Journal of the Senate
________________
Friday, May 2, 2008
The Senate was called to order by the President.
Devotional Exercises
A moment of silence was observed in lieu of devotions.
Pages Honored
In appreciation of their many services to the members of the General Assembly, the President and President pro tempore recognized the following-named pages who are completing their services today and presented them with commemorative posters:
Samuel Coxon of Sharon
Joshua Crane of Montpelier
Victoria DeLuca of Williston
Samuel Hooper of Sharon
Reilly Johnson of Bradford
Eleanor Laukaitis of Williston
Lara Loughlin of Dorset
Maureen T. Myrick of St. Johnsbury
Mikaela Osler of Jericho
Rebecca Westcom of Enosburg Falls
Senate Resolution Placed on Calendar
S.R. 30.
Senate resolution of the following title was offered, read the first time and is as follows:
By the Committee on Education,
S.R. 30. Senate resolution encouraging the Business-Education Alliance to continue working for an effective organizational structure for state education governance.
Whereas, the elementary and secondary student population in Vermont’s schools should be performing at a sufficiently high level to meet the educational challenges of the 21st century, and
Whereas, both a new state-wide vision and an effective organizational structure for state education governance are essential for preparing children to meet these challenges, and
Whereas, a clear state-wide vision is necessary so that children in every Vermont school are offered the highest quality curriculum, and
Whereas, strong leadership and accountability in the state of Vermont’s system of educational governance and the most effective organizational structure are vital if we are to update the materials and teaching methods used in Vermont’s public schools, and
Whereas, recent test scores in some Vermont schools are flat or falling, and improvements in these scores these inadequate test results must be reversed if the students in our state are to be prepared to enter the ever‑changing global economy, and
Whereas, the Business-Education Alliance, in a report entitled “Vision, Goals, and Governance in Vermont’s Public Education System,” identifies the needs that must be addressed if a new vision for education is to be achieved, now therefore be it
Resolved by the Senate:
That the Senate of the State of Vermont requests that the Business‑Education Alliance continue to prepare detailed documentation of the findings listed in its recently issued report on the status of public education in Vermont and that the documentation be presented to the House and Senate committees on education and to the commissioner of education on or before January 20, 2009, and be it further
Resolved: That the Secretary of the Senate be directed to send a copy of this resolution to Governor James Douglas, and to Mary Powell and Mary Moran, co-chairs of the Business-Education Alliance.
Thereupon, in the discretion of the President, under Rule 51, the resolution was placed on the Calendar for action tomorrow.
Senate Resolution Adopted
S.R. 29.
Senate resolution entitled:
Senate resolution relating to the Connecticut River Valley Flood Control Commission.
Having been placed on the Calendar for action, was taken up and adopted.
Join Resolution Ordered to Lie
J.R.H. 64.
Joint House resolution entitled:
Joint resolution recognizing all Vermont firefighters, police officers, and emergency medical service (EMS) personnel for the professional level of service they provide to their communities.
Was taken up.
Thereupon, pending the question, Shall the joint resolution be adopted in concurrence, on motion of Senator Shumlin, the bill was ordered to lie.
Rules Suspended; Reports of Committees of Conference Accepted and Adopted on the Part of the Senate
H. 599.
Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on House bill entitled:
An act relating to boating while intoxicated and driving while intoxicated.
Was taken up for immediate consideration.
Senator Sears, for the Committee of Conference, submitted the following 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:
H. 599. An act relating to boating while intoxicated and driving while intoxicated.
Respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposals of amendment, and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:
Sec. 1. LEGISLATIVE INTENT
It is the intent of the general assembly in this act to address, among other issues, the Vermont supreme court’s decisions in State v. LaBounty, 2005 VT 124, and State v. Martin, 2007 VT 96. In LaBounty, the court held that if more than one person was injured, an offender could be charged with only one count of grossly negligent operation of a motor vehicle with injury resulting. Similarly, the court held in Martin that if more than one person was killed, an offender could be charged with only one count of boating while intoxicated with death resulting. In this act, the general assembly responds to Martin and LaBounty by amending several motor vehicle statutes to permit an offender to be charged with a separate count of violating the statute for each person who was killed or injured as a result of the offense.
Sec. 2. 23 V.S.A. § 1091(b) is amended to read:
(b) Grossly negligent operation.
(1) A person who operates a motor vehicle on a public highway in a grossly negligent manner shall be guilty of grossly negligent operation.
(2) The standard for a conviction for grossly negligent operation in violation of this subsection shall be gross negligence, examining whether the person engaged in conduct which involved a gross deviation from the care that a reasonable person would have exercised in that situation.
(3) A person who violates this subsection shall be imprisoned not more than two years or fined not more than $5,000.00, or both. If the person has previously been convicted of a violation of this section, the person shall be imprisoned not more than four years or fined not more than $10,000.00, or both. If serious bodily injury as defined in section 1021 of Title 13 or death of any person other than the operator results, the person shall be imprisoned for not more than 15 years or fined not more than $15,000.00, or both. If serious bodily injury or death results to more than one person other than the operator, the operator may be convicted of a separate violation of this subdivision for each decedent or person injured.
Sec. 3. 23 V.S.A. § 1133 is amended to read:
§ 1133. ATTEMPTING TO ELUDE A POLICE OFFICER
(a) No operator of a motor vehicle shall fail to bring his or her vehicle to a stop when signaled to do so by an enforcement officer:
(1) displaying insignia identifying him or her as such; or
(2) operating a law enforcement vehicle sounding a siren and displaying a flashing blue or blue and white signal lamp.
(b)(1) A person who violates subsection (a) of this section shall be imprisoned for not more than one year or fined not more than $1,000.00, or both.
(2)(A) In the event that death or serious bodily injury to any person other than the operator is proximately caused by the operator’s knowing violation of subsection (a) of this section, the operator shall be imprisoned for not more than five years or fined not more than $3,000.00, or both.
(B) If death or serious bodily injury to more than one person other than the operator is proximately caused by the operator’s knowing violation of subsection (a) of this section, the operator may be convicted of a separate violation of this subdivision for each decedent or person injured.
(c) In a prosecution under this section, the operator may raise as an affirmative defense, to be proven by a preponderance of the evidence, that the operator brought his or her vehicle to a stop in a manner, time, and distance that was reasonable under the circumstances.
* * *
Sec. 4. 23 V.S.A. § 1201 is amended to read:
§ 1201. OPERATING VEHICLE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR OTHER SUBSTANCE; CRIMINAL REFUSAL
(a) A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway:
(1) when the person’s alcohol concentration is 0.08 or more, or 0.02 or more if the person is operating a school bus as defined in subdivision 4(34) of this title; or
(2) when the person is under the influence of intoxicating liquor; or
(3) when the person is under the influence of any other drug or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of driving safely; or
(4) when the person’s alcohol concentration is 0.04 or more if the person is operating a commercial motor vehicle as defined in subdivision 4103(4) of this title.
* * *
(e) A
person may not be convicted of more than one offense under violation
of subsection (a) of this section arising out of the same incident.
* * *
Sec. 5. 23 V.S.A. § 1210 is amended to read:
§ 1210. PENALTIES
* * *
(e)(1) Death resulting. If the death of any person results from a violation of section 1201 of this title, the person convicted of the violation shall be fined not more than $10,000.00 or imprisoned not less than one year nor more than 15 years, or both. The provisions of this subsection do not limit or restrict prosecutions for manslaughter.
(2) If the death of more than one person results from a violation of section 1201 of this title, the operator may be convicted of a separate violation of this subdivision for each decedent.
(f)(1)
Injury resulting. If serious bodily injury, as defined in 13 V.S.A. § 1021(2),
results to any person other than the operator from a violation of section 1201
of this title, the person convicted of the violation shall be fined not more
than $5,000.00, or imprisoned not less than one year nor more than 15
years, or both.
(2) If serious bodily injury as defined in 13 V.S.A. § 1021(2) results to more than one person other than the operator from a violation of section 1201 of this title, the operator may be convicted of a separate violation of this subdivision for each person injured.
* * *
Sec. 6. 23 V.S.A. § 3317 is amended to read:
§ 3317. PENALTIES
* * *
(d) Boating while intoxicated; privilege suspension. Any person who is convicted of violating section 3323 of this title shall have his or her privilege to operate a vessel, except a nonmotorized canoe and a nonmotorized rowboat, suspended for a period of one year and until the person complies with section 1209a of this title.
(e) Boating while intoxicated; criminal penalty. Any person who violates a provision of section 3323 of this title shall be imprisoned for not more than one year and subject to the following fines:
(1) for a first offense, not less than $200.00 nor more than $750.00;
(2) for a second or subsequent offense, not less than $250.00 nor more than $1,000.00.
(f)(1)(A)
Boating while intoxicated; death resulting. If the death of any person results
from the violation of section 3323 of this title, the person convicted shall,
instead of any other penalty imposed in this section, be imprisoned not less
than one year nor more than five 15 years or fined not more
than $2,000.00 $10,000.00,or both; but the provisions of this
section shall not be construed to limit or restrict prosecutions for
manslaughter.
(B) If the death of more than one person results from a violation of section 3323 of this title, the operator may be convicted of a separate violation of this subdivision for each decedent.
(2)(A) Boating while intoxicated; serious bodily injury resulting. If serious bodily injury, as defined in 13 V.S.A. § 1021(2), results to any person other than the operator from a violation of section 3323 of this title, the person convicted of the violation shall be fined not more than $5,000.00 or imprisoned not more than 15 years, or both.
(B) If serious bodily injury as defined in 13 V.S.A. § 1021(2) results to more than one person other than the operator from a violation of section 3323 of this title, the operator may be convicted of a separate violation of this subdivision for each person injured.
* * *
Sec. 7. 23 V.S.A. § 3323 is amended to read:
§ 3323. OPERATING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; B.W.I.
(a) A person shall not operate, attempt to operate, or be in actual physical control of a vessel on the waters of this state while:
(1) there is 0.08 percent or more by weight of alcohol in his or her blood, as shown by analysis of his or her breath or blood; or
(2) under the influence of intoxicating liquor; or
(3) under the influence of any other drug or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of operating safely.
* * *
(e) A
person may not be convicted of more than one offense under violation
of subsection (a) of this section arising out of the same incident.
Sec. 8. 20 V.S.A. § 2358 is amended to read:
§ 2358. MINIMUM TRAINING STANDARDS
(a) Unless waived by the council under standards adopted by rule, and notwithstanding any statute or charter to the contrary, no person shall exercise law enforcement authority:
(1) as a part-time law enforcement officer without completing a basic training course within a time prescribed by rule of the council; or
(2) as a full-time law enforcement officer without either:
(A) completing a basic training course in the time and manner prescribed by the council; or
(B) having received, before July 1, 1968, permanent full-time appointment as a law enforcement officer, and completing a basic training course before July 1, 1982.
(3) as a full or part-time law enforcement officer without completing annual in-service training requirements as prescribed by the council.
(b) All programs required by this section shall be approved by the council. Completion of a program shall be established by a certificate to that effect signed by the executive director of the council.
(c) For the purposes of this section:
(1) “Law enforcement officer” means a member of the department of public safety who exercises law enforcement powers, a member of the state police, a municipal police officer, a constable who exercises law enforcement powers, a motor vehicle inspector, an employee of the department of liquor control who exercises law enforcement powers, an investigator employed by the secretary of state, board of medical practice investigators employed by the department of health, attorney general or a state’s attorney, a fish and game warden, a sheriff, or deputy sheriff who exercises law enforcement powers, or a railroad police officer commissioned pursuant to 30 V.S.A. chapter 45, subchapter 8.
(2) “Full-time law enforcement officer” means a law enforcement officer with duties of a predictable and continuing nature which require more than 32 hours per week and more than 25 weeks per year.
(3) “Part-time law enforcement officer” means a law enforcement officer who is not employed full time.
(d) The
council may determine whether a particular position is full time or part time.
Any requirements in this section shall be optional for any elected official.
Sec. 9. 24 V.S.A. § 1936a is amended to read:
§ 1936a. CONSTABLES; POWERS AND QUALIFICATIONS
(a) A town
may vote at a special or annual town meeting:
(1) to prohibit constables
from exercising any law enforcement authority; or
(2) to
prohibit constables from exercising any law enforcement authority without
having successfully completed a course of training under chapter 151 of Title
20.
* * *
Sec. 10. 9 V.S.A. chapter 82 is added to read:
CHAPTER 82. SCRAP METAL PROCESSORS
§ 3021. DEFINITIONS
As used in this chapter:
(1) “Authorized scrap seller” means a licensed plumber, electrician, HVAC contractor, building or construction contractor, demolition contractor, construction and demolition debris contractor, public utility, transportation company, licensed peddler or broker, an industrial and manufacturing company; marine, automobile, or aircraft salvage and wrecking company, or a government entity.
(2) “Ferrous scrap” means any scrap metal consisting primarily of iron, steel, or both, including large manufactured articles such as automobile bodies that may contain other substances to be removed and sorted during normal processing operations of scrap metal.
(3) “Metal article” means any manufactured item consisting of metal that is usable for its originally intended purpose without processing, repair, or alteration, including railings, copper or aluminum wire, copper pipe and tubing, bronze cemetery plaques, urns, markers, plumbing fixtures, and cast‑iron radiators.
(4) “Nonferrous scrap” means any scrap metal consisting primarily of metal other than iron or steel, and does not include aluminum beverage cans, post-consumer household items, items removed during building renovations or demolitions, or large manufactured items containing small quantities of nonferrous metals such as automobile bodies and appliances.
(5) “Proprietary article” means any of the following:
(A) Any metal article stamped, engraved, stenciled, or marked as being or having been the property of a governmental entity, public utility, or a transportation, shipbuilding, ship repair, mining, or manufacturing company.
(B) Any hard-drawn copper electrical conductor, cable, or wire greater than 0.375 inches in diameter, stranded or solid.
(C) Any aluminum conductor, cable, or wire greater than 0.75 inches in diameter, stranded or solid.
(D) Metal beer kegs.
(E) Manhole covers.
(F) Catalytic converters.
(6) “Scrap metal” means any manufactured item or article that contains metal.
(7) “Scrap metal processor” means a person authorized to conduct a business that processes and manufactures scrap metal into prepared grades for sale as raw material to mills, foundries, and other manufacturing facilities.
§ 3022. PURCHASE OF NONFERROUS SCRAP, METAL ARTICLES, AND PROPRIETARY ARTICLES
(a) A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles directly from an authorized scrap metal seller or the seller’s authorized agent or employee.
(b) A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles from a person who is not an authorized scrap metal seller or the seller’s authorized agent or employee, provided the scrap processor complies with all the following procedures:
(1) At the time of sale, requires the seller to provide a current government-issued photographic identification that indicates the seller’s full name, current address, and date of birth, and records in a permanent ledger the identification information of the seller, the time and date of the transaction, the license number of the seller’s vehicle, and a description of the items received from the seller. This information shall be retained for at least five years at the processor’s normal place of business or other readily accessible and secure location. On request, this information shall be made available to any law enforcement official or authorized security agent of a governmental entity who provides official credentials at the scrap metal processor’s business location during regular business hours.
(2) Requests documentation from the seller of the items offered for sale, such as a bill of sale, receipt, letter of authorization, or similar evidence that establishes that the seller lawfully owns the items to be sold.
(3) After purchasing an item from a person who fails to provide documentation pursuant to subdivision (2) of this subsection, submits to the local law enforcement agency no later than the close of the following business day a report that describes the item and the seller’s identifying information required in subdivision (1) of this subsection, and holds the proprietary article for at least 15 days following purchase.
§ 3023. PENALTIES
(a) A scrap metal processor who violates any provision of this chapter for the first time may be assessed a civil penalty not to exceed $1,000.00 for each transaction.
(b) A scrap metal processor who violates any provision of this chapter for a second or subsequent time shall be fined not more than $25,000.00 for each transaction.
Sec. 11. 4 V.S.A. § 1102(b) is amended to read:
(b) The judicial bureau shall have jurisdiction of the following matters:
* * *
(14) Violations of 9 V.S.A. § 3023(a), relating to the purchase and sale of scrap metal.
Sec. 12. SUNSET
Secs. 10 and 11 of this act shall be repealed effective July 1, 2009.
Sec. 13. EFFECTIVE DATE
Secs. 8 and 9 of this act shall take effect July 1, 2010.
RICHARD W. SEARS, JR.
JOHN F. CAMPBELL
VINCENT ILLUZZI
Committee on the part of the Senate
WILLIAM LIPPERT
AVIS GERVAIS
GEORGE ALLARD
Committee on the part of the House
Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.
H. 617.
Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on House bill entitled:
An act relating to guardianships.
Was taken up for immediate consideration.
Senator Nitka, for the Committee of Conference, submitted the following 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:
H. 617. An act relating to guardianships.
Respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposals of amendment, and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:
Sec. 1. 14 V.S.A. chapter 111 is amended to read:
Chapter 111. Guardians and Ward Guardianship
* * *
Subchapter
12. Total and Limited Guardianship for Mentally Disabled Adults Persons
in Need of Guardianship
§ 3060. POLICY
Guardianship for mentally disabled persons shall be utilized only
as necessary to promote the well‑being of the individual and to protect
the individual from violations of his or her human and civil rights. It
shall be designed to encourage the development and maintenance of maximum self‑reliance
and independence in the individual and only the least restrictive form of
guardianship shall be ordered only to the extent required by the
individual’s actual mental and adaptive limitations. The state of Vermont recognizes the fundamental right of an adult with capacity to determine the extent
of health care the individual will receive.
§ 3061. DEFINITIONS
The words and phrases used in this subchapter shall be defined as follows:
(1) “Mentally disabled person” “Person in need of
guardianship” means a person who has been found to be:
(A) is at least 18 years of age; and
(B) mentally ill or developmentally disabled; and
(C) is unable to manage, without the supervision of a guardian,
some or all aspects of his or her personal care or financial affairs as
a result of:
(i) significantly subaverage intellectual functioning which exists concurrently with deficits in adaptive behavior; or
(ii) a physical or mental condition that results in significantly impaired cognitive functioning which grossly impairs judgment, behavior, or the capacity to recognize reality.
(2) “Unable to manage his or her personal care” means the inability, as evidenced by recent behavior, to meet one’s needs for medical care, nutrition, clothing, shelter, hygiene, or safety so that physical injury, illness, or disease has occurred or is likely to occur in the near future.
(3) “Unable to manage his or her financial affairs” means gross mismanagement, as evidenced by recent behavior, of one’s income and resources which has led or is likely in the near future to lead to financial vulnerability.
(4) “Developmentally disabled” means significantly subaverage
intellectual functioning which exists concurrently with deficits in adaptive
behavior.
(5) “Mentally ill” means a substantial disorder of thought, mood,
perception, orientation, or memory, any of which grossly impairs judgment,
behavior, capacity to recognize reality, or ability to meet the ordinary
demands of life, but shall not include mental retardation.
(6)(4) “Near relative” means a parent, stepparent,
brother, sister, grandparent, spouse, domestic partner, or adult child.
(7)(5) “Person interested in the welfare of the ward”
“Interested person” means a responsible adult who has a direct interest
in a mentally disabled person in need of guardianship and
includes but is not limited to, the proposed mentally disabled
person in need of guardianship, a near relative, a close friend,
a guardian, public official, social worker, physician, agent named in an
advance directive or in a power of attorney, person nominated as guardian in an
advance directive, or clergyman member of the clergy.
(8) “Total guardianship” means the legal status of a mentally
disabled person who is subject to a guardian’s exercise of all the powers
listed in section 3069 of this title.
(9) “Limited guardianship” means the legal status of a mentally
disabled person who is subject to a guardian’s exercise of some, but not all of
the powers listed in section 3069 of this title.
(10) “Qualified mental health professional” means:
(A) for the evaluation of an allegedly developmentally disabled
person, a licensed psychologist, physician, certified special educator, or
certified clinical social worker, or certified clinical mental health
counselor, any of whom must also have specialized training and demonstrated
competence in the assessment of developmentally disabled persons;
(B) for the evaluation of an allegedly mentally ill person, a person
with professional training and demonstrated competence in the treatment of
mental illness, who shall be a physician, licensed psychologist, certified
clinical social worker or certified clinical mental health counselor.
(11)(6) “Respondent” means a person who is the subject of
a petition filed pursuant to section 3063 of this title or a ward person
under guardianship who is the subject of any subsequent petition, motion,
or action filed pursuant to this subchapter.
(12)(7) “Party” shall have the same meaning as defined by
Rule 17(a)(3) and (b) of the Vermont Rules of Probate Procedure.
(13)(8) “Ward” “Person under guardianship” means
a person under in need of guardianship for whom a guardianship
order has been issued.
(9) “Do not resuscitate order” shall have the same meaning as in subdivision 9701(7) of Title 18.
(10) "Capacity to make medical decisions" means an individual's ability to make and communicate a decision regarding proposed health care based upon having a basic understanding of the diagnosed condition and the benefits, risks, and alternatives to the proposed health care.
(11) "Informed consent" means the consent given voluntarily by an individual with capacity after being fully informed of the nature, benefits, risks, and consequences of the proposed health care, alternative health care, and no health care.
(12) “Assent” means a communication by a person under guardianship that a proposed health care decision by his or her guardian is consistent with his or her preferences, when that person has been found to lack the capacity to provide informed consent.
§ 3062. JURISDICTION; REVIEW OF GUARDIAN’S ACTIONS
(a) The probate court shall have exclusive original jurisdiction over all proceedings brought under the authority of this chapter or pursuant to section 9718 of Title 18.
(b) The probate court shall have supervisory authority over guardians. Any interested person may seek review of a guardian’s proposed or past actions by filing a motion with the court.
§ 3063.
PETITION FOR TOTAL OR LIMITED GUARDIANSHIP
Any person interested in the welfare of the ward An interested
person may file a petition with the probate court for the appointment of a total
or a limited guardian. The petition shall state:
(1) the names and addresses of the petitioner and the respondent,
and,; if known, the name and address of a near relative of the
respondent; the name and address of the person nominated as guardian in an
advance directive; and the name and address of the current guardian, and agent
named in an advance directive or in a power of attorney;
(2) the interest of the petitioner in the respondent;
(3) whether that the respondent is alleged to be mentally
ill or developmentally disabled a person in need of guardianship,
and whether that the respondent is at least 18 years of age or
will become 18 years of age within four months of the filing of a petition;
(4) specific reasons with supporting facts why guardianship is sought;
(5) the specific areas where supervision and protection is requested and the powers of the guardian requested for inclusion in the court’s order;
(6) the nature, description and approximate value of the respondent’s income and resources, including public benefits and pension;
(7) if a specific individual is proposed as guardian, the name and address of the proposed guardian and the relationship of the proposed guardian to the respondent; and
(8) alternatives to guardianship that have been considered and an explanation as to why each alternative is unavailable or unsuitable.
§ 3064. NOTICE OF PETITION AND HEARING
(a) Upon the filing of the petition, the probate court shall schedule a hearing and notice shall be given as provided by the rules of probate procedure.
(b) The hearing shall be held not less than 15 nor more than 30 days after the filing with the court of the evaluation required by section 3067 of this title. The hearing may be continued for good cause shown for not more than 15 additional days.
§ 3065. COUNSEL
(a)(1) 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 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 of the
person under guardianship 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.
§ 3066. GUARDIAN AD LITEM
On motion of the respondent’s or ward’s person under
guardianship’s counsel or on the court’s own motion the court may appoint a
guardian ad litem if it finds the respondent or ward person under
guardianship is unable to communicate with or advise counsel.
§ 3067. EVALUATION AND REPORT; BACKGROUND CHECK; RELEASE OF EVALUATION
(a) When a petition is filed pursuant to section 3063 of this title,
or when a motion for modification or termination is filed pursuant to
subdivision 3077(a)(4) of this title, the court shall order an evaluation
of the respondent. Except as otherwise provided in this subsection, the cost
of the evaluation shall be paid for out of the respondent’s estate or as
ordered by the court. If the respondent is unable to afford some or all of
the cost of the evaluation without expending income or liquid resources
necessary for living expenses, the court shall order that the department of
mental health or the department of disabilities, aging, and independent living
provide the evaluation through community mental health agencies affiliated
with the departments qualified evaluators.
(b) The evaluation shall be performed by a qualified mental health
professional someone who has specific training and demonstrated
competence to evaluate a person in need of guardianship. The evaluation
shall be completed within 30 days of the filing of the petition with the court unless
the time period is extended by the court for cause.
(c) The evaluation shall:
(1) describe the nature and degree of the respondent’s disability, if any, and the level of the respondent’s intellectual, developmental, and social functioning;
(2) contain recommendations, with supporting data, regarding:
(A) those aspects of his or her personal care and financial affairs which the respondent can manage without supervision or assistance;
(B) those aspects of his or her personal care and financial affairs which the respondent could manage with the supervision or assistance of support services and benefits;
(C) those aspects of his or her personal care and financial affairs which the respondent is unable to manage without the supervision of a guardian;
(D) those powers and duties as set forth in sections 3069 and 3071 of this title which should be given to the guardian, including the specific support services and benefits which should be obtained by the guardian for the respondent.
(d) The proposed guardian shall provide the court with the information and consents necessary for a complete background check. Not more than 10 days after receipt of an evaluation supporting guardianship of the respondent, the court shall order from the respective registries background checks of the proposed guardian from any available state registries, including but not limited to the adult abuse registry, child abuse registry, Vermont crime information center, and the Vermont state sex offender registry, and the court shall consider information received from the registries in determining whether the proposed guardian is suitable. However, if appropriate under the circumstances, the court may waive the background reports or may proceed with appointment of a guardian prior to receiving the background reports, provided that the court may remove a guardian if warranted by background reports which the court receives after the guardian’s appointment. If the proposed guardian has lived in Vermont for fewer than five years or is a resident of another state, the court may order background checks from the respective state registries of the states in which the proposed guardian lives or has lived in the past five years or from any other source. The court shall provide copies of background check reports to the petitioner, the respondent, and the respondent’s attorney.
(e) Regardless of whether the report of the evaluator supports or does not support guardianship, the court shall provide a copy of the evaluation to the respondent, the respondent’s attorney, the petitioner, the guardian upon appointment, and any other individual, including the proposed guardian, determined by the court to have a strong interest in the welfare of the respondent. The evaluation shall remain confidential, and recipients of the evaluation are prohibited from sharing the evaluation. Notwithstanding the foregoing, the court may restrict access to the evaluation or portions of the evaluation upon objection by one of the parties or on the court’s own motion.
§ 3068. HEARING
(a) The respondent, the petitioner and all other persons to whom notice has been given pursuant to section 3064 of this title may attend the hearing and testify. The respondent and the petitioner may subpoena, present and cross‑examine witnesses, including those who prepared the evaluation. The court may exclude any person not necessary for the conduct of the hearing on motion of the respondent.
(b) The hearing shall be conducted in a manner consistent with orderly procedure and in a setting not likely to have a harmful effect on the mental or physical health of the respondent.
(c) The evaluation shall be received into evidence, if the persons who prepared the evaluation are available for the hearing or subject to service of subpoena. However, the court shall not be bound by the evidence contained in the evaluation, but shall make its determination upon the entire record. In all cases, the court shall make specific findings of fact, state separately its conclusions of law and direct the entry of an appropriate judgment.
(d) The petitioner may be represented by counsel in any proceedings brought under this chapter.
(e) If upon completion of the hearing and consideration of the record
the court finds that the respondent is not mentally disabled a person
in need of guardianship, it shall dismiss the petition and seal the records
of the proceeding.
(f) If upon completion of the hearing and consideration of the record
the court finds that the petitioner has proved by clear and convincing evidence
that the respondent is mentally disabled a person in need of
guardianship or will be mentally disabled a person in need of
guardianship on attaining eighteen 18 years of age, it shall
enter judgment specifying the powers of the guardian pursuant to sections 3069
and 3070 of this title and the duties of the guardian pursuant to section 3071
of this title.
(g) Any party to the proceeding before the court may appeal the court’s decision in the manner provided in section 3080 of this title.
§ 3068a.
RIGHTS OF A WARD PERSON UNDER GUARDIANSHIP
A ward person under guardianship 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 person under guardianship 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 person under guardianship.
(3) The right to retain an attorney and seek legal advice independently without consent of the guardian, provided that any legal fees not authorized by the guardian are subject to review and approval by the court.
§ 3069.
POWERS OF A TOTAL GUARDIAN
(a) If the court enters judgment pursuant to subsection 3068(f) of this
title, it may appoint a total guardian if it determines that the
respondent is unable to manage, without the supervision of a guardian, any
or all aspects of his or her personal care and financial affairs.
(b) When the person under guardianship has an advance directive, the authority of the agent and the instructions contained therein shall remain in effect unless the probate court expressly orders otherwise in a petition for review of the advance directive under 18 V.S.A. § 9718.
(c) A total guardian shall supervise the ward through the
exercise of the following powers The court shall grant powers to the
guardian in the least restrictive manner appropriate to the circumstances of
the respondent and consistent with any advance directive. Guardianship powers
shall be ordered only to the extent required by the respondent’s actual mental
and adaptive limitations. The court shall specify which of the following
powers the guardian shall have and may further restrict each power so as to
preserve the respondent’s authority to make decisions commensurate with
respondent’s ability to do so:
(1) the power to exercise general supervision over the ward
person under guardianship. This includes care, habilitation,
education, and employment of the person under guardianship and choosing or
changing the residence, subject to the requirements of sections 2691, 3073, and
3074 of this title, care, habilitation, education, and employment of the
ward;
(2) to approve or withhold approval of any contract, except for
necessaries, which the ward wishes to make the power to seek, obtain,
and give or withhold consent to the initiation or continuation of medical or
dental treatment, subject to the provisions of section 3075 of this title and
any constitutional right of the person under guardianship to refuse treatment,
provided that the court in its discretion may place limitations on the
guardian’s powers under this subdivision if appropriate under the
circumstances, including requiring prior court approval for specific surgeries,
procedures, or treatments;
(3) to approve or withhold approval of the ward’s request to sell or
in any way encumber his or her personal or real property the power to
exercise general financial supervision over the income and resources of the
person under guardianship. This includes the power to seek or apply for,
receive, invest, and expend all wages, compensation, insurance benefits, public
benefits, and pensions for the benefit of the person under guardianship, to
liquidate personal property for the benefit of the person under guardianship,
to settle accounts, demands, claims, and actions by or against the person under
guardianship, and to take any other action reasonably necessary to secure,
preserve, protect, and defend the financial interests of the person under
guardianship;
(4) to exercise general supervision over the income and resources of
the ward. This includes the power to receive, invest, and expend all wages,
compensation, insurance benefits, public benefits, and pensions for the benefit
of the ward and to liquidate resources for the benefit of the ward the
power to approve or withhold approval of any contract, except for necessaries,
which the person under guardianship wishes to make;
(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 the power to
approve or withhold approval of the sale or encumbrance of real property of the
person under guardianship subject to subchapter 6 of this chapter;
(6) to receive, sue for, and recover debts and demands due to the ward,
to maintain and defend actions or suits for the recovery or protection of the
property or person of the ward, settle accounts, demands, claims, and actions
by or against the ward, including actions for injuries to the property or
person of the ward, and to compromise, release, and discharge the same on such
terms as he or she deems just and beneficial to the ward the power to
obtain legal advice and to commence or defend against court actions in the name
of the person under guardianship.
(c)(d) The total guardian shall exercise his or her
supervisory powers over the ward in a manner which is least restrictive of the
ward’s personal freedom consistent with the need for supervision.
(1) When a guardian has been granted some but not all guardianship powers, the guardianship shall be identified as a “limited guardianship” and the guardian identified as a “limited guardian.”
(2) A person for whom limited guardianship has been granted retains all the powers identified in subsection (c) of this section except those which have been specifically granted to the limited guardian.
(e) The guardian shall exercise supervisory powers in a manner which is least restrictive of the personal freedom of the person under guardianship consistent with the need for supervision.
(f) The guardian shall encourage the person under guardianship to participate in decisions, to act on his or her own behalf when practicable, and to develop or regain the capacity to manage his or her own personal affairs to the maximum extent possible. The wishes, values, beliefs, and preferences of the person under guardianship shall be respected to the greatest possible extent in the exercise of all guardianship powers.
§ 3070.
POWERS OF A LIMITED GUARDIAN
(a) If the court enters judgment pursuant to section 3068(f) of this
title, it may appoint a limited guardian if it determines that the respondent
is unable to manage some, but not all, aspects of his personal care and
financial affairs. The court shall specify those powers enumerated in section
3069 of this title which the limited guardian shall have and may further
restrict each power so as to permit the ward to care for himself and his
property commensurate with his ability to do so.
(b) A person for whom a limited guardian has been appointed retains
all legal and civil rights except those which have been specifically granted to
the limited guardian by the court.
(c) The limited guardian shall exercise his supervisory powers over
the ward in a manner which is least restrictive of the ward’s personal freedom
consistent with the order of the court.
§ 3071. DUTIES OF GUARDIAN
(a) The guardian shall maintain close contact with the ward person
under guardianship and encourage maximum self-reliance on the part of the ward
under his protection person under guardianship.
(b) In addition to the powers vested in the guardian by the court
pursuant to sections section 3069 and 3070 of this title,
the court may order the guardian to assure that the ward person under
guardianship receives those benefits and services to which he or she
is lawfully entitled and which he needs to maximize his or her
opportunity for social and financial independence. Those benefits and services
include, but are not limited to:
(1) education services for a ward person under guardianship
who is of school age;
(2) residential services for a ward person under guardianship
who lacks adequate housing;
(3) nutrition services;
(4) medical and dental services, including home health care;
(5) therapeutic and habilitative services, adult education, vocational rehabilitation or other appropriate services.
(c) The guardian shall always serve the interests of the person under guardianship and shall bring any potential conflicts of interest to the attention of the court.
§ 3072. GUARDIANS; INDIVIDUALS WHO MAY SERVE
(a)(1) Competent individuals of at least eighteen 18
years of age may serve as guardians. No individual who operates or is an
employee of a boarding home, residential care home, nursing home, group home or
other similar facility in which the ward resides may serve as guardian.
(2) No individual may be appointed or serve as guardian for a person under or in need of guardianship if the individual operates a boarding home, residential care home, assisted living residence, nursing home, group home, developmental home, correctional facility, psychiatric unit at a designated hospital, or other similar facility in which the person under or in need of guardianship resides or is receiving care.
(3) No person may serve as guardian for the respondent who has served as guardian ad litem in the same proceeding.
(4) Notwithstanding the provisions of section 2603 of this title, the court shall have the discretion to appoint a guardian who is not a resident of this state, provided that the individual appointed is otherwise qualified to serve.
(b) In appointing an individual to serve as guardian, the court shall take into consideration:
(1) the preference of the ward the nomination of a guardian in
an advance directive or in a will;
(2) any current or past expressed preferences of the respondent;
(2)(3) the geographic location of the proposed guardian;
(3)(4) the relationship of the proposed guardian to
and the ward respondent;
(4)(5) the ability of the proposed guardian to carry out
the powers and duties of the guardianship; and
(5)(6) the willingness and ability of the proposed guardian to
communicate with the respondent and to respect the respondent’s choices and
preferences;
(7) potential financial conflicts of interest between the ward
respondent and the proposed guardian, and any conflicts that may
arise if the proposed guardian is an employee of a boarding home, residential
care home, assisted living residence, nursing home, group home, developmental
home, correctional facility, psychiatric unit at a designated hospital, or
other similar facility in which the respondent resides or is receiving care;
and
(8) results of any background checks.
§ 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 person under guardianship
pursuant to subdivision 3069(b)(1) of this title wishes to admit the ward
person under guardianship to a nursing home or change the residential
placement of the ward person under guardianship from a private
home to a boarding 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 person
under guardianship 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, a guardian who has been granted the power to
choose or change the residence of the ward person under guardianship
pursuant to subdivision 3069(b)(1) of this title may change the residential
placement of the ward person under guardianship without
petitioning the court for prior permission or without giving prior notice to
parties. Immediately after 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.
(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 person under guardianship, if
known; and
(4) whether the guardian has considered alternatives.
§ 3074. INSTITUTIONALIZATION
OF MENTALLY DISABLED PERSONS COMMITMENT, STERILIZATION, INVOLUNTARY
TREATMENT, AND INVOLUNTARY MEDICATION
Nothing in this chapter shall give the guardian of a ward person
authority to:
(1) place that person in a state school or hospital except pursuant to section 7601 et seq. of Title 18 or section 8801 et seq. of Title 18.
(2) consent to an involuntary treatment or medication petition pursuant to chapter 181 of Title 18.
(3) consent to sterilization or to a petition for involuntary sterilization pursuant to chapter 204 of Title 18.
(4) consent to a petition for custody, care, or habilitation filed pursuant to chapter 206 of Title 18.
§ 3075. CONSENT FOR MEDICAL OR DENTAL TREATMENT
(a) When a ward whose right to consent to surgery or other medical
procedure has not been restricted pursuant to section 3069(b)(5) of this title
is admitted to a hospital for nonemergency surgery or other nonemergency
medical procedures requiring consent, the treating physician shall determine if
the person’s physical condition is such that the person has sufficient capacity
to make a responsible decision. If the person has such capacity, his informed
consent shall be obtained before such surgery or medical procedure is
performed. In such cases, the ward’s consent shall be determinative and no
other consent is necessary A person under guardianship retains the right
to make medical and dental decisions unless that right has been restricted
pursuant to subdivision 3069(c)(2) of this title.
(b) When a ward whose right to consent to surgery or other medical
procedures has been restricted pursuant to section 3069(b)(5) of this title is
admitted to a hospital for nonemergency surgery or other nonemergency medical
procedures requiring consent, the guardian may give such consent upon the
advice of the treating physician and after obtaining permission of the probate
court, after hearing, upon such notice as the court may direct. A person
whose right to make medical decisions has been restricted pursuant to
subdivision 3069(c)(2) of this section who has the capacity to make a specific
medical decision retains the right to make that decision.
(c) Unless an advance directive or the authority of an agent is expressly revoked or modified by the court pursuant to section 9718 of Title 18, the advance directive of a person under guardianship shall remain in effect, and the agent shall have sole authority to make health care decisions for the person under guardianship pursuant to chapter 231 of Title 18.
(d) If there is no agent named in the advance directive, or if the office of agent is vacant, the guardian shall follow the instructions contained in the advance directive.
(e) For a person whose right to consent to medical or dental procedures has been restricted pursuant to subdivision 3069(c)(2) of this title, the guardian may give or withhold consent pursuant to this section and subject to any constitutional right of the person under guardianship to refuse treatment.
(f) Consent to the procedure shall be given or withheld consistent with the manner in which the person under guardianship would have given or withheld consent, provided there is sufficient information concerning the person’s wishes. In making this determination, the guardian and the court in reviewing a guardian’s decision under this section shall:
(1) rely on written and oral expressions of the person under guardianship;
(2) rely on available information concerning the wishes, values, beliefs, and preferences of the person under guardianship if the person’s written and oral expressions do not provide sufficient information; and
(3) follow the best interests of the person under guardianship if subdivisions (1) and (2) of this subsection are inapplicable. No decision to withhold or abate medical treatment will be based solely on the age, economic level, or level of disability of the person under guardianship.
(g)(1) The guardian shall obtain prior written approval by the probate court following notice and hearing:
(A) if the person under guardianship objects to the guardian’s decision, on constitutional grounds or otherwise;
(B) if the court orders prior approval for a specific surgery, procedure, or treatment, either in its initial order pursuant to subdivision 3069(c)(2) of this title or anytime after appointment of a guardian;
(C) except as provided in subdivision (2) of this subsection, and unless the guardian is acting pursuant to an advance directive, before withholding or withdrawing life-sustaining treatment other than antibiotics; or
(D) unless the guardian is acting pursuant to an advance directive, before consenting to a do-not-resuscitate order unless a clinician as defined in subdivision 9701(5) of Title 18 certifies that the person under guardianship is likely to experience cardiopulmonary arrest before court approval can be obtained. In such circumstances, the guardian shall immediately notify the court of the need for a decision, shall obtain the clinician’s certification prior to consenting to the do-not-resuscitate order and shall file the clinician’s certification with the court after consent has been given.
(2) The requirements of subdivision (1)(C) of this subsection shall not apply if obtaining a court order would be impracticable due to the need for a decision before court approval can be obtained. In such circumstances, the guardian shall immediately notify the court by telephone of the need for a decision, and shall notify the court of any decision made.
(h) The procedures in chapter 181 of Title 18 shall be the exclusive mechanism to obtain approval for administration of nonemergency involuntary psychiatric medication to a person under guardianship.
§ 3076. ANNUAL REPORTS; FINAL ACCOUNTING; FEES
(a) The guardian of a ward shall file an annual report with the
appointing court on within 30 days of the anniversary date of his
the appointment.
(b) The annual report shall contain:
(1) a financial accounting as required by section 2921 of this title if
the guardian has been granted power over the ward’s income and resources
pursuant to section subdivision 3069(b)(4) of this title;
(2) a report on the progress and condition of the ward person
under guardianship, including but not limited to, his or her
health, medical and dental care, residence, education, employment, and
habilitation;
(3) a report on the manner in which the guardian carried out his or her powers and fulfilled his or her duties; and
(4) the guardian’s opinion regarding the continued need for guardianship.
(c) If the guardian has been granted power over the ward’s income
and resources pursuant to section subdivision 3069(b)(4) of this
title, at the termination of the guardianship, the guardian shall render a
final accounting as required by section 2921 of this title.
(d)(1) Except as provided in subdivision (2) of this subsection,
the guardian shall not be paid any fees to which he or she may be
entitled, or reimbursed for any of his or her expenses from the estate
of the ward person under guardianship until the annual reports or
final accounting required by this section have been filed with the court.
(2) The guardian may at any time apply by motion to the probate court for payment of fees or reimbursement of expenses incurred as a result of the guardianship. The court may grant the motion and approve payment if it finds the expenses were reasonable and supported by documentary evidence.
§ 3077. TERMINATION AND MODIFICATION OF GUARDIANSHIP
(a) Any A person under guardianship or any person
interested in the welfare of the ward person under guardianship
may file a motion for termination or modification of the guardianship. Grounds
for the termination or modification of the guardianship shall include:
(1) the death of the guardian;
(2) the failure of the guardian to file an annual report, or the failure to file such report in a timely manner;
(3) the failure of the guardian to act in accord with an order of the court;
(4) a change in the ability of the ward person under
guardianship to manage his or her personal care or financial affairs;
(5) a change in the capacity or suitability of the guardian for carrying out his or her powers and duties, including but not limited to any current or past expressed preferences of the person under guardianship to have an alternative person appointed as guardian.
(b) When the grounds for termination or modification are those listed
in subsections (a)(1), (2), (3), or (5) of this section, the court may appoint
a successor guardian After notice and hearing, the court may terminate
or modify the guardianship, appoint a successor guardian, or restrict the
powers of a guardian, consistent with the court’s findings and conclusions of
law.
(c) Notice and hearing on the motion shall proceed in the manner set forth in sections 3064 and 3068 of this title.
(d) Marriage of the person under guardianship shall not extinguish a guardian’s authority.
(e) The following guardianship powers shall remain for up to two years after the death of a person under guardianship or until the appointment of an executor or administrator of the person’s estate:
(1) the power to arrange and pay for a funeral;
(2) the power to request medical, financial or other records of the person in guardianship;
(3) the power to request an autopsy and to obtain the results thereof;
(4) the power to make and file a financial accounting; and
(5) any other powers which are incidental to the closing of and accounting for the guardianship and which are fully reported to the probate court.
§ 3078.
ANNUAL NOTICE TO WARD PERSON IN NEED OF GUARDIANSHIP
The appointing court shall send an annual notice to each ward person
under guardianship and the ward’s counsel of record of each person
under guardianship, advising the ward person under guardianship
of his or her right to file a motion for termination or modification of the
guardianship pursuant to section 3077 of this title. The notice shall include
a copy of any accountings, reports or other information filed by the guardian
during the year, except when there is counsel of record and the court deems it
is in the best interest of the ward person under guardianship to
send the accountings, reports and other information to counsel only.
§ 3079. VALIDITY OF PRIOR GUARDIANSHIP
All guardianships approved pursuant to section 2671 et seq. and section
2683 et seq. of this title prior to July 1, 1979 remain valid. On the first
anniversary date of such guardianship after July 1, 1979, the court which
approved such guardianship shall send notice to each ward person
under guardianship, his or her counsel of record, and a near
relative of the ward person under guardianship, if known,
advising them of the ward’s right of the person under
guardianship to petition for termination or modification of the
guardianship pursuant to section 3077 of this title. Upon the filing of such a
petition, the court shall promptly arrange for a comprehensive evaluation of
the ward person under guardianship pursuant to section 3067 of
this title.
§ 3080. APPEALS
Orders of the court issued pursuant to the provisions of this subchapter may be appealed in such manner as provided in sections 2551 et seq. of Title 12 and Rule 72, Vermont Rules of Civil Procedure, provided, however, that any order issued pursuant to this subchapter shall not be stayed during the pendency of an appeal except by order of a court of competent jurisdiction.
§ 3081. EMERGENCY TEMPORARY GUARDIAN PENDING FINAL HEARING ON PETITION
(a) When a petition for guardianship has been filed, but adherence to
the procedures set out in this subchapter would cause serious and irreparable
harm to the respondent’s physical health or financial interests, the probate
court may appoint a an emergency temporary guardian prior to the
final hearing and decision on the petition, subject to the requirements of this
section.
(b) Upon motion of the petitioner, the court shall schedule a hearing
on the appointment of a temporary guardian for the earliest possible date,
appoint a guardian ad litem for the respondent, and notice shall be given as
provided by the rules of probate procedure. Upon a finding that serious and
irreparable harm to the respondent’s physical health or financial interests
would result during the pendency of petition, the court shall appoint a
temporary guardian and shall specify those powers which the temporary guardian
shall have in order to prevent serious and irreparable harm to the respondent.
The duration of the temporary guardianship shall not extend beyond the time the
court renders a decision on the petition for guardianship. If a
guardianship petition is accompanied by a motion for emergency temporary
guardianship, the court shall schedule a hearing on the appointment of an emergency
temporary guardian for the earliest possible date. The court shall appoint
counsel for the respondent and cause notice to be given as provided by the Vermont Rules of Probate Procedure (VRPP). Upon a showing by sworn affidavit that notice
cannot be given within the time periods, in the manner, or to the persons
required by the VRPP, the court may allow a hearing to go forward upon such
notice as the court may direct. The court may appoint an emergency temporary
guardian if it finds that serious and irreparable harm to the respondent’s
physical health or financial interests will likely result during the pendency
of the petition.
(c) A temporary guardian may be appointed without notice to the
respondent and guardian ad litem only if it clearly appears from specific facts
shown by affidavit or sworn testimony that immediate, serious and irreparable
harm will result to the respondent before a hearing on the appointment of a
temporary guardian can be held. On two days’ notice to the party who obtained
the appointment of a temporary guardian without notice, or on such shorter
notice to that party as the court may prescribe, the respondent or the guardian
ad litem may appear and move dissolution or modification of the court’s order,
and, in that event, the court shall proceed to hear and determine such motion
as expeditiously as the ends of justice require. An emergency temporary
guardian may be appointed without notice to the respondent or respondent’s
counsel only if it clearly appears from specific facts shown by affidavit or
sworn testimony that immediate, serious, and irreparable harm will result to
the respondent before the hearing on the appointment of an emergency temporary
guardian can be held. A request for ex parte emergency temporary guardianship
under this section shall be made by written motion, accompanied by a petition
for guardianship, unless waived by the court for good cause shown. If the
court appoints an ex parte emergency temporary guardian, the court shall
immediately schedule a temporary hearing in accordance with subsection (b) of
this section. The ex parte order shall state why the order was granted without
notice and include findings on the immediate, serious, and irreparable harm.
The ex parte order shall be for a fixed period of time, not to exceed 10 days,
and shall expire on its terms unless extended after the temporary hearing. If
the temporary hearing cannot be held before the ex parte order expires, the ex
parte order can be extended for good cause shown for an additional 10 days
until the temporary hearing is held.
(d) A temporary guardianship order expires when the court renders a final decision on the guardianship petition. If the final decision is not rendered within 90 days of the filing of the petition, the court shall schedule a hearing to review the need for continuation of the temporary guardianship order.
Sec. 2. PROPOSAL OF RULES
Within six months after the effective date of this act, the advisory committee on the Vermont Rules of Probate shall report to the legislative committee on judicial rules any changes to rules or forms that the committee determines are necessary or advisable as a result of this act.
Sec. 3. GUARDIANSHIP TASK FORCE
(a) The general assembly finds that:
(1) Individuals under guardianship are among the state’s most vulnerable citizens.
(2) Guardianship provides legal and human rights protections but may also be used to deprive vulnerable people of resources and fundamental rights.
(3) Guardianship is increasing in Vermont.
(4) Private guardians usually have no training or support in carrying out their guardianship responsibilities.
(5) Probate judges and court registers who once were able to provide a measure of support for and monitoring of guardians are less able to do so as the volume of new guardianships and other court work increases their workload.
(6) A comprehensive guardianship monitoring program would likely require significant additional staffing and resources and, as such, is not currently a cost effective or viable approach.
(b) The guardianship education, improvement, and accountability task force is established. Consistent with the findings in subsection (a) of this section and in recognition of the vulnerability of individuals under guardianship, the task force shall study ways, other than a staff-intensive monitoring model, for improving guardian accountability, assuring the protection of the rights and well-being of individuals under guardianship, and training and supporting guardians in the execution of their guardianship duties.
(c) The task force shall consist of the following members:
(1) Two sitting probate judges appointed by the Vermont association of probate judges.
(2) Two members appointed by Vermont Legal Aid.
(3) One member appointed by Vermont protection and advocacy.
(4) Two members appointed by the secretary of human services, one of whom shall be a representative from the office of the public guardian.
(5) One member appointed by the community of Vermont elders.
(6) A member appointed by green mountain self-advocates.
(7) Two members, appointed by the Vermont coalition for disability rights, who shall be family members of adults under guardianship.
(8) One member appointed by Vermont psychiatric survivors.
(9) One member appointed by the Vermont traumatic brain injury association.
(d) The committee shall report its findings and recommendations to the house and senate committees on judiciary and the office of the court administrator on or before December 15, 2008.
ALICE W. NITKA
RICHARD W. SEARS, JR.
ANN E. CUMMINGS
Committee on the part of the Senate
WILLEM JEWETT
MARGARET FLORY
AVIS GERVAIS
Committee on the part of the House
Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.
H. 635.
Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on House bill entitled:
An act relating to reports of child abuse or neglect.
Was taken up for immediate consideration.
Senator Racine, for the Committee of Conference, submitted the following 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:
H. 635. An act relating to reports of child abuse or neglect.
Respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposals of amendment and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:
Sec. 1. 33 V.S.A. § 4911 is amended to read:
§ 4911. Purpose
The purpose of this subchapter is to:
(1) protect Protect children whose health and
welfare may be adversely affected through abuse or neglect;.
(2) strengthen Strengthen the family and make the
home safe for children whenever possible by enhancing the parental capacity for
good child care;.
(3) provide Provide a temporary or permanent
nurturing and safe environment for children when necessary; and for these
purposes require the reporting of suspected child abuse and neglect, an
assessment or investigation of such reports and provision of services, when
needed, to such child and family.
(4) Establish a range of responses to child abuse and neglect that take into account different degrees of child abuse or neglect and which recognize that child offenders should be treated differently from adults.
(5) Establish a tiered child protection registry that balances the need to protect children and the potential employment consequences of a registry record for persons who are substantiated for child abuse and neglect.
Sec. 2. 33 V.S.A. § 4912 is amended to read:
§ 4912. Definitions
As used in this subchapter:
(1) “Child” means an individual under the age of majority.
(2) An “abused or neglected child” means a child whose physical health, psychological growth and development or welfare is harmed or is at substantial risk of harm by the acts or omissions of his or her parent or other person responsible for the child’s welfare. An “abused or neglected child” also means a child who is sexually abused or at substantial risk of sexual abuse by any person.
(3) “Harm” can occur by:
(A) Physical injury or emotional maltreatment;
(B) Failure to supply the child with adequate food, clothing, shelter, or health care. For the purposes of this subchapter, “adequate health care” includes any medical or nonmedical remedial health care permitted or authorized under state law. Notwithstanding that a child might be found to be without proper parental care under chapter 55 of Title 33, a parent or other person responsible for a child’s care legitimately practicing his or her religious beliefs who thereby does not provide specified medical treatment for a child shall not be considered neglectful for that reason alone; or
(C) Abandonment of the child.
(4) “Risk of harm” means a significant danger that a child will suffer serious harm other than by accidental means, which harm would be likely to cause physical injury, neglect, emotional maltreatment or sexual abuse.
(5) “A person responsible for a child’s welfare” includes the child’s parent; guardian; foster parent; any other adult residing in the child’s home who serves in a parental role; an employee of a public or private residential home, institution or agency; or other person responsible for the child’s welfare while in a residential, educational, or child care setting, including any staff person.
(6) “Physical injury” means death, or permanent or temporary disfigurement or impairment of any bodily organ or function by other than accidental means.
(7) “Emotional maltreatment” means a pattern of malicious behavior which results in impaired psychological growth and development.
(8) “Sexual abuse” consists of any act or acts by any person involving sexual molestation or exploitation of a child including but not limited to incest, prostitution, rape, sodomy, or any lewd and lascivious conduct involving a child. Sexual abuse also includes the aiding, abetting, counseling, hiring, or procuring of a child to perform or participate in any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, depicts a sexual conduct, sexual excitement or sadomasochistic abuse involving a child.
(9) “Multi‑disciplinary team” means a group of professionals,
paraprofessionals and other appropriate individuals, empanelled by the
commissioner of social and rehabilitation services under this chapter,
for the purpose of assisting in the identification and investigation review
of cases of child abuse and neglect, coordinating treatment services for abused
and neglected children and their families and promoting child abuse prevention.
(10) “Substantiated report” means that the commissioner or the commissioner’s designee has determined after investigation that a report is based upon accurate and reliable information that would lead a reasonable person to believe that the child has been abused or neglected.
(11) [Repealed.]
(12) “Member of the clergy” means a priest, rabbi, clergy member, ordained or licensed minister, leader of any church or religious body, accredited Christian Science practitioner, person performing official duties on behalf of a church or religious body that are recognized as the duties of a priest, rabbi, clergy, nun, brother, ordained or licensed minister, leader of any church or religious body, or accredited Christian Science practitioner.
(13) “Redacted investigation file” means the intake report, the investigation activities summary, and case determination report that are amended in accordance with confidentiality requirements set forth in subsection 4913(d) of this title.
(14) “Child abuse and neglect protection registry” means a
record of all investigations that have resulted in a substantiated report on or
after January 1, 1992.
(15) “Registry record” means an entry in the abuse and neglect child
protection registry that consists of the name of an individual
substantiated for child abuse or neglect, the date of the finding, the nature
of the finding, and at least one other personal identifier, other than a name,
listed in order to avoid the possibility of misidentification.
(16) “Investigation” means a response to a report of child abuse or neglect that begins with the systematic gathering of information to determine whether the abuse or neglect has occurred and, if so, the appropriate response. An investigation shall result in a formal determination as to whether the reported abuse or neglect has occurred.
(17) “Assessment” means a response to a report of child abuse or neglect that focuses on the identification of the strengths and support needs of the child and the family, and any services they may require to improve or restore their well-being and to reduce the risk of future harm. The child and family assessment does not result in a formal determination as to whether the reported abuse or neglect has occurred.
Sec. 3. 33 V.S.A. § 4913 is amended to read:
§ 4913. REPORTING SUSPECTED CHILD ABUSE AND NEGLECT; remedial action
(a) Any physician, surgeon, osteopath, chiropractor, or physician’s
assistant licensed, certified, or registered under the provisions of Title 26,
any resident physician, intern, or any hospital administrator in any hospital
in this state, whether or not so registered, and any registered nurse, licensed
practical nurse, medical examiner, emergency medical personnel as defined in
24 V.S.A. § 2651(6), dentist, psychologist, pharmacist, any other
health care provider, child care worker, school superintendent, school
teacher, school librarian, child care worker, school principal, school
guidance counselor, and any other individual who is regularly employed by a
school district, or who is contracted and paid by a school district to provide
student services for five or more hours per week during the
school year, mental health professional, social worker, probation officer,
police officer, camp owner, camp administrator, camp counselor, or member of
the clergy who has reasonable cause to believe that any child has been abused
or neglected shall report or cause a report to be made in accordance with the
provisions of section 4914 of this title within 24 hours. As used in this
subsection, “camp” includes any residential or nonresidential recreational
program.
(b) Any other concerned person not listed in subsection (a) of this
section who has reasonable cause to believe that any child has been abused or
neglected may report or cause a report to be made in accordance with the
provisions of section 4914 of this title. The commissioner shall inform
the person who made the report under subsection (a) of this section:
(1) whether the report was accepted as a valid allegation of abuse or neglect;
(2) whether an assessment was conducted and, if so, whether a need for services was found; and
(3) whether an investigation was conducted and, if so, whether it resulted in a substantiation.
(c) Any other concerned person not listed in subsection (a) of this section who has reasonable cause to believe that any child has been abused or neglected may report or cause a report to be made in accordance with the provisions of section 4914 of this title.
(c)(d)(1) Any person enumerated in subsection (a) or
(b) of this section, other than a person suspected of child abuse, who in
good faith makes a report to the department of social and rehabilitation
services shall be immune from any civil or criminal liability which might
otherwise be incurred or imposed as a result of making a report.
(2) An employer or supervisor shall not discharge; demote; transfer; reduce pay, benefits, or work privileges; prepare a negative work performance evaluation; or take any other action detrimental to any employee because that employee filed a good faith report in accordance with the provisions of this subchapter. Any person making a report under this subchapter shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of the reporting party by reason of his or her making a report.
(d)(e) The name of and any identifying information about
either the person making the report or any person mentioned in the report shall
be confidential unless:
(1) the person making the report specifically allows disclosure or
unless;
(2) a human services board proceeding or a judicial proceeding
results therefrom or unless;
(3) a court, after a hearing, finds probable cause to believe that the report was not made in good faith and orders the department to make the name of the reporter available; or
(4) a review has been requested pursuant to section 4916a of this title, and the department has determined that identifying information can be provided without compromising the safety of the reporter or the persons mentioned in the report.
(e)(f)(1) A person who violates subsection (a) of this
section shall be fined not more than $500.00.
(2) A person who violates subsection (a) of this section with the intent to conceal abuse or neglect of a child shall be imprisoned not more than six months or fined not more than $1,000.00, or both.
(3) This section shall not be construed to prohibit a prosecution under any other provision of law.
(f)(g) Except as provided in subsection (g)(h)
of this section, a person may not refuse to make a report required by this
section on the grounds that making the report would violate a privilege or
disclose a confidential communication.
(g)(h) A member of the clergy shall not be required to
make a report under this section if the report would be based upon information
received in a communication which is:
(1) made to a member of the clergy acting in his or her capacity as spiritual advisor;
(2) intended by the parties to be confidential at the time the communication is made;
(3) intended by the communicant to be an act of contrition or a matter of conscience; and
(4) required to be confidential by religious law, doctrine, or tenet.
(h)(i) When a member of the clergy receives information
about abuse or neglect of a child in a manner other than as described in
subsection (g)(h) of this section, he or she is required to
report on the basis of that information even though he or she may have also
received a report of abuse or neglect about the same person or incident in the
manner described in subsection (g)(h) of this section.
Sec. 4. 33 V.S.A. § 4914 is amended to read:
§ 4914. NATURE AND CONTENT OF REPORT; TO WHOM MADE
A report shall be made orally or in writing to the commissioner for
children and families or designee. The commissioner or designee shall
request the reporter to follow the oral report with a written report,
unless the reporter is anonymous. Reports shall contain the name and address
or other contact information of the reporter as well as the names and addresses
of the child and the parents or other persons responsible for the child’s care,
if known; the age of the child; the nature and extent of the child’s injuries
together with any evidence of previous abuse and neglect of the child or the
child’s siblings; and any other information that the reporter believes might be
helpful in establishing the cause of the injuries or reasons for the neglect as
well as in protecting the child and assisting the family. If a report of child
abuse or neglect involves the acts or omissions of the commissioner for
children and families or employees of that the department,
then the report shall be directed to the secretary of the agency of human
services who shall cause the report to be investigated by other appropriate
agency staff other than staff of the department for children and families.
If the report is substantiated, services shall be offered to the child and to
his or her family or caretaker according to the requirements of section 4915
4915b of this title.
Sec. 5. 33 V.S.A. § 4915 is amended to read:
§ 4915. ASSESSMENT
AND INVESTIGATION; REMEDIAL ACTION
(a) Upon receipt of a report of abuse or neglect, the department shall promptly determine whether it constitutes an allegation of child abuse or neglect as defined in section 4912 of this title. The department shall respond to reports of alleged neglect or abuse that occurred in Vermont and to out-of-state conduct when the child is a resident of or is present in Vermont.
(b) If the report is accepted as a valid allegation of abuse or neglect, the department shall determine whether to conduct an assessment as provided for in section 4915a of this title or to conduct an investigation as provided for in section 4915b of this title. The department shall begin either an assessment or an investigation within 72 hours after the receipt of a report made pursuant to section 4914 of this title, provided that it has sufficient information to proceed. The commissioner may waive the 72-hour requirement only when necessary to locate the child who is the subject of the allegation or to ensure the safety of the child or social worker.
(c) The decision to conduct an assessment shall include consideration of the following factors:
(1) the nature of the conduct and the extent of the child’s injury, if any;
(2) the accused person’s prior history of child abuse or neglect, or lack thereof; and
(3) the accused person’s willingness or lack thereof to accept responsibility for the conduct and cooperate in remediation.
(d) The department shall conduct an investigation when an accepted report involves allegations indicating substantial child endangerment. For purposes of this section, “substantial child endangerment” includes conduct by an adult involving or resulting in sexual abuse, and conduct by a person responsible for a child’s welfare involving or resulting in abandonment, child fatality, malicious punishment, or abuse or neglect that causes serious physical injury. The department may conduct an investigation of any report.
(e) The department shall begin an immediate investigation if, at any time during an assessment, it appears that an investigation is appropriate.
(f) The department may collaborate with child protection, law enforcement, and other departments and agencies in Vermont and other jurisdictions to evaluate risk to a child and to determine the service needs of the child and family. The department may enter into reciprocal agreements with other jurisdictions to further the purposes of this subchapter.
(b) The investigation, to the extent that it is reasonable under the
facts and circumstances presented by the particular allegation of child abuse,
shall include all of the following:
(1) A visit to the child’s place of residence or place of custody and
to the location of the alleged abuse or neglect.
(2) An interview with, or observance of the child reportedly having
been abused or neglected. If the investigator elects to interview the child,
that interview may take place without the approval of the child’s parents,
guardian, or custodian, provided that it takes place in the presence of a
disinterested adult who may be, but shall not be limited to being, a teacher, a
member of the clergy, child care provider regulated by the department, or a
nurse.
(3) Determination of the nature, extent, and cause of any abuse or
neglect.
(4) Determination of the identity of the person alleged to be
responsible for such abuse or neglect.
(5)(A) The identity, by name, of any other children living in the
same home environment as the subject child. The investigator shall consider
the physical and emotional condition of those children and may interview them,
in accordance with the provisions of subdivision (2) of this subsection, unless
the subject child is the person who is alleged to be responsible for such abuse
or neglect.
(B) The identity, by name, of any other children who may be at risk
if the abuse was alleged to have been committed by someone who is not a member
of the subject child’s household. The investigator shall consider the physical
and emotional condition of those children and may interview them, in accordance
with the provisions of subdivision (2) of this subsection, unless the subject
child is the person who is alleged to be responsible for such abuse or neglect.
(6) A determination of the immediate and long-term risk to each child
if that child remains in the existing home or other environment.
(7) Consideration of the environment and the relationship of any
children therein to the person alleged to be responsible for the suspected
abuse or neglect.
(8) All other data deemed pertinent.
(c) For cases investigated by the department, the commissioner may,
to the extent that it is reasonable, provide assistance to the child and the
child’s family.
(d) The commissioner, designee, or any person required to report
under section 4913 or any other person performing an investigation pursuant to
section 4914 may take or cause to be taken, photographs of trauma visible on a
child who is the subject of a report. The commissioner or designee may seek
consultation with a physician. If it is indicated as appropriate by the
physician, the commissioner or designee may cause the child who is subject of a
report to undergo a radiological examination, without the consent of the
child’s parent or guardian.
(e) Services may be provided to the child’s immediate family whether
or not the child remains in the home.
(f) The department shall report to and request assistance from law
enforcement in the following circumstances:
(1) Investigations of child sexual abuse by an alleged perpetrator
age 10 or older.
(2) Investigations of serious physical abuse or neglect of a child
likely to result in criminal charges or requiring emergency medical care.
(3) Situations potentially dangerous to the child or department
worker.
Sec. 6. 33 V.S.A. § 4915a is added to read:
§ 4915a. Procedures for Assessment
(a) An assessment, to the extent that is reasonable under the facts and circumstances presented by the particular valid allegation of child abuse or neglect, shall include the following:
(1) An interview with the child’s parent, guardian, foster parent, or any other adult residing in the child’s home who serves in a parental role. The interview shall focus on ensuring the immediate safety of the child and mitigating the future risk of harm to the child in the home environment.
(2) An evaluation of the safety of the subject child and any other children living in the same home environment. The evaluation may include an interview with or observation of the child or children. Such interviews shall occur with the permission of the child’s parent, guardian, or custodian.
(3) In collaboration with the family, identification of family strengths, resources, and service needs, and the development of a plan of services that reduces the risk of harm and improves or restores family well-being.
(b) The assessment shall be completed within 45 days. Upon written justification by the department, the assessment may be extended, not to exceed a total of 60 days.
(c) Families have the option of declining the services offered as a result of the assessment. If the family declines the services, the case shall be closed unless the department determines that sufficient cause exists to begin an investigation or to request the state’s attorney to file a petition pursuant to chapter 55 of this title. In no instance shall a case be investigated solely because the family declines services.
(d) When an assessment case is closed, there shall be no finding of abuse or neglect and no indication of the intervention shall be placed in the registry. However, the department shall document the outcome of the assessment.
Sec. 7. 33 V.S.A. § 4915b is added to read:
§ 4915b. Procedures for Investigation
(a) An investigation, to the extent that it is reasonable under the facts and circumstances presented by the particular allegation of child abuse, shall include all of the following:
(1) A visit to the child’s place of residence or place of custody and to the location of the alleged abuse or neglect.
(2) An interview with or observation of the child reportedly having been abused or neglected. If the investigator elects to interview the child, that interview may take place without the approval of the child’s parents, guardian, or custodian, provided that it takes place in the presence of a disinterested adult who may be, but shall not be limited to being, a teacher, a member of the clergy, a child care provider regulated by the department, or a nurse.
(3) Determination of the nature, extent, and cause of any abuse or neglect.
(4) Determination of the identity of the person alleged to be responsible for such abuse or neglect.
(5)(A) The identity, by name, of any other children living in the same home environment as the subject child. The investigator shall consider the physical and emotional condition of those children and may interview them, unless the child is the person who is alleged to be responsible for such abuse or neglect, in accordance with the provisions of subdivision (2) of this subsection.
(B) The identity, by name, of any other children who may be at risk if the abuse was alleged to have been committed by someone who is not a member of the subject child’s household. The investigator shall consider the physical and emotional condition of those children and may interview them, unless the child is the person who is alleged to be responsible for such abuse or neglect, in accordance with the provisions of subdivision (2) of this subsection.
(6) A determination of the immediate and long‑term risk to each child if that child remains in the existing home or other environment.
(7) Consideration of the environment and the relationship of any children therein to the person alleged to be responsible for the suspected abuse or neglect.
(8) All other data deemed pertinent.
(b) For cases investigated and substantiated by the department, the commissioner shall, to the extent that it is reasonable, provide assistance to the child and the child’s family. For cases investigated but not substantiated by the department, the commissioner may, to the extent that it is reasonable, provide assistance to the child and the child’s family. Nothing contained in this section or section 4915a of this title shall be deemed to create a private right of action.
(c) The commissioner, designee, or any person required to report under section 4913 of this title or any other person performing an investigation may take or cause to be taken photographs of trauma visible on a child who is the subject of a report. The commissioner or designee may seek consultation with a physician. If it is indicated appropriate by the physician, the commissioner or designee may cause the child who is subject of a report to undergo a radiological examination without the consent of the child’s parent or guardian.
(d) Services may be provided to the child’s immediate family whether or not the child remains in the home.
(e) The department shall report to and request assistance from law enforcement in the following circumstances:
(1) Investigations of child sexual abuse by an alleged perpetrator age 10 or older.
(2) Investigations of serious physical abuse or neglect likely to result in criminal charges or requiring emergency medical care.
(3) Situations potentially dangerous to the child or department worker.
(f) The department shall not substantiate cases in which neglect is caused solely by the lack of financial resources of the parent or guardian.
Sec. 8. 33 V.S.A. § 4916 is amended to read:
§ 4916.
CHILD ABUSE AND NEGLECT PROTECTION REGISTRY; RECORDS OF
ABUSE AND NEGLECT
(a)(1) The commissioner shall maintain a abuse and neglect child
protection registry which shall contain a record of all investigations that
have resulted in a substantiated report on or after January 1, 1992. Except as
provided in subdivision (2) of this subsection, prior to placement of a
substantiated report on the registry, the commissioner shall comply with the
procedures set forth in section 4916a of this title.
(2) In cases involving sexual abuse or serious physical abuse of a child, the commissioner in his or her sole judgment may list a substantiated report on the registry pending any administrative review after:
(A) Reviewing the investigation file.
(B) Making written findings in consideration of:
(i) the nature and seriousness of the alleged behavior; and
(ii) the person’s continuing access to children.
(3) A person alleged to have abused or neglected a child and whose name has been placed on the registry in accordance with subdivision (2) of this subsection shall be notified of the registry entry, provided with the commissioner’s findings, and advised of the right to seek an administrative review in accordance with section 4916a of this title.
(4) If the name of a person has been placed on the registry in accordance with subdivision (2) of this subsection, it shall be removed from the registry if the substantiation is rejected after an administrative review.
(b) A registry record means an entry in the abuse and neglect child
protection registry that consists of the name of an individual
substantiated for child abuse or neglect, the date of the finding, the nature
of the finding, and at least one other personal identifier, other than a name,
listed in order to avoid the possibility of misidentification.
(c) The commissioner shall adopt rules to permit use of the registry records as authorized by this subchapter while preserving confidentiality of the registry and other department records related to abuse and neglect.
(d) Registry records shall only be disclosed to the commissioner or
person designated by the commissioner to receive such records, persons assigned
by the commissioner to investigate reports, the person reported on, an employer
as defined in subsection 4919(e) of this title, or a state’s attorney or the
attorney general. In no event shall registry records be made available for
employment purposes other than as set forth in section 309 or 4919 of this
title, or for credit purposes. Any person who violates this subsection shall be
fined not more than $500.00.
For all substantiated reports of child abuse or neglect made on or after the date the final rules are adopted, the commissioner shall create a registry record that reflects a designated child protection level related to the risk of future harm to children. This system of child protection levels shall be based upon an evaluation of the risk the person responsible for the abuse or neglect poses to the safety of children. The risk evaluation shall include consideration of the following factors:
(A) the nature of the conduct and the extent of the child’s injury, if any;
(B) the person’s prior history of child abuse or neglect as either a victim or perpetrator;
(C) the person’s response to the investigation and willingness to engage in recommended services; and
(D) the person’s age and developmental maturity.
(e)(1) Verbal Notice. The commissioner or the commissioner’s
designee shall promptly inform a parent or guardian of the child that a report
has been made and substantiated. If a parent or guardian is under
investigation for abuse or neglect, such information need only be provided to
that parent or guardian in accordance with subsection 4916(d) of this title.
(2) Written Records. Absent good cause shown by the department, if a
report has been substantiated, the commissioner or the commissioner’s designee
shall provide upon request the redacted investigation file to the child’s
parent or guardian or, if there is a pending juvenile proceeding or if the
child is in custody of the commissioner, to the child’s attorney.
The commissioner shall develop rules for the implementation of a system of child protection registry levels for substantiated cases. The rules shall address:
(1) the length of time a person’s name appears on the registry;
(2) when and how names are expunged from the registry;
(3) whether the person is a juvenile or an adult;
(4) whether the person was charged with or convicted of a criminal offense arising out of the incident of abuse or neglect; and
(5) whether a family court has made any findings against the person.
(f)(1) The commissioner or the commissioner’s designee may inform the
following persons that a report has been substantiated:
(A) The person responsible for supervising the staff in the child’s
residential, educational or child care setting.
(B) Upon request, to the person who made the report under subsection
4913(a) of this title.
(C) Any person authorized by law to receive such information.
(2) A person receiving information under this subsection shall not
disclose that information to persons who are not involved with the provision of
treatment services under section 4915 of this title to the abused or neglected
child.
Sec. 9. 33 V.S.A. § 4916a is amended to read:
§ 4916a. CHALLENGING PLACEMENT ON THE REGISTRY
(a) If an investigation conducted in accordance with section 4915
4915b of this title results in a determination that a report of child
abuse or neglect should be substantiated, the department shall notify the
person alleged to have abused or neglected a child of the following:
(1) The nature of the substantiation decision, and that the department intends to enter the record of the substantiation into the registry.
(2) Who has access to registry information and under what circumstances.
(3) The implications of having one’s name placed on the registry as it applies to employment, licensure, and registration.
(4) The right to request a review of the substantiation determination by an administrative reviewer, the time in which the request for review shall be made, and the consequences of not seeking a review.
(5) The right to receive a copy of the commissioner’s written findings made in accordance with subdivision 4916(a)(2) of this title if applicable.
(b) Under this section, notice by the department to a person alleged to have abused or neglected a child shall be by first class mail sent to the person’s last known address.
(c)(1) A person alleged to have abused or neglected a child may seek an administrative review of the department’s intention to place the person’s name on the registry by notifying the department within 14 days of the date the department mailed notice of the right to review in accordance with subsections (a) and (b) of this section. The commissioner may grant an extension past the 14-day period for good cause, not to exceed 28 days after the department has mailed notice of the right to review.
(2) The administrative review may be stayed upon request of the person alleged to have committed abuse or neglect if there is a related criminal or family court case pending in court which arose out of the same incident of abuse or neglect for which the person was substantiated. During the period the review is stayed, the person’s name shall be placed on the registry. Upon resolution of the criminal or family court case, the person may exercise his or her right to review under this section.
(d) The department shall hold an administrative review conference within
14 35 days of receipt of the request for review. At least seven
ten days prior to the administrative review conference, the department
shall provide to the person requesting review a copy of the redacted
investigation file, notice of time and place of the conference, and conference
procedures, including information that may be submitted and mechanisms for
providing testimony. The department shall also provide to the person those
redacted investigation files that relate to prior investigations that the
department has relied upon to make its substantiation determination in the case
in which a review has been requested.
(e) At the administrative review conference, the person who requested the review shall be provided with the opportunity to present documentary evidence or other information that supports his or her position and provides information to the reviewer in making the most accurate decision regarding the allegation. The department shall have the burden of proving that it has accurately and reliably concluded that a reasonable person would believe that the child has been abused or neglected by that person. Upon the person’s request, the conference may be held by teleconference.
(f) The department shall establish an administrative case review unit within the department and contract for the services of administrative reviewers. An administrative reviewer shall be a neutral and independent arbiter who has no prior involvement in the original investigation of the allegation.
(g) Within seven days of the conference, the administrative reviewer shall:
(1) reject the department’s substantiation determination;
(2) accept the department’s substantiation; or
(3) place the substantiation determination on hold and direct the department to further investigate the case based upon recommendations of the reviewer.
(h) If the administrative reviewer accepts the department’s substantiation determination, a registry record shall be made immediately. If the reviewer rejects the department’s substantiation determination, no registry record shall be made.
(i) Within seven days of the decision to reject or accept or to place the substantiation on hold in accordance with subsection (g) of this section, the administrative reviewer shall provide notice to the person of his or her decision. If the administrative reviewer accepts the department’s substantiation, the notice shall advise the person of the right to appeal the administrative reviewer’s decision to the human services board in accordance with section 4916b of this title.
(j) Persons whose names were placed on the registry on or after January
1, 1992 but prior to July September 1, 2007 shall be entitled to
an opportunity to seek an administrative review to challenge the substantiation
pursuant to this section.
(k) If no administrative review is requested, the department’s decision in the case shall be final, and the person shall have no further right of review under this section. The commissioner may grant a waiver and permit such a review upon good cause shown. Good cause may include an acquittal or dismissal of a criminal charge arising from the incident of abuse or neglect.
(l) In exceptional circumstances, the commissioner, in his or her sole and nondelegable discretion, may reconsider any decision made by a reviewer. A commissioner’s decision that creates a registry record may be appealed to the human services board in accordance with section 4916b of this title.
Sec. 10. 33 V.S.A. § 4916b is amended to read:
§ 4916b. HUMAN SERVICES BOARD HEARING
(a) Within 30 days of the date on which the administrative reviewer mailed notice of placement of a report on the registry, the person who is the subject of the substantiation may apply in writing to the human services board for relief. The board shall hold a fair hearing pursuant to 3 V.S.A. § 3091. When the department receives notice of the appeal, it shall make note in the registry record that the substantiation has been appealed to the board.
(b)(1) The board shall hold a hearing within 60 days of the receipt of the request for a hearing and shall issue a decision within 30 days of the hearing.
(2) Priority shall be given to appeals in which there are immediate employment consequences for the person appealing the decision.
(c) A hearing may be stayed upon request of the petitioner if there is a related criminal or family court case pending in court which arose out of the same incident of abuse or neglect for which the person was substantiated.
(d) If no review by the board is requested, the department’s decision in the case shall be final, and the person shall have no further right for review under this section. The board may grant a waiver and permit such a review upon good cause shown.
Sec. 11. 33 V.S.A. § 4916c is amended to read:
§ 4916c. PETITION FOR EXPUNGEMENT FROM THE REGISTRY
(a) A person whose name has been placed on the registry prior to July
1, 2009 and has been listed on the registry for at least seven three
years may file a written request with the commissioner, seeking a review for
the purpose of expunging an individual registry record. A person whose name
has been placed on the registry on or after July 1, 2009 and has been listed on
the registry for at least seven years may file a written request with the
commissioner seeking a review for the purpose of expunging an individual
registry record. The commissioner shall grant a review upon request.
(b) The person shall have the burden of proving that a reasonable person would believe that he or she no longer presents a risk to the safety or well‑being of children. Factors to be considered by the commissioner shall include:
(1) The nature of the substantiation that resulted in the person’s name being placed on the registry.
(2) The number of substantiations, if more than one.
(3) The amount of time that has elapsed since the substantiation.
(4) The circumstances of the substantiation that would indicate whether a similar incident would be likely to occur.
(5) Any activities that would reflect upon the person’s changed behavior or circumstances, such as therapy, employment, or education.
(6) References that attest to the person’s good moral character.
(c) At the review, the person who requested the review shall be provided with the opportunity to present any evidence or other information, including witnesses, that supports his or her request for expungement. Upon the person’s request, the review may be held by teleconference.
(d) A person may seek a review under this section no more than once every 36 months.
(e) Within 30 days of the date on which the commissioner mailed notice of the decision pursuant to this section, a person may appeal the decision to the human services board. The person shall be prohibited from challenging his or her substantiation at such hearing, and the sole issue before the board shall be whether the commissioner abused his or her discretion in denial of the petition for expungement. The hearing shall be on the record below, and determinations of credibility of witnesses made by the commissioner shall be given deference by the board.
(f) The department shall take steps to provide reasonable notice to persons on the registry of their right to seek an expungement under this section. Actual notice is not required. Reasonable steps may include activities such as the production of an informative fact sheet about the expungement process, posting of such information on the department website, and other approaches typically taken by the department to inform the public about the department’s activities and policies. The department shall send notice of the expungement process to any person listed on the registry for whom a registry check has been requested.
Sec. 12. 33 V.S.A. § 4916d is amended to read:
§ 4916d. AUTOMATIC EXPUNGEMENT OF REGISTRY RECORDS
Registry entries concerning a person who was substantiated for behavior occurring before the person reached 10 years of age shall be expunged when the person reaches the age of 18, provided that the person has had no additional substantiated registry entries. A person substantiated for behavior occurring before the person reached 18 years of age and whose name has been listed on the registry for at least three years may file a written request with the commissioner seeking a review for the purpose of expunging an individual registry record in accordance with section 4916c of this title.
Sec. 13. 33 V.S.A. § 4917 is amended to read:
§ 4917. Multi-disciplinary teams; empaneling
(a) The commissioner of social and rehabilitation services, or
his or her designee may empanel a multi-disciplinary team wherever in the state
there may be a probable case of child abuse or neglect which warrants the
coordinated use of several professional services.
(b) The commissioner of social and rehabilitation services, or
his or her designee, in conjunction with professionals and community agencies,
shall appoint members to the multi-disciplinary teams which may include persons
who are trained and engaged in work relating to child abuse or neglect such as
medicine, mental health, social work, nursing, day child care,
education, law or law enforcement. Additional persons may be appointed when
the services of those persons are appropriate to any particular case.
(c) The empanelling of a multi-disciplinary team shall be authorized in writing and shall specifically list the members of the team. This list may be amended from time to time as needed as determined by the commissioner or his or her designee.
Sec. 14. 33 V.S.A. § 4918 is amended to read:
§ 4918. Multi-disciplinary teams; functions; guidelines
(a) Multi-disciplinary teams shall assist local district offices of the
department of social and rehabilitation services in identifying and
treating child abuse and or neglect cases. With respect to any
case referred to it, the team shall may assist the district
office by providing:
(1) case diagnosis or identification,;
(2) a comprehensive treatment plan,; and
(3) coordination of services pursuant to the treatment plan.
(b) Multi-disciplinary teams may also provide public informational and educational services to the community about identification, treatment and prevention of child abuse and neglect. It shall also foster communication and cooperation among professionals and organizations in its community, and provide such recommendations or changes in service delivery as it deems necessary.
Sec. 15. 33 V.S.A. § 4919 is amended to read:
§ 4919.
DISCLOSURE OF INFORMATION REGISTRY RECORDS
(a) The commissioner or the commissioner’s designee may disclose a
registry information record only as set forth in section 4916
of this title or as follows:
(1) To the state’s attorney or the attorney general;.
(2) To the owner or operator of a facility regulated by the department
for the purpose of informing the owner or operator that employment of a
specific individual may result in loss of license or,
registration, certification, or authorization as set forth in section
309 of this title;.
(3) To an employer if such information is used to determine whether to
hire or retain a specific individual providing care, custody, treatment,
transportation, or supervision of children or vulnerable adults. The employer
may submit a request concerning a current employee, volunteer, grantee, or
contractor or an individual to whom the employer has given a conditional offer
of a contract, volunteer position, or employment. The request shall be
accompanied by a release signed by the current or prospective employee,
volunteer, grantee, or contractor. If that individual has a record of a
substantiated report, the commissioner shall provide the registry record to the
employer;. The employer shall not disclose the information contained
in the registry report.
(4) To the commissioner commissioners of disabilities,
aging, and independent living, and of mental health, or the
commissioner’s designee their designees, for purposes related to the
licensing or registration of facilities regulated by the department of
disabilities, aging, and independent living; those departments.
(5) To the commissioner commissioners of health or,
of disabilities, aging, and independent living, and of mental health, or
the commissioner’s designee their designees, for purposes related
to oversight and monitoring of persons who are served by or compensated with
funds provided by the departments of health and of disabilities, aging, and
independent living, those departments, including persons to whom a
conditional offer of employment has been made;.
(6) Upon request or when relevant to other states’ adult protective
services offices; and.
(7) Upon request or when relevant to other states’ child protection agencies.
(8) To the person substantiated for child abuse and neglect who is the subject of the record.
(b) An employer providing transportation services to children or vulnerable adults may disclose registry records obtained pursuant to subdivision (a)(3) of this section to the agency of human services or its designee for the sole purpose of auditing the records to ensure compliance with this subchapter. An employer shall provide such records at the request of the agency or its designee. Only registry records regarding individuals who provide direct transportation services or otherwise have direct contact with children or vulnerable adults may be disclosed.
(c) Volunteers shall be considered employees for purposes of this section.
(d) Disclosure of registry records or information or other records used or obtained in the course of providing services to prevent child abuse or neglect or to treat abused or neglected children and their families by one member of a multidisciplinary team to another member of that team shall not subject either member of the multidisciplinary team, individually, or the team as a whole, to any civil or criminal liability notwithstanding any other provision of law.
(e) “Employer,” as used in this section, means a person or organization who employs or contracts with one or more individuals to care for or provide transportation services to children or vulnerable adults, on either a paid or volunteer basis.
(f) In no event shall registry records be made available for employment purposes other than as set forth in this subsection, or for credit purposes. Any person who violates this subsection shall be fined not more than $500.00.
(g) Nothing in this subsection shall limit the department’s right to use and disclose information from its records as provided in section 4921 of this chapter.
Sec. 16. 33 V.S.A. § 4920 is amended to read:
§ 4920. Retaliatory action by employer prohibited
An employer or supervisor shall not discharge, demote, transfer,
reduce pay, benefits or work privileges, prepare a negative work performance
evaluation or take any other action detrimental to any employee because that
employee filed a good faith report in accordance with the provisions of this
subchapter. Any person making a report under this subchapter shall have a civil
cause of action for appropriate compensatory and punitive damages against any
person who causes detrimental changes in the employment status of the reporting
party by reason of his or her making a report.
Sec. 17. 33 V.S.A. § 4921 is added to read:
§ 4921. Department’s Records of abuse and neglect
(a) The commissioner shall maintain all records of all investigations, assessments, reviews, and responses initiated under this subchapter. The department may use and disclose information from such records in the usual course of its business, including to assess future risk to children, to provide appropriate services to the child or members of the child’s family, or for other legal purposes.
(b) The commissioner shall promptly inform the parents, if known, or guardian of the child that a report has been accepted as a valid allegation pursuant to subsection 4915(b) of this title and the department’s response to the report. The department shall inform the parent or guardian of his or her ability to request records pursuant to subsection (c) of this section. This section shall not apply if the parent or guardian is the subject of the investigation.
(c) Upon request, the redacted investigation file shall be disclosed to:
(1) the child’s parents, foster parent, or guardian, absent good cause shown by the department, provided that the child’s parent, foster parent, or guardian is not the subject of the investigation; and
(2) the person alleged to have abused or neglected the child, as provided for in subsection 4916a(d) of this title.
(d) Upon request, department records created under this subchapter shall be disclosed to:
(1) the court, parties to the juvenile proceeding, and the child’s guardian ad litem if there is a pending juvenile proceeding or if the child is in the custody of the commissioner;
(2) the commissioner or person designated by the commissioner to receive such records;
(3) persons assigned by the commissioner to conduct investigations;
(4) law enforcement officers engaged in a joint investigation with the department, an assistant attorney general, or a state’s attorney;
(5) other state agencies conducting related inquiries or proceedings; and
(6) probate courts involved in guardianship proceedings. The probate court shall provide a copy of the record to the respondent, the respondent’s attorney, the petitioner, the guardian upon appointment, and any other individual, including the proposed guardian, determined by the court to have a strong interest in the welfare of the respondent.
(e)(1) Upon request, relevant department records created under this subchapter may be disclosed to:
(A) service providers working with a person or child who is the subject of the report; and
(B) other governmental entities for purposes of child protection.
(2) Determinations of relevancy shall be made by the department.
Sec. 18. 33 V.S.A. § 4922 is added to read:
§ 4922. RULEMAKING
(a) The commissioner shall develop rules to implement this subchapter. These shall include:
(1) rules setting forth criteria for determining whether to conduct an assessment or an investigation;
(2) rules setting out procedures for assessment and service delivery;
(3) rules outlining procedures for investigations;
(4) rules for conducting the administrative review conference;
(5) rules regarding access to and maintenance of department records of investigations, assessments, reviews, and responses; and
(6) rules regarding the tiered registry as required by section 4916 of this title.
(b) The rules shall strike an appropriate balance between protecting children and respecting the rights of a parent or guardian, including a parent or guardian with disabilities, and shall recognize that persons with a disability can be successful parents. The rules shall include the possible use of adaptive equipment and supports.
(c) These rules shall be adopted no later than July 1, 2009.
Sec. 19. 33 V.S.A. § 4923 is added to read:
§ 4923. REPORTING
The commissioner shall publish an annual report regarding reports of child abuse and neglect no later than June 30, for the previous year. The report shall include:
(1) The number of reports accepted as valid allegations of child abuse or neglect.
(2) The number of reports that resulted in an investigative response; particularly:
(A) the number of investigations which resulted in a substantiation;
(B) the types of maltreatment substantiated;
(C) the relationship of the perpetrator to the victim, by category; and
(D) the gender and age group of the substantiated victims.
(3) The number of reports that resulted in an assessment response; particularly:
(A) the general types of maltreatment alleged in cases which received an assessment response; and
(B) the number of assessments that resulted in the recommendation of services.
(4) Trend information over a five-year period. Beginning with the adoption of the assessment response and continuing over the next five years, the report shall explain the impact of the assessment response on statistical reporting.
Sec. 20. DEPARTMENT FOR CHILDREN AND FAMILIES CASELOAD POLICIES
(a) The department for children and families shall develop policies for implementing social worker caseload assignments which identify a target of one worker per 12 families and that are consistent with national standards, best practices, and the department’s transformation plan.
(b) The department shall make a report of its progress implementing the policies required by subsection (a) of this section to the senate committees on health and welfare and on appropriations and to the house committees on human services and on appropriations no later than January 1, 2009. The report shall include an assessment of the impact of current caseloads on the quality of service of face-to-face visits with abused or neglected children and delinquent children in the custody of the department.
Sec. 21. EFFECTIVE DATES
(a) Sec. 3 of this act shall take effect on January 1, 2009.
(b) In Sec. 5 of this act, the amendments in 33 V.S.A. § 4915(b), (c), (d), and (e) shall take effect upon adoption of final rules by the department for children and families.
(c) Sec. 6 of this act shall take effect upon adoption of final rules by the department for children and families.
(d) Sec. 9 of this act shall take effect on September 1, 2008.
DOUGLAS A. RACINE
EDWARD S. FLANAGAN
KEVIN J. MULLIN
Committee on the part of the Senate
ANN PUGH
NORMAN McALLISTER
RICHARD MAREK
Committee on the part of the House
Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.
H. 887.
Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on House bill entitled:
An act relating to health care reform.
Was taken up for immediate consideration.
Senator Racine, for the Committee of Conference, submitted the following 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:
H. 887. An act relating to health care reform.
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 out all after the enacting clause and inserting in lieu thereof the following:
* * * Findings and Intent * * *
Sec. 1. FINDINGS AND INTENT
(a) The general assembly hereby finds that:
(1) Health care costs continue to rise at two to three times the rate of inflation, from approximately $3,000.00 per person per year in Vermont in 1997 to $3,800.00 in 2000 and $6,300.00 in 2006. These increases cause hardships to individuals, families, businesses, taxpayers, and public institutions and make the need for comprehensive health care reform urgent.
(2) The Health Care Affordability for Vermonters Act of 2006 has started significant new initiatives to transform the health care system by improving access, controlling costs, and changing the way we pay for and deliver health care. These system changes will take many years and are dependent upon continued funding and implementation. To date, these efforts have provided coverage to thousands of Vermonters, instituting changes in the care of chronic conditions, and enabling greater use of health information technology.
(3) There continues to be a large number of Vermonters who have no health insurance or are underinsured. For this population, health care is unaffordable and, as a result, often not received in the most timely and effective manner.
(4) The rising prevalence of chronic illnesses and the new medical approaches to treat them account for nearly two-thirds of the increase in health care spending. Health care reform must address the cost drivers that underlie this rise in spending. First, more effective use of preventive care and chronic care management is needed to prevent or slow the progression of chronic diseases and reduce disease complications, which is the focus of the Blueprint for Health. Second, reform needs to include a sustained public health approach to decrease the likelihood of individuals developing a chronic illness in the first place. Reducing major health risks such as poor diet, lack of physical activity, tobacco use, and alcohol and drug abuse will stem the rising incidence of chronic diseases linked to these factors over the long term. In addition, Vermonters with a chronic mental illness are at a substantially greater risk for other illnesses and conditions than those without a chronic mental illness. Identifying the mental health needs of Vermonters and integrating health care are an important response to a high risk factor for other illnesses and conditions and will pay dividends in the form of healthier citizens and reductions in costs to the health care system.
(5) Although the quality of health care services in Vermont is generally very good, there is a need to improve quality, efficiency, and safety. Improvements in health care quality will result in improved health and reduced costs. A new payment system that relates reimbursement to improved health would encourage better care and greater efficiency than the existing fee-for-service system. And the implementation and effective use of health information technology will significantly improve patient safety by reducing medical errors and improving the reliability of patient care processes.
(6) Federal laws and programs, such as Medicaid, Medicare, and the Employee Retirement Income Security Act of 1974 (ERISA), constrain Vermont’s ability to establish immediately an integrated health care system. In addition, the current federal administration’s unwillingness to allow states to implement innovative approaches to health care reform has hampered Vermont’s ability to make extensive improvements to its own system.
(b) 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. Building on the reforms enacted in the Health Care Affordability for Vermonters Act of 2006, the general assembly finds that effective next steps to achieving these goals include expanding affordable coverage, reducing the rate of the increase of medical costs, reforming the financing of health care, and supporting health information technology.
* * * Building Blocks for Health Care Reform * * *
Sec. 2. OVERVIEW
(a) The commission on health care reform is charged with making recommendations to meet the goal of section 902 of Title 2 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.” Achieving this will require a series of fundamental changes which cumulatively will build a more integrated system with aligned financial incentives. The commission on health care reform should conduct studies to develop key building blocks for moving toward such a system in Vermont, to the extent that funds and staffing resources are available, including:
(1) The feasibility of community-based payment reform and integration of care. This study should assess the feasibility of alternative designs for a pilot project to test using a system-wide budgeting initiative at the regional level within the state, including a design based on the accountable care organization model;
(2) The possible merger of fragmented risk pools. The continued fragmentation of risk pools and structural issues with the individual and small group markets present major obstacles to achieving universal coverage and stable premium rates. This study should propose a preliminary design for the merger by calendar year 2011 of the nongroup (including Catamount Health), small group, and association markets; and
(3) Various health care financing options. This study will expand upon the completed financing analysis called for in Sec. 277d of No. 215 of the Acts of the 2005 Adj. Sess. (2006) to create a common analytic basis for policy decisions on the public financing of health care, explore broad-based revenue sources, identify and assess major federal issues with public financing, and analyze the impact of different financing options on the underlying cost drivers in health care.
(b) One of the objectives of these studies is to position Vermont as first in line for federal health care reform. Health care reform will be a major priority of the next federal administration, and the federal government is likely to be much more supportive of health care reform efforts at the state level. Vermont is uniquely situated to be a statewide laboratory for health care reform and needs to be positioned to receive early approval for increased flexibility in areas traditionally constraining reform, such as Medicare demonstrations and waivers and electronic health record demonstrations. The commission on health care reform’s evaluation should explicitly identify federal and other barriers to the critical steps in health care reform and determine how best to position Vermont at the forefront of progress in health care reform.
* * * Expanding Affordable Coverage * * *
Sec. 3. 8 V.S.A. § 4080a(h)(2)(B) is amended to read:
(B) The commissioner’s rules shall permit a carrier, including a hospital or medical service corporation and a health maintenance organization, to establish rewards, premium discounts, split benefit designs, 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, the director of the Blueprint for Health, and the director of the office of Vermont health access in the development of health promotion and disease prevention rules that are consistent with the Blueprint for Health. Such rules shall:
* * *
(iii) provide that the reward under the program is available to all similarly situated individuals and shall comply with the nondiscrimination provisions of the federal Health Insurance Portability and Accountability Act of 1996; and
* * *
Sec. 4. EXPEDITED RULEMAKING
(a) No later than January 1, 2009 and notwithstanding the provisions of chapter 25 of Title 3, the department of banking, insurance, securities, and health care administration shall adopt rules to implement the healthy lifestyle insurance discount and split benefit design established in subsection 4080a(h) of Title 8.
(b) “Split benefit design” shall mean a health insurance plan with two or more benefit levels in which the premium for all levels is the same but the benefits differ in the amount of the co-payments, coinsurance, deductibles, out-of-pocket maximums, or a combination of these options. The rules for the split benefit design shall include provisions that promote good health; identify, manage, and prevent disease; and encourage healthier lifestyles without penalizing individuals due to disability, poor health, or socioeconomic status. Premium rates shall target a 10 percent reduction in rates below the premium of a comparable product in the relevant market. The difference between the actuarial value of the benefits in the benefit levels shall not exceed 20 percent, and insurers shall not be permitted to impose additional rate deviations.
(c) The department shall adopt the rules 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 section 842 of Title 3, 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 section 842 of Title 3.
(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 section 843 of Title 3 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. 5. EXPANDING ACCESS TO CATAMOUNT HEALTH
(a) No later than February 1, 2009, the secretary of human services shall apply to the federal Centers for Medicare and Medicaid Services for a waiver amendment to allow Vermont to shorten the waiting period for coverage under Catamount Health and the Vermont health access plan to six months from the current 12 months. Within 60 days following approval of the waiver, the secretary of administration shall submit to the commission on health care reform created pursuant to section 901 of Title 2 a recommendation on whether to proceed with reducing the waiting period. Upon receipt of the secretary’s recommendation, the commission on health care reform shall consider:
(1) the availability of resources;
(2) issues surrounding implementation; and
(3) potential benefits to the health care system.
(b) The commission on health care reform shall make a recommendation to the senate committees on health and welfare and on appropriations and the house committees on health care and on appropriations on whether to proceed with or delay implementation of the reduction in the waiting period. The committees shall present their recommendations to the general assembly, which shall make a determination whether to proceed with implementation of the reduced waiting period.
Sec. 6. 8 V.S.A. § 4080f(a)(9) is amended to read:
(9) “Uninsured” means an individual who
does not qualify for Medicare, Medicaid, the Vermont health access plan, or Dr.
Dynasaur, and: who had no private insurance or employer-sponsored
coverage that includes both hospital and physician services within 12 months
prior to the month of application,; who has had a nongroup
health insurance plan with an annual deductible of no less than $10,000.00 for
an individual or an annual deductible of no less than $20,000.00 for two‑person
or family coverage for at least six months; or who 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, including a reduction in hours that results in ineligibility for employer-sponsored coverage, unless the employer has terminated its employees or reduced their hours for the primary purpose of discontinuing employer-sponsored coverage and establishing their eligibility for Catamount Health;
(ii) death of the principal insurance policyholder;
(iii) divorce or dissolution of a civil union;
(iv) no longer qualifying receiving coverage as a dependent
under the plan of a parent or caretaker relative; or
(v) no longer receiving 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, decreased enrollment below a threshold set for continued coverage, or otherwise terminated studies.
Sec. 7. 33 V.S.A. § 1983 is amended to read:
§ 1983. Eligibility
(a)(1) Except as provided in subdivisions (3), and (4), and
(5) 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.
* * *
(5) Notwithstanding any other provision of law, when an individual is enrolled in Catamount Health solely under the high deductible standard outlined in 8 V.S.A. § 4080f(a)(9), the individual shall not be eligible for premium assistance for the 12-month period following the date of enrollment in Catamount Health.
Sec. 8. 33 V.S.A. § 1973(e) is amended to read:
(e) For purposes of this section, “uninsured” means:
(1) an individual with household income, after allowable deductions, at or below 75 percent of the federal poverty guideline for households of the same size;
(2) an individual who 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
(3) an individual who lost private insurance or employer-sponsored coverage during the prior 12 months for the following reasons:
(A) the individual’s coverage ended because of:
(i) loss of employment, including a reduction in hours that results in ineligibility for employer-sponsored coverage, unless the employer has terminated its employees or reduced their coverage for the primary purpose of discontinuing employer-sponsored coverage and establishing their eligibility for Catamount Health;
(ii) death of the principal insurance policyholder;
(iii) divorce or dissolution of a civil union;
(iv) no longer qualifying receiving coverage as a
dependent under the plan of a parent or caretaker relative; or
(v) no longer receiving 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, decreased enrollment below a threshold set for continued coverage, or otherwise terminated studies.
(4) Notwithstanding any other provision of law, when an individual is enrolled in Catamount Health solely under the high deductible standard outlined in 8 V.S.A. § 4080f(a)(9), the individual shall not be eligible for the Vermont health access plan for the 12-month period following the date of enrollment in Catamount Health.
Sec. 9. 33 V.S.A. § 1974 is amended to read:
§ 1974. EMPLOYER-SPONSORED INSURANCE; PREMIUM ASSISTANCE
* * *
(b) VHAP-eligible premium assistance.
* * *
(6) Notwithstanding any other provision of law, when an individual is enrolled in Catamount Health solely under the high deductible standard outlined in 8 V.S.A. § 4080f(a)(9), the individual shall not be eligible for premium assistance for the 12-month period following the date of enrollment in Catamount Health.
(c) Uninsured individuals; premium assistance.
(1) For the purposes of this subsection:
* * *
(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 private insurance or employer-sponsored coverage ended because of:
(I) loss of employment, including a reduction in hours that results in ineligibility for employer-sponsored coverage, unless the employer has terminated its employees or reduced their hours for the primary purpose of discontinuing employer-sponsored coverage and establishing their eligibility for Catamount Health;
(II) death of the principal insurance policyholder;
(III) divorce or dissolution of a civil union;
(IV) no longer qualifying receiving coverage as a
dependent under the plan of a parent or caretaker relative; or
(V) no longer receiving 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, decreased enrollment below a threshold set for continued coverage, or otherwise terminated studies.
* * *
(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 cost-sharing amounts for chronic care health services covered by the Vermont health access plan that are related to evidence-based guidelines for ongoing prevention and clinical management of the chronic condition specified in the blueprint for health in section 702 of Title 18. Notwithstanding any other provision of law, when an individual is enrolled in Catamount Health solely under the high deductible standard outlined in section 4080f(a)(9) of Title 8, the individual shall not be eligible for premium assistance for the 12-month period following the date of enrollment in Catamount Health.
* * *
Sec. 10. 33 V.S.A. § 1982(2) is amended to read:
(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, including a reduction in hours that results in ineligibility for employer-sponsored coverage, unless the employer has terminated its employees or reduced their hours for the primary purpose of discontinuing employer‑sponsored coverage and establishing their eligibility for Catamount Health;
(ii) death of the principal insurance policyholder;
(iii) divorce or dissolution of a civil union;
(iv) no longer qualifying receiving coverage as a
dependent under the plan of a parent or caretaker relative; or
(v) no longer receiving 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, decreased enrollment below a threshold set for continued coverage, or otherwise terminated studies.
* * * Preexisting Conditions under Catamount Health * * *
Sec. 11. 8 V.S.A. § 4080f(e) is amended to read:
(e)(1) For a 12‑month period from the effective date of
coverage earliest date of application, a carrier offering Catamount
Health may limit coverage of preexisting conditions which existed during the 12‑month
period before the effective date of coverage earliest date of
application, except that such exclusion or limitation shall not apply to
chronic care if the individual is participating in a chronic care management
program, nor apply to pregnancy. 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. A
break in coverage shall be tolled after the earliest date of application,
subject to reasonable time limits, as defined by the commissioner, for the
individual to complete the application process. For an eligible individual,
as such term is defined in Section 2741 of Title XXVII of the Public Health
Service Act the Health Insurance Portability and Accountability Act of
1996, a carrier offering Catamount Health shall not limit coverage of
preexisting conditions.
(2) Notwithstanding subdivision (1) of this subsection, a carrier offering Catamount Health shall not limit coverage of preexisting conditions for subscribers who apply before November 1, 2008. This subdivision (2) shall not apply to claims incurred prior to the effective date of this section.
* * * 75 Percent Rule * * *
Sec. 12. 8 V.S.A. § 4080a(l) is amended to read:
(l)(1) A registered small group carrier which is not a
nonprofit health maintenance organization shall may require that at
least 75 percent or less of the employees or members of a small
group with more than 10 employees participate in the carrier’s plan,
provided that if a nonprofit health maintenance organization provides a small
group plan to more than 25 percent of the employees or members of the small
group, a registered small group carrier may offer or continue to provide its
small group plan to the remaining employees or members. A registered
small group carrier may require that 50 percent or less of the employees or
members of a small group with 10 or fewer employees or members participate in
the carrier’s plan. A small group carrier’s rules established pursuant to this
subsection shall be applied to all small groups participating in the carrier’s
plans in a consistent and nondiscriminatory manner.
(2) For purposes of this requirement the requirements
set forth in subdivision (1) of this subsection (l), the a
registered small group carrier shall not include in its calculation an employee
or member who is already covered by another group health benefit plan as a
spouse or dependent or who is enrolled in Catamount Health, Medicaid, the
Vermont health access plan, or Medicare. Employees or members of a small group
who are enrolled in the employer’s plan and receiving premium assistance under chapter
19 of Title 33 shall be considered to be participating in the plan for purposes
of this section. If the small group is an association, trust, or
other substantially similar group, this the participation requirement
requirements shall be calculated on an employer-by-employer basis.
(3) A small group carrier may not require recertification of compliance with the participation requirements set forth in this section more often than annually at the time of renewal. If, during the recertification process, a small group is found not to be in compliance with the participation requirements, the small group shall have 120 days to become compliant prior to termination of the plan.
* * * Preventing Chronic Conditions Through Healthy Lifestyles * * *
Sec. 13. COMMUNITY PLANS
The commissioner of health, through the 12 district health offices, shall work with communities in each region to develop comprehensive plans that identify and prioritize community needs relating to wellness and healthy living. The 12 district health offices shall involve schools, worksites, and other stakeholders interested in improving community health and shall consult existing sources of community‑level population health data. In drafting the plans, the commissioner shall work with community stakeholders to develop an inventory of policy and environmental supports related to wellness and healthy living. Such plans shall be made available to the public.
Sec. 14. 18 V.S.A. § 104b is amended to read:
§ 104b. COMMUNITY HEALTH AND WELLNESS GRANTS
(a) The commissioner shall establish a program for awarding competitive, substantial, multi-year grants to comprehensive community health and wellness projects. Successful projects must:
(4) use strategies that have been demonstrated to be effective in
reaching the desired outcome; and
(5) provide data for evaluating and monitoring progress;
(6) include a plan for ensuring that all food vending machines located in public buildings within the control of the grant recipient contain foods and portion sizes consistent with the Vermont nutrition and fitness policy guidelines or other relevant science-based resources; and
(7) address socioeconomic or other barriers that stand in the way of fit and healthy lifestyles in their communities.
(b) The commissioner, through the 12 district health offices, shall assist communities by:
(1) providing technical assistance to support communities in following a consistent and coordinated approach to planning and implementation, including practices such as needs assessment, defined priorities, action plans, and evaluation;
(2) providing access to best and promising practices and approved public policies;
(3) providing assistance to help communities develop public awareness materials and communication tools with well-researched and well-coordinated messaging;
(3)(4) helping projects communities obtain
and maximize funding from all applicable sources; and
(4)(5) providing other
assistance as appropriate.
* * *
(e) By January 15 1
of each year, the commissioner shall report on the status of the program to
the general assembly, the senate committee on health and welfare, and the house
committees on human services and on health care by including a section
on prevention grants in the annual report of the Blueprint for Health.
* * *
Sec. 15. INVENTORY OF COORDINATED SCHOOL HEALTH PROGRAMS
The commissioner of health, in collaboration with the commissioner of education and the secretaries of agriculture, food and markets and of transportation, shall compile an inventory of all programs both inside and outside the agencies and departments that award grants or similar funding and that provide technical assistance to supervisory unions and school districts to address issues such as nutrition and physical activity (both indoor and outdoor) for students and staff, obesity, tobacco use, and substance abuse. The inventory shall include for each program a description of the program purposes, priorities, and any restrictions on the use of funds or technical assistance. The inventory shall be accompanied by recommendations on how state agencies and other state funding sources may improve coordination of grant awards and technical assistance for school health initiatives and how to work with school districts with a more comprehensive and coordinated approach to planning and implementation, including practices such as needs assessment, defined priorities, action plans, and evaluations and the involvement of school health teams and school health coordinators in community planning efforts. The recommendations shall also propose a coordinated process for awarding grants to support school health, such as coordination or integration with the community grants process in section 104b of Title 18. The inventory and recommendations must be submitted to the senate committees on health and welfare and on education, the house committees on health care, on human services, and on education, and made available on the Internet for review by town offices and school districts, no later than January 15, 2009.
Sec. 16. NUTRITION GUIDELINES FOR COMPETITIVE FOOD AND BEVERAGE SALES IN SCHOOLS
(a) The commissioner of education shall collaborate with the commissioner of health and the secretary of agriculture, food and markets to update the current Vermont nutrition policy guidelines applicable to competitive foods and beverages sold outside the federally reimbursable school nutrition programs. The revised guidelines shall rely on science-based nutrition standards recommended by the alliance for a healthier generation, the institute of medicine, and other relevant science-based resources and shall be available to school districts before the 2008–2009 school year.
(b) By January 15, 2009, the commissioners of education and of health shall report to the house committees on agriculture, on education, on health care, and on human services, and the senate committees on health and welfare and on education regarding the number of school districts that have and have not adopted a nutrition policy that is substantially the same as the Vermont nutrition policy guidelines applicable to competitive foods and beverages as revised in accordance with subsection (a) of this section. The report shall include specific information about how policies adopted by the school boards may differ from the Vermont nutrition policy guidelines and include recommendations on how to ensure that all Vermont school districts will meet the state school nutrition guidelines by July 1, 2011.
Sec. 17. HEALTHY COMMUNITY DESIGN AND ACCESS TO HEALTHY FOODS
(a) The commissioner of health, in consultation with the secretaries of agriculture, foods and markets and of transportation, the commissioners of the departments of education, of housing and community affairs, and of forests, parks and recreation, and the regional planning association, shall make recommendations on how to strengthen strategies for environmental and policy change to increase healthy choices in Vermont communities and how to enhance coordination among existing programs and funding. In addition, the commissioner, through the 12 district health offices, shall work with communities to support efforts in planning, implementation, and obtaining funding from applicable sources. Recommended environmental and policy change strategies shall include ways to:
(1) Promote and support opportunities for physical activity at the community level through increasing access to walking and bicycle paths, bicycle lanes, safe routes to schools, indoor and outdoor recreational facilities, and parks and other recreational areas;
(2) Increase access to healthy foods in Vermont communities, including local foods, through strategies such as food pricing and economic approaches, food and beverage marketing and promotion, improving access to affordable healthy foods in low income communities, and other promising food‑related policy and environmental strategies; and
(3) Promote the goals of physical activity, nutrition, and healthy living in planning processes that involve zoning and land use, growth centers, and downtown revitalization.
(b) The commissioner shall make recommendations in a consolidated report on healthy living initiatives to the senate committee on health and welfare and the house committees on health care and on human services on priorities and recommendations no later than January 15, 2009.
Sec. 18. HEALTHY WORKSITES
(a)(1) The commissioner of health shall convene a work group to identify priorities and develop recommendations to enhance collaborative learning and interactive sharing of best practices in worksite wellness and employee health management, through approaches such as statewide or regional worksite wellness conferences, web‑enhanced resources and seminars, and the worksite recognition awards of the governor’s council on physical fitness and sports.
(2) The work group should examine best practices in Vermont and other states that include:
(A) Use of premium discounts, reduced cost sharing, or other financial incentives to encourage employee participation in wellness and health promotion activities;
(B) Strategies to spread the adoption of workplace policies and practices that support breastfeeding for mothers;
(C) Strategies to reach out to small employers and their employees who lack access to worksite wellness programs, such as the use of the VT 2‑1‑1 information and referral service as an information resource for healthy diet and physical activity, and the use of hospital‑based programs offering classes and one-to-one counseling similar to hospital-based tobacco use prevention programs; and
(D) Use of financial incentives (such as small grants or tax credits) for small employers to establish worksite wellness programs, and the feasibility of group‑purchasing arrangements to help small employers gain access to worksite wellness products at a lower cost.
(b) The commissioner shall make recommendations in a consolidated report on healthy living initiatives to the senate committee on health and welfare and the house committees on health care and on human services on priorities and recommendations no later than January 15, 2009.
Sec. 19. PROMOTING HEALTHY WEIGHT THROUGH PRIMARY CARE
(a) The commissioner of health shall coordinate with the Blueprint for Health director on practice‑based pilot projects to promote effectiveness in implementing evidence-based recommendations for the promotion of healthy weight and for the assessment, prevention, and treatment of obesity in primary care settings, in consultation with the Vermont child health improvement program and the area health education centers program. The pilot projects shall focus on best practices in implementation by working with members of the medical practice to design, test, and evaluate strategies for changing office systems to better support efforts to promote healthy weight and prevent obesity in children and adults.
(b)(1) The commissioner shall convene a work group comprising the three major insurance carriers in Vermont, the office of Vermont health access, self‑insured employers, school health personnel and students, and health care providers to review recommended best practices in primary care settings for the promotion of healthy weight and for the assessment, prevention, and treatment of child and adolescent eating disorders, overweight, and obesity and to recommend changes in coverage and payment policies as needed to support best practices that have a high health impact and cost-effectiveness. As part of its review, the work group should:
(A) Review models of successful obesity prevention and care strategies developed by insurance carriers and primary care practices in Vermont and other states;
(B) Identify the respective roles of health practitioners shown to be most effective and cost-effective in the promotion of healthy weight and the assessment, prevention, and treatment of obesity, including physicians, dieticians, nonmedical counselors, self‑management groups, weight management programs, physical activity counselors, and others;
(C) Review models for standard third party payment of breastfeeding education and support services;
(D) Develop a plan for promoting measurement and tracking of the body mass index (BMI) percentile for children and adolescents, such as through the collection of data relating to BMI, lack of physical exercise, and inappropriate diet and eating habits using the ICD‑9‑DM V‑codes in the ninth edition of International Classification of Disease Codes;
(E) Include in the tracking plan guidelines for how such information will be coordinated and shared in order to maintain reasonable expectations of privacy; and
(F) Identify ways that payment policies might encourage stronger relationships among primary care practices, public health supports (such as WIC clinics for children under the age of six years), and school health personnel.
(2) The commissioner shall make recommendations in a consolidated report on healthy living initiatives to the senate committee on health and welfare and the house committees on health care and on human services on priorities and recommendations no later than January 15, 2009.
Sec. 20. 18 V.S.A. § 11 is amended to read:
§ 11. CARDIOVASCULAR
HEALTH: COALITION FOR HEALTHY ACTIVITY, MOTIVATION, AND PREVENTION
PROGRAMS (CHAMPPS)/FIT AND HEALTHY Advisory
Council
The department of health shall:
* * *
(6) Convene a CHAMPPS/fit and healthy advisory council chaired by the commissioner of health or designee and composed of state agencies and private sector partners which shall advise the commissioner on developing, implementing, and coordinating initiatives to increase physical activity and improve nutrition and reduce overweight and obesity.
(A) The functions and duties of the council shall include:
(i) Recommending ways that the department of health and other state agencies can reach out to communities, schools, worksites, and municipal and regional planners to assist them in creating environments and policies conducive to healthy living for all Vermonters; and
(ii) Assessing available resources and funding streams, recommending how best to coordinate those initiatives and resources across state agencies and private sector organizations for the greatest impact, and recommending new initiatives and priorities utilizing data and best-practice guidelines.
(B) The department of health shall review the fit and healthy Vermonters prevention plan and the status of its major initiatives with the advisory council at least every three years. The advisory council shall advise and make recommendations to the department of health as the department develops an annual work plan setting forth prioritized strategies to implement a three-year prevention plan.
Sec. 21. FOODS CONTAINING ARTIFICIAL TRANS FAT AND MENU LABELING
The Vermont department of health, in collaboration with the Vermont hospitality council, the American Heart Association, and representatives of the food service industry in Vermont, shall develop proposed labeling that will inform consumers of healthy nutrition choices in food service facilities, including the presence of trans fats. The department of health shall also recommend methods for making Vermont free of artificial trans fats in prepared foods by 2011. The department of health shall make recommendations in a consolidated report on healthy living initiatives to the senate committee on health and welfare and the house committees on health care and on human services no later than January 15, 2009.
Sec. 22. 16 V.S.A. § 133(c) is added to read:
(c) Vermont school districts may include a module within the secondary school health class curricula relating to cervical cancer and the human papillomavirus. The department of education shall work with relevant medical authorities to update the current model module to reflect up-to-date information and practices for health education in this area.
Sec. 23. Vermont Academic Detailing Program
(a) The University of Vermont (UVM) College of Medicine office of primary care and the Vermont area health education centers (AHEC) shall operate the Vermont academic detailing program, a university-based educational outreach for health care professionals. The goal of the Vermont academic detailing program is to promote high-quality, evidence-based, patient-centered, cost-effective medication treatment decisions. This program shall present an objective overview of what evidence from studies shows about various drugs used to treat a medical condition.
(b) The UVM office of primary care and AHEC may collaborate with other states that are working on similar programs.
(c) The UVM office of primary care may request information and collaboration from prescribers, pharmacists, private insurers, hospitals, pharmacy benefit managers, drug utilization review boards, state agencies, and other programs in order to best utilize resources, prevent redundancies of effort, and facilitate appropriate linkages to complementary programs, such as the Vermont Blueprint for Health.
(d) The Vermont Department of Health and the office of Vermont health access shall collaborate with the UVM office of primary care and AHEC Vermont academic detailing program to notify prescribers about commonly used brand‑name drugs for which the patent has expired within the past 12 months or will expire in the coming 12 months and, to the extent permitted by funding, the program may include the distribution of vouchers for samples of generic medicines.
(e) The sum of $100,000.00 is appropriated from the general fund to the UVM College of Medicine in fiscal year 2009 to support the Vermont academic detailing program, provided that such appropriation shall expire upon collection of the first dollar of the manufacturer fee established in section 2004 of Title 33 and all funds remaining from this appropriation shall be redeposited in the general fund.
* * * Supporting Health Information Technology * * *
Sec. 24. 22 V.S.A. § 903 is amended to read:
§ 903. health information technology
* * *
(c)(1) The commissioner shall contract enter into a grant
agreement with the Vermont information technology leaders (VITL), a broad‑based
health information technology advisory group that includes providers, payers,
employers, patients, health care purchasers, information technology vendors,
and other business leaders, to develop the health information technology plan,
including applicable standards, protocols, and pilot programs. In carrying out
their responsibilities under this section, members of VITL shall be subject to
conflict of interest policies established by the commissioner to ensure that
deliberations and decisions are fair and equitable.
* * *
(g) On or before January 1, 2007, VITL shall submit to the commission on health care reform, the secretary of administration, the commissioner of information and innovation, the commissioner of banking, insurance, securities, and health care administration, the director of the office of Vermont health access, the senate committee on health and welfare, and the house committee on health care a preliminary health information technology plan for establishing a statewide, integrated electronic health information infrastructure in Vermont, including specific steps for achieving the goals and objectives of this section. A final plan shall be submitted July 1, 2007. The plan shall include also recommendations for self-sustainable funding for the ongoing development, maintenance, and replacement of the health information technology system. Upon recommendation by the commissioner of information and innovation and approval by the general assembly, the plan shall serve as the framework within which certificate of need applications for information technology are reviewed under section 9440b of Title 18 by the commissioner. VITL shall update the plan annually to reflect emerging technologies, the state’s changing needs, and such other areas as VITL deems appropriate and shall submit the updated plan to the commissioner. Upon approval by the commissioner, VITL shall distribute the updated plan to the commission on health care reform; the secretary of administration; the commissioner of banking, insurance, securities, and health care administration; the director of the office of Vermont health access; the senate committee on health and welfare; the house committee on health care; affected parties; and interested stakeholders.
* * *
(h) Beginning January 1, 2006, and annually thereafter, VITL shall file
a report with the commission on health care reform, the secretary of
administration, the commissioner, the commissioner of banking, insurance,
securities, and health care administration, the director of the office of Vermont
health access, the senate committee on health and welfare, and the house
committee on health care. The report shall include an assessment of progress
in implementing the provisions of this section, recommendations for additional
funding and legislation required, and an analysis of the costs, benefits, and
effectiveness of the pilot program authorized under subsection (e) of this
section, including, to the extent these can be measured, reductions in tests
needed to determine patient medications, improved patient outcomes, or
reductions in administrative or other costs achieved as a result of the pilot
program. In addition, VITL shall file quarterly progress reports with the
secretary of administration and the health access oversight committee and shall
publish minutes of VITL meetings and any other relevant information on a public
website.
* * *
Sec. 25. E‑PRESCRIBING STUDY
(a) The director of the commission on health care reform and the VITL project review committee shall conduct a planning and feasibility study to determine the impact of implementing a statewide e‑prescriber program.
(b) The study shall address:
(1) a consideration of the best methods of access to e‑prescribing, including the use of freestanding handheld devices, web-based options, and e‑prescribing modules integrated with electronic medical records;
(2) identification of an appropriate business model, including incentives to encourage provider participation;
(3) an inventory of current e-prescribing activities and existing capacity for e-prescribing in this state;
(4) a cost-benefit analysis of creating a statewide e-prescriber program;
(5) the ability of an e-prescriber program to ensure the privacy and security of prescription data, including controls over data-mining;
(6) state and national studies and reports on data-mining in e-prescribing and the appropriate use of e-prescription information;
(7) the use of practice management systems and electronic claims data sources through the Vermont health information exchange;
(8) existing state and national initiatives such as the National e-Prescribing Patient Safety Initiative and Massachusetts’s Partners Health Care; and
(9) an assessment of the readiness of pharmacies to participate in e‑prescribing and the impact on independent pharmacies.
(c) No later than January 15, 2009, the director of the commission on health care reform shall report on the findings of the study to the commission on health care reform, the house committee on health care, and the senate committee on health and welfare.
* * * Investing in Vermont’s Health Care System and Workforce * * *
Sec. 26. HEALTH IMPROVEMENT APPROPRIATIONS
(a) The amount of $100,000.00 is appropriated from the general fund to the Vermont department of health for the child psychiatry division in the Vermont Center for Children, Youth, and Families (VCCYF) to support child tele-psychiatry pilots in community health centers that will:
(1) Pair Vermont health centers’ medical, nursing, social work, and psychology staff with the UVM VCCYF child psychiatric consultative team;
(2) Provide monthly training and education resources for health center staff by UVM faculty;
(3) Help strengthen and expand the newly established UVM child psychiatry fellowship program; and
(4) Provide critical child psychiatry assessment and consulting services across the state that will establish relationships to help recruit and retain new child psychiatrists for Vermont.
(b) In addition to other monies appropriated elsewhere for this program, the sum of $40,000.00 is appropriated from the general fund to the department of health in fiscal year 2009 to be deposited into the Vermont educational loan repayment fund and used for the purposes of loan repayment for nurse educators pursuant to section 10a of Title 18.
* * * Fair Standards for Provider Contracts with Insurers * * *
Sec. 27. 18 V.S.A. § 9418 is amended to read:
§ 9418. payment for health care services
* * *
(i) If In addition to any other remedy provided by law, if
the commissioner finds that a health plan has engaged in a pattern and practice
of violating this section, the commissioner may impose an administrative
penalty against the health plan of no more than $500.00 for each violation,
and may order the health plan to cease and desist from further violations and
order the health plan to remediate the violation. In determining the
amount of penalty to be assessed, the commissioner shall consider the following
factors:
(1) The appropriateness of the penalty with respect to the financial resources and good faith of the health plan.
(2) The gravity of the violation or practice.
(3) The history of previous violations or practices of a similar nature.
(4) The economic benefit derived by the health plan and the economic impact on the health care facility or health care provider resulting from the violation.
(5) Any other relevant factors.
(j) A health plan in this state shall not impose on any provider any retrospective denial of a previously paid claim or any part of that previously paid claim, unless:
(1) The health plan has provided at least 30 days’ notice of any retrospective denial or overpayment recovery or both in writing to the provider. The notice must include:
(A) the patient’s name;
(B) the service date;
(C) the payment amount;
(D) the proposed adjustment; and
(E) a reasonably specific explanation of the proposed adjustment.
(2) The time that has elapsed since the date of payment of the previously paid claim does not exceed 12 months.
(k) The retrospective denial of a previously paid claim shall be permitted beyond 12 months from the date of payment for any of the following reasons:
(1) The plan has a reasonable belief that fraud or other intentional misconduct has occurred;
(2) The claim payment was incorrect because the provider of the insured was already paid for the health services identified in the claim;
(3) The health care services identified in the claim were not delivered by the provider;
(4) The claim payment is the subject of adjustment with another health insurer; or
(5) The claim payment is the subject of legal action.
(l) Notwithstanding this section, a health plan may not retroactively deny or recoup a pharmacy point-of-sale payment except in the circumstances of fraud, intentional misconduct, a member not receiving the prescription, or error in the processing of the claim.
(m) Nothing in this section shall be construed to prohibit a health plan from applying payment policies that are consistent with applicable federal or state laws and regulations, or to relieve a health plan from complying with payment standards established by federal or state laws and regulations, including rules adopted by the commissioner pursuant to section 9408 of this title relating to claims administration and adjudication standards, and rules adopted by the commissioner pursuant to section 9414 of this title and section 4088f of Title 8 relating to pay for performance or other payment methodology standards.
(n) The provisions of this section shall not apply to stand-alone dental plans or to a workers’ compensation policy of a casualty insurer licensed to do business in Vermont.
Sec. 28. 18 V.S.A. § 9418a is added to read:
§ 9418a. PROCESSING CLAIMS, DOWNCODING, AND ADHERENCE TO CODING RULES
(a) As used in this section:
(1) “Claim” means any claim, bill, or request for payment for all or any portion of provided health care services that is submitted by:
(A) A health care provider or a health care facility pursuant to a contract or agreement with the health plan; or
(B) A health care provider, a health care facility, or a patient covered by the health plan.
(2) “Contest” means the circumstance in which the health plan was not provided with:
(A) Sufficient information needed to determine payer liability; or
(B) Reasonable access to information needed to determine the liability or basis for payment of the claim.
(3) “Health plan” means a health insurer, disability insurer, health maintenance organization, or medical or hospital service corporation, but does not include a stand-alone dental plan or a workers’ compensation policy of a casualty insurer licensed to do business in Vermont. “Health plan” also includes a health plan that requires its medical groups, independent practice associations, or other independent contractors to pay claims for the provision of health care services.
(b) Health plans shall accept and initiate the processing of all health care claims submitted by a health care provider pursuant to and consistent with the current version of the American Medical Association’s current procedural terminology (CPT) codes, reporting guidelines and conventions; the Centers for Medicare and Medicaid Services health care common procedure coding system (HCPCS); the National Correct Coding Initiative; the National Council for Prescription Drug Programs coding; or other appropriate standards, guidelines, or conventions approved by the commissioner.
(c) Nothing in this section shall preclude a health plan from determining that any such claim is not eligible for payment in full or in part, based on a determination that:
(1) The claim is contested as defined in subdivision 9418(a)(3) of this title;
(2) The service provided is not a covered benefit under the contract, including a determination that such service is not medically necessary or is experimental or investigational;
(3) The insured did not obtain a referral, prior authorization, or precertification, or satisfy any other condition precedent to receiving covered benefits from the health care provider;
(4) The covered benefit exceeds the benefit limits of the contract;
(5) The person is not eligible for coverage or is otherwise not compliant with the terms and conditions of his or her coverage agreement;
(6) The health plan has a reasonable belief that fraud or other intentional misconduct has occurred; or
(7) The health plan determines through coordination of benefits that another health insurer is liable for the claim.
(d) Nothing in this section shall be deemed to require a health plan to pay or reimburse a claim, in full or in part, or to dictate the amount of a claim to be paid by a health plan to a health care provider.
(e) No health plan shall automatically reassign or reduce the code level of evaluation and management codes billed for covered services (downcoding), except that a health plan may reassign a new patient visit code to an established patient visit code based solely on CPT codes, CPT guidelines, and CPT conventions.
(f) Notwithstanding the provisions of subsection (c) of this section, and other than the edits contained in the conventions in subsection (b) of this section, health plans shall continue to have the right to deny, pend, or adjust claims for covered services on other bases and shall have the right to reassign or reduce the code level for selected claims for covered services based on a review of the clinical information provided at the time the service was rendered for the particular claim or a review of the information derived from a health plan’s fraud or abuse billing detection programs that create a reasonable belief of fraudulent or abusive billing practices, provided that the decision to reassign or reduce is based primarily on a review of clinical information.
(g) Every health plan shall publish on its provider website and in its provider newsletter the name of the commercially available claims editing software product that the health plan utilizes and any significant edits, as determined by the health plan, added to the claims software product after the effective date of this section, which are made at the request of the health plan. The health plan shall also provide such information upon written request of a health care provider who is a participating member in the health plan’s provider network.
(h) In addition to any other remedy provided by law, if the commissioner finds that a health plan has engaged in a pattern and practice of violating this section, the commissioner may impose an administrative penalty against the health plan of no more than $500.00 for each violation, and may order the health plan to cease and desist from further violations and order the health plan to remediate the violation. In determining the amount of penalty to be assessed, the commissioner shall consider the following factors:
(1) The appropriateness of the penalty with respect to the financial resources and good faith of the health plan.
(2) The gravity of the violation or practice.
(3) The history of previous violations or practices of a similar nature.
(4) The economic benefit derived by the health plan and the economic impact on the health care facility or health care provider resulting from the violation.
(5) Any other relevant factors.
(i) Nothing in this section shall be construed to prohibit a health plan from applying payment policies that are consistent with applicable federal or state laws and regulations, or to relieve a health plan from complying with payment standards established by federal or state laws and regulations, including rules adopted by the commissioner pursuant to section 9408 of this title relating to claims administration and adjudication standards, and rules adopted by the commissioner pursuant to section 9414 of this title and section 4088f of Title 8 relating to pay for performance or other payment methodology standards.
Sec. 29. 18 V.S.A. § 9418b is added to read:
§ 9418b. PRIOR AUTHORIZATION
(a) As used in this section:
(1) “Claim” means any claim, bill, or request for payment for all or any portion of provided health care services that is submitted by:
(A) A health care provider or a health care facility pursuant to a contract or agreement with the health plan; or
(B) A health care provider, a health care facility, or a patient covered by the health plan.
(2) “Health plan” means a health insurer, disability insurer, health maintenance organization, or medical or hospital service corporation but does not include a stand-alone dental plan or a workers’ compensation policy of a casualty insurer licensed to do business in Vermont. “Health plan” also includes a health plan that requires its medical groups, independent practice associations, or other independent contractors to pay claims for the provision of health care services.
(b) Health plans shall pay claims for health care services for which prior authorization was required by and received from the health plan, unless:
(1) The insured was not a covered individual at the time the service was rendered;
(2) The insured’s benefit limitations were exhausted;
(3) The prior authorization was based on materially inaccurate information from the health care provider;
(4) The health plan has a reasonable belief that fraud or other intentional misconduct has occurred; or
(5) The health plan determines through coordination of benefits that another health insurer is liable for the claim.
(c) Notwithstanding the provisions of subsection (b) of this section, nothing in this section shall be construed to prohibit a health plan from denying continued or extended coverage as part of concurrent review, denying a claim if the health plan is not primarily obligated to pay the claim, or applying payment policies that are consistent with an applicable law, rule, or regulation.
(d) A health plan shall furnish, upon request from a health care provider, a current list of services and supplies requiring prior authorization.
(e) A health plan shall post a current list of services and supplies requiring prior authorization to the insurer’s website.
(f) In addition to any other remedy provided by law, if the commissioner finds that a health plan has engaged in a pattern and practice of violating this section, the commissioner may impose an administrative penalty against the health plan of no more than $500.00 for each violation, and may order the health plan to cease and desist from further violations and order the health plan to remediate the violation. In determining the amount of penalty to be assessed, the commissioner shall consider the following factors:
(1) The appropriateness of the penalty with respect to the financial resources and good faith of the health plan.
(2) The gravity of the violation or practice.
(3) The history of previous violations or practices of a similar nature.
(4) The economic benefit derived by the health plan and the economic impact on the health care facility or health care provider resulting from the violation.
(5) Any other relevant factors.
(g) Nothing in this section shall be construed to prohibit a health plan from applying payment policies that are consistent with applicable federal or state laws and regulations, or to relieve a health plan from complying with payment standards established by federal or state laws and regulations, including rules adopted by the commissioner pursuant to section 9408 of this title, relating to claims administration and adjudication standards, and rules adopted by the commissioner pursuant to section 9414 of this title and section 4088f of Title 8, relating to pay for performance or other payment methodology standards.
Sec. 30. 18 V.S.A. § 9408a is amended to read:
§ 9408a. uniform provider credentialing
* * *
(d) An insurer or a 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 hospital makes a final credentialing determination concerning the provider.
* * *
(f) An insurer shall act upon and finish the credentialing process of a completed application submitted by a provider within 60 calendar days of receipt of the application. An application shall be considered complete once the insurer has received all information and documentation necessary to make its credentialing determination as provided in subsections (b) and (c) of this section.
Sec. 31. FAIR CONTRACTING STANDARDS STUDY
The Vermont medical society, in collaboration with the department of banking, insurance, securities, and health care administration; the Vermont association of hospital and health systems; insurers; practice managers; and other interested parties, shall work to address the following issues and report to the house committee on health care and the senate committee on health and welfare on or before January 15, 2009:
(1) Fair and transparent contracting standards for providers participating in health insurance plans;
(2) Categories of coverage;
(3) Rental networks; and
(4) Most favored nation clauses.
Sec. 32. RESTRICTIVE COVENANTS STUDY
The Vermont medical society, in collaboration with the department of health, the area health education centers program, and the Vermont association of hospitals and health systems, shall work to address the issue of the use of restrictive covenants in employment contracts of health care professionals and the impact of restrictive covenants on recruitment and retention of health care professionals in Vermont and shall report to the senate committee on health and welfare and the house committee on health care on or before January 15, 2009.
Sec. 33. WORKERS’ COMPENSATION STUDY
The Vermont medical society, in collaboration with the Vermont association of hospitals and health systems; the department of banking, insurance, securities, and health care administration; the department of labor; workers’ compensation carriers; practice managers; and other interested parties, shall work to address the following issues and shall report to the senate committees on health and welfare and on economic development, housing and general affairs and the house committees on health care and on commerce on or before January 15, 2009:
(1) Timely payment of workers’ compensation claims;
(2) Notification and resolution process for contested claims;
(3) Enforcement of timely payment, including assessment of interest and penalties;
(4) Charges for examinations, reviews, and investigations in connection with workers’ compensation claims;
(5) Filing of carriers’ written claims processing practices with the department of labor;
(6) Development of online claim processing and claim tracking systems accessible to health care providers; and
(7) Uniform claims processing standards for workers’ compensation insurers.
Sec. 34. EFFECTIVE DATE
This act shall take effect upon passage.
DOUGLAS A. RACINE
KEVIN J. MULLIN
JEANETTE K. WHITE
Committee on the part of the Senate
STEVEN B. MAIER
HARRY CHEN
LUCY LERICHE
Committee on the part of the House
Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.
Recess
On motion of Senator Shumlin the Senate recessed until 3:00 P.M.
Called to Order
At 3:10 P.M. the Senate was called to order by the President.
Message from the House No. 72
A message was received from the House of Representatives by Ms. Wrask, its Second Assistant Clerk, as follows:
Mr. President:
I am directed to inform the Senate the House has considered Senate proposal of amendment to House bill of the following title:
H. 402. An act relating to recapture of health insurance benefits by Group F members of the Vermont state retirement system.
And has concurred therein with proposal of amendment in the adoption of which the concurrence of the Senate is requested.
Message from the House No. 73
A message was received from the House of Representatives by Ms. Wrask, its Second Assistant Clerk, as follows:
Mr. President:
I am directed to inform the Senate the House has considered the reports of the Committees of Conference upon the disagreeing votes of the two Houses on Senate bills of the following titles:
S. 107. An act relating to mapping class four town highways and trail and mass discontinuances of unmapped town highways.
S. 246. An act relating to electronic access to criminal and family court records.
S. 250. An act relating to decreasing the amounts of cocaine and heroin required to be possessed to trigger drug trafficking penalties.
S. 281. An act relating to end-of-life care and pain management.
S. 284. An act relating to the Department of Banking, Insurance, Securities, and Health Care Administration.
S. 322. An act relating to the Vermont Dairy Promotion Council.
S. 345. An act relating to lowering the cost workers’ compensation insurance.
And has adopted the same on its part.
Rules Suspended; House Proposal of Amendment Concurred In
S. 261
Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and House proposal of amendment to Senate bill entitled:
An act relating to phthalates in products for young children.
Was taken up for immediate consideration.
The House proposes to the Senate to amend the bill as follows:
First: In Sec. 1, subsection (b), following the words “child care article” by inserting the words: intended for use by a child under three years of age if and following the word “that” by inserting the word product
Second: In Sec. 1, subsection (g), following the words “The attorney general” by striking out the following: “may investigate and prosecute violations of this section pursuant to the provisions of the Consumer Fraud Act” and inserting in lieu thereof the following: has the same authority to make rules, conduct civil investigations, enter into assurances of discontinuance, and bring civil actions, and private parties have the same rights and remedies as provided under subchapter 1 of chapter 63 of Title 9
Third: In Sec. 1, by adding a new subsection (h) to read as follows:
(h) Nothing in this section shall be construed to regulate firearms; ammunition or components thereof; pellets from air rifles; shooting ranges or circumstances resulting from shooting, handling, storing, casting, or reloading ammunition; or hunting or fishing equipment or components thereof.
Thereupon, the question, Shall the Senate concur in the House proposal of amendment?, was decided in the affirmative.
Rules Suspended; House Proposal of Amendment Not Concurred In; Committee of Conference Requested; Committee of Conference Appointed
S. 358.
Pending entry on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and House proposal of amendment to Senate bill entitled:
An act relating to enhanced driver licenses.
Was taken up for immediate consideration.
The House proposes to the Senate to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:
Sec. 1. 23 V.S.A. § 4(78)and (79) are added to read:
(78) “Enhanced license” shall mean an operator’s license, commercial driver license, junior operator’s license, or nondriver identification card that denotes identity and citizenship, and includes facilitative technology identified by the Department of Homeland Security.
(79) “Personal radio frequency identification number chip” shall mean the number assigned to the transmitting chip in an enhanced license.
Sec. 2. 23 V.S.A. § 102(d) is amended to read:
(d) The commissioner may authorize background investigations for
potential employees that may include criminal, traffic, and financial records
checks; provided, however, that the potential employee is notified and has the
right to withdraw his or her name from application. Additionally, employees
who are authorized to manufacture or produce operators’ licenses and
identification cards, including enhanced licenses, may be subject to
appropriate security clearance if required by federal law, including background
investigations that may include criminal and traffic, records checks, and
providing proof of United States citizenship. The commissioner may, in
connection with a formal disciplinary investigation, authorize an
appropriate a criminal or traffic record background investigation of
a current employee; provided, however, that the background review is necessary
and relevant to the issue under disciplinary investigation. Information
acquired through a background the investigation that may be
shall be provided to the commissioner or designated division director, and must
be maintained in a secure manner. If the information acquired is used as a
basis for any disciplinary action, it must be given to the employee
during any pre‑termination hearing or contractual grievance hearing to
allow the employee an opportunity to respond to or dispute the information. If
no disciplinary action is taken against the employee, the information acquired
through the background check shall be destroyed.
Sec. 3. 23 V.S.A. § 7 is added to read:
§ 7. ENHANCED DRIVER LICENSE; MAINTENANCE OF DATABASE INFORMATION; FEE
(a) The face of an enhanced license shall contain the individual’s name, date of birth, gender, a unique identification number, full facial photograph or imaged likeness, address, signature, issuance and expiration dates, and citizenship. The back of the enhanced license shall have a machine-readable zone. A Gen 2 vicinity Radio Frequency Identification chip shall be embedded in the enhanced license in compliance with the security standards of the Department of Homeland Security. Any additional personal identity information not currently required by the Department of Homeland Security shall need the approval of either the general assembly or the legislative committee on administration rules prior to the implementation of the requirements.
(b) In addition to any other requirement of law or rule, before an enhanced license may be issued to a person, the person shall present for inspection and copying satisfactory documentary evidence to determine identity and United States citizenship. An application shall be accompanied by: a photo identity document, documentation showing the person’s date and place of birth, proof of the person’s Social Security number, and documentation showing the person’s principal residence address. To be issued, an enhanced license must meet the same requirements as those for the issuance of a United States passport. Before an application may be processed, the documents and information shall be verified as determined by the commissioner. Any additional personal identity information not currently required by the Department of Homeland Security shall need the approval of either the general assembly or the legislative committee on administration rules prior to the implementation of the requirements.
(c) No person shall compile or maintain a database of electronically readable information derived from an operator’s license, junior operator’s license, enhanced license, learner permit, or nondriver identification card. This prohibition shall not apply to a person who accesses, uses, compiles, or maintains a database of the information for law enforcement or governmental
purposes or for the prevention of fraud or abuse or other criminal conduct.
(d) The fee for an enhanced license shall be $25.00 in addition to the fees otherwise established by this title.
(e) The commissioner shall report annually to the house and senate committees on transportation by January 15 for the purpose of reporting the associated costs, the number of enhanced licenses issued, implementation problems, recommended revisions, and other relevant information.
Sec.4. 23 V.S.A. § 8 is added to read:
§ 8. PERSONAL RADIO FREQUENCY IDENTIFICATION CHIP NUMBER PROTECTION
Personal radio frequency identification chip numbers shall be given protections as codified in 18 U.S.C. §2721 et. seq, (Drivers Privacy Protection Act), as of January 1, 2008, not including any subsequent amendments.
Sec. 5. 23 V.S.A. § 601(a) is amended to read:
(a) A resident who intends to operate motor vehicles shall procure a proper license. A resident who has moved into the state from another jurisdiction with a valid license to operate motor vehicles under section 411 of this title shall procure a license within 60 days of moving into the state. Operators’ licenses shall not be issued to nonresidents. All operator licenses issued under this chapter shall expire every four years at midnight on the eve of the anniversary of the date of birth of the applicant at the end of the term for which they were issued. All junior operator licenses shall expire at midnight on the eve of the anniversary of the date of birth of the applicant at the end of the term for which they were issued. A person born on February 29 shall, for the purposes of this section, be considered as born on March 1.
Sec. 6. REPEAL
The following in Title 23 are repealed:
(1) § 7(e) ( commissioner reporting on costs of enhanced license) is repealed on June 30, 2011;
(2) § 618 (anatomical gifts);
(3) § 4111(a)(10) (commercial driver license form regarding anatomical gifts).
Sec. 7. 18 V.S.A. § 5238(3) is amended to read:
(3) “Document of gift” means an organ donor card, a statement
attached to or imprinted on the reverse side of a Vermont motor vehicle
operator’s license, a will, or other writing used to make an
anatomical gift.
Sec. 8. 18 V.S.A. § 5239 is amended to read:
§ 5239. MAKING, AMENDING, REVOKING, AND REFUSING TO MAKE ANATOMICAL GIFTS BY AN INDIVIDUAL
(a) An individual who is at least 18 years of age may:
(1) Make an anatomical gift for any of the purposes stated in
section 5242 of this title.
(2) Limit an anatomical gift to one or more of those purposes.
(3) Refuse to make an anatomical gift.
(b) An anatomical gift may be made only by a document of gift signed by the donor. If the donor cannot sign, the document of gift must be signed by another individual and by two witnesses, all of whom have signed at the direction and in the presence of the donor and of each other, and state that it has been so signed.
(c) If a document of gift is attached to or imprinted on a donor’s
motor vehicle operator’s license, the document of gift must comply with
subsection (b) of this section. Revocation, suspension, expiration or
cancellation of the license does not invalidate the anatomical gift.
(d) An anatomical gift by will takes effect upon death of the
testator, whether or not the will is probated. If, after death, the will is
declared invalid for testamentary purposes, the validity of the anatomical gift
is unaffected.
(e)(d) A donor may amend or revoke an anatomical gift, not
made by will, only by one of the following methods:
(1) A signed statement.
(2) An oral statement made in the presence of two individuals.
(3) Any form of communication during a terminal illness or injury addressed to a physician.
(4) The delivery of a signed statement to a specified donee to whom a document of gift had been delivered.
(f)(e) The donor of an anatomical gift made by will may
amend or revoke the gift in the manner provided for amendment or revocation of
wills or as provided in subsection (e)(d) of this section.
(g)(f) An anatomical gift that is not revoked by the donor
before death is irrevocable and does not require the consent or concurrence of
any person after the donor’s death.
(h)(g) An individual may refuse to make an anatomical gift
of the individual’s body or part by any one either of the
following:
(1) A writing signed in the same manner as a document of gift.
(2) A statement attached to or imprinted on the donor’s Vermont motor vehicle operator’s license.
(3) Any other writing used to identify the individual as refusing
to make an anatomical gift. During a terminal illness or injury, the refusal
may be an oral statement or other form of communication.
Sec. 9. AUTHORITY FOR LIMITED SERVICE POSITIONS FOR THE DEPARTMENT OF MOTOR VEHICLES
Three limited service positions are created within the department of motor vehicles. These shall be used for the administration of the enhanced license program and shall be for a period of three years.
Sec. 10. 19 V.S.A. § 10c(k) is added to read:
(k) To the extent that federal regulations permit, signage for all state and town bridge projects spanning more than 20 feet in length shall be erected on both sides of the project for the duration of the project as follows:
(1) The agency of transportation shall design the signs, and the contractor shall purchase and install the signs as part of the contract bid price.
(2) The signs shall indicate the cost of the project.
(3) Signs for state bridge projects shall include the following: “This is an agency of transportation project paid for with your tax dollars.”
(4) Signs for town bridge projects shall include the following: “This is a project sponsored by (name of municipality) and the agency of transportation, and paid for with your tax dollars.”
Sec. 11. EFFECTIVE DATE
This act shall take effect from passage except for Sec. 3 which shall not take effect until the commissioner of motor vehicles determines that the systems necessary to operate the program are available.
Thereupon, pending the question, Shall the Senate concur in the House proposal of amendment?, on motion of Senator Mazza, the Senate refused to concur in the House proposal of amendment and requested a Committee of Conference.
Thereupon, pursuant to the request of the Senate, the President announced the appointment of
Senator Mazza
Senator Scott
Senator Shumlin
as members of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses.
Rules Suspended; Proposals of Amendment; Third Reading Ordered; Rules Suspended; Bill Passed in Concurrence with Proposal of Amendment
H. 776.
Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and House bill entitled:
An act relating to computation of the basic needs budget and the livable wage.
Was taken up for immediate consideration.
Senator Miller, for the Committee on Economic Development, Housing and General Affairs, to which the bill was referred, reported recommending that the Senate propose to the House to amend the bill as follows:
First: In Sec. 1, in 2 V.S.A. § 505(b), by adding before the final period the following:
. This calculation may serve as an additional indicator of wage and other economic conditions in the state and shall not be considered official state guidance on wages or other forms of compensation
Second: In Sec. 2, by striking out subsection (b) and inserting in lieu thereof the following:
(b) The basic needs budget technical advisory council shall consist of eight members, who shall serve from July 1, 2008, until January 15, 2009, when the basic needs budget and livable wage report is issued. Members of the council shall include:
(1) One member appointed by the speaker of the house who shall be co‑chair and of a different political party from the legislative member appointed under subdivision (2) of this subsection.
(2) One member appointed by the senate president pro tempore who shall be co-chair and of a different political party from the legislative member appointed under subdivision (1) of this subsection.
(3) One member jointly appointed by the speaker of the house and the president pro tempore of the senate who may be from either chamber of the legislature.
(4) Five additional members with expertise and experience with the data and methodology used to calculate the basic needs budgets and who shall include a representative of each of the following selected by the organization:
(A) The Vermont sustainable jobs fund.
(B) The Vermont small business development center.
(C) The agency of human services, division of operations and planning.
(D) The department of labor, economic and labor market information division.
(E) The Vermont society for human resources management.
Third: In Sec. 2, by striking out subsection (d) in its entirety.
And that the bill ought to pass in concurrence with such proposals of amendment.
Senator Bartlett, for the Committee on Appropriations, to which the bill was referred, reported recommending that the bill ought to pass in concurrence with proposal of amendment as recommended by the Committee on Economic Development, Housing and General Affairs.
Thereupon, the bill was read the second time by title only pursuant to Rule 43, the proposals of amendment were collectively agreed to, and third reading of the bill was ordered.
Thereupon, on motion of Senator Shumlin, the rules were suspended and the bill was placed on all remaining stages of its passage in concurrence with proposals of amendment forthwith.
Thereupon the bill was read the third time and passed in concurrence with proposals of amendment.
Rules Suspended; Reports of Committees of Conference Accepted and Adopted on the Part of the Senate
H. 203.
Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on House bill entitled:
An act relating to increasing the amount of an estate to which a surviving spouse is entitled when the deceased spouse dies without a will.
Was taken up for immediate consideration.
Senator Campbell, for the Committee of Conference, submitted the following 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:
H. 203. An act relating to increasing the amount of an estate to which a surviving spouse is entitled when the deceased spouse dies without a will.
Respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposals of amendment, and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:
Sec. 1. REPEAL
Chapters 41, 43 and 45 of Title 14 are repealed.
Sec. 2. 14 V.S.A. chapter 42 is added to Part 2 to read:
Chapter 42. Descent and Survivors’ Rights
Subchapter 1. General Provisions
§ 301. Intestate Estate
(a) Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs, except as modified by the decedent’s will.
(b) A decedent’s will may expressly exclude or limit the right of an individual or a class to inherit property. If such an individual or member of such a class survives the decedent, the share of the decedent’s intestate estate which would have passed to that individual or member of such a class passes subject to any such limitation or exclusion set forth in the will.
(c) Nothing in this section shall preclude the surviving spouse of the decedent from making the election and receiving the benefits provided by section 319 of this title.
§ 302. Dower and Curtesy Abolished
The estates of dower and curtesy are abolished.
§ 303. Afterborn Heirs
For purposes of this chapter and chapter 1 of this title relating to wills, an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth.
Subchapter 2. Survivors’ Rights and Allowances
§ 311. Share of Surviving Spouse
After payment of the debts, funeral charges, and expenses of administration, the intestate share of the decedent’s surviving spouse is as follows.
(1) The entire intestate estate if no descendant of the decedent survives the decedent or if all of the decedent’s surviving descendants are also descendants of the surviving spouse.
(2) In the event there shall survive the decedent one or more descendants of the decedent, who are not descendants of the surviving spouse and are not excluded by the decedent’s will from inheriting from the decedent, the surviving spouse shall receive one-half of the intestate estate.
§ 312. Surviving Spouse to Receive Household Goods
Upon motion, the surviving spouse of a decedent may receive out of the decedent’s estate all furnishings and furniture in the decedent’s household when the decedent leaves no descendants who object. If any objection is made by any of the descendants, the court shall decide what, if any, of such personalty shall pass under this section. Goods and effects so assigned shall be in addition to the distributive share of the estate to which the surviving spouse is entitled under other provisions of law. In making a determination pursuant to this section, the court may consider the length of the decedent’s marriage, the sentimental and monetary value of the property, and the source of the decedent’s interest in the property.
§ 313. Surviving spouse; vessel, snowmobile, or all-terrain vehicle
Whenever the estate of a decedent who dies intestate consists principally of a vessel, snowmobile, or all-terrain vehicle, the surviving spouse shall be deemed to be the owner of the vessel, snowmobile, or all-terrain vehicle, and title to the vessel, snowmobile, or all-terrain vehicle shall automatically pass to the surviving spouse. The surviving spouse may register the vessel, snowmobile, or all-terrain vehicle pursuant to section 3816 of Title 23.
§ 314. Share of Heirs other than Surviving Spouse
(a) The balance of the intestate estate not passing to the decedent’s surviving spouse under section 311 of this title passes to the decedent’s descendants by right of representation.
(b) If there is no taker under subsection (a) of this section, the intestate estate passes in the following order:
(1) to the decedent’s parents equally if both survive or to the surviving parent;
(2) to the decedent’s siblings or the descendants of any deceased siblings by right of representation;
(3) one-half of the intestate estate to the decedent’s paternal grandparents equally if they both survive or to the surviving paternal grandparent and one-half of the intestate estate to the decedent’s maternal grandparents equally if they both survive or to the surviving maternal grandparent and if decedent is survived by a grandparent, or grandparents on only one side, to that grandparent or those grandparents;
(4) in equal shares to the next of kin in equal degree.
(c) If property passes under this section by right of representation, the property shall be divided into as many equal shares as there are children or siblings of the decedent, as the case may be, who either survive the decedent or who predecease the decedent leaving surviving descendants.
§ 315. Parent and Child Relationship
For the purpose of intestate succession, an individual is the child of his or her parents, regardless of their marital status, but a parent shall not inherit from a child unless the parent has openly acknowledged the child and not refused to support the child. The parent and child relationship may be established in parentage proceedings under subchapter 3A of chapter 5 of Title 15.
§ 316. Support of Surviving Spouse and Family During Settlement
The probate court may make reasonable allowance for the expenses of maintenance of the surviving spouse and minor children or either, constituting the family of a decedent, out of the personal estate or the income of real or personal estate from date of death until settlement of the estate, but for no longer a period than until their shares in the estate are assigned to them or, in case of an insolvent estate, for not more than eight months after administration is granted. This allowance may take priority, in the discretion of the court, over debts of the estate.
§ 317. Allowance to Children before Payment of Debts
When a person dies leaving children under 18 years of age, an allowance may be made for the necessary maintenance of such children until they become 18 years of age. Such allowance shall be made before any distribution of the estate among creditors, heirs, or beneficiaries by will.
§ 318. Allowance to Children After Payment of Debts
Before any partition or division of an estate among the heirs or beneficiaries by will, an allowance may be made for the necessary expenses of the support of the children of the decedent under 18 years of age until they arrive at that age. The probate court may order the executor or administrator to retain sufficient estate assets for that purpose, except where some provision is made by will for their support.
§ 319. Waiver of Will by Surviving Spouse
(a) A surviving spouse may waive the provisions of the decedent’s will and in lieu thereof elect to take one-half of the balance of the estate, after the payment of claims and expenses.
(b) The surviving spouse must be living at the time this election is made. If the surviving spouse is mentally disabled and cannot make the election personally, a guardian or attorney in fact under a valid durable power of attorney may do so.
§ 320. Effect of Divorce Order
A final divorce order from any state shall have the effect of nullifying a gift by will or inheritance by operation of law to an individual who was the decedent’s spouse at the time the will was executed if the decedent was no longer married to that individual at the time of death, unless his or her will specifically states to the contrary.
§ 321. Conveyances to Defeat Spouse’s Interest
A voluntary transfer of any property by an individual during marriage, made without adequate consideration and for the primary purpose of defeating a surviving spouse in a claim to a share of the decedent’s property so transferred, shall be void and inoperative to bar the claim. The decedent shall be deemed at the time of his or her death to be the owner and seised of an interest in such property sufficient for the purpose of assigning and setting out the surviving spouse’s share.
§ 322. Unlawful Killing Affecting InheritancE
Notwithstanding sections 311 through 314 of this title or provisions otherwise made, in any case where an individual is entitled to inherit or receive property under the last will of a decedent, or otherwise, such individual’s share in the decedent’s estate shall be forfeited and shall pass to the remaining heirs or beneficiaries of the decedent if such person intentionally and unlawfully kills the decedent. In any proceedings to contest the right of an individual to inherit or receive property under a will, the record of such person’s conviction of intentionally and unlawfully killing the decedent shall be admissible evidence that such person did intentionally kill the decedent.
Subchapter 3. Descent, Omitted Issue and Lapsed Legacies
§ 331. Degrees; How Computed: Kindred of Half-Blood
Kindred of the half-blood shall inherit the same share they would inherit if they were of the whole blood.
§ 332. Share of After-Born Child
When a child of a testator is born after the making of a will and
provision is not therein made for that child, he or she shall have the same
share in the estate of the testator as if the testator had died intestate
unless it is apparent from the
will that it was the intention of the testator that provision should not be
made for the child.
§ 333. Share of Child or Descendant of Child Omitted from Will
When a testator omits to provide in his or her will for any of his or her children, or for the descendants of a deceased child, and it appears that the omission was made by mistake or accident, the child or descendants, as the case may be, shall have and be assigned the same share of the estate of the testator as if the testator had died intestate.
§ 334. After-born AND OMITTED Child; From What Part Of Estate Share Taken
When a share of a testator’s estate is assigned to a child born after the making of a will, or to a child or the descendant of a child omitted in the will, the share shall be taken first from the estate not disposed of by the will, if there is any. If that is not sufficient, so much as is necessary shall be taken from the devisees or legatees in proportion to the value of the estate they respectively receive under the will. If the obvious intention of the testator, as to some specific devise, legacy, or other provision in the will, would thereby be defeated, the specific devise, legacy, or provision may be exempted from such apportionment and a different apportionment adopted in the discretion of the court.
§ 335. Beneficiary Dying before Testator: Descendants to Take
When a testamentary gift is made to a child or other kindred of the testator, and the designated beneficiary dies before the testator, leaving one or more descendants who survive the testator, such descendants shall take the gift that the designated beneficiary would have taken if he or she had survived the testator, unless a different disposition is required by the will.
§ 336. Individual Absent and Unheard of; Share of Estate
If an individual entitled to a distributive share of the estate of a decedent is absent and unheard of for six years, two of which are after the death of the decedent, the probate court in which the decedent’s estate is pending may order the share of the absent individual distributed in accordance with the terms of the decedent’s will or the laws of intestacy as if such absent individual had not survived the decedent. If the absent individual proves to be alive, he or she shall be entitled to the share of the estate notwithstanding prior distribution, and may recover in an action on this statute any portion thereof which any other individual received under order. Before an order is made for the payment of distribution of any money or estate as authorized in this section, notice shall be given as provided by the Vermont Rules of Probate Procedure.
§ 337. Requirement that Individual Survive Decedent for 120 hours
Except as provided in the decedent’s will, an individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, intestate succession, and taking under decedent’s will, and the decedent’s heirs and beneficiaries shall be determined accordingly. If it is not established by clear and convincing evidence that an individual who would otherwise be an heir or beneficiary survived the decedent by 120 hours, it is deemed that the individual failed to survive for the required period. This section is not to be applied if its application would result in escheat.
§ 338. DISTRIBUTION; ORDER IN WHICH ASSETS APPROPRIATED; ABATEMENT
(a)(1) Except as provided in subsection (b) of this section, shares of distributes given under a will abate, without any preference or priority as between real and personal property, in the following order:
(A) property not disposed of by the will;
(B) residuary devises and bequests;
(C) general devises and bequests;
(D) specific devises and bequests.
(2) For purpose of abatement, a general devise or bequest charged on any specific property or fund is a specific devise or bequest to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise or bequest to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.
(b) If the will expresses an order of abatement or if the testamentary plan or the express or implied purpose of a devise or bequest would be defeated by the order of abatement listed in subsection (a) of this section, the shares of the distributees shall abate as may be necessary to give effect to the intention of the testator.
(c) If the subject of a preferred devise or bequest is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.
Sec. 3. 23 V.S.A. § 2023 is amended to read:
§ 2023. TRANSFER OF INTEREST IN VEHICLE
(a) If an owner transfers his or her interest in a vehicle, other than by the creation of a security interest, he or she shall, at the time of delivery of the vehicle, execute an assignment and warranty of title to the transferee in the space provided therefor on the certificate or as the commissioner prescribes, and of the odometer reading or hubometer reading or clock meter reading of the vehicle at the time of delivery in the space provided therefor on the certificate, and cause the certificate and assignment to be mailed or delivered to the transferee or to the commissioner. Where title to a vehicle is in the name of more than one person, the nature of the ownership must be indicated by one of the following on the certificate of title:
(1) TEN ENT (tenants by the entirety);
(2) JTEN (joint tenants);
(3) TEN COM
(tenants in common); or
(4) PTNRS (partners); or
(5) TOD (transfer on death).
(b) Upon request of the owner or transferee, a lienholder in possession of the certificate of title shall, unless the transfer was a breach of his or her security agreement, either deliver the certificate to the transferee for delivery to the commissioner or, upon receipt from the transferee of the owner’s assignment, the transferee’s application for a new certificate and the required fee, mail or deliver them to the commissioner. The delivery of the certificate does not affect the rights of the lienholder under his security agreement.
(c) If a security interest is reserved or created at the time of the transfer, the certificate of title shall be retained by or delivered to the person who becomes the lienholder, and the parties shall comply with the provisions of section 2043 of this title.
(d) Except as provided in section 2024 of this title and as between the parties, a transfer by an owner is not effective until the provisions of this section and section 2026 of this title have been complied with; however, an owner who has delivered possession of the vehicle to the transferee and has complied with the provisions of this section and section 2026 of this title requiring action by him or her is not liable as owner for any damages thereafter resulting from operation of the vehicle.
(e) Notwithstanding other provisions of the law, whenever the estate of an individual who dies intestate consists principally of an automobile, the surviving spouse shall be deemed to be the owner of the motor vehicle and title to the same shall automatically and by virtue hereof pass to said surviving spouse. Registration of the vehicle in the name of the surviving spouse shall be effected by payment of a transfer fee of $7.00. This transaction is exempt from the provisions of the purchase and use tax on motor vehicles.
(1) Notwithstanding other provisions of the law, and except as provided in subdivision (2) of this subsection, whenever the estate of an individual consists in whole or in part of a motor vehicle, and the person’s will or other testamentary document does not specifically address disposition of motor vehicles, the surviving spouse shall be deemed to be the owner of the motor vehicle and title to the motor vehicle shall automatically pass to the surviving spouse. Registration and title of the motor vehicle in the name of the surviving spouse shall be effected by payment of a transfer fee of $7.00. This transaction is exempt from the provisions of the purchase and use tax on motor vehicles.
(2) This subsection shall apply to no more than two motor vehicles, and shall not apply if the motor vehicle is titled in the name of one or more persons other than the decedent and the surviving spouse.
(f) Where the title identifies a person who will become the owner upon the death of the principal owner (transfer on death), the principal owner shall have all rights of ownership and rights of transfer until his or her death. The designated transferee shall have no rights of ownership until such time as the principal owner has died as established by a valid death certificate. At that time, the transferee shall become the owner of the vehicle subject to any existing security interests.
Sec. 4. 27 V.S.A. §§ 101 and 102 are amended to read:
§ 101. Definition; exemption from attachment and execution
The homestead of a natural person
consisting of a dwelling house, outbuildings and the land used in connection
therewith, not exceeding $75,000.00 $125,000.00 in value, and
owned and used or kept by such person as a homestead together with the rents,
issues, profits, and products thereof, shall be exempt from attachment
and execution except as hereinafter provided.
§ 102. Designating homestead in case of levy
When an execution is levied upon real
estate of the person of which a homestead is a part or upon that part of a
homestead in excess of the limitation of $75,000.00 $125,000.00
in value, that person may designate and choose the part thereof, not exceeding
the limited value, to which the exemption created in section 101 of this title
shall apply. Upon designation and choice or refusal to designate or choose,
the officer levying the execution, if the parties fail to agree upon
appraisers, shall appoint three disinterested freeholders of the vicinity who
shall be sworn by him or her and who shall fix the location and boundaries of
the homestead to the amount of $75,000.00 $125,000.00 in value.
The officer shall then proceed with the sale of the residue of the real estate
on the execution as in other cases, and the doings in respect to the homestead
shall be stated in the return upon the execution.
Sec. 5. EFFECTIVE DATE
Sec. 2 of this act shall only apply to the estates of persons dying after January 1, 2009.
And after passage, the title of the bill is to be amended to read:
AN ACT RELATING TO DISPOSITION OF PROPERTY UPON DEATH, TRANSFER OF INTEREST IN VEHICLE UPON DEATH, AND HOMESTEAD EXEMPTION.
JOHN F. CAMPBELL
VINCENT ILLUZZI
ROBERT M. HARTWELL
Committee on the part of the Senate
MARGARET FLORY
WILLEM JEWETT
MAXINE JO GRAD
Committee on the part of the House
Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.
H. 885.
Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on House bill entitled:
An act relating to developing consistent measurement standards for economic growth.
Was taken up for immediate consideration.
Senator Miller, for the Committee of Conference, submitted the following 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:
H. 885. An act relating to developing consistent measurement standards for economic growth.
Respectfully reports that it has met and considered the same and recommends that that the House accede to the Senate proposal of amendment with further amendment by striking out all after the enacting clause and inserting in lieu thereof the following:
Sec. 1. FINDINGS; INTENT
(a) The general assembly finds:
(1) A review of several rankings for Vermont’s competitiveness and their differentiation shows very disparate results. For example, the Beacon Hill Institute ranked Vermont twelfth and the American Legislative Exchange Council (ALEC) ranked Vermont fiftieth on their economic development competitiveness index. Each outside ranking entity chose different factors.
(2) Within Vermont, our measurement techniques show variations. Job and employment data in the state suffer from definitional disparities which create conflicts for those trying to use the data. The newly established and recently released “unified economic development budget” would be improved by the consistent use of benchmarking by state agencies. Testimony on this study before the general assembly raised concern over state agency benchmarking because of the differing data issues and measuring approaches that affect their use by state government in Vermont.
(b) The general assembly has a responsibility for the promotion of economic development in Vermont that builds on the unique strengths and challenges of doing business in Vermont. The general assembly is interested in what criteria it should use to evaluate the effectiveness of economic development efforts. Many states have structures and methods for measuring the effectiveness of economic development efforts.
(c) The commission on the future of economic development is charged with benchmarking and measuring economic development.
(d) Therefore, it is the intent of the general assembly in adopting this act to establish a logical structure and coherent and uniform set of benchmarks for economic development in this state.
Sec. 2. COMMISSION ON THE FUTURE OF ECONOMIC DEVELOPMENT
In fiscal year 2009, the Commission on the Future of Economic Development (CFED) shall:
(1) Finish all 12 public engagement sessions.
(2) The Snelling Center shall assemble all the products of the CFED meetings and submit them to CFED to develop meaningful, realistic, and verifiable goals and benchmarks for economic development.
(3) The goals and benchmarks shall be submitted to the joint fiscal office, who shall work with the economists of the executive and legislative branches to:
(A) review the techniques and products of evaluations of economic development used by other states;
(B) use the econometrics for Vermont in developing benchmarks for the CFED goals by December 15, 2008.
(4) Benchmarks shall be submitted to CFED for review and recommendations.
(5) Benchmarks shall be submitted to the house committee on commerce and the senate committee on economic development, housing and military affairs on or before January 15, 2009.
(6) CFED, with technical assistance from the joint fiscal office and the economists, shall annually review benchmarks and develop recommendations for adjustments to be submitted to the general assembly for approval.
Sec. 3. LABOR MARKET MEASURES
The department of labor shall collaborate with the joint fiscal office and the agency of commerce and community development to develop a mutually acceptable set of employment measures and a means of communicating them to the general assembly.
Sec. 4. REPEAL
Sec. 225 of No. 65 of the Acts of 2007 is repealed.
Sec. 5. 10 V.S.A. § 2 is added to read:
§ 2. UNIFIED ECONOMIC DEVELOPMENT BUDGET (UEDB)
(a) For purposes of evaluating the effect on economic development in this state, the commissioner of finance and management, in collaboration with the secretary of commerce and community development, shall submit a unified economic development budget as part of the annual budget report to the general assembly under 32 V.S.A. § 306.
(b) The unified economic development budget shall include appropriations or expenditures for all of the types of development assistance, workforce training and education, and the development‑related research granted or managed by the state during the prior four fiscal years by all agencies, departments, authorities, and other instrumentalities of the state. The budget shall adjust expenditures or appropriations to enable year-to-year comparisons to be made.
(c) The unified development budget shall specifically include:
(1) The aggregate amount and program‑specific amounts of all state economic development assistance, including grants, loans, and tax expenditures.
(2) The aggregate amount and program‑specific amounts of uncollected or diverted state tax revenues resulting from each type of development assistance provided in the tax statutes, as reported in the annual tax expenditure report (32 V.S.A. § 312). If current data are not available, the report may use the average of the three most recent years reported.
(3) Performance measurements, including estimated jobs created, increases or decreases in payroll including benefits, and other measures of economic advancement, with clear descriptions of data sources and methodologies.
(4) A report of progress in developing consistent and measurable benchmarks of job creation.
(d) The data presented shall be organized by categories such as administration, workforce education and training, tax expenditures, agriculture, tourism, technical assistance, planning, housing, transportation, technology, and research, among others deemed appropriate. Every effort shall be made to standardize definitions of positions and other measures.
Sec. 6. 2009 UNIFIED ECONOMIC DEVELOPMENT BUDGET REPORT
In the 2009 UEDB report, the commissioner of finance and management shall review the various reporting requirements relating to economic development including 10 V.S.A. §§ 2 and 7, and 32 V.S.A. § 307(c), and recommend how to consolidate and coordinate these reports to maximize administrative efficiency and information quality to enable continuing review and oversight by the general assembly. The report shall include legislative proposals.
Sec. 7. 10 V.S.A. § 543 is amended to read:
§ 543. WORKFORCE EDUCATION AND TRAINING FUND; GRANT PROGRAMS
* * *
(b) Purposes. The fund shall be used exclusively for the following two purposes:
* * *
(2) internships to provide work-based learning opportunities with Vermont employers for students from Vermont colleges, public and private high schools, regional technical centers, and the Community High School of Vermont, and for students who are Vermont residents attending college, high school, technical or vocational schools out of state.
* * *
(d) Eligible Activities. Awards from the fund shall be made to employers and entities that offer programs that require collaboration between employees and businesses, including private, public, and nonprofit entities, institutions of higher education, technical centers, and workforce development programs. Funding shall be for training programs and student internship programs that offer education, training, apprenticeship, mentoring, or work-based learning activities, or any combination; that employ innovative intensive student‑oriented competency-based or collaborative approaches to workforce development; and that link workforce education and economic development strategies. Training programs or projects that demonstrate actual increased income and economic opportunity for employees and employers may be funded for more than one year. Student internships and training programs that involve the same employer may be funded multiple times, provided that new students participate.
* * *
(f) Awards. Based on guidelines set by the council, the commissioner of labor shall make awards to the following:
(1) Training Programs. Public, private, and nonprofit entities for existing or new innovative training programs. There shall be a preference for programs that include training for newly created or vacant positions. Awards may be made to programs that retrain incumbent workers. Awards under this subdivision shall be made to programs or projects that do all the following:
* * *
(G)
demonstrate an integrated connection between training and specific
employment opportunities, including an effort and consideration by
participating employers to hire those who successfully complete a training
program. If employment is not guaranteed at the successful completion
of the training, the applicant must demonstrate employer involvement and that
the training is likely to lead to employment in fields in which there is demand
for jobs.
(H) The department shall ensure there are resources available in each quarter of the fiscal year.
* * *
* * * Workforce Development for Green Industries * * *
Sec. 8. FINDINGS; PURPOSE
(a) The general assembly finds the following:
(1) There is a growing global demand for products and services that will reduce the impact on the natural environment by individuals, businesses, governments, and many other entities.
(2) There is a common international perception that Vermont has a very well‑defined green identity, a reputation developed through years of commitment to environmental integrity.
(3) Vermont’s resources should be used to build a vibrant and strong environmental industry sector that creates high-wage jobs for Vermonters through the development and export of value‑added products and services designed to reduce our collective impact on the environment.
(4) Vermont must create a framework that stimulates the innovation and investment necessary to expand the development of new renewable energy sources and distribution capacity.
(5) Vermont’s economic development strategy must be designed to raise Vermont’s profile as a hub of environmental integrity, innovation, and opportunity for working Vermonters.
(b) The purpose of this act is to effect the following:
(1) To understand better and quantify the economic value and market opportunities and benefits of the emerging environmental technology sector in Vermont so that Vermont can derive economic value in the form of job creation, innovation, and development of technologies, products, and services that protect and enhance the environment.
(2) To formulate a strategy for environmental technology sector workforce development and training and develop programs that promote and market that sector and create a competitive workforce equipped with the necessary skills and competencies to assure that Vermont is strategically positioned to compete effectively in environmental technology industries and the global marketplace and space.
Sec. 9. WORKFORCE DEVELOPMENT PLAN; ENVIRONMENTAL TECHNOLOGY SECTOR JOB TRAINING; LABOR FORCE ANALYSIS
(a) For the purposes of this section:
(1) “Environmental technology employee” means a fulltime employee primarily engaged in providing goods or delivering services in the environmental technology sector.
(2) “Environmental technology sector” means businesses and organizations that work in or are related to at least one of the following:
(A) Waste management, including waste collection, treatment, disposal, reduction, recycling, and remediation.
(B) Natural resource protection and management, including water and
wastewater purification and treatment, air pollution control and prevention or
remediation, soil and groundwater protection or remediation, and hazardous
waste control or remediation.
(C) Energy efficiency or conservation.
(D) Clean energy, including solar, wind, wave, hydro, geothermal,
hydrogen, fuel cells, waste-to-energy, or biomass.
(E) Any other environmental technology certified by the secretary of commerce and community development.
(b) The commissioner of labor in collaboration with the secretary of commerce shall perform a labor force analysis using the inventory of green business developed by the agency of commerce and the North American Industry Classification System (NAICS). The analysis shall include the geographic distribution of existing businesses and anticipated opportunities for business recruitment in the environmental technology sector. The analysis shall be issued in a written report to the house committee on commerce and the senate committee on economic development, housing and general affairs no later than February 1, 2009 and shall include:
(1) Regional profiles that identify the concentration and distribution of environmental technology opportunities in Vermont.
(2) The skills and competencies necessary for successful employment in the environmental technology sector.
(3) Projection of employer needs and employee skills required for the future of the environmental technology sector.
(c) The commissioner of labor shall develop a workforce development plan relating to green building, energy efficiency, and renewable energy industries. The plan shall be developed in consultation with the groups with knowledge and expertise pertaining to the workforce development needs of and implementation of training programs for the environmental technology sector as defined in subdivision (a)(2) of this section, including, but not limited to, the following: representatives of the building trades; the Vermont workforce development council; weatherization contractors; Efficiency Vermont; appropriate educational institutions; Vermont businesses for social responsibility; Vermont fuel dealers association; Renewable Energy Vermont; Vermont green building network; the Lake Champlain Regional Chamber of Commerce; the Vermont Chamber of Commerce; the Greater Burlington Industrial Corporation (GBIC), the green institute for the advancement of sustainability; and Green for All.
* * * Employment Practices * * *
Sec. 10. 21 V.S.A. § 385 is amended to read:
§ 385. ADMINISTRATION
The commissioner and the commissioner's authorized representatives have full power and authority for all the following:
* * *
(4) To
recommend and determine the amount of deductions for board, lodging, apparel,
or other items or services supplied by the employer or any other conditions or
circumstances as may be usual in a particular employer-employee relationship,
including gratuities; provided, however, that in no case shall the total
remuneration received by an employee, including wages, board, lodging, apparel,
or other items or services supplied by the employer, including gratuities, be
less than the minimum wage rate set forth in section 384 of this title. No
deduction may be made for the care, cleaning, or maintenance of required
apparel. No deduction for required apparel shall be made without the
employee’s express written authorization and the deduction shall not:
(A) Reduce the total remuneration received by an employee below the hourly minimum wage.
(B) Include any administrative fees or charges.
(C) Amend, nullify or violate the terms and conditions of any collective bargaining agreement.
* * *
Sec. 11. ADULT TECHNICAL EDUCATION; workforce education and training; REPORT
The commissioner of education shall:
(1) Outline and review the current method or methods by which tuition is paid for students enrolled in secondary schools (“secondary students”) to attend regional technical center programs.
(2) Consider and propose potential solutions to any barriers preventing, discouraging, or failing to encourage secondary students to attend regional technical center programs, including scheduling issues, availability of classes outside the traditional school day and academic year, and financial disincentives.
(3) Outline and review the current method or methods by which the cost of adults entering programs at a regional technical center is funded, both for adults who have a high school diploma and for those who do not.
(4) Consider and propose potential solutions to any barriers preventing, discouraging, or failing to encourage adults, with and without a high school diploma, to attend regional technical centers, including scheduling issues, availability of classes outside the traditional school day and academic year, and financial disincentives.
(5) Consider and propose potential financial and other incentives to encourage regional technical centers to offer technical education programs at times other than the traditional school day and academic year and to otherwise make technical education programs more available to secondary students and to adults with and without high school diplomas.
(6) Consider the positive and negative aspects of including within the definition of “pupil” for purposes of determining a district’s average daily membership all adult students with a high school diploma who are attending programs at a regional technical center and consider and propose other methods of subsidizing tuition for these students.
(b) On or before January 15, 2009, the commissioner shall submit a written report to the senate committee on economic development, housing and general affairs, the house committee on commerce, and the senate and house committees on education detailing the results of the work performed pursuant to this section and all potential methods of addressing the identified issues.
Sec. 12. EFFECTIVE DATE
This act shall take effect upon passage.
And after passage, the title of the bill is to be amended to read:
AN ACT RELATING TO ECONOMIC DEVELOPMENT AND WORKFORCE DEVELOPMENT.
HINDA MILLER
VINCENT ILLUZZI
JAMES C. CONDOS
Committee on the part of the Senate
SHAP SMITH
BILL BOTZOW
MICHELE F. KUPERSMITH
Committee on the part of the House
Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.
S. 301.
Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on Senate bill entitled:
An act relating to enhancing the penalties for assaulting a law enforcement officer and to the crime of assault with bodily fluids.
Was taken up for immediate consideration.
Senator Mullin, for the Committee of Conference, submitted the following 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:
S. 301. An act relating to enhancing the penalties for assaulting a law enforcement officer and to the crime of assault with bodily fluids.
Respectfully reports that it has met and considered the same and recommends that the House recede from its proposals of amendment, and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:
Sec. 1. 13 V.S.A. § 1028 is amended to read:
§ 1028. ASSAULT OF LAW ENFORCEMENT OFFICER, FIREFIGHTER, EMERGENCY ROOM PERSONNEL, OR EMERGENCY MEDICAL PERSONNEL MEMBER; ASSAULT WITH BODILY FLUIDS
(a) A person convicted of a simple or aggravated assault against a law enforcement officer, firefighter, emergency room personnel, or member of emergency services personnel as defined in subdivision 2651(6) of Title 24 while the officer, firefighter, or emergency medical personnel member is performing a lawful duty, in addition to any other penalties imposed under sections 1023 and 1024 of this title, shall:
(1) For the first offense, be imprisoned not more than one year;
(2) For the second offense and subsequent offenses, be imprisoned not more than ten years.
(b)(1) No person shall intentionally cause blood, vomitus, excrement, mucus, saliva, semen, or urine to come in contact with a law enforcement officer while the officer is performing a lawful duty.
(2) A person who violates this subsection shall be imprisoned not more than one year or fined not more than $1,000.00, or both.
And after passage, the title of the bill is to be amended to read:
AN ACT RELATING TO ASSAULT OF EMERGENCY ROOM PERSONNEL AND TO ASSAULTING A LAW ENFORCEMENT OFFICER WITH BODILY FLUIDS.
KEVIN J. MULLIN
JOHN F. CAMPBELL
ALICE W. NITKA
Committee on the part of the Senate
AVIS GERVAIS
ANDREW DONAGHY
KATHY PELLETT
Committee on the part of the House
Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.
S. 311.
Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on Senate bill entitled:
An act relating to the use value appraisal program.
Was taken up for immediate consideration.
Senator Ayer, for the Committee of Conference, submitted the following 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:
S. 311. An act relating to the use value appraisal program.
Respectfully reports that it has met and considered the same and recommends that the Senate accede to the House proposal of amendment with further amendment to read as follows:
First: In Sec. 11, ELECTRONIC COORDINATION PROJECT AND REPORT, in the third sentence, after the words “parts of the project” by inserting the following: to implement electronic coordination by July, 1, 2010 and by striking out the last sentence and inserting in lieu thereof the following:
The report shall document consistent, useful, and verifiable information on what the project will consist of and the costs involved. The report shall determine what additional funds are needed to accomplish the appropriate levels of program coordination by July 1, 2010. The report shall analyze different funding options, including a one-time or time-limited administrative fee based on a per-parcel, per-acre, or other basis and make a recommendation on how to fund the proposed budget for coordination. The report shall also analyze the historical use of the free opt-out when the program is changed by the legislature.
Second: In Sec. 12, OUTREACH EDUCATION ABOUT THE PROGRAM, in subdivision (a)(2)(A) at the end, before the semicolon, by inserting the following: , including whether the definitions should enable the enrollment of the farm buildings of animal and crop operations that do not qualify for the program under the existing definitions in subdivision (a)(2)(B), after “use” by inserting the words or restrictions on the use and at the end, before the semicolon, by inserting the following: , including hunting, fishing, other recreational activities and posting
CLAIRE D. AYER
HULL P. MAYNARD, JR.
MARK A. MacDONALD
Committee on the part of the Senate
DAVID DEEN
ALISON CLARKSON
PHILIP WINTERS
Committee on the part of the House
Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.
H. 691.
Pending entry on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on House bill entitled:
An act relating to executive and judicial branch fees.
Was taken up for immediate consideration.
Senator Ayer, for the Committee of Conference, submitted the following 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:
H. 691. An act relating to executive and judicial branch fees.
Respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposals of amendment and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:
* * * Department of Public Safety * * *
Sec. 1. 20 V.S.A § 39(a) is amended to read:
(a) Every person required to report the use or storage of hazardous chemicals or substances pursuant to EPCRA shall pay the following annual fees for each hazardous chemical or substance, as defined by the state emergency response commission, that is present at the facility:
(1) $33.00 $35.00 for quantities between 100 and 999
pounds.
(2) $50.00 $55.00 for quantities between 1,000 and 9,999
pounds.
(3) $80.00 $90.00 for quantities between 10,000 and 99,999
pounds.
(4) $250.00 $265.00 for quantities between 100,000 and
999,999 pounds.
(5) $750.00 $800.00 for quantities exceeding 999,999
pounds.
(6) An additional fee of $150.00 $175.00 will be assessed
for each extremely hazardous chemical or substance as defined in 42 U.S.C. §
11002.
Sec. 2. 23 V.S.A. § 1203(k) is amended to read:
(k) A copy of a videotape made of the alleged offense shall be provided
to the defendant within ten days after the defendant requests the copy and pays
a $15.00 $45.00 fee for its reproduction. No fee shall be
charged to a defendant whom the court has determined to be indigent.
Sec. 2a. Rule 16(e) of the Vermont Rules of Criminal Procedure is amended to read:
(e) Videotapes. A copy of a videotape made of the alleged offense and
subsequent processing shall be available for purchase by the defendant directly
from the law enforcement agency responsible for initiating the action upon
written request and advance payment of a $15.00 $45.00 fee,
except that no fee shall be charged to a defendant whom the court has
determined to be indigent. A municipal or county law enforcement agency shall
be entitled to all fees it collects for videotapes sold pursuant to this rule.
Fees collected by the state for videotapes sold pursuant to this rule shall be
deposited in the DUI enforcement special fund created under section 1220a of Title
23. The original videotape may be erased 90 days after:
(1) the entry of final judgment, or
(2) the date the videotape was made, if no civil or criminal action is filed.
* * * Department of Environmental Conservation * * *
Sec. 3. 3 V.S.A. § 2822(i) is amended to read:
(i) The secretary shall not process an application for which the
applicable fee has not been paid unless the secretary specifies that the fee
may be paid at a different time or unless the person applying for the permit is
exempt from the permit fee requirements pursuant to section 710 of Title 32.
In addition, the persons who are exempt under section 710 of Title 32 are also
exempt from the application fees for stormwater operating permits specified in
subdivisions (j)(2)(A)(iii)(I) and (II) of this section if they otherwise meet
the requirements of section 710. Municipalities shall be exempt from the
payment of fees under this section except for those fees prescribed in
subdivisions (j)(1), (2), (7), (8), (14), and (15) of this section for which a
municipality may recover its costs by charging a user fee to those who use the
permitted services, except that a municipality shall also be exempt from those
fees for orphan stormwater systems prescribed in subdivision subdivisions
(j)(2)(A)(iii) and (2)(B)(iv)(I) or (II) of this section when the
municipality agrees to become an applicant or co-applicant for an orphan stormwater
system under section 1264c of Title 10. Applicants operating under SIC
codes 2411, 2421, 2426, and 2429 shall be exempt from administrative processing
fees pursuant to subdivision (j)(2) of this section and application review fees
pursuant to subdivision (j)(2)(A)(iii)(IV) of this section.
Sec. 4. Sec. 30b of No. 76 of the Acts of 2007 is amended to read:
Sec. 30b.
IMPLEMENTATION AND REVERSION
(a) Sec. 30a (exclusion from general permit fees) shall take effect
upon passage and shall be effective retroactively back to August 1, 2006.
The department of environmental conservation shall refund any fees collected
from applicants operating under SIC codes 2411, 2421, 2426 and 2429 pursuant to
3 V.S.A. § 2822(j)(2)(A)(iii)(IV) between August 1, 2006 and the effective
date of this section June 30, 2008.
(b) Sec. 30a (exclusion from general permit fees) shall expire on
July 1, 2008 and, on that date, the content of 3 V.S.A. § 2822(i) shall revert
to the content that existed before the amendment contained in this act.
* * * Sheriffs * * *
Sec. 5. 32 V.S.A. § 1591(1)(A) is amended to read:
(A) For serving each process, the fees shall be as follows:
* * *
(ii) $30.00 $50.00 upon presentation of each return of
service for the service of papers relating to divorce, annulments, separations,
or support complaints;
(iii) $30.00 $50.00 upon presentation of each return of
service for the service of papers relating to civil suits except as provided in
subdivisions 1591(1)(A)(ii) and 1591(1)(A)(vii) of this title;
(iv) $30.00 $50.00 upon presentation of each return of
service for the service of a subpoena and shall be limited to that one fee for
each return of service;
* * *
* * * Department of Labor * * *
Sec. 6. 21 V.S.A. § 711(a) is amended to read:
(a) A worker’s compensation administration fund is created pursuant to
subchapter 5 of chapter 7 of Title 32 to be expended by the commissioner for
the administration of the worker’s compensation and occupational disease
programs. The fund shall consist of contributions from employers made at a
rate of 0.42 0.81 percent of the direct calendar year premium for
worker’s compensation insurance, one percent of self-insured worker’s
compensation losses, and one percent of worker’s compensation losses of
corporations approved under the chapter 9 of this title. Disbursements from
the fund shall be on warrants drawn by the commissioner of finance and
management in anticipation of receipts authorized by this section.
Sec. 6a. 21 V.S.A. § 144(a) is amended to read:
(a) The
elevator safety review board is established within the department, and shall
consist of five seven members, one of whom shall be the
commissioner or the commissioner’s designee, one of whom shall be the
commissioner of labor or the commissioner of labor’s designee, and four
five members to be appointed by the governor as follows: one
representative from a major elevator manufacturing company; one representative
from an elevator servicing company; an owner or manager of a multistoried
building, in which a conveyance is installed; an elevator inspector; and
an individual who actually installs, maintains and repairs conveyances. The
members appointed by the governor shall be appointed for staggered terms of
three years, and shall be entitled to compensation and expenses as provided in
32 V.S.A. § 1010.
Sec. 6b. 21 V.S.A. § 152 is amended to read:
§ 152. NEW INSTALLATIONS; ANNUAL INSPECTIONS AND REGISTRATIONS
(a) A new conveyance shall not be placed in operation until it has been inspected by an elevator inspector other than the installer, and a certificate of operation has been issued.
(b) Every
conveyance subject to this subchapter shall be inspected annually by an
elevator inspector who may charge a fee for the service as established by
the board by rule. Rules adopted by the board under this subsection shall take
into account the degree of difficulty required by the inspection, the frequency
of use of the conveyance, and the mode of operation of the conveyance, such as
cable, traction, hydraulic, light use, or platform lift. An inspector
may charge a fee not to exceed $100.00 for each inspection. The inspector
shall notify the department if a conveyance is found to be in violation of this
subchapter or any rule adopted under this subchapter.
(c) An elevator
inspector shall issue a certificate of operation after the inspector has
inspected a new or existing conveyance, and has determined that the conveyance
is in compliance with this subchapter. A certificate of operation shall be
renewed annually. An owner of a conveyance shall ensure that the required
inspections and tests are performed at intervals that comply with rules adopted
by the board. Certificates of operation shall be clearly displayed on or in
each conveyance or in each machinery room.
(d) The
department may issue a conditional certificate of operation for a conveyance
that is not in complete compliance, provided the conveyance has been inspected
and determined to be safe for temporary operation. This conditional
certificate of operation permits shall permit a conveyance to
operate for no more than 30 180 days or until the conveyance is
in compliance, whichever occurs first.
(e) The inspector shall submit $25.00 of the fee charged for each inspection to the department for each certificate of operation issued under this subchapter.
(f) As established by the board by rule, an inspector may charge a fee not to exceed $250.00 for each inspection, and this fee shall be subject to the provisions of subchapter 6 of chapter 7 of Title 32.
(g) Until rules are adopted under subsection (f) of this section, an inspector may charge a fee not to exceed $100.00, and this fee shall be subject to the provisions of subchapter 6 of chapter 7 of Title 32.
Sec. 6c. COMMISSIONER OF PUBLIC SAFETY; REPORT
By January 15, 2009, the commissioner of public safety shall file a report with the house and senate committees on government operations that identifies barriers to adequate training of elevator inspectors, elevator mechanics, and lift mechanics.
Sec. 6d. REPEAL
21 V.S.A. § 152(g) (inspector fee cap of $100.00) shall be repealed on the effective date of rules adopted pursuant to 21 V.S.A. § 152.
Sec. 6e. ELEVATOR SAFETY REVIEW BOARD; RULEMAKING
Notwithstanding the requirement that an emergency rule be made in response to “imminent peril to the public health, safety or welfare,” the elevator safety review board shall by emergency rulemaking pursuant to 3 V.S.A. § 844adopt rules that set fees as required by 21 V.S.A. § 152(b). Emergency rules shall be filed as soon as possible after notice and an opportunity to be heard by persons who may be affected by them. The board shall propose a permanent rule on the same subject at the same time that it adopts an emergency rule.
[Sec. 7. DELETED]
Sec. 8. 23 V.S.A. § 1402(e) is added to read:
(e) Pilot project allowing annual permits for low-bed trailers.
(1) The commissioner may issue an annual permit to allow the transportation of a so-called “low-bed” trailer. A “low-bed” trailer is defined as a trailer manufactured for the primary purpose of carrying heavy equipment on a flat-surfaced deck, which deck is at a height equal to or lower than the top of the rear axle group.
(2) A blanket permit may be obtained for an annual fee of $275.00 per unit, provided the total vehicle length does not exceed 75 feet, does not exceed a loaded width of 12'6", does not exceed a total weight of 108,000 lbs., and has a height not exceeding 14 feet.
(3) Warning signs and flags shall be required if the vehicle exceeds 75 feet in length, or exceeds 8'6" in width.
(4) This subsection shall expire on June 30, 2010. No later than
January 15, 2010, the department of motor vehicles, after consultation with the agency of transportation, Vermont League of Cities and Towns, and Vermont Truck and Bus Association, shall report to the house and senate committees on transportation on the results of this two-year pilot project. The report shall include recommendations on extending this provision on low-bed trailers, as well as other recommendations relating to longer vehicle lengths.
Sec. 9. INTENT
It is the intent of the general assembly that the Vermont traumatic brain injury fund created in 33 V.S.A. § 7801 shall be used for the benefit of all Vermonters suffering from traumatic brain injuries, including residents who have served in the armed forces of the United States in Operation Iraqi Freedom and Operation Enduring Freedom.
Sec. 9a. 33 V.S.A. chapter 78 is added to read:
Chapter 78. INDIVIDUALS WITH TRAUMATIC BRAIN INJURY (TBI)
§ 7801. VERMONT TRAUMATIC BRAIN INJURY Fund
(a) The Vermont traumatic brain injury fund is established in the office of the state treasurer as a special fund to be a source of financing for services for individuals with TBI and for programs established by or through contracts with the agency of human services for the treatment of traumatic brain injuries.
(b) Into the fund shall be deposited 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 services for individuals with TBI and for programs for the treatment of brain injuries established by or through contracts with the agency of human services.
(e) The agency of human services shall develop a policy for disbursement of monies from the fund created in subsection (a) of this section and submit the policy to the joint fiscal committee for approval at its September 2008 meeting.
Sec. 10. INITIAL FUNDING
In FY 2009, $140,000.00 is transferred from the Vermont campaign fund established in 17 V.S.A. § 2856 to the Vermont traumatic brain injury fund established in 33 V.S.A. § 7801.
* * * Criminal Justice Training Council * * *
Sec. 11. 20 V.S.A. § 2355(f)(1) is amended to read:
(1) The tuition fee for basic training required under section 2358 of
this title shall be $5,847.00 $6,417.00. This fee shall not be
charged for persons employed by police agencies at the time of training.
* * * Agency of Agriculture, Food and Markets * * *
Sec. 12. 6 V.S.A. § 2964(a) is amended to read:
(a) A producer or packer of agricultural products produced in Vermont annually may apply to the secretary for an identification label which may be applied
to his or her products to indicate that they have been produced in Vermont and have met standards of quality as have been or may be established by the
secretary. The person requesting the labels shall annually pay a fee based on
the volume of sales for each category of products in the previous year
according to the following fee schedule: $20.00 $25.00 for a
prior annual sales volume less than $20,000.00 $25,000.00; $50.00
for a prior annual sales volume from $20,000.00 $25,000.00 to under
$100,000.00; $150.00 $100.00 for a prior annual sales volume from
$100,001.00 to $500,000.00; $250.00 for a prior annual sales volume from
$500,001.00 to $1,000,000.00 $100,000.00 to $250,000.00; and $500.00
for a prior annual sales volume greater than $1,000,000.00 $250,000.00.
The applicant shall also pay for the cost of all labels requested.
Sec. 13. 20 V.S.A. § 3581(c) is amended to read:
(c)(1) A
mandatory license fee surcharge of $2.00 $3.00 per license shall
be collected by each city, town, or village for the purpose of funding the dog,
cat, and wolf-hybrid spaying and neutering program established in subchapter 6
of chapter 193 of this title.
(2) An optional license fee surcharge of up to $10.00 per license is to be implemented by the legislative body of a city, town, or village which has established an animal and rabies control program for the sole purpose of funding the rabies control program.
(3) The license fee surcharges in this subsection shall not be considered part of the license fee for purposes of calculating a penalty for late payment.
Sec. 14. AGENCY OF AGRICULTURE, FOOD AND MARKETS REPORT ON FUNDING OF VERMONT SPAY NEUTER INCENTIVE PROGRAM
On or before January 15, 2009, the secretary of agriculture, food and markets shall report to the house and senate committees on agriculture, the senate committee on finance, the house committee on ways and means, and the house and senate committees on judiciary with a report regarding the continued funding of the Vermont spay neuter incentive program. The report shall include:
(1) A summary of the activities and services provided by the Vermont spay neuter incentive program;
(2) An estimate of the annual cost of operating the Vermont spay neuter incentive program based on a presumption of the program meeting a reasonable demand on program services; and
(3) A recommendation of a funding mechanism or mechanisms outside the general fund for the continued operation of the Vermont spay neuter incentive program.
Sec. 15. RULES RELATING TO THE VERMONT SPAY NEUTER INCENTIVE PROGRAM; VETERINARIANS; AGENCY OF AGRICULTURE, FOOD AND MARKETS
The agency of agriculture, food and markets shall adopt rules under chapter 25 of Title 3 for the Vermont spay neuter incentive program (VSNIP) that include:
(1) A requirement that a veterinarian shall biannually provide a copy of the certificate of rabies vaccination or otherwise provide to the agency of agriculture, food and markets identifying information pertaining to the certificate.
(2) A requirement that the agency of agriculture, food and markets biannually provide a copy of the certificate or otherwise provide identifying information pertaining to the certificate to the clerk of the municipality in which the owner of the dog resides.
Sec. 16. COLLECTION OF SALES AND USE TAX ON THE SALE OF ANIMALS
No later than January 15, 2009, the department of taxes shall issue a report to the house committee on ways and means and the senate committee on finance on its efforts to date and strategies to increase the collection of sales and use tax on the sale of animals by people licensed under chapter 194 or 199 of Title 20 and by people not required to be licensed under those statutory provisions.
Sec. 16a. STATUTORY REVISION
The legislative council in collaboration with the agency of agriculture, food and markets shall review chapters 194 and 199 of Title 20 and suggest ways to clarify and better organize the language contained therein. A report of the results of such review shall be provided to the senate committee on finance and the house committee on ways and means no later than January 15, 2009.
* * * Judiciary * * *
Sec. 17. 4 V.S.A. § 1105 is amended to read:
§ 1105. Answer to complaint; default
* * *
(b) A person who is charged with a violation shall have 20 days from the
date the complaint is issued to admit or deny the allegations or to state that
he or she does not contest the allegations in the complaint. The judicial
bureau shall assess against a defendant a fee of $10.00 $20.00
for failure to answer a complaint within the time allowed. The fee shall be
assessed in the default judgment and deposited in the court technology special
fund established pursuant to section 27 of this title.
* * *
Sec. 18. 4 V.S.A. § 1109 is amended to read:
§ 1109. Remedies for failure to pay
* * *
(b) A judicial bureau judgment shall provide notice that a $15.00
$30.00 fee shall be assessed for failure to pay within 30 days. If the
defendant fails to pay the amount due within 30 days, the fee shall be added to
the judgment amount and deposited in the court technology special fund
established pursuant to section 27 of this title.
* * *
Sec. 19. 32 V.S.A § 1431 is amended to read:
§ 1431. Fees in supreme, superior, district, family, and environmental courts
(a) Prior to the entry of any cause in the supreme court there shall be
paid to the clerk of the court for the benefit of the state a fee of $225.00
$250.00 in lieu of all other fees not otherwise set forth in this
section.
(b)(1) Prior to the entry of any cause in the superior court or
environmental court there shall be paid to the clerk of the court for the
benefit of the state a fee of $225.00 $250.00 in lieu of all
other fees not otherwise set forth in this section.
(2) Prior to the entry of any divorce or annulment proceeding in the
family court there shall be paid to the clerk of the court for the benefit of
the state a fee of $225.00 $250.00 in lieu of all other fees not
otherwise set forth in this section; however, if the divorce or annulment
complaint is filed with a stipulation for a final order acceptable to the
court, the fee shall be $75.00.
* * *
(4) Prior to the entry of any motion or petition to vacate, modify or
enforce an order for parental rights and responsibilities, parent-child
contact, or maintenance in the family court there shall be paid to the
clerk of the court for the benefit of the state a fee of $75.00 in lieu of all
other fees not otherwise set forth in this section; however,. Prior
to the entry of any motion or petition to vacate or modify an order for
parental rights and responsibilities, parent-child contact, or maintenance in
the family court, there shall be paid to the clerk of the court for the benefit
of the state a fee of $100.00 in lieu of all other fees not otherwise set forth
in this section. However, if the motion or petition is filed with a
stipulation for an order acceptable to the court, the fee shall be $25.00. All
motions or petitions filed by one party at one time shall be assessed one fee.
* * *
(c) Prior to the entry of a small claims action there shall be paid to
the clerk for the benefit of the state county in lieu of all
other fees not otherwise set forth in this section, a fee of $60.00 $75.00
if the claim is for more than $500.00 $1,000.00 and $35.00
$50.00 if the claim is for $500.00 $1,000.00 or less. The
filing fee for civil suspension proceedings filed pursuant to 23 V.S.A § 1205
shall be $75.00, which shall be taxed in the bill of costs in accordance with
sections 1433 and 1471 of this title Prior to the entry of any postjudgment
motion in a small claims action, there shall be paid to the clerk for the
benefit of the county a fee of $50.00. The fee for every counterclaim in small
claims proceedings shall be $25.00, payable to the county, if the counterclaim
is for more than $500.00, and $15.00 if the counterclaim is for $500.00 or less.
(d) Prior to the entry of any subsequent pleading which sets forth a
claim for relief in the supreme court or the superior, environmental, or
district court, there shall be paid to the clerk of the court for the benefit
of the state a fee of $100.00 for every appeal, cross-claim, or
third-party claim and a fee of $75.00 for every counterclaim in the superior or
environmental court in lieu of all other fees not otherwise set forth in this section.
The fee for every counterclaim in small claims’ proceedings shall be $25.00
if the counterclaim is for more than $500.00 and $15.00 if the counterclaim is
for $500.00 or less. The fee for an appeal of a magistrate’s decision
in the family court shall be $100.00. The filing fee for civil suspension
proceedings filed pursuant to 23 V.S.A § 1205 shall be $75.00, which shall
be taxed in the bill of costs in accordance with sections 1433 and 1471 of this
title.
(e) Prior to the filing of any postjudgment motion in the superior,
environmental, or district court, including motions to reopen civil
suspensions, there shall be paid to the clerk of the court for the benefit of
the state a fee of $50.00 $75.00 except for small claims actions for
which the fee shall be $25.00 in lieu of all other fees not otherwise set forth
in this section.
(f) The filing fee for all actions filed in the judicial bureau shall be
$30.00 $50.00; the state or municipality shall not be required to
pay the fee; however, if the respondent denies the allegations on the ticket,
the fee shall be taxed in the bill of costs in accordance with sections 1433
and 1471 of this title and shall be paid to the clerk of the bureau for the
benefit of the state.
(g) Prior to the filing of any postjudgment motion in the
judicial bureau there shall be paid to the clerk of the bureau, for the benefit
of the state, a fee of $25.00 $35.00. Prior to the filing of any
appeal from the judicial bureau to the district court there shall be paid to
the clerk of the court, for the benefit of the state, a fee of $75.00 $100.00.
(g)(h) Pursuant to Vermont Rules of Civil Procedure 3.1,
Vermont Rules of Appellate Procedure 24(a), or District Court Civil Rules 3.1,
part or all of the filing fee may be waived if the court finds that the
applicant is unable to pay it. The clerk of the court or the clerk's designee
shall establish the in forma pauperis fee in accordance with procedures and
guidelines established by administrative order of the supreme court.
Sec. 20. 32 V.S.A. § 1434(a) is amended to read:
(a) The following entry fees shall be paid to the probate court for the
benefit of the state, except for subdivision (13)(17) of this
subsection which shall be for the benefit of the county in which the fee was collected:
(1) Estates of $10,000.00 or less $35.00
$25.00
(2) Estates of more than $10,000.00 to
not more than
$150,000.00 $50,000.00
$75.00
(3) Estates of more than $50,000.00 to
not more than $150,000.00 $200.00
(4) Estates of more than $150,000.00 to
not more than
$500,000.00 $150.00
$375.00
(4)(5)
Estates of more than $500,000.000 to
not more
than $1,000,000.00 $325.00 $625.00
(6) Estates of more than $1,000,000.00 to
not more than $5,000,000.00 $1,000.00
(7) Estates of more than $5,000,000.00 to
not more than $10,000,000.00 $1,500.00
(8) Estates of more than $10,000,000.00 $1,750.00
(5)(9) Testamentary trusts of $20,000.00 or less
$50.00
(6)(10) Testamentary trusts of more than $20,000.00
$100.00
(7)(11)
Annual accounts on testamentary trusts of
more than
$20,000.00
$25.00 $30.00
(8)(12) Annual accounts on decedents’ estates
filed for any period ending more than one year
following the opening of the estate $25.00
(9)(13) Adoptions $75.00
(10)(14) Guardianships for minors
$35.00
(11)(15) Guardianships for adults
$50.00
(12)(16) Petitions for change of name $50.00
$75.00
(13)(17)
Filing of a will for safekeeping, except
that there shall be no fee for the filing of subsequent
wills in that district for the same person $20.00
(14)(18) Corrections for vital records
$25.00
(15)(19) Orders of authorization
$25.00
(16)(20)
Conveyances of title to real estate pursuant
to section 1801 of Title 14 $50.00
(17)(21)
Petitions for the removal of a trustee pursuant
to 14 V.S.A. § 2314(c) of trusts of $20,000.00 or less $50.00
(18)(22)
Petitions for removal of a trustee pursuant
to 14 V.S.A. § 2314(c) of trusts more than $20,000.00 $100.00
(19)(23)
Petitions concerning advance directives pursuant
to 18 V.S.A. § 9718 $75.00
(20)(24)
Civil actions brought pursuant to subchapter 3
of chapter 107 of Title 18. $50.00
Sec. 21. 32 V.S.A. § 1751 is amended to read:
§ 1751. Fees when not otherwise provided
* * *
(b) Whenever probate, district, environmental, family, or superior court officers and employees or officers and employees of the judicial bureau furnish copies or certified copies of records, the following fees shall be collected for the benefit of the state:
* * *
(5) For a response to a request for a record of criminal history of a
person based upon name and date of birth, $10.00 $30.00.
(6) For appointment as an acting judge pursuant to 4 V.S.A § 22(b) for the purpose of performing a marriage, $100.00.
However, the fees provided for in this subsection shall not be assessed by these officers and employees in furnishing copies or certified copies of records to any agency of any municipality, state, or federal government or to veterans honorably discharged from the armed forces of the United States, their dependents or beneficiaries, in the prosecution of any claim for benefits from the United States government, or any state agency.
Sec. 22. 32 V.S.A. chapter 7, subchapter 6 is amended to read:
Subchapter 6. Executive and Judicial Branch Fees
§ 601. STATEMENT OF PURPOSE
It is the purpose of this subchapter to establish a uniform policy on the creation and review of executive and judicial branch fees, and to require that any such fee be created solely by the general assembly.
§ 602. DEFINITIONS
* * *
(2) “Fee”:
(A) Means a monetary charge by an agency or the judiciary for a service or product provided to, or the regulation of, specified classes of individuals or entities.
* * *
§ 605. CONSOLIDATED EXECUTIVE BRANCH ANNUAL FEE REPORT AND REQUEST
* * *
§ 605a. CONSOLIDATED JUDICIAL BRANCH FEE REPORT AND REQUEST
(a) The justices of the supreme court or the court administrator if one is appointed pursuant to 4 V.S.A. § 21, in consultation with the justices of the supreme court, shall submit a consolidated judicial branch fee report and request no later than the third Tuesday of the legislative session of 2011 and every three years thereafter. The report shall be submitted to the house committee on ways and means, the senate committee on finance, and the house and senate committees on government operations.
(b) A fee report shall contain for each fee in existence on the preceding July 1:
(1) Its statutory authorization and termination date if any.
(2) Its current rate or amount and the date this was last set or adjusted by the general assembly or by the joint fiscal committee.
(3) The fund into which its revenues are deposited.
(4) The revenues derived from it in each of the two previous fiscal years.
(c) A fee request shall contain any proposal to:
(1) Create a new fee, or change, reauthorize, or terminate an existing fee, which shall include a description of the services provided or the function performed.
(2) Set a new or adjust an existing fee rate or amount. Each new or adjusted fee rate shall be accompanied by information justifying the rate, which may include:
(A) The relationship between the revenue to be raised by the fee or change in the fee and the cost or change in the cost of the service, product, or regulatory function supported by the fee, with costs construed pursuant to subdivision 603(2) of this title.
(B) The inflationary pressures that have arisen since the fee was last set.
(C) The effect on budgetary adequacy if the fee is not increased.
(D) The existence of comparable fees in other jurisdictions.
(E) Policies that might affect the acceptance or the viability of the fee amount.
(F) Other considerations.
(3) Designate, or redesignate, the fund into which revenue from a fee is to be deposited.
(d) For the purpose of the review and report, a “fee” shall mean any source of state revenue classified by the department of finance and management accounting system as “fees.”
§ 606. LEGISLATIVE FEE REVIEW PROCESS; FEE BILL
When the consolidated fee report reports
and request is requests are submitted to the general assembly
pursuant to section sections 605 and 605a of this title, it
they shall immediately be forwarded to the house ways and means
committee, which shall consult with other standing legislative committees
having jurisdiction of the subject area of a fee contained in the report
reports and request requests. As soon as possible, the
ways and means committee shall prepare and introduce a “consolidated fee bill”
proposing:
(1) The creation, change, reauthorization, or termination of any fee.
(2) The amount of a newly created fee, or change in amount of an existing or reauthorized fee.
(3) The designation, or redesignation, of the fund into which revenue from a fee is to be deposited.
* * * Department of Buildings and General Services * * *
Sec. 23. 3 V.S.A. § 2476 is amended to read:
§ 2476. DEPARTMENT OF TOURISM AND MARKETING
(a) The department of tourism and marketing of the agency is created, as successor to the department of travel. The department shall be administered by a commissioner.
(b) The department of tourism and marketing shall be responsible for the promotion of Vermont goods and services as well as the promotion of Vermont's travel, recreation and cultural attractions through advertising and other informational programs, and for provision of travel and recreation information and services to visitors to the state, in coordination with other agencies of state government, chambers of commerce and travel associations, and the private sector.
(c) A special fund is established to
be administered as provided under subchapter 5 of chapter 7 of Title 32, and to
be known as the brochure distribution special fund for the purposes of ensuring
that the fees collected under this subsection are utilized to fund travel
destination promotion and information at the state's travel information
centers. Revenues to the fund shall be those fees collected for the placement
and distribution of brochures of businesses in the state travel information
centers and in other locations deemed appropriate by the department.
(d) The department of tourism and
marketing is authorized to accept brochure distribution fees, and to enter into
agreements with other state agencies and departments to provide marketing,
promotion and advertising services. On and after July 1, 1997, all
departments engaging in marketing activities shall submit to and coordinate
marketing plans with the commissioner of the department of tourism and
marketing.
(e)(d) The department shall
annually prepare a report, to be included in the report of the agency required
by section 2422 of this title, on the status of the Connecticut River valley
tourism district, and how it is meeting the goals of the department.
Sec. 24. 29 V.S.A. § 169 is added to read:
§ 169. BROCHURE DISTRIBUTION FEES
(a) The department of buildings and general services is authorized to accept brochure distribution fees, and to enter into agreements with other state agencies and departments to provide marketing, promotion, and advertising services.
(b) A special fund is established to be administered as provided under subchapter 5 of chapter 7 of Title 32, and to be known as the brochure distribution special fund for the purposes of ensuring that the fees collected under this section are utilized to fund travel destination promotion and information at the state's travel information centers. Revenues to the fund shall be those fees collected for the placement and distribution of brochures of businesses in the state travel information centers and in other locations deemed appropriate by the department.
(c) Brochure distribution fees authorized under subsection (a) of this section shall be set by the department and shall be based on the location or locations of distribution, the size of the brochures, and the number of brochures distributed. The department shall report the details of the fees established under this section every three years pursuant to 32 V.S.A. § 605.
Sec. 25. 32 V.S.A § 603 is amended to read:
§ 603. FEE CREATION, AMOUNT, AND ADJUSTMENT OF AMOUNT
* * *
(3) Fees for transcripts,
reproductions not covered by subsection 316(d) of Title 1, conferences, forms
for commercial use, publications and costs of distribution, advertising,
training, charges to attend one-time agency events, and sales of products are
hereby authorized, and the following, unless otherwise specified by
law, may be set by the department providing the service or product, and shall
be reasonably and directly related to their costs, as provided in subdivision
(2) of this section:
(A) transcripts;
(B) reproductions not covered by subsection 316(d) of Title 1;
(C) conferences;
(D) forms for commercial use;
(E) publications of the department;
(F) costs of distribution of department materials;
(G) advertising for department services or products;
(H) training;
(I) charges to attend one-time department events; and
(J) sales of department products.
(4) Fees collected under this
subdivision (3) of this section shall be credited to special funds
established and managed pursuant to subchapter 5 of chapter 7 of this title,
and shall be available to the charging departments to offset the costs of
providing these services or products. However, for purposes of fees
established under this subdivision for copies of public records, the fees shall
be calculated as provided in 1 V.S.A. § 316. These fees shall be reported in
accordance with section 605 of this title.
[Sec. 26. DELETED]
* * * Vermont State Archives * * *
Sec. 27. 32 V.S.A. § 1715(a) is amended to read:
(a) Upon payment of a $10.00 fee, the commissioner of health or the commissioner
of buildings and general services Vermont state archives and records
administration shall provide certified copies of vital records or shall
ascertain and certify what the vital records available to the commissioners
show, except that the commissioners shall not copy the word “illegitimate” from
any birth certificate furnished. The fee for the search of the vital records
is $3.00 which is credited toward the fee for the first certified copy based
upon the search.
* * * Attorney General * * *
Sec. 28. 3 V.S.A. § 163(c)(9) is amended to read:
(9) Each participant shall pay a fee to
the local juvenile court diversion project. The amount of the fee shall be
determined by project officers based upon the financial capabilities of the
participant. The fee shall not exceed $50.00 $150.00. The fee
shall be a debt due from the participant, but shall not be grounds for
exclusion from participation in the program. Fees under this subdivision shall
be paid to the court diversion fund and shall be used solely for the purpose of
the court diversion program.
* * * Department of Banking, Insurance, Securities, and Health Care Administration
* * *
Sec. 29. 9 V.S.A. § 5302(e) is amended to read:
(e) At the time of the filing of the
information prescribed in subsections (a), (b), (c), or (d) of this section,
the issuer shall pay to the commissioner a fee of $1.00 for each $1,000.00
of the aggregate amount of the offering of the securities to be sold in this
state for which the issuer is seeking to perfect a notice filing under this
section, but in no case shall such fee be less than $400.00 nor more than
$1,250.00 $600.00. If the notice filing is withdrawn or otherwise
terminated, the commissioner shall retain the fee paid. Open-end investment
companies subject to 15 U.S.C. § 80a-1 et seq. shall pay an initial notice
filing fee and annual renewal fee for each portfolio or class of investment
company securities for which a notice filing is submitted.
Sec. 30. 9 V.S.A. § 5305(b) is amended to read:
(b) A person filing a registration
statement shall pay a filing fee of $1.00 for each $1,000.00 of the
aggregate amount of the offering of the securities to be sold in this state for
which the applicant is seeking registration, but in no case shall such fee be
less than $400.00 nor more than $1,250.00 $600.00. Open-end
investment companies shall pay a registration fee and an annual renewal fee for
each portfolio as long as the registration of those securities remains in
effect. If a registration statement is withdrawn before the effective date or
a preeffective stop order is issued under section 5306 of this chapter, the
commissioner shall retain the fee.
Sec. 31. 9 V.S.A. § 5410(b) is amended to read:
(b) The fee
for an individual is $55.00 $60.00 when filing an application for
registration as an agent, $55.00 $60.00 when filing a renewal of
registration as an agent, and $55.00 $60.00 when filing for a
change of registration as an agent. If the filing results in a denial or
withdrawal, the commissioner shall retain the fee.
* * * Secretary of State * * *
Sec. 32. 9A V.S.A. § 9-525(a)(1) and (2) are amended to read:
(1) $20.00 $25.00 if the
record is communicated in writing; and
(2) $20.00 $25.00 if the
record is communicated by another medium authorized by filing office rule.
Sec. 33. 11 V.S.A. § 1625(a) is amended to read:
(a) A person, copartnership, association,
limited liability company, or corporation required by the provisions of this
chapter to file a return, shall, at the time of filing as provided, pay a
registration fee of $40.00 $50.00 to the secretary of state for
the benefit of the state.
Sec. 34. 11 V.S.A. § 3013(a)(1), (15), and (16) are amended to read:
(1) Articles of organization $ 75.00
$100.00
(15) Annual report of a domestic limited
liability company 20.00 25.00
(16) Annual report of a foreign limited
liability company 100.00 125.00
Sec. 35. 11A V.S.A. § 1.22(a)(16) and (17) are amended to read:
(16) Annual report of a foreign
corporation 150.00 175.00
(17) Annual report of a domestic
corporation 25.00 $35.00
[Sec. 36. DELETED]
Sec. 37. 23 V.S.A. § 4(78) is added to read:
(78) “Enhanced license” shall mean an operator’s license, commercial driver license, junior operator’s license, or nondriver identification card that denotes identity and citizenship, and includes facilitative technology identified by the Department of Homeland Security.
Sec. 38. 23 V.S.A. § 102(d) is amended to read:
(d) The commissioner may authorize background investigations for potential employees that may include criminal, traffic, and financial records checks; provided, however, that the potential employee is notified and has the right to withdraw his or her name from application. Additionally, employees who are authorized to manufacture or produce operators’ licenses and identification cards, including enhanced licenses, may be subject to appropriate security clearance if required by federal law, including background investigations that may include criminal and traffic, records checks, and providing proof of United States citizenship. The commissioner may, in connection with a formal disciplinary investigation, authorize an appropriate a criminal or traffic record background investigation of a current employee; provided, however, that the background review is necessary and relevant to the issue under disciplinary investigation. Information acquired through a background the investigation that may be shall be provided to the commissioner or designated division director, and must be maintained in a secure manner. If the information acquired is used as a basis for any disciplinary action, it must be given to the employee during any pre‑termination hearing or contractual grievance hearing to allow the employee an opportunity to respond to or dispute the information. If no disciplinary action is taken against the employee, the information acquired through the background check shall be destroyed.* * * Department of Motor Vehicles * * *Sec. 39. 23 V.S.A. § 7 is added to read: § 7. ENHANCED DRIVER LICENSE; MAINTENANCE OF DATABASEINFORMATION; FEE(a) The face of an enhanced license shall contain the individual’s name, date of birth, gender, a unique identification number, full facial photograph or imaged likeness, address, signature, issuance and expiration dates, and citizenship. The back of the enhanced license shall have a machine-readable zone. A Gen 2 vicinity Radio Frequency Identification chip shall be embedded in the enhanced license in compliance with the security standards of the Department of Homeland Security.
(b) In addition to any other requirement of law or rule, before an enhanced license may be issued to a person, the person shall present for inspection and copying satisfactory documentary evidence to determine identity and United States citizenship. An application shall be accompanied by: a photo identity document, documentation showing the person’s date and place of birth, proof of the person’s Social Security number, and documentation showing the person’s principal residence address. To be issued, an enhanced license must meet the same requirements as those for the issuance of a United States passport. Before an application may be processed, the documents and information shall be verified as determined by the commissioner.
(c) No person shall compile or maintain a database of electronically readable information derived from an operator’s license, junior operator’s license, enhanced license, learner permit, or nondriver identification card. This prohibition shall not apply to a person who accesses, uses, compiles, or maintains a database of the information for law enforcement or governmental purposes.
(d) The fee for an enhanced license shall be $25.00 in addition to the fees otherwise established by this title.
Sec. 40. 23 V.S.A. § 601(a) is amended to read:
(a) A resident who intends to operate motor vehicles shall procure a proper license. A resident who has moved into the state from another jurisdiction with a valid license to operate motor vehicles under section 411 of this title shall procure a license within 60 days of moving into the state. Operators’ licenses shall not be issued to nonresidents. All operator licenses issued under this chapter shall expire every four years at midnight on the eve of the anniversary of the date of birth of the applicant at the end of the term for which they were issued. All junior operator licenses shall expire at midnight on the eve of the anniversary of the date of birth of the applicant at the end of the term for which they were issued. A person born on February 29 shall, for the purposes of this section, be considered as born on March 1.
Sec. 41. REPEAL
The following in Title 23 are repealed:
(1) § 618 (anatomical gifts); and
(2) § 4111(a)(10) (commercial driver license form regarding anatomical gifts).
Sec. 42. 18 V.S.A. § 5238(3) is amended to read:
(3) “Document of gift” means an organ donor card, a statement
attached to or imprinted on the reverse side of a Vermont motor vehicle
operator’s license, a will, or other writing used to make an
anatomical gift.
Sec. 43. 18 V.S.A. § 5239 is amended to read:
§ 5239. MAKING, AMENDING, REVOKING, AND REFUSING TO MAKE ANATOMICAL GIFTS BY AN INDIVIDUAL
(a) An individual who is at least 18 years of age may:
(1) Make an anatomical gift for any of the purposes stated in
section 5242 of this title.
(2) Limit an anatomical gift to one or more of those purposes.
(3) Refuse to make an anatomical gift.
(b) An anatomical gift may be made only by a document of gift signed by the donor. If the donor cannot sign, the document of gift must be signed by another individual and by two witnesses, all of whom have signed at the direction and in the presence of the donor and of each other, and state that it has been so signed.
(c) If a document of gift is attached to or imprinted on a donor’s
motor vehicle operator’s license, the document of gift must comply with
subsection (b) of this section. Revocation, suspension, expiration or
cancellation of the license does not invalidate the anatomical gift.
(d) An anatomical gift by will takes effect upon death of the
testator, whether or not the will is probated. If, after death, the will is
declared invalid for testamentary purposes, the validity of the anatomical gift
is unaffected.
(e)(d) A donor may amend or revoke an anatomical gift, not
made by will, only by one of the following methods:
(1) A signed statement.
(2) An oral statement made in the presence of two individuals.
(3) Any form of communication during a terminal illness or injury addressed to a physician.
(4) The delivery of a signed statement to a specified donee to whom a document of gift had been delivered.
(f)(e) The donor of an anatomical gift made by will may
amend or revoke the gift in the manner provided for amendment or revocation of
wills or as provided in subsection (e)(d) of this section.
(g)(f) An anatomical gift that is not revoked by the donor
before death is irrevocable and does not require the consent or concurrence of
any person after the donor’s death.
(h)(g) An individual may refuse to make an anatomical gift
of the individual’s body or part by any one either of the
following:
(1) A writing signed in the same manner as a document of gift.
(2) A statement attached to or imprinted on the donor’s Vermont motor vehicle operator’s license.
(3) Any other writ