Audette of S. Burlington

Barnard of Richmond

Bohi of Hartford

Botzow of Pownal

Brooks of Montpelier

Chen of Mendon

Clarkson of Woodstock

Copeland-Hanzas of Bradford

Cross of Winooski

Darrow of Dummerston

Deen of Westminster

Donovan of Burlington

Dostis of Waterbury

Dowland of Holland

Edwards of Brattleboro

Emmons of Springfield

Evans of Essex

Fisher of Lincoln

Frank of Underhill

French of Randolph

Grad of Moretown

Green of Berlin

Haas of Rochester

Head of S. Burlington

Heath of Westford

Hosford of Waitsfield

Howard of Rutland City

Hunt of Essex

Hutchinson of Randolph

Jerman of Essex

Jewett of Ripton

Johnson of South Hero

Keogh of Burlington

Kitzmiller of Montpelier

Klein of East Montpelier

Kupersmith of S. Burlington

Larson of Burlington

Leriche of Hardwick

Lippert of Hinesburg

Lorber of Burlington

Maier of Middlebury

Marek of Newfane

Martin of Wolcott

Masland of Thetford

McCullough of Williston

McLaughlin of Royalton

Milkey of Brattleboro

Miller of Shaftsbury

Minter of Waterbury

Nease of Johnson

Nitka of Ludlow

Nuovo of Middlebury

Obuchowski of Rockingham

Orr of Charlotte

Partridge of Windham

Pearson of Burlington

Pellett of Chester

Pillsbury of Brattleboro

Potter of Clarendon

Pugh of S. Burlington

Randall of Troy

Reese of Pomfret

Rodgers of Glover

Rusten of Halifax

Seibert of Norwich

Severance of Colchester

Shand of Weathersfield

Sharpe of Bristol

Smith of Morristown

Sweaney of Windsor

Tracy of Burlington

Zuckerman of Burlington


 

Those who voted in the negative are:


Acinapura of Brandon

Adams of Hartland

Allaire of Rutland City

Allard of St. Albans Town

Baker of West Rutland

Bartlett of Dover

Bostic of St. Johnsbury

Branagan of Georgia

Brennan of Colchester

Canfield of Fair Haven

Clark of St. Johnsbury

Clark of Vergennes

Condon of Colchester

Corcoran of Bennington

Dates of Shelburne

DePoy of Rutland City

Donaghy of Poultney

Dunsmore of Georgia

Errecart of Shelburne

Flory of Pittsford

Helm of Castleton

Houston of Ferrisburgh

Howrigan of Fairfield

Hube of Londonderry

Hudson of Lyndon

Johnson of Canaan

Kainen of Hartford

Kennedy of Chelsea

Kilmartin of Newport City

Koch of Barre Town

Komline of Dorset

Krawczyk of Bennington

Larocque of Barnet

Larrabee of Danville

LaVoie of Swanton

Lawrence of Lyndon

Livingston of Manchester

Louras of Rutland City

Malcolm of Pawlet

Marcotte of Coventry

Marron of Stowe

McAllister of Highgate

McFaun of Barre Town

Miller of Elmore

Molloy of Arlington

Mook of Bennington

Morley of Barton

Morrissey of Bennington

Myers of Essex

Niquette of Colchester

O'Donnell of Vernon

Otterman of Topsham

Parent of St. Albans City

Peaslee of Guildhall

Perry of Richford

Shaw of Derby

Smith of New Haven

Sunderland of Rutland Town

Turner of Milton

Valliere of Barre City

Westman of Cambridge

Winters of Swanton

Winters of Williamstown

Wright of Burlington

Young of Orwell


Those members absent with leave of the House and not voting are:


Donahue of Northfield

Endres of Milton

Fallar of Tinmouth

Gervais of Enosburg

Keenan of St. Albans City

Martin of Springfield

Monti of Barre City

Peterson of Williston

Trombley of Grand Isle


 

     Rep. Kilmartin of Newport City explained his vote as follows:

“Madam Speaker:

     I vote no.  I am tired of wasting precious tax dollars on a specious study for a patently unconstitutional proposition.  I will not add insult to injury to the integrity and intelligence of Vermont citizens.”

Senate Proposal of Amendment Concurred in

with a Further Amendment Thereto

H. 853

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

     An act relating to technical amendments to the Vermont statutes annotated related to restructuring the agency of human services;

First:  By striking out Sec. 50 in its entirety and inserting in lieu thereof a new Sec. 50 as follows:

Sec. 50.  18 V.S.A. § 9435(b) is amended to read:

(b)  Excluded from this subchapter are community mental health and developmental disability centers supervised by the commissioner commissioners of developmental and mental health services under chapters 177 and 207 of this title, provided the commissioner of developmental and mental health services makes a written approval of commissioners of health and disabilities, aging, and independent living approve the proposed health care project in writing.  The community mental health center shall submit a copy of the approval with a letter of intent to the commissioner.

Second:  By striking out Secs. 92, 93, 98a, 142 and 143 in their entirety

Third:  By striking out Sec. 97 in its entirety and inserting in lieu thereof a new Sec. 97 as follows:

Sec. 97.  33 V.S.A. § 1904 is amended to read:
§ 1904. DEFINITIONS

When used in this subchapter, unless otherwise indicated:

(1) "Agency" means the agency of human services.

(2) "Commissioner" means the commissioner of prevention, assistance, transition, and health access for children and families.

(3) "Department" means the department of prevention, assistance, transition, and health access for children families.

(4)  “Director” means the director of the office of Vermont health access.

(5)  "Insurer" means any insurance company, prepaid health care delivery plan, self-funded employee benefit plan, pension fund, retirement system or similar entity that is under an obligation to make payments for medical services as a result of an injury, illness or disease suffered by an individual.

(5)(6) "Legally liable representative" means a parent or person with an obligation of support to a recipient whether by contract, court order or statute.

(6)(7) "Provider" means any person that has entered into an agreement with the state to provide any medical service.

(7)(8) "Recipient" means any person or group of persons who receive Medicaid.

(8)(9) "Secretary" means the secretary of the agency of human services.

(9)(10) "Third party" means a person having an obligation to pay all or any portion of the medical expense incurred by a recipient at the time the medical service was provided. The obligation is not discharged by virtue of being undiscovered or undeveloped at the time a Medicaid claim is paid. Third parties include:

(A) Medicare.

(B) Health insurance, including health and accident but not that portion specifically designated for "income protection" which has been considered in determining recipient eligibility to participate in the Medicaid program.

(C) Medical coverage provided in conjunction with other benefit or compensation programs including military and veteran programs or workers' compensation.

(D) Liability for medical expenses as agreed to or ordered in negligence suits, support settlements or trust funds.

(10)(11) "Tobacco" means all products listed in 7 V.S.A. § 1001(4).

(11)(12) "Tobacco manufacturer" means any person engaged in the process of designing, fabricating, assembling, producing, constructing or otherwise preparing a product containing tobacco, including packaging or labeling of these products, with the intended purpose of selling the product for gain or profit. "Tobacco manufacturer" does not include persons whose activity is limited to growing natural leaf tobacco or to selling tobacco products at wholesale or retail to customers. "Tobacco manufacturer" also does not include any person who manufactures or produces firearms, dairy products, products containing alcohol or other nontobacco products, unless such person also manufactures or produces tobacco products.

Fourth:  By striking out Sec. 144 in its entirety and inserting in lieu thereof a new Sec. 144 as follows:

Sec. 144.  LEGISLATIVE COUNCIL; STATUTORY REVISION

The legislative council is directed to reassign the codified sections of this act pursuant to section 424 of Title 2.

     Pending the question, Shall the House concur in the Senate proposal of amendment? Rep. Frank of Underhill moved to concur in the Senate proposal of amendment with a further amendment thereto, as follows:

First:  By striking out Sec. 50 in its entirety and inserting in lieu thereof a new Sec. 50 to read as follows:

Sec. 50.  18 V.S.A. § 9435(b) is amended to read:

(b)  Excluded from this subchapter are community mental health centers or developmental disability center health care projects proposed by a designated agency and supervised by the commissioner of developmental and mental health services under chapters 177 and 207 of this title or the commissioner of disabilities, aging, and independent living, or both, depending on the circumstances and subject matter of the project, provided the appropriate commissioner or commissionersof developmental and mental health services makes a written approval of the proposed health care project.  The designated agency shall submit a copy of the approval with a letter of intent to the commissioner.

Second:  In Sec. 97, 33 V.S.A. § 1904, subdivision (3), after the word “children” by adding the word “and

     Which was agreed to.

Rules Suspended; Report of Committee of Conference Adopted

H. 880

Pending entrance of the bill on the Calendar for notice, on motion of Rep. Flory of Pittsford,  the rules were suspended and House bill, entitled

An act relating to education finance simplification;

Was taken up for immediate consideration.

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon the bill respectfully reports that it has met and considered the same and recommend that

1.  the Senate recede from its First and Eleventh proposals of amendment

2.  the House accede to the Senate’s Second through Fifth proposals of amendment

3. the House accede to the Senate’s Sixth, Seventh, Eighth and Ninth proposals of amendment

4. the House accede to the Senate’s Tenth  proposal of amendment

5.  the House accede to the Senate’s Twelfth proposal of amendment

6.  the House accede to the Senate’s Thirteenth and Fourteenth proposals of amendment

7.  the House accede to the Senate’s Fifteenth proposal of amendment; and

8.  that the bill be further amended as follows:

      First:  In Sec. 9, by striking “$6,000.00” and inserting in  lieu thereof “$10,000.00

and in Sec. 17, by striking subsection (2) and inserting a new subsection (2) to read:

     (2)  The provisions of Sec. 9 relating to a homestead declaration in another state shall apply to claims filed in 2007 and after; and the provisions of Sec. 9 related to a $10,000.00 cap on property tax adjustment shall apply to claims filed in 2007 and 2008 and shall sunset January 1, 2009.

     Second:    In Sec. 14, in subsection (d), by striking “Sec. 13 of this act ( ”  and inserting in lieu thereof, “In Sec. 13 of this act, the provisions related to the”  and by deleting the parenthesis after the word “payments”; and

                   in Sec. 17, by striking subsection (4) and inserting a new subsection (4) to read:

     (4)  In Sec. 13 of this act, the household income amendments, other than the $6500 limit on the exclusion for flexible family funding and difficulty of care, shall apply to claims filed in 2007 and after.

Third:  By adding Sec. 22 to read:

Sec. 22.  ADVISORY WORKING GROUP       

     There is established an Education Finance Advisory Working Group, to advise the Department of Taxes and town officials on issues related to implementation of this act.  The Working Group may include an appointee from each of the following: the Commissioner of Taxes, Vermont League of Cities and Towns, Vermont Clerks and Treasurers Association, Vermont Association of Realtors, Vermont Tax Preparers Association, Vermont Society of CPAs; and one individual familiar with the NEMRC system, appointed by the commissioner of taxes; and one individual to be appointed by the Speaker of the House and one individual to be appointed by the Senate Committee on Committees.  The Working Group shall be chaired by the Commissioner of Taxes and shall convene at his request, and shall provide assistance in implementation of this act, including planning for public education.  Public education shall include sufficient notice of the following:

(1)  Beginning in 2007, property tax adjustment amounts will no longer be paid in cash, but will instead be issued as credits against upcoming property taxes;

(2)  Income tax amounts due on an income tax return must be paid by the taxpayer, and may not be netted by the taxpayer against the property tax adjustment claimed;

(3)  Taxpayers who are eligible for a 2006 prebate, and who are planning to wait until January 2007 to claim the amount as part of their 2007 rebate, should be encouraged to file for their 2006 prebate this year, which will still be paid in cash and can be used against 2006 property tax installments;

     (4)  In the sale of a homestead, the method for pro-rating unadjusted property taxes and otherwise accounting for property tax adjustments between the buyer and seller; and

     (5)  Such other information as the Tax Commissioner identifies as necessary for public education to simplify transition to the new system.  The Tax Commissioner shall report to the general assembly by January 15, 2007, any recommended technical changes or other amendments to the education property tax adjustment laws. Members shall serve from the date of appointment through January 15, 2007.  A member who is a member of the legislature shall be entitled to compensation for services and reimbursement for expenses as provided in section 406 of Title 2.

Fourth:  In Sec. 24, in subsection (a)(6), by striking the words “enacted in the 2006 legislative session”;

           and by relettering subsection (b) as subsection “(c)”, and inserting new subsection (b) to read:

(b)  The joint fiscal office and legislative council shall also examine (1) whether, within the structure of education property taxation, the property tax adjustment is more accurately defined as a mechanism which enables the traditional majority of Vermont homestead owners to pay education taxes based on income or as a “benefit”; and (2) whether, within the structure of education property taxation, the property tax adjustment amount is more accurately described on the education fund balance sheets and other fiscal documents as a cost to the education fund, or as an adjustment to the education property revenue due the State, or more accurately not described at all.

      and by inserting in new subsection (d) to read:

     The joint fiscal office and legislative council shall also analyze within the context of the property tax adjustment law, and report to the general assembly by December 1, 2007, on the following:

          (1)  whether a cap is advisable and if so, whether the cap of $10,000 should be increased or decreased;

          (2) what inflation index is most appropriate for a property tax adjustment cap;

          (3) whether length of ownership of the homestead indicates that a larger property tax adjustment would be justified;

          (4)  whether an asset test could reliably indicate that an adjustment in excess of a capped amount is not justified; and

          (5)  whether any other tests would better indicate whether a particular property tax adjustment amount is appropriate.

   Fifth:  By inserting Sec. 25 to read:

Sec. 25.  APPROPRIATION

     There is appropriated in fiscal year 2007 from the general fund the sum of  $14,200,000.00, allocated $8,200,000.00 to the department of education and $6,000,000.00 to the department of buildings and general services, for the purposes described in Sec. 7(d) of H. 864 of 2006 as enacted (FY 2007 Capital Bill).

Sen. Ann Cummings

Sen. Mark MacDonald

Sen. Roderick Gander

Committee on the part of the Senate

Rep. Robert Rusten

Rep. Harvey Otterman

Rep. Johannah L. Donovan

Committee on the part of the House

     Which was considered and adopted on the part of the House on a Division vote.  Yeas, 105.  Nays, 18.

Bill Messaged to Senate Forthwith

     On motion of Rep. Flory of Pittsford, the rules were suspended and the bill was ordered messaged to the Senate forthwith.

H. 853

     House bill, entitled

     An act relating to technical amendments to the Vermont statutes annotated related to restructuring the agency of human services;

Recess

At seven o’clock and twenty minutes in the evening, the Speaker declared a recess until eight o’clock and thirty minutes in the evening.

At nine o’clock and ten minutes in the evening, the Speaker called the House to order.

Report of Committee of Conference Adopted

H. 861

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon House bill, entitled

An act relating to health care affordability for Vermonters;

Respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposal of amendment and that the bill be amended by striking 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 comprehensive and affordable 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” to private insurance is returned to consumers by slowing the rate of growth in insurance premiums.  This 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 this 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 this 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.

(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 agency of human services.

(8)  Medicaid, the Vermont health access plan, Dr. Dynasaur, premium assistance programs for employer-sponsored insurance, 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 section 4080f of Title 8, 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 committees on health and welfare and on finance, 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 chronic care information system 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 MEASURES

§ 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 clinical condition 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, and prevent complications related to chronic conditions.  Examples of chronic conditions include diabetes, hypertension, cardiovascular disease, cancer, asthma, pulmonary disease, substance abuse, mental illness, spinal cord injury, and hyperlipidemia.

(3)  “Chronic care information system” means the electronic database developed under the blueprint for health that shall include information on all cases of a particular disease or health condition in a defined population of individuals.

(4)  “Chronic care management” means a system of coordinated health care interventions and communications for individuals with chronic conditions, 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.

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

(6)  “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.

§ 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 1903a of Title 33, 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 professionals, 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, the health access oversight committee, and the commission on health care reform.  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; the progress toward creation and implementation of privacy and security protocols; and other information as requested by the committees.  The surveys shall be developed in collaboration with the executive committee established under subsection (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.

Sec. 6.  33 V.S.A. § 1903a is added to read:

§ 1903a.  CHRONIC CARE MANAGEMENT PROGRAM

(a)  The secretary of administration or designee shall create a chronic care management program as provided for in this section, which shall be administered or provided by a private entity for individuals with one or more chronic conditions who are enrolled in Medicaid, the Vermont health access plan (VHAP), or Dr. Dynasaur.  The program shall not include individuals who are also eligible for Medicare, who are enrolled in the Choices for Care Medicaid Section 1115 waiver or who are in an institute for mental disease as defined in 42 C.F.R. § 435.1009.  The secretary may also exclude individuals who are eligible for or participating in the Medicaid care coordination program established through the office of Vermont health access.   

(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 chronic care information system established in section 702 of Title 18, 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 communications 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 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 this title, including the multi-state purchasing pool and the statewide preferred drug list.

(d)  The secretary shall issue a request for proposals for the program established under this section and shall review the request for proposals with the commission on health care reform prior to issuance.  The issuance of the request 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 this title.  Any contract under this section may allow the entity to subcontract some services to other entities if it is cost-effective, efficient, or in the best interest of the individuals enrolled in the program.

(e)  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. 7.  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 and section 1903a of Title 33.  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 1903a of Title 33, 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 align with the recommendation of the strategic plan developed under chapter 13 of Title 18 and the request for proposals under section 1903a of Title 33.  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 (VHAP), and Dr. Dynasaur no more often than once a year.

Sec. 8.  PREVENTION AND CHRONIC CARE MANAGEMENT; STATE

             EMPLOYEES

The commissioner of human resources shall include in any request for proposals for the administration of the health benefit plans for state employees 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.

* * * Medicaid Initiatives * * *

Sec. 9.  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 a level equivalent to the 2006 rates in the Medicare program;

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

(C)  an increase in base rates for current procedural terminology (CPT) codes which are significantly lower than the 2006 Medicare reimbursement levels starting with the lowest first; and

(D)  an increase in dental reimbursement by, first, restoring the reductions in adult dental rates which were effective February 1, 2006 and, second, by splitting the remaining amount approximately in half to increase rates for dental services and to increase the dental cap for adults in such a manner as to offset any loss in benefit level due to the rate increases. 

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

(b)  To the extent permitted by the appropriation in Sec. 107 of H.881 of the 2005 Adj. Sess. (2006), the office of Vermont health access shall increase Medicaid reimbursements to hospitals effective January 1, 2007.  In fiscal year 2008 and thereafter, the office shall increase Medicaid reimbursement rates as provided for in this subsection annually on July 1 until the federal upper limit is reached. 

(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 hospital reimbursements 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. 10.  BLUEPRINT FOR HEALTH; REIMBURSEMENT

From the funds appropriated in Sec. 115a of H.881 of the 2005 Adj. Sess. (2006), the department of health shall provide incentive grants and stipends to physician practices participating in any pilot projects developed under the Vermont blueprint for health established in section 702 of Title 18.

Sec. 11.  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. 12.  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. 13.  33 V.S.A. § 1974 is added to read:

§ 1974.  Employer‑Sponsored Insurance; Premium

               Assistance

(a)  No later than October 1, 2007, subject to approval by the Centers for Medicare and Medicaid Services, 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 uninsured individuals with incomes under 300 percent of the federal poverty guidelines and their dependents to purchase an approved employer-sponsored insurance plan if offered to those individuals by an employer.  The agency shall determine whether to include children who are eligible for Medicaid or Dr. Dynasaur in the premium assistance program at their parent’s option.  The agency shall not mandate participation of children in employer-sponsored insurance.   

(b)  VHAP-eligible premium assistance. 

(1)  For individuals enrolled in or 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 premium assistance program shall provide:

(A)  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.

(B)  Supplemental benefit coverage equivalent to the benefits offered by the Vermont health access plan.

(2)  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 conform to the following standards:

(A)  The benefits covered by the plan must be substantially similar to the benefits covered under the certificates of coverage offered by the typical benefit plans issued by the four health insurers with the greatest number of covered lives in the small group and association market in this state.

(B)  The plan shall include appropriate coverage of chronic conditions in a manner consistent with statewide participation by health insurers in the Vermont blueprint for health, and in accordance with the standards established in section 702 of Title 18.

(3)  The agency shall determine whether it is cost-effective to the state to enroll an individual in an approved employer-sponsored insurance plan with the premium assistance under this subsection as compared to enrolling the individual in the Vermont health access plan.  If the agency determines that it is cost-effective, the individual shall be required to enroll in the approved employer-sponsored 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.  Notwithstanding this requirement, an individual shall be provided benefits under the Vermont health access plan until the next open enrollment period offered by the employer or insurer.

(c)  Uninsured individuals; premium assistance. 

(1)  For the purposes of this subsection:

(A)  “Chronic care” means health services provided by a health care professional for an established clinical condition 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, and prevent complications related to chronic conditions.  Examples of chronic conditions include diabetes, hypertension, cardiovascular disease, cancer, asthma, pulmonary disease, substance abuse, mental illness, spinal cord injury, and hyperlipidemia.

(B)  “Uninsured” means an individual who does not qualify for Medicare, Medicaid, the Vermont health access plan, or Dr. Dynasaur and 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:

(i)  the individual’s 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

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

(C)  “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.

(2)  An individual is eligible for premium assistance under this subsection if the individual:

(A)  is an uninsured Vermont resident;

(B)  has income under 300 percent of the federal poverty level;

(C)  has access to an approved employer-sponsored insurance plan; and

(D)  is 18 or over and is not claimed on a tax return as a dependent of a resident of another state.

(3)  The premium assistance program under this subsection shall provide a subsidy of premiums or cost‑sharing amounts based on the household income of the eligible individual, with greater amounts of financial assistance provided to eligible individuals with lower household income and lesser amounts of assistance provided to eligible individuals with higher household income.  Until an approved employer-sponsored plan is required to meet the standard in subdivision (4)(B)(ii) of this subsection, the subsidy shall include premium assistance and assistance to cover all cost-sharing amounts for chronic care.

(4)  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:

(A)  covered benefits to be substantially similar, as determined by the agency, to the benefits covered under Catamount Health; and

(B)(i)  until January 1, 2009 or when statewide participation in the Vermont blueprint for health is achieved,  appropriate coverage of chronic conditions in a manner consistent with statewide participation by health insurers in the Vermont blueprint for health, and in accordance with the standards established in section 702 of Title 18;

(ii)  after statewide participation is achieved, coverage of chronic conditions substantially similar to Catamount Health.

(5)  The agency shall determine whether it is cost-effective to the state to require the individual to purchase the approved employer-sponsored insurance plan with premium assistance under this subsection instead of Catamount Health established in section 4080f of Title 8 with assistance under subchapter 3a of chapter 19 of this title.  If providing the individual with assistance to purchase Catamount Health is more cost-effective to the state than providing the individual with premium assistance to purchase the individual’s approved employer-sponsored plan, the state shall provide the individual the option of purchasing Catamount Health with assistance for that product.  An individual may purchase Catamount Health and receive Catamount Health assistance until the approved employer-sponsored plan has an open enrollment period, but the individual shall be required to enroll in the approved employer-sponsored plan in order to continue to receive any assistance.

(d)  Participation in an approved employer-sponsored insurance plan with premium assistance under this section or Catamount Health shall not disqualify an individual from the Vermont health access plan if an approved employer-sponsored insurance plan or Catamount Health is no longer available to that individual.

(e)  If the emergency board determines that the funds appropriated for either of the premium assistance programs under this section are insufficient to meet the projected costs of enrolling new program participants into the appropriate program, the emergency board shall suspend new enrollment in that program or restrict enrollment to eligible lower income individuals.  This subsection does not affect eligibility for the Vermont health access plan or purchase of Catamount Health.

(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)(1)  Of the amount appropriated in H.881 of the 2005 Adj. Sess. (2006) for the employer-sponsored insurance premium assistance program established by this section, no more than $250,000.00 may be expended for start-up and initial administrative expenses until the report as required by subdivision (2) of this subsection has been received and approved.

(2)  No additional amounts appropriated in H.881 of the 2005 Adj. Sess. (2006) for the employer-sponsored premium assistance program may be made after November 15, 2006 without approval of 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, which must include the following:

(A)  a plan for the additional expenditures;

(B)  a survey to determine whether and how many individuals currently enrolled in VHAP, including those eligible as caretakers, are potentially eligible for employer-sponsored premium assistance under this section;

(C)  the sliding-scale premium and cost-sharing assistance amounts provided under the premium assistance program to individuals;

(D)  a description and estimate of benefits offered by the Vermont health access plan that are likely to be provided as supplemental benefits for the employer-sponsored premium assistance program enrollees;

(E)  a plan for covering dependent children through the premium assistance program; and

(F)  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, the start-up and administrative costs of the program, and the cost of providing the subsidy to these enrollees.

(h)  The agency shall report monthly to the joint fiscal committee, the health access oversight committee, and the commission on health care reform with the number of individuals enrolled in the premium assistance program, the income levels of the individuals, a description of the range and types of employer-sponsored plans that have been approved, the percentage of premium and cost-sharing amounts paid by employers whose employees participate in the premium assistance program, and the net savings or cost of the program. 

(i)  The health access oversight committee shall monitor the development, implementation, and ongoing operation of the employer-sponsored premium assistance program under this section.

Sec. 14.  AGENCY OF HUMAN SERVICES; SOLE SOURCE

Notwithstanding subsection 2222(g) of Title 3 and the requirements of the agency’s bulletin 3.5 (Contracting Procedures), the agency of human services may negotiate contracts with a sole source for information technology or administrative services necessary for application simplification, surveys, outreach and enrollment assistance, reporting, and public notices and hearings if necessary to implement the employer-sponsored insurance premium assistance programs, the Catamount Health assistance program, or to ensure an individual’s seamless transition between the agency’s programs, employer-sponsored insurance premium assistance programs, and the Catamount Health assistance program by October 1, 2007.  The requirements of section 1903a of Title 33 are not waived by this section.

Sec. 15.  8 V.S.A. § 4080f is added to read:

§ 4080f.  CATAMOUNT HEALTH

(a)  As used in this section:

(1)  “Carrier” means a registered small group carrier as defined in section 4080a of this title.

(2)  “Catamount Health” means the plan for coverage of primary care, preventive care, chronic care, acute episodic care, and hospital services as established in this section to be provided through a health insurance policy, a nonprofit hospital or medical service corporation service contract, or a health maintenance organization subscriber contract which is offered or issued to an individual and which meets the requirements of this section.

(3)  “Chronic care” means health services provided by a health care professional for an established clinical condition 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, and prevent complications related to chronic conditions.  Examples of chronic conditions include diabetes, hypertension, cardiovascular disease, cancer, asthma, pulmonary disease, substance abuse, mental illness, spinal cord injury, and hyperlipidemia.

(4)  “Chronic care management” means a system of coordinated health care interventions and communications for individuals with chronic conditions, 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.

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

(6)  “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 medically necessary services to assist in activities of daily living.

(7)  “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.

(8)  “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.

(9)  “Uninsured” means an individual who does not qualify for Medicare, Medicaid, the Vermont health access plan, or Dr. Dynasaur and 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 private insurance or 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.

(b)  No person may sell, offer, or renew Catamount Health unless such person is a registered small group carrier and has filed a letter of intent pursuant to this section.  

(c)(1)  Catamount Health shall provide coverage for primary care, preventive care, chronic care, acute episodic care, and hospital services.  The benefits for Catamount Health shall be a preferred provider organization plan with:

(A)  a $250.00 deductible for an individual and a $500.00 deductible for a family for health services received in network, and a $500.00 deductible for an individual and a $1,000.00 deductible for a family for health services received out of network;

(B)  20 percent co-insurance, in and out of network;

(C)  a $10.00 office co‑payment;

(D)  prescription drug coverage without a deductible, $10.00 co‑payments for generic drugs, $30.00 co-payments for drugs on the preferred drug list, and $50.00 co-payments for nonpreferred drugs;

(E)  out-of-pocket maximums of $800.00 for an individual and $1,600.00 for a family for in-network services and $1,500.00 for an individual and $3,000.00 for a family for out-of-network services; and

(F)  a waiver of the deductible and other cost-sharing payments for chronic care for individuals participating in chronic care management and for preventive care.

(2)  Catamount Health shall provide a chronic care management program that has criteria substantially similar to the chronic care management program established in section 1903a of Title 33 and shall share the data on enrollees, to the extent allowable under federal law, with the secretary of administration or designee in order to inform the health care reform initiatives under section 2222a of Title 3.

(3)  Notwithstanding sections 4516, 4588, and 5115 of this title, a carrier may use financial or other incentives to encourage healthy lifestyles and patient self‑management for individuals covered by Catamount Health.  These incentives shall comply with the health promotion and disease prevention program rules adopted by the commissioner under subdivisions 4080a(h)(2)(B) and 4080b(h)(2)(B) of this title.

(4)  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.

(5)  Notwithstanding subsections 4513(c), 4584(c), and 5104(b) of this title, the commissioner may establish a pay-for-performance demonstration project for carriers offering Catamount Health.

(d)(1)  A carrier shall guarantee acceptance of any uninsured individual for any Catamount Health plan offered by the carrier.  A carrier shall also guarantee acceptance of each dependent of an uninsured individual in Catamount Health.  An individual who is eligible for an employer-sponsored insurance plan may not purchase Catamount Health, except as provided for in subdivision (2) of this subsection.  Any dispute regarding eligibility shall be resolved by the department in a manner to be determined by rule.

(2)  An individual with income under 300 percent of the federal poverty level who is eligible for an employer-sponsored insurance plan may purchase Catamount Health if:

(A)  the individual’s employer-sponsored insurance plan is not an approved employer-sponsored plan under section 1974 of Title 33;

(B)  enrolling the individual in an approved employer-sponsored plan combined with premium assistance under section 1974 of Title 33 offered by the agency of human services is not cost-effective to the state as compared to enrolling the individual in Catamount Health combined with the assistance under subchapter 3a of chapter 19 of Title 33; or

(C)  the individual is eligible for employer-sponsored insurance premium assistance under section 1974 of Title 33, but is unable to enroll in the employer’s insurance plan until the next open enrollment period.

(3)  An individual who loses eligibility for the employer-sponsored premium programs in section 1974 of Title 33 may purchase Catamount Health without being uninsured for 12 months.

(4)  An individual of the age of majority who is claimed on a tax return as a dependent of a resident of another state shall not be eligible to purchase Catamount Health.

(e)  For a 12-month period from the effective date of coverage, a carrier offering Catamount Health may limit coverage of preexisting conditions which existed during the 12-month period before the effective date of coverage, except that such exclusion or limitation shall not apply to chronic care if the individual is participating in a chronic care management program.  A carrier shall waive any preexisting condition provisions for all individuals and their dependents who produce evidence of continuous creditable coverage during the previous nine months.  If an individual has a preexisting condition excluded under a subsequent policy, such exclusion shall not continue longer than the period required under the original contract or 12 months, whichever is less.  The carrier shall credit prior coverage that occurred without a break in coverage of 63 days or more.  For an eligible individual, as such term is defined in Section 2741 of Title XXVII of the Public Health Service Act, a carrier offering Catamount Health shall not limit coverage of preexisting conditions.

(f)(1)  Except as provided for in subdivision (2) of this subsection, the carrier shall pay health care professionals using the Medicare payment methodologies at a level ten percent greater than for levels paid under the Medicare program in 2006.  Payments under this subsection shall be indexed to the Medicare economic index developed by the Centers for Medicare and Medicaid Services.  

(2)  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 subdivision shall be indexed to changes in the Medicare payment rules, but shall not be lower than 102 percent of the hospital’s actual cost for services.

(3)  Payments for chronic care and chronic care management shall meet the requirements in section 702 of Title 18 and section 1903a of Title 33.

(4)  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 health care professionals and insurers.

(5)  A carrier offering Catamount Health shall renegotiate existing contracts with health care professionals as necessary in order to pay the reimbursements provided for in this subsection. 

(6)  All provisions of this subsection shall apply notwithstanding subsections 4513(c), 4584(c), and 5104(b) of this title.

(g)(1)  Approval of rates and forms for Catamount Health shall be pursuant to the process established herein and rules adopted pursuant to this section.  Premium rates shall be actuarially determined considering differences in the demographics of the populations and the different levels and methods of reimbursement for health care professionals. 

(2)  No rate or form shall be approved if it contains any provision which is unjust, unfair, inequitable, misleading, or contrary to the law of this state.   A rate shall be approved if it is sufficient not to threaten the financial safety and soundness of the insurer, reflects efficient and economical management, provides Catamount Health at the most reasonable price consistent with actuarial review, is not unfairly discriminatory, and complies with the other requirements of this section. 

(h)  With each rate filing, a carrier shall file a certification by a member of the American Academy of Actuaries of the carrier’s compliance with this section.  The requirements for certification shall be as the commissioner by rule prescribes.

(i)  Catamount Health shall be offered with a rate structure which at least differentiates among single-person, two-person, and family rates, and the rates shall be guaranteed for 12 months from the date the individual enrolls.

(j)  A carrier offering Catamount Health shall use a community rating method acceptable to the commissioner for determining premiums for Catamount Health plans.  Catamount Health plans shall constitute a separate market and shall be rated as a distinct pool, separate from other individual or group insurance products.  For Catamount Health, the following risk classification factors are prohibited from use in rating individuals and their dependents:

(1)  demographic rating, including age and gender rating;

(2)  geographic area rating;

(3)  industry rating;

(4)  medical underwriting and screening;

(5)  experience rating;

(6)  tier rating; or

(7)  durational rating.

(k)  Catamount Health shall be considered an individual health insurance plan, health benefit plan, health insurance contract, and health insurance policy for purposes of Vermont law, but shall not be subject to section 4080b of this title.

(l)  Catamount Health shall not be sold prior to October 1, 2007.  Rates and forms may be filed and approved prior to that date, and marketing and sales targeted to an effective date of October 1, 2007 shall be allowed in the discretion of the commissioner.

(m)  A letter of intent, proposed rates, and proposed forms shall be filed consistent with the requirements of this section and the rules adopted pursuant to this section.

(1)  A carrier shall notify the department that it intends to offer Catamount Health by filing written notice of that intent no later than 30 days after the effective date of the expedited adoption of Catamount Health rules.  

(2)  Forms shall be filed initially no later than five months after the letter of intent and upon any change.  Forms may not be used unless and until approved as described in this section.  The department shall notify the carrier within 45 days whether the form meets the requirements set by statute and rule.

(3)  Rates shall be filed prior to use and initially no later than five months after the letter of intent.  Thereafter, rates shall be filed at least annually on a schedule and in a manner established by rule.  The department shall notify the carrier within 45 days whether the rates meet the requirements set by statute and rule.

(4)  In any notice denying approval of a rate or form, the commissioner shall state that a hearing will be granted within 20 days upon written request of the insurer, provided that the written request for hearing is filed with the department within 30 days of the notice of disapproval.  After the expiration of 30 days from the filing of any such form or premium rate, or at any time after having given written approval, the commissioner may, after a hearing of which at least 20 days’ written notice has been given to the insurer using such form or premium rate, withdraw approval on any of the grounds stated in this section.  Such disapproval shall be effected by written order of the commissioner which shall state the ground for disapproval and the date, not less than 30 days after such hearing when the withdrawal of approval shall become effective.

(n)  A carrier may discontinue sales of Catamount Health upon at least six months’ prior written notice to the commissioner.  Following such notice, if there are any individuals who continue to be covered by Catamount Health for whom the carrier does not have approved premium rates, the commissioner may approve premium rates adjusted by the average Vermont nongroup trends for cost and utilization for the previous six months. 

Sec. 16.  Subchapter 3a of chapter 19 of Title 33 is added to read:

Subchapter 3a.  Catamount Health Assistance Program

§ 1981.  POLICY AND PURPOSE

The Catamount Health assistance program is established to provide uninsured Vermont residents financial assistance in purchasing Catamount Health, a defined benefit package of primary, preventive, hospital, acute episodic care, and chronic care, including assistance in preventing and managing chronic conditions.

§ 1982.  DEFINITIONS

As used in this subchapter:

(1)  “Catamount Health” means the health benefit plan offered under section 4080f of Title 8.

(2)  “Uninsured” means an individual who does not qualify for Medicare, Medicaid, the Vermont health access plan, or Dr. Dynasaur and 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 private insurance or 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.

(3)  “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.

§ 1983.  ELIGIBILITY

(a)(1)  Except as provided in subdivisions (3) and (4) of this subsection, an individual shall be eligible for Catamount Health assistance if the individual is an uninsured Vermont resident without access to an approved

employer-sponsored insurance plan under section 1974 of this title.

(2)  An individual who has access to an employer-sponsored insurance shall be eligible for assistance under this subchapter only if the individual does not have employer-sponsored insurance approved for premium assistance under section 1974 of this title or if it is more cost‑effective to the state for the individual to purchase Catamount Health with the assistance under this subchapter than for the state to provide premium assistance under section 1974 of this title.  In addition, an individual may receive assistance under this subchapter temporarily until the individual is able to enroll in an approved employer-sponsored plan and receive premium assistance under section 1974.

(3)  An individual shall not be eligible for Catamount Health assistance 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 benefits under Medicaid, the Vermont health access plan, Dr. Dynasaur, or premium assistance for employer-sponsored insurance under section 1974 of this title within 12 months of applying for Catamount Health assistance shall not be required to wait 12 months to be eligible.

(c)  The agency of administration or designee shall establish rules pursuant to chapter 25 of Title 3 on the specific criteria to demonstrate eligibility consistent with the requirements essential for federal financial participation, including criteria for and proof of residency, income, and insurance status.

(d)  If the emergency board determines that the funds appropriated for the Catamount Health assistance program under this subchapter are insufficient to meet the projected costs of enrolling new program participants, the emergency board shall suspend new enrollment in that program or restrict enrollment to eligible lower income individuals.

§ 1984.  INDIVIDUAL CONTRIBUTIONS

(a)  The agency shall provide assistance to individuals eligible under this subchapter to purchase Catamount Health.  The amount of the assistance shall be the difference between the premium for Catamount Health and the individual’s contribution as defined in this section.

(b)  Subject to amendment in the fiscal year 2008 budget, the agency of administration or designee shall establish individual and family contribution amounts for Catamount Health under this subchapter for the first year as established in this section and shall index the contributions in future years to the overall growth in spending per enrollee in Catamount Health as established in section 4080f of Title 8.  The agency shall establish family contributions by income bracket based on the individual contribution amounts and the average family size.  In fiscal year 2008, for the lowest-cost Catamount Health plan offered by all carriers, the individual’s contribution shall be as established in subsection (c) of this section.  The agency shall determine the percentages that the amounts in subsection (c) are of the lowest-cost plan and set the individual’s contribution for any other plan at the percentage for that income level.  In future years, after adjusting the individual premiums in subsection (c) of this section, the same methodology shall be used to determine the individual premiums for any other plans. 

(c)  An individual’s contribution for the lowest-cost plan shall be:

(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.

§ 1985.  ADMINISTRATION

(a)  The agency shall engage in an aggressive enrollment strategy for Catamount Health and the assistance provided under this subchapter.  The agency shall establish a toll-free telephone assistance line to provide information and enrollment assistance on Catamount Health and the assistance program.  The agency shall ensure that individuals may receive any forms or other enrollment information from the carriers offering Catamount Health as well as the agency.

(b)  An individual applying for or enrolled in the program established under this subchapter who is aggrieved by an adverse decision of the agency may grieve or appeal the decision under rules and procedures consistent with 42 C.F.R. § 438.402. 

§ 1986.  Catamount Fund

(a)  The Catamount fund is established in the treasury as a special fund to be a source of financing for the Catamount Health assistance program.

(b)  Into the fund shall be deposited:

(1)  revenue from the employer health care premium contribution pursuant to chapter 25 of Title 21;

(2)  17.5 percent of the revenue from the cigarette tax levied pursuant to chapter 205 of Title 32;

(3)  premium amounts paid by individuals unless paid directly to the insurer; 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.

(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 the Catamount Health assistance program under this subchapter, employer-sponsored insurance premium assistance under section 1974 of this title, immunizations under section 1130 of Title 18, the nongroup health insurance market assistance under section 4062a of Title 8, and for transfers to the state health care resources fund established in section 1901d of this title as approved by the general assembly.

(e)  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. 17.  8 V.S.A. § 4080d is amended to read:

§ 4080d.     Coordination of insurance coverage with                                                 Medicaid

Any insurer as defined in section 4100b of this title is prohibited from considering the availability or eligibility for medical assistance in this or any other state under 42 U.S.C. § 1396a (section 1902 of the Social Security Act), herein referred to as Medicaid, when considering eligibility for coverage or making payments under its plan for eligible enrollees, subscribers, policyholders. or certificate holders.   This section shall not apply to Catamount Health, as established by section 4080f of this title.

Sec. 18.  8 V.S.A. § 4100b is amended to read:

§ 4100b.  Coverage of children

(a)  As used in this subchapter:

(1)  “Health plan” shall include, but not be limited to, a group health plan as defined under section 607(1) of the Employee Retirement Income Security Act of 1974 and, a nongroup plan as defined in section 4080b of this title, and a Catamount Health plan as defined in section 4080f of this title.

* * *

Sec. 19.  8 V.S.A. § 5112 is amended to read:

§ 5112.  Statutory construction and relationship to

  other laws

Except as provided in this chapter, and except as provided in section 3315, section 4080a, section 4080b, section 4080f, and subchapter 2 of chapter 112 of this title, provisions of the insurance laws and specifically provisions of chapters 123 and 125 of this title shall not be applicable to any health maintenance organization granted a certificate of authority under this chapter.

Sec. 20.  EXPEDITED RULEMAKING

No later than August 1, 2006 and notwithstanding the provisions of chapter 25 of Title 3, the department of banking, insurance, securities, and health care administration shall adopt the initial rules for Catamount Health established in section 4080f of Title 8 pursuant to the following expedited rulemaking process:

(1)  After publication in three daily newspapers with the highest average circulation in the state of a notice of the rules to be adopted pursuant to this process and at least a 14-day public comment period following publication, the department shall file final proposed rules with the legislative committee on administrative rules.

(2)  The legislative committee on administrative rules shall review and may approve or may object to the final proposed rules under 3 V.S.A. § 842, except that its action shall be completed by the committee no later than 14 days after the final proposed rules are filed with the committee.

(3)  The department may adopt a properly filed final proposed rule:

(A)  after the passage of 14 days from the date of filing final proposed rules with the legislative committee on administrative rules;

(B)  after receiving notice of approval from the committee; or

(C)  if the department has received a notice of objection from the legislative committee on administrative rules, after having responded to the objection from the committee pursuant to 3 V.S.A. § 842.

(4)  Rules adopted under this section shall be effective upon being filed with the secretary of state and shall have the full force and effect of rules adopted pursuant to chapter 25 of Title 3.  Rules filed by the department with the secretary of state pursuant to this section shall be deemed to be in full compliance with 3 V.S.A. § 843 and shall be accepted by the secretary of state if filed with a certification by the commissioner of banking, insurance, securities, and health care administration that the rule is required to meet the purposes of this section.

Sec. 21.  2 V.S.A. chapter 25 is added to read:

Chapter 25.  JOINT LEGISLATIVE COMMISSION

ON HEALTH CARE REFORM

§ 901. Creation of Commission

(a)  There is established a commission on health care reform.  The commission, under the direction of co-chairs who shall be appointed by the speaker of the house and president pro tempore of the senate, shall monitor health care reform initiatives and recommend to the general assembly actions needed to attain health care reform.

(b)  Members of the commission shall include four representatives appointed by the speaker of the house, four senators appointed by the committee on committees, and two nonvoting members appointed by the governor.

(c)  The commission may meet as needed and members shall be entitled to compensation and expenses as provided in section 406 of this title.

(d)  The commission shall receive administrative, fiscal, and legal support from the joint fiscal office and the legislative council.  In addition, with the approval of the speaker of the house and the president pro tempore of the senate, the commission may retain the services of one or more consultants or experts knowledgeable in health care systems, financing, or delivery to assist in its work and may request funding from the legislative budget.

§ 902.  Duties

(a)  Beginning in the interim of the 2005 legislative session through July 1, 2009, the commission shall:

(1)  monitor the development, implementation, and ongoing operation of health care reform initiatives as defined in section 2222a of Title 3 and the initiatives contained in H.861 of the 2005 Adj. Sess. (2006), An Act Relating to Health Care Affordability for Vermonters, including Catamount Health;

(2)  study areas of health care reform as required by the general assembly; and

(3)  receive input and make recommendations, generally, to the house committees on health care and on ways and means, the senate committees on health and welfare and on finance, and the general assembly regarding the long‑term development of policies and programs designed to ensure that, by 2009, Vermont has an integrated system of care that provides all Vermonters access to affordable, high quality health care that is financed in a fair and equitable manner, including the following:

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

(B)  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;

(C)  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

(D)  determining needed analysis and criteria for implementing a health insurance requirement by January 1, 2011 if less than 96 percent of Vermonters 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.

(b)  Nothing in this section shall modify the jurisdiction of the health access oversight committee to monitor Medicaid and Medicaid waiver programs.

(c)(1)  The commission may request analysis from the office of Vermont health access, the department of banking, insurance, securities, and health care administration, and other appropriate agencies.  The agencies shall report to the commission at such times and with such information as the commission determines is necessary to fulfill its oversight responsibilities.

(2)  The agency of administration or designee, the agency of human services, and the department of banking, insurance, securities, and health care administration shall submit monthly progress reports on Catamount Health and the Catamount Health assistance program.  For Catamount Health, the reports shall include enrollment, projected enrollment, and other information as requested by the commission.  For the assistance program, the reports shall include revenue and expenditures for the prior months, enrollment and projected enrollment, projected expenditures related to enrollment for the fiscal year, demographic statistics for participating individuals, an analysis of any effect on employer conduct, and other information as requested by the commission.

§ 903.  CATAMOUNT HEALTH; REQUEST FOR PROPOSALS

(a)  It is the intent of the general assembly first to provide to carriers and insurers in the private market the opportunity to offer Catamount Health with the assumption of risk.  In the event that no private carriers or insurers elect to offer such Catamount Health plans or the market is not a cost-effective method of providing coverage, it is the intent of the general assembly to administer Catamount Health under this section. 

(b)  If no registered small group carrier submits a letter of intent to offer Catamount Health established in section 4080f of Title 8 with the commissioner of banking, insurance, securities, and health care administration within 30 days after the filing of the expedited rules for Catamount Health, the following process shall occur:

(1)  the commissioner shall notify the joint fiscal committee and the secretary of administration immediately;

(2)  the secretary of administration shall schedule a meeting of the emergency board within ten days of the commissioner’s notification in order to investigate why no carriers entered the market and shall receive analysis from the secretary, the department of banking, insurance, securities, and health care administration, the commission on health care reform, and the joint fiscal office;

(3)  the emergency board may extend the deadline for submitting a letter of intent to allow 14 days from the date of the meeting for additional submissions or may trigger the procedures in subsection (c) of this section.

(c)  The procedures in this subsection (d) shall be followed if any of the following events occur:

(1)  No letter of intent is filed after the process established in subsection (b) of this section;

(2)  Initial policy forms and rates for Catamount Health are not filed within five months of the filing of a carrier’s letter of intent.

(3)  No carrier’s policy forms and rates for Catamount Health are approved by the department.

(4)  The commission on health care reform determines by April 1, 2007 or 30 days from the date the rates are approved, whichever is later, that the Catamount Health market is not a cost-effective method of providing health care coverage to uninsured Vermonters, taking into consideration the rates and forms approved by the department of banking, insurance, securities, and health care administration, the amount of Catamount Health assistance to be provided to individuals, whether the Catamount Health assistance is sufficient to make Catamount Health affordable to those individuals, and the number of individuals for whom assistance is available given the appropriated amount.

(d)  The commissioner of banking, insurance, securities, and health care administration shall provide the commission with copies of the approved carriers policy forms and rates.

(e)  If at any time no carrier offers Catamount Health or if any of the events established in subsection (c) of this section occur,  the agency of administration shall issue a request for proposals for the administration only of Catamount Health as described in section 4080f of Title 8.  A contract entered into under this subsection shall not include the assumption of risk.  If Catamount Health is administered under this subsection, the agency shall purchase a stop-loss policy for an aggregate claims amount for Catamount Health as a method of managing the state’s financial risk.  The agency shall determine the amount of aggregate stop-loss reinsurance and may purchase additional types of reinsurance if prudent and cost-effective.  The agency may include in the contract the chronic care management program established under section 1904a of Title 33.

(f)  If Catamount Health is offered as a self-insured product, the requirements of section 4080f of Title 8 and subchapter 3a of chapter 19 of Title 33 shall apply to the extent feasible.  The individual contributions set in subchapter 3a of chapter 19 of Title 33 shall be the premium amounts charged to individuals.

Sec. 21a.  CODIFICATION

This section codifies the provisions in Sec. 277c of No. 71 of the Acts of 2005 and amends that section to reflect the provisions in this act.  Sec. 277c of No. 71 of the Acts of 2005 (establishing a commission on health care reform) is repealed.

Sec. 22.  GLOBAL COMMITMENT FINANCING

To the extent feasible and allowable under federal law, the agencies of administration and of human services shall finance the employer-sponsored premium assistance program under section 1974 of Title 33 and the Catamount Health assistance program under subchapter 3a of chapter 19 of Title 33 through the Global Commitment for Health Medicaid Section 1115 waiver.  No later than December 1, 2006, the agencies shall seek a waiver amendment from the Centers for Medicare and Medicaid Services to include these programs in the premium amount paid to the office of Vermont health access under Global Commitment.  The agencies 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 these programs.  The agencies may administer the programs in the manner required by Global Commitment.

* * * Immunizations* * *

Sec. 23.  18 V.S.A. § 1130 is added to read:

§ 1130.  IMMUNIZATIONS; PROVISION

(a)  As used in this section, “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).

(b)  To the extent allowed by the appropriation, the department shall provide payment for any Vermont resident to receive immunizations without cost to the individual.  The department 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.

Sec. 24.  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 committees on health and welfare and on finance no later than January 15, 2007.

* * * Private Insurance Cost Shift Reviews * * *

Sec. 25.  18 V.S.A. § 9456(b)(9) is amended to read:

(9)  require each hospital to file an analysis that reflects a reduction in net revenue needs from non-Medicaid payers equal to any anticipated increase in Medicaid, Medicare, or another public health care program reimbursements resulting from appropriations designed to reduce the Medicaid cost shift, and to any reduction in bad debt or charity care due to an increase in the number of insured individuals.

Sec. 26.  COST SHIFT TASK FORCE

Increases in Medicaid rates, reductions in private insurance claims through the nongroup market security trust, a decrease in the number of individuals without insurance, and the provision of minimum preventive services through Catamount Health should reduce the cost shift.  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, the state auditor or designee, a representative of the office of Vermont health access, and other interested parties to determine how to ensure that reductions in the cost shift are reflected in a reduction or slower rate of growth both in hospital and provider charges and in private insurance premiums.  The task force shall make written recommendations to the commission on health care reform no later than December 1, 2006 regarding statutory or administrative changes needed to ensure that a reduction in the cost shift is reflected in a reduction or slower rate of growth in hospital charges and health insurance premiums.

* * * Nongroup Health Insurance Market * * *

Sec. 27.  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 commissioner shall permit nongroup carriers to transfer five percent of the carriers’ claims costs to the nongroup market security trust, 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. 28.  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. 29.  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.  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. 30.  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 any 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 committees on health and welfare and on finance and the house committee on health care not later than January 15, 2007.

Sec. 31.  INDIVIDUAL MARKET STUDY

The department of banking, insurance, securities, and health care administration, in consultation with insurers that participate in the nongroup market, shall recommend to the general assembly no later than January 15, 2007 the best method to consolidate the nongroup market into a single risk pool of insured Vermonters with access to health plans equivalent to or better than that offered by Catamount Health.

Sec. 32.  EMPLOYER ASSESSMENT STUDY; SEASONAL

               EMPLOYEES

No later than January 15, 2007, the secretary of administration or designee shall study and report on the options for treating seasonal employees in the employer assessment in Sec. 34 of this act. 

Sec. 33.  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.

Sec. 34.  21 V.S.A. chapter 25 is added to read:

CHAPTER 25.  EMPLOYERS’ HEALTH CARE PREMIUM CONTRIBUTION

§ 2001.  PURPOSE

For the purpose of more equitably distributing the costs of health care to uninsured residents of this state an employers’ health care premium contribution is established to provide a fair and reasonable method for sharing health care costs with employers who do not offer their employees health care coverage.

§ 2002.  DEFINITIONS

For the purposes of this chapter:

(1)  “Employee” means an individual over the age of majority employed full-time or part‑time by an employer to perform services in this state.

(2)  “Employer” means a person who is required under subchapter 4 of chapter 151 of Title 32 to withhold income taxes from payments of income with respect to services, but shall not include the government of the United States.

(3)  “Full-time equivalent” or “FTE” means the number of employees expressed as the number of employee hours worked during a calendar quarter divided by 520.

(4)  “Uncovered employee” means:

(A)  an employee of an employer who does not offer to pay any part of the cost of health care coverage for its employees.

(B)  an employee who is not eligible for health care coverage offered by an employer to any other employees; or

(C)  an employee who is offered and is eligible for coverage by the employer but elects not to accept the coverage and has no other health care coverage under either a private or public plan.

§ 2003.  PREMIUM CONTRIBUTION ASSESSMENT

(a)  The commissioner of labor shall assess and an employer shall pay a quarterly health care premium contribution for each full-time equivalent uncovered employee employed during that quarter in excess of:

(1)  eight full-time equivalent employees in fiscal years 2007 and 2008;

(2)  six full-time equivalent employees in fiscal year 2009; and

(3)  four full-time equivalent employees in fiscal years 2010 and thereafter.

(b)  For any quarter in fiscal years 2007 and 2008, the amount of the health care premium contribution shall be $91.25 for each full-time equivalent employee in excess of eight.  For each fiscal year after fiscal year 2008, the number of excluded full-time equivalent employees shall be adjusted in accordance with subsection (a) of this section, and the amount of the health care premium contribution shall be adjusted by a percentage equal to any percentage change in premiums for Catamount Health for that fiscal year. 

(c)  Premium contribution assessments under this chapter shall be determined on a calendar quarter basis, due and payable 30 days after the close of each quarter.  Late filings, late payments and underpayments of the premium contribution assessments due shall be subject to the same fees, interest and penalties as pertain to contributions for unemployment compensation under chapter 17 of this title.  The commissioner shall establish rules for the administration and collection of premiums under this chapter.  To the extent feasible any reports required of employers under this chapter shall be combined with other reports and information collected from employers by the department of labor.

(d)  Revenues from the premiums collected shall be deposited into the catamount fund established under 33 V.S.A. § 2029 for the purpose of financing health care coverage under Catamount Health, as provided under subchapter 6 of chapter 19 of Title 33.

Sec. 35.  EFFECTIVE DATE 

Sec. 34 of this act, establishing an employers’ health care premium contribution assessment, shall take effect April 1, 2007, with the first premium assessments due and payable 30 days after the close of that quarter.

* * * Cigarette and Tobacco Product Taxes * * *

Sec. 36.  32 V.S.A. § 7702 is amended to read:

§ 7702.  DEFINITIONS

The following words and phrases, as used in this chapter, shall have the following meanings, unless the context otherwise requires:

(1)  “Cigarette” shall mean the common article of commerce known by this name consisting of a small cylindrical roll composed in whole or in part of finely-cut tobacco, wrapped in paper or in any substance other than tobacco means:

(A)  any roll of tobacco wrapped in paper or any substance not containing tobacco, and

(B)  any roll of tobacco wrapped in substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in subdivision (A) of this subsection.  

(2)  “Commissioner” shall mean the commissioner of taxes.

(3)  “Dealer” means any wholesale dealer and retail dealer as herein defined.

(4)  “Distributor” means any person who imports, or causes to be imported, into this state any tobacco product for sale or who manufactures any tobacco product in this state, and any person within or without the state who is authorized by the commissioner to make returns and pay the tax on tobacco products sold, shipped or delivered by him to any person in the state.

(5)  “Licensed wholesale dealer” shall mean a wholesale dealer licensed under the provisions of this chapter.

(6)  “Little cigars” means any rolls of tobacco wrapped in leaf tobacco or any substance containing tobacco (other than any roll of tobacco which is a cigarette within the meaning of subdivision (1) of this section) and as to which one thousand units weigh not more than three pounds.

(6)(7)  “Manufacturer” means a person who manufactures and sells tobacco products.

(7)(8)  “Person” shall mean any individual, firm, fiduciary, partnership, corporation, trust or association, however formed.

(8)(9)  “Place of business” means any place where tobacco products are sold or where tobacco products are manufactured, stored, or kept for the purpose of sale or consumption, including any vessel, vehicle, airplane, train, or vending machine.

(9)(10)  “Retail dealer” shall mean a person who sells or furnishes cigarettes or tobacco products, or both, in small quantities to consumers only, but not for the purpose of resale.

(11)  “Roll-your-own tobacco” means any tobacco which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes.

(10)(12)  “Sale” or “sell” means any transfer, exchange or barter in any manner or by any means whatever, of any cigarettes or tobacco products.

(13)  “Snuff” means any finely cut, ground, or powdered tobacco that is not intended to be smoked.

(11)(14)  “Stamp” shall mean any impression, stamp, label or print manufactured, printed or made as prescribed by the commissioner.

(12)(15)  “Tobacco products” means cigars; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff, snuff flour; cavendish; plug and twist tobacco; fine-cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings and sweeping of tobacco, and other kinds and forms of tobacco, prepared in such manner as to be suitable for chewing or smoking in a pipe or otherwise, or both for chewing and smoking; but shall not include cigarettes as defined in this section.

(13)(16)  “Wholesale dealer” shall mean a person who sells or furnishes cigarettes or tobacco products, or both, to wholesale or retail dealers for the purpose of resale, but not by the small quantity or parcel to consumers thereof.

(14)(17)  “Wholesale dealer’s license” shall mean the license granted under the provisions of this chapter to a wholesale dealer for a wholesale outlet.

(15)(18)  “Wholesale outlet” shall mean any premises where cigarettes or tobacco products, or both, are sold, transferred, displayed or held for sale by a wholesale dealer.

(16)(19)  “Wholesale price” means the price at which a distributor sells or furnishes tobacco products to any retail dealer.

Sec. 37.  32 V.S.A. § 7771 is amended to read:

§ 7771.  RATE OF TAX

(a)  A tax is imposed on all cigarettes, little cigars, and roll-your-own tobacco held in this state by any person for sale or by any person in possession of more than 10,000 cigarettes, or little cigars, or $500.00 or more in retail value of roll-your-own tobacco, unless such cigarettes products shall be:

(1)  in the possession of a licensed wholesale dealer;

(2)  in the course of transit and consigned to a licensed wholesale dealer or retail dealer; or

(3)  in the possession of a retail dealer who has held the cigarettes products for 24 hours or less.

(b)  Such tax shall be at the rate of 59.5 89.5 mills for each cigarette and the payment thereof to or little cigar and for each 0.09 of an ounce of roll‑your‑own tobacco.  Payment of the tax on cigarettes shall be evidenced by the affixing of stamps to the packages containing the cigarettes as hereinafter providedWhere practicable, the commissioner may also require that stamps be affixed to packages containing little cigars or roll-your-own tobacco.  Any cigarette, little cigar, or roll-your-own tobacco, on which the tax imposed by this chapter has been paid, such payment being evidenced by the affixing of such stamp or such evidence as the commissioner may require, shall not be subject to a further tax under this chapter.  Nothing contained in this chapter shall be construed to impose a tax on any transaction the taxation of which by this state is prohibited by the constitution of the United States.  The amount of taxes advanced and paid by a licensed wholesale dealer or a retail dealer as herein provided shall be added to and collected as part of the retail sale price on the cigarettes, little cigars, or roll‑your‑own tobacco.  All taxes upon cigarettes, little cigars, or roll-your-own tobacco under this chapter are declared to be a direct tax upon the consumer at retail and shall conclusively be presumed to be precollected for the purpose of convenience and facility only.

Sec. 38.  32 V.S.A. § 7811 is amended to read: 

§ 7811.  Imposition of tobacco products tax

There is hereby imposed and shall be paid a tax on all tobacco products except roll-your-own tobacco and little cigars taxed under section 7771 of this title possessed in the state of Vermont by any person for sale on and after July 1, 1959 which were imported into the state or manufactured in the state after said date, except that no tax shall be imposed on tobacco products sold under such circumstances that this state is without power to impose such tax, or sold to the United States, or sold to or by a voluntary unincorporated organization of the armed forces of the United States operating a place for the sale of goods pursuant to regulations promulgated by the appropriate executive agency of the United States.  Such tax on tobacco products shall be at the rate of 41 percent of the wholesale price for all tobacco products except snuff which shall be taxed at the rate of $1.49 per ounce, or fractional part thereof, and is intended to be imposed only once upon any tobacco product.  Provided, however, that upon payment of the tax within ten days, the distributor or dealer may deduct from the tax two percent of the tax due.  It shall be presumed that all tobacco products within the state are subject to tax until the contrary is established and the burden of proof that any tobacco products are not taxable hereunder shall be upon the person in possession thereof.

Sec. 39.  32 V.S.A. § 7814 is amended to read:

§ 7814.  FLOOR STOCK TAX

(a)  Tobacco products Snuff.  A floor stock tax is hereby imposed upon every retailer of tobacco products snuff in this state at the rate of 21 percent of the wholesale price of each tobacco product in the amount by which the new tax exceeds the amount of the tax already paid on the snuff.  The tax shall apply to tobacco products snuff in the possession or control of the retailer at 12:01 a.m. o’clock on July 1, 1995 2006, but shall not apply to retailers who hold less than $500.00 in wholesale value of such tobacco products snuff.  Each retailer subject to the tax shall, on or before July 25, 1995 2006 file a report to the commissioner in such form as the commissioner may prescribe showing the tobacco products snuff on hand at 12:01 a.m. o’clock on July 1, 1995 2006, and the amount of tax due thereon.  The tax imposed by this section shall be due and payable on or before July 25, 1995 August 25, 2006, and thereafter shall bear interest at the rate established under section 3108 of this title.  In case of timely payment of the tax, the retailer may deduct from the tax due two percent of the tax.  Any tobacco product snuff with respect to which a floor stock tax has been imposed and paid under this section shall not again be subject to tax under section 7811 of this title.

(b)  Cigarettes, little cigars, or roll-your-own tobacco.  Notwithstanding the prohibition against further tax on stamped cigarettes, little cigars, or

roll-your-own tobacco under section 7771 of this title, a floor stock tax is hereby imposed upon every dealer of cigarettes, little cigars, or roll-your-own tobacco in this state who is either a wholesaler, or a retailer who at 12:01 a.m. o’clock on July 1, 2003 2006, has more than 10,000 cigarettes or little cigars or who has $500.00 or more of whole sale value of roll-your-own tobacco, for retail sale in his or her possession or control.  The rate of tax shall be 13 mills amount of the tax shall be the amount by which the new tax exceeds the amount of the tax already paid for each cigarette, little cigar, or roll-your-own tobacco in the possession or control of the wholesaler or retailer at 12:01 a.m. o’clock on July 1, 2003 2006, and on which cigarette stamps have been affixed before July 1, 2003 2006.  A floor stock tax is also imposed on each Vermont cigarette stamp in the possession or control of the wholesaler at 12:01 a.m. o’clock on July 1, 2003 2006, and not yet affixed to a cigarette package, and the tax shall be at the rate of 26 60 cents per stamp.  Each wholesaler and retailer subject to the tax shall, on or before September 25, 2003 July 25, 2006, file a report to the commissioner in such form as the commissioner may prescribe showing the cigarettes, little cigars, or roll‑your‑own tobacco and stamps on hand at 12:01 a.m. o’clock on July 1, 2003 2006, and the amount of tax due thereon.  The tax imposed by this section shall be due and payable on or before September 25, 2003 August 25, 2006, and thereafter shall bear interest at the rate established under section 3108 of this title.  In case of timely payment of the tax, the wholesaler or retailer may deduct from the tax due two and three‑tenths of one percent of the tax.  Any cigarettes, little cigars, or roll‑your‑own tobacco with respect to which a floor stock tax has been imposed under this section shall not again be subject to tax under section 7771 of this title.

Sec. 40.  CIGARETTE AND TOBACCO PRODUCTS; EFFECTIVE DATE; INCREASE

(a)  Secs. 36 through 39 of this act and this section shall take effect July 1, 2006.

(b)  On and after July 1, 2008, the tax on cigarettes imposed by 32 V.S.A. § 7771 shall be at the rate of 99.5 mills:

(1)  for each cigarette or little cigar; and

(2) for each 0.09 of an ounce of roll-your-own tobacco.

(c)  On July 1, 2008, the tax on snuff imposed by 32 V.S.A. § 7811 on snuff shall be at the rate of $1.66 per ounce or fractional part thereof.

(d)  On July 1, 2008, the floor stock tax imposed by 32 V.S.A. § 7814(b) shall be at the rate of 10 mills:

(1)  for each cigarette or little cigar in the possession or control of a wholesaler or retailer who has more than 10,000 cigarettes or little cigars on July 1, 2008; and

(2)  for each 0.09 of an ounce of roll-your-own tobacco in the possession or control of a wholesaler or retailer who has $500.00 or more of retail value of roll‑your‑own tobacco on July 1, 2008.

(e)  On July 1, 2008, the floor stock tax imposed by 32 V.S.A. § 7814(a) shall be at the rate of 17 cents per ounce or fraction thereof on snuff in the possession or control of a retailer who has $500.00 or more in wholesale value of snuff on July 1, 2008.

(f)  The floor stock tax imposed by subsections (d) and (e) of this section shall be reported by the wholesaler or dealer on or before July 25, 2008 and shall be due and payable on or before August 25, 2008.

Sec. 41.  33 V.S.A. § 1901d is amended to read:

§ 1901d.  STATE HEALTH CARE RESOURCES FUND

(a)  The state health care resources fund is established in the treasury as a special fund to be a source of financing health care coverage for beneficiaries of the state health care assistance programs under the global commitment to health care waiver approved by the Centers for Medicare and Medicaid Services under Section 1115 of the Social Security Act.

(b)  Into the fund shall be deposited:

(1)  revenue from the cigarette and tobacco products tax established in  all revenue from the tobacco products tax and 82.5 percent of the revenue from the cigarette tax levied pursuant to chapter 205 of Title 32;

(2)  revenue from health care provider assessments pursuant to subchapter 2 of chapter 19 of this title; and

(3)  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 health care covered through state health care assistance programs administered by the agency under the global commitment Global Commitment for Health Medicaid Section 1115 waiver.

Sec. 42.  DISTRIBUTION OF REVENUE

The percentage of revenues from the cigarette tax increase in 2008, which is distributed between the state health care resources fund in section 1901d of Title 33 and the Catamount fund in section 2028 of Title 33 shall be amended to reflect this increase.

Sec. 43.  32 V.S.A. § 435(b) is amended to read:

(b)  The general fund shall be composed of revenues from the following sources:

* * *

(8)  Cigarettes and tobacco products taxes levied pursuant to chapter 205 of this title;

* * *

Sec. 44.  ALLOCATION OF FLOOR STOCK TAX REVENUE

The revenue from the floor stock tax under subsection 7814(b) of Title 32 as amended by this act shall be deposited in the Catamount fund.

* * * Pharmacy Provisions * * *

Sec. 45.  33 V.S.A. § 2005(3) is amended to read:

(3)  The office of the attorney general shall keep confidential all trade secret information, as defined by subdivision 317(b)(9) of Title 1.  The disclosure form shall permit the company to identify any information that it claims is a trade secret as defined in subdivision 317(c)(9) of Title 1.  In the event that the attorney general receives a request for any information designated as a trade secret, the attorney general shall promptly notify the company of such request.  Within 30 days after such notification, the company shall respond to the requester and the attorney general by either consenting to the release of the requested information or by certifying in writing the reasons for its claim that the information is a trade secret.  Any requester aggrieved by the company’s response may apply to the superior court of Washington County for a declaration that the company’s claim of trade secret is invalid.  The attorney general shall not be made a party to the superior court proceeding. Prior to and during the pendency of the superior court proceeding, the attorney general shall keep confidential the information that has been claimed as trade secret information, except that the attorney general may provide the requested information to the court under seal.

* * * Technical Amendments * * *

Sec. 46.  32 V.S.A. § 305a is amended to read:

§ 305a.  OFFICIAL STATE REVENUE ESTIMATE

(a)  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, 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. 

(b)  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. 

(c)  The health access trust fund estimate estimates shall include estimated caseloads and estimated per member per month expenditures for the current and next succeeding fiscal years for each population category eligible Medicaid enrollment group as defined by the agency and the joint fiscal office for state health care assistance programs or premium assistance programs supported by the fund state health care resources and Global Commitment funds, for Vermont Rx, and for the programs under the Choices for Care Medicaid Section 1115 waiver.  For VPharm, the estimates shall include estimated caseloads and estimated per-member per-month expenditures for the current and next succeeding fiscal years by income category.  The estimates shall include the expenditures for the current and next succeeding fiscal years for the Medicare Part D phased-down state contribution payment and for the disproportionate share hospital payments. 

* * * Oversight and Reporting * * *

Sec. 47.  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 based on a new survey conducted by the department of banking, insurance, securities, and health care administration;

(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. 48.  FUNDING SOURCES

(a)(1)  $2,500,000.00 of the funds appropriated in Sec. 107 of H.881 of the 2005 Adj. Sess. (2006) is to increase Medicaid rates to health care professionals on January 1, 2007, under Sec. 9(a) of this act.

(2)  $1,000,000.00 of the funds appropriated in Sec. 107 of H.881 of the 2005 Adj. Sess. (2006) is to increase Medicaid rates to hospitals on January 1, 2007, under Sec. 9(b) of this act.

(b)  $100,000.00 of the funds appropriated to the department of health in Sec. 115 of H.881 of the 2005 Adj. Sess. (2006) is for the planning grant established in Sec. 33 of this act.

(c)  $1,000,000.00 of the funds appropriated in Sec. 105 of H.881 of the 2005 Adj. Sess. (2006) is for the establishment, initial administration, and development of the infrastructure for the employer-sponsored premium assistance program under section 1974 of Title 33.

(d)  $400,000.00 of the funds appropriated under Sec. 87 of H.881 of the 2005 Adj. Sess. (2006) is allocated to the department of banking, insurance, securities, and health care administration for further development of the multi-payer database established by 18 V.S.A. § 9410(h), and the consumer price and quality information system.   

Sec. 49.  EFFECTIVE AND IMPLEMENTATION DATES

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

(1)  Secs. 9 (Medicaid reimbursement), 10 (Blueprint for Health reimbursements),  25 (hospital cost shift analysis), 33 (community health care planning grant) and 41 (state health care resources fund) shall take effect

July 1, 2006

(2)  Secs. 11 (VHAP premiums), 12 (Dr. Dynasaur premiums), and 27 (Nongroup market security trust) shall take effect July 1, 2007

(3)  Secs. 13 (Employer-sponsored insurance premium assistance) and 16 (Catamount Health assistance) 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 of the programs; implementation of the programs, however, shall not commence until October 1, 2007.

* * * WELLNESS INITIATIVES * * *

* * * Healthy Lifestyle Insurance Discount * * *

Sec. 50.  8 V.S.A. § 4080a(h) is amended to read:

(h)(1)  A registered small group carrier shall use a community rating method acceptable to the commissioner for determining premiums for small group plans.  Except as provided in subdivision (2) of this subsection, the following risk classification factors are prohibited from use in rating small groups, employees, or members of such groups, and dependents of such employees or members:

(A)  demographic rating, including age and gender rating;

(B)  geographic area rating;

(C)  industry rating;

(D)  medical underwriting and screening;

(E)  experience rating;

(F)  tier rating; or

(G)  durational rating.

(2)(A)  The commissioner shall, by rule, adopt standards and a process for permitting registered small group carriers to use one or more risk classifications in their community rating method, provided that the premium charged shall not deviate above or below the community rate filed by the carrier by more than 20 percent (20%), and provided further that the commissioner’s rules may not permit any medical underwriting and screening.

(B)  The commissioner’s regulations shall permit a carrier, including a hospital or medical service corporation and a health maintenance organization, to establish rewards, premium discounts, rebates, or otherwise waive or modify applicable co-payments, deductibles, or other cost-sharing amounts in return for adherence by a member or subscriber to programs of health promotion and disease prevention.  The commissioner shall consult with the commissioner of health and the director of the office of Vermont health access in the development of health promotion and disease prevention regulations.  Such regulations shall:

(i)  limit any reward, discount, rebate, or waiver or modification of cost-sharing amounts to not more than a total of 15 percent of the cost of the premium for the applicable coverage tier, provided that the sum of any rate deviations under subdivision (A) of this subdivision (2) does not exceed 30 percent;

(ii)  be designed to promote good health or prevent disease for individuals in the program and not be used as a subterfuge for imposing higher costs on an individual based on a health factor;

(iii)  provide that the reward under the program is available to all similarly situated individuals; and

(iv)  provide a reasonable alternative standard to obtain the reward to any individual for whom it is unreasonably difficult due to a medical condition or other reasonable mitigating circumstance to satisfy the otherwise applicable standard for the discount and disclose in all plan materials that describe the discount program the availability of a reasonable alternative standard.

(C)  The commissioner’s regulations shall include:

(i)  standards and procedures for health promotion and disease prevention programs based on the best scientific, evidence-based medical practices as recommended by the commissioner of health;

(ii)  standards and procedures for evaluating an individual’s adherence to programs of health promotion and disease prevention; and

(iii)  any other standards and procedures necessary or desirable to carry out the purposes of this subdivision (2).

(3)  The commissioner may exempt from the requirements of this section an association as defined in section subdivision 4079(2) of this title which:

(A)  offers a small group plan to a member small employer which is community rated in accordance with the provisions of subdivisions (1) and (2) of this subsection.  The plan may include risk classifications in accordance with subdivision (2) of this subsection;

(B)  offers a small group plan that guarantees acceptance of all persons within the association and their dependents; and

(C)  offers one or more of the common health care plans approved by the commissioner under subsection (e) of this section.

(4)  The commissioner may revoke or deny the exemption set forth in subdivision (3) of this subsection if the commissioner determines that:

(A)  because of the nature, size, or other characteristics of the association and its members, the employees, or members are in need of the protections provided by this section; or

(B)  the association exemption has or would have a substantial adverse effect on the small group market.

Sec. 51.  8 V.S.A. § 4080b(h) is amended to read:

(h)(1)  A registered nongroup carrier shall use a community rating method acceptable to the commissioner for determining premiums for nongroup plans.  Except as provided in subdivision (2) of this subsection, the following risk classification factors are prohibited from use in rating individuals and their dependents:

(A)  demographic rating, including age and gender rating;

(B)  geographic area rating;

(C)  industry rating;

(D)  medical underwriting and screening;

(E)  experience rating;

(F)  tier rating; or

(G)  durational rating.

(2)(A)  The commissioner shall, by rule, adopt standards and a process for permitting registered nongroup carriers to use one or more risk classifications in their community rating method.  After July 1, 1993, provided that the premium charged shall not deviate above or below the community rate filed by the carrier by more than 40 percent (40%) for two years, and thereafter 20 percent (20%).  Such rules may not permit, and provided further that the commissioner’s regulations may not permit any medical underwriting and screening and shall give due consideration to the need for affordability and accessibility of health insurance.

(B)  The commissioner’s regulations shall permit a carrier, including a hospital or medical service corporation and a health maintenance organization, to establish rewards, premium discounts, rebates, or otherwise waive or modify applicable co-payments, deductibles, or other cost-sharing amounts in return for adherence by a member or subscriber to programs of health promotion and disease prevention.  The commissioner shall consult with the commissioner of health and the director of the office of Vermont health access in the development of health promotion and disease prevention regulations.  Such regulations shall:

(i)  limit any reward, discount, rebate, or waiver or modification of cost-sharing amounts to not more than a total of 15 percent of the cost of the premium for the applicable coverage tier, provided that the sum of any rate deviations under subdivision 4080a(2)(A) of this title does not exceed 30 percent;

(ii)  be designed to promote good health or prevent disease for individuals in the program and not be used as a subterfuge for imposing higher costs on an individual based on a health factor;

(iii)  provide that the reward under the program is available to all similarly situated individuals; and

(iv)  provide a reasonable alternative standard to obtain the reward to any individual for whom it is unreasonably difficult due to a medical condition or other reasonable mitigating circumstance to satisfy the otherwise applicable standard for the discount and disclose in all plan materials that describe the discount program the availability of a reasonable alternative standard.

(C)  The commissioner’s regulations shall include:

(i)  standards and procedures for health promotion and disease prevention programs based on the best scientific, evidence-based medical practices as recommended by the commissioner of health;

(ii)  standards and procedures for evaluating an individual’s adherence to programs of health promotion and disease prevention; and

(iii)  any other standards and procedures necessary or desirable to carry out the purposes of this subdivision (2).

Sec. 52.  8 V.S.A. § 4516 is amended to read:

§ 4516.  ANNUAL REPORT TO COMMISSIONER

Annually, on or before March 15, a hospital service corporation shall file with the commissioner of banking, insurance, securities, and health care administration a statement sworn to by the president and treasurer of the corporation showing its condition on December 31.  The statement shall be in such form and contain such matters as the commissioner shall prescribe.  To qualify for the tax exemption set forth in section 4518 of this title, the statement shall include a certification that the hospital service corporation operates on a nonprofit basis for the purpose of providing an adequate hospital service plan to individuals of the state, both groups and nongroups, without discrimination based on age, gender, geographic area, industry, and medical history, except as allowed by subdivisions 4080a(h)(2)(B) and 4080b(h)(2)(B) of this title.

Sec. 53.  8 V.S.A. § 4588 is amended to read:

§ 4588.  ANNUAL REPORT TO COMMISSIONER

Annually, on or before March 15, a medical service corporation shall file with the commissioner of banking, insurance, securities, and health care administration a statement sworn to by the president and treasurer of the corporation showing its condition on December 31, which shall be in such form and contain such matters as the commissioner shall prescribe.  To qualify for the tax exemption set forth in section 4590 of this title, the statement shall include a certification that the medical service corporation operates on a nonprofit basis for the purpose of providing an adequate medical service plan to individuals of the state, both groups and nongroups, without discrimination based on age, gender, geographic area, industry, and medical history, except as allowed by subdivisions 4080a(h)(2)(B) and 4080b(h)(2)(B) of this title.

Sec. 54.  8 V.S.A. § 5115 is amended to read:

§ 5115.  DUTY OF NONPROFIT HEALTH MAINTENANCE ORGANIZATIONS 

Any nonprofit health maintenance organization subject to this chapter shall offer nongroup plans to individuals in accordance with section 4080b of this title without discrimination based on age, gender, industry, and medical history, except as allowed by subdivisions 4080a(h)(2)(B) and 4080b(h)(2)(B) of this title.

* * * Administrative Simplification * * *

Sec. 55.  COMMON CLAIMS AND PROCEDURES

(a)  No later than July 1, 2008, the commissioner shall amend the rules adopted pursuant to section 9408 of Title 18 as may be necessary to implement the recommendations of the final report described in subsection (g) of this section, as the commissioner deems appropriate in his or her discretion.  Nothing in this section shall be construed to alter the commissioner’s authority under Title 8 or chapter 221 of Title 18.

(b)  No later than July 1, 2006, a common claims and procedures work group shall form, composed of:   

(1)  two representatives selected by the Vermont association of hospitals and health systems;

(2)  two representatives selected by the Vermont medical society;

(3)  one representative of each of the three largest health care insurers;

(4)  the director of the office of health access or designee;

(5)  two representatives from business groups appointed by the governor;

(6)  the health care ombudsman or designee;

(7)  one representative of consumers appointed by the governor; and

(8)  the commissioner of the department of banking, insurance, securities and health care administration or designee.

(c)  The group shall design, recommend, and implement steps to achieve the following goals:

(1)  Simplifying the claims administration process for consumers, health care providers, and others so that the process is more understandable and less time-consuming.

(2)  Lowering administrative costs in the health care financing system.

(d)  The group shall elect a chair at its first meeting.  The chair, or the chair’s designee, shall be responsible for scheduling meetings and ensuring the completion of the reports called for in subsection (g) of this section.  Each organization represented on the work group shall be asked to contribute funds for the group’s administrative costs. 

(e)  On or before September 1, 2006, the work group shall present a two‑year work plan and budget to the house committee on health care and the senate committee on health and welfare. 

(f)  This work plan may include the elements of the claims administration process, including claims forms, patient invoices, and explanation of benefits forms, payment codes, claims submission and processing procedures, including electronic claims processing, issues relating to the prior authorization process and reimbursement for services provided prior to being credentialed.

(g)  The work group shall make an interim report to the governor and the general assembly on or before January 15, 2007 describing the progress of the group and any interim steps taken to achieve the goals of the work plan.  The work group shall make a final report to the governor and the general assembly on or before January 15, 2008 with the findings that illustrate the outcomes of implementations derived from the work group actions along with a list of future actions and goals, which shall specify cost savings achieved and expected future savings. 

Sec. 56.  18 V.S.A. § 9408a is added to read:

§ 9408a.  Uniform Provider Credentialing

(a)  Definitions.  As used in this section:

(1)  “Credentialing” means a process through which an insurer or hospital makes a determination, based on criteria established by the insurer or hospital, concerning whether a provider is eligible to:

(A)  provide health care services to an insured or hospital patients; and

(B) receive reimbursement for the health care services.

(2)  “Health care services” means health‑care‑related services or products rendered or sold by a provider within the scope of the provider’s license or legal authorization, including hospital, medical, surgical, dental, vision, and pharmaceutical services or products.

(3)  “Insured” means an individual entitled to reimbursement for

expenses of health care services under a policy issued or administered

by an insurer.

(4)  “Insurer” has the same meaning as in subdivision 9402(9) of this title.

(5)  “Provider” has the same meaning as in subdivision 9402(8) of this title.

(b)  The department shall prescribe the credentialing application form used by the Council for Affordable Quality Healthcare (CAQH), or a similar, nationally recognized form prescribed by the commissioner, in electronic or paper format, which must be used beginning January 1, 2007 by an insurer or a hospital that performs credentialing.

(c)  An insurer or a hospital shall notify a provider concerning a deficiency on a completed credentialing application form submitted by the provider not later than 30 business days after the insurer or hospital receives the completed credentialing application form.

(d)  An insurer or a hospital shall notify a provider concerning the status of the provider’s completed credentialing application not later than:

(1)  Sixty days after the insurer or hospital receives the completed

credentialing application form; and

(2)  Every 30 days after the notice is provided under subdivision (1) of this subsection, until the insurer or hospital makes a final credentialing determination concerning the provider.

(e)  The commissioner may enforce compliance with the provisions of this section as to insurers and as to hospitals as if the hospital were an insurer under section 3661 of Title 8.  

* * * Multi-Payer Database and

Consumer Price and Quality Information * * *

Sec. 57.  18 V.S.A. § 9410 is amended to read:

§ 9410.  HEALTH CARE DATA BASE DATABASE

(a)(1)  The commissioner shall establish and maintain a unified health care data base to enable the commissioner to carry out the duties under this chapter and Title 8, including:

(1)(A)  Determining the capacity and distribution of existing resources.

(2)(B)  Identifying health care needs and informing health care policy.

(3)(C)  Evaluating the effectiveness of intervention programs on improving patient outcomes.

(4)(D)  Comparing costs between various treatment settings and approaches.

(5)(E)  Providing information to consumers and purchasers of health care.

(F)  Improving the quality and affordability of patient health care and health care coverage.

(2)(A)  The program authorized by this section shall include a consumer health care price and quality information system designed to make available to consumers transparent health care price information, quality information, and such other information as the commissioner determines is necessary to empower individuals, including uninsured individuals, to make economically sound and medically appropriate decisions.

(B)  The commissioner shall convene a working group composed of the commissioner of health, the director of the office of Vermont health access, health care consumers, the office of the health care ombudsman, employers and other payers, health care providers and facilities, the Vermont program for quality in health care, health insurers, and any other individual or group appointed by the commissioner to advise the commissioner on the development and implementation of the consumer health care price and quality information system.

(C)  The commissioner may require a health insurer covering at least five percent of the lives covered in the insured market in this state to file with the commissioner a consumer health care price and quality information plan in accordance with regulations adopted by the commissioner. 

(D)  The commissioner shall adopt such regulations as are necessary to carry out the purposes of this subdivision.  The commissioner’s regulations may permit the gradual implementation of the consumer health care price and quality information system over time, beginning with health care price and quality information that the commissioner determines is most needed by consumers or that can be most practically provided to the consumer in an understandable manner.  The regulations shall permit health insurers to use security measures designed to allow subscribers access to price and other information without disclosing trade secrets to individuals and entities who are not subscribers.  The regulations shall avoid unnecessary duplication of efforts relating to price and quality reporting by health insurers, health care providers, health care facilities, and others, including activities undertaken by hospitals pursuant to their community report obligations under section 9405b of this title. 

* * *

(c)  Health insurers, health care providers, health care facilities and governmental agencies shall file reports, data, schedules, statistics, or other information determined by the commissioner to be necessary to carry out the purposes of this section.  Such information may include:

(1)  health insurance claims and enrollment information used by health insurers;

(2)  information relating to hospitals filed under subchapter 7 of this chapter (hospital budget reviews); and

(3)  any other information relating to health care costs, prices, quality, utilization, or resources required to be filed by the commissioner.

* * *

(h)(1)  Data Collection and Information Sharing.  All health insurers shall electronically provide to the commissioner in accordance with standards and procedures adopted by the commissioner by rule:

(A)  their encrypted health insurance claims data;

(B)  cross-matched claims data on requested members, subscribers, or policyholders; and

(C)  member, subscriber, or policyholder information necessary to determine third party liability for benefits provided.

(2)  The collection, storage, and release of health care data and statistical information that is subject to the federal requirements of the Health Insurance Portability and Accountability Act (“HIPAA”) shall be governed exclusively by the rules adopted thereunder in 45 CFR Parts 160 and 164.

(A)  All health insurers that collect the Health Employer Data and Information Set (HEDIS) shall annually submit the HEDIS information to the commissioner in a form and in a manner prescribed by the commissioner.

(B)  All health insurers shall accept electronic claims submitted in Centers for Medicare and Medicaid Services format for UB-92 or HCFA-1500 records, or as amended by the Centers for Medicare and Medicaid Services.

(3)(A)  The commissioner shall collaborate with the agency of human services and participants in agency of human services initiatives in the development of a comprehensive health care information system.  The collaboration is intended to address the formulation of a description of the data sets that will be included in the comprehensive health care information system, the criteria and procedures for the development of limited use data sets, the criteria and procedures to ensure that HIPAA compliant limited use data sets are accessible, and a proposed time frame for the creation of a comprehensive health care information system.

(B)  To the extent allowed by HIPAA, the data shall be available as a resource for insurers, employers, providers, purchasers of health care, and state agencies to continuously review health care utilization, expenditures, and performance in Vermont and to enhance the ability of Vermont consumers and employers to make informed and cost-effective health care choices.  In presenting data for public access, comparative considerations shall be made regarding geography, demographics, general economic factors, and institutional size.

(C)  Consistent with the dictates of HIPAA, and subject to such terms and conditions as the commissioner may prescribe by regulation, the Vermont information technology leaders (VITL) shall have access to the database for use in the development of a statewide health information technology plan pursuant to section 9417 of this title, and the Vermont program for quality in health care shall have access to the database for use in improving the quality of health care services in Vermont.

(C)(D)  Notwithstanding HIPAA or any other provision of law, the comprehensive health care information system shall not include or publicly disclose any data that contains direct personal identifiers.  For the purposes of this section, “direct personal identifiers” include information relating to an individual that contains primary or obvious identifiers, such as the individual’s name, street address, e-mail address, telephone number, and Social Security number.

(i)(1)  As used in this section, and without limiting the meaning of subdivision 9402(9) of this title, the term “health insurer” includes:

(A)  any entity defined in subdivision 9402(9) of this title;

(B)  any third party administrator, any pharmacy benefit manager, any entity conducting administrative services for business, and any other similar entity with claims data, eligibility data, provider files, and other information relating to health care provided to Vermont resident, and health care provided by Vermont health care providers and facilities required to be filed by a health insurer under this section;

(C)  any health benefit plan offered or administered by or on behalf of the state of Vermont or an agency or instrumentality of the state; and

(D)  any health benefit plan offered or administered by or on behalf of the federal government with the agreement of the federal government.

(2)  The commissioner may adopt rules to carry out the provisions of this subsection, including standards and procedures requiring the registration of persons or entities not otherwise licensed or registered by the commissioner and criteria for the required filing of such claims data, eligibility data, provider files, and other information as the commissioner determines to be necessary to carry out the purposes of this section and this chapter.

* * * Master Provider Index * * *

Sec. 58.  MASTER PROVIDER INDEX

(a)  No later than September 1, 2006, a work group shall be convened by the area health education centers (AHEC) program for the purpose of making recommendations for the creation of a master provider index designed to assure uniform and consistent identification and cross‑reference of all Vermont health care professionals in the development and implementation of health care technology in Vermont.  The work group shall:

(1)  be composed of interested parties, including representatives of health care provider associations and societies, public and private insurers, the Vermont program for quality health care (VPQHC), appropriate departments of state government, including the commissioner of the department of banking, insurance, securities, and health care administration or designee, the area health education centers (AHEC) program, and Vermont information technology leaders (VITL), for the purpose of creating a set of common data fields for a master provider index of all health care providers, as defined in subdivision 9402(8) of Title 18;  

(2)  compile recommendations from those parties regarding data fields that are necessary to be included in a database that allows for comprehensive cross‑referencing of the multiple “unique identification codes” applied to health care providers through licensure, credentialing, and billing and claims processing mechanisms for the purpose of supporting the implementation of health information exchange and public health and policy research, analysis and planning;

(3)  provide cost and time estimates for development and implementation of such an index; and

(4)  develop recommendations for the governance of the index and its relationship to other state health information data systems, technologies, and records.

(b)  No later than January 15, 2007, the work group shall report to the general assembly on the information obtained and shall make recommendations regarding the advisability of creating and sustaining a master provider index.  

Sen. James Leddy

Sen. Ann Cummings

Sen. Kevin Mullin

Committee on the part of the Senate

Rep. John Tracy

Rep. Harry Chen

Rep. Francis McFaun

Committee on the part of the House

Pending the question, Shall the House adopt the committee of conference report? Rep. Nease of Johnson demanded the Yeas and Nays, which demand was sustained by the Constitutional number.  The Clerk proceeded to call the roll and the question, Shall the House adopt the committee of conference report?  was decided in the affirmative.  Yeas, 88.  Nays, 54.

Those who voted in the affirmative are:


Adams of Hartland

Ancel of Calais

Aswad of Burlington

Atkins of Winooski

Baker of West Rutland

Barnard of Richmond

Bohi of Hartford

Botzow of Pownal

Branagan of Georgia

Brooks of Montpelier

Chen of Mendon

Clarkson of Woodstock

Condon of Colchester

Copeland-Hanzas of Bradford

Corcoran of Bennington

Cross of Winooski

Darrow of Dummerston

Deen of Westminster

DePoy of Rutland City

Donovan of Burlington

Dostis of Waterbury

Dowland of Holland

Dunsmore of Georgia

Emmons of Springfield

Evans of Essex

Fallar of Tinmouth

Frank of Underhill

French of Randolph

Gervais of Enosburg

Grad of Moretown

Green of Berlin

Head of S. Burlington

Heath of Westford

Hosford of Waitsfield

Howard of Rutland City

Howrigan of Fairfield

Hunt of Essex

Hutchinson of Randolph

Jerman of Essex

Jewett of Ripton

Johnson of South Hero

Kainen of Hartford

Keenan of St. Albans City

Keogh of Burlington

Kitzmiller of Montpelier

Klein of East Montpelier

Koch of Barre Town

Kupersmith of S. Burlington

Larson of Burlington

Leriche of Hardwick

Lippert of Hinesburg

Lorber of Burlington

Maier of Middlebury

Malcolm of Pawlet

Marek of Newfane

Marron of Stowe

Martin of Wolcott

Masland of Thetford

McCullough of Williston

McFaun of Barre Town

McLaughlin of Royalton

Milkey of Brattleboro

Miller of Shaftsbury

Minter of Waterbury

Molloy of Arlington

Monti of Barre City

Mook of Bennington

Nease of Johnson

Nitka of Ludlow

Nuovo of Middlebury

Obuchowski of Rockingham

Orr of Charlotte

Partridge of Windham

Pellett of Chester

Perry of Richford

Peterson of Williston

Potter of Clarendon

Pugh of S. Burlington

Reese of Pomfret

Rodgers of Glover

Rusten of Halifax

Shand of Weathersfield

Sharpe of Bristol

Smith of Morristown

Sweaney of Windsor

Tracy of Burlington

Valliere of Barre City

Wright of Burlington


Those who voted in the negative are:


Acinapura of Brandon

Allaire of Rutland City

Allard of St. Albans Town

Bartlett of Dover

Bostic of St. Johnsbury

Brennan of Colchester

Canfield of Fair Haven

Clark of St. Johnsbury

Clark of Vergennes

Dates of Shelburne

Donaghy of Poultney

Donahue of Northfield

Edwards of Brattleboro

Errecart of Shelburne

Fisher of Lincoln

Flory of Pittsford

Haas of Rochester

Helm of Castleton

Houston of Ferrisburgh

Hube of Londonderry

Hudson of Lyndon

Johnson of Canaan

Kennedy of Chelsea

Kilmartin of Newport City

Komline of Dorset

Krawczyk of Bennington

Larocque of Barnet

Larrabee of Danville

LaVoie of Swanton

Lawrence of Lyndon

Livingston of Manchester

Louras of Rutland City

Marcotte of Coventry

McAllister of Highgate

Miller of Elmore

Morley of Barton

Morrissey of Bennington

Myers of Essex

Niquette of Colchester

O'Donnell of Vernon

Otterman of Topsham

Parent of St. Albans City

Pearson of Burlington

Peaslee of Guildhall

Pillsbury of Brattleboro

Randall of Troy

Shaw of Derby

Smith of New Haven

Sunderland of Rutland Town

Turner of Milton

Winters of Swanton

Winters of Williamstown

Young of Orwell

Zuckerman of Burlington


Those members absent with leave of the House and not voting are:


Audette of S. Burlington

Endres of Milton

Martin of Springfield

Seibert of Norwich

Severance of Colchester

Trombley of Grand Isle

Westman of Cambridge


 

     Rep. Clarkson of Woodstock explained her vote as follows:

“Madam Speaker:

     I vote yes on H. 861.  I applaud the tremendous work done by so many House members.  The process has resulted in a bill we can all be proud of.  This is an important first step on the path of health care reform and long overdue.”

     Rep. Condon of Colchester explained his vote as follows:

“Madam Speaker:

     As someone who lived without insurance for more than a decade, I’d like to thank the committee and the conferees for taking this first step towards available, accountable and affordable health care.  Thank you.”

     Rep. Copeland-Hanzas of Bradford explained her vote as follows:

“Madam Speaker:

     With health care expenditures rising by $1 million a day the status quo is not acceptable.  H. 861 brings a system of care to the way we treat people with chronic conditions.  For the first time we begin reigning in health care costs by keeping people healthier. We should all thank the conferees for their patience and persistence in going back to the table time and time again in a good faith effort amidst political games to give us today a good health care reform bill.”

     Rep. Cross of Winooski explained his vote as follows:

“Madam Speaker:

     Today the Governor of Vermont stated, “we have succeeded in forming an alliance of ideas fashioned around our common commitment to making health care affordable and accessible for every Vermonter.”  He went on to say, “Today’s agreement on health care is an important step toward making Vermont more affordable for Vermonters.”  The Governor also said, “I want to thank legislative leaders, Speaker Symington in particular, for continuing to work with me and my administration to reach an agreement on health care reform measures that protects taxpayers.

     Tonight I stand with my Governor, my Speaker and my Health Care Committee and voted yes.”

     Rep. DePoy of Rutland City explained his vote as follows:

“Madam Speaker:

     I vote yes with the understanding that there is a bill yet to be voted on and possible amendments to that bill which will fix problems that currently exist in this bill.  Without these fixes my vote would be no.”

     Rep. Donahue of Northfield explained her vote as follows:

“Madam Speaker:

     There have been two core changes at stake in the health care reform efforts of the past decade.

     One has been in how care is delivered. This bill takes significant steps forward in the changes already set into motion by the governor and the Republican House and Democratic Senate two years ago: the vision of greater statewide planning established in Act 53, and the chronic care initiative put into place by the Department of Health.

     It adds new improvements that we have all agreed are “common sense” - indeed, have been encouraged for years, and finally will be moving forward, from insurance paperwork requirements to technology advances.

     I told my constituents a month ago how much I respected the fact that these initiatives were set out in a separate bill, not hostage to the contested financing issues. Regrettably, I spoke too soon.

     The second issue has been in how costs are allocated. We have the benefit of living in a state where care - perhaps inefficient care - but care, is delivered, even to the uninsured. So we talk about more efficient spending, and reducing the cost shift -- how the money is routed. This is a little misleading.

     There will always be costs shifts, unless every person pays directly for all care out of his or her own pocket. We are not changing whether costs are shifted, but rather, whether they can be shifted more fairly, and spread out more fairly upon the citizens of this state. We must remember that all health care costs, just like all taxes, are ultimately only paid by individual people, regardless of the route through which they are channeled. Some of the shifts in this bill are bad ones - I’ve spoken before of how a half to a third of the tobacco tax is paid by those with serious mental illnesses.

     But there is a much bigger falsehood in this bill. It claims to address health care financing, while ignoring the huge number of Vermonters who already rely upon the state - upon us - for their health care. We haven’t taken up all the costs and re-sorted how to share them. We’ve left out our existing commitment, and how we are going to fund it in the years ahead. And that means the math doesn’t work.

     Last week, I heard another member on this floor speak about not making promises we can’t keep. This vote, however well intentioned, is about making promises without putting the whole picture together on the table. That does not represent progress in the reallocation of how we pay, and who pays, for health care for all Vermonters, because it leaves out a huge number of Vermonters, and a huge amount of our financial commitment.

     This bill should be called the “Medicaid Bankruptcy Act of 2006.” I am left now only to hope that time proves me wrong.

     Rep. Hosford of Waitsfield explained her vote as follows:

“Madam Speaker:

     This is an enormously complex bill addressing an enormously complex problem.  Has every possible future exigency been addressed?  Perhaps not.  But it is a first step – a step we must take to reduce health care costs and provide better health care to Vermonters.  It will need to be adjusted and changed at the checkpoints.  But we can’t let the complexity force us into paralysis.  We must take the excellent work of our Health Care committee and build upon it.”

     Rep. Houston of Ferrisburgh explained her vote as follows:

“Madam Speaker:

     We have just created the Act 60 of Health Care.  Costs will rise and the funding will not be sustainable.  As it has been said many times… if you think health care is expensive now, wait until it is free.

     Rep. Keogh of Burlington explained his vote as follows:

“Madam Speaker:

     As we proceed with health care for all Vermonters a step at a time, I was privileged to vote yes as one of the toes.”

     Rep. Otterman of Topsham explained his vote as follows:

“Madam Speaker:

     It is unfortunate that we haven’t taken control of our present health care costs before embarking on a new adventure.

     Vermont’s rate of Medicaid enrollment is nearly triple the rate in New Hampshire.  Yet we fail to enforce our laws against faking financial need in order to receive benefits.

     Doctors’ insurance costs have gone through the roof as recoveries for medical errors are fattened with add-ons for punitive and non economic damages.  Meanwhile lawyers calculate their fees as a percentage of the award instead of on the basis of time spent and the value of their services.

     We are going in the wrong direction.  Tobacco money shrinks as time passes and will never support this new program.  We are headed toward major tax increases as government proves once again that it is less efficient than doctors and hospitals practicing in the private sector.

     Rep. Pugh of Burlington explained her vote as follows:

“Madam Speaker:

No state can solve the national health care crisis by itself.  But Washington’s failure can’t be our own.  We must do what we can do now to make health care more affordable for Vermonters.  H. 861 does just that by basing premiums on an individuals ability to pay.

Rep. Shand of Weathersfield explained his vote as follows:

“Madam Speaker:

H. 861 will reduce the present cost shift from the uninsured, to insured Vermonters.  That is good for Vermonters.

Rep. Winters of Williamstown explained his vote as follows:

“Madam Speaker:

     This vote stinks!”

     Rep. Wright of Burlington explained his vote as follows:

“Madam Speaker:

     I vote yes, and hope my fears that this bill lead to a single payer health care system are unfounded.”

     Rep. Zuckerman of Burlington explained his vote as follows:

“Madam Speaker:

     I appreciate all of the hard work many have done. I hope that I am proven wrong. I hope that the claims of this being a step towards an efficient universal single payer system come true.  But I am afraid that we are claiming reform and will not seriously address the underinsured and many uninsured for many, many more years.

     Until there is a very clear path, I cannot vote yes.  I hope the Governor will not continue to stand in the way in the years to come.”

     Rep. Flory of Pittsford moved to interrupt the Orders of the Day to permit introduction of H. 895, which was agreed to.

House Bill Introduced; Rules Suspended; Bill Read Second Time Third Reading Ordered; Rules Suspended; Bill Read Third Time and Passed; Rules Suspended and Bill Ordered Messaged to Senate Forthwith

H. 895

     Reps. Tracy of Burlington, Ancel of Calais, Chen of Mendon, Copeland-Hanzas of Bradford, Keogh of Burlington, Leriche of Hardwick, Maier of Middlebury, McFaun of Barre Town, Milkey of Brattleboro and Severance of Colchester introduced a bill, entitled

An act relating to Catamount Health;

Which was read the first time and referred to the committee on Health Care.

Pending entrance of the bill on the Calendar for notice, on motion of Rep. Flory of Pittsford, the rules were suspended and the was taken up for immediate consideration.

Rep. Tracy of Burlington, for the committee on Health Care, to which the bill had been referred, recommended that the bill be amended as follows:

     By inserting a Sec. 4 to read:

Sec. 4.  Sec. 21 of H.861 of the 2005 Adj. Sess. (2006) shall be amended in 2 V.S.A. § 902(a), in the first sentence, by striking “2009” and inserting in lieu thereof “2011

Thereupon, the bill was read the second time  and the report of the committee on Health Care agreed to and third reading ordered.

 Pending the question, Shall the bill be read the third time? Rep. Louras of Rutland City moved to amend the bill as follows:

By adding a new section 4 as follows:

Sec. 4.  Sec. 16 of H.861of the 2005 Adj. Sess. (2006), 33 V.S.A. § 1981(a), shall be amended by striking the word “The” at the beginning of the subsection and inserting in lieu thereof the following:  “Subject to approval by the Centers for Medicaid and Medicare Services, the

     Which was disagreed to on a Division vote.  Yeas, 48.  Nays, 76.

Pending the question, Shall the bill be read a third time? Rep. Flory of Pittsford demanded the Yeas and Nays, which demand was sustained by the Constitutional number.  The Clerk proceeded to call the roll and the question, Shall the bill be read a third time? was decided in the affirmative. Yeas, 107.  Nays, 31.

Those who voted in the affirmative are:


Acinapura of Brandon

Adams of Hartland

Allaire of Rutland City

Ancel of Calais

Aswad of Burlington

Atkins of Winooski

Baker of West Rutland

Barnard of Richmond

Bohi of Hartford

Bostic of St. Johnsbury

Botzow of Pownal

Branagan of Georgia

Brooks of Montpelier

Chen of Mendon

Clark of St. Johnsbury

Clark of Vergennes

Clarkson of Woodstock

Condon of Colchester

Copeland-Hanzas of Bradford

Corcoran of Bennington

Cross of Winooski

Darrow of Dummerston

Dates of Shelburne

Deen of Westminster

DePoy of Rutland City

Donaghy of Poultney

Donahue of Northfield

Donovan of Burlington

Dostis of Waterbury

Dowland of Holland

Dunsmore of Georgia

Emmons of Springfield

Evans of Essex

Fallar of Tinmouth

Flory of Pittsford

Frank of Underhill

French of Randolph

Gervais of Enosburg

Grad of Moretown

Green of Berlin

Haas of Rochester

Head of S. Burlington

Heath of Westford

Hosford of Waitsfield

Howard of Rutland City

Hudson of Lyndon

Hutchinson of Randolph

Jerman of Essex

Jewett of Ripton

Johnson of South Hero

Johnson of Canaan

Kainen of Hartford

Keenan of St. Albans City

Kennedy of Chelsea

Keogh of Burlington

Kitzmiller of Montpelier

Klein of East Montpelier

Koch of Barre Town

Komline of Dorset

Kupersmith of S. Burlington

Larson of Burlington

Lawrence of Lyndon

Leriche of Hardwick

Lippert of Hinesburg

Lorber of Burlington

Louras of Rutland City

Maier of Middlebury

Malcolm of Pawlet

Marek of Newfane

Marron of Stowe

Martin of Wolcott

Masland of Thetford

McCullough of Williston

McFaun of Barre Town

McLaughlin of Royalton

Milkey of Brattleboro

Miller of Shaftsbury

Minter of Waterbury

Molloy of Arlington

Monti of Barre City

Mook of Bennington

Myers of Essex

Nease of Johnson

Nitka of Ludlow

Nuovo of Middlebury

Obuchowski of Rockingham

Orr of Charlotte

Parent of St. Albans City

Partridge of Windham

Pellett of Chester

Perry of Richford

Peterson of Williston

Potter of Clarendon

Pugh of S. Burlington

Reese of Pomfret

Rodgers of Glover

Rusten of Halifax

Shand of Weathersfield

Smith of New Haven

Smith of Morristown

Sunderland of Rutland Town

Sweaney of Windsor

Tracy of Burlington

Turner of Milton

Valliere of Barre City

Westman of Cambridge

Wright of Burlington


Those who voted in the negative are:


Bartlett of Dover

Brennan of Colchester

Canfield of Fair Haven

Edwards of Brattleboro

Errecart of Shelburne

Fisher of Lincoln

Helm of Castleton

Houston of Ferrisburgh

Hube of Londonderry

Kilmartin of Newport City

Krawczyk of Bennington

Larrabee of Danville

LaVoie of Swanton

Livingston of Manchester

Marcotte of Coventry

McAllister of Highgate

Miller of Elmore

Morley of Barton

Morrissey of Bennington

Niquette of Colchester

O'Donnell of Vernon

Otterman of Topsham

Pearson of Burlington

Peaslee of Guildhall

Pillsbury of Brattleboro

Randall of Troy

Sharpe of Bristol

Shaw of Derby

Winters of Swanton

Winters of Williamstown

Zuckerman of Burlington


Those members absent with leave of the House and not voting are:


Allard of St. Albans Town

Audette of S. Burlington

Endres of Milton

Howrigan of Fairfield

Hunt of Essex

Larocque of Barnet

Martin of Springfield

Seibert of Norwich

Severance of Colchester

Trombley of Grand Isle

Young of Orwell


 

     Rep. Flory of Pittsford explained her vote as follows:

“Madam Speaker

     Although I still have many concerns and fears concerning H. 861, this eases one of the concerns for many of us by placing the financial risk with private insurance rather than burdening State taxpayers with that risk.”

     Rep. Nease of  Johnson explained his vote as follows:

“Madam Speaker

     I voted yes because our Health Care Committee stayed at the table.  This will allow the first step to be taken for comprehensive, affordable health care for all Vermonters.”

     Rep. O’Donnell of Vernon explained her vote as follows:

“Madam Speaker

     While I appreciate the compromise between the Health Care Conferees and the Administration, I still cannot supper H. 895.

     This bill still uses global commitment money and does nothing to address a two hundred million dollar future deficit in Medicaid.  Medicaid was set up as a health care program for our most vulnerable citizens and a large portion of the children in Vermont.

     I cannot support a bill that puts one program in jeopardy for another.

     Rep. Niquette of  Colchester explained her vote as follows:

“Madam Speaker

     While the bills H. 861 and H. 895 include positive steps toward health care reform in expanding preventative and chronic care.  I do not believe the plan is fiscally responsible or financially sustainable.

     Therefore, I must vote no.”

On motion of Rep. Sunderland of Rutland Town, the rules were suspended and the bill placed on all remaining stages of passage.  The bill was read the third time and passed and, on motion of Rep. Sunderland of Rutland Town the rules were suspended and the bill was ordered messaged to the Senate forthwith.

Bill Ordered to Lie

S. 164

Senate bill, entitled

An act relating to elections and voter registration;

Having appeared on the Calendar one day for notice, was taken up and pending the question, Shall the House adopt the report of the Committee of Conference? on motion of Rep. Bohi of Hartford, the bill was ordered to lie.

Action on Bill Postponed

S. 312

Senate bill, entitled

An act relating to higher education;

Was taken up and pending the reading of the report of the committee on Education, on motion of Rep. Nease of Johnson, action on the bill was postponed until the next legislative day.

Message from the Senate No. 76

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

Madam Speaker:

I am directed to inform the House that the Senate has considered the report of the Committee of Conference upon the disagreeing votes of the two Houses upon House bill of the following title:

H. 150.  An act relating to insurance fraud.

And has accepted and adopted the same on its part.

Adjournment

At eleven o’clock and fifty-eight minutes in the evening, on motion of Rep. Sunderland of Rutland Town, the House adjourned until tomorrow at ten o’clock and thirty minutes in the forenoon.