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House Calendar

MONDAY, APRIL 30, 3007

118th DAY OF BIENNIAL SESSION

House Convenes at 10:00 A M

TABLE OF CONTENTS

                                                                                                               Page No.

ACTION CALENDAR

     Third Reading

H. 330  Repeal of Law to Municipal Trailer Park Ordinances....................... 1236

H. 542  Amendment to Charter City of Vergennes........................................ 1236

S.    6  Preventing Conviction of Innocent Persons........................................ 1236

S.  52  Motor Vehicles, Snowmobiles, Motorboats, All-Terrain Vehicles..... 1236

S.   93   Miscellaneous Changes to Education Law...................................... 1236

S. 128  Sunsets on Forensic Examinations at Designated Hospitals................ 1236

S. 137  Reducing Phosphorus Allowed in Household Cleansing Products ..... 1236

Favorable with Amendment

S. 116  Miscellaneous Election Law Amendments......................................... 1236

               Rep. L. Martin for Government Operations

S. 121  Relating to Autism Spectrum Disorders............................................. 1241

               Rep. Oxholm for Education

               Rep. Morrissey et al Amendment................................................... 1245

Senate Proposals of Amendment

H. 148  Relating to Child Abuse Registry...................................................... 1245

H. 154  Relating to Stormwater Management............................................... 1268

Action Postponed Until Tuesday, May 1, 2007

House Proposal of Amendment

S. 133  Motor Vehicle /Junior Operators / Primary Seat Belt Enforcement.... 1272


NOTICE CALENDAR

Committee Bills for Second Reading

H. 546  Compensation for Certain Employees & Emergency Mgt................. 1272

               Rep. Atkins for Government Operations

 

H. 547  Fiscal Year 2007 Supplemental Appropriations............................... 1272

               Rep. Heath for Appropriations

Favorable with Amendment

S.   7  Compassionate Use of Marijuana for Medical Purposes..................... 1272

               Rep. Donahue for Human Services................................................. 1272

               Rep. Aswad for Ways and Means................................................. 1278

               Rep. Lippert for Judiciary.............................................................. 1278

S.   51  Prohibiting Discrimination on Basis of Gender Identity....................... 1278

               Rep. Lippert for Judiciary

S.   82  VT Addresses and Representations of VT Origins............................ 1278

               Rep. Sunderland for Commerce

S. 115  Transparency of Prescription Drug Pricing and Information............... 1281

               Rep. Copeland-Hanzas for Health Care

               Rep. Sharpe for Ways and Means................................................. 1300

S. 191  Financing, Reappraisal and Infrastructure in Tax Increments.............. 1300

               Rep. Kitzmiller for Commerce

Favorable

J.R.H. 21  Worldwide ONE Campaign....................................................... 1301

               Rep. Frank for Human Services

Senate Proposals of Amendment

H.   91  Rozo McLaughlin Farm-to-School Program.................................... 1301

H. 274  Relating to Adult Foster Care.......................................................... 1302

H. 368  Regulations of Professions and Occupations..................................... 1303

H. 380  Regulation of Health Care Facilities.................................................. 1303

Ordered to Lie

Senate Proposal of Amendment

H. 296  Potable Water Supply and Wastewater System Permitting............... 1306

 

 


 

ORDERS OF THE DAY

ACTION CALENDAR

     Third Reading

H. 330

     An act relating to repeal of the law relating to municipal trailer park ordinances.

H. 542

     An act relating to approval of amendment to the charter of the city of Vergennes.

S.  6

An act relating to preventing conviction of innocent persons.

S. 52

An act relating to motor vehicles, snowmobiles, motorboats, and all-terrain vehicles.

S. 93

An act relating to miscellaneous changes to education law.

S. 128

An act relating to certain sunsets on forensic examinations at designated hospitals.

S. 137

An act relating to reducing the amount of phosphorus allowed in household cleansing products used in dishwashers.

 

Favorable with Amendment

S. 116

An act relating to miscellaneous election law amendments.

Rep. Martin of Wolcott, for the Committee on Government Operations, recommends that the House propose to the Senate that the bill be amended as follows:

First:  By striking Sec. 8 in its entirety and inserting in lieu thereof a new Sec. 8 to read:

Sec. 8.  17 V.S.A. § 2493(a) is amended to read:

(a) The secretary of state shall adopt rules governing the use and the selection of any voting machine in the state. These rules shall include requirements that:

* * *

(2)  The secretary of state shall provide for the security of voting machines at all times. Voting machines, not including the ballot box portion, shall be locked in a vault or a secure location at all times when not in use.  The secretary of state may conduct a random post election audit of any polling place election results for a primary or general election within 30 days of the election.  If the secretary determines that a random audit shall be conducted of the election results in a town or city, the town clerk shall direct two members of the board of civil authority to transport the ballot bags to the office of the secretary of state not later than 10:00 a.m. on the morning when the secretary has scheduled the audit.  The secretary shall open the ballot bags and conduct the audit in the same manner as recounts are to be conducted under sections 2602e through 2602h ballots are counted under sections 2581 through 2588 of this title.  The secretary of state shall publicly announce the results of the audit as well as the results from the original return of the vote.  If the secretary finds that the audit indicates that there was possible fraud in the count or return of votes, the secretary shall refer the results to the attorney general for possible prosecution.

* * *

(5) Establish a process for municipalities using voting machines, whereby markings on ballots that are unreadable by a machine may be transferred by a pair of election officials, who are not members of the same political party, to ballots that are readable by the machine.

Second:  By adding a Sec. 8a to read:

Sec. 8a.  17 V.S.A. § 2532(a) is amended to read:

(a)(1)  An early or absentee voter, or an authorized family member or health care provider acting in on the voter’s behalf, may apply for an early voter absentee ballot by telephone, in person, or in writing.  “Family member’’ here As used in this section, “family member” means a person’s spouse, children, brothers, sisters, parents, spouse’s parents, grandparents, and spouse’s grandparents.  Any other authorized person may apply in writing or in person.  The application shall be in a form prescribed by the secretary of state. substantially the following form:

REQUEST FOR EARLY VOTER ABSENTEE BALLOT

Name of early or absentee voter: ____________________________________

Current address: _________________________________________________

Residence (if different): ___________________________________________

Telephone contact:    _________________         E-mail:    ________________

If applicant is other than the early or absentee voter:

Name of applicant: _______________________________________________

Address of applicant: _____________________________________________

Relationship to early or absentee voter: _______________________________

Telephone contact:    _________________         E-mail:    ________________

Date: _____________ Signature:_____________________________________

(2) If the application is made by telephone or in writing, the information supplied must be in substantial conformance with the information requested on this form.

Third:  By adding a Sec. 8b to read:

Sec. 8b.  17 V.S.A. § 2546 is amended to read:

§ 2546.  DEPOSIT OF EARLY VOTER ABSENTEE BALLOTS IN
       BALLOT BOX

(a)  No sooner than 30 days before the opening of polls on election day, the clerk of a municipality with at least 10,000 registered voters on its checklist may open the outside envelope in order to sort absentee ballots by ward and district, may data enter the return of the ballots by the voter, may determine that the certificate has been signed, and may place the inside envelopes in various secure containers to be transported to the polling places on election day.   No sooner than 48 hours before the opening of polls on election day, a town clerk in all other municipalities may direct two election officials working together to open the outside envelope and remove the certificate envelope in order to determine that an absentee ballot certificate has been properly signed by the early voter, and that the name of the early voter appears on the checklist.  The election officials shall check the name of the early voter off the entrance checklist and place the sealed envelope into a secure container marked “checked‑in early voter absentee ballots” to be transported to the polling place on election day.  Upon opening of the polls on election day, ballots from this container may be opened by election officials, who are not members of the same political party, and deposited either into the ballot box or into the voting machine.

(b)  The town clerk or presiding officer shall deliver the unopened early voter absentee ballots to the election officials at the place where the entrance checklist is located.  If the ballots are in a container marked “checked‑in early voter absentee ballots,” two election officials from different political parties may open the envelopes and deposit the ballots into the ballot box or into the voting machine.  If the ballots have not been previously checked off the entrance checklist and if an elections election official determines that the certificate on the envelope is signed by the early voter, the name of the early voter appears on the checklist, and the early voter is not a first-time voter in the municipality who registered by mail, the elections election official shall mark the checklist, open the envelope, and deposit the ballot in the proper ballot box or voting machine.  If the early voter is a first-time voter who registered by mail, the elections election official shall determine whether the identification required under subdivision 2563(a)(1) of this title has been submitted by the voter. Upon ascertaining that the proper identification has been submitted by the voter, the elections election official shall mark the checklist, open the envelope, and deposit the ballot in the proper ballot box or voting machine.  If the proper identification has not been submitted, the ballot shall be treated as a provisional ballot, as provided in subchapter 6A of this chapter.

(b)(c)  All early voter absentee ballots shall be commingled with the ballots of voters who have voted in person.

Fourth:  By adding a Sec. 8c to read:

Sec. 8c.  17 V.S.A. § 2548(b) is amended to read:

(b)  A person who in good faith has received early voter absentee ballots for his or her use but has not yet marked them, if he finds that he or she is able to vote in person, may cast the early voter absentee ballots as provided above, or may vote in person after returning the complete set of unmarked ballots, together with the envelope intended for their return, to the presiding officer at the time the voter appears to vote in person.  If a person does not have his or her absentee ballots to return, the person shall be checked off the checklist and permitted to vote only after completing a sworn affidavit that he or she does not have his or her absentee ballots to return.  The presiding officer shall return the unused early voter absentee ballots and envelope to the town clerk, who shall make a record of their return on the list of early or absentee voters and treat them as spoiled or unused ballots, pursuant to section 2568 of this title.

Fifth:  By adding a Sec. 9a to read:

Sec. 9a.  17 V.S.A. § 2587 is amended to read:

§ 2587.  RULES FOR COUNTING BALLOTS

* * *

(e)  In the case of “write-in” votes in a primary election, the act of writing in the name of a candidate, or pasting a label containing a candidate’s name upon the ballot, without other indications of the voter’s intent, shall constitute a vote for that candidate, even though no cross is placed after such name.  The election officials counting ballots and tallying results must shall list every person who receives a “write-in” vote and the number of votes received.  On each tally sheet, the counters shall add together the names of candidates that are clearly the same person, even though a nickname or last name is used.  Names of fictitious persons shall not be listed.

(f)  In the case of “write-in” votes in a general election, the act of writing in the name of a candidate, or pasting a label containing a candidate’s name upon the ballot, without other indications of the voter’s intent, shall constitute a vote for that candidate, even though no oval is marked or cross is placed after such name.  The election officials counting ballots and tallying results shall list each person who receives a “write-in” vote and the number of votes received, except that a write-in candidate shall not have his or her name listed and votes counted unless the candidate has filed a declaration of candidacy form with the official where nominating petitions must be filed for the office by 12:00 p.m. on the day prior to election day.  The declaration of candidacy form shall contain the same information as the candidate consent form.  Votes for write-in candidates who have not filed a declaration of candidacy form shall be counted as “write-in” votes but shall not be listed by name.  On each tally sheet, the counters shall add together the names of candidates that are clearly the same person, even though a nickname or last name is used.  Names of persons who did not file a declaration of candidacy and fictitious persons shall not be listed, but votes for these persons shall be counted as “write-in” votes.

(g)  When the same number of persons are nominated for the position of justice of the peace as there are positions to be filled, the presiding officer may declare the whole slate of candidates elected without making individual tallies, providing each person on the slate has more votes than the largest number of write-in votes for any one candidate.

Sixth:  By striking Sec. 14 in its entirety and inserting in lieu thereof a new Sec. 14 to read:

Sec. 14.  17 V.S.A. § 2682 is amended to read:

§ 2682.  PROCESS OF VOTING; APPOINTMENTS

* * *

(c)  In a municipal election controlled by this subchapter, the person receiving the greatest number of votes for an office shall be declared elected to that office; a certificate of election need not be issued.  However, in order to be elected a write-in candidate must receive 30 votes or the votes of one percent of the registered voters in the municipality, whichever is less.  The act of writing in the name of a candidate, or pasting a label containing a candidate’s name upon the ballot, without other indications of the voter’s intent, shall constitute a vote for that candidate, even though no oval is marked or cross is placed after such name.  The election officials counting ballots and tallying results shall list each person who receives a “write-in” vote and the number of votes received, except that a write-in candidate shall not have his or her name listed and votes counted unless the candidate has filed a declaration of candidacy form with the town clerk or presiding officer by the close of the polls on election day or unless there are no candidates printed on the ballot.  The declaration of candidacy form shall contain the same information as the candidate consent form.  Votes for write-in candidates who have not filed a declaration of candidacy form shall be counted as “write-in” votes but shall not be listed by name.  On each tally sheet, the counters shall add together the names of candidates that are clearly the same person, even though a nickname or last name is used.  Names of persons who did not file a declaration of candidacy and fictitious persons shall not be listed, but votes for these persons shall be counted as “write-in” votes.

* * *

(e)  If there is a tie vote for any office, the legislative body, or in their stead, the municipal clerk, shall within seven days warn a runoff election to be held not less than 15 days nor more than 22 days after the warning.  The only candidates in the runoff election shall be those who were tied in the original election.  However, if one of the candidates that are tied withdraws his or her candidacy within five days after the election, the town clerk shall certify the other tied candidate as the winner, and there shall be no runoff election.

(Committee vote: 11-0-0)

(For text see Senate Journal 03/01/07 – P. 199; 03/15/07 – P. 243 )

S. 121

An act relating to autism spectrum disorders.

Rep. Oxholm of Vergennes, for the Committee on Education, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

The general assembly finds:

(1)  Autism is a life-long pervasive developmental disorder identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM‑IV).  The five pervasive developmental disorders are:  autistic disorder; Asperger’s disorder; pervasive developmental disorder, not otherwise specified; Rett’s disorder; and childhood disintegrative disorder.  These lifelong disorders are often referred to collectively as autism spectrum disorders.

(2)  Autism spectrum disorders are neurologically based developmental disorders that can have profound lifelong effects in social interaction, the ability to communicate, imagination, and the establishment of relationships.

(3)  Children are diagnosed with autism spectrum disorders by psychologists, developmental pediatricians, psychiatrists, and neurologists.

(4)  In 1992, only 13 Vermont children with autism spectrum disorders received special education in Vermont.  According to the preliminary December 1, 2006 child count, 582 children with autism spectrum disorders are currently receiving special education in Vermont.

(5)  There is no single intervention that will be effective for all individuals with autism spectrum disorders or for the same individual across his or her lifespan.

(6)  National Research Council findings suggest that up to 48 percent of young children with autism spectrum disorders make marked progress when they receive intensive early intervention.

Sec. 2.  PROPOSAL FOR AN INTERAGENCY INITIATIVE TO ENHANCE SERVICES FOR INDIVIDUALS WITH AUTISM SPECTRUM DISORDERS

(a)  On or before January 15, 2008, the secretary of human services and the commissioner of education shall develop an interagency proposal for a coordinated, life-long system of care designed to address the needs of Vermonters with autism spectrum disorders (ASD) and their families.  The

agency of human services shall assume primary responsibility for developing the proposed plan.  The plan shall be:

(1)  Consistent with the Vermont Interagency White Paper on Autism Spectrum Disorders, issued March 2006, and informed by other papers or proposals developed by or for the agency of human services or the department of education. 

(2)  Developed in collaboration with a broad spectrum of stakeholders, including individuals with ASD and their families, professionals with established expertise in ASD, private and public providers of services to individuals with ASD and their families, entities providing support to families of individuals with ASD, and members of the autism task force, the Vermont developmental disabilities council, and the Act 264 advisory board.  Collaboration with individuals with ASD and their families shall reflect diversity in geography, in diagnoses, and in the severity of symptoms.  It shall also ensure consideration of an individual’s needs as a child, as a youth, and as an adult.

(b)  The proposed plan shall include:

(1)  A profile of the range of diagnoses and needs of the children, youth, and adults to be served.

(2)  Projections of the future needs of individuals with ASD in Vermont, including transitional services related to socialization, job training and employment, and independent living in a community-based format to assist individuals moving from school to the community.

(3)  Identification of the specific goals of the proposed plan for a life-long system of care for individuals with ASD and their families.

(4)  Development of research-based best practices guidelines to enhance the ability of public and private providers to meet the needs of individuals with ASD and their families.

(5)  A review of the educational and human services-related supports and services currently available to individuals with ASD throughout their lifetime.

(6)  A review of the supports and services currently available to the families of individuals with ASD.

(7)  Identification of the strengths of and deficiencies in the current system of supports and services identified in subdivisions (5) and (6) of this subsection and of the availability of those supports and services in all areas of the state.

(8)  Identification of the additional supports and services needed for an effective life-long system of care for individuals with ASD and their families and recommendations for how unmet needs might be satisfied. 

(9)  A review of the current role of public schools in connection with the provision of services to individuals with ASD, including:

(A)  the financial impact that the provision of these services has on school budgets.

(B)  Consideration of whether the current allocation of costs between the education system and the agency of human services for the provision of services to individuals with ASD is appropriate.

(C)  Recommendations for any change in the role of public schools, including consideration of how the current and potential costs of services for individuals with ASD provided by schools might be assumed by the agency of human services and whether such assumption would be consistent with federal law and would be otherwise appropriate and advisable.

(10)  A detailed proposal, with a related timeline, for implementing the proposed life-long system of care, including:

(A)  The manner in which existing resources and facilities might be used or redirected to support the system.

(B)  The availability of federal and other potential funding sources for the proposed system of care.

(C)  Strategies to encourage collaboration among existing and new resources to provide coordinated, life-long services, training, technical assistance, information dissemination, and consultation to individuals with ASD and their families, including a centralized, publicly available information system with an information “hotline”.

(D)  Strategies to encourage collaboration among existing and new resources to provide coordinated training, technical assistance, information dissemination, and consultation to schools, local agencies, and other providers of developmental, mental health, and early intervention services to individuals with ASD and their families.

(E)  Strategies for enabling access to the early and accurate diagnosis of ASD.

(F)  Strategies for encouraging collaboration with higher education programs to provide a sufficient number of well‑trained professionals to provide life-long services to individuals with ASD and their families in all regions of the state.

(G)  Provisions ensuring regular review and revision of the proposed system of care.

(c)  On or before January 15, 2008, the agency and the department shall present a written plan consistent with this section to the governor, the house committees on education, on human services, and on appropriations, and the senate committees on education, on health and welfare, and on appropriations. 

Sec. 3.  EFFECTIVE DATE

This act shall take effect from passage.

(Committee vote: 11-0-0)

Amendment to be offered by Reps. Morrissey of Bennington, Andrews of Rutland City, Donahue of Northfield, Frank of Underhill, French of Randolph, Haas of Rochester, Mrowicki of Putney, Orr of Charlotte, and Pugh of South Burlington to S. 121

Propose the amendment of the Committee on Education be further amended

as follows:

First:  In Sec. 2, subsection (b), subdivision (9)(B), before the period, by inserting the following: “and whether any possible reallocation is appropriate, advisable, and consistent with federal law

Second:  In Sec. 2, subsection (b), subdivision (9), by striking subdivision (C) in its entirety

(For Senate Amendment see Senate Journal 4/3/07 – pp 360-365 )

Senate Proposals of Amendment

H. 148

     An act relating to the child abuse registry.

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

Sec. 1.  33 V.S.A. chapter 49, subchapter 2 is amended to read:

Subchapter 2.  Reporting Abuse of Children

* * *

§ 4912.  DEFINITIONS

As used in this subchapter:

(1)  “Child” means an individual under the age of majority.

(2)  An “abused or neglected child” means a child whose physical health, psychological growth and development or welfare is harmed or is at substantial risk of harm by the acts or omissions of his or her parent or other person responsible for the child’s welfare.  An “abused or neglected child” also means a child who is sexually abused or at substantial risk of sexual abuse by any person.

(3)  “Harm” can occur by:

(A)  Physical injury or emotional maltreatment;

(B)  Failure to supply the child with adequate food, clothing, shelter, or health care.  For the purposes of this subchapter, “adequate health care” includes any medical or nonmedical remedial health care permitted or authorized under state law.  Notwithstanding that a child might be found to be without proper parental care under chapter 55 of Title 33, a parent or other person responsible for a child’s care legitimately practicing his or her religious beliefs who thereby does not provide specified medical treatment for a child shall not be considered neglectful for that reason alone; or

(C)  Abandonment of the child.

(4)  “Risk of harm” means a significant danger that a child will suffer serious harm other than by accidental means, which harm would be likely to cause physical injury, neglect, emotional maltreatment or sexual abuse.

(5)  “A person responsible for a child’s welfare” includes the child’s parent; guardian; foster parent; any other adult residing in the home who serves in a parental role; an employee of a public or private residential home, institution or agency; or other person responsible for the child’s welfare while in a residential, educational or day child care setting, including any staff person.

(6)  “Physical injury” means death, or permanent or temporary disfigurement or impairment of any bodily organ or function by other than accidental means.

(7)  “Emotional maltreatment” means a pattern of malicious behavior which results in impaired psychological growth and development.

(8)  “Sexual abuse” consists of any act or acts by any person involving sexual molestation or exploitation of a child including but not limited to incest, prostitution, rape, sodomy, or any lewd and lascivious conduct involving a child.  Sexual abuse also includes the aiding, abetting, counseling, hiring, or procuring of a child to perform or participate in any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, depicts a sexual conduct, sexual excitement or sadomasochistic abuse involving a child.

(9)  “Multi‑disciplinary team” means a group of professionals, paraprofessionals and other appropriate individuals, empanelled by the commissioner of social and rehabilitation services under this chapter, for the purpose of assisting in the identification and investigation of cases of child abuse and neglect, coordinating treatment services for abused and neglected children and their families and promoting child abuse prevention.

(10)  “Substantiated report” means that the commissioner or the commissioner’s designee has determined after investigation that a report is based upon accurate and reliable information that would lead a reasonable person to believe that the child has been abused or neglected.

(11)  [Repealed.]

(12)  “Member of the clergy” means a priest, rabbi, clergy member, ordained or licensed minister, leader of any church or religious body, accredited Christian Science practitioner, person performing official duties on behalf of a church or religious body that are recognized as the duties of a priest, rabbi, clergy, nun, brother, ordained or licensed minister, leader of any church or religious body, or accredited Christian Science practitioner. 

(13)  “Redacted investigation file” means the intake report, the investigation activities summary, and case determination report that are amended in accordance with confidentiality requirements set forth in subsection 4913(d) of this title.

(14)  “Child abuse and neglect registry” means a record of all investigations that have resulted in a substantiated report on or after January 1, 1992.

(15)  “Registry record” means an entry in the child abuse and neglect registry that consists of the name of an individual substantiated for child abuse or neglect, the date of the finding, the nature of the finding, and at least one other personal identifier, other than a name, listed in order to avoid the possibility of misidentification.

§ 4913.  SUSPECTED CHILD ABUSE AND NEGLECT; REMEDIAL ACTION

(a)  Any physician, surgeon, osteopath, chiropractor, or physician’s assistant licensed, certified, or registered under the provisions of Title 26, any resident physician, intern, or any hospital administrator in any hospital in this state, whether or not so registered, and any registered nurse, licensed practical nurse, medical examiner, dentist, psychologist, pharmacist, any other health care provider, school superintendent, school teacher, school librarian, day child care worker, school principal, school guidance counselor, mental health professional, social worker, probation officer, police officer, camp owner, camp administrator, camp counselor, or member of the clergy who has reasonable cause to believe that any child has been abused or neglected shall report or cause a report to be made in accordance with the provisions of section 4914 of this title within 24 hours.  As used in this subsection, “camp” includes any residential or nonresidential recreational program.

(b)  Any other concerned person not listed in subsection (a) of this section who has reasonable cause to believe that any child has been abused or neglected may report or cause a report to be made in accordance with the provisions of section 4914 of this title.

(c)  Any person enumerated in subsections subsection (a) or (b) of this section, other than a person suspected of child abuse, who in good faith makes a report to the department of social and rehabilitation services shall be immune from any civil or criminal liability which might otherwise be incurred or imposed as a result of making a report.

(d)  The name of and any identifying information about either the person making the report, or any person mentioned in the report shall be confidential unless the person making the report specifically requests allows disclosure or unless a judicial proceeding results therefrom or unless a court, after a hearing, finds probable cause to believe that the report was not made in good faith and orders the department to make the name of the reporter available.

(e)(1)  A person who violates subsection (a) of this section shall be fined not more than $500.00.

(2)  A person who violates subsection (a) of this section with the intent to conceal abuse or neglect of a child shall be imprisoned not more than six months or fined not more than $1,000.00, or both.

(3)  This section shall not be construed to prohibit a prosecution under any other provision of law.

(f)  Except as provided in subsection (g) of this section, a person may not refuse to make a report required by this section on the grounds that making the report would violate a privilege or disclose a confidential communication.

(g)  A member of the clergy shall not be required to make a report under this section if the report would be based upon information received in a communication which is:

(1)  made to a member of the clergy acting in his or her capacity as spiritual advisor;

(2)  intended by the parties to be confidential at the time the communication is made;

(3)  intended by the communicant to be an act of contrition or a matter of conscience; and

(4)  required to be confidential by religious law, doctrine, or tenet.

(h)  When a member of the clergy receives information about abuse or neglect of a child in a manner other than as described in subsection (g) of this section, he or she is required to report on the basis of that information even though he or she may have also received a report of abuse or neglect about the same person or incident in the manner described in subsection (g) of this section. 

§ 4914.  NATURE AND CONTENT OF REPORT; TO WHOM MADE

A report shall be made orally or in writing to the commissioner for children and families or designee.  The commissioner or designee shall request the reporter to follow the oral report with a written report, unless the reporter is anonymous.  Reports shall contain the name and address or other contact information of the reporter as well as the names and addresses of the child and the parents or other persons responsible for the child’s care, if known; the age of the child; the nature and extent of the child’s injuries together with any evidence of previous abuse and neglect of the child or the child’s siblings; and any other information that the reporter believes might be helpful in establishing the cause of the injuries or reasons for the neglect as well as in protecting the child and assisting the family.  If a report of child abuse or neglect involves the acts or omissions of the commissioner for children and families or employees of that department, then the report shall be directed to the secretary of the agency of human services who shall cause the report to be investigated by staff of the department of disabilities, aging, and independent living or of corrections or other appropriate agency staff other than staff of the department for children and families.  If the report is substantiated, services shall be offered to the child and to his or her family or caretaker according to the requirements of section 4915 of this title.

§ 4915.  INVESTIGATION; REMEDIAL ACTION

(a)  The commissioner of social and rehabilitation services shall cause an investigation to commence department shall begin an investigation within 72 hours after receipt of a report made pursuant to section 4914 of this title, provided that it has received sufficient information to proceed.

(b)  The investigation, to the extent that it is reasonable under the facts and circumstances presented by the particular allegation of child abuse, shall include all of the following:

(1)  A visit to the child’s place of residence or place of custody and to the location of the alleged abuse or neglect.

(2)  An interview with, or observance of the child reportedly having been abused or neglected.  If the investigator elects to interview the child, that interview may take place without the approval of the child’s parents, guardian, or custodian, provided that it takes place in the presence of a disinterested adult who may be, but shall not be limited to being, a teacher, a member of the clergy, child care provider regulated by the department, or a nurse.

(3)  Determination of the nature, extent, and cause of any abuse or neglect.

(4)  Determination of the identity of the person alleged to be responsible for such abuse or neglect.

(5)(A)  The identity, by name, of any other children living in the same home environment as the subject child.  The investigator shall consider the physical and emotional condition of those children and may interview them, unless the child is the person who is alleged to be responsible for such abuse or neglect, in accordance with the provisions of subdivision (2) of this subsection.

(B)  The identity, by name, of any other children who may be at risk if the abuse was alleged to have been committed by someone who is not a member of the subject child’s household.  The investigator shall consider the physical and emotional condition of those children and may interview them, unless the child is the person who is alleged to be responsible for such abuse or neglect, in accordance with the provisions of subdivision (2) of this subsection.

(6)  A determination of the immediate and longterm long‑term risk to each child if that child remains in the existing home or other environment.

(7)  Consideration of the environment and the relationship of any children therein to the person alleged to be responsible for the suspected abuse or neglect.

(8)  All other data deemed pertinent.

(c)  If the investigation produces evidence that the child has been abused or neglected For cases investigated by the department, the commissioner may, to the extent that it is reasonable, cause assistance to be provided provide assistance to the child and the child’s family in accordance with a written plan of treatment.

(d)  The commissioner, designee, or any person required to report under section 4913 or any other person performing an investigation pursuant to section 4914 may take or cause to be taken, photographs of trauma visible on a child who is the subject of a report.  The commissioner or designee may seek consultation with a physician.  If it is indicated as appropriate by the physician, the commissioner or designee may cause the child who is subject of a report to undergo a radiological examination, without the consent of the child’s parent or guardian. 

(e)  Services may be provided to the child’s immediate family whether or not the child remains in the home. 

(f)  The department shall report to and request assistance from law enforcement in the following circumstances:

(1)  Investigations of child sexual abuse by an alleged perpetrator age 10 or older.

(2)  Investigations of serious physical abuse or neglect likely to result in criminal charges or requiring emergency medical care.

(3)  Situations potentially dangerous to the child or department worker.

§ 4916.    CHILD ABUSE AND NEGLECT REGISTRY; RECORDS OF ABUSE AND NEGLECT

(a)(1)  The commissioner of social and rehabilitation services shall maintain a child abuse and neglect registry which shall contain written records of all investigations initiated under section 4915 of this title unless the commissioner or the commissioner’s designee determines after investigation that the reported facts are unsubstantiated, in which case, after notice to the person complained about, the records shall be destroyed unless the person complained about requests within one year that it not be destroyed a record of all investigations that have resulted in a substantiated report on or after January 1, 1992.  Except as provided in subdivision (2) of this subsection, prior to placement of a substantiated report on the registry, the commissioner shall comply with the procedures set forth in section 4916a of this title.

(2)  In cases involving sexual abuse or serious physical abuse of a child, the commissioner in his or her sole judgment may list a substantiated report on the registry pending any administrative review after:

(A)  Reviewing the investigation file.

(B)  Making written findings in consideration of:

(i)  the nature and seriousness of the alleged behavior; and

(ii)  the person’s continuing access to children.

(3)  A person alleged to have abused or neglected a child and placed on the registry in accordance with subdivision (2) of this subsection shall be notified of the registry entry, provided with the commissioner’s findings, and advised of the right to seek an administrative review in accordance with section 4916a of this title.

(b)  If no court proceeding is brought pursuant to subsection 4913(d) of this title within one year of the date of the notice to the person complained about, the records relating to the unsubstantiated report shall be destroyed  A registry record means an entry in the child abuse and neglect registry that consists of the name of an individual substantiated for child abuse or neglect, the date of the finding, the nature of the finding, and at least one other personal identifier, other than a name, listed in order to avoid the possibility of misidentification.

(c)  The commissioner shall adopt rules to permit use of the registry records as authorized by this subchapter while preserving confidentiality of the records registry and other department records related to abuse and neglect. 

(d)  Written Registry records maintained in the registry shall only be disclosed to the commissioner or person designated by the commissioner to receive such records, persons assigned by the commissioner to investigate reports, the person reported on, an employer as defined in subsection 4919(e) of this title, or a state’s attorney or the attorney general.  In no event shall registry records be made available for employment purposes, other than as set forth in section 309 or 4919 of this title, or for credit purposes, or to a law enforcement agency other than the state’s attorney.  Any person who violates this subsection, except as provided in section 4919 of this title, shall be fined not more than $500.00.

(e)(1)  Verbal Notice.  The commissioner or the commissioner’s designee shall promptly inform a parent or guardian of the child that a report has been made and substantiated.  If a parent or guardian is under investigation for abuse or neglect, such information need only be provided to that parent or guardian in accordance with subsection 4916(d) of this title.

(2)  Written Records.  If Absent good cause shown by the department, if a report has been substantiated, the commissioner or the commissioner’s designee may shall provide upon request the written record redacted investigation file to the child’s parent or guardian or, if there is a pending juvenile proceeding or if the child is in custody of the commissioner, to the child’s attorney. 

(f)(1)  The commissioner or the commissioner’s designee may inform the following persons that a report has been substantiated:

(1)(A)  The person responsible for supervising the staff in the child’s residential, educational or day child care setting.

(2)(B)  Upon request, to the person who made the report under subsection 4913(a) of this title.

(C)  Any person authorized by law to receive such information. 

(2)  A person receiving information under this subsection shall not disclose that information to persons who are not involved with the provision of treatment services under section 4915 of this title to the abused or neglected child.

(g)  A person may, at any time, apply to the human services board for relief if he or she has reasonable cause to believe that contents of the registry are being misused.  All registry records relating to an individual child shall be destroyed when the child reaches the age of majority.  All registry records relating to a family or siblings within a family shall be destroyed when the youngest sibling reaches the age of majority.   All registry records shall be maintained according to the name of the child who has been abused or neglected, and the name of the person about whom the report was made.

(h)  A person may, at any time, apply to the human services board for an order expunging from the registry a record concerning him or her on the grounds that it is unsubstantiated or not otherwise expunged in accordance with this section.  The board shall hold a fair hearing under section 3091 of Title 3 on the application at which hearing the burden shall be on the commissioner to establish that the record shall not be expunged.

§ 4916a.  CHALLENGING PLACEMENT ON THE REGISTRY

(a)  If an investigation conducted in accordance with section 4915 of this title results in a determination that a report of child abuse or neglect should be substantiated, the department shall notify the person alleged to have abused or neglected a child of the following:

(1)  The nature of the substantiation decision, and that the department intends to enter the record of the substantiation into the registry.

(2)  Who has access to registry information and under what circumstances.

(3)  The implications of having one’s name placed on the registry as it applies to employment, licensure, and registration.

(4)  The right to request a review of the substantiation determination by an administrative reviewer, the time in which the request for review shall be made, and the consequences of not seeking a review.

(5)  The right to receive a copy of the commissioner’s written findings made in accordance with subdivision 4916(a)(2) of this title if applicable.

(b)  Under this section, notice by the department to a person alleged to have abused or neglected a child shall be by first class mail sent to the person’s last known address.

(c)  A person alleged to have abused or neglected a child may seek an administrative review of the department’s intention to place the person’s name on the registry by notifying the department within 14 days of the date the department mailed notice of the right to review in accordance with subsections (a) and (b) of this section.

(d)  The department shall hold an administrative review conference within 14 days of receipt of the request for review.  At least seven days prior to the administrative review conference, the department shall provide to the person requesting review a copy of the redacted investigation file, notice of time and place of the conference, and conference procedures, including information that may be submitted and mechanisms for providing testimony.  The department shall also provide to the person those redacted investigation files that relate to prior investigations that the department has relied upon to make its substantiation determination in the case in which a review has been requested.

(e)  At the administrative review conference, the person who requested the review shall be provided with the opportunity to present documentary evidence or other information that supports his or her position and provides information to the reviewer in making the most accurate decision regarding the allegation.  The department shall have the burden of proving that it has accurately and reliably concluded that a reasonable person would believe that the child has been abused or neglected by that person.  Upon the person’s request, the conference may be held by teleconference.

(f)  The department shall establish an administrative case review unit within the department and contract for the services of administrative reviewers.  An administrative reviewer shall be a neutral and independent arbiter who has no prior involvement in the original investigation of the allegation.

(g)  Within seven days of the conference, the administrative reviewer shall:

(1)  reject the department’s substantiation determination;

(2)  accept the department’s substantiation; or

(3)  place the substantiation determination on hold and direct the department to further investigate the case based upon recommendations of the reviewer.

(h)  If the administrative reviewer accepts the department’s substantiation determination, a registry record shall be made immediately. 

(i)  Within seven days of the decision to reject or accept or to place the substantiation on hold in accordance with subsection (g) of this section, the administrative reviewer shall provide notice to the person of his or her decision.  If the administrative reviewer accepts the department’s substantiation, the notice shall advise the person of the right to appeal the administrative reviewer’s decision to the human services board in accordance with section 4916b of this title.

(j)  Persons whose names were placed on the registry on or after January 1, 1992 but prior to July 1, 2007 shall be entitled to an opportunity to seek an administrative review to challenge the substantiation pursuant to this section.

(k)  If no administrative review is requested, the department’s decision in the case shall be final, and the person shall have no further right of review under this section. The commissioner may grant a waiver and permit such a review upon good cause shown.

§ 4916b.  HUMAN SERVICES BOARD HEARING

(a)  Within 30 days of the date on which the administrative reviewer mailed notice of placement of a report on the registry, the person who is the subject of the substantiation may apply in writing to the human services board for relief. The board shall hold a fair hearing pursuant to 3 V.S.A. § 3091.  When the department receives notice of the appeal, it shall make note in the registry record that the substantiation has been appealed to the board.

(b)(1)  The board shall hold a hearing within 60 days of the receipt of the request for a hearing and shall issue a decision within 30 days of the hearing.

(2)  Priority shall be given to appeals in which there are immediate employment consequences for the person appealing the decision.

(c)  A hearing may be stayed upon request of the petitioner if there is a related case pending in court.

(d)  If no review by the board is requested, the department’s decision in the case shall be final, and the person shall have no further right for review under this section.  The board may grant a waiver and permit such a review upon good cause shown.

§ 4916c.  PETITION FOR EXPUNGEMENT FROM THE REGISTRY

(a)  A person whose name has been listed on the registry for at least seven years may file a written request with the commissioner, seeking a review for the purpose of expunging an individual registry record.  The commissioner shall grant a review upon request.

(b)  The person shall have the burden of proving that a reasonable person would believe that he or she no longer presents a risk to the safety or well‑being of children.  Factors to be considered by the commissioner shall include:

(1)  The nature of the substantiation that resulted in the person’s name being placed on the registry.

(2)  The number of substantiations, if more than one.

(3)  The amount of time that has elapsed since the substantiation.

(4)  The circumstances of the substantiation that would indicate whether a similar incident would be likely to occur.

(5)  Any activities that would reflect upon the person’s changed behavior or circumstances, such as therapy, employment, or education.

(6)  References that attest to the person’s good moral character.

(c)  At the review, the person who requested the review shall be provided with the opportunity to present any evidence or other information, including witnesses, that supports his or her request for expungement.  Upon the person’s request, the review may be held by teleconference.

(d)  A person may seek a review under this section no more than once every 36 months. 

(e)  Within 30 days of the date on which the commissioner mailed notice of the decision pursuant to this section, a person may appeal the decision to the human services board.  The person shall be prohibited from challenging his or her substantiation at such hearing, and the sole issue before the board shall be whether the commissioner abused his or her discretion in denial of the petition for expungement.  The hearing shall be on the record below, and determinations of credibility of witnesses made by the commissioner shall be given deference by the board.

(f)  The department shall take steps to provide reasonable notice to persons on the registry of their right to seek an expungement under this section.  Actual notice is not required.   Reasonable steps may include activities such as the production of an informative fact sheet about the expungement process, posting of such information on the department website, and other approaches typically taken by the department to inform the public about the department’s activities and policies.  The department shall send notice of the expungement process to any person listed on the registry for whom a registry check has been requested.

§ 4916d.  AUTOMATIC EXPUNGEMENT OF REGISTRY RECORDS

(a)  Registry entries concerning a person who was substantiated for behavior occurring before the person reached 10 years of age shall be expunged when the person reaches the age of 18, provided that the person has had no additional substantiated registry entries, unless the department determines that the registry record should not be expunged due to the nature and seriousness of the incident of abuse.

(b)  If the department determines that the registry record should not be expunged, the department shall provide written notice to the individual.  The individual shall have the opportunity to petition for expungement from the registry pursuant to section 4916c of this title.

§ 4916e.  NOTICE TO MINORS

If the person alleged to have abused or neglected a child is a minor, any notice required pursuant to this subchapter shall be sent:

(1)  to the minor’s parents or guardian; or

(2)  if the child is in the custody of the commissioner, to the social worker assigned to the child by the department and the child’s counsel of record. 

* * *

§ 4919.  DISCLOSURE OF INFORMATION

(a)  The commissioner shall maintain a registry which shall contain the following information: the names of all the individuals found on the basis of a substantiated report to have abused, neglected or exploited a child; the date of the finding; and the nature of the finding.  In addition, the commissioner shall require that, aside from a person’s name, at least one other personal identifier is listed in the registry to prevent the possibility of misidentification.

(b)  The commissioner or the commissioner’s designee may disclose registry information only as set forth in section 4916 of this title or as follows:

(1)  To the state’s attorney or the attorney general;

(2)  To the owner or operator of a facility regulated by the department for the purpose of informing the owner or operator that employment of a specific individual may result in loss of license or registration, as set forth in section 309 of this title;

(3)  To an employer if such information is used to determine whether to hire or retain a specific individual providing care, custody, treatment, transportation, or supervision of children or vulnerable adults.  The employer may submit a request concerning a current employee, volunteer, grantee, or contractor or an individual to whom the employer has given a conditional offer of a contract, volunteer position, or employment.  The request shall be accompanied by a release signed by the current or prospective employee, volunteer, grantee, or contractor.  If that individual has a record of a substantiated report, the commissioner shall provide the registry information record to the employer;

(4)  To the commissioner of disabilities, aging, and independent living, or the commissioner’s designee, for purposes related to the licensing or registration of facilities regulated by the department of disabilities, aging, and independent living;

(5)  To the commissioner of health or of disabilities, aging, and independent living, or the commissioner’s designee, for purposes related to oversight and monitoring of persons who are served by or compensated with funds provided by the departments of health and of disabilities, aging, and independent living, including persons to whom a conditional offer of employment has been made;

(6)  Upon request or when relevant to other states’ adult protective services offices; and

(7)  Upon request or when relevant to other states’ child protection agencies.

(b)  An employer providing transportation services to children or vulnerable adults may disclose registry records obtained pursuant to subdivision (a)(3) of this section to the agency of human services or its designee for the sole purpose of auditing the records to ensure compliance with this subchapter.  An employer shall provide such records at the request of the agency or its designee.  Only registry records regarding individuals who provide direct transportation services or otherwise have direct contact with children or vulnerable adults may be disclosed.

(c)  Volunteers shall be considered employees for purposes of this section.

(d)  Disclosure of registry records or information or other records used or obtained in the course of providing services to prevent child abuse or neglect or to treat abused or neglected children and their families by one member of a multidisciplinary team to another member of that team shall not subject either member of the multidisciplinary team, individually, or the team as a whole, to any civil or criminal liability notwithstanding any other provision of law.

(e)  “Employer,” as used in this section, means a person or organization who employs or contracts with one or more individuals to care for or provide transportation services to children or vulnerable adults, on either a paid or volunteer basis. 

* * *

Sec. 2.  33 V.S.A. § 6911 is amended to read:

§ 6911.  RECORDS OF ABUSE, NEGLECT, AND EXPLOITATION

* * *

(c)  The commissioner or the commissioner’s designee may disclose registry information only to:

* * *

(3)  an employer if such information is used to determine whether to hire or retain a specific individual providing care, custody, treatment, transportation, or supervision of children or vulnerable adults.  “Employer,” as used in this section, means a person or organization who employs or contracts with one or more individuals to care for or provide transportation services to children or vulnerable adults, on either a paid or volunteer basis.  The employer may submit a request concerning a current employee, volunteer, grantee, or contractor or an individual to whom the employer has given a conditional offer of a contract, volunteer position, or employment.  The request shall be accompanied by a release signed by the current or prospective employee, volunteer, grantee, or contractor.  If that individual has a record of a substantiated report, the commissioner shall provide the registry information to the employer;

* * *

(d)  An employer providing transportation services to children or vulnerable adults may disclose registry records obtained pursuant to subdivision (c)(3) of this section to the agency of human services or its designee for the sole purpose of auditing the records to ensure compliance with this chapter.  An employer shall provide such records at the request of the agency or its designee.  Only registry records regarding individuals who provide direct transportation services or otherwise have direct contact with children or vulnerable adults may be disclosed.

(e)  A person may, at any time, apply to the human services board for relief if he or she has reasonable cause to believe that the contents of the registry or investigative records are being misused.

(e)(f)  A person may at any time apply to the department for expungement of his or her name from the registry.  The petitioner shall have the burden of showing why his or her name should be expunged from the registry.

(f)(g)  Any person who violates this section shall be fined not more than $500.00.

(g)(h)  Volunteers shall be considered employees for purposes of this section.

Sec. 3.  15A V.S.A. § 1-113 is amended to read:

§ 1-113.  CRIMINAL RECORD CHECKS

(a)  Criminal record checks required under this title shall be obtained as provided in this section.

(b)  The commissioner of the department of social and rehabilitation services for children and families or any judge of the probate court shall obtain from the Vermont criminal information center the record of Vermont convictions and pending criminal charges for any person being evaluated to be an adoptive parent.

(c)  The commissioner or probate judge, through the Vermont criminal information center shall request the record of convictions and pending criminal charges of the appropriate criminal repositories in all states in which there is reason to believe the applicant has resided or been employed.

(d)  If no disqualifying record is identified at the state level, the The commissioner or probate judge through the Vermont criminal information center shall request from the Federal Bureau of Investigation (FBI) a national criminal history record check of the applicant’s convictions and pending criminal charges.  The request to the FBI shall be accompanied by a set of the applicant’s fingerprints and a fee established by the Vermont criminal information center which shall be paid by the applicant and shall reflect the cost of obtaining the record from the FBI.

(e)  The Vermont criminal information center shall send to the requester any record received pursuant to this section or inform the requester that no record exists.

(f)  The requester shall promptly provide a copy of any record of convictions and pending criminal charges to the applicant and shall inform the applicant of the right to appeal the accuracy and completeness of the record pursuant to rules adopted by the Vermont criminal information center.

(g)  Upon completion of the applicant process under this section, the applicant’s fingerprint card and any copies thereof shall be destroyed.

Sec. 4.  33 V.S.A. § 309 is amended to read:

§ 309.  ACCESS TO RECORDS

(a)(1)  The commissioner may obtain from the Vermont crime information center the record of convictions of any person to the extent the commissioner has determined by rule that such information is necessary to regulate a facility or individual subject to regulation by the department.

(2)  In cases involving the prospective placement of a child in foster care, the commissioner shall for any prospective foster parent:

(A)  Obtain from the Vermont criminal information center the record of Vermont convictions and pending criminal charges.

(B)  Request, through the Vermont criminal information center, from the Federal Bureau of Investigation (FBI) a national criminal history record check of the prospective foster parent.  The request to the FBI shall be accompanied by a set of the applicant’s fingerprints, and a fee established by the Vermont criminal information center shall reflect the cost of obtaining the record from the FBI.

(C)  The department shall bear all costs for obtaining criminal records for prospective foster parents licensed by the department.

(3)  The commissioner shall first notify the person receive written authorization from the person whose record is being requested before requesting the record from the Vermont crime information center.

(b)(1)  The owner or operator of a facility or program licensed or, registered, or otherwise regulated by the department may ask the commissioner for the record of convictions criminal record and the record of substantiated reports of child abuse child abuse and neglect registry record of the following individuals:

(A)  a current employee or;

(B)  a person to whom the owner or operator has given a conditional offer of employment; or

(C)  any other person to the extent the commissioner has determined by rule that such information is necessary to regulate a facility or program.

(2)  The request shall be in writing and shall be accompanied by a release signed by the current or prospective employee person whose record is sought. The owner or operator release form shall inform the current or prospective employee person that he or she has the right to appeal the accuracy and completeness of the record.  Upon receiving a request under this subsection, the commissioner shall ask the Vermont crime information center for the record of convictions of the current or prospective employee and shall promptly search the child abuse and neglect registry.

(c)  If the person has a record of convictions, the commissioner shall provide the owner or operator of the facility or program that is licensed, registered, or otherwise regulated by the department with a copy of the record. If the person has a record of substantiated reports of child abuse in the child abuse and neglect registry, the commissioner shall inform the requesting owner or operator that such record exists.

(d)  Information released to an owner or operator under this section shall not be released or disclosed by the owner or operator to any other person except as authorized by law.  Release or disclosure of such information by an owner or operator may result in loss of license or, registration, or certification.

(e)  As used in this section,:

(1)  “Commissioner” means the commissioner or the commissioner’s designee.

(2)  “Employee” shall include volunteers.

(3)  “Substantiated reports of child abuse” “Child abuse and neglect registry record” means reports of child abuse substantiated under section 4915 of this title and entered into the child abuse and neglect registry maintained by the department pursuant to chapter 49 of this title.

(4)  “Volunteer” means an individual who without compensation provides services through a public or private organization.

Sec. 5.  SUNSET

The amendments in Secs. 3 and 4 shall be repealed on July 1, 2009 and 15A V.S.A. § 1-113 and 33 V.S.A. § 309 shall revert to the prior statutory text.

Sec. 6.  STUDY

(a)  The commissioner of the department for children and families or a designee shall perform a study for the purpose of considering:

(1)  The need for the agency or its designee to have the authority to perform criminal background checks on individuals providing care, custody, treatment, transportation, or supervision for children or vulnerable adults.

(2)  The need for reciprocal agreements with New York, Massachusetts, and New Hampshire to share child abuse registry information for the purpose of performing child abuse registry checks on residents of those states who provide care, custody, treatment, transportation, or supervision for children or vulnerable adults in this state.  The commissioner shall consult with similar agency administrators in those states to determine the feasibility of these reciprocal agreements.

(3)  The need for broadened authority for employers providing care, custody, treatment, transportation, or supervision for children or vulnerable adults to perform criminal background checks on prospective and current employees.

(4)  Issues related to allegations of abuse or neglect of a child, including a tiered approach to the investigation and substantiation of child abuse or neglect that is based upon the severity of the behavior and the risk to children and the community and that establishes appropriate corresponding consequences and protections.

(b)  While considering the issues of subsection (a) of this section, the commissioner shall consult with the following individuals, organizations, and state agencies:

(1)  The agency of human services.

(2)  The agency of human services’ director of housing and transportation.

(3)  The defender general.

(4)  Early childhood educators and caregivers.

(5)  The family services unit of the department for children and families.

(6)  The network against domestic and sexual violence.

(7)  Teachers, school nurses, and school administrators.

(8)  Pediatricians.

(9)  The Vermont citizens advisory board.

(10)  The Vermont public transportation association.

(c)  The commissioner shall report the findings of this study to the senate and house committees on judiciary, the senate committee on health and welfare, and the house committee on human services on or before November 1, 2007.

Sec. 7.  3 V.S.A. § 5407 is amended to read:

§ 5407.  SEX OFFENDER’S DUTY RESPONSIBILITY TO REPORT

(a)  A Except as provided in section 5411d of this title, a sex offender shall report to the department as follows:

(1)  if convicted of a registry offense in another state, within 10 days after either establishing residence in this state or crossing into this state for purposes of employment, carrying on a vocation, or being a student, the sex offender shall provide the information listed in subsection 5403(a) of this title;

(2)  annually within 10 days after the registrant’s birthday, or if a person is determined to be a sexually violent predator, that person shall report to the department every 90 days;

(3)  within three days after any change of address, or if a person is designated as a high‑risk sex offender pursuant to section 5411b of this title, that person shall report to the department within 36 hours;

(4)  within three days after the registrant enrolls in or separates from any postsecondary educational institution; and

(5)  within three days after any change in place of employment; and

(6)  within three days of any name change.

* * *

(f)  A person required to register as a sex offender under this subchapter shall continue to comply with this section for the life of that person, except during periods of incarceration, if that person:

(1)  has at least one prior conviction for an offense described in subdivision 5401(10) of this subchapter or a comparable offense in another jurisdiction of the United States;

(2)  has been convicted of a sexual assault as defined in section 3252 of this title or aggravated sexual assault as defined in section 3253 of this title; however, if a person convicted under section 3252 is not more than six years older than the victim of the assault and if the victim is 14 years or older, then the offender shall not be required to register for life if the age of the victim was the basis for the conviction; or

(3)  has been determined to be a sexually violent predator pursuant to section 5405 of this subchapter title; or

(4)  has been designated as a noncompliant high‑risk sex offender pursuant to section 5411d of this title.

* * *

(h)  A registrant who has no permanent address shall report to the department to notify it as to his or her temporary residence.  Temporary residence, for purposes of this section, need not include an actual dwelling or numbered street address, but shall identify a specific location.  A registrant shall not be required to check in daily if he or she makes acceptable other arrangements with the department to keep his or her information current.  The department may enter into an agreement with a local law enforcement agency to perform this function, but shall maintain responsibility for compliance with this subsection.

Sec. 8.  13 V.S.A. § 5411 is amended to read:

§ 5411.  NOTIFICATION TO LOCAL LAW ENFORCEMENT AND LOCAL COMMUNITY

* * *

(e)  After 10 years have elapsed from the completion of the sentence, a person required to register as a sex offender for life pursuant to section 5407 of this title who is not designated as a noncompliant high‑risk sex offender pursuant to section 5411d of this title may petition the district court for a termination of community notification, including the internet.  The state shall make a reasonable attempt to notify the victim of the proceeding, and consider victim testimony regarding the petition.  If the registrant was convicted of a crime which requires lifetime registration, there shall be a rebuttable presumption that the person is a high‑risk sex offender.  Should the registrant present evidence that he or she is not a high‑risk offender, the state shall have the burden of proof to establish by a preponderance of the evidence that the person remains a high risk to reoffend.  The court shall consider whether the offender has successfully completed sex offender treatment.  The court may require the offender to submit to a psychosexual evaluation.  If the court finds that there is a high risk of reoffense, notification shall continue.  The Vermont Rules of Civil Procedure shall apply to these proceedings.  A lifetime registrant may petition the court to be removed from community notification requirements once every 60 months.  The presumption under this section that a lifetime registrant is a high‑risk offender shall not automatically subject the offender to increased public access to his or her status as a sex offender and related information under subdivision (c)(1) of this section or section 5411a of this title.

Sec. 9.  13 V.S.A. § 5411a is amended to read:

§ 5411a.  ELECTRONIC POSTING OF THE SEX OFFENDER REGISTRY

(a)  Notwithstanding sections 2056a–2056e of Title 20, the department shall electronically post information on the internet in accordance with subsection (b) of this section regarding the following sex offenders, upon their release from confinement:

* * *

(5)(A)  Sex offenders who have not complied with sex offender treatment recommended by the department of corrections or who are ineligible for sex offender treatment.  The department of corrections shall establish rules for the administration of this subdivision and shall specify what circumstances constitute noncompliance with treatment and criteria for ineligibility to participate in treatment.  Offenders subject to this provision shall have the right to appeal the department of corrections’ determination in superior court in accordance with Rule 75 of the Vermont Rules of Civil Procedure.  This subdivision shall apply prospectively and shall not apply to those sex offenders who did not comply with treatment or were ineligible for treatment prior to March 1, 2005. 

(B)  The department of corrections shall notify the department if a sex offender who is compliant with sex offender treatment completes his or her sentence but has not completed sex offender treatment.  As long as the offender complies with treatment, the offender shall not be considered noncompliant under this subdivision and shall not be placed on the internet registry in accordance with this subdivision alone.  However, the offender shall submit to the department proof of continuing treatment compliance every three months.  Proof of compliance shall be a form provided by the department that the offender’s treatment provider shall sign, attesting to the offender’s continuing compliance with recommended treatment.  Failure to submit such proof as required under this subdivision shall result in the offender’s placement on the internet registry in accordance with subdivision (A) of this subdivision (5).

* * *

Sec. 10.  13 V.S.A. § 5411d is added to read:

§ 5411d.  DESIGNATION OF NONCOMPLIANT HIGH‑RISK SEX OFFENDER

(a)  Prior to releasing a person from total confinement, the department of corrections shall designate the person as a noncompliant high‑risk sex offender if the person:

(1)  Is incarcerated on or after the effective date of this act for lewd and lascivious conduct with a child as defined in section 2602 of this title, sexual assault as defined in section 3252 of this title, aggravated sexual assault as defined in section 3253 of this title, or any attempt to commit a crime listed herein, or a comparable offense in another jurisdiction of the United States.

(2)  Is not subject to indeterminate life sentences under section 3271 of this title.

(3)  Is designated as a high‑risk sex offender pursuant to section 5411b of this title.

(4)  Is noncompliant with sex offender treatment as defined by department of corrections’ directives.

(b)  Noncompliant high‑risk sex offenders shall report to the department as follows:

(1)  In person, within 15 days from the date of release from department of corrections’ supervision, and within every 30 days thereafter.

(2)   Prior to any change of address.  However, if the change of address is unanticipated, the offender shall report within one day of the change of address.

(3)  Prior to enrollment in or separation from any postsecondary educational institution.  However, if the change in school status is unanticipated, the offender shall report within one day of the change.

(4)  Within one day of any change in a place of employment.

(c)  In addition to the registry information required in section 5403 of this title, a noncompliant high‑risk sex offender shall provide the department with the make, model, color, registration, and license plate number of any vehicle the person operates prior to operation.  An offender found in operation of a vehicle not on the list provided to the department shall be considered to be in violation of this subsection.

(d)  The department shall arrange for the noncompliant high‑risk sex offender to have his or her digital photograph updated annually for purposes of the electronic registry as provided in section 5411a of this title.  An offender who is requested by the department to report to the department or a local law enforcement agency for the purpose of being photographed for the internet registry shall comply with the request within 30 days.

(e)  The department shall conduct periodic unannounced registry compliance checks on noncompliant high‑risk sex offenders to verify the accuracy of registry information.  The department may enter into an agreement with a local law enforcement agency to perform duties under this subsection and under subdivision (b)(1) of this section, but shall maintain responsibility for compliance with this subsection.

(f)(1)  A noncompliant high‑risk sex offender may petition the district court to be relieved from the heightened registry requirements in this section once every five years from the date of designation.  The offender shall have the burden of proving by a preponderance of the evidence that he or she:

(A)  no longer qualifies as a high‑risk offender as defined in section 5401 of this title and rules adopted by the department of corrections in accordance with section 5411b of this title; and

(B)  has complied with and completed sex offender treatment as provided by department of corrections’ directives.

(2)  The Vermont Rules of Civil Procedure shall apply to these proceedings.

(3)  If the court finds that the offender is not high‑risk and has successfully completed treatment, the court shall order that the offender is no longer considered a noncompliant high‑risk offender and is subsequently relieved from the heightened registry requirements of this section; however, the offender shall still continue to comply with sex offender registry and other requirements as provided elsewhere in this subchapter.

(g)(1)  A noncompliant high‑risk sex offender who violates any of the registry requirements under this section shall be imprisoned for a maximum term of life.  A sentence may be suspended in whole or in part, or the person may be eligible for parole or release on conditional reentry or furlough, provided the person is subject to electronic monitoring using an active global positioning system.  Electronic monitoring shall be an addition to intensive supervision by the department of corrections.

(2)  In a criminal proceeding for violating any of the registry requirements under this section, a defendant shall be prohibited from challenging his or her status as a noncompliant high‑risk sex offender.

Sec. 11.  4 V.S.A. § 437 is amended to read:

§ 437.  Civil jurisdiction of district court

The district court shall have jurisdiction of the following actions:

* * *

(9)  Sex offender notification proceedings pursuant to 13 V.S.A. § 5411(c) subsections 5411(e) and 5411d(f) of Title 13.

* * *

Sec. 12.  EFFECTIVE DATE

(a)  In Sec. 2 of this act, the following provisions shall take effect September 1, 2007:  33 V.S.A. §§ 4916(a), 4916a, and 4916b.

(b)  All other sections shall take effect upon passage.

(For House Amendment see House Journal 4/5/07 – pp 542-558)

H. 154

     An act relating to stormwater management.

     The Senate proposes to the House to amend the bill as follows:

First:  In Sec. 1, 10 V.S.A. § 1264(f)(3), by striking out “January 15, 2010” where it appears in the first sentence and inserting in lieu thereof January 15, 2009

Second:  By striking out Secs. 3 and 4 in their entirety and inserting in lieu thereof the following: 

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, 2009.

(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, 2009.

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

(a)  Beginning January 15, 2008, and every two years thereafter, the agency of natural resources shall report to the house committee on fish, wildlife and water resources and the senate committee on natural resources and energy regarding agency progress in establishing and implementing the total maximum daily load (TMDL) plan for Lake Champlain.  Beginning January 15, 2009, and every two years thereafter, the agency of natural resources shall report to the house committee on fish, wildlife and water resources and the senate committee on natural resources and energy regarding agency progress in establishing and implementing the TMDLs for the stormwater-impaired waters of the state.  Prior to issuing the reports required under this section, the agency of natural resources shall hold a public hearing in the Lake Champlain watershed and each watershed of a stormwater-impaired water for which a permit has been issued implementing a total maximum daily load.  The reports 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.

(b)  On or before January 15, 2008, the agency of natural resources shall report to the senate and house committee on institutions, the house committee on fish, wildlife and water resources, and the senate committee on natural resources and energy regarding methods for and the cost of reducing phosphorus discharges from wastewater treatment facilities in the Lake Champlain basin.  The report required by this section may be combined with the report required under subsection (a) of this section regarding agency progress in establishing and implementing the TMDL for Lake Champlain.  The report required by this subsection shall include:

(1)  An analysis and summary of the existing phosphorus treatment practices at each wastewater treatment facility in the Lake Champlain basin;

(2)  An analysis of each wastewater treatment facility in the Lake Champlain basin in order to determine the feasibility of each facility reducing the amount of phosphorus it discharges to state waters, including the treatment processes that each facility could implement in order to reduce additional phosphorus discharges;

(3)  An estimate of the capital cost to each wastewater treatment facility in the Lake Champlain basin of implementing the phosphorus reduction treatment processes identified under subdivision (2) of this subsection; and

(4)  Recommended incentives that would encourage wastewater treatment facilities in the Lake Champlain basin to reduce voluntarily phosphorus discharges.

Sec. 5.  10 V.S.A. chapter 47, subchapter 6 is added to read:

Subchapter 6.  Lake Champlain Water Quality

§ 1385.  LAKE CHAMPLAIN TOTAL MAXIMUM DAILY LOAD

(a)(1)  The secretary of natural resources shall reopen the total maximum daily load (TMDL) plan for Lake Champlain as it pertains to the waters of Vermont in order to:

(A)  Adopt a new hydrologic base year to reflect the average phosphorus load discharged to Lake Champlain between 1993 and 2004;

(B)  Allocate point source and non-point source load reductions on a subwatershed basis;

(C)  Ensure that the total, annual phosphorus discharged by all wastewater treatment facilities in the aggregate does not exceed the total phosphorus load discharged to Lake Champlain by all wastewater treatment facilities in the aggregate in 2006 and to adjust aggregate total phosphorus load allocations to Lake Champlain accordingly; and

(D)  Amend pollutant load allocations within the TMDL so as to reduce point source and non-point source load allocations in order to reasonably assure that the TMDL meets the Vermont water quality standards.

(2)  The amended TMDL shall be submitted to the U.S. Environmental Protection Agency as required by 33 U.S.C. § 303.

(b)  In addition to the requirements of subsection (a) of this section, the secretary of natural resources shall amend the Vermont-specific implementation plan of the Lake Champlain TMDL to include a strategy for identifying and targeting critical source areas for non-point source pollution in each subwatershed.  For the purposes of this subsection, “critical source area” means an area in a watershed with high potential to release phosphorus to surface or subsurface runoff to waters of the state.

(c)  In amending the TMDL for Lake Champlain under subsection (a) of this section and in amending the Vermont-specific implementation plan of the Lake Champlain TMDL under subsection (b) of this section, the secretary of natural resources shall comply with the public participation requirements of 40 C.F.R. § 130.7(c)(1)(ii).

Sec. 6.  CLEAN AND CLEAR ACTION PLAN INDEPENDENT AUDIT

On or before January 15, 2008, the secretary of administration shall submit to the house and senate committees on appropriations, the house and senate committees on agriculture, the senate committee on natural resources and energy, and the house committee on fish, wildlife and water resources a program audit of the progress and efficacy of the clean and clear action plan, including a financial analysis of the utilization and spending of funds appropriated to the agency of natural resources and the agency of agriculture, food and markets as part of the clean and clear action plan.  The audit shall be conducted by a qualified, independent environmental consultant or organization with knowledge of the clean water act, state water quality requirements and programs, and the program elements of the clean and clear action plan.

Sec. 7.  EFFECTIVE DATE

(a)  This section and Secs. 1 (secretary issuance of TMDLs), 2 (notice of deferral of permit), 3 (extension of interim stormwater permit program), 4 (agency of natural resources TMDL report), and 6 (clean and clear action plan audit) of this act shall take effect upon passage.

(b)  Sec. 5  (Lake Champlain TMDL review and reopening) shall take effect July 1, 2008.

(For House Amendments see House Journal 3/21/07 pp 374-377; 3/22/07 pp 387-388)

Action Postponed Until Tuesday, May 1, 2007

House Proposal of Amendment

S. 133

An act relating to the operation of a motor vehicle by junior operators and primary safety belt enforcement.

Pending Action: Second Reading of the bill.

NOTICE CALENDAR

Committee Bills for Second Reading

H. 546

An act relating to compensation and retirement benefits for certain state employees and emergency management.

(Rep. Atkins of Winooski will speak for the Committee on Government Operations.)

H. 547

An act relating to fiscal year 2007 supplemental appropriations.

(Rep. Heath will speak for the Committee on Appropriations.)

Favorable with Amendment

S.  7

An act relating to the compassionate use of marijuana for medical purposes.

Rep. Donahue of Northfield, for the Committee on Human Services, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  18 V.S.A. chapter 86 is amended to read:

CHAPTER 86.  THERAPEUTIC USE OF CANNABIS

* * *

Subchapter 2.  Marijuana for Medical Symptom Use

by Persons with Severe Illness

§ 4472.  DEFINITIONS

For the purposes of this subchapter:

(1)  “Bona fide physician-patient relationship” means a treating or consulting relationship of not less than six months duration, in the course of which a physician has completed a full assessment of the registered patient’s medical history and current medical condition, including a personal physical examination.

(2)  “Debilitating medical condition,” provided that, in the context of the specific disease or condition described in subdivision (A) or (B) of this subdivision (2), reasonable medical efforts have been made over a reasonable amount of time without success to relieve the symptoms, means:

(A)  end of life care for cancer or acquired immune deficiency syndrome; or

(B)  cancer, acquired immune deficiency syndrome, positive status for human immunodeficiency virus, multiple sclerosis, or the treatment of these diseases or medical conditions if:

(i)  the disease or condition or its treatment results in severe, persistent, and intractable symptoms; and

(ii)  in the context of the specific disease or condition, reasonable medical efforts have been made over a reasonable amount of time without success in relieving the symptoms.

(A)  cancer, multiple sclerosis, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions, if the disease or the treatment results in severe, persistent, and intractable symptoms; or

(B)  a disease, medical condition, or its treatment that is chronic, debilitating, and produces severe, persistent, and one or more of the following intractable symptoms: cachexia or wasting syndrome; severe pain; severe nausea; or seizures.

(3)  “Marijuana” shall have the same meaning as provided in subdivision 4201(15) of this title.

(4)  “Physician” means a person who is:

(A)  licensed under chapter 23 or chapter 33 of Title 26, and is licensed with authority to prescribe drugs under Title 26; or

(B)  a physician, surgeon, or osteopathic physician licensed to practice medicine and prescribe drugs under comparable provisions in New Hampshire, Massachusetts, or New York.

(5)  “Possession limit” means the amount of marijuana collectively possessed between the registered patient and the patient’s registered caregiver which is no more than one two mature marijuana plant plants, two four immature plants, and two ounces of usable marijuana.

(6)  “Registered caregiver” means a person who is at least 21 years old who has never been convicted of a drug-related crime and who has agreed to undertake responsibility for managing the well-being of a registered patient with respect to the use of marijuana for symptom relief.

(7)  “Registered patient” means a person who has been issued a registration card by the department of public safety identifying the person as having a debilitating medical condition pursuant to the provisions of this subchapter.

(8)  “Secure indoor facility” means a building or room equipped with locks or other security devices that permit access only by a registered caregiver or registered patient.

(9)  “Usable marijuana” means the dried leaves and flowers of marijuana, and any mixture or preparation thereof, and does not include the seeds, stalks, and roots of the plant.

(10)  “Use for symptom relief” means the acquisition, possession, cultivation, use, transfer, or transportation of marijuana or paraphernalia relating to the administration of marijuana to alleviate the symptoms or effects of a registered  patient’s debilitating medical condition which is in compliance with all the limitations and restrictions of this subchapter.  For the purposes of this definition, “transfer” is limited to the transfer of marijuana and paraphernalia between a registered caregiver and a registered patient.

§ 4473.  REGISTERED PATIENTS; QUALIFICATION STANDARDS AND PROCEDURES

(a)  To become a registered patient, a person must be diagnosed with a debilitating medical condition by a physician in the course of a bona fide physician-patient relationship. 

(b)  The department of public safety shall review applications to become a registered patient using the following procedures:

(1)  A patient with a debilitating medical condition shall submit, under oath, a signed application for registration to the department.  If the patient is under the age of 18 the application must be signed by both the patient and a parent or guardian.  The application shall require identification and contact information for the patient and the patient’s registered caregiver applying for authorization under section 4474 of this title, if any.  The applicant shall attach to the application a copy of relevant portions of the patient’s medical record sufficient to establish that the patient has a debilitating medical condition medical verification form developed by the department pursuant to subdivision (2) of this subsection.

(2)  The department of public safety shall develop a medical verification form to be completed by a physician and submitted by a patient applying for registration in the program.  The form shall include:

(A)  A cover sheet which includes the following:

(i)  A statement of the penalties for providing false information.

(ii)  Definitions of the following statutory terms:

(I)  “Bona fide physician-patient relationship” as defined in subdivision 4472(1) of this title.

(II)  “Debilitating medical condition” as defined in subdivision 4472(2) of this title.

(III)  “Physician” as defined in subdivision 4472(4) of this title.

(B)  A verification sheet which includes the following:

(i)  A statement that a bona fide physician-patient relationship exists under subdivision 4472(1) of this title, or that under subdivision (3)(A) of this subsection (b) the debilitating medical condition is of recent or sudden onset, and the patient has not had a previous physician who is able to verify the nature of the disease and its symptoms.

(ii)  A statement that reasonable medical efforts have been made over a reasonable amount of time without success to relieve the symptoms.

(iii)  A statement that the patient has a debilitating medical condition as defined in subdivision 4472(2) of this title, including the specific disease or condition which the patient has and whether the patient meets the criteria under subdivision 4472(2)(A) or subdivision 4472(2)(B).

(iv)  A signature line which provides in substantial part: “I certify that I meet the definition of ‘physician’ under 18 V.S.A. § 4472(4)(A) or 4472(4)(B) (circle one), that I am a physician in good standing in the state of _______, and that the facts stated above are accurate to the best of my knowledge and belief.”

(v)  The physician’s contact information.  

(2)(3)(A) The department shall transmit the completed medical verification form to the physician and contact the physician him or her for purposes of verifying the existence of a bona fide physician-patient relationship and confirming the accuracy of the medical record information contained in the form.  The department may approve an application, notwithstanding the six-month requirement in subdivision 4472(1) of this title, if the department is satisfied that the medical verification form confirms that the debilitating medical condition is of recent or sudden onset and that the patient has not had a previous physician who is able to verify the nature of the disease and its symptoms.

(B)  If the physician is licensed in another state as provided by subdivision 4472(4)(B) of this title, the department shall contact the state’s medical practice board and verify that the physician is in good standing in that state.

(3)(4)  The department shall approve or deny the application for registration in writing within 30 days from receipt of a completed registration application.  If the application is approved, the department shall issue the applicant a registration card which shall include the registered patient’s name and photograph, as well as a unique identifier for law enforcement verification purposes under section 4474d of this title.

(4)(A)(5)(A)  A review board is established.  The medical practice board shall appoint three physicians licensed in Vermont to constitute the review board.  If an application under subdivision (1) of this subsection is denied, within seven days the patient may appeal the denial to the board.  Review shall be limited to information submitted by the patient under subdivision (1) of this subsection, and consultation with the patient’s treating physician.  All records relating to the appeal shall be kept confidential.  An appeal shall be decided by majority vote of the members of the board.

(B)  The board shall meet periodically to review studies, data, and any other information relevant to the use of marijuana for symptom relief.  The board may make recommendations to the general assembly for adjustments and changes to this chapter.

(C)  Members of the board shall serve for three-year terms, beginning February 1 of the year in which the appointment is made, except that the first members appointed shall serve as follows:  one for a term of two years, one for a term of three years, and one for a term of four years.  Members shall be entitled to per diem compensation authorized under section 1010 of Title 32.  Vacancies shall be filled in the same manner as the original appointment for the unexpired portion of the term vacated.

§ 4474.  REGISTERED CAREGIVERS; QUALIFICATION STANDARDS
  AND PROCEDURES

(a)  A person may submit a signed application to the department of public safety to become a registered patient’s registered caregiver.  The department shall approve or deny the application in writing within 30 days.  The department shall approve a registered caregiver’s application and issue the person an authorization card, including the caregiver’s name, photograph, and a unique identifier, after verifying:

(1)  the person will serve as the registered caregiver for one registered patient only; and

(2)  the person has never been convicted of a drug‑related crime.

(b)  Prior to acting on an application, the department shall obtain from the Vermont criminal information center a Vermont criminal record, an out-of-state criminal record, and a criminal record from the Federal Bureau of Investigation for the applicant.  For purposes of this subdivision, “criminal record” means a record of whether the person has ever been convicted of a drug-related crime.  Each applicant shall consent to release of criminal records to the department on forms substantially similar to the release forms developed by the center pursuant to section 2056c of Title 20.  The department shall comply with all laws regulating the release of criminal history records and the protection of individual privacy.  The Vermont criminal information center shall send to the requester any record received pursuant to this section or inform the department of public safety that no record exists.  If the department disapproves an application, the department shall promptly provide a copy of any record of convictions and pending criminal charges to the applicant and shall inform the applicant of the right to appeal the accuracy and completeness of the record pursuant to rules adopted by the Vermont criminal information center.  No person shall confirm the existence or nonexistence of criminal record information to any person who would not be eligible to receive the information pursuant to this subchapter.

(c)  A registered caregiver may serve only one registered patient at a time, and a registered patient may have only one registered caregiver at a time.

§ 4474a.  REGISTRATION; FEES

(a)  The department shall collect a fee of $100.00 $50.00 for the application authorized by sections 4473 and 4474 of this title.  The fees received by the department shall be deposited into a registration fee fund and used to offset the costs of processing applications under this subchapter.

(b)  A registration card shall expire one year after the date of issue, with the option of renewal, provided the patient submits a new application which is approved by the department of public safety, pursuant to sections section 4473 or 4474 of this title, and pays the fee required under subsection (a) of this section.

* * *

(Committee vote: 10-1-0)

Rep. Aswad of Burlington, for the Committee on Ways and Means, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Human Services.

(Committee vote: 10-0-1)

Rep. Lippert of Hinesburg, for the Committee on Judiciary, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Human Services.

(Committee vote: 6-4-1)

(For text see Senate Journal 02/28/07 P. 181-186; 03/01/07 P.200 )

S. 51

An act relating to prohibiting discrimination on basis of gender identity.

Rep. Lippert of Hinesburg, for the Committee on Judiciary, recommends that the House propose to the Senate that the bill be amended as follows:

First:  In Sec. 18, 21 V.S.A. § 495, by striking out subsection (g) in its entirety and inserting in lieu thereof a new subsection (g) to read as follows:

(g)  Notwithstanding any provision of this subchapter, an employer shall not be prohibited from establishing and enforcing reasonable workplace policies to address matters related to employees’ gender identity, including permitting an employer to establish a reasonable dress code for the workplace. 

Second:  By striking out Sec. 18a in its entirety and inserting in lieu thereof a new Sec. 18a to read as follows:

Sec. 18a.  LEGISLATIVE INTENT

(a)  It is the intent of the general assembly that 21 V.S.A. § 495(g) shall not be used as a pretext for an employer to enact workplace policies that deny an individual the protections afforded under this subchapter.

(b)  It is the intent of the general assembly that this act shall not require the offer of or coverage for additional health benefits under any insurance policy or certificate, subscriber contract, or employee health benefit plan.  This act shall not be interpreted to reduce any rights to health benefits that may be available under other law.

(Committee vote: 9-0-2)

(For text see Senate Journal 03/15/07 – P. 244 )

S. 82

An act relating to the use of Vermont addresses and representations of Vermont origins.

Rep. Sunderland of Rutland Town, for the Committee on Commerce, recommends that the House propose to the Senate that the bill be amended as follows:

Sec. 2.  10 V.S.A. § 7105(e)(1)(J) is amended to read:

(J)  A mercury-added neon type sign or lamp.

Sec. 3.  10 V.S.A. § 7106(i)(3) is amended to read:

(3)(A)(i)  Labeling of products that contain, as their only mercury-added components, one or more lamps not intended to be replaceable by the user or consumer that are used for one or more of the purposes enumerated in this subdivision shall meet all the requirements of subsections (a) through (f) of this section, except no label is required on the internal lamp, no label is required on the package, and no label is required to be visible prior to purchase.  A label must be included in the care and use manual or product instructions, if any in the event that no care and use manual is produced for the product, the product instructions.

(i)  Lamp purposes subject to this subdivision shall be:

(I)  backlighting;

(II)  liquid crystal display (LCD) panel;

(III)  scanning images; or

(IV)  copying images.

(ii)  This subdivision (A) shall apply to products containing lamps used for other purposes, if those products are approved under subsection (h) of this section, except that there need not be compliance in this instance with the requirement established in subdivision (h)(1)(A)(ii), regarding the effectiveness of the proposed alternative.

(B)  Labeling of products with a screen or LCD panel less than seven inches on the diagonal that contain, as their only mercury-added components, one or more lamps not intended to be replaceable by the user or consumer that are used for backlighting shall meet all the requirements of subsections (a) through (c) of this section by placing the label on the product or in the care and use manual or product instructions, if any in the event that no care and use manual is produced for the product, the product instructions.  No label is required on the internal lamp, and no label shall be required to be visible prior to purchase.

(C)  Labeling of a product that contains as its only mercury-added components a lamp or lamps at least one of which is intended to be replaceable by the user or consumer must meet the labeling requirements of subsections (a) through (f) of this section, except no label is required to be visible prior to purchase. A label must also be included in the care and use manual or product instructions, if any in the event that no care and use manual is produced for the product, the product instructions. If the replaceable lamp is placed within a housing intended to be replaceable by the user or consumer, the housing must also be labeled.

(D)  Labeling of replacement components for products in subdivision (A) or (B) of this subdivision (3) shall meet all the requirements of subsections (a) through (f) of this section by labeling the package on the replacement component.

Sec. 4.  ELECTRONICS LABELING

(a)  Notwithstanding the labeling requirements contained in subsection

7106(a) of Title 10, the following products shall not be offered for final sale,  sold at a final sale, or distributed in Vermont on or after October 1, 2007,  unless both the product and its packaging are labeled in accordance with  section 7106 of Title 10:

(1)  A product that was manufactured on or after October 1, 2007 with a screen or an LCD panel more than seven inches on the diagonal that contains, as its only mercury-added component, one or more lamps not intended to be replaceable by the user or consumer; or

(2)  A product that was manufactured on or after October 1, 2007 that  contains as its only mercury-added component a replaceable lamp that is  placed within a housing intended to be replaceable by the user or consumer used in a projection system or projection television; or

(3)  A product that was manufactured on or after October 1, 2007 that contains as its only mercury-added component, one or more nonreplaceable  or nonremovable mercury-added lamps used for backlighting, LCD panels,  scanning images or copying images.

(b)  The requirement of subsection (a) of this section may also be met by compliance with the terms of any approved alternative labeling method granted under subsection 7106(h) or (i) of Title 10.

(c)  A retailer may not be found in violation of this section if the retailer lacked knowledge that the product contained mercury.

Sec. 5.  EFFECTIVE DATE; REPEAL

(a)  This act shall be effective upon passage.

(b)  Sec. 3 of this act shall be repealed on July 1, 2008.

(Committee vote: 11-0-0)

(For text see Senate Journal 03/21/07 P. 244 )

S. 115

An act relating to increasing transparency of prescription drug pricing and information.

Rep. Copeland-Hanzas of Bradford, for the Committee on Health Care, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  33 V.S.A. § 1998 is amended to read:

§ 1998.  PHARMACY BEST PRACTICES AND COST CONTROL
              PROGRAM ESTABLISHED

(a)  The director of the office of Vermont health access shall establish and maintain a pharmacy best practices and cost control program designed to reduce the cost of providing prescription drugs, while maintaining high quality in prescription drug therapies.  The program shall include:

(1)  A Use of an evidence‑based preferred list of covered prescription drugs that identifies preferred choices within therapeutic classes for particular diseases and conditions, including generic alternatives and over‑the‑counter drugs.

(A)  The director and the commissioner of banking, insurance, securities, and health care administration shall implement the preferred drug list as a uniform, statewide preferred drug list by encouraging all health benefit plans in this state to participate in the program.

(B)  The commissioner of human resources shall use the preferred drug list in the state employees health benefit plan only if participation in the program will provide economic and health benefits to the state employees health benefit plan and to beneficiaries of the plan, and only if agreed to through the bargaining process between the state of Vermont and the authorized representatives of the employees of the state of Vermont.  The provisions of this subdivision do not authorize the actuarial pooling of the state employees health benefit plan with any other health benefit plan, unless otherwise agreed to through the bargaining process between the state of Vermont and the authorized representatives of the employees of the state of Vermont.  No later than November 1, 2004, the commissioner of human resources shall report to the health access oversight committee and the senate and house committees on health and welfare on whether use of the preferred drug list in the state employees health benefit plan would, in his or her opinion, provide economic and health benefits to the state employees health benefit plan and to beneficiaries of the plan.

(C)  The director shall encourage all health benefit plans to implement the preferred drug list as a uniform, statewide preferred drug list by inviting the representatives of each health benefit plan providing prescription drug coverage to residents of this state to participate as observers or nonvoting members in the director’s drug utilization review board, and by inviting such plans to use the preferred drug list in connection with the plans’ prescription drug coverage.

(2)  Utilization review procedures, including a prior authorization review process.

(3)  Any strategy designed to negotiate with pharmaceutical manufacturers to lower the cost of prescription drugs for program participants, including a supplemental rebate program.

(4)  With input from physicians, pharmacists, private insurers, hospitals, pharmacy benefit managers, and the drug utilization review board, an evidence‑based research education program designed to provide information and education on the therapeutic and cost‑effective utilization of prescription drugs to physicians, pharmacists, and other health care professionals authorized to prescribe and dispense prescription drugs.  To the extent possible, the program shall inform prescribers about drug marketing that is intended to circumvent competition from generic alternatives.  Details of the program, including the scope of the program and funding recommendations, shall be contained in a report submitted to the health access oversight committee and the senate and house committees on health and welfare no later than January 1, 2005.

(5)(4)  Alternative pricing mechanisms, including consideration of using maximum allowable cost pricing for generic and other prescription drugs.

(6)(5)  Alternative coverage terms, including consideration of providing coverage of over‑the‑counter drugs where cost‑effective in comparison to prescription drugs, and authorizing coverage of dosages capable of permitting the consumer to split each pill if cost‑effective and medically appropriate for the consumer.

(7)(6)  A simple, uniform prescription form, designed to implement the preferred drug list, and to enable prescribers and consumers to request an exception to the preferred drug list choice with a minimum of cost and time to prescribers, pharmacists and consumers.

(7)  A joint pharmaceuticals purchasing consortium as provided for in subdivision (c)(1) of this section.

(8)  Any other cost containment activity adopted, by rule, by the director that is designed to reduce the cost of providing prescription drugs while maintaining high quality in prescription drug therapies.

* * *

(c)(1)  The director may implement the pharmacy best practices and cost control program for any other health benefit plan within or outside this state that agrees to participate in the program.  For entities in Vermont, the director shall directly or by contract implement the program through a joint pharmaceuticals purchasing consortium.  The joint pharmaceuticals purchasing consortium shall be offered on a voluntary basis no later than January 1, 2008, with mandatory participation by state or publicly funded, administered, or subsidized purchasers to the extent practicable and consistent with the purposes of this chapter, by January 1, 2010.  If necessary, the office of Vermont health access shall seek authorization from the Centers for Medicare and Medicaid to include purchases funded by Medicaid.  “State or publicly funded purchasers” shall include the department of corrections, the division of mental health, Medicaid, the Vermont Health Access Program (VHAP), Dr. Dynasaur, Vermont Rx, VPharm, Healthy Vermonters, workers’ compensation, and any other state or publicly funded purchaser of prescription drugs.

* * *

(f)(1)  The drug utilization review board shall make recommendations to the director for the adoption of the preferred drug list.  The board’s recommendations shall be based upon evidence‑based considerations of clinical efficacy, adverse side effects, safety, appropriate clinical trials, and cost‑effectiveness.  “Evidence‑based” shall have the same meaning as in section 4622 of Title 18.

* * *

(6)  The director shall encourage participation in the joint purchasing consortium by inviting representatives of the programs and entities specified in subdivision (c)(1) of this section to participate as observers or nonvoting members in the drug utilization review board, and by inviting the representatives to use the preferred drug list in connection with the plans’ prescription drug coverage.

Sec. 2.  33 V.S.A. § 1998(g) is added to read:

(g)  The office shall seek assistance from entities conducting independent research into the effectiveness of prescription drugs to provide technical and clinical support in the development and the administration of the preferred drug list and the evidence‑based education program established in subchapter 2 of Title 18.

* * * Pharmaceutical Marketer Disclosures * * *

Sec. 3.  33 V.S.A. § 2005(a)(3) is amended to read:

(3)  The office of the attorney general shall keep confidential all trade secret information, as defined by subdivision 317(b)(9) of Title 1, except that the office may disclose the information to the department of health and the office of Vermont health access for the purpose of informing and prioritizing the activities of the evidence‑based education program in subchapter 2 of chapter 91 of Title 18.  The department of health and the office of Vermont health access shall keep the information confidential.  The disclosure form shall permit the company to identify any information that it claims is a trade secret as defined in subdivision 317(c)(9) of Title 1.  In the event that the attorney general receives a request for any information designated as a trade secret, the attorney general shall promptly notify the company of such request.  Within 30 days after such notification, the company shall respond to the requester and the attorney general by either consenting to the release of the requested information or by certifying in writing the reasons for its claim that the information is a trade secret.  Any requester aggrieved by the company’s response may apply to the superior court of Washington County for a declaration that the company’s claim of trade secret is invalid.  The attorney general shall not be made a party to the superior court proceeding.  Prior to and during the pendency of the superior court proceeding, the attorney general shall keep confidential the information that has been claimed as trade secret information, except that the attorney general may provide the requested information to the court under seal.

Sec. 4.  33 V.S.A. § 2005(a)(4) is amended and (d) is added to read:

(4)  The following shall be exempt from disclosure:

* * *

(D)  scholarship or other support for medical students, residents, and fellows to attend a significant educational, scientific, or policy‑making conference of a national, regional, or specialty medical or other professional association if the recipient of the scholarship or other support is selected by the association; and

(E)  unrestricted grants for continuing medical education programs; and

(F)  prescription drug rebates and discounts.

* * *

(d)  Disclosures of unrestricted grants for continuing medical education programs shall be limited to the value, nature, and purpose of the grant and the name of the grantee.  It shall not include disclosure of the individual participants in such a program.

Sec. 5. 33  V.S.A. § 2005a(d) is amended to read:

(d)  As used in this section:

* * *

(2)  “Pharmaceutical manufacturing company” is defined by subdivision 2005(c)(5) 4632(c)(5) of this title.

(3)  “Pharmaceutical marketer” is defined by subdivision 2005(c)(4) 4632(c)(4) of this title.

* * * Price Disclosure and Certification * * *

Sec. 6.  33 V.S.A. § 2010 is added to read:

§ 2010.  ACTUAL PRICE DISCLOSURE AND CERTIFICATION

(a)  A manufacturer of prescription drugs dispensed in this state under a health program directed or administered by the state shall, on a quarterly basis, report by National Drug Code the following pharmaceutical pricing criteria to the director of the office of Vermont health access for each of its drugs:

(1)  the prices required to be provided to the Medicaid program under federal law, including prices defined in 42 U.S.C. § 1396r-8; and

(2)  the price that each wholesaler in this state pays the manufacturer to purchase the drug.

(b)  When reporting the prices as provided for in subsection (a) of this section, the manufacturer shall include a summary of its methodology in determining the price.  The office may accept the standards of the National Drug Rebate agreement entered into by the U.S. Department of Health and Human Services and Section 1927 of the Social Security Act for reporting pricing methodology.

(c)  The pricing information required under this section is for drugs defined under the Medicaid drug rebate program and must be submitted to the director following its submission to the federal government in accordance with 42 U.S.C. § 1396r‑8(b)(3).

(d)  When a manufacturer of prescription drugs dispensed in this state reports the information required under subsection (a) of this section, the president, chief executive officer, or a designated employee of the manufacturer shall certify to the office, on a form provided by the director of the office of Vermont health access, that the reported prices are the same as those reported to the federal government as required by 42 U.S.C. § 1396r‑8(b)(3) for the applicable rebate period.  A designated employee shall be an employee who reports directly to the chief executive officer or president and who has been delegated to make the certification under this section.

(e)  Notwithstanding any provision of law to the contrary, information submitted to the office under this section is confidential and is not a public record as defined in subsection 317(b) of Title 1.  Disclosure may be made by the office to an entity providing services to the office under this section; however, that disclosure does not change the confidential status of the information.  The information may be used by the entity only for the purpose specified by the office in its contract with the entity.  Data compiled in aggregate form by the office for the purposes of reporting required by this section are public records as defined in subsection 317(b) of Title 1, provided they do not reveal trade information protected by state or federal law.

(f)  The attorney general shall enforce the provisions of this section under the Vermont consumer fraud act in chapter 63 of Title 9.  The attorney general has the same authority to make rules, conduct civil investigations, and bring civil actions with respect to acts and practices governed by this section as is provided under the Vermont consumer fraud act.

* * * Healthy Vermonters * * *

Sec. 7.  33 V.S.A. § 2003 is amended to read:

§ 2003.  PHARMACY DISCOUNT PLANS

(a)  The director of the office of Vermont health access shall implement pharmacy discount plans, to be known as the “Healthy Vermonters” program and the “Healthy Vermonters Plus” program, for Vermonters without adequate coverage for prescription drugs.  The provisions of section 1992 of this title subchapter 8 of this chapter shall apply to the director’s authority to administer the pharmacy discount plans established by this section.

(b)  The Healthy Vermonters program shall offer beneficiaries an initial discounted cost for covered drugs.  Upon approval by the Centers for Medicare and Medicaid Services of a Section 1115 Medicaid waiver program, and upon subsequent legislative approval, the Healthy Vermonters program and the Healthy Vermonters Plus program shall offer beneficiaries a secondary discounted cost, which shall reflect a state payment toward the cost of each dispensed drug as well as any rebate amount negotiated by the commissioner.

* * *

(c)  As used in this section:

(1)  “Beneficiary” means any individual enrolled in either the Healthy Vermonters program or the Healthy Vermonters Plus program.

(2)  “Healthy Vermonters beneficiary” means any individual Vermont resident without adequate coverage:

(A)  who is at least 65 years of age, or is disabled and is eligible for Medicare or Social Security disability benefits, with household income equal to or less than 400 percent of the federal poverty level, as calculated under the rules of the Vermont health access plan, as amended; or

(B)  whose household income is equal to or less than 300 350 percent of the federal poverty level, as calculated under the rules of the Vermont Health access plan, as amended.

(3)  “Healthy Vermonters Plus beneficiary” means any individual Vermont resident without adequate coverage:

(A)  whose household income is greater than 300 percent and equal to or less than 350 percent of the federal poverty level, as calculated under the rules of the Vermont health access plan, as amended; or

(B)  whose family incurs unreimbursed expenses for prescription drugs, including insurance premiums, that equal five percent or more of household income or whose total unreimbursed medical expenses, including insurance premiums, equal 15 percent or more of household income.

* * *

* * * PBM Regulation * * *

Sec. 8.  18 V.S.A. chapter 221, subchapter 9 is added to read:

Subchapter 9.  Pharmacy Benefit Managers

§ 9471.  DEFINITIONS

As used in this subchapter:

(1)  “Beneficiary” means an individual enrolled in a health plan in which coverage of prescription drugs is administered by a pharmacy benefit manager and includes his or her dependent or other person provided health coverage through that health plan.

(2)  “Health insurer” is defined by subdivision 9402(9) of this title and shall include:

(A)  a health insurance company, a nonprofit hospital and medical service corporation, and health maintenance organizations;

(B)  an employer, labor union, or other group of persons organized in Vermont that provides a health plan to beneficiaries who are employed or reside in Vermont;

(C)  the state of Vermont and any agent or instrumentality of the state that offers, administers, or provides financial support to state government; and

(D)  Medicaid, the Vermont health access plan, Vermont Rx, and any other public health care assistance program.

(3)  “Health plan” means a health benefit plan offered, administered, or issued by a health insurer doing business in Vermont.

(4)  “Pharmacy benefit management” means an arrangement for the procurement of prescription drugs at a negotiated rate for dispensation within this state to beneficiaries, the administration or management of prescription drug benefits provided by a health plan for the benefit of beneficiaries, or any of the following services provided with regard to the administration of pharmacy benefits:

(A)  mail service pharmacy;

(B)  claims processing, retail network management, and payment of claims to pharmacies for prescription drugs dispensed to beneficiaries;

(C)  clinical formulary development and management services;

(D)  rebate contracting and administration;

(E)  certain patient compliance, therapeutic intervention, and generic substitution programs; and

(F)  disease or chronic care management programs.

(5)  “Pharmacy benefit manager” means an entity that performs pharmacy benefit management.  The term includes a person or entity in a contractual or employment relationship with an entity performing pharmacy benefit management for a health plan.

§ 9472.  PHARMACY BENEFIT MANAGERS; REQUIRED PRACTICES

(a)  A pharmacy benefit manager that provides pharmacy benefit management for a health plan shall discharge its duties with reasonable care and diligence and be fair and truthful under the circumstances then prevailing that a pharmacy benefit manager acting in like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.  In the case of a health benefit plan offered by a health insurer as defined by subdivision 9471(2)(A) of this title, the health insurer shall remain responsible for administering the health benefit plan in accordance with the health insurance policy or subscriber contract or plan and in compliance with all applicable provisions of Title 8 and this title.

(b)  A pharmacy benefit manager shall provide notice to the health insurer that the terms contained in subsection (c) of this section may be included in the contract between the pharmacy benefit manager and the health insurer.

(c)  Unless the contract provides otherwise, a pharmacy benefit manager that provides pharmacy benefit management for a health plan shall:

(1)  Provide all financial and utilization information requested by a health insurer relating to the provision of benefits to beneficiaries through that health insurer’s health plan and all financial and utilization information relating to services to that health insurer.  A pharmacy benefit manager providing information under this subsection may designate that material as confidential.  Information designated as confidential by a pharmacy benefit manager and provided to a health insurer under this subsection may not be disclosed by the health insurer to any person without the consent of the pharmacy benefit manager, except that disclosure may be made by the health insurer:

(A)  in a court filing under the consumer fraud provisions of chapter 63 of Title 9, provided that the information shall be filed under seal and that prior to the information being unsealed, the court shall give notice and an opportunity to be heard to the pharmacy benefit manager on why the information should remain confidential;

(B)  when authorized by chapter 63 of Title 9;

(C)  when ordered by a court for good cause shown; or

(D)  when ordered by the commissioner as to a health insurer as defined in subdivision 9471(2)(A) of this title pursuant to the provisions of Title 8 and this title.

(2)  Notify a health insurer in writing of any proposed or ongoing activity, policy, or practice of the pharmacy benefit manager that presents, directly or indirectly, any conflict of interest with the requirements of this section.

(3)  With regard to the dispensation of a substitute prescription drug for a prescribed drug to a beneficiary in which the substitute drug costs more than the prescribed drug and the pharmacy benefit manager receives a benefit or payment directly or indirectly, disclose to the health insurer the cost of both drugs and the benefit or payment directly or indirectly accruing to the pharmacy benefit manager as a result of the substitution.

(4)  If the pharmacy benefit manager derives any payment or benefit for the dispensation of prescription drugs within the state based on volume of sales for certain prescription drugs or classes or brands of drugs within the state, pass that payment or benefit on in full to the health insurer.

(5)  Disclose to the health insurer all financial terms and arrangements for remuneration of any kind that apply between the pharmacy benefit manager and any prescription drug manufacturer that relate to benefits provided to beneficiaries under or services to the health insurer’s health plan, including formulary management and drug‑switch programs, educational support, claims processing, and pharmacy network fees charged from retail pharmacies and data sales fees.  A pharmacy benefit manager providing information under this subsection may designate that material as confidential.  Information designated as confidential by a pharmacy benefit manager and provided to a health insurer under this subsection may not be disclosed by the health insurer to any person without the consent of the pharmacy benefit manager, except that disclosure may be made by the health insurer:

(A)  in a court filing under the consumer fraud provisions of chapter 63 of Title 9, provided that the information shall be filed under seal and that prior to the information being unsealed, the court shall give notice and an opportunity to be heard to the pharmacy benefit manager on why the information should remain confidential;

(B)  when authorized by chapter 63 of Title 9;

(C)  when ordered by a court for good cause shown; or

(D)  when ordered by the commissioner as to a health insurer as defined in subdivision 9471(2)(A) of this title pursuant to the provisions of Title 8 and this title.

(d)  Compliance with the requirements of this section is required for pharmacy benefit managers entering into contracts with a health insurer in this state for pharmacy benefit management in this state.

§ 9473.  ENFORCEMENT

(a)  Except as provided in subsection (d) of this section, in addition to any remedy available to the commissioner under this title and any other remedy provided by law, a violation of this subchapter shall be considered a violation of the Vermont consumer fraud act in subchapter 1 of chapter 63 of Title 1.  Except as provided in subsection (d) of this section, all rights, authority, and remedies available to the attorney general and private parties to enforce the Vermont consumer fraud act shall be available to enforce the provisions of this subchapter.

(b)  In connection with any action for violation of the Vermont consumer fraud act, the commissioner’s determinations concerning the interpretation and administration of the provisions of this subchapter and any rules adopted hereunder shall carry a presumption of validity.  The attorney general and the commissioner shall consult with each other prior to the commencement of any investigation or enforcement action with respect to any pharmacy benefit manager.

(c)  The commissioner may investigate, examine, or otherwise enforce a violation of this subchapter by a pharmacy benefit manager under section 9412 of this title as if the pharmacy benefit manager were a health insurer. 

(d)  The commissioner shall have the exclusive authority to investigate, examine, and otherwise enforce the provisions of this subchapter relating to a pharmacy benefit manager in connection with the pharmacy benefit manager’s contractual relationship with, and any other activity with respect to, a health insurer defined by subdivision 9471(2)(A) of this title.

(e)  Notwithstanding the foregoing, the commissioner and the attorney general may bring a joint enforcement action against any person or entity for a violation of this subchapter.

Sec. 9.  18 V.S.A. § 9421 is added to read:

§ 9421.  PHARMACY BENEFIT MANAGEMENT; REGISTRATION; AUDIT

(a)  A pharmacy benefit manager shall not do business in this state without first registering with the commissioner on a form and in a manner prescribed by the commissioner.

(b)  In accordance with rules adopted by the commissioner, pharmacy benefit managers operating in the state of Vermont and proposing to contract for the provision of pharmacy benefit management shall notify health insurers when the pharmacy benefit manager provides a quotation that a quotation for an administrative‑services‑only contract with full pass through of negotiated prices, rebates, and other such financial benefits which would identify to the health insurer external sources of revenue and profit is generally available and whether the pharmacy benefits manager offers that type of arrangement.  Quotations for an administrative‑services‑only contract shall include a reasonable fee payable by the health insurer which represents a competitive pharmacy benefit profit.  This subsection shall not be interpreted to require a pharmacy benefits manager to offer an administrative‑services‑only contract.

(c)(1)  In order to enable periodic verification of pricing arrangements in administrative‑services‑only contracts, pharmacy benefit managers shall allow access, in accordance with rules adopted by the commissioner, by the health insurer who is a party to the administrative‑services‑only contract to financial and contractual information necessary to conduct a complete and independent audit designed to verify the following:

(A)  full pass through of negotiated drug prices and fees associated with all drugs dispensed to beneficiaries of the health plan in both retail and mail order settings or resulting from any of the pharmacy benefit management functions defined in the contract;

(B)  full pass through of all financial remuneration associated with all drugs dispensed to beneficiaries of the health plan in both retail and mail order settings or resulting from any of the pharmacy benefit management functions defined in the contract; and

(C)  any other verifications relating to the pricing arrangements and activities of the pharmacy benefit manager required by the contract if required by the commissioner.

(d)  The department’s reasonable expenses in administering the provisions of this section may be charged to pharmacy benefit managers in the manner provided for in section 18 of Title 8.  These expenses shall be allocated in proportion to the lives of Vermonters covered by each pharmacy benefit manager as reported annually to the commissioner in a manner and form prescribed by the commissioner.  The department shall not charge its expenses to the pharmacy benefit manager contracting with the office of Vermont health access if the office notifies the department of the conditions contained in its contract with a pharmacy benefit manager.

(e)  The commissioner may adopt such rules as are necessary or desirable in carrying out the purposes of this section.  The rules also shall ensure that proprietary information is kept confidential and not disclosed by a health insurer.

(f)  As used in this section:

(1)  “Health insurer” is defined in subdivision 9471(2) of this title.

(2)  “Health plan” is defined in subdivision 9471(3) of this title.

(3)  “Pharmacy benefit management” is defined in subdivision 9471(4) of this title.

(4)  “Pharmacy benefit manager” is defined in subdivision 9471(5) of this title.

Sec. 10.  APPLICATION

Secs. 8 and 9 of this act apply to contracts executed or renewed on or after September 1, 2007.  For purposes of this section, a contract executed pursuant to a memorandum of agreement executed prior to September 1, 2007 is deemed to have been executed prior to September 1, 2007 even if the contract was executed after that date.

Sec. 11.  8 V.S.A. § 4088d is added to read:

§ 4088d.  NOTICE OF PREFERRED DRUG LIST CHANGES

A health insurer, as defined in subdivisions 9471(2)(A), (C), and (D) of Title 18, shall provide beneficiaries sufficient notice of any changes to the prescription drugs covered on its preferred drug list.  For purposes of this section, “sufficient notice” means:

(1)  written notice to affected beneficiaries specifying the drugs that have been added or removed from the preferred drug list, which shall be provided to beneficiaries at least 30 days prior to the effective date of such changes; or

(2)  written notice to a beneficiary that a specific drug is no longer covered on the preferred drug list at the time the beneficiary seeks a refill of that drug.  In such circumstances, the beneficiary shall not be denied coverage for the first requested refill after the change to the preferred drug list has taken place.  Subsequent refills, however, shall be subject to the requirements of the revised preferred drug list.

Sec. 12.  18 V.S.A. chapter 91 is amended to read:

CHAPTER 91.  GENERIC DRUGS PRESCRIPTION DRUG
COST CONTAINMENT

Sec. 13.  18 V.S.A. chapter 91, sections 4601–4608 are designated as subchapter 1 which is added to read:

Subchapter 1.  Generic Drugs

Sec. 14.  18 V.S.A. chapter 91, subchapter 2 is added to read:

Subchapter 2.  Evidence‑Based Education Program

§ 4621.  Definitions

For the purposes of this subchapter:

(1)  “Department” means the department of health.

(2)  “Evidence‑based” means based on criteria and guidelines that reflect high‑quality, cost‑effective care.  The methodology used to determine such guidelines shall meet recognized standards for systematic evaluation of all available research and shall be free from conflicts of interest.  Consideration of the best available scientific evidence does not preclude consideration of experimental or investigational treatment or services under a clinical investigation approved by an institutional review board.

§ 4622.  Evidence‑based education Program

(a)(1)  The department, in collaboration with the attorney general, the University of Vermont area health education centers program, and the office of Vermont health access, shall establish an evidence‑based prescription drug education program for health care professionals designed to provide information and education on the therapeutic and cost‑effective utilization of prescription drugs to physicians, pharmacists, and other health care professionals authorized to prescribe and dispense prescription drugs.  The department may collaborate with other states in establishing this program.

(2)  The program shall notify prescribers about commonly used brand-name drugs for which the patent has expired within the last 12 months or will expire within the next 12 months.  The department and the office of Vermont health access shall collaborate in issuing the notices.

(3)  To the extent permitted by funding, the program may include the distribution to prescribers of samples of generic medicines used to treat chronic conditions common in Vermont.

(b)  The department shall request information and collaboration from physicians, pharmacists, private insurers, hospitals, pharmacy benefit managers, the drug utilization review board, medical schools, the attorney general, and any other programs providing an evidence‑based education to prescribers on prescription drugs in developing and maintaining the program.

(c)  The department may contract for technical and clinical support in the development and the administration of the program from entities conducting independent research into the effectiveness of prescription drugs.

(d)  The department and the attorney general shall collaborate in reviewing the marketing activities of pharmaceutical manufacturing companies in Vermont and determining appropriate funding sources for the program, including awards from suits brought by the attorney general against pharmaceutical manufacturers.

Sec. 15.  GENERIC DRUG SAMPLE PILOT PROJECT

(a)  As part of the evidence-based education program established in subchapter 2 of chapter 91 of Title 18, the department of health, in collaboration with the office of Vermont health access and the University of Vermont area health education centers program, shall establish a pilot project to distribute vouchers for a sample of generic drugs used to treat high cholesterol, including statins, and informational and educational materials to prescribers.  The department and office may expand the pilot program to include other classes of prescription drugs used to treat common chronic conditions for which there is a generic medicine available. 

(b)  The office of Vermont health access shall fund the vouchers from the fee established in section 1998b of Title 33 and shall provide payment to the pharmacy dispensing the prescription drugs in exchange for the voucher.  The office shall establish a payment rate, including a dispensing fee, using the rules and procedures for the Medicaid program.

Sec. 16.  Prescription Drug Pricing; Federally Qualified
   Health Centers

No later than January 1, 2008, the department of health shall create a plan to inform Vermonters of the availability of health services provided by federally qualified health centers (FQHC) and FQHC look‑alikes, including information about prescription drug pricing, focusing on state employees, individuals under the supervision of corrections, individuals receiving workers’ compensation benefits if applicable, and any other state or publicly funded purchaser of prescription drugs for whom the cost of prescription drugs is likely to be higher than prices under Section 340B of the Public Health Service Act.

* * * Prescription Drug Data Confidentiality * * *

Sec. 17.  18 V.S.A. chapter 91, subchapter 3 is added to read:

Subchapter 3.  Information Requirements

§ 4631.  Confidentiality of Prescription Information

(a)  The general assembly finds that it has become an increasingly common practice for information identifying physicians and other prescribers in prescription records to be used to target pharmaceutical marketing and gifts toward physicians who prescribe the most expensive drugs for their patients.  This practice raises drug costs for all Vermont residents and compromises the professional autonomy of physicians.  It is the intent of the general assembly to ensure the privacy of Vermonters and health care professionals by prohibiting the commercial use of prescription information.

(b)  As used in this section:

(1)  “Commercial purpose” shall include advertising, marketing, promotion, or any activity that is intended to be used or is used to influence sales or the market share of a pharmaceutical product, influence or evaluate the prescribing behavior of an individual health care professional, market prescription drugs to patients, or evaluate the effectiveness of a professional pharmaceutical detailing sales force.

(2)  “Electronic transmission intermediary” means an entity that provides the infrastructure that connects the computer systems or other electronic devices used by health care professionals, prescribers, pharmacies, health care facilities and pharmacy benefit managers, health insurers, third‑party administrators, and agents and contractors of those persons in order to facilitate the secure transmission of an individual’s prescription drug order, refill, authorization request, claim, payment, or other prescription drug information.

(3)  “Health care facility” shall have the same meaning as in section 9402 of this title.

(4)  “Health care professional” shall have the same meaning as in section 9402 of this title.

(5)  “Health insurer” shall have the same meaning as in section 9410 of this title.

(6)  “Pharmacy” means any individual or entity licensed or registered under chapter 36 of Title 26.

(7)  “Prescriber” means an individual allowed by law to prescribe and administer prescription drugs in the course of professional practice.

(8)  “Regulated records” means information or documentation from a prescription written by a prescriber doing business in Vermont or a prescription dispensed in Vermont.

(c)  A health insurer, a self‑insured employer, an electronic transmission intermediary, a pharmacy, or other similar entity shall not license, transfer, use, or sell regulated records which include prescription information containing patient‑identifiable or prescriber‑identifiable data for any commercial purpose.

(d)  This section shall not apply to:

(1)  the license, transfer, use, or sale of regulated records for the limited purposes of pharmacy reimbursement; prescription drug formulary compliance; patient care management; utilization review by a health care professional, the patient’s health insurer, or the agent of either; or health care research;

(2)  the dispensing of prescription medications to a patient or to the patient’s authorized representative;

(3)  the transmission of prescription information between an authorized prescriber and a licensed pharmacy, between licensed pharmacies, or that may occur in the event a pharmacy’s ownership is changed or transferred;

(4)  care management educational communications provided to a patient about the patient’s health condition, adherence to a prescribed course of therapy and other information relating to the drug being dispensed, treatment options, recall or patient safety notices, or clinical trials;

(5)  the collection, use, or disclosure of prescription information or other regulatory activity as authorized by chapter 84, chapter 84A, or section 9410 of this title, or as otherwise provided by law;

(6)  the collection and transmission of prescription information to a Vermont or federal law enforcement officer engaged in his or her official duties as otherwise provided by law;

(7)  the collection, use, transfer, or sale of patient and prescriber data for commercial purposes if the data do not identify a person, and there is no reasonable basis to believe that the data provided could be used to identify a person.

(e)  In addition to any other remedy provided by law, the attorney general may file an action in superior court for a violation of this section or of any rules adopted under this section by the attorney general.  The attorney general shall have the same authority to investigate and to obtain remedies as if the action were brought under the Vermont consumer fraud act, chapter 63 of Title 9.  Each violation of this section or of any rules adopted under this section by the attorney general constitutes a separate civil violation for which the attorney general may obtain relief. 

Sec. 18.  1 V.S.A. § 317(c)(38) is added to read:

(38)  records held by the agency of human services, which include prescription information containing patient-identifiable or prescriber‑identifiable data, that could be used to identify a patient or prescriber, except that the records shall be made available upon request for medical research purposes consistent with those expressed in sections 4621, 4631, 4632, 4633, and 9410 of Title 18 and chapters 84 and 84A of Title 18, or law enforcement activities.

Sec. 19.  18 V.S.A. § 9410(g) is amended to read:

(g)  Any person who knowingly fails to comply with the requirements of this section or rules adopted pursuant to this section shall be fined subject to an administrative penalty of not more than $1,000.00 per violation.  The commissioner may impose an administrative penalty of not more than $10,000.00 each for those violations the commissioner finds were willful. In addition, any person who knowingly fails to comply with the confidentiality requirements of this section or rules adopted pursuant to this section  and  uses, sells or transfers the data or information for commercial advantage, pecuniary gain, personal gain or malicious harm shall be  subject to an administrative penalty of not more than $50,000.00 per violation.  The powers vested in the commissioner by this subsection shall be in addition to any other powers to enforce any penalties, fines or forfeitures authorized by law.

Sec. 20.  33 V.S.A. § 1998b is added to read:

§ 1998b.  Manufacturer Fee

(a)  Annually, each pharmaceutical manufacturer of prescription drugs that are paid for by Medicaid, the Vermont Health Access Program, Dr. Dynasaur, VPharm or Vermont Rx shall pay a fee to the agency of human services.  The fee shall be 0.5 percent of the previous calendar year’s drug spending and shall be assessed based on manufacturer labeler codes as used in the Medicaid rebate program.

(b)  Fees collected under this section shall fund the implementation and operation of subdivision 2466a(c)(1) of Title 9 and the evidence‑based education program established in subchapter 2 of Title 18.

(c)  The secretary of human services or designee shall make rules for the implementation of this section.

* * * Consumer Protection; False Advertising * * *

Sec. 21.  9 V.S.A. § 2466a is added to read:

§ 2466a.  Consumer Protections; Prescription Drugs

(a)  A violation of section 4631 of Title 18 shall be considered a violation under this chapter.

(b)  As provided in section 9473 of Title 18, a violation of section 9472 shall be considered a violation under this chapter.

(c)(1)  It shall be a violation under this chapter for a manufacturer of prescription drugs to present or cause to be presented in the state a regulated advertisement if that advertisement does not comply with the requirements concerning drugs and devices and prescription drug advertising in federal law and regulations under 21 United States Code, Sections 331 and 352(n) and 21 Code of Federal Regulations, Part 202 and state rules.  A warning or untitled letter issued by the U.S. Food and Drug Administration shall be prima facie evidence of a violation of federal law and regulations.

(2)  For purposes of this section:

(A)  “Manufacturer of prescription drugs” means a person authorized by law to manufacture, bottle, or pack drugs or biological products, a licensee or affiliate of that person, or a labeler that receives drugs or biological products from a manufacturer or wholesaler and repackages them for later retail sale and has a labeler code from the federal Food and Drug Administration under 21 Code of Federal Regulations, 2027.20 (1999).

(B)  “Regulated advertisement” means:

(i)  the presentation to the general public of a commercial message regarding a prescription drug or biological product by a manufacturer of prescription drugs that is broadcast on television, cable, or radio from a station or cable company that is physically located in the state, broadcast over the internet from a location in the state, or printed in magazines or newspapers that are printed, distributed, or sold in the state; or

(ii)  a commercial message regarding a prescription drug or biological product by a manufacturer of prescription drugs or its representative that is conveyed:

(I)  to the office of a health care professional doing business in Vermont, including statements by representatives or employees of the manufacturer and materials mailed or delivered to the office; or

(II)  at a conference or other professional meeting occurring in Vermont.

(d)  No person shall sell, offer for sale, or distribute electronic prescribing software that advertises, uses instant messaging and pop‑up advertisements, or uses other means to influence or attempt to influence the prescribing decision of a health care professional through economic incentives or otherwise and which is triggered or in specific response to the input, selection, or act of a health care professional or agent in prescribing a specific prescription drug or directing a patient to a certain pharmacy.  This subsection shall not apply to information provided to the health care professional about pharmacy reimbursement, prescription drug formulary compliance, and patient care management.

* * * Insurance Marketing * * *

Sec. 22.  8 V.S.A. § 4804(a) is amended to read:

(a)  The commissioner may suspend, revoke, or refuse to continue or renew any license issued under this chapter if, after notice to the licensee and to the insurer represented, and opportunity for hearing, he or she finds as to the licensee any one or more of the following conditions:

* * *

(8)  The licensee has committed any unfair trade practice or fraud as defined in this title.  It shall be an unfair practice under this section for a licensee to:

(A)(i)  sell, solicit, or negotiate the purchase of health insurance in this state through an advertisement which makes use directly or indirectly of any method of marketing which fails to disclose in a conspicuous manner that a purpose of the method of marketing is solicitation of insurance, and that contact will be made by an insurance agent or insurance company. 

(ii)  Use an appointment that was made to discuss Medicare products or to solicit the sale of Medicare products to solicit sales of any other insurance products unless the consumer requests the solicitation, and the products to be discussed are clearly identified to the consumer in writing at least 48 hours in advance of the appointment. 

(iii)  Solicit the sale of Medicare products door-to-door prior to receiving an invitation from a consumer.

(B)  As used in this subdivision, the term “Medicare products” includes Medicare Part A, Medicare Part B, Medicare Part C, Medicare Part D, and Medicare supplement plans;

* * *

Sec. 23.  Recodification

The following sections of Title 33 as amended by this act are recodified as follows:

(1)  Section 2005 shall be section 4632 of Title 18.

(2)  Section 2005a shall be section 4633 of Title 18.

(3)  Section 2008 shall be section 4634 of Title 18.

(4)  Section 2006 shall be section 852 of Title 2.

Sec. 24.  Repeal

Section 2009 of Title 33 is repealed.

(Committee vote: 9-1-1)

Rep. Sharpe of Bristol, for the Committee on Ways and Means, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Health Care.

(Committee vote: 7-4-0)

(For Senate Amendments see Senate Journal 4/3/07- pp  346-359 )

S. 191

An act relating to financing, reappraisal and infrastructure in tax increment financing district.

Rep. Kitzmiller of Montpelier, for the Committee on Commerce, recommends that the House propose to the Senate that the bill be amended as follows:

     First:  In Sec. 3.  24 V.S.A. § 1894 in subdivision (b)(1) by striking the third sentence that reads: “The council shall also assure the viability and reasonableness of any proposed financing other than bonding and least‑cost financing.” and inserting in lieu thereof the following: “The council, in consultation with the state treasurer, shall also assure the viability and reasonableness of any proposed financing other than bonding.

     Second:  In Sec. 5.  24 V.S.A. § 1897, in subsection (a) by striking the final sentence and inserting in lieu thereof the following: “Notwithstanding any provision of any municipal charter, the legal voters of a municipality, by a single vote, shall authorize the legislative body to pledge the credit of the municipality up to a specified maximum dollar amount for all debt obligations to be financed with state property tax increment pursuant to approval by the Vermont economic progress council and subject to the provisions of this section and 32 V.S.A. § 5404a.

(Committee vote: 11-0-0)

(For text see Senate Journal 04/06/07 – P. 415 )

Favorable

J. R. H. 21

     Joint resolution in support of the worldwide ONE Campaign and urging Congress to appropriate and the President to spend an additional one percent of the federal budget on the goals of the ONE Campaign.

Rep. Frank of Underhill, for the Committee on Human Services, recommends the resolution ought to be adopted.

(Committee vote: 10-0-1)

Senate Proposals of Amendment

H. 91

     An act relating to the Rozo McLaughlin farm-to-school program.

     The Senate proposes to the House to amend the bill in Sec. 2, 6 V.S.A. § 4722, by designating the existing paragraph as subsection (a) and by adding a subsection (b) to read as follows:

(b)  For the purposes of this section and section 4723 of this title, the secretary may provide funds to one or more technical assistance providers to provide farm to school education and teacher trainings to more school districts and to assist the secretary and commissioner of education to carry out farmer and food service worker trainings.

(For text see House Journal April 4, 2007 – P. 504)

 

H. 274

     An act relating to adult foster care.

     The Senate proposes to the House to amend the bill by inserting new Secs. 3, 4, and 5 to read as follows:

Sec. 3.  32 V.S.A. § 6061(5)(C) is amended to read:

(C)  without the inclusion of: any gifts from nongovernmental sources other than those described in subdivision (B) of this subdivision (5); surplus food or other relief in kind supplied by a governmental agency; or the first $6,500.00 of income earned by a full‑time student who qualifies as a dependent of the claimant under the federal Internal Revenue Code; the first $6,500.00 of income received by a person who qualifies as a dependent of the claimant under the Internal Revenue Code and who is the claimant’s parent or disabled adult child; or payments made by the state pursuant to chapters 49 and 55 of Title 33 for foster care, or the first $6,500.00 of payments made by the state or an agency designated in section 8907 of Title 18 for flexible family funding or difficulty of care payments made to an individual for the support of an eligible person with a developmental disability as defined in subdivision 8722(2) of Title 18 for adult foster care or to a family for the support of an eligible person with a developmental disability.  If the commissioner determines, upon application by the claimant, that a person resides with a claimant who is disabled or was at least 62 years of age as of the end of the year preceding the claim, for the primary purpose of providing attendant care services (as defined in section 6321 of Title 33) or homemaker or companionship services, with or without compensation, which allow the claimant to remain in his or her home or avoid institutionalization, the commissioner shall exclude that person’s modified adjusted gross income from the claimant’s household income.  The commissioner may require that a certificate in a form satisfactory to the commissioner be submitted which supports the claim.

Sec. 4.  Sec. 14(b) of No. 185 of the Acts of 2005, Adjourned Session, is amended to read:

Sec. 14.  AMENDMENT OF MODIFIED ADJUSTED GROSS INCOME TRANSITION AND EFFECTIVE DATE

(b)  Any tax assessments, including any penalties, related to prebate or rebate claims filed in 2005 or 2006 and which are contrary to the amendment in subsection (a) of this section shall be abated and any refund due to a claimant shall be paid with interest, in accordance with 32 V.S.A. § 3108.

Sec. 5.  EFFECTIVE DATE

(a)  Sec. 3 of this act shall apply to claims filed in 2008 and after.

(b)  Sec. 4 of this act (abatement of penalties and payment of interest) shall be effective retroactively, as of May 25, 2006.

(No House Amendments)

H. 368

     An act relating to the regulation of professions and occupations.

     The Senate proposes to the House to amend the bill by adding a new section to be numbered Sec. 78 to read as follows:

Sec. 78.  BOARD OF PUBLIC ACCOUNTANCY; RULEMAKING

No later than August 1, 2007, the board of public accountancy shall initiate rulemaking pursuant to chapter 25 of Title 3 to amend the board’s existing attest and audit experience requirements by filing proposed rules with the secretary of state.  The amended rules shall reflect applicant experience in non-public accounting settings and competency in the application of audit and attest techniques.  The board shall report its progress to the house and senate committees on government operations by January 15, 2008.

(No House Amendments)

H. 380

     An act relating to the regulation of health care facilities.

     The Senate proposes to the House to amend the bill as follows:

First:  By striking out Sec. 1 in its entirety and by inserting in lieu thereof the following:

Sec. 1.  18 V.S.A. § 1854(a) is amended to read:

(a)  A hospital shall make public the maximum patient census and the number of registered nurses, licensed practical nurses, and licensed nursing assistants providing direct patient care in each unit during each shift.  The number of nurses shall be reported  Each unit’s information shall be reported in full-time equivalents, with either every eight hours or 12 hours worked by a registered nurse, licensed practical nurse, or licensed nursing assistant during the shift as one full-time equivalent.  The reporting of this information shall be in a manner consistent with the requirements for public reporting for measures of nurse staffing selected by the commissioner of banking, insurance, securities, and health care administration under subdivision 9405b(a)(12) of this title, but shall not in any way change what is required to be posted as set forth in this subsection.  Each unit's information shall be posted in a prominent place that is readily accessible to patients and visitors in that unit at least once each day.  The posting shall include the information for the preceding seven days.

Second:  By striking out Sec. 6 in its entirety and by inserting in lieu thereof the following:

Sec. 6.  18 V.S.A. § 9405(b) is amended to read:

(b)  On or before July 1, 2005, the commissioner, in consultation with the secretary of human services, shall submit to the governor a four-year health resource allocation plan. The plan shall identify Vermont needs in health care services, programs, and facilities; the resources available to meet those needs; and the priorities for addressing those needs on a statewide basis.

(1)  The plan shall include:

* * *

(C)  Consistent with the principles set forth in subdivision (A) of this subdivision (1), recommendations for the appropriate supply and distribution of resources, programs, and services identified in subdivision (B) of this subdivision (1), options for implementing such recommendations and mechanisms which will encourage the appropriate integration of these services on a local or regional basis. To arrive at such recommendations, the commissioner shall consider at least the following factors: the values and goals reflected in the state health plan; the needs of the population on a statewide basis; the needs of particular geographic areas of the state, as identified in the state health plan; the needs of uninsured and underinsured populations; the use of Vermont facilities by out-of-state residents; the use of out-of-state facilities by Vermont residents; the needs of populations with special health care needs; the desirability of providing high quality services in an economical and efficient manner, including the appropriate use of midlevel practitioners; the cost impact of these resource requirements on health care expenditures; the services appropriate for the four categories of hospitals described in subdivision 9402(12) of this title; the overall quality and use of health care services as reported by the Vermont program for quality in health care and the Vermont ethics network; the overall quality and cost of services as reported in the annual hospital community reports; information from the hospital community needs assessments; individual hospital four-year capital budget projections; the unified health care budget; and the four-year projection of health care expenditures prepared by the division.

* * *

(4)  The commissioner shall develop a mechanism for receiving ongoing public comment regarding the plan and for revising it biannually every four years or as needed, in consultation with the public oversight commissionThe public oversight commission shall recommend revisions to the plan at least every four years and at any other time it determines revisions are warranted.

(5)  The commissioner in consultation with appropriate health care organizations and state entities shall inventory and assess existing state health care data and expertise, and shall seek grants to assist with the preparation of any revisions to the health resource allocation plan.  Based on this assessment and no later than January 15, 2004, the commissioner shall submit a report to the general assembly stating his or her recommendations regarding the professional assistance, budget, staff, and process needed to integrate available health care data and expertise into the health resource allocation plan.

(6)  The commissioner may retain such professional staff or other staff as needed to assist in his or her responsibilities under this section.  The reasonable expenses of such staff shall be funded to the maximum extent possible with grant money. Any additional amounts needed, not to exceed $300,000.00, shall be assessed and collected from hospitals licensed under chapter 43 of this title, proportionate to their annual operating budgets.  The commissioner’s assessment authority under this subdivision shall begin on July 1, 2003 and shall expire on July 1, 2005.

(7)(6)  The plan or any revised plan proposed by the commissioner shall be the health resource allocation plan for the state after it is approved by the governor or upon passage of three months from the date the governor receives the plan, whichever occurs first, unless the governor disapproves the plan, in whole or in part.  If the governor disapproves, he or she shall specify the sections of the plan which are objectionable and the changes necessary to meet the objections.  The sections of the plan not disapproved shall become part of the health resource allocation plan.  Upon its adoption, the plan shall be submitted to the appropriate legislative committees.

Third:  By striking out Sec. 9 in its entirety and by inserting in lieu thereof the following:

Sec. 9.  18 V.S.A. § 9456(d) is amended to read:

(d)(1)  Annually, the commissioner shall establish a budget for each hospital by September 15 followed by a written decision by October 1.  Each hospital shall operate within the budget established under this section.

(2)(A)  It is the general assembly's intent that hospital cost containment conduct is afforded state action immunity under applicable federal and state antitrust laws, if:

(i)  the commissioner requires or authorizes the conduct in any hospital budget established by the commissioner under this section;

(ii)  the conduct is in accordance with standards and procedures prescribed by the commissioner; and

(iii)  the conduct is actively supervised by the commissioner.

(B)  A hospital’s violation of the commissioner’s standards and procedures shall be subject to enforcement pursuant to subsection (h) of this section.

Fourth:  By striking out Sec. 11 in its entirety and by inserting in lieu thereof the following:

Sec. 11.  REPEAL

(a)  Sec. 25 of No. 53 of the Acts of 2003 (requiring an annual report on collaboration among hospitals) is repealed.

(b)  Subdivision 9402(2) of Title 18 (community needs assessment definition) is repealed and the remaining subsections renumbered accordingly.

Fifth:  By adding a new section to be numbered Sec. 13 to read as follows:

Sec. 13.  EFFECTIVE DATE

Sec. 12 of this act shall take effect upon passage.  The remaining sections of this act shall take effect July 1, 2007.

(For text see House Journal March 23, 2007 P. 394)

Ordered to Lie

Senate Proposal of Amendment

H. 296

     An act relating to potable water supply and wastewater system permitting.

 

 



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