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Senate Calendar

wednesday, may 4, 2005

120th DAY OF BIENNIAL SESSION

TABLE OF CONTENTS

                                                                                                                Page No.

ACTION CALENDAR

CONSIDERATION POSTPONED UNTIL WEDNESDAY, MAY 4, 2005

Third Reading

H. 188    Sale and storage of fuel products containing th additive MTBE........... 762

                        Sen. Illuzzi amendment............................................................. 762

Second Reading

Favorable

H. 28      Establishing guidelines for the use of outdoor lighting.......................... 763

                        Natural Resources Committee Report...................................... 763

UNFINISHED BUSINESS OF THURSDAY, APRIL 28, 2005

Second Reading

Favorable with Recommendation of Amendment

S. 98       Voc. rehabilitation & payment under workers compensation.............. 763

                        Ec. Dev., Housing & General Affairs Committee Report.......... .763

                        Finance Committee Report...................................................... 766

UNFINISHED BUSINESS OF TUESDAY, MAY 3, 2005

Third Reading

H. 184    Taking deer damaging crops............................................................. 767

NEW BUSINESS

Joint House Resolutions for Action

JRH 4    Connecticut River byway as a national scenic byway......................... 767

JRH 38  Reach out now teach-in week........................................................... 767

JRH 39  First week of May as public service week in Vermont....................... 767

NOTICE CALENDAR

Favorable

H. 50      Appropriation to survey a portion of Burke and Kirby town lines....... 768

                        Government Operations Committee Report.............................. 768

H. 66      Appropriation to survey Bakersfield and Fairfield town lines.............. 768

                        Government Operations Committee Report.............................. 768


Favorable with Proposal of Amendment

H. 163    Criminal abuse, neglect, and exploitation of vulnerable adults.............. 768

                        Judiciary Committee Report..................................................... 768

                        Appropriations Committee Report........................................... 783

H. 199    Regulation of professions and occupations......................................... 783

                        Government Operations Committee Report.............................. 783

                        Finance Committee Report...................................................... 785

Committee Bills for Notice

S. 172     Municipal authority to charge fees for fire services............................. 786

S. 174     Home health agencies....................................................................... 786

                        Sen. Illuzzi amendment............................................................. 786

Report of Committee of Conference

H. 198    Gift certificates.................................................................................. 786

ORDERED TO LIE

S. 117     State recognition of the Abenaki people............................................ 787

S. 157     Relating to rulemaking for Vermont origin.......................................... 787




 

ORDERS OF THE DAY

ACTION CALENDAR

CONSIDERATION POSTPONED UNTIL WEDNESDAY, MAY 4, 2005

Third Reading

H. 188

An act relating to prohibiting the sale and storage of fuel products containing the additive MTBE.

PROPOSAL OF AMENDMENT TO H. 188 TO BE OFFERED BY SENATOR ILLUZZI BEFORE THIRD READING

Senator Illuzzi moves that the Senate propose to the House to amend the bill by adding a new section to be numbered Sec. 1 to read as follows:

Sec. 1.  FINDINGS

(a)  Methyl tertiary butyl ether ("MTBE"), the most common oxygenate added to gasoline and other fuel products used in the State and throughout the United States, may leak into and contaminate groundwater supplies;

(b)  MTBE is water soluble and, therefore, difficult and costly to remove from water;

(c). MTBE, while colorless, has a turpentine-like taste and smell which can be detected at extremely low concentrations;

(d) MTBE and other chemically similar oxygenates may be human carcinogens and pose other potential health risks, including, but not limited to, memory loss, asthma and skin irritation;

(e)  As water is a precious and vital resource to the state's growing population, agricultural and tourism industry, and unique environment, it is imperative that the state halt further contamination and pollution of the state's groundwater supplies by potentially harmful oxygenates;

(f)  Underground storage tanks that leak, motor boats on our lakes that discharge fuel, junk yards with autos and trucks and motor vehicle accidents can lead to gasoline with MTBE leaking into the soils and entering our water supplies;

(g)  Two Vermont communities, Craftsbury Fire District #2 and the Town of Hartland, have filed lawsuits against the manufacturers of MTBE, and in New Hampshire, the state and two communities have actions pending;

(h)  Clean up costs in about 20 states, including Vermont, are funded predominantly by fuel taxes;

(i)  If H. R. 6 as passed by the U. S. House of Representatives on April 21, 2004 is enacted into law, Section 1502 would shield manufacturers of motor fuels and other persons from liability for claims based on defective product relating to motor vehicle fuel containing MTBE; the Congressional Budget Office anticipates that precluding existing and future claims would reduce the size of judgments in favor of state and local governments over the next five years, resulting in a cost shift from MTBE producers and big oil companies to the states and local governments  in the form of unfunded mandates which will ultimately be paid by the taxpayers; the legislation would also allow the use of MTBE until December 31, 2014 and perhaps beyond.

And by renumbering the remaining sections to be numerically correct.

Second Reading

Favorable

H. 28

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

Reported favorably by Senator Snelling for the Committee on Natural Resources and Energy.

(Committee vote: 6-0-0)

(For House amendments, see House Journal for April 12, 2005, page 635; April 13, 2005, page 647).

UNFINISHED BUSINESS OF THURSDAY, APRIL 28, 2005

Second Reading

Favorable with Recommendation of Amendment

S. 98

An act relating to vocational rehabilitation and payment of compensation under workers’ compensation.

Reported favorably with recommendation of amendment by Senator MacDonald for the Committee on Economic Development, Housing and General Affairs.

The Committee recommends that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

* * * Vocational Rehabilitation Rule * * *

Sec. 1.  21 V.S.A. § 641(a) is amended to read:

(a)  When as a result of an injury covered by this chapter, an employee is unable to perform work for which the employee has previous training or experience, the employee shall be entitled to vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore the employee to suitable employment.  Vocational rehabilitation services shall be provided as follows:

* * *

(3)  The commissioner shall adopt rules to assure that a worker who requests services or who has received more than 90 days of continuous temporary total disability benefits is timely and cost-effectively screened for benefits under this section.  The rules shall:

(A)  Provide that all vocational rehabilitation work, including initial screenings, full entitlement assessments, and counseling, shall be performed by a Vermont-certified vocational rehabilitation counselor which shall include those counselors currently certified pursuant to the rules of the department. 

(B)  Provide for an initial screening to determine whether a full assessment is appropriate.  An injured worker who is determined to be eligible for benefits shall have an appropriate initial vocational a full assessment shall be timely assessed and be offered appropriate vocational rehabilitation services. 

(C)  The commissioner shall adopt rules to provide Provide a mechanism for a periodic review and timely screening of injured workers who are initially found not to be ready or eligible for vocational rehabilitation services a full assessment to determine whether a full assessment has become appropriate. 

(D)  Protect against potential conflicts of interest in the assignment and performance of initial screenings.

(E)  Assure the injured worker has a choice of a vocational rehabilitation counselor. 

* * *

(5)  The commissioner may set by rule reasonable reimbursement rates for vocational rehabilitation benefits and services, provided access to vocational rehabilitation services is not diminished and reasonable choices and access to benefits and services are maintained.  The reimbursement shall reflect the current market hourly rate of vocational rehabilitation services as determined by a survey of vocational rehabilitation providers, including solo practitioners, small firms, and large firms.  The fee schedule shall require the individual vocational rehabilitation counselor who provides services to review, initial, and certify the accuracy of the billing.

(6)  The commissioner shall make annual reports to the general assembly on the success and status of the workers’ compensation vocational rehabilitation program.

* * * Discontinuance of Benefits * * *

Sec. 2.  21 V.S.A. § 643a is amended to read:

§ 643a.  DISCONTINUANCE OF BENEFITS

Unless an injured worker has successfully returned to work, an employer shall notify both the commissioner and the employee prior to terminating benefits under either section 642 or section 646 of this title.  The notice of intention to discontinue payments shall be filed on forms prescribed by the commissioner and shall include the date of the proposed discontinuance and the reasons for it.  The liability for the payments shall continue for 7 seven days after the notice is received by the commissioner and the employee.  Those payments shall be made without prejudice to the employer and may be deducted from any amounts due pursuant to section 648 of this title if the commissioner determines that the discontinuance is warranted or if otherwise ordered by the commissioner.  Every notice shall be reviewed by the commissioner to determine the sufficiency of the basis for the proposed discontinuance.  If, upon review, the commissioner finds that the evidence does not reasonably support the proposed discontinuance, the commissioner may shall order that payments continue until a hearing is held and a decision is rendered.

* * * Failure to Pay Benefits * * *

Sec. 3.  21 V.S.A. § 650(e) is amended to read:

(e)  If weekly compensation benefits or weekly accrued benefits are not paid within 21 days after becoming due and payable pursuant to an order of the commissioner, or in cases in which the overdue benefit is not in dispute, ten percent of the overdue amount shall be added and paid to the employee, in addition to interest and any other penalties.  In the case of an initial claim, benefits are due and payable upon entering into an agreement pursuant to subsection 662(a) of this title, upon issuance of an order of the commissioner pursuant to subsection 662(b) of this title, or if the employer has not denied the claim within 21 days after the claim is filed.  Benefits are in dispute if the claimant has been provided actual written notice of the dispute within 21 days of the benefit being due and payable and the evidence reasonably supports the denial.  Interest shall accrue and be paid on benefits that are found to be compensable during the period of nonpayment.  The commissioner shall promptly review requests for payment under this section and shall allow for the recovery of reasonable attorney fees associated with an employee’s successful request for payment under this subsection.

* * * Interim Orders * * *

Sec. 4.  21 V.S.A § 662(b) is amended to read:

(b)  In the absence of an agreement pursuant to subsection (a) of this section, the employer or insurance carrier shall notify the commissioner and the employee in writing that the claim is denied and the reasons therefor.  Upon the employee’s application for a hearing under section 663 of this title, within 60 days, the commissioner may shall review the evidence upon which denial is based and if the evidence does not reasonably support the denial, the commissioner may shall order that payments be made until a hearing is held and a decision is rendered.  Payments pursuant to this subsection shall not be deemed an admission of liability by the employer nor shall such payments preclude subsequent agreement under subsection (a) of this section or prejudice the rights of either party to hearing or appeal under this chapter.

Nothing in this section shall require the commissioner to order payments pending a hearing if the commissioner concludes that the claim is not compensable regardless of the lack of evidence supporting the denial.  For the purposes of this section, any communication by an unrepresented claimant that questions the denial shall be deemed to be an application for hearing under section 663 of this title.

* * * Lump Sum Payment * * *

Sec. 5.  21 V.S.A. § 652(c) is added to read:

(c)  Unless otherwise requested by the claimant, an order for a lump sum payment of permanent partial or permanent total disability benefits or a lump sum settlement of a disputed claim shall include a provision accounting for excludable expenses and prorating the remainder of the lump sum payment in the manner set forth by the Social Security Administration in order to protect the claimant’s entitlement to Social Security benefits.

(Committee vote: 3-2-1)

Reported favorably with recommendation of amendment by Senator MacDonald for the Committee on Finance.

The Committee recommends that the bill be amended as recommended by the Committee on Economic Development, Housing and General Affairs with the following amendments thereto:

First:  In Sec. 1, 21 V.S.A. § 641(a)(3) by striking out subdivision (A) and inserting in lieu thereof the following:

(A)  Provide that all vocational rehabilitation work, except for initial screenings, shall be performed by a Vermont-certified vocational rehabilitation counselor including counselors currently certified pursuant to the rules of the department.  Initial screenings shall be performed by an individual with sufficient knowledge or experience to adequately perform the vocational rehabilitation screening functions. 

Second:  In Sec. 4, 21 V.S.A. § 662(b) by striking out the final two sentences and inserting in lieu thereof the following:

Nothing in this section shall require the commissioner to order payments pending a hearing if the commissioner concludes that the benefit at issue is not compensable regardless of the lack of evidence supporting the denial.  For the purposes of this section, any written communication by an unrepresented claimant that questions the denial of any benefit shall be deemed to be an application for hearing under section 663 of this title.  

(Committee vote: 4-2-1)

UNFINISHED BUSINESS OF TUESDAY, MAY 3, 2005

Third Reading

H. 184

An act relating to taking deer damaging crops.

NEW BUSINESS

Joint House Resolutions for Action

J.R.H. 4

Joint resolution in support of the designation of the Connecticut River Byway as a national scenic byway.

(For text of Resolution, see Senate Journal for May 3, 2005, page 528)

J.R.H. 38

Joint resolution designating Reach Out Now Teach-In Week.

(For text of Resolution, see Senate Journal for May 3, 2005, page 530)

J.R.H. 39

Joint resolution designating the first week of May 2005 as Public Service Week in Vermont.

(For text of Resolution, see Senate Journal for May 3, 2005, page 531)

NOTICE CALENDAR

Favorable

H. 50

An act relating to an appropriation for the survey of a portion of the Burke and Kirby town lines.

Reported favorably by Senator Kitchel for the Committee on Government Operations.

(Committee vote: 5-0-1)

(For House amendments, see House Journal for April 19, 2005, page 696)

H. 66

An act relating to an appropriation for the survey of the Bakersfield and Fairfield town lines.

Reported favorably by Senator Condos for the Committee on Government Operations.

(Committee vote: 5-0-1)

(For House amendments, see House Journal for April 19 2005, page 697)

Favorable with Proposal of Amendment

H. 163

An act relating to criminal abuse, neglect, and exploitation of vulnerable adults.

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

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

Sec. 1.  FINDINGS

The General Assembly finds:

(1)  Vulnerable adults are one of the most abused segments of our population.  The 1998 National Elder Incidence Study reported that 449,925 elders experienced abuse or neglect in noninstitutional settings.  About 84 percent of these cases were never reported.  During the past five years, there has been a 41‑percent increase in the number of reports of abuse of vulnerable adults made to adult protective services in the Vermont department of aging and independent living.  During that same period, there has been a 66‑percent increase in the number of protective services provided to vulnerable adults.

(2)  Nationally, statistics show that more than 90 percent of people with developmental disabilities will experience sexual abuse at some point in their lives.  Only three percent of sexual abuse cases involving people with developmental disabilities are ever reported.

(3)  Crime victimization is a major problem among persons with severe mental illness (SMI).  In their report “Crime Victimization in Adults with Severe Mental Illness:  Comparison with the National Crime Victimization Survey,” researchers at Northwestern University’s Department of Psychiatry and Behavioral Sciences documented that:

(A)  More than 25 percent of persons with SMI had been victims of violent crimes within the past year, more than 11 times the rate for the general population even after controlling for demographic differences.

(B)  For the types of violent crimes analyzed (various degrees of rape/sexual assault, robbery, and assault), the rates of occurrence for persons with SMI ranged from six to 23 times greater than the rates among the general population.

(4)  According to a 2002 General Accounting Office report on nursing home resident abuse, there is increasing concern that nursing home residents are abused by the very people who are supposed to care for them.  In 1999, over 25 percent of nursing homes nationwide were cited by state survey agencies for conduct that harmed residents or put them at risk of death or serious injury.  Reports of sexual and physical abuse often are not made promptly, and existing state and federal safeguards do not adequately protect residents from potentially abusive nursing home employees.

(5)  Prevention services, training, and education are critical components in reducing abuse, neglect, and exploitation of vulnerable adults.  The more frequently and efficiently that education, prevention, and training services and other early interventions are employed, the greater likelihood that fewer vulnerable adults will be subject to abuse.  For example, reports to adult protective services increased by 18 percent during and immediately following a six-month 2004 public education campaign conducted by the Vermont Center for Crime Victim Services to educate vulnerable adults, the elderly, caregivers, and the general public about the issues of elder abuse, neglect, and exploitation in Vermont.  Such a significant and immediate increase underscores the clear need for more public education and training about the crimes committed against this vulnerable segment of our population.

(6)  While this act enhances the ability to prosecute persons under criminal law who abuse vulnerable adults, it is also the intent of the General Assembly to focus attention on the crucial role that prevention and training services can play to intervene at an early stage and ensure that vulnerable adults are not abused at all.

Sec. 2.  13 V.S.A. chapter 28 is added to read:

CHAPTER 28.  ABUSE, NEGLECT, AND

EXPLOITATION OF VULNERABLE ADULTS

§ 1375.  definitions

As used in this chapter:

(1)  “Bodily injury” means physical pain, illness, or any impairment of physical condition.

(2)  “Caregiver” means:

(A)  a person, agency, facility, or other organization with responsibility for providing subsistence, health, or other care to a vulnerable adult, who has assumed the responsibility voluntarily, by contract, or by an order of the court; or

(B)  a person providing care, including health care, custodial care, personal care, mental health services, rehabilitative services, or any other kind of care which is required because of another’s age or disability.

(3)  “Lewd and lascivious conduct” means any lewd or lascivious act upon or with the body, or any part or member thereof, of a vulnerable adult, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the person or the vulnerable adult.

(4)  “Neglect” means intentional or reckless failure or omission by a caregiver to:

(A)(i)  provide care or arrange for goods, services, or living conditions necessary to maintain the health or safety of a vulnerable adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, unless the caregiver is acting pursuant to the wishes of the vulnerable adult or his or her representative, or an advanced directive as defined in chapter 111 of Title 18; or

(ii)  make a reasonable effort, in accordance with the authority granted the caregiver, to protect a vulnerable adult from abuse, neglect or exploitation by others.

(B)  Neglect may be repeated conduct or a single incident which has resulted in or could be expected to result in physical or psychological harm, as a result of subdivisions (A)(i) or (ii) of this subdivision (4).

(5)  “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health or substantial disfigurement.

(6)  “Sexual act” means conduct between persons consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or any intrusion, however slight, by any part of a person’s body or any object into the genital or anal opening of another.

(7)  “Sexual activity” means a sexual act, other than appropriate health care or personal hygiene, or lewd and lascivious conduct.

(8) “Vulnerable adult” means any person 18 years of age or older who:

(A)  is a resident of a facility required to be licensed under chapter 71 of Title 33;

(B)  is a resident of a psychiatric hospital or a psychiatric unit of a hospital;

(C)  has been receiving personal care and services from an agency certified by the Vermont department of aging and independent living or from a person or organization that offers, provides, or arranges for personal care; or

(D)  regardless of residence or whether any type of service is received, is impaired due to brain damage, infirmities of aging, or a physical, mental, or developmental disability that results in some impairment of the individual’s ability to:

(i)  provide for his or her own care without assistance, including the provision of food, shelter, clothing, health care, supervision, or management of finances; or

(ii)  protect himself or herself from abuse, neglect, or exploitation.

§ 1376.  Abuse

(a)  A caregiver who engages in conduct with an intent or reckless disregard that the conduct is likely to cause unnecessary harm, unnecessary pain, or unnecessary suffering to a vulnerable adult shall be imprisoned not more than one year or fined not more than $1,000.00, or both.

(b)  A caregiver who commits an assault, as defined in section 1023 of this title, with actual or constructive knowledge that the victim is a vulnerable adult, shall be imprisoned for not more than two years or fined not more than $2,000.00, or both.

(c)  A caregiver who commits an aggravated assault as defined in subdivision 1024(a)(1) or (2) of this title with actual or constructive knowledge that the victim is a vulnerable adult shall be imprisoned not more than 20 years or fined not more than $10,000.00, or both. 

§ 1377.  ABUSE BY UNLAWFUL RESTRAINT AND UNLAWFUL CONFINEMENT

(a)  Except as provided in subsection (b) of this section, no person shall knowingly or recklessly:

(1)  cause or threaten to cause unnecessary or unlawful confinement or unnecessary or unlawful restraint of a vulnerable adult; or

(2)  administer or threaten to administer a drug, a substance, or electroconvulsive therapy to a vulnerable adult.

(b)  This section shall not apply if the confinement, restraint, administration, or threat is:

(1)  part of a legitimate and lawful medical or therapeutic treatment; or

(2)  lawful and reasonably necessary to protect the safety of the vulnerable adult or others, provided that less intrusive alternatives have been attempted if doing so would be reasonable under the circumstances.

(c)  A person who violates this section shall:

(1)  be imprisoned not more than two years or fined not more than $10,000.00, or both.

(2)  if the violation causes bodily injury, be imprisoned not more than three years or fined not more than $10,000.00, or both.

(3)  if the violation causes serious bodily injury, be imprisoned not more than 15 years or fined not more than $10,000.00, or both.

§ 1378.  NEGLECT

(a)  A caregiver who intentionally or recklessly neglects a vulnerable adult shall be imprisoned not more than 18 months or fined not more than $10,000.00, or both.

(b)  A caregiver who violates subsection (a) of this section, and as a result of such neglect, serious bodily injury occurs to the vulnerable adult, shall be imprisoned not more than 15 years or fined not more than $10,000.00, or both.

§ 1379.  SEXUAL ABUSE

(a)  A person who volunteers for or is paid by a caregiving facility or program shall not engage in any sexual activity with a vulnerable adult.  It shall be an affirmative defense to a prosecution under this subsection that the sexual activity was consensual between the vulnerable adult and a caregiver who was hired, supervised, and directed by the vulnerable adult.  A person who violates this subsection shall be imprisoned for not more than two years or fined not more than $10,000.00, or both.

(b)  No person, whether or not the person has actual knowledge of the victim’s vulnerable status, shall engage in sexual activity with a vulnerable adult if:

(1)  the vulnerable adult does not consent to the sexual activity; or

(2)  the person knows or should know that the vulnerable adult is incapable of resisting, declining, or consenting to the sexual activity due to his or her specific vulnerability or due to fear of retribution or hardship.

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

(1)  imprisoned for not more than five years or fined not more than $10,000.00, or both, if the sexual activity involves lewd and lascivious conduct;

(2)  imprisoned for not more than 20 years or fined not more than $10,000.00, or both, if the sexual activity involves a sexual act.

(d)  A caregiver who violates subsection (b) of this section shall be:

(1)  imprisoned for not more than seven years or fined not more than $10,000.00, or both, if the sexual activity involves lewd and lascivious conduct.

(2)  imprisoned for not more than 25 years or fined not more than $10,000.00, or both, if the sexual activity involves a sexual act.

§ 1380.  Financial exploitation

(a)  No person shall willfully use, withhold, transfer, or dispose of funds or property of a vulnerable adult, without or in excess of legal authority, for wrongful profit or advantage.  No person shall willfully acquire possession or control of or an interest in funds or property of a vulnerable adult through the use of undue influence, harassment, duress, or fraud.

(b)  A person who violates subsection (a) of this section, and exploits money, funds, or property of no more than $500.00 in value, shall be imprisoned not more than 18 months or fined not more than $10,000.00, or both.

(c)  A person who violates subsection (a) of this section, and exploits money, funds, or property in excess of $500.00 in value, shall be imprisoned not more than 10 years or fined not more than $10,000.00, or both.

§ 1381.  Exploitation of services

Any person who willfully forces or compels a vulnerable adult against his or her will to perform services for the profit or advantage of another shall be imprisoned not more than two years or fined not more than $10,000.00, or both.

§ 1382.  DEFERRED SENTENCE

Notwithstanding the limitation of subsection 7041(a) of this title, a court may, on the motion of a party or on its own motion, with or without the consent of the state’s attorney, defer sentencing for a misdemeanor violation of this chapter and place the defendant on probation upon such terms and conditions as it may require.

§ 1383.  ADULT ABUSE REGISTRY

A person who is convicted of a crime under this chapter shall be placed on the adult abuse registry.  A deferred sentence is considered a conviction for purposes of the adult abuse registry.

Sec. 3.  13 V.S.A. § 5301(7) is amended to read:

§ 5301.  Definitions

As used in this chapter:

* * *

(7)  For the purpose of this chapter, “listed crime” means any of the following offenses:

* * *

(Z)  burglary into an occupied dwelling as defined in section subsection 1201(c) of this title; and

(AA)  the attempt to commit any of the offenses listed in this section; and

(BB)  abuse (section 1376 of this title), abuse by restraint (section 1377 of this title), neglect (section 1378 of this title), sexual abuse (section 1379 of this title), financial exploitation (section 1380 of this title), and exploitation of services (section 1381 of this title).

Sec. 4.  33 V.S.A. § 6913 is amended to read:

§ 6913.  PENALTIES; DEFERRED SENTENCING; CRIMINAL SEXUAL ACTIVITY BY CAREGIVER; ABUSE; NEGLECT; EXPLOITATION; MANDATORY REPORTER’S FAILURE TO REPORT

(a)  Any person who engages in abuse, as defined in subdivision 6902(1)(B) or (C) of this title shall be fined not more than $10,000.00 or be imprisoned not more than 18 months, or both.

(b)  Any person who willfully engages in exploitation as defined in subdivision 6902(6)(A), (B) or (C) of this title, shall be fined not more than $10,000.00 or be imprisoned for not more than 18 months, or both.

(c)  Any caregiver who purposely, knowingly or recklessly neglects a vulnerable adult as defined in subdivision 6902(7) of this title shall be fined not more than $10,000.00 or be imprisoned for not more than 18 months, or both.

(d)  Any caregiver who engages in abuse of a vulnerable adult in violation of subdivision 6902(1)(D) of this title shall be fined not more than $10,000.00 or be imprisoned not more than two years, or both.

(e)  Any mandatory reporter as defined in subdivision 6903(a)(1), (2), (3), (4) and (5) of this title that willfully violates subsection 6903(a) of this title shall be fined not more than $500.00 or be imprisoned for not more than one year, or both.

(f)  Notwithstanding the limitation of 13 V.S.A. § 7041(a), a court may, on the motion of a party or on its own motion, with or without the consent of the state’s attorney, defer sentencing and place the defendant on probation upon such terms and conditions as it may require.

(g)  Whenever the commissioner finds, after notice and hearing, that a person has committed sexual abuse as defined in subdivision 6902(1)(D) of this title, sexual exploitation as defined in subdivision 6902(6)(D), exploitation as defined in subdivision 6902(6)(A) or (B) in an amount in excess of $500.00, abuse which causes grievous injury to or the death of a vulnerable adult, or neglect which causes grievous injury to or the death of a vulnerable adult, the commissioner may impose an administrative penalty of not more than $10,000.00 for each violation, except as provided in subsection (h) of this section.  The commissioner shall notify the office of professional regulation, or any other professional licensing board applicable to the violator, of any decision made pursuant to this subsection.

(h)(b)  Whenever the commissioner finds, after notice and hearing, that a mandatory reporter, as defined in subdivisions 6903(a)(1), (2), (3), (4), and (5) of this title, has willfully violated the provisions of subsection 6903(a), the commissioner may impose an administrative penalty not to exceed $500.00 per violation.  For purposes of this subsection, every 24 hours that a report is not made beyond the period for reporting required by subsection 6903(a) shall constitute a new and separate violation, and a mandatory reporter shall be liable for an administrative penalty of not more than $500.00 for each 24-hour period, not to exceed a maximum penalty of $5,000.00 per reportable incident.

(i)(c)  A person who is aggrieved by a decision under subsection (g)(a) or (h)(b) of this section may appeal that decision to the superior court where either party may request trial by jury.

Sec. 5.  13 V.S.A. § 5401(10) is amended to read:

(10)  “Sex offender” means:

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

* * *

(iv)  sexual activity by a caregiver as defined in 33 V.S.A. § 6913(d) abuse of a vulnerable adult as defined in section 1379 of this title;

* * *

Sec. 6.  33 V.S.A. § 6906(a) is amended to read:

§ 6906.  INVESTIGATION

(a)(1)  The commissioner shall cause an investigation to commence within 48 hours after receipt of a report made pursuant to section 6904 of this title.

(2)  The commissioner shall keep the reporter and the alleged victim informed during all stages of the investigation, and shall:

(A)  notify the reporter, the victim, and the victim’s legal representative, if any, in writing if adult protective services or the division of licensing and protection decides not to investigate the report.  The notification shall be provided within five business days after the decision is made and shall inform the reporter that he or she may ask the commissioner to review the decision.

(B)  notify the reporter, the victim, and the victim’s legal representative, if any, in writing if adult protective services or the division of licensing and protection refers the report to another agency.  The notification shall be provided within five business days after the referral is made.

(C)  notify the reporter, the victim, and the victim’s legal representative, if any, in writing of the outcome of the investigation.  The notification shall be provided within five business days after the decision is made and shall inform the reporter that he or she may ask the commissioner to review the decision.

Sec. 7.  33 V.S.A. § 6912 is amended to read:

§ 6912.  PUBLIC EDUCATION AND DISCLOSURE OF RIGHTS AND DUTIES; POSTING OF NOTICE

(a)  The department, within available appropriations, shall conduct a publicity and education program to encourage the fullest degree of reporting of suspected abuse, neglect, or exploitation of vulnerable adults.

(b)  All agencies, facilities or institutions providing care and services to elderly or, disabled, or vulnerable adults shall inform their employees of their right and duty to report suspected incidents of abuse, neglect, or exploitation and the protections afforded them by this chapter, and shall establish appropriate policies and procedures to facilitate such reporting.

(c)(1)  All agencies, facilities, or institutions providing care and services to vulnerable adults shall post in a prominent and accessible location a poster describing the protections afforded to vulnerable adults by this chapter and by chapter 28 of Title 13.  The poster shall include, at a minimum, the following:

(A)  A statement that abuse, neglect, and exploitation of vulnerable adults is unlawful.

(B)  A statement that it is unlawful to retaliate against a person for filing a complaint of abuse, neglect, or exploitation or for cooperating in an investigation of abuse, neglect, or exploitation.

(C)  A description and examples of abuse, neglect, and exploitation.

(D)  A statement of the range of consequences for persons who commit abuse, neglect, or exploitation.

(E)  If the agency, facility, or institution has more than five employees, a description of the process for filing internal complaints about abuse, neglect, and exploitation, and the names, addresses, and telephone numbers of the person or persons to whom complaints should be made.

(F)  The complaint process of the appropriate state and federal agencies and directions as to how to contact such agencies. 

(2)  Except as provided in subdivision (3) of this subsection, the poster required by this subsection shall be posted in a location where it would ordinarily be viewed by vulnerable adults.

(3)  An agency, facility, or institution which provides home-based services shall:

(A)  display the poster required by this subsection in its principal place of business; and

(B)  provide a written notice which includes all information contained on the poster to each vulnerable adult for whom services are provided.    

Sec. 8.  13 V.S.A. § 1024 is amended to read:

§ 1024.  AGGRAVATED ASSAULT

(a)  A person is guilty of aggravated assault if he the person:

(1)  attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life; or

(2)  attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; or

(3)  for a purpose other than lawful medical or therapeutic treatment, he the person intentionally causes stupor, unconsciousness, or other physical or mental impairment or injury to another person by administering to him the other person, without his the other person’s consent, a drug, substance, or preparation capable of producing the intended harm; or

(4)  with intent to prevent a law enforcement officer from performing a lawful duty, he the person causes physical injury to any person; or

(5)  is armed with a deadly weapon and threatens to use the deadly weapon on another person.

(b)  A person found guilty of violating a provision of subsection subdivision (a)(1) or (2) of this section shall be imprisoned for not more than 15 years or fined not more than $10,000.00, or both.

(c)  A person found guilty of violating a provision of subsection subdivision (a)(3) or, (4), or (5) of this section shall be imprisoned for not more than five years or fined not more than $5,000.00, or both.

(d)  Subdivision (a)(5) of this section shall not apply if the person threatened to use the deadly weapon:

(1)  in the just and necessary defense of his or her own life or the life of his or her husband, wife, civil union partner, parent, child, brother, sister, guardian, or ward;

(2)  in the suppression of a person attempting to commit murder, sexual assault, aggravated sexual assault, burglary, or robbery; or

(3)  in the case of a civil or military officer lawfully called out to suppress a riot or rebellion, prevent or suppress an invasion, or assist in serving legal process, in suppressing opposition against him or her in the just and necessary discharge of his or her duty.

Sec. 9.  13 V.S.A. § 5405 is amended to read:

§ 5405.  COURT DETERMINATION OF SEXUALLY VIOLENT PREDATORS

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

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

(b)(c)  The determination of whether a person is a sexually violent predator shall be made by the court at the time of sentencing after reviewing the recommendations of at least two experts in the behavior and treatment of sexual offenders

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

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

(1)  the person’s criminal history;

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

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

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

(5)  any other relevant evidence.

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

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

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

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

Sec. 10.  13 V.S.A. § 2602 is amended to read:

§ 2602.  LEWD OR LASCIVIOUS CONDUCT WITH CHILD

(a)  A person who No person shall wilfully and lewdly commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of sixteen 16 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of such person or of such child, shall be imprisoned for the first offense, not less than one year nor more than five years, or fined not more than $3,000.00, or both; for the second offense, not less than two years and not more than ten years, or fined not more than $5,000.00, or both; and for the third or subsequent offense, not less than three years and not more than 20 years, or fined not more than $10,000.00, or both.

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

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

(2)  For a second offense, imprisoned not less than two years and not more than 30 years or fined not more than $10,000.00, or both.

(3)  For a third offense, imprisoned not less than three years and up to and including life or fined not more than $25,000.00, or both.

Sec. 11.  13 V.S.A. § 2825(e) is amended to read:

(e)  A person who violates section 2828 of this title (use of electronic communication to lure a child) shall:

(1)  For a first offense, be imprisoned not more than five 15 years or fined not more than $10,000.00, or both; or

(2)  For a second or subsequent offense, be imprisoned not more than 30 years and fined not more than $20,000.00, or both.

Sec. 12.  13 V.S.A. § 3253 is amended to read:

§ 3253.  AGGRAVATED SEXUAL ASSAULT

* * *

(b)  A person who commits the crime of aggravated sexual assault shall be punishable by a maximum sentence of life imprisonment imprisoned up to and including life or a fine of fined not more than $50,000.00, or both.  No person who receives a minimum sentence under this section shall be eligible for early release or furlough until the expiration of the minimum sentence imposed.

Sec. 13.  APPROPRIATION – FUNDING FOR EVALUATIONS

The amount of $50,000.00 is appropriated from the general fund in fiscal year 2006 to the department of corrections for the purpose of funding psychosexual evaluations as a part of presentence investigations conducted by the department in cases involving a petition to have a person designated as a sexually violent predator as provided in 13 V.S.A. § 5405 or in sentencing for the crimes of lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602, aggravated sexual assault as defined in 13 V.S.A. § 3253, and second offense use of electronic communication to lure a child as defined in 13 V.S.A. § 2828.  This appropriation shall be used only for the purposes defined in this section, and any unexpended balance of this appropriation shall carry forward and not be reverted to the general fund.  The department of corrections shall include in its annual budget proposal for fiscal year 2007 and thereafter an allocation to fund these evaluations.  The annual allocation shall be estimated based on the need for such evaluations experienced in the current and previous two fiscal years.

Sec. 14.  REPORT

(a)  On or before January 15, 2006 and on or before January 15 of each year thereafter, the secretary of the agency of human services shall submit a report to the following committees:  the house and senate committees on judiciary, the house committee on human services, and the senate committee on health and welfare.  The report shall include:

(1)(A)  The number of reports of abuse, exploitation, and neglect:

(i)  received by adult protective services (APS) within the department of aging and independent living during the preceding year, and the total number of persons who filed reports.

(ii)  investigated by APS during the preceding year.

(iii)  substantiated by APS during the preceding year.

(iv)  referred to other agencies for investigation by APS during the preceding year, including identification of each agency and the number of referrals it received.

(v)  referred for protective services by APS during the preceding year, including a summary of the services provided.

(B)  For each type of report required from APS by subdivision (1)(A) of this section, a statistical breakdown of the number of reports according to the type of abuse and to the victim’s:

(i)  relationship to the reporter;

(ii)  relationship to the alleged perpetrator;

(iii)  age;

(iv)  disability or impairment; and

(v)  place of residency.

(2)  A complete description of the types of services offered by APS in response to reports of abuse, exploitation, and neglect, including identification of the funding sources for each service, past trends, and future projections for funding, and whether the current and anticipated funding is adequate to meet the service needs.

(3)  A complete description of the notification which APS provides to persons who make reports of abuse, exploitation, and neglect, and the notifications provided to the persons when APS determines to investigate or not to investigate a report, to conclude an investigation, to substantiate or not to substantiate a report, or to refer the report to another agency.

(b)  The report submitted on January 15, 2006 shall include:

(1)  A description of any costs incurred by the department of aging and independent living as a result of meeting the requirements of this act.

(2)  An update on coordination and communication between the department of aging and independent living and the department for children and families with respect to the adult abuse registry established under section 6911 of Title 33 and the child abuse registry established under section 4913 of Title 33.  The update shall include how information on the registries is shared between state personnel and private employers, and whether employers are required to make separate requests from each registry or whether one request automatically produces information from both registries.

(c)  On or before January 1, 2006, the attorney general shall report to the  house and senate committees on judiciary on whether any issues or difficulties have resulted from removing the requirement that the adult be receiving services “for more than one month” from the definition of “vulnerable adult” in subdivision 1375(8)(C) of Title 13.

(Committee Vote: 6-0-0)

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

The Committee recommends that the Senate propose to the House to amend the bill as recommended by the Committee on Judiciary with the following amendment thereto:

In Sec. 13 , by striking out the following: “fiscal year 2006” and inserting in lieu thereof the following: fiscal year 2005

(Committee Vote: 6-0-1)

(For House amendments, see House Journal for April 6, 2005, page 516.)

H. 199

An act relating to regulation of professions and occupations.

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

The Committee recommends that the Senate propose to the House to amend the bill as follows:

First:  By striking out Sec. 7 in its entirety.

Second:  By adding a new section to be numbered Sec. 44a to read as follows:

Sec. 44a.  26 V.S.A. § 1272 is amended to read:

§ 1272.  RULES

The board, with the assistance of the office of professional regulation, shall adopt rules to carry out the provisions of this subchapter to insure the proper handling of all funds paid pursuant to a prepaid funeral agreement and to protect consumers in the event of default.  The rules shall include provisions relating to the following:

* * *

(2)  The appointment of an escrow agent who may be a bank or other category of individual such as an attorney, a local elected official, next of kin, or the executor of a buyer’s estate.  All prepaid arrangement funds shall be paid directly to the escrow agent and not to the funeral director or establishment.

* * *

(6)  Records to be kept, manner of disclosure, and clauses to be included in contracts, including pre-need trust forms, and agreements.  Records shall include a copy of the prepaid arrangement check which shall be kept in the prepaid account file maintained by the funeral director.

* * *

(9)  Establishment of a funeral services trust account.  For purposes of funding the funeral services trust account, the board or the office of professional regulation shall assess each funeral or crematory establishment a per funeral, burial, or disposition fee of $6.00.  The account shall be administered by the secretary of state and shall be used for the sole purpose of protecting prepaid funeral contract holders in the event a funeral establishment defaults on its obligations under the contract.  The account shall consist of all fees collected under this subdivision and any assessments authorized by the general assembly.  The principal and interest remaining in the account at the close of any fiscal year shall not revert but shall remain in the account for use in succeeding fiscal years.  Notwithstanding the foregoing, if the fund balance at the beginning of a fiscal year is at least $200,000.00 $350,000.00, no fees shall be imposed during that fiscal year.  Payments on consumer claims from the fund shall be made on warrants by the commissioner of finance and management, at the direction of the board of funeral services.  When an investigation reveals financial discrepancies within a licensed establishment, the director may order an audit to determine the existence of possible claims on the funeral services trust account.  In cases where both a funeral and crematory establishment are involved in a disposition, the party receiving the burial permit shall be responsible for the disposition fee.

Third:  By adding a new section to be numbered Sec. 89a to read as follows:

Sec. 89a.  26 V.S.A. § 3162(7) is amended to read:

(7)  Adopt rules establishing a security guard or private investigator training program, consisting of not fewer than 40 hours of training, as a prerequisite to registration.  Full-time employees shall complete the training program prior to being issued a permanent registration.  Part-time employees shall complete not fewer than eight hours of training prior to being issued a part-time employee temporary registration which shall be valid for 180 days.  The remaining training hours for part-time employees shall be completed within the temporary registration period of 180 days or before the employee has worked 500 hours, whichever occurs first.  The part-time employee temporary registration shall expire after 180 days or 500 hours.  For the purposes of this section, “part-time employee” means an employee who works no more than 80 hours per month.  The board may prioritize training subjects to require that certain subject areas are covered in the initial eight hours of training required for part-time employees.

Fourth:  By striking out Sec. 97 in it entirety and inserting in lieu thereof a new Sec. 97 to read as follows:

Sec. 97.  26 V.S.A. § 4037 is amended to read:

§ 4037.  ELIGIBILITY

To be eligible for licensure as a marriage and family therapist, an applicant:

(1)  Shall have successfully:

(A)(i)  completed either a graduate degree program in marriage and family therapy at an institution that is accredited by both a regional educational accrediting body and the commission, or a post-graduate training institute that is accredited by the commission; or

(ii)  obtained a graduate degree focusing on marriage and family therapy, as defined by the board by rule, at an institution that is accredited by a regional or national educational accrediting body recognized by the United States Department of Education and approved by the board; and

(B)  met specific graduate credit and course requirements for licensure as set forth by the board by rule.

(2)  [Deleted.]

(3)  Shall have successfully completed a two calendar year two‑calendar‑year work experience in marriage and family therapy under the supervision of either a licensed marriage and family therapist or licensed clinical social worker in this state or a marriage and family therapist or licensed clinical social worker in another state who would meet the license requirements.  Persons engaged in the work experience shall be entered on the roster of psychotherapists who are nonlicensed and noncertified and shall comply with the laws of that profession.  The board shall adopt rules establishing standards and procedures for satisfying the requirements of this subdivision.

(4)  Shall have passed an examination as provided in section 4038 of this title.

(Committee Vote: 6-0-0)

Reported favorably by Senator Maynard for the Committee on Finance.

(Committee vote: 4-0-3)

(For House amendments, see House Journal for February 24, 2005, page 277.)

Committee Bills for Notice

S. 172

An act relating to municipal authority to charge fees for fire services.

By the Committee on Housing and General Affairs.

S. 174

An act relating to home health agencies.

By the Committee on Appropriations.

AMENDMENT TO S. 174 TO BE OFFERED BY SENATOR ILLUZZI

Senator Illuzzi moves to amend the bill as follows:

First:  In Sec. 5, 33 V.S.A. § 509(d), first sentence, after the word “modified” by inserting the following: by the commissioner after notice and opportunity for hearing, or

Second:  In Sec. 5, 33 V.S.A. § 510(d), by adding a new subsection (e), to read as follows:

(e)  If access, cost and quality issues are not remedied or to the satisfaction of the commissioner within the time specified by rule, the commissioner shall have the authority for the ensuing three fiscal or calendar years to review and approve and shall review and approve:

          (1)  the compensation  of the officers of each agency;

          (2)  the proposed annual fiscal year expenditures of each agency.

Report of Committee of Conference

H.198

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. 198.  AN ACT RELATING TO GIFT CERTIFICATES.

Respectfully report that they have met and considered the same and recommend that the Senate recede from its proposal of amendment

                                                                 Hull Maynard

                                                                 Claire Ayer

                                                                 Peter Welch

                                                      Committee on the part of the Senate

                                                                 Ernest Shand

                                                                 Kathleen Keenan

                                                                 Mark Young

                                                      Committee on the part of the House

ORDERED TO LIE

S. 117

An act relating to state recognition of the Abenaki people.

PENDING ACTION:  Second reading of the bill.

(For text of amendment, see Senate Calendar for April 15, 2005, page 518)

S. 157

An act relating to rulemaking for Vermont origin.

PENDING ACTION:  Second reading  of the bill.

CONFIRMATIONS

     The following appointments will be considered by the Senate, as a group, under suspension of the Rules, as moved by the President pro tempore, for confirmation together and without debate, by consent thereby given by the Senate.  However, upon request of any senator, any appointment may be singled out and acted upon separately by the Senate, with consideration given to the report of the Committee to which the appointment was referred, and with full debate; and further, all appointments for the positions of Secretaries of Agencies, Commissioners of Departments, Judges, Magistrates, and members of the Public Service Board shall be fully and separately acted upon.

Theodore Lindgren of Springfield – Member of the Parole Board – By Sen. Campbell for the Committee on Institutions.  (4/14)

Joseph Acinapura of Brandon – Member of the Parole Board – By Sen. Giard for the Committee on Institutions.  (4/20)

Dean George of Middlebury – Member of the Parole Board – By Sen. Giard for the Committee on Institutions.  (4/20)

Martin A. Maley, Esq. of Colchester – Magistrate of the Family Court – By Sen. Flanagan for the Committee on Judiciary.  (5/4)

Thomas James Devine of Moretown – District Court Judge – By Sen. Cummings for the Committee on Judiciary.  (5/4)

Karen Handy Luneau of St. Albans – Member of the Vermont State Colleges Board of Trustees – By Sen. Collins for the Committee on Education.  (5/5)

David E. Luce of Waterbury Center – Member of the Community High School of Vermont Board – By Sen. Doyle for the Committee on Education.  (5/5)

PUBLIC HEARINGS

Wednesday, May 4, 2005 – Room 11 – 5:00-7:00 P.M. – H. 241 – NO SMOKING IN BARS AND CLUBS – Senate Committee on Health and Welfare.



Published by:

The Vermont General Assembly
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Montpelier, Vermont


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