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House Calendar

TUESDAY, MARCH 20, 2007

77th DAY OF BIENNIAL SESSION

House Convenes at 10:00 A M

TABLE OF CONTENTS

                                                                                                               Page No.

ACTION CALENDAR

Unfinished Business of Monday, March 19, 2007

     Third Reading

H. 515  Collection and Disposal of Mercury-Added Thermostats................... 319

H. 516  Creation of One Retirement Fund and Federal Compliance................ 319

Committee Bill for Second Reading

H. 518  Technical Tax Amendments............................................................... 319

               Rep. Otterman for Ways and Means

Favorable with Amendment

H. 380  Regulation of Health Care Facilities.................................................... 319

               Rep. Keogh for Health Care

Favorable

H. 403  Postretirement Cost of Living Adjustments ........................................ 321

               Rep. Atkins for Government Operations

NEW BUSINESS

Favorable with Amendment

H.  44  Patient Choice and Control of Life...................................................... 322

               Rep. Frank for Human Services

               Rep. Marek for Judiciary................................................................. 332

H.  73  Water Management Types for State Waters....................................... 343

               Rep. Dean for Fish, Wildlife and Water Resources

H. 154  Relating to Stormwater Management................................................. 345

               Rep. Shaw for Fish, Wildlife and Water Resources

H. 175  Increasing Funeral Benefits Under Workers’ Compensation............... 347

               Rep. Baker for General, Housing and Military Affairs

H. 332  Sale and Closure of Mobile Home Parks........................................... 348

               Rep. Trombley for General, Housing and Military Affairs

H. 353  Employee Free Choice for Bargaining Representative......................... 349

               Rep. Head for Genera, Housing and Military Affairs

H. 372  Nursing and Medical Services by Professional Corporations.............. 350

               Rep. Jerman for Government Operations

Favorable

H. 149  Liquor Identification and Tobacco Licenses....................................... 350

               Rep. Wright for General, Housing and Military Affairs

NOTICE CALENDAR

Committee Bill for Second Reading

H. 521    Miscellaneous substantive tax amendments....................................... 350

               Rep. Smith for Ways and Means

H. 522    Viability of Vermont Agriculture....................................................... 350

               Rep. Zuckerman for Agriculture

Favorable with Amendment

H. 248  VT Broadband and Wireless Communications................................... 350

               Rep. Shand for Commerce

 

 

 

 

 


 

ORDERS OF THE DAY

ACTION CALENDAR

Unfinished Business of Monday, March 19, 2007

Third Reading

H. 515

An act relating to the collection and disposal of mercury-added thermostats.

H. 516

An act relating to the creation of one fund within each of the three Vermont retirement systems and to compliance with federal requirements.

     Committee Bill for Second Reading

H. 518

An act relating to technical tax amendments.

(Rep. Otterman of Topsham will speak for the Committee on Ways and Means.)

Favorable with Amendment

H. 380

     An act relating to the regulation of health care facilities.

Rep. Keogh of Burlington, for the Committee on Health Care, recommends the bill be amended as follows:

     Moves that the bill be amended as follows:

First:  In Sec. 8, subsection 9440(c), by striking subdivision (2) in its entirety and inserting in lieu thereof the following:

(2)  Prior to filing an application for a certificate of need, an applicant shall file a an adequate letter of intent with the commissioner no less than 30 days or, in the case of review cycle applications under section 9439 of this title, no less than 45 days prior to the date on which the application is to be filed.  The letter of intent shall form the basis for determining the applicability of this subchapter to the proposed expenditure or action.  A letter of intent shall become invalid if an application is not filed within six months of the date that the letter of intent is received or, in the case of review cycle applications under section 9439 of this title, within such time limits as the commissioner shall establish by rule.  Public Except for requests for expedited review under subdivision (5) of this subsection, public notice of such letters of intent shall be provided in newspapers having general circulation in the region of the state affected by the letter of intent.  The notice shall identify the applicant, the proposed new health care project, and the date by which a competing application or petition to intervene must be filed.  In addition, a copy of the public notice shall be sent to the clerk of the municipality in which the health care facility is located.  Upon receipt, the clerk shall post the notice in or near the clerk’s office and in at least two other public places in the municipality.

Second:  In Sec. 8, subdivision 9440(c)(4) of Title 18, after the words “the consent of the applicant” by striking the words “provided that any period of” and inserting in lieu thereof  “.  The

Third:  In Sec. 8, subsection 9440(c), by striking subdivision (5) in its entirety and inserting in lieu thereof the following:

(5)  An applicant seeking expedited review of a certificate of need application may simultaneously file a letter of intent and an application with the commissioner.  Upon making a determination that the proposed project may be uncontested and does not substantially alter services, as defined by rule, the commissioner shall issue public notice of the application and the request for expedited review and identify a date by which a competing application or petition for interested party status must be filed.  If a competing application is not filed and no person opposing the application is granted interested party status, the commissioner may formally declare the application uncontested and may issue a certificate of need without further process, or with such abbreviated process as the commissioner deems appropriate.  If a competing application is filed or a person opposing the application is granted interested party status, the applicant shall follow the certificate of need standards and procedures in this section.

Fourth: By striking Sec. 10 in its entirety and inserting in lieu thereof the following:

Sec. 10.  MOBILE HEALTH FACILITIES

The general assembly finds that there have been concerns raised about the practices of private mobile health facilities that enter the state of Vermont for the purpose of providing one-day diagnostic screenings to Vermont residents for a specified fee.  The general assembly requests that the commissioner of health, in consultation with the office of the attorney general, review whether the practices of such mobile health facilities serve the best interests of Vermonters and report his or her findings to the general assembly not later than November 30, 2007.

Fifth:  By adding a new Sec. 12 as follows:

Sec. 12.  HEALTH INFORMATION TECHNOLOGY PLANNING

(a)  Notwithstanding the procedures in subchapter 5 of chapter 221 of Title 18, an applicant seeking expedited review of a certificate of need application for a health information technology project may simultaneously file a letter of intent and an application with the commissioner of banking, insurance, securities, and health care administration without providing the public notice required under subdivision 9440(c)(2) of Title 18.  The commissioner shall issue public notice of the application and the request for expedited review and identify a date by which a competing application or petition for interested party status must be filed.  If a competing application is not filed and no person opposing the application is granted interested party status, the commissioner may formally declare the application uncontested and may issue a certificate of need without further process, or with such abbreviated process as the commissioner deems appropriate, upon a finding that application is consistent with:

(1)  the preliminary health information technology plan issued by the Vermont information technology leaders on January 1, 2007, pursuant to subsection 9417(g) of Title 18, or with the final health information technology plan, if it has been issued at the time the certificate of need is filed; and

(2)  the health resource allocation plan. 

(b)  In making a determination, the commissioner may rely upon the written opinions of persons with expertise in health information technology.  If a competing application is filed or a person opposing the application is granted interested party status, the applicant shall follow the certificate of need standards and procedures in section 9440 of Title 18.

(c)  This section shall be repealed upon approval of the health information technology plan by the general assembly and upon adoption of rules under section 9440b of Title 18.

(Committee vote: 11-0-0)

Favorable

H. 403

     An act relating to postretirement cost of living adjustments for state employees.

Rep. Atkins of Winooski, for the Committee on Government Operations, recommends the bill ought to pass.

( Committee Vote: 11-0-0)

 

 

 

NEW BUSINESS

Favorable with Amendment

H. 44

     An act relating to patient choice and control at end of life.

Rep. Frank of Underhill, for the Committee on Human Services, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

The general assembly finds:

(1)  The state of Oregon has been implementing its Death with Dignity Act since 1998.  According to the Eighth Annual Report on Oregon’s Death with Dignity Act, Oregon, in eight years, has seen a total of  390 terminal patients receive prescriptions to hasten death and, of those, 246 patients took the medication and died pursuant to the act.  Oregon’s annual report on the act shows that in 2005, 64 prescriptions were written, and 38 patients died after ingesting the medication.

(2)  Vermont has about one‑fifth the population of Oregon.  In the 2000 census, Oregon had a population of 3,421,399 and Vermont a population of 608,827.

(3)  In the past decade, Oregon has seen its hospice enrollment increase significantly.  In 1993, only 20 percent of dying patients were enrolled in hospice.  By 2005, enrollment increased to 54 percent.  In 2005, 92 percent of the patients who used medication under the Death with Dignity Act were in hospice care.

(4)  Oregon health care professionals report that ten terminal patients investigate their rights under the act for every patient who formally requests a prescription.

(5)  Despite continuing improvements in techniques for palliative care, most medical experts agree that not all pain can be relieved.  Some terminal diseases, such as bone cancer, inflict untreatable agony at the end of life.  Many cancer patients report that they would have greater comfort and courage in facing their future if they were assured they could use a Death with Dignity law if their suffering became unbearable.

Sec. 2.  18 V.S.A. chapter 113 is added to read:

CHAPTER 113.  RIGHTS OF QUALIFIED PATIENTS SUFFERING A TERMINAL CONDITION

§ 5280.  DEFINITIONS

For purposes of this chapter:

(1)  “Attending physician” means the physician who has primary responsibility for the care of the patient and who is willing to participate in the provision to a qualified patient of medication to hasten his or her death in accordance with this chapter.

(2)  “Capacity” shall have the same meaning as in subdivision 9701(4)(B) of this title.

(3)  “Consulting physician” means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient’s illness and who is willing to participate in the provision to a qualified patient of medication to hasten his or her death in accordance with this chapter.

(4)  “Counseling” means a consultation between a psychiatrist, psychologist, or clinical social worker licensed in Vermont and a patient for the purpose of confirming that the patient: 

(A)  has capacity; and

(B)  is not suffering from a mental disorder or disease that causes the patient to have impaired judgment.

(5)  “Health care provider” shall have the same meaning as in subdivision 9432(8) of this title.

(6)  “Informed decision” means a decision by a patient to request and obtain a prescription to hasten his or her death based on the patient’s understanding and appreciation of the relevant facts and was made after the patient was fully informed by the attending physician of all the following:

(A)  The patient’s medical diagnosis.

(B)  The patient’s prognosis.

(C)  The range of possible results, including potential risks associated with taking the medication to be prescribed.

(D)  The probable result of taking the medication to be prescribed.

(E)  All feasible end-of-life services, including comfort care, hospice care, and pain control.

(7)  “Patient” means a person who is 18 years of age or older, a resident of Vermont, and under the care of a physician.

(8)  “Physician” means a physician licensed pursuant to chapters 23 and 33 of Title 26.

(9)  “Qualified patient” means a patient with capacity who has satisfied the requirements of this chapter in order to obtain a prescription for medication to hasten his or her death.  No individual shall qualify under the provisions of this chapter solely because of age or disability.

(10)  “Terminal condition” means an incurable and irreversible disease which would, within reasonable medical judgment, result in death within six months.

§ 5281.  REQUESTS FOR MEDICATION

(a)  In order to qualify under this chapter:

(1)  A patient with capacity who has been determined by the attending physician and consulting physician to be suffering from a terminal condition and who has voluntarily expressed a wish to hasten the dying process may request medication to be self-administered for the purpose of hastening his or her death in accordance with this chapter.

(2)  A patient shall have made an oral request and a written request and shall have reaffirmed the oral request to his or her attending physician not less than 15 days after the initial oral request.  At the time the patient makes the second oral request, the attending physician shall offer the patient an opportunity to rescind the request.

(b)  Oral requests for medication under this chapter by the patient shall be made in the presence of the attending physician.

(c)  A written request for medication shall be signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that, to the best of their knowledge and belief, the patient has capacity, is acting voluntarily, and is not being coerced to sign the request.  Neither witness shall be any of the following persons:

(1)  The patient’s attending physician.

(2)  A relative of the patient by blood, marriage, civil union, or adoption.

(3)  A person who at the time the request is signed would be entitled to any portion of the estate of the patient under any will or by operation of law.

(4)  An owner, operator, or employee of a health care facility, nursing home, or residential care facility where the patient is receiving medical treatment or is a resident.

(d)  A person who knowingly fails to comply with the requirements in subsection (d) of this section is subject to prosecution under section 2004 of Title 13.

(e)  The written request shall be completed after the patient has been examined by a consulting physician as required by under section 5283 of this title.

§ 5282.  ATTENDING PHYSICIAN; DUTIES

The attending physician shall perform all the following:

(1)  Make the initial determination of whether a patient:

(A)  is suffering a terminal condition;

(B)  has capacity; and

(C)  has made a voluntary request for medication to hasten his or her death.

(2)  Request proof of Vermont residency, which may be shown by:

(A)  a Vermont driver’s license or photo identification card;

(B)  proof of Vermont voter’s registration;

(C)  evidence of property ownership or a lease of residential premises in Vermont; or

(D)  a Vermont personal income tax return for the most recent tax year.

(3)  Inform the patient in person and in writing of all the following:

(A)  The patient’s medical diagnosis.

(B)  The patient’s prognosis.

(C)  The range of possible results, including potential risks associated with taking the medication to be prescribed.

(D)  The probable result of taking the medication to be prescribed.

(E)  All feasible end-of-life services, including comfort care, hospice care, and pain control.

(4)  Refer the patient to a consulting physician for medical confirmation of the diagnosis, prognosis, and a determination that the patient has capacity and is acting voluntarily.

(5)  Refer the patient for counseling if appropriate under section 5284 of this chapter.

(6)  Recommend that the patient notify the next of kin or someone with whom the patient has a significant relationship.

(7)  Counsel the patient about the importance of having another individual present when the patient takes the medication pursuant to this chapter and the importance of not taking the medication in a public place.

(8)  Inform the patient that the patient has an opportunity to rescind the request at any time and in any manner, and offer the patient an opportunity to rescind at the end of the 15-day waiting period.

(9)  Verify, immediately prior to writing the prescription for medication under this chapter, that the patient is making an informed decision.

(10)  Fulfill the medical record documentation requirements of section 5289 of this title.

(11)  Ensure that all required steps are carried out in accordance with this chapter prior to writing a prescription for medication to hasten death.

(12)(A)  Dispense medication directly, including ancillary medication intended to facilitate the desired effect to minimize the patient’s discomfort, provided the attending physician is licensed to dispense medication in Vermont, has a current Drug Enforcement Administration certificate, and complies with any applicable administrative rules; or

(B)  With the patient’s written consent:

(i)  contact a pharmacist and inform the pharmacist of the prescription; and

(ii)  deliver the written prescription to the pharmacist, who will dispense the medication to the patient, the attending physician, or an expressly identified agent of the patient.

(13)  Notwithstanding any other provision of law, the attending physician may sign the patient’s death certificate.

§ 5283.  MEDICAL CONSULTATION REQUIRED

Before a patient is qualified in accordance with this chapter, a consulting physician shall physically examine the patient, review the patient’s relevant medical records, and confirm in writing the diagnosis of the attending physician that the patient is suffering from a terminal condition and verify that the patient has capacity, is acting voluntarily, and has made an informed decision.

§ 5284.  COUNSELING REFERRAL

If a patient is not receiving hospice services at the time the written request for medication is made under this chapter, he or she shall undergo counseling under this section.  If a patient is receiving hospice services at the time the written request for medication is made under this chapter and if, in the opinion of the attending physician or the consulting physician, a patient may be suffering from a mental disorder or disease causing impaired judgment, either physician shall refer the patient for counseling.  No medication to end the patient’s life shall be prescribed until the person performing the counseling determines that the patient is not suffering from a mental disorder or disease that causes the patient to have impaired judgment.

§ 5285.  INFORMED DECISION

No person shall receive a prescription for medication to hasten his or her death unless the patient has made an informed decision.  Immediately prior to writing a prescription for medication in accordance with this chapter, the attending physician shall verify that the patient is making an informed decision.

§ 5286.  RECOMMENDED NOTIFICATION

The attending physician shall recommend that the patient notify the patient’s next of kin or someone with whom the patient has a significant relationship of the patient’s request for medication in accordance with this chapter.  A patient who declines or is unable to notify the next of kin shall not be refused medication in accordance with this chapter.

§ 5287.  RIGHT TO RESCIND

A patient may rescind the request at any time and in any manner regardless of the patient’s mental state.  No prescription for medication under this chapter may be written without the attending physician offering the patient an opportunity to rescind the request.

§ 5288.  WAITING PERIOD

The attending physician shall write a prescription no less than 48 hours after the last to occur of all of the following events:

(1)  the patient’s written request for medication to hasten his or her death;

(2)  the patient’s second oral request; and

(3)  the attending physician’s offering the patient an opportunity to rescind the request.

§ 5289.  MEDICAL RECORD DOCUMENTATION

The following shall be documented and filed in the patient’s medical record:

(1)  The date and wording of all oral requests of the patient for medication to hasten his or her death.

(2)  All written requests by a patient for medication to hasten his or her death.

(3)  The attending physician’s diagnosis, prognosis, and basis for the determination that the patient has capacity, is acting voluntarily, and has made an informed decision.

(4)  The consulting physician’s diagnosis, prognosis, and verification that the patient has capacity, is acting voluntarily, and has made an informed decision.

(5)  A report of the outcome and determinations made during any counseling which the patient may have received.

(6)  The date and wording of the attending physician’s offer to the patient to rescind the request for medication at the time of the patient’s second oral request.

(7)  A note by the attending physician indicating that all requirements under this chapter have been satisfied and all the steps that have been taken to carry out the request, including a notation of the medication prescribed.

§ 5290.  REPORTING REQUIREMENT

(a)  The department of health shall require that any physician who writes a prescription pursuant to this chapter file a report with the department covering all the prerequisites for writing a prescription under this chapter.  In addition, physicians shall report the number of written requests for medication that were received, regardless of whether or not a prescription was actually written in each instance.

(b)  The department of health shall annually review the medical records of qualified patients who have hastened their deaths in accordance with this chapter.

(c)  The department of health shall make rules to facilitate the collection of information regarding compliance with this chapter.  The information collected shall not be public record and shall not be made available for inspection by the public.

(d)  The department of health shall generate and make available to the public an annual statistical report of information collected under subsections (a) and (b) of this section.  The report shall include the number of instances in which medication was taken by a qualified patient to hasten death but failed to have the intended effect.

§ 5290a.  COLLECTION AND DISPOSAL OF UNUSED MEDICATIONS

The department of health shall develop a policy for ensuring that unused medications prescribed under this chapter are collected and disposed of appropriately.

§ 5291.  PROHIBITIONS; CONTRACT CONSTRUCTION

(a)  No provision in a contract, will, or other agreement, whether written or oral, shall be valid, to the extent the provision would affect whether a person may make or rescind a request for medication to hasten his or her death in accordance with this chapter.

(b)  The sale, procurement, or issue of any life, health, or accident insurance or annuity policy or the rate charged for any policy shall not be conditioned upon or affected by the making or rescinding of a request by a person for medication to hasten his or her death in accordance with this chapter or the act by a qualified patient to hasten his or her death pursuant to this chapter.  Neither shall a qualified patient’s act of ingesting medication to hasten his or her death have an effect on a life, health, or accident insurance or annuity policy.

§ 5292.  IMMUNITIES

(a)  No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance in accordance with this chapter.  This includes being present when a qualified patient takes the prescribed medication to hasten his or her death in accordance with this chapter.

(b)  No professional organization or association or health care provider may subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership, or other penalty for participating or refusing to participate in good faith compliance with this chapter.

(c)  No request by a patient for or provision by an attending physician of medication in good faith compliance with the provisions of this chapter shall constitute neglect for any purpose of law.

(d)  No request by a patient for medication under this chapter shall provide the sole basis for the appointment of a guardian or conservator.

(e)  No health care provider shall be under any duty, whether by contract, by statute, or by any other legal requirement, to participate in the provision to a qualified patient of medication to hasten his or her death in accordance with this chapter.  If a health care provider is unable or unwilling to carry out a patient’s request in accordance with this chapter and the patient transfers his or her care to a new health care provider, the previous health care provider, upon request, shall transfer a copy of the patient’s relevant medical records to the new health care provider.  A decision by a health care provider not to participate in the provision of medication to a qualified patient shall not constitute the abandonment of the patient or unprofessional conduct under section 1354 of Title 26.

§ 5293.  HEALTH CARE FACILITY EXCEPTION

Notwithstanding any other provision of law, a health care facility may prohibit an attending physician from writing a prescription for medication under this chapter for a patient who is a resident in its facility and intends to use the medication on the facility’s premises, provided the facility has notified the attending physician in writing of its policy with regard to such prescriptions.  Notwithstanding subsection 5292(b) of this title, any health care provider who violates a prohibition established under this section may be subject to sanctions otherwise allowable under law or contract.

§ 5294.  LIABILITIES AND PENALTIES

(a)  Nothing in this chapter shall be construed to limit liability for civil damages resulting from negligent conduct or intentional misconduct by any person.

(b)  Nothing in this chapter or in section 2312 of Title 13 shall be construed to limit criminal prosecution under any other provision of law.

(c)  A health care provider is subject to review and disciplinary action by the appropriate licensing entity for failing to act in accordance with this chapter, provided such failure is not in good faith.

§ 5295.  FORM OF THE REQUEST

A request for medication as authorized by this chapter shall be substantially in the following form:

REQUEST FOR MEDICATION

TO HASTEN MY DEATH

I, ___________________ , am an adult of sound mind.

I am suffering from _______________, which my attending physician has determined is a terminal disease and which has been confirmed by a consulting physician.

I have been fully informed of my diagnosis, prognosis, the nature of medication to be prescribed and potential associated risks, the expected result, and the feasible end-of-life services, including comfort care, hospice care, and pain control.

I request that my attending physician prescribe medication that will hasten my death.

INITIAL ONE:

_____ I have informed my family or others with whom I have a significant relationship of my decision and taken their opinions into consideration.

_____ I have decided not to inform my family or others with whom I have a significant relationship of my decision.

_____ I have no family or others with whom I have a significant relationship to inform of my decision.

I understand that I have the right to change my mind at any time.

I understand the full import of this request, and I expect to die when I take the medication to be prescribed.  I further understand that although most deaths occur within three hours, my death may take longer, and my physician has counseled me about this possibility.

I make this request voluntarily and without reservation, and I accept full moral responsibility for my actions.

Signed: _________________________ Dated: ____________

DECLARATION OF WITNESSES

We declare that the person signing this request:

(a)  Is personally known to us or has provided proof of identity;

(b)  Signed this request in our presence;

(c)  Appears to be of sound mind and not under duress, fraud, or undue influence;

(d)  Is not a patient for whom either of us is the attending physician.

Witness 1/Date ______________________________________

Witness 2/Date ______________________________________

NOTE:  Neither witness may be a relative (by blood, marriage, civil union, or adoption) of the person signing this request, may be entitled to any portion of the person’s estate upon death, or may own, operate, or be employed at a health care facility where the person is a patient or resident.  A knowing false declaration by a witness may result in criminal penalties.

§ 5296.  STATUTORY CONSTRUCTION

Nothing in this chapter shall be construed to authorize a physician or any other person to end a patient’s life by lethal injection, mercy killing, or active euthanasia.  Action taken in accordance with this chapter shall not be construed for any purpose to constitute suicide, assisted suicide, mercy killing, or homicide under the law.

Sec. 3.  13 V.S.A. § 2312 is added to read:

§ 2312.  Violation of PATIENT CHOICE AND CONTROL AT END OF

               LIFE ACT

(a)(1)  No person shall:

(A)  willfully alter or forge a patient’s request for medication under chapter 113 of Title 18, with the intent or effect of causing the patient’s death; or

(B)  conceal or destroy a rescission of a patient’s request for medication  under chapter 113 of Title 18, with the intent or effect of causing the patient’s death.

(2)  No person shall coerce or exert undue influence on a patient:

(A)  to request medication under chapter 113 of Title 18; or

(B)  to destroy a patient’s rescission of a request for medication under chapter 113 of Title 18.

(b)  A person who violates this section and thereby causes the death of the patient shall be guilty of first degree murder and subject to the penalties provided in subsection 2303(a) of this title.

Sec. 4.  13 V.S.A. § 2004 is added to read:

§ 2004.  FALSE WITNESSING

A person who knowingly violates the requirements of subsection 5281(d) of Title 18 shall be imprisoned for not more than 10 years or fined not more than $2,000.00, or both.

(Committee vote: 7-4-0)

 

Rep. Marek of Newfane, for the Committee on Judiciary, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

The general assembly finds:

(1)  The state of Oregon has been implementing its Death with Dignity Act since 1998.  According to the Eighth Annual Report on Oregon’s Death with Dignity Act, Oregon, in eight years, has seen a total of 390 terminal patients receive prescriptions to hasten death and, of those, 246 patients took the medication and died pursuant to the act.  Oregon’s annual report on the act shows that in 2005, 64 prescriptions were written, and 38 patients died after ingesting the medication.

(2)  Vermont has about one‑fifth the population of Oregon.  In the 2000 census, Oregon had a population of 3,421,399 and Vermont a population of 608,827.

(3)  In the past decade, Oregon has seen its hospice enrollment increase significantly.  In 1993, only 20 percent of dying patients were enrolled in hospice.  By 2005, enrollment increased to 54 percent.  In 2005, 92 percent of the patients who used medication under the Death with Dignity Act were in hospice care.

(4)  Oregon health care professionals report that ten terminal patients investigate their rights under the act for every patient who formally requests a prescription.

(5)  Despite continuing improvements in techniques for palliative care, most medical experts agree that not all pain can be relieved.  Some terminal diseases, such as bone cancer, inflict untreatable agony at the end of life.  Many cancer patients report that they would have greater comfort and courage in facing their future if they were assured they could use a Death with Dignity law if their suffering became unbearable.

Sec. 2.  18 V.S.A. chapter 113 is added to read:

CHAPTER 113.  RIGHTS OF QUALIFIED PATIENTS SUFFERING A TERMINAL CONDITION

§ 5280.  DEFINITIONS

For purposes of this chapter:

(1)  “Attending physician” means the physician who the patient has designated to have primary responsibility for the care of the patient and who is willing to participate in the provision to a qualified patient of medication to hasten his or her death in accordance with this chapter.

(2)  “Capacity” shall have the same meaning as in subdivision 9701(4)(B) of this title.

(3)  “Consulting physician” means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient’s illness and who is willing to participate in the provision of medication to a qualified patient to hasten his or her death in accordance with this chapter.

(4)  “Counseling” means a consultation between a psychiatrist, psychologist, or clinical social worker licensed in Vermont and a patient for the purpose of confirming that the patient: 

(A)  has capacity; and

(B)  is not suffering from impaired judgment.

(5)  “Good faith” shall mean objective good faith.

(6)  “Health care provider” shall have the same meaning as in subdivision 9432(8) of this title.

(7)  “Informed decision” means a decision by a patient to request and obtain a prescription to hasten his or her death based on the patient’s understanding and appreciation of the relevant facts and was made after the patient was fully informed by the attending physician of all the following:

(A)  The patient’s medical diagnosis.

(B)  The patient’s prognosis.

(C)  The range of possible results, including potential risks associated with taking the medication to be prescribed.

(D)  The probable result of taking the medication to be prescribed.

(E)  All feasible end-of-life services, including comfort care, hospice care, and pain control.

(8)  “Patient” means a person who is 18 years of age or older, a resident of Vermont, and under the care of a physician.

(9)  “Physician” means a physician licensed pursuant to chapters 23 and 33 of Title 26.

(10)  “Qualified patient” means a patient with capacity who has satisfied the requirements of this chapter in order to obtain a prescription for medication to hasten his or her death.  No individual shall qualify under the provisions of this chapter solely because of age or disability.

(11)  “Terminal condition” means an incurable and irreversible disease which would, within reasonable medical judgment, result in death within six months.

§ 5281.  REQUESTS FOR MEDICATION

(a)  In order to qualify under this chapter:

(1)  A patient with capacity who has been determined by the attending physician and consulting physician to be suffering from a terminal condition and who has voluntarily expressed a wish to hasten the dying process may request medication to be self-administered for the purpose of hastening his or her death in accordance with this chapter.

(2)  A patient shall have made an oral request and a written request and shall have reaffirmed the oral request to his or her attending physician not less than 15 days after the initial oral request.  At the time the patient makes the second oral request, the attending physician shall offer the patient an opportunity to rescind the request.

(b)  Oral requests for medication by the patient under this chapter shall be made in the presence of the attending physician.

(c)  A written request for medication shall be signed and dated by the patient and witnessed by at least two persons, at least 18 years of age, who, in the presence of the patient, sign and affirm that the principal appeared to understand the nature of the document and to be free from duress or undue influence at the time the request was signed.  Neither witness shall be any of the following persons:

(1)  The patient’s attending physician, consulting physician, or any person who has provided counseling for the patient pursuant to section 5284 of this title.

(2)  A person who knows that he or she is a relative of the patient by blood, marriage, civil union, or adoption.

(3)  A person who at the time the request is signed knows that he or she would be entitled upon the patient’s death to any portion of the estate or assets of the patient under any will, by operation of law, or by contract.

(4)  An owner, operator, or employee of a health care facility, nursing home, or residential care facility where the patient is receiving medical treatment or is a resident.

(d)  A person who knowingly fails to comply with the requirements in subsection (c) of this section is subject to prosecution under section 2004 of Title 13.

(e)  The written request shall be completed after the patient has been examined by a consulting physician as required under section 5283 of this title.

(f)  Under no circumstances shall a guardian or conservator be permitted to act on behalf of a ward for purposes of this chapter.

§ 5282.  ATTENDING PHYSICIAN; DUTIES

The attending physician shall perform all the following:

(1)  Make the initial determination of whether a patient:

(A)  is suffering a terminal condition;

(B)  has capacity; and

(C)  has made a voluntary request for medication to hasten his or her death.

(2)  Request proof of Vermont residency, which may be shown by:

(A)  a Vermont driver’s license or photo identification card;

(B)  proof of Vermont voter’s registration;

(C)  evidence of property ownership or a lease of residential premises in Vermont; or

(D)  a Vermont personal income tax return for the most recent tax year.

(3)  Inform the patient in person and in writing of all the following:

(A)  The patient’s medical diagnosis.

(B)  The patient’s prognosis.

(C)  The range of possible results, including potential risks associated with taking the medication to be prescribed.

(D)  The probable result of taking the medication to be prescribed.

(E)  All feasible end-of-life services, including comfort care, hospice care, and pain control.

(4)  Refer the patient to a consulting physician for medical confirmation of the diagnosis, prognosis, and a determination that the patient has capacity and is acting voluntarily.

(5)  Refer the patient for counseling under section 5284 of this chapter.

(6)  Recommend that the patient notify the next of kin or someone with whom the patient has a significant relationship.

(7)  Counsel the patient about the importance of having another individual present when the patient takes the medication pursuant to this chapter and the importance of not taking the medication in a public place.

(8)  Inform the patient that the patient has an opportunity to rescind the request at any time and in any manner, and offer the patient an opportunity to rescind at the end of the 15-day waiting period.

(9)  Verify, immediately prior to writing the prescription for medication under this chapter, that the patient is making an informed decision.

(10)  Fulfill the medical record documentation requirements of section 5289 of this title.

(11)  Ensure that all required steps are carried out in accordance with this chapter prior to writing a prescription for medication to hasten death.

(12)(A)  Dispense medication directly, including ancillary medication intended to facilitate the desired effect to minimize the patient’s discomfort, provided the attending physician is licensed to dispense medication in Vermont, has a current Drug Enforcement Administration certificate, and complies with any applicable administrative rules; or

(B)  With the patient’s written consent:

(i)  contact a pharmacist and inform the pharmacist of the prescription; and

(ii)  deliver the written prescription to the pharmacist, who will dispense the medication to the patient, the attending physician, or an expressly identified agent of the patient.

(13)  Notwithstanding any other provision of law, the attending physician may sign the patient’s death certificate.   

§ 5283.  MEDICAL CONSULTATION REQUIRED

Before a patient is qualified in accordance with this chapter, a consulting physician shall physically examine the patient, review the patient’s relevant medical records, and confirm in writing the diagnosis of the attending physician that the patient is suffering from a terminal condition and verify that the patient has capacity, is acting voluntarily, and has made an informed decision.

§ 5284.  COUNSELING REFERRAL

No medication to end the patient’s life shall be prescribed until:

(1)  the patient receives counseling as defined in subdivision 5280(4) of this title; and

(2)  the person performing the counseling determines that the patient has capacity and is not suffering from impaired judgment.

§ 5285.  INFORMED DECISION

No person shall receive a prescription for medication to hasten his or her death unless the patient has made an informed decision.  Immediately prior to writing a prescription for medication in accordance with this chapter, the attending physician shall verify that the patient is making an informed decision.

§ 5286.  RECOMMENDED NOTIFICATION

The attending physician shall recommend that the patient notify the patient’s next of kin or someone with whom the patient has a significant relationship of the patient’s request for medication in accordance with this chapter.  A patient who declines or is unable to notify the next of kin or the person with whom the patient has a significant relationship shall not be refused medication in accordance with this chapter.

§ 5287.  RIGHT TO RESCIND

A patient may rescind the request at any time and in any manner regardless of the patient’s mental state.  No prescription for medication under this chapter may be written without the attending physician offering the patient an opportunity to rescind the request.

§ 5288.  WAITING PERIOD

The attending physician shall write a prescription no sooner than 48 hours after all of the following events have occurred:

(1)  the patient’s written request for medication to hasten his or her death;

(2)  the patient’s second oral request; and

(3)  the attending physician’s offering the patient an opportunity to rescind the request.

§ 5289.  MEDICAL RECORD DOCUMENTATION

(a)  The following shall be documented and filed in the patient’s medical record:

(1)  The date and wording of all oral requests of the patient for medication to hasten his or her death.

(2)  All written requests by a patient for medication to hasten his or her death.

(3)  The attending physician’s diagnosis, prognosis, and basis for the determination that the patient has capacity, is acting voluntarily, and has made an informed decision.

(4)  The consulting physician’s diagnosis, prognosis, and verification that the patient has capacity, is acting voluntarily, and has made an informed decision.

(5)  A report of the outcome and determinations made during any counseling which the patient may have received.

(6)  The date and wording of the attending physician’s offer to the patient to rescind the request for medication at the time of the patient’s second oral request.

(7)  A note by the attending physician indicating that all requirements under this chapter have been satisfied and all the steps that have been taken to carry out the request, including a notation of the medication prescribed.

(b)  Medical records compiled pursuant to this chapter shall be subject to discovery only if the court finds that the records are necessary to resolve issues of compliance with or immunity under this chapter.

§ 5290.  REPORTING REQUIREMENT

(a)  The department of health shall require that any physician who writes a prescription pursuant to this chapter file a report with the department covering all the prerequisites for writing a prescription under this chapter.  In addition, physicians shall report the number of written requests for medication that were received, regardless of whether or not a prescription was actually written in each instance.

(b)  The department of health shall annually review the medical records of qualified patients who have hastened their deaths in accordance with this chapter.

(c)  The department of health shall make rules to facilitate the collection of information regarding compliance with this chapter.  Individual medical information collected and reports filed pursuant to subsection (a) of this section shall not be public record and shall not be made available for inspection by the public.

(d)  The department of health shall generate and make available to the public an annual statistical report of information collected under subsections (a) and (b) of this section.  The report shall include the number of instances in which medication was taken by a qualified patient to hasten death but failed to have the intended effect.

§ 5290a.  SAFE DISPOSAL OF UNUSED MEDICATIONS

(a) The department of health shall adopt rules providing for the safe disposal of unused medications prescribed under this chapter. 

(b)  Expedited rulemaking.  Notwithstanding the provisions of chapter 25 of Title 3, the department of health may adopt rules under this section pursuant to the following expedited rulemaking process:

(1)  Within 90 days after the date this act is passed, the department shall file proposed rules with the secretary of state and the legislative committee on administrative rules under 3 V.S.A. § 841 after publication in three daily newspapers with the highest average circulation in the state of a notice that lists the rules to be adopted pursuant to this process and a seven-day public comment period following publication.

(2)  The department shall file final proposed rules with the legislative committee on administrative rules 14 days after the public comment period.

(3)  The legislative committee on administrative rules shall review and may approve or object to the final proposed rules under 3 V.S.A. § 842, except that its action shall be completed no later than 14 days after the final proposed rules are filed with the committee.

(4)  The department may adopt a properly filed final proposed rule after the passage of 14 days from the date of filing final proposed rules with the legislative committee on administrative rules or after receiving notice of approval from the committee, provided the department:

(A)  has not received a notice of objection from the legislative committee on administrative rules; or

(B)  after having received a notice of objection from the committee, has responded pursuant to 3 V.S.A. § 842.

(5)  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 with the secretary of state pursuant to this section shall be deemed to be in full compliance with

3 V.S.A. § 843 and shall be accepted by the secretary of state if filed with a certification by the secretary of human services that a rule is required to meet the purposes of this section.

§ 5291.  PROHIBITIONS; CONTRACT CONSTRUCTION

(a)  No provision in a contract, will, or other agreement, whether written or oral, shall be valid, to the extent the provision would affect whether a person may make or rescind a request for medication to hasten his or her death in accordance with this chapter.

(b)  The sale, procurement, or issue of any life, health, or accident insurance or annuity policy or the rate charged for any policy shall not be conditioned upon or affected by the making or rescinding of a request by a person for medication to hasten his or her death in accordance with this chapter or the act by a qualified patient to hasten his or her death pursuant to this chapter.  Neither shall a qualified patient’s act of ingesting medication to hasten his or her death have an effect on a life, health, or accident insurance or annuity policy.

§ 5292.  IMMUNITIES

(a)  No person shall be subject to civil or criminal liability or professional disciplinary action for actions taken in good faith reliance on the provisions of this chapter.  This includes being present when a qualified patient takes the prescribed medication to hasten his or her death in accordance with this chapter.

(b)  No professional organization or association or health care provider may subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership, or other penalty for actions taken in good faith reliance on the provisions of this chapter or refusals to act under this chapter.

(c)  No provision by an attending physician of medication in good faith reliance on the provisions of this chapter shall constitute patient neglect for any purpose of law.

(d)  No request by a patient for medication under this chapter shall provide the sole basis for the appointment of a guardian or conservator.

(e)  No health care provider shall be under any duty, whether by contract, by statute, or by any other legal requirement, to participate in the provision to a qualified patient of medication to hasten his or her death in accordance with this chapter.  If a health care provider is unable or unwilling to carry out a patient’s request in accordance with this chapter and the patient transfers his or her care to a new health care provider, the previous health care provider, upon request, shall transfer a copy of the patient’s relevant medical records to the new health care provider.  A decision by a health care provider not to participate in the provision of medication to a qualified patient shall not constitute the abandonment of the patient or unprofessional conduct under section 1354 of Title 26.

§ 5293.  HEALTH CARE FACILITY EXCEPTION

Notwithstanding any other provision of law, a health care facility may prohibit an attending physician from writing a prescription for medication under this chapter for a patient who is a resident in its facility and intends to use the medication on the facility’s premises, provided the facility has notified the attending physician in writing of its policy with regard to such prescriptions.  Notwithstanding subsection 5292(b) of this title, any health care provider who violates a policy established by a health care facility under this section may be subject to sanctions otherwise allowable under law or contract.

§ 5294.  LIABILITIES AND PENALTIES

(a)  With the exception of the immunities established by section 5292 of this title and with the exception of the provisions of section 5296 of this title, nothing in this chapter shall be construed to limit liability for civil damages resulting from negligent conduct or intentional misconduct by any person.

(b)  With the exception of the immunities established by section 5292 of this title and with the exception of the provisions of section 5296 of this title, nothing in this chapter or in section 2312 of Title 13 shall be construed to limit criminal prosecution under any other provision of law.

(c)  A health care provider is subject to review and disciplinary action by the appropriate licensing entity for failing to act in accordance with this chapter, provided such failure is not in good faith.

§ 5295.  FORM OF THE WRITTEN REQUEST

A written request for medication as authorized by this chapter shall be substantially in the following form:

REQUEST FOR MEDICATION

TO HASTEN MY DEATH

I, ___________________ , am an adult of sound mind.

I am suffering from _______________, which my attending physician has determined is a terminal disease and which has been confirmed by a consulting physician.

I have been fully informed of my diagnosis, prognosis, the nature of medication to be prescribed and potential associated risks, the expected result, and the feasible end-of-life services, including comfort care, hospice care, and pain control.

I request that my attending physician prescribe medication that will hasten my death.

INITIAL ONE:

_____ I have informed my family or others with whom I have a significant relationship of my decision and taken their opinions into consideration.

_____ I have decided not to inform my family or others with whom I have a significant relationship of my decision.

_____ I have no family or others with whom I have a significant relationship to inform of my decision.

I understand that I have the right to change my mind at any time.

I understand the full import of this request, and I expect to die when I take the medication to be prescribed.  I further understand that although most deaths occur within three hours, my death may take longer, and my physician has counseled me about this possibility.

I make this request voluntarily and without reservation, and I accept full moral responsibility for my actions.

Signed: _________________________ Dated: ____________

AFFIRMATION OF WITNESSES

We affirm that, to the best of our knowledge and belief:

(a)  that the person signing this request:

(1)  is personally known to us or has provided proof of identity;

(2)  signed this request in our presence;

(3)  appears to understand the nature of the document and to be free from duress or undue influence at the time the request was signed; and

(b)  that neither of us:

(1)  is under 18 years of age;

(2)  is a relative (by blood, marriage, civil union, or adoption) of the person signing this request;

(3)  is the patient’s attending physician, consulting physician, or a person who has provided counseling for the patient pursuant to section 5284 of this title;

(4)  is entitled to any portion of the person’s assets or estate upon death; or

(5)  owns, operates, or is employed at a health care facility where the person is a patient or resident.

Witness 1/Date ______________________________________

Witness 2/Date ______________________________________

NOTE:  A knowingly false affirmation by a witness may result in criminal penalties.

§ 5296.  STATUTORY CONSTRUCTION

Nothing in this chapter shall be construed to authorize a physician or any other person to end a patient’s life by lethal injection, mercy killing, or active euthanasia.  Action taken in accordance with this chapter shall not be considered tortious under law, and shall not be construed for any purpose to constitute suicide, assisted suicide, mercy killing, or homicide under the law. 

Sec. 3.  13 V.S.A. § 2312 is added to read:

§ 2312.  Violation of PATIENT CHOICE AND CONTROL AT END OF

       LIFE ACT

A person who violates chapter 113 of Title 18 with the intent to cause the death of a qualified patient as defined in subdivision 5280(9) of that title shall be prosecuted under chapter 53 of this title (homicide).

Sec. 4.  13 V.S.A. § 2004 is added to read:

§ 2004.  FALSE WITNESSING

A person who knowingly violates the requirements of subsection 5281(c) of Title 18 shall be imprisoned for not more than 10 years or fined not more than $2,000.00, or both.

Sec. 5.  EFFECTIVE DATE

This act shall take effect on September 1, 2007.

 (Committee vote: 6-4-1)

H. 73

     An act relating to water management types for state waters.

Rep. Deen of Westminster, for the Committee on Fish, Wildlife and Water Resources, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

The general assembly finds and declares that:

(1)  It is the settled policy of the state as set forth in section 1250 of this title to protect and enhance the existing quality, character, and usefulness of surface water and to seek over the long term to upgrade the quality of the surface waters of the state.

(2)  The adoption of any water management types within the classifications of state surface waters shall conform to the state water policy.

(3)  During the process preceding adoption of revised basin plans for the state, the secretary of natural resources shall maximize public participation and public input in a manner consistent with the department of conservation’s 2004 Vermont watershed initiative guidelines for watershed planning.

(4)  Basin plans or water management type designations and redesignations proposed by the agency of natural resources shall include sufficient information and documentation to ensure transparency regarding agency decision-making.

(5)  The agency of natural resources is expected to and should strive to update all 17 basin plans for the state by the 2010 deadline authorized by this act.

Sec. 2.  10 V.S.A. § 1251a(c) is added to read:

(c)  The secretary of natural resources shall propose for point source discharges to state waters an implementation process for the antidegradation policy of the water quality standards of the state and shall seek the concurrence of the water resources panel of the board prior to initiating rulemaking for adoption of an implementation process.

Sec. 3.  10 V.S.A. § 1253(d) is amended to read:

(d)  The board shall determine what degree of water quality and classification should be obtained and maintained for those waters not classified by it before 1981 following the procedures in sections 1254 and 1258 of this title.  Those waters shall be classified in the public interest.  The secretary shall revise all 17 basin plans by January 1, 2006 December 31, 2010, and update them every five years thereafter.  Prior to July 1, 2008, the secretary may adopt revised basin plans without including proposals for water management types in Class B waters to ensure that the strategies to improve and restore waters contained in the basin plans are available to the people of the state.  On or before January 1 15 of each year, the secretary shall report to the house committees on agriculture and natural resources and energy on fish, wildlife and water resources and to the senate committees on agriculture and on natural resources and energy regarding the progress made and difficulties encountered in revising basin plans.  By January 1, 1993, the secretary shall prepare an overall management plan to ensure that the water quality standards are met in all state waters.

Sec. 4.  EFFECTIVE DATE

This act shall take effect upon passage.

(Committee vote: 9-0-0)

H. 154

     An act relating to relating to stormwater management.

Rep. Shaw of Derby, for the Committee on Fish, Wildlife and Water Resources, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  10 V.S.A. § 1264(f) is amended to read:

(f)(1)  In a stormwater-impaired water, the secretary may issue:

(A)  An individual permit in a stormwater-impaired water for which no TMDL, water quality remediation plan, or watershed improvement permit has been established or issued, provided that the permitted discharge meets the discharge standard set by rule;

(B)  A watershed improvement permit, provided that the watershed improvement permit provides reasonable assurance of compliance with the Vermont water quality standards in five years;

(C)  A general or individual permit that is implementing a TMDL or water quality remediation plan; or

(D)  A statewide general permit for new discharges that the secretary deems necessary to assure attainment of the Vermont water quality standards.

(2)  An authorization to discharge regulated stormwater runoff pursuant to a permit issued under this subsection shall be valid for a time period not to exceed five years.  A person seeking to discharge regulated stormwater runoff after the expiration of that period shall obtain an individual permit or coverage under a general permit, whichever is applicable, in accordance with subsection 1263(e) of this title.

(3)  By September 30, 2007 January 15, 2010, the secretary shall issue a watershed improvement permit, submit a TMDL to the EPA for approval issue a general or individual permit implementing a TMDL approved by the EPA, or establish issue a general or individual permit implementing a water quality remediation plan for each of the stormwater-impaired waters on the Vermont Year 2004 Section 303(d) List of Waters required by 33 U.S.C.

§ 1313(d).  In developing a TMDL or a water quality remediation plan for a stormwater-impaired water, the secretary shall consult “A Scientifically Based Assessment and Adaptive Management Approach to Stormwater Management” and “Areas of Agreement about the Scientific Underpinnings of the Water Resources Board’s Original Seven Questions” set out in appendices A and B, respectively, of the final report of the water resources board’s “Investigation Into Developing Cleanup Plans For Stormwater Impaired Waters, Docket No. Inv-03-01,” issued March 9, 2004.  Beginning January 30, 2005 and until a watershed improvement permit, a general or individual permit implementing a TMDL, or a general or individual permit implementing a water quality remediation plan is set for each of the stormwater-impaired waters on the Vermont Year 2004 Section 303(d) List of Waters required by 33 U.S.C. § 1313(d), the secretary shall report annually to the general assembly on agency progress in establishing the watershed improvement permits, TMDLs, and water quality remediation plans for the stormwater-impaired waters of the state; on the accuracy of assessment and environmental efficacy of any stormwater impact fee paid to the state stormwater-impaired waters restoration fund; and on the efforts by the secretary to educate and inform owners of real estate in watersheds of stormwater-impaired waters regarding the requirements of the state stormwater law.

Sec. 2.  27 V.S.A. § 613(e) is amended to read:

(e)  This section shall not apply to any impaired watershed for which the secretary of natural resources has issued a watershed improvement permit, submitted issued an individual permit under a total maximum daily load approved by the U.S. Environmental Protection Agency, issued a general permit implementing a total maximum daily load to approved by the U.S. Environmental Protection Agency, or established issued a general or individual permit implementing a water quality remediation plan.

Sec. 3.  EXTENSION OF SUNSET OF INTERIM STORMWATER
 PERMITTING PROGRAM AND CONVEYANCE OF REAL
 ESTATE WITH STORMWATER PERMITS

Sec. 10 of No. 140 of the Acts of the 2003 Adj. Sess. (2004), as amended by Sec. 8 of No. 154 of the Acts of the 2005 Adj. Sess. (2006), is further amended to read:

Sec. 10.  SUNSET

(a)  Sec. 2 of this act (interim permitting authority for regulated stormwater runoff), except for subsection 1264a(e) of Title 10, shall be repealed on September 30, 2007 January 15, 2010.

(b)  Sec. 4 of this act (local communities implementation fund) shall be repealed on September 30, 2012.

(c)  Sec. 6 of this act (stormwater discharge permits during transition period) shall be repealed on September 30, 2007 January 15, 2010.

Sec. 4.  AGENCY OF NATURAL RESOURCES REPORT ON IMPLEMENTATION OF STORMWATER TMDLS

Beginning January 15, 2009, and every two years thereafter, the agency of natural resources’ report required under 10 V.S.A. § 1264(f)(3) regarding agency progress in establishing watershed improvement permits, TMDLs, or water quality remediation plans for the stormwater‑impaired waters of the state shall include a review and analysis of the effectiveness of any TMDL implemented by the agency of natural resources for a stormwater impaired water of the state.  Prior to issuing the report required under this section, the agency of natural resources shall hold a public hearing in each watershed of a stormwater impaired water for which a permit has been issued implementing a total maximum daily load.  The review and analysis required by this section shall include:

(1)  An assessment of the implementation plan for the TMDL based on available data, including an evaluation of the efficacy of the implementation plan;

(2)  An assessment of the hydrologic targets of the TMDL based on available data, including an evaluation of the adequacy of the hydrologic targets of the TMDL;

(3)  Recommendations, if any, for amending an implementation plan or reopening a TMDL.

(Committee vote: 9-0-0)

H. 175

     An act relating to increasing funeral benefits under workers’ compensation.

Rep. Baker of West Rutland, for the Committee on General, Housing and Military Affairs, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  21 V.S.A. § 639 is amended to read:

§ 639.  -DEATH,; PAYMENT TO DEPENDENTS

In cases of the death of a person from any cause other than the accident during the period of payments for disability or for the permanent injury, the remaining payments for disability then due or for the permanent injury shall be made to the person's dependents according to the provisions of sections 635 and 636 of this title, or if there are none, the remaining amount due, but not exceeding $5,500.00 $10,000.00 for burial and funeral expenses and expenses for out-of-state transportation of the decedent to the place of burial not to exceed $1,000.00, shall be paid in a lump sum to the proper person.

(Committee vote: 7-0-0)

H. 332

     An act relating to sale and closure of mobile home parks.

Rep. Trombley of Grand Isle, for the Committee on General, Housing and Military Affairs, recommends the bill be amended by adding Secs. 1a and 3a to read as follows:

Sec. 1a.  10 V.S.A. § 6236(c), (d), and (e) are amended to read:

(c)  A prospective resident shall be furnished with a copy of the proposed lease prior to any agreement to lease or occupy a mobile home lot, and upon acceptance of the lease terms the lease shall be signed by the lessor and lessee. Any provision in a lease governing rental and utility charges shall be effective for a minimum of one year, except in the case of a new tenant in a mobile home park in which there is a uniform rent schedule which affects all lots in that park simultaneously.  The initial lease for a new tenant may include the anticipated increase in the rent and utility charge at the time it occurs for the other lots.  A mobile home park owner shall provide residents with a minimum of 60 days notice prior to any rent increase.  Rent increase notices shall not be given within six months prior to the issuance of a closure notice or any time during which the closure notice is in effect.  All increases in rent received by the mobile home park owner during the six months prior to the issuance of a closure notice shall be returned to the affected residents within seven days of issuance of the closure notice.  This subsection shall not apply to proprietary leases in mobile home parks owned by limited equity housing cooperatives established under chapter 14 of Title 11.  The rental and utility charge may be increased during a year if the operating expenses of the park increase 20 percent or more during that year as the result of legislative action taken during that year and the increase could not have been anticipated.  The rental and utility charge may be increased during a year only to the extent necessary to cover the increase in operating expenses of the park.

(d)  No person shall sublease a mobile home resident may sublet the resident's mobile home without the express permission or a lot in a mobile home park without first obtaining the approval of the park owner, which shall not be unreasonably withheld.  A violation of this subsection shall be grounds for eviction.

(e)  All mobile home leases shall contain the following:

* * *

(5)  The requirement of to obtain permission, if any, from the park owner for subletting a mobile home or a lot to another person.

* * *

Sec. 3a.  10 V.S.A. § 6240 is amended to read:

§ 6240.  SALE OF HOMES LOCATED IN PARKS

(a)  No person shall purchase a mobile home in a mobile home park without first obtaining approval from the park owner which shall not be unreasonably withheld.  A violation of this section shall be grounds for eviction.

(b)  Prior to selling a mobile home located in a mobile home park, the mobile home owner shall notify the park owner by certified or registered mail of the name of the prospective purchaser.  The seller may be held liable by the purchaser or prospective purchaser for failure to comply with this section.

(b)(c)  A purchaser or prospective purchaser of a mobile home located in a park shall not be refused entrance if the purchaser and his the purchaser’s household qualify under the lease terms admission policy of the park.  Upon approval for entrance into the mobile home park, the purchaser or prospective purchaser shall be offered a written lease pursuant to section 6236 of this title.

(c)(d)  A park owner shall not charge or collect any commission on the sale of a mobile home located in a park unless he the park owner contracts to sell the home.

(Committee vote: 7-0-0)

H. 353

     An act relating to employee free choice for bargaining representative.

Rep. Head of South Burlington, for the Committee on General, Housing and Military Affairs, recommends the bill be amended in Sec. 1, 3 V.S.A. §941(g) on page two beginning by striking subdivision (4) in its entirety and inserting in lieu thereof the following:

(4)  Notwithstanding subdivisions (1), (2), and (3) of this subsection, if the board determines that the petition filed bears the signatures of 50 percent plus one or more of the employees in the bargaining unit deemed appropriate by the board, it shall certify the petitioner as the bargaining representative.  Certification under this subdivision applies only when no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit.  The board shall develop policies and procedures to implement this subdivision.

(Committee vote: 4-3-0)

H. 372

     An act relating to the rendering of nursing and medical services by professional corporations.

Rep. Jerman of Essex, for the Committee on Government Operations, recommends the bill be amended in Sec. 2, 26 V.S.A. § 1585, by striking “as an advanced practice registered nurse” and inserting in lieu thereof to practice registered or licensed practical nursing.

(Committee Vote: 11-0-0)

Favorable

H. 149

     An act relating to liquor identification and tobacco licenses.

     Rep. Wright of Burlington, for the Committee on General, Housing, and Military Affairs, recommends the bill ought to pass.

(Committee Vote: 7-0-0)

NOTICE CALENDAR

Committee Bills for Second Reading

H. 521

     An act relating to miscellaneous substantive tax amendments.

     (Rep. Obuchowski of Rockingham will speak for the Committee on Ways and Means.

H. 522

     An act relating to the viability of Vermont agriculture.

     (Rep. Zuckerman of Burlington will speak for the committee on Agriculture.

Favorable with Amendment

H. 248

     An act relating to the establishment of the Vermont Telecommunications Authority to advance broadband and wireless communications infrastructure throughout the state..

Rep. Shand of Weathersfield, for the Committee on Commerce, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

* * * Vermont Telecommunications Authority * * *

Sec. 1.  30 V.S.A. chapter 91 is added to read:

CHAPTER 91.  VERMONT TELECOMMUNICATIONS AUTHORITY

§ 8060.  LEGISLATIVE FINDINGS AND PURPOSE

     (a)  The general assembly finds that:

          (1)  The availability of mobile telecommunications and broadband services is essential for promoting the economic development of the state, the education of its young people and life-long learning, the delivery of cost-effective health care, the public safety, and the ability of citizens to participate fully in society and civic life.

          (2)  Private entities have brought mobile telecommunications and broadband services to many households, businesses and locations in the state, but significant gaps remain.

          (3)  A new level of creative and innovative strategies (including partnerships and collaborations among and between state entities, municipalities, the federal government and the private sector) is necessary to extend and complete broadband coverage in the state.

          (4)  When such partnerships and collaborations fail to achieve the goal of providing high-quality broadband access and service to all areas and households, it is necessary for an authority of the state to support and facilitate the construction of infrastructure and access to broadband service through financial and other incentives.

(5)  The universal availability of adequate mobile telecommunications and broadband services promotes the general good of the state.

     (b) Therefore, it is the goal of the general assembly to ensure:

(1)  that all residences and business in all regions of the state have access to affordable broadband services not later than the end of the year 2010;

(2)  the ubiquitous availability of mobile telecommunication services including voice and high-speed data throughout the state by the end of the year 2010; and

(3)  the continued investment in telecommunications infrastructure in the state which will support the best available and economically feasible technology.

§ 8061.  ESTABLISHMENT OF AUTHORITY; ORGANIZATION

(a)  The Vermont telecommunications authority is hereby created and established as a body corporate and politic and a public instrumentality of the state.  The exercise by the authority of the powers conferred upon it in this chapter constitutes the performance of essential governmental functions.

(b)  The authority shall have a board of directors of nine members selected as follows:

(1)  the state treasurer or his or her designee;

(2)  the commissioner of the department of information and innovation;

(3)  two at-large members appointed by the speaker of the house, who may not be members of the general assembly at the time of appointment;

(4)  two at-large members appointed by the committee on committees of the senate, who may not be members of the general assembly at the time of appointment;

     (5)  two at-large members appointed by the governor, who may not be employees or officers of state government at the time of appointment; and

     (6)  one member appointed jointly by the governor, the speaker of the house, and the president pro tempore of the senate, who shall be chair of the board of directors, and who may not be a member of the general assembly or an employee or officer of the state at the time of appointment.

(c)  In making appointments of at-large members and the chair, the appointing authorities shall give consideration to citizens of the state with knowledge of telecommunications technology, telecommunications regulatory law, finance, and environmental permitting.  The six at-large members and the chair shall serve terms of four years beginning July 1 of the year of appointment.  However, one of the at-large members first appointed by the speaker, one of the at large members first appointed by the president pro tempore and one of the at large members first appointed by the governor shall serve an initial term of two years. Any vacancy occurring among the at large members or the chair shall be filled by the respective appointing authority and be filled for the balance of the unexpired term.  A member may be reappointed.

(c)  The authority shall employ an executive director who shall serve as the authority’s chief administrative officer and shall direct and supervise the authority’s administrative affairs and technical activities in accordance with any rules, regulations, and policies set forth by the authority.  In addition to any other duties, the executive director shall:

(1)  Attend all meetings of the authority, act as its secretary, and keep minutes of its proceedings;

(2)  Approve all accounts of the authority, including but not limited to accounts for salaries, per diems, and allowable expenses of any employee or consultant thereof and expenses incidental to the operation of the authority;

(3)  Make an annual report to the authority documenting the actions of the authority and such other reports as the authority may request;

(4)  Perform such other duties as may be directed by the authority in the carrying out of the purposes of this chapter.

(d)  Except for those members otherwise regularly employed by the state, the compensation of the authority’s members shall be the same as that provided by 32 V.S.A. § 1010(a).  All members of the authority, including those members otherwise regularly employed by the state, shall receive their actual and necessary expenses when away from home or office upon their official duties.

§ 8062.  PURPOSE; POWERS AND DUTIES

(a)  The authority shall ensure that the goals of the general assembly, set out in subsection 8060(b) of this title, to provide all residences and businesses in all regions of the state with access to affordable broadband services and to ensure the ubiquitous availability of mobile voice and high-speed data telecommunications services are achieved not later than the end of the year 2010;

(b)  To achieve these goals, the authority is directed to:

(1)  develop and maintain an inventory of locations at which mobile telecommunications and broadband services are not available within the state, and develop and maintain an inventory of infrastructure necessary for provision of these services to the areas unserved;

(2)  identify the types and locations of infrastructure and services needed to accomplish the goals of this chapter;

(3)  coordinate the agencies of the state to make public resources available to support the extension of mobile telecommunications and broadband infrastructure and services to all unserved areas;

(4)  coordinate and establish public-private partnerships to extend availability of mobile telecommunications and broadband services, and to promote development of the infrastructure that enables the provision of these services;

(5)  support and facilitate local initiatives to extend the availability of mobile telecommunications and broadband services, and to promote development of the infrastructure that enables the provision of these services; and

     (6)  provide resources to local, regional, public and private entities in the form of loans, grants, and other incentives funded through bonded capital and other resources.

(c)  The authority shall have the following powers and duties, which shall be exercised to further the authority’s purpose, and shall have all other powers necessary to carry out the duties imposed on the authority by law:

(1)  to establish partnerships and contracts with providers of telecommunications services and related facilities to serve unserved people and areas of the state; and to provide financial and other assistance to providers who agree in return to provide mobile telecommunications or broadband services to unserved people and areas of the state; and to facilitate directly or indirectly the efforts of other entities to advance the availability of mobile voice and high speed data or broadband services.

(2)  to provide financial assistance in the form of loans, grants, guarantees, other financial instruments, or, in accordance with section 8064 of this title, to issue bonds backed by project revenues, the state, or its political subdivisions, or both, for the purpose of building infrastructure capable of delivering mobile telecommunications and broadband services to all Vermonters;

(3)  to consult, contract, or partner with the Vermont economic development authority and the Vermont municipal bond bank to provide financial assistance for purposes authorized by this chapter; and to coordinate access to and pursue all state, federal and private funding that is available for telecommunications infrastructure and to contract with financial assistance providers;

(4)  to receive and accept grants, gifts, loans, or contributions from any source subject to the provisions of 32 V.S.A. § 5.

(5)  to incorporate one or more nonprofit corporations in Vermont to fulfill the goals of this chapter.  Such corporations shall be empowered to borrow money and to receive and accept gifts, grants, or contributions from any source, subject to the provisions of 32 V.S.A. § 5.  The board of directors of the any nonprofit corporation created under this subsection shall be the board of directors of the authority.  The corporation shall be organized and operate under the nonprofit corporation laws of the state of Vermont.  The authority may contract with the corporation to provide staff and management needs of the corporation;

(6)  to aggregate and broker access at reduced prices to services and facilities required to provide wireless telecommunications and broadband services;  and to waive or reduce state fees for access to state‑owned rights‑of‑way in exchange for comparable value to the state, unless payment for use is otherwise required by federal law;

(7)  to own, acquire, sell, trade, and lease equipment, facilities, and other infrastructure that could be accessed and used by multiple service providers, the state, and local governments, including fiber optic cables, towers, shelters, easements, rights‑of‑way, and wireless spectrum or frequencies;

(8)  in collaboration with the Vermont municipal bond bank, to act as agent and advisor for municipalities that wish to offer municipally backed financial assistance, consistent with chapter 53 of Title 24, to develop telecommunications infrastructure or services in their communities;

(9)  to apply for and obtain required permits for the construction of telecommunications infrastructure;

(10)  in collaboration with the agency of administration, to lead the management of marketing of state properties to encourage and expedite collocation of infrastructure;

(11)  to consult with agencies and departments on establishing charges or payments for use by wireless telecommunications and broadband service providers of state property, easements, and rights‑of‑way to the extent such charges or payments are required by law, and establish the criteria for waiver of such charges or payments when providers offer to furnish comparable value to the state to meet the public good;

(12)  to sue and be sued in its own name and plead and be impleaded;

(13)  to administer its own funds and to invest or deposit funds which are not needed currently to meet the obligations of the authority; and

(14)  to borrow money and give other evidence of indebtedness or obligations and security consistent with the authority’s purpose and needs.

(c)  Nothing in this chapter shall be construed to grant power to the authority to offer the sale of telecommunications services to the public. 

§ 8063.  INTERAGENCY COOPERATION AND ASSISTANCE

(a)  Other departments and agencies of state government shall assist and cooperate with the authority and shall make available to it information and data as needed to assist the authority in carrying out its duties. The secretary of administration shall establish protocols and agreements among the authority and departments and agencies of the state for this purpose.  Nothing in this section shall be construed to waive any privilege or protection otherwise afforded to the data and information under exemptions to the public records act or under other laws due solely to the fact that the information or data is shared with the authority pursuant to this section. 

(b)  With the consent of the governor, and under terms and conditions of transfer approved by the governor, a state agency shall transfer ownership and control to the authority of the agency’s interest in any telecommunications facility designated by the authority as appropriate to assist the authority in meeting its statutory purposes.  “Telecommunications facility” includes antennae, towers and other support structures, wires and cables, and other equipment.

(c) To the extent that the authority issues loans, it shall consult and coordinate lending programs with the Vermont economic development authority and with the Vermont municipal bond bank and shall ensure that the lending activities of the authority and the Vermont economic development authority and Vermont municipal bond bank are not in competition. 

(d) No instrumentality of the state shall sell, lease, or otherwise divest itself of ownership or control of radio frequency spectrum without prior notice to and approval of the authority.  

§ 8064.  BONDS AND NOTES

(a)(1)  The authority may issue its negotiable notes and bonds in such principal amount as the authority determines to be necessary to provide sufficient funds for achieving any of its corporate purposes, including the payment of interest on notes and bonds of the authority, establishment of reserves to secure the notes and bonds including the reserve funds created under section 8065 of this title, and all other expenditures of the authority incident to and necessary or convenient to carry out its corporate purposes and powers.  However, the bonds or notes of the authority outstanding at any one time shall not exceed $40,000,000.00.  No bonds shall be issued under this section without the prior approval of the governor and the state treasurer or their respective designees.

(2)  The authority shall have the power, from time to time, to issue bonds and notes, to renew, defease, and refund notes and bonds to pay bonds and notes, including the interest thereon, and, whenever it deems refunding expedient, to refund any bonds by the issuance of new bonds, whether the bonds and notes to be refunded have or have not matured, and to issue bonds and notes partly to refund bonds then outstanding and partly for any of its corporate purposes.

(3)  Except as may otherwise be expressly provided by resolution of the authority, every issue of its notes and bonds shall be general obligations of the authority payable out of any revenues or moneys of the authority, subject only to any agreements with the holders of particular notes or bonds pledging any particular revenues.

(b)  The notes and bonds shall be authorized by resolution or resolutions of the authority, shall bear such date or dates and shall mature at such time or times as the resolution or resolutions may provide, except that no bond shall mature more than 30 years from the date of its issue.  The bonds may be issued as serial bonds or as term bonds or as a combination thereof.  The notes and bonds shall bear interest at such rate or rates or the manner of determining such rate or rates, as provided in sections 1881-1887 of Title 24, be in such denominations, be in such form, either coupon or registered, carry such registration privileges, be executed in such manner, be payable in such medium of payment, at such place or places within or without the state, and be subject to such terms of redemption as the resolution or resolutions may provide; provided, however, that at the time of the authorization of the issuance of such bonds or notes the authority determines in such resolution that the authority will derive receipts, revenues, or other income from the facilities or projects to be financed with the proceeds of such bonds or notes sufficient to provide, together with all other available receipts, revenues, and income of the authority, for the payment of such bonds or notes and the payment of all costs and expenses incurred by the authority with respect to the program or purpose for which such bonds or notes are issued and all other expenses of the authority incurred under this title.  The notes and bonds of the authority may be sold by the authority at public or private sale, at such price or prices as the authority shall determine.

(c)  Any resolution or resolutions authorizing any notes or bonds or any issue thereof may contain provisions, which shall be a part of the contract or contracts with the holders thereof, as to:

(1)  pledging all or any part of the revenues of the authority to secure the payment of the notes or bonds or of any issue thereof, subject to such agreements with note holders or bondholders as may then exist;

(2)  pledging all or any part of the assets of the authority to secure the payment of the notes or bonds or of any issue of notes or bonds, subject to such agreements with note holders or bondholders as may then exist;

(3)  the use and disposition of the revenues of the authority and payments upon other obligations held by the authority;

(4)  the setting aside of reserves or sinking funds and the regulation and disposition thereof;

(5)  limitations on the purpose to which the proceeds of sale of notes or bonds may be applied and pledging the proceeds to secure the payment of the notes or bonds or of any issue thereof;

(6)  limitations on the issuance of additional notes or bonds; the terms upon which additional notes or bonds may be issued and secured; and the refunding of outstanding or other notes or bonds;

(7)  the procedure, if any, by which the terms of any contract with note holders or bondholders may be amended or abrogated, the amount of notes or bonds the holders of which must consent thereto, and the manner in which consent may be given;

(8)  limitations on the amount of moneys to be expended by the authority for operating expenses of the authority;

(9)  vesting in a trustee or trustees, within or without the state, such property, rights, powers, and duties in trust as the authority may determine, which may include any or all of the rights, powers, and duties of the trustee appointed by the bondholders pursuant to this chapter and limiting or abrogating the right of the bondholders to appoint a trustee under this chapter or limiting the rights, powers, and duties of the trustee;

(10)  defining the acts or omissions to act that shall constitute a default in the obligations and duties of the authority to the holders of the notes or bonds and providing for the rights and remedies of the holders of the notes or bonds in the event of such default, including as a matter of right the appointment of a receiver; provided, however, that the rights and remedies shall not be inconsistent with the general laws of the state and other provisions of this chapter; and

(11)  any other matters, of like or different character, which in any way affect the security or protection of the holders of the notes or bonds.

(d)  Any pledge made by the authority shall be valid and binding from the time when the pledge is made; the revenues, moneys, or property so pledged and thereafter received by the authority shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act; and such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract, or otherwise against the authority, irrespective of whether such parties have notice thereof.

(e)  Bonds, notes, and other obligations authorized under this chapter may, in the discretion of the authority, be issued with such terms as will cause the interest thereon to be subject to federal income taxation.  To the extent required for the sale of the obligations, the authority may register such obligations under applicable federal and state securities laws.  No person executing any bonds, notes, and other obligations issued by the authority or others under authority of this chapter shall be subject to any personal liability or accountability by reason of the issuance thereof.  The authority shall indemnify any person who shall have served as a member, officer, or employee of the authority against financial loss or litigation expense arising out of or in connection with any claim or suit involving allegations that pecuniary harm has been sustained as a result of any transaction authorized by this chapter, unless such person is found by a final judicial determination not to have acted in good faith and for a purpose that the person reasonably believed to be lawful and in the best interest of the authority.

(f)  The authority, subject to such agreements with note holders or bondholders as may then exist, shall have power out of any funds available therefore to purchase notes or bonds of the authority, which shall thereupon be cancelled, at a price not exceeding:

(1)  if the notes or bonds are then redeemable, the redemption price then applicable plus accrued interest to the next interest payment thereon; or

(2)  if the notes or bonds are not then redeemable, the redemption price applicable on the first date after such purchase upon which the notes or bonds become subject to redemption plus accrued interest to such date.

(g)  In the discretion of the authority, the notes or bonds may be secured by a trust indenture by and between the authority and a corporate trustee, which may be any trust company or bank having the power of a trust company within or without the state.  The trust indenture may contain such provisions for protecting and enforcing the rights and remedies of the note holders or bondholders as may be reasonable and proper and not in violation of law, including covenants setting forth the duties of the authority in relation to the exercise of its corporate powers and the custody, safeguarding, and application of all moneys.  The authority may provide by such trust indenture for the payment of the proceeds of the notes or bonds and the revenues to the trustee under such trust indenture or other depository and for the method of disbursement thereof, with such safeguards and restrictions as it may determine.  All expenses incurred in carrying out the trust indenture may be treated as a part of the operating expenses of the authority.  If the notes or bonds shall be secured by a trust indenture, the note holders and bondholders shall have no authority to appoint a separate trustee to represent them.

(h)  Any law to the contrary notwithstanding, a bond or note issued under this chapter is fully negotiable for all purposes of sections 1–101 et seq. of Title 9A, and each holder or owner of a bond or note or of any coupon appurtenant thereto, by accepting the bond or note or coupon, shall be conclusively deemed to have agreed that the bond, note, or coupon is fully negotiable for those purposes.

(i)  Any provision of this chapter or of any other law or any recitals in any bonds or notes issued under this chapter to the contrary notwithstanding, all bonds, notes, and interest coupons appertaining thereto issued by the authority shall have and are hereby declared to have all the qualities and incidents, including negotiability, of investment securities under sections 1–101 et seq. of Title 9A, but no provision of those sections respecting the filing of a financing statement to perfect a security interest shall be applicable to any security interest created in connection with the issuance of the bonds, notes, or coupons.

(j)  In case any of the members, executive director, or officers of the authority whose signatures appear on any notes or bonds or coupons shall cease to be members, executive director, or officers before the delivery of such notes or bonds, the signatures shall, nevertheless, be valid and sufficient for all purposes, the same as if such members, executive director, or officers had remained in office until such delivery.

(k)  The authority may enter into one or more agreements for the exchange of interest rates, cash flows, or payments to reduce net borrowing costs, to achieve desirable net effective interest rates in connection with its issuance and sale of debt obligations, and to provide for an efficient means of debt management.

§ 8065.  RESERVE FUNDS

(a)  The authority may create and establish one or more special funds, herein referred to as “debt service reserve funds,” and shall pay into each such debt service reserve fund:

(1)  any moneys appropriated and made available by the state for the purpose of such fund;

(2)  any proceeds of the sale of notes or bonds, to the extent provided in the resolution or resolutions of the authority authorizing the issuance thereof; and

(3)  any other moneys which may be made available to the authority for the purpose of such fund from any other source or sources.

(b)  All moneys held in any debt service reserve fund, except as hereinafter provided, shall be used, as required, solely for the payment of the principal of bonds secured in whole or in part by such fund or of the sinking fund payments hereinafter mentioned with respect to such bonds, the purchase or redemption of such bonds, the payment of interest on such bonds or the payment of any redemption premium required to be paid when such bonds are redeemed prior to maturity; provided, however, that moneys in any such fund shall not be withdrawn therefrom at any time in such amount as would reduce the amount of such fund to less than the debt service reserve requirement established by resolution of the authority for such fund as hereafter provided except for the purpose of making with respect to bonds secured in whole or in part by such fund payments, when due, of principal, interest, redemption premiums, and the sinking fund payments hereinafter mentioned for the payment of which other moneys of the authority are not available.  Any income or interest earned by, or increment to, any debt service reserve fund due to the investment thereof may be transferred by the authority to other funds or accounts of the authority to the extent it does not reduce the amount of such debt service reserve fund below the debt service reserve requirement for such fund.

(c)  The authority shall not at any time issue bonds or notes secured in whole or in part by a debt service reserve fund if upon the issuance of such bonds or notes the amount in such debt service reserve fund will be less than the debt service reserve requirement established by resolution of the authority for such fund, unless the authority at the time of issuance of such bonds shall deposit in such fund from the proceeds of the bonds or notes so to be issued, or from other sources, an amount that, together with the amount then in such fund, will not be less than the debt service reserve requirement established for such fund.  The debt service reserve requirement for any debt service reserve fund shall be established by resolution of the authority prior to the issuance of any bonds or notes secured in whole or in part by such fund and shall not be required to exceed “maximum debt service.”  For the purposes of this section, the term “maximum debt service” shall mean, as of any particular date of computation, an amount of money equal to the greatest of the respective amounts, for the then current or any future fiscal year of the authority, of annual debt service on the bonds of the authority secured or to be secured in whole or in part by such debt service reserve fund, such annual debt service for any fiscal year being the amount of money equal to the aggregate of:

(1)  all interest payable during such fiscal year on all bonds secured in whole or in part by such debt service reserve fund outstanding on the date of computation; plus

(2)  the principal amount of all such bonds outstanding on such date of computation that mature during such fiscal year; plus

(3)  all amounts specified in any resolution of the authority authorizing such bonds as payable during such fiscal year as a sinking fund payment with respect to any of such bonds that mature after such fiscal year.

(d)  In computing the amount of the debt service reserve funds for the purpose of this section, securities in which all or a portion of such funds shall be invested shall be valued at par if purchased at par or at amortized value, as such term is defined by resolution of the authority, if purchased at other than par.

(e)  In order to assure the maintenance of the debt service reserve requirement in each debt service reserve fund established by the authority, there may be appropriated annually and paid to the authority for deposit in each such fund such sum as shall be certified by the chair of the authority to the governor, the president of the senate, and the speaker of the house as is necessary to restore each such debt service reserve fund to an amount equal to the debt service reserve requirement for such fund.  The chair shall annually, on or about February 1, make and deliver to the governor, the president of the senate, and the speaker of the house his or her certificate stating the sum required to restore each such debt service reserve fund to the amount aforesaid, and the sum so certified may be appropriated, and if appropriated, shall be paid to the authority during the then current state fiscal year.  The principal amount of bonds or notes outstanding at any one time and secured in whole or in part by a debt service reserve fund to which state funds may be appropriated pursuant to this subsection shall not exceed $40,000,000.00, provided that the foregoing shall not impair the obligation of any contract or contracts entered into by the authority in contravention of the Constitution of the United States of America.

(f)  The authority shall create and establish such other fund or funds as may be necessary or desirable for its corporate purposes.

§ 8066.  REFUNDING OBLIGATIONS – ISSUANCE AND SALE

(a)  The authority may provide for the issuance of refunding obligations for the purpose of refunding any obligations then outstanding that have been issued under the provisions of this chapter, including the payment of any redemption premium thereon and any interest accrued or to accrue to the date of redemption of such obligations and for any corporate purpose of the authority.  The issuance of such obligations, the maturities and other details thereof, the rights of the holders thereof, and the rights, duties, and obligations of the authority in respect of the same shall be governed by the provisions of this chapter that relate to the issuance of obligations, insofar as those provisions may be appropriate. 

(b)  Refunding obligations issued as provided in this section may be sold or exchanged for outstanding obligations issued under this chapter and, if sold, the proceeds thereof may be applied, in addition to any other authorized purposes, to the purchase, redemption, or payment of such outstanding obligations.  Pending the application of the proceeds of any refunding obligations, with any other available funds, to the payment of the principal, accrued interest and any redemption premium on the obligations being refunded, and, if so provided or permitted in the resolution authorizing the issuance of such refunding obligations or in the trust agreement securing them to the payment of any interest on such refunding obligations and any expenses in connection with such refunding, such proceeds may be invested in direct obligations of, or obligations the principal of and the interest on which are unconditionally guaranteed by, the United States of America, and which shall mature or which shall be subject to redemption by the holders thereof, at the option of such holders, not later than the respective dates when the proceeds, together with the interest accruing thereon will be required for the purposes intended.

§ 8067.  REMEDIES OF BONDHOLDERS AND NOTE HOLDERS

(a)  In the event that the authority defaults in the payment of principal or of interest on any bonds or notes issued under this chapter after they become due, whether at maturity or upon call for redemption, and the default continues for a period of 30 days, or in the event that the authority fails or refuses to comply with the provisions of this chapter or defaults in any agreement made with the holders of an issue of bonds or notes of the authority, the holders of 25 percent in aggregate principal amount of the bonds or notes of such issue then outstanding, by instrument or instruments filed in the office of the secretary of state and proved or acknowledged in the same manner as a deed to be recorded, may appoint a trustee to represent the holders of such bonds or notes for the purposes herein provided.

(b)  Such trustee may, and upon written request of the holders of 25 percent in principal amount of such bonds or notes then outstanding shall, in his or her or its own name:

(1)  enforce all rights of the bondholders or note holders, including the right to require the authority to carry out any agreements with the holders of such bonds or notes and to perform its duties under this chapter;

(2)  enforce all rights of the bondholders or note holders, including the right to collect and enforce the payment of amounts due to the authority, so as to carry out any contract as to, or pledge of revenues, and to require the authority to carry out and perform the terms of any contract with the holders of such bonds or notes or its duties under this chapter;

(3)  bring suit upon all or any part of such bonds or notes;

(4)  by action or suit, require the authority to account as if it were the trustee of an express trust for the holders of such bonds or notes;

(5)  by action or suit, enjoin any acts or things that may be unlawful or in violation of the rights of the holders of such bonds or notes;

(6)  declare all such bonds or notes due and payable, and, if all defaults shall be made good, with the consent of the holders of 25 percent of the principal amount of such bonds or notes then outstanding to annul the declaration and its consequences.

(c)  The trustee shall in addition to the foregoing have and possess all the powers necessary or appropriate for the exercise of any functions specifically set forth herein or incident to the general representation of bondholders or note holders in the enforcement and protection of their rights.

(d)  Before declaring the principal of bonds or notes due and payable, the trustee shall first give 30 days’ notice in writing to the governor, to the authority, and to the attorney general of the state.

(e)  The superior courts or courts with equity jurisdiction shall have jurisdiction of any suit, action, or proceeding by the trustee on behalf of bondholders or note holders.

§ 8068.  PLEDGE OF THE STATE

The state does hereby pledge to and agree with the holders of the notes and bonds issued under this chapter that the state will not limit or restrict the rights hereby vested in the authority to perform its obligations and to fulfill the terms of any agreement made with the holders of its bonds or notes or in any way impair the rights and remedies of the holders until the notes and bonds, together with interest thereon, and interest on any unpaid installments of interest, are fully met, paid, and discharged.  The authority is authorized to execute this pledge and agreement of the state in any agreement with the holders of the notes or bonds.

§ 8069.  SOVEREIGN IMMUNITY; CREDIT OF STATE NOT PLEDGED

The authority shall have the benefit of sovereign immunity to the same extent as the state of Vermont.  Members, officers, employees, and the executive director of the authority shall be deemed employees of the state for purposes of 12 V.S.A. chapter 189 (tort claims against state) and 3 V.S.A. chapter 29 (claims against state employees).  Notwithstanding the foregoing, obligations issued under the provisions of this chapter shall not be deemed to constitute a debt or liability or obligation of the state or of any political subdivision thereof or a pledge of the faith and credit of the state or of any political subdivision but shall be payable solely from the revenues or assets of the authority.  Each obligation issued under this chapter shall contain on the face thereof a statement to the effect that the authority shall not be obligated to pay the same nor the interest thereon except from the revenues or assets pledged therefor and that neither the faith and credit nor the taxing power of the state or of any political subdivision thereof is pledged to the payment of the principal of or the interest on such obligations.

§ 8070.  NOTES AND BONDS AS LEGAL INVESTMENTS

Notwithstanding any other law, the state and all public officers, governmental units, and agencies thereof, all banks, trust companies, savings banks and institutions, building and loan associations, savings and loan associations, investment companies, and other persons carrying on a banking business, all insurance companies, insurance associations and other persons carrying on an insurance business, all credit unions, and all executors, administrators, guardians, trustees, and other fiduciaries may legally invest any sinking funds, moneys, or other funds belonging to them or within their control in any bonds or notes issued under this chapter, and the bonds or notes are authorized security for any and all public deposits.

§ 8071.  ANNUAL REPORTS; AUDIT

(a)  On or before the last day of January of each calendar year, the authority shall submit a report of its activities for the preceding fiscal year to the governor and to the general assembly.  Each report shall set forth a complete operating and financial statement covering its operations during the year.  The authority shall cause an audit of its books and accounts to be made at least once in each year by certified public accountants; the cost shall be considered an expense of the authority and a copy shall be filed with the state treasurer. 

(b)  The auditor of accounts of the state and his or her duly authorized representatives may at any time examine the accounts and books of the authority including its receipts, disbursements, contracts, sinking funds, investments, and any other matters relating to its financial statements.

§ 8072  LEGISLATIVE OVERSIGHT REPORTS

(a)  In addition to the annual and audit reports required by section 8071 of this title, the authority shall provide initial legislative oversight reports to the general assembly on or before January 1, 2008, July 1, 2008, January 1, 2009, and July 1, 2009.  Each legislative oversight report shall contain: 

(1)  An inventory of the locations within the state in which mobile telecommunications and broadband service are currently available.

(2) A report of the progress made to date by the authority in developing its capabilities to undertake or sponsor projects that expand the availability of mobile telecommunications and broadband service.

(3)  A projected outlook on progress by the authority, including:

(A)  An assessment of the authority's capabilities to perform the powers granted the authority, and to contribute to the improvement of broadband service availability and mobile telecommunications service coverage in the state; and

(B)  An assessment of the foreseeable extent of broadband service availability and mobile telecommunications service coverage in the state.

(4)  A summary of the status and results of any competitive solicitation processes undertaken or planned for the purpose of increasing broadband service availability and mobile telecommunications coverage in the state, including:

(A)  an assessment of the level of interest among potential service providers;

(B)  a summary of the numbers and types of entities participating;

(C)  a description of measures taken or under consideration by the authority to enhance the level of interest among potential bidders; and

(D)  terms of any arrangements entered between the authority and service providers.

(5)  A description of all authority activities to develop or facilitate development of telecommunications infrastructure that furthers the objective of this chapter.

(6)  Financial statements of the authority, a summary of expenditures by the authority since inception, and a forecast of expenditures.

          (7)  A summary of any financial commitments made by the authority.

          (8)  A list and summary of all contracts and agreements entered by the authority.

(9)  A summary of any and all instances in which service providers that have entered into contracts or binding commitments with the authority have materially defaulted, been unable to fulfill their commitments, or have requested or been granted relief from contractual or binding commitments.

          (10)  A current business plan for the authority, including an explanation of significant changes subsequent to the most recent previous report.

          (11)  A list and description of all actions taken by the authority to transfer control of state-owned telecommunications facilities to the authority.

          (12)  A description of the extent of the authority's assistance to and participation in proceedings before local zoning and development review boards, district environmental commissions, or project applicants seeking to construct or alter communications facilities located in the state.

          (13)  Recommendations, if any, for further legislative action to promote the objectives of this chapter.

(b) On or before December 31, 2010, the authority shall make a final and comprehensive oversight report to the general assembly describing the extent and manner in which it has achieved the goals of providing wireless telecommunications and broadband coverage as set out in this chapter.  The report shall be sent by electronic mail to the home “e-mail” address of all members of the general assembly in office on that date, with printed copies provided by regular mail to any member or members lacking electronic mail services. 

§ 8073.  AUTHORIZATION TO ACCEPT APPROPRIATED MONIES

The authority is authorized to accept and expend such monies as may be appropriated or approved from time to time by the general assembly for effectuating its corporate purposes including, without limitation, the payment of the initial expenses of administration and operation and the establishment of reserves or contingency funds to be available for the payment of the principal of and the interest on any bonds, notes, or other obligations of the authority.

§ 8074.  TAX EXEMPTION

(a)  All property of the authority is public property devoted to an essential public and governmental function and purpose and is exempt from all taxes, franchise fees, and special assessments of whatever nature of the state or any subdivision.  All bonds or notes issued by the authority or a municipality under this chapter are issued by a body corporate and public of this state and for an essential public and governmental purpose, and those bonds and notes and the interest thereon and the income therefrom and all activities of the authority and fees, charges, funds, revenues, incomes, and other moneys of the authority, whether or not pledged or available to pay or secure the payment of those bonds or notes, or interest thereon, are exempt from all taxation, franchise fees, or special assessments of whatever kind except for transfer, inheritance, and estate taxes.

(b)  The authority is not required to make or file any reports, statements, or informational returns required of any other bodies corporate except as provided in this chapter.

§ 8075.  LIBERAL CONSTRUCTION

Neither this chapter nor anything herein contained is or shall be construed as a restriction or limitation upon any powers that the authority might otherwise have under any laws of this state, and this chapter is cumulative to any such powers.  This chapter does and shall be construed to provide a complete, additional, and alternative method for the doing of the things authorized thereby and shall be regarded as supplemental and additional to powers conferred by other laws.

§ 8076.  INCONSISTENT PROVISIONS IN OTHER LAWS SUPERSEDED

Insofar as the provisions of sections 8064 through 8074 of this title are inconsistent with the provisions of any other law, general, special, or local, the provisions of this chapter shall be controlling.

§ 8077.  ESTABLISHMENT OF MINIMUM TECHNICAL SERVICE

               CHARACTERISTIC OBJECTIVES

(a) The department of public service shall, as part of the state telecommunications plan prepared pursuant to section 202d of this title, identify minimum technical service characteristics which ought to be available as part of broadband services commonly sold to residential and small business users throughout the state.  For the purposes of this chapter, “broadband” means high speed internet access.  The department shall consider the performance characteristics of broadband services needed to support current and emerging applications of broadband services. 

(b) The authority shall give priority in its activities toward projects which expand the availability of broadband services that meet the minimum technical services characteristics established by the state telecommunications plan.

(c) Until the department of public service adopts a revision to the state telecommunications plan, the authority shall give priority to the expansion of broadband services which offer a data transmission rate of not less than 3 megabits per second in at least one direction to areas where such services are not available. 

§ 8078.  SELECTION OF PROPOSALS TO PROVIDE SERVICE; COMPETITIVE

               PROCESS

(a)  The authority shall identify, or seek to enable the development of, networks in all regions of the state which support mass-market broadband services meeting the minimum technical characteristics identified by the department of public service pursuant to section 8077 of this title. 

(b)  By not later than December 1, 2007, the authority shall identify areas within the state, without regard to municipal boundaries or size of geographic area, that contain or are likely to contain premises that can obtain basic telephone service but cannot obtain a mass-market broadband service meeting the minimum technical characteristics identified by the department of public service pursuant to section 8077 of this title.  The authority may rely on readily and publicly available information to estimate the extent of these areas.

(c)  Using a competitive process, the authority shall solicit proposals to eliminate areas without a provider of mass-market broadband services within the state of Vermont by 2010 through the development of telecommunications facilities or through binding commitments from service providers to expand broadband service to all unserved areas in a given region, without regard to municipal boundaries or size of geographic area.  For the purposes of this process, the authority may divide the state into one or more regions.  The authority shall undertake substantial efforts to complete the process of competitively soliciting proposals by January 31, 2008.  In evaluating proposals, the authority shall consider:

(1)  the proposed data transfer rates and other data transmission characteristics of services which would be available to consumers;

(2)  the price to consumers of services;

(3)  the proposed cost to consumers of any new construction, equipment installation service, or facility required to obtain service;

(4)  whether the proposal would utilize the best available technology which is economically feasible; and

(5)  the ability to achieve the authority's objectives in the most cost-effective manner.

(d)  The authority shall seek to eliminate areas without access to commercial mobile radio service licensed by the Federal Communications Commission by 2010 through the construction of facilities and binding commitments from commercial mobile radio service providers. 

(e)  The authority shall seek to expand access to all services that utilize the technical standards which are commonly in use for providing voice and data services through commercial mobile radio service.

(f)  Using a competitive process, the authority shall solicit proposals to eliminate areas without coverage from a provider of commercial mobile radio services within the state of Vermont by 2010 through the development of telecommunications facilities and through binding commitments from service providers to expand service, including all unserved areas in a given region.  For the purposes of this process, the authority may divide the state into one or more regions.  The authority shall undertake substantial efforts to complete the process of competitively soliciting proposals by January 31, 2008.  In evaluating proposals, the authority shall consider the extent to which a proposal meets coverage objectives while limiting environmental impact and providing opportunities for future development of wireless communications services.

(g)  The authority may support projects to enable provision of broadband service in geographic areas currently served; provided, that such projects are the most cost-effective method for providing broadband services in nearby unserved areas, that the provision of  broadband service currently offered falls short of public needs, and that the carriers currently providing such services are unlikely to upgrade or extend those services to a level consistent with public needs, and that before undertaking such projects, the authority makes reasonable effort to distinguish served areas and populations from unserved areas and populations within the geographic area that the project would serve, including recognition and consideration of known or probable service extensions.

* * * Allocation of available VEDA mortgage capacity * * *

Sec. 2.  10 V.S.A. § 212 (14) is amended to read:

(14)  “Mortgagee,” as used in subchapter 2, means the original lender under a mortgage and its successors and assigns if approved by the authority, and shall include the authority in its capacity as lender under the technology infrastructure financing program adopted pursuant to subchapter 10 of this chapter.  The authority may utilize up to $3,000,000.00 of its available mortgage insurance capacity granted pursuant to 10 V.S.A. §§ 221(a) and 221(c) to insure these technology infrastructure financing program loans; 

* * * Broadband grant program * * *

Sec. 3.  BROADBAND DEVELOPMENT GRANT PROGRAM

(a)  Such sums as are appropriated by the general assembly may be utilized by the Vermont telecommunications authority to fund broadband development grants as authorized by this section.

(b)  The authority may award grants to municipalities, telecommunications infrastructure developers, and service providers in an amount not to exceed $100,000.00 for any project. 

(c)  The authority shall select projects that will provide broadband service in areas of the state that do not currently have broadband service or projects that provide one or more Wi‑Fi hotspots in municipalities without a Wi‑Fi hotspot located in area open to and commonly frequented by members of the general public.  If appropriated funds are available, the authority shall grant at least $50,000.00 annually to projects that provide one or more Wi-Fi hotspots.  The authority shall select projects that:

(1)  Provide availability of broadband service to all residents and businesses throughout a logical and contiguous service area; or

(2)  Provide for the establishment of new Wi‑Fi hotspots available to the general public. 

(d)  The authority shall use a competitive application process to award grants.  When evaluating proposals to provide broadband service throughout an unserved area, the authority shall consider the proposed price to consumers for the service, the proposed data transfer rates, the cost to the consumers of any new construction, equipment installation service, or facility required for the connection, and the degree to which the grant is required to make the project financially sustainable.  When evaluating proposals to establish new Wi‑Fi hotspots, the authority shall give preference to Wi‑Fi hotspot proposals which provide at least limited free usage to the public.

(e)  The authority may award grants in one or more rounds, including separate rounds to fund Wi‑Fi hotspots and expansion of broadband service.  The authority may combine the award of a grant provided under this section with any other financial assistance that the authority is authorized to provide under section 8061 of Title 30.

(f)  Each applicant shall identify the equipment, facilities, or services to be purchased with the grant.  The authority shall establish award contracts with each recipient specifying performance requirements.  For failure to perform during the specified period or for failure to provide service for the minimum period, the authority may, after notice and opportunity to correct the failure, take ownership of any equipment or facilities for which grant funds were used to purchase.

* * * Interlocal agreements, municipal authority * * *

Sec. 4.  20 V.S.A. § 2601 is amended to read:

§ 2601.  GENERALLY

A fire district may vote to adopt the town manager system in compliance with chapter 37 of Title 24.  It may vote a tax upon the polls and taxable estate or upon the taxable estate only for the protection of property in the district from damage by fire; for the acquisition, construction and maintenance of sewers and sewage treatment works; sidewalks; acquisition and construction of communications infrastructure; public parks; water works, water companies and equipment and real estate used in connection therewith including reservoirs and dams; for lighting; and for other lawful purposes.  The prudential committee and collector shall have the same power in assessing, levying and collecting the tax, as town officers have in assessing and collecting town taxes, including the collection of interest on overdue taxes.  The prudential committee may expend such sums for acquiring, constructing and maintaining sewers and sewage treatment works; sidewalks; public parks; water works, water companies and all equipment and real estate used in connection therewith including reservoirs and dams; and for lighting purposes as the fire district may vote.  The committee may use and occupy such portions of the highways within the district as may be necessary for constructing and maintaining sewers and sewage treatment works; sidewalks; communications infrastructure; public parks; water works and mains and for lighting purposes. 

Sec. 5.  24 V.S.A. § 1789 is added to read:

§1789.  ALTERNATIVE FINANCING OF ASSETS

(a)  A municipality, including a fire district, either singly or as a participant in an

interlocal contract entered into under sections 4901 and 4902 of this title, may acquire personal property, fixtures, technology and intellectual property by means of leases, lease-purchase agreements, installment sales agreements, and similar agreements wherein payment and performance on the part of the municipality is conditioned expressly upon the annual approval by the municipality of an appropriation sufficient to pay when next due rents, charges, and other payments accruing under such leases and agreements.    

(b) The legislative body of the municipality shall enter into leases and agreements identified in subsection (a) of this section on behalf of the municipality and under such terms as it deems to be in the best interest of the municipality.

(c)  The undertaking of a municipality to make payments under a lease or agreement identified in subsection (a) of this section shall not be a general or special obligation of the municipality, but shall be treated as a current operating expense.  Payments made or to be made under such lease or agreement shall be taken into account in calculating the debt limit of a municipality for any purpose. 


* * * Board Rules on Pole Attachments * * *

Sec. 6.  30 V.S.A. § 209(g) is added to read:

(g)  For the purposes of board rules on attachments to poles owned by companies subject to regulation under this title, broadband service providers shall be considered “attaching entities” with equivalent rights to attach facilities as those provided to “attaching entities” in the rules, regardless of whether such broadband providers offer a service subject to the jurisdiction of the board.  The board shall adopt rules in accordance with chapter 25 of Title 3 to further implement this section.  The rules shall be aimed at furthering the state’s interest in ubiquitous deployment of mobile telecommunications and broadband services within the state.

* * * Rights-of-Way Usage * * *

Sec. 7.  30 V.S.A. § 2513 is amended to read:

§ 2513.  LINES ALONG RAILROAD TRACKS; WIRELESS AND OTHER
 TELECOMMUNICATIONS FACILITIES

(a)  A company subject to the jurisdiction of the public service board may erect and maintain its telecommunications or electric transmission and distribution lines and facilities along the sides of railroad tracks within the limits of lands owned or held by a railroad on paying reasonable compensation to the railroad.  If they cannot agree upon the amount of reasonable compensation, it shall be determined by the transportation board which shall ascertain the compensation.

(b)  Wireless telecommunications and broadband facilities may be erected and maintained within the limits of lands owned or held by a railroad in the same manner as other utility facilities.

(c)  For purposes of this section, “broadband” shall have the same definition as in the rules adopted by the public service board for purposes of attachment to utility poles. 

Sec. 8.  5 V.S.A. § 3431 is amended to read:

§ 3431.  RAILROAD RIGHTS‑OF‑WAY

Notwithstanding the provisions of section 213 of Title 1, when railroad operations cease on railroad rights‑of‑way owned by the state or municipality the title or interest held by the state or municipality in such rights‑of‑way shall be retained by the state or municipality for future transportation purposes and such other purposes as are not inconsistent with future transportation purposes; except that such rights‑of‑way shall not be used by members of the general public without permission of the state or municipality.  The state or municipality shall allow abutting farm operations to use the land over which the rights‑of‑way pass for agricultural purposes.  Unless use and occupancy of railroad rights‑of‑way adversely affect railroad safety, broadband facilities and wireless and other telecommunications facilities that are installed along or within the railroad right‑of‑way in compliance with applicable operations and safety standards at the time of installation are consistent with existing and future transportation purposes. 

Sec. 9.  30 V.S.A. § 2502 is amended to read:

§ 2502.  LINES OR WIRES ALONG HIGHWAYS; WIRELESS
TELECOMMUNICATIONS FACILITIES; BROADBAND
FACILITIES
CONSTRUCTION; RESTRICTION

Lines of telegraph, telephone, and electric wires, as well as two‑way wireless telecommunications facilities and broadband facilities, may, subject to the provisions of section 1111 of Title 19, be constructed and maintained by a person or corporation upon or under a highway, in such manner as not to interfere with repairs of such highway or the public convenience in traveling upon or using the same.

Sec. 10.  19 V.S.A. § 26a is amended to read:

§ 26a.  DETERMINATION OF RENT TO BE CHARGED FOR LEASING OR LICENSING STATE‑OWNED PROPERTY UNDER THE AGENCY’S JURISDICTION

Except as otherwise provided by law, leases or licenses negotiated by the agency under sections 204 and 3405 of Title 5 and section 26 of this title ordinarily shall require the payment of fair market value rent, as determined by the prevailing area market prices for comparable space or property.  However, the agency may lease or license state‑owned property under its jurisdiction for less than fair market value when the agency determines that the proposed occupancy or use serves a public purpose or that there exist other relevant factors, such as a prior course of dealing between the parties, that justify setting rent at less than fair market value.  This section does not apply to leases or licenses for use by wireless and broadband communications providers of state‑owned railroad rights‑of‑way. 

Sec. 11.  STATE‑OWNED EASEMENTS AND RIGHTS‑OF‑WAY

(a)  The agency of transportation shall adopt policies to standardize and expedite the processing of applications by broadband and wireless communications providers for access to and use of rights‑of‑way under the ownership, management, or jurisdiction of the agency. 

(b)  Unless otherwise required by federal law, any charge or payment for access to or use of state‑owned rights‑of‑way by providers of broadband or wireless communications facilities or services shall be reasonable and shall be waived if the provider offers to provide comparable value to the state so as to meet the public good.  For the purposes of this section, the term “comparable value to the state” shall be construed broadly to further the state’s interest in ubiquitous broadband and wireless service availability at reasonable cost. 

(c)  The charges or payments required for access to or use of state‑owned rights‑of‑way under the jurisdiction or control of the agency of transportation by wireless or broadband communications providers shall be adopted by the Vermont telecommunications authority in consultation with the agency of transportation and in accordance with the rulemaking provisions of chapter 25 of Title 3.  Rules required by this section shall be adopted using emergency procedures no later than 60 days and permanent rules shall be adopted no later than six months after the effective date of this act.  The emergency rules adopted pursuant to this subdivision may remain in effect longer than 120 days, but in no event shall they remain in effect for more than six months.  The agency of transportation shall post on its internet web site all permit applications and schedules for charges and payments adopted pursuant to this section by the agency and the telecommunications authority.

(d)  Nothing in this section shall be construed to impair any contractual rights existing on the effective date of this section.

* * * Act 250, Sec. 248, and Municipal Permitting * * *

Sec. 12.  10 V.S.A. § 6001c is amended to read: 

§ 6001c.  JURISDICTION OVER BROADCAST AND COMMUNICATION
 SUPPORT STRUCTURES and related improvements

In addition to other applicable law, any support structure proposed for construction, which is primarily for communication or broadcast purposes and which will extend vertically 20 feet, or more, above the highest point of an attached existing structure or 50 feet, or more, above ground level in the case of a proposed new support structure, in order to transmit or receive communication signals for commercial, industrial, municipal, county, or state purposes, shall be a development under this chapter, independent of the acreage involved.  If jurisdiction is triggered for such a support structure, then jurisdiction will also extend to the construction of improvements ancillary to the support structure, including buildings, broadcast or communication equipment, foundation pads, cables, wires, antennas or hardware, and all means of ingress and egress to the support structure.  To the extent that future improvements are not ancillary to the support structure and do not involve an additional support structure, those improvements shall not be considered a development, unless they would be considered a development under this chapter in the absence of this section.  The criteria and procedures for obtaining a permit under this section shall be the same as for any other development.

Sec. 13.  10 V.S.A. § 6001(26) is amended to read:

(26)  “Telecommunications facility” means a support structure which is primarily for communication or broadcast purposes and which will extend vertically 20 feet, or more, above the highest point of an attached existing structure or 50 feet or more above ground level in the case of a proposed new support structure, in order to transmit or receive communication signals for commercial, industrial, municipal, county or state purposes. 

Sec. 14.  24 V.S.A. § 2291(19) is amended to read:

(19)  To regulate the construction, alteration, development, and decommissioning or dismantling of wireless telecommunications facilities and ancillary improvements where the city, town, or village has not adopted zoning or where those activities are not regulated pursuant to a duly adopted zoning bylaw.  When the construction or alteration of wireless telecommunications facilities are subject to regulation by the authority granted in this section, the regulatory authority shall determine whether the installation of a wireless telecommunications facility, whatever its size, will impose no impact or merely a de minimis impact on the surrounding area and the overall pattern of land development.  If the regulatory authority determines that the facility will impose no impact or a de minimis impact, then it shall issue a permit.  Regulations regarding the decommissioning or dismantling of telecommunications facilities and ancillary structures may include requirements that bond be posted, or other security acceptable to the legislative body, in order to finance facility decommissioning or dismantling activities.  These regulations are not intended to prohibit seamless coverage of wireless telecommunications services.  No ordinance authorized by this section may have the purpose or effect of limiting or prohibiting a homeowner’s ability to place or allow placement of an antenna used to transmit or receive communications signals on the homeowner’s property if the antenna is not more than eight square feet on its largest face and if the antenna and the mast to which it is attached do not extend greater than 12 feet above the roofline.

Sec. 15.  24 V.S.A. § 4446 is amended to read:

§ 4446.  BYLAWS; EFFECT OF ADOPTION

Within the jurisdiction of any municipality that has adopted any of the bylaws authorized by this chapter, no land development may be undertaken or effected except in conformance with those bylaws.  Bylaws authorized by this chapter may specify for exclusion from review any land development determined to impose no impact or merely a de minimis impact on the surrounding area and the overall pattern of land development.  Notwithstanding any other provision of this chapter, the administrative officer shall determine whether, subject to appeal to the appropriate municipal body, the installation of a facility used for telecommunications, whatever its size, will impose no impact or merely a de minimis impact on the surrounding area and the overall pattern of land development and whether such installation may be processed as a minor application under the same procedures provided for any permitted use in the zoning district.  Notice of the issuance of such permit shall be provided to all adjoining landowners that may reasonably be affected by the facility, to the appropriate municipal panels, and to the select board.  A homeowner may place or allow placement of an antenna used to transmit or receive communications signals on the homeowner’s property without the need for a local zoning permit if the antenna is not more than eight square feet on its largest face and if the antenna and the mast to which it is attached do not extend greater than 12 feet above the roofline.

Sec. 16.  30 V.S.A. § 248(n) is added to read:

(n)(1)  No company as defined in section 201 of this title and no person as defined in 10 V.S.A. § 6001(14) may place or allow the placement of wireless communications facilities on an electric transmission or generation facility located in this state, including a net‑metered system, without receiving a certificate of public good from the public service board pursuant to this subsection.  The public service board may issue a certificate of public good for the placement of wireless communications facilities on electric transmission and generation facilities if such placement is in compliance with the criteria of this section and board rules or orders implementing this section.  In developing such rules and orders the board:

(A)  may waive the requirements of this section that are not applicable to wireless telecommunication facilities, including but not limited to criteria that are generally applicable to public service companies as defined in this title;

(B)  may modify notice and hearing requirements of this title as it deems appropriate;

(C)  shall seek to simplify the application and review process as appropriate; and

(D)  shall be aimed at furthering the state’s interest in ubiquitous mobile telecommunications and broadband service in the state.

(2)  Notwithstanding subdivision (B) of subdivision (1) of this section, if the board finds that a petition filed pursuant to this subsection does not raise a significant issue with respect to the criteria enumerated in subdivisions (b)(1), (3), (4), (5) and (8) of this section, the board shall issue a certificate of public good without a hearing.  If the board fails to issue a final decision or identify a significant issue with regard to a completed petition made under this section within 60 days of its filing with the clerk of the board and service to the director of public advocacy for the department of public service, the petition is deemed approved by operation of law. The rules required by this subsection shall be adopted within six months of the effective date of this section, and rules under this section may be adopted on an emergency basis to comply with the dates required by this section.  For purposes of this subsection, “wireless communication facilities” include antennae, related equipment, and equipment shelter. 

Sec. 17.  30 V.S.A. § 248a is added to read:

§ 248a.  CERTIFICATE OF PUBLIC GOOD FOR MULTIPLE TELECOMMUNICATIONS FACILITIES

(a)  Notwithstanding any other provision of law, a certificate of public good may be issued by the public service board under this section if the applicant seeks approval for the construction or installation of three or more telecommunications facilities as part of an interconnected network and if the board finds that the facilities will promote the general good of the state consistent with subsection 202c(b) of this title. 

(b)  For the purpose of this section, “telecommunications facility” means any support structure proposed for construction or installation which is primarily for communication purposes and which supports facilities that transmit and receive communication signals for commercial, industrial, municipal, county, or state purposes.

(c)  Before the public service board issues a certificate of public good under subsection (a) of this section, it shall find that the proposed facilities, in the aggregate, will:

(1)  not unduly interfere with the orderly development of the region with due consideration having been given to the recommendations of the municipal and regional planning commissions, the recommendations of the municipal legislative bodies, and the land conservation measures contained in the plan of any affected municipality;

(2)  not have an undue adverse effect on aesthetics, historic sites, air and water purity, the natural environment, and the public health and safety, with due consideration having been given to the criteria specified in subsection 1424a(d) and subdivisions 6086(a)(1) through (8) and (9)(K) of Title 10.

(d)  When issuing a certificate of public good under this section, the board shall give due consideration to the conditions in an existing state or local permit and shall harmonize the conditions in the certificate of public good with the existing permit conditions to the extent feasible. 

(e)  The applicant shall serve written notice of an application filed with the board pursuant to this section to the municipal and regional planning commissions in the communities in which the applicant proposes to construct or install facilities; the secretary of the agency of natural resources; the commissioner of the department of public service and its director for public advocacy; and the landowners of record of property adjoining the project sites.  Upon motion or otherwise, the public service board shall direct that further public or personal notice be provided if the board finds that such further notice will not unduly delay consideration of the merits and that additional notice is necessary for fair consideration of the application. 

(f)  Unless the public service board identifies that an application raises a substantial issue, the board shall issue a final determination on an application filed pursuant to this section within 90 days of its filing or, if the original filing did not substantially comply with the public service board’s rules, within 90 days of the date on which the clerk of the board notifies the applicant that the filing is complete.  If the board rules that an application raises a substantial issue, it shall issue a final determination on an application filed pursuant to this section within 180 days of its filing or, if the original filing did not substantially comply with the public service board’s rules, within 180 days of the date on which the clerk of the board notifies the applicant that the filing is complete.  

(g)  Nothing in this section shall be construed to prohibit any person from executing a letter of intent or entering into a contract before the issuance of a certificate of public good under this section, provided that the obligations under that letter of intent or contract are made subject to compliance with the requirements of this section.

(h)  An applicant using the procedures provided in this section shall not be required to obtain a local zoning permit or a permit under the provisions of chapter 151 of Title 10 for the facilities subject to the application or to a certificate of public good issued pursuant to this section.  Ordinances adopted pursuant to subdivision 2291(19) of Title 24 that would otherwise apply to the construction or installation of facilities subject to section are preempted.  Disputes over jurisdiction under this section shall be resolved by the public service board, subject to appeal as provided by section 12 of this title. 

* * * Role of Electric Utilities * * *

Sec. 18.  ROLE OF VERMONT’S ELECTRIC UTILITIES TO FURTHER
  TELECOMMUNICATIONS DEPLOYMENT THROUGHOUT
  VERMONT

The public service board shall convene a proceeding within 60 days of the effective date of this act to examine regulatory policy regarding the use or role of Vermont’s electric utilities to facilitate deployment of telecommunications infrastructure and services, whether wireless, broadband, or otherwise, throughout the state and take whatever action the board finds is consistent with the public good and within its existing authority. The board shall provide notice of the proceeding to the state’s electric utilities and certificated telecommunications carriers.  The department of public service shall provide a report to the general assembly by January 15, 2008 with the department’s recommendations for any necessary legislative action. 

Sec. 19.  EFFECTIVE DATE

This act shall take effect from passage.

(Committee vote: 11-0-0)

JOINT ASSEMBLY

     Thursday, March 22, 2007 - 10:30 A.M. - House Chamber - Retention of Superior Court Judges:  Hon. William Cohen, Hon. M. Kathleen Manley, Hon. Matthew Katz.

     Retention of District Judges:  Hon. James Crucitti, Hon. M. Patricia Zimmerman, Hon. Ben Joseph, and Hon. Thomas Zonay.

 

SENATE APPROPRIATIONS COMMITTEE

FY 2008 Budget

ADVOCATES TESTIMONY

     On Monday afternoon, March 26 beginning at 3:00 pm, the Senate Appropriations Committee will be taking testimony from advocates regarding the Fiscal Year 2008 Budget in Room 10 of the State House.  To schedule time before the Committee please contact Becky Buck at the Legislative Joint Fiscal Office located at 1 Baldwin Street (phone:  828-5969).  

 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us