Journal of the Senate

________________

Wednesday, March 1, 2006

Pursuant to Rule. 8 of the Senate Rules, in the absence of the President and the President pro tempore, the time for convening of the Senate having been set at 1:00 P.M., the Senate was called to order by David A. Gibson, Secretary of the Senate.

Devotional Exercises

Devotional exercises were conducted by the Reverend Stephen Berry of Shelburne.

Presiding Officer Elected

Thereupon, pursuant to the provisions of Rule 8 of the Senate Rules, in the absence of the President and the President pro tempore, the Senate proceeded to the election of an acting President pro tempore to preside.

Nominations being in order, Senator Mazza of Grand Isle District nominated Senator John F. Campbell of Windsor District.

There being no further nominations, on motion of Senator Mazza, the nominations were closed, and the Assistant Secretary was instructed to cast one ballot for Senator John F. Campbell to serve as presiding officer until the return of the President or the President pro tempore.

Senator Campbell Assumes the Chair

Message from the House No. 40

     A message was received from the House of Representatives by Mr. MaGill, its First Assistant Clerk, as follows:

Mr. President:

     I am directed to inform the Senate the House has passed bills of the following titles:

     H. 456.  An act relating to use of Vermont products and nutrition education in schools.

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

     H. 862.  An act relating to home study programs.

     In the passage of which the concurrence of the Senate is requested.

Bills Referred

House bills of the following titles were severally read the first time and referred:

H. 456.

An act relating to use of Vermont products and nutrition education in schools.

To the Committee on Agriculture.

H. 859.

An act relating to the energy security and reliability act.

To the Committee on Natural Resources and Energy.

H. 862.

An act relating to home study programs.

To the Committee on Education.

Bills Referred to Committee on Appropriations

Senate bill of the following title, appearing on the Calendar for notice and carrying an appropriation or requiring the expenditure of funds, under the rule was referred to the Committee on Appropriations:

S. 125.  An act relating to chiropractic coverage in Medicaid and VHAP.

House bill of the following title, appearing on the Calendar for notice, and carrying an appropriation, under the rule, was referred to the Committee on Appropriations:

H. 715.  An act relating to the eradication of cervical cancer.

Rules Suspended; Bill Recommitted

S. 228.

Appearing on the Calendar for action, on motion of Senator Cummings, the rules were suspended and Senate bill entitled:

An act relating to price gouging for petroleum products.

Was taken up for immediate consideration.

Thereupon, pending the reading of the report of the Committee on Economic Development, Housing and General Affairs, Senator Cummings moved that Senate Rule 49 be suspended in order to commit the bill to the Committee on Finance with the report of the Committee on Economic Development, Housing and General Affairs intact,

Which was agreed to.

Rules Suspended; Bill Amended; Third Reading Ordered

S. 310.

Appearing on the Calendar for notice, on motion of Senator Mazza, the rules were suspended and Senate committee bill entitled:

An act relating to common sense initiatives.

Was taken up for immediate consideration.

     Senator Bartlett, for the Committee on Appropriations, to which the bill was referred, reported recommending that the bill be amended as follows:

First:  In Sec. 30 (Appropriations), subdivision (b), by striking out the figure “$1,003,500.00” and inserting in lieu thereof the figure  $973,000.00

Second:  In Sec. 30 (Appropriations), subdivision (e), by striking out the figure “$850,000.00” and inserting in lieu thereof the figure $880,000.00

And that when so amended the bill ought to pass.

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

Thereupon, pending the question, Shall the bill be read the third time?, Senator Leddy, on behalf of the Committee on Health and Welfare, moved to amend the bill as follows:

First:  In Sec. 6 (Coordinated healthy activity, motivation, and prevention programs), before the paragraph by inserting the following: (a) and by adding a new subsection (b) to read as follows:

(b)  The secretary of human services shall compile an inventory of existing state programs or initiatives, including those administered by other agencies, that fund or promote health, recreation, wellness, or like efforts, along with the amount of funds allotted to the program or initiative, the source of the funds, and the period for which the funds will be available.  The secretary shall file the inventory with the senate committee on health and welfare and the house committees on human services and on health care no later than December 15, 2006. 

Second:  In Sec. 7, 18 V.S.A. § 104b, by adding a new subsection (g) to read as follows:

(g)  The commissioner is authorized to accept donations or contributions from private sources for community wellness grants. 

Third:  In Sec. 13 (Common claims and procedures), subsection (g), in the last sentence, by inserting before the period the following: , which shall specify cost savings achieved and expected future savings

Fourth:  In Sec. 28, 18 V.S.A. § 9719 by inserting statutory subsection (a) and amending it to read as follows:

(a)  Within 180 days of the effective date of this chapter No later than July 1, 2006, and from time to time thereafter, the commissioner, in consultation with all appropriate agencies and organizations, shall adopt rules pursuant to chapter 25 of Title 3 to effectuate the intent of this chapter.  The rules shall cover at least one optional form of an advance directive with an accompanying form providing an explanation of choices and responsibilities, the form and content of clinician orders for life sustaining treatment, the use of experimental treatments, a model DNR order which meets the requirements of subsection 9708(a) of this title, DNR identification, revocation of a DNR identification, and consistent statewide emergency medical standards for DNR orders and advance directives for patients and principals in all settings.  The commissioner shall also provide, but without the obligation to adopt a rule, optional forms for advance directives for individuals with disabilities, limited English proficiency, and cognitive translation needs.

Fifth:  In Sec. 28, 18 V.S.A. § 9719(b)(1) by striking out the first sentence and inserting in lieu thereof the following:  Within one year of the effective date of this chapter, the commissioner shall develop and maintain a registry to which a principal may submit his or her advance directive, including a terminal care document and a durable power of attorney.

Sixth:  In Sec. 30, subsection (b) (appropriations), at the end of the subsection by adding a new sentence to read as follows:  Notwithstanding subsection 104b(d) of Title 18, until such time as the grant committee is ready to award community wellness grants, and only for fiscal year 2007, the commissioner of health may use $200,000.00 of the funds appropriated to the department for community wellness grants to meet existing commitments in blueprint for health and other departmental community grant programs, and $50,000.00 to continue support for a chief nutritionist position.

Which was agreed to.

Thereupon, the recurring question, Shall the bill be read the third time?, was decided in the affirmative on a roll call, Yeas 24, Nays 0.

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


Roll Call

Those Senators who voted in the affirmative were: Ayer, Bartlett, Collins, Condos, Coppenrath, Cummings, Doyle, Gander, Giard, Illuzzi, Kitchel, Kittell, Leddy, Lyons, MacDonald, Maynard, Mazza, Miller, Mullin, Scott, Sears, Snelling, White, Wilton.

Those Senators who voted in the negative were: None.

Those Senators absent or not voting were: Campbell (presiding), Dunne, Flanagan, Shepard, Starr, Welch.

Bills Passed

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

S. 194.

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

Senate bill of the following title:

S. 218.

An act relating to motor vehicle retail installment sales contracts.

Was taken up.

Thereupon, the bill was read the third time and passed on a roll call, Yeas 24, Nays 0.

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

Roll Call

Those Senators who voted in the affirmative were: Ayer, Bartlett, Collins, Condos, Coppenrath, Cummings, Doyle, Gander, Giard, Illuzzi, Kitchel, Kittell, Leddy, Lyons, MacDonald, Maynard, Mazza, Miller, Mullin, Scott, Sears, Snelling, White, Wilton.

Those Senators who voted in the negative were: None.

Those Senators absent or not voting were: Campbell (presiding), Dunne, Flanagan, Shepard, Starr, Welch.

Third Reading Ordered

H. 665.

Senator Mullin, for the Committee on Economic Development, Housing and General Affairs, to which was referred House bill entitled:

An act relating to promoting gourmet food and beverage products by permitting tastings of alcoholic beverages at Vermont food and wine events.

Reported that the bill ought to pass in concurrence.

Senator MacDonald, for the Committee on Finance, to which the bill was referred, reported recommending that the bill ought to pass in concurrence.

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

Bills Amended; Third Readings Ordered

S. 51.

Senator Kitchel, for the Committee on Government Operations, to which was referred Senate bill entitled:

An act relating to disability retirement benefits for state employees.

     Reported recommending that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS; INTENT

(a)  The general assembly finds that:

(1)  The disability retirement system for state employees found in chapter 16 of Title 3 requires an injured employee to choose between disability retirement benefits and workers’ compensation benefits for temporary disability (pursuant to chapter 9 of Title 21).  Eligible employees, who wish to collect disability retirement benefits to provide a stream of income while they are unable to work and who want to continue their health care coverage are required to forfeit their right to appeal the denial of their workers’ compensation benefits.

(2)  The disability retirement system for state employees found in chapter 16 of Title 3 requires a catastrophically injured employee to choose between disability retirement benefits and permanent total workers’ compensation benefits beyond 330 weeks, up to lifetime (pursuant to chapter 9 of Title 21).  If a workers’ compensation claim is denied and the employee has to accept disability retirement to have an income while he or she appeals the workers’ compensation claim, the employee would be waiving significant future workers’ compensation benefits with no ability to choose the higher workers’ compensation benefit if the claim is ultimately determined to be compensable.

(b)  By this act, the general assembly intends to allow an eligible employee to accept disability retirement benefits during the pendency of the employee’s compensation appeal.  Upon resolution of the workers’ compensation claim, the employee would either continue in the disability retirement or resume his or her employee status and receive workers’ compensation benefits which the employee would have received if the claim had been accepted at the outset.  While an employee will still waive access to workers’ compensation benefits under Title 21 in excess of 330 weeks if the employee chooses to accept disability retirement benefits, this waiver applies only to the period after 330 weeks of permanent partial or permanent total disability benefits have been paid.  An employee may receive both disability retirement and permanent partial or permanent total benefits under the workers’ compensation system for up to 330 weeks. 

(c)  By this act the general assembly does not intend to enable the concurrent receipt of retirement disability benefits and temporary workers’ compensation disability benefits or permanent total benefits beyond 330 weeks.

Sec. 2.  3 V.S.A. § 466 is amended to read:

§ 466. OFFSETS Coordination of disability retirement benefits with workers' compensation BENEFITS

Acceptance of disability retirement benefits under this chapter shall act as a waiver of any additional claim under sections 642 or 646 of Title 21 or any additional claim for benefits in excess of 330 weeks under sections 644 and 645 of Title 21.

(a)  Disability pension and annuity retirement benefits payable under this chapter shall not commence until workers' compensation benefits have been exhausted under sections 642 or 646 of Title 21.

(b)  Notwithstanding subsection (a) of this section, disability retirement benefits payable under this chapter shall be paid to a member who applies for and meets all of the eligibility criteria for disability retirement under section 460 or 461 of this title, has filed a claim for temporary disability workers' compensation benefits under section 642 or 646 of Title 21, and for whom no such benefits have been or are being paid pursuant to any of these sections.  If the disability retiree receives temporary workers’ compensation benefits pursuant to sections 642 or 646 of Title 21, disability retirement pension and annuity benefit payments shall cease immediately and the retiree shall be immediately restored to his or her employment position and status as existed immediately preceding separation from service as an employee, including restoration of all benefits that existed at that time.  Acceptance of disability retirement benefits prior to being restored to state service shall not act as a waiver under subsection (d) of this section.

(c)  No employee shall concurrently receive both disability retirement benefits payable under this chapter and workers' compensation benefits payable under sections 642 or 646 of Title 21.  If an employee receives disability retirement pension and annuity benefits and later receives an award for temporary disability workers’ compensation benefits for the same period, the Vermont state retirement system shall have a lien against any retroactive workers' compensation award under sections 642 or 646 of Title 21 for the same period that the employee received disability retirement benefits in the amount of the disability retirement pension and annuity benefits paid.  Any recovery under sections 642 or 646 of Title 21 against the employer or the employer’s workers' compensation insurance carrier shall, after deducting expenses of recovery, reimburse the Vermont state retirement system for disability retirement pension and annuity benefits for all retroactive periods of time included in the recovery.  The state treasurer shall notify the department of buildings and general services when a disability retirement application is approved for an employee who has filed a workers compensation claim.  The department of buildings and general services or its workers’ compensation insurance carrier, shall notify the state treasurer of commencement or termination of any workers’ compensation payments or awards to an employee who has been reported by the state treasurer as eligible to receive disability retirement benefit. 

(d)  An employee who chooses to accept disability retirement benefits payable under this chapter, except as otherwise described under this section and subsection (b) of this section, shall waive any claim for benefits in excess of 330 weeks under sections 644 and 645 of Title 21.  Under this subsection, an employee may receive benefits from both systems simultaneously for up to 330 weeks.  Prior to actual payment of disability retirement benefits, the disability retiree shall make an election of what benefit he or she wants to receive after 330 weeks by indicating on a form provided by the state treasurer at the time of application.  The form shall advise the disability retiree in conspicuous print that he or she may wish to consult with legal counsel prior to making the election.

And that when so amended the bill ought to pass.

Senator Kitchel, for the Committee on Appropriations, to which the bill referred, reported the bill without recommendation.

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


S. 188.

Senator White, for the Committee on Health and Welfare, to which was referred Senate bill entitled:

An act relating to the financial literacy and asset buildings of low income Vermonters.

     Reported recommending that the bill be amended by striking out Secs. 2 and 3 in their entirety and inserting in lieu thereof a new Sec. 2 to read:

Sec. 2.  33 V.S.A. § 1101(27) is amended to read:

(27)  "Work activities" means the following activities limited to the extent and degree that they are allowed and countable in accordance with

Part A of Title IV of the Social Security Act:

* * *

(L)  the provision, consistent with the department's rules applicable to self-employment, of child care services to an individual who is participating in a community service program; and

(M)  attendance at a financial literacy class; and

(M)(N)  any other work activity recognized in accordance with Part A of Title IV of the Social Security Act as amended.

And that when so amended the bill ought to pass.

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

Consideration Postponed

House bill entitled:

H. 544.  An act relating to the process for locating and altering municipal lines.

Was taken up.

Thereupon, without objection consideration of the bill was postponed until the next legislative day.

Adjournment

On motion of Senator Mazza, the Senate adjourned until eleven o’clock and thirty minutes in the morning.