Download this document in MS Word format


AutoFill Template

House Calendar

THURSDAY, MARCH 13, 2008

66th DAY OF ADJOURNED SESSION

House Convenes at 1:00 P M

TABLE OF CONTENTS

                                                                                                               Page No.

ACTION CALENDAR

     Action Postponed Until Thursday, March 13, 2008

H. 641  Relating to Nursing Mothers in the Workplace................................... 881

          Rep. McCormack for General, Housing and Military Affairs

          Rep. McCormack Amendment............................................................. 881

Third Reading

H. 617  Relating to Guardianships.................................................................. 882

J.R.H. 54  Urging Congress to Eliminate Loopholes in Markets...................... 882

Committee Bill for Second Reading

H. 875  Sale of Transmission Facilities by Regulated Generators..................... 882

          Rep. Errecart for Natural Resources and Energy

          Rep. Errecart Amendment.................................................................... 882

Favorable with Amendment

H. 338  State Purchasing Code of Conduct.................................................... 884

          Rep. Manwaring for Government Operations

H. 636  Embezzlement by a Public Official...................................................... 888                    Rep. Flory for Judiciary

S. 108  Election of U.S. Representative and Senator by IRV Method.............. 892

          Rep. Pearson for Government Operations

          Rep. Mark Larson for Appropriations .................................................. 892

NOTICE CALENDAR

Favorable with Amendment

H. 629  VT’s System for Caring for the Mentally Ill Offenders........................ 892

          Rep. Lorber for Institutions

H. 635  Reports of Child Abuse or Neglect.................................................... 897

          Rep. Pugh for Human Services

CONSENT CALENDAR

(See Addendum to House and Senate Calendar)

H.C.R. 227  Congratulating Poultney HS Cheerleading Champions................ 918

H.C.R. 228  Congratulating Howard Herrington Wal-Mart VT Teacher......... 918

H.C.R. 229  In Memory of former Representative Peter Martin...................... 918

H.C.R. 230  Congratulating Governor’s Institutes of Vermont on 25th ........... 918

H.C.R. 231  Congratulating Girl Scout Council of VT Award Winners........... 918

H.C.R. 232  Honoring Girl Scout Council During Girl Scout Week................. 918

H.C.R. 233  Honoring Federal TRIO Programs in Vermont........................... 918

H.C.R. 234  Congratulating BFA-St. Albans Girls’ Hockey Team.................. 919

H.C.R. 235 In Memory of Speaker and Lt. Governor John Burgess............... 919

 

 


 

ORDERS OF THE DAY

Action Postponed Until Thursday, March 13, 2008

H. 641

     An act relating to nursing mothers in the workplace.

Pending Action: Reading of the Committee Report

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

Sec. 1.  21 V.S.A. § 305 is added to read:
§ 305.  NURSING MOTHERS IN THE WORKPLACE

(a)  For an employee who is a nursing mother for up to three years after the birth of a child, the employer shall:

(1)  Provide uncompensated time throughout the day to express breast milk for her nursing child.

(2)  Make a reasonable accommodation to provide appropriate private space that is not a bathroom stall or a small storage area.

(b)  An employer may be exempted from the provisions of subsection (a) of this section if providing time for expressing breast milk would seriously disrupt the employer’s operations.

(c)  An employer shall not discriminate against an employee who exercises the rights provided under this section. 

Sec. 2.  21 V.S.A. § 303 is amended to read:

§ 303. PENALTY

Any employer who violates the provisions of this subchapter shall be fined assessed a civil penalty of not more than $100.00 for each and every violation.

(Committee vote: 7-0-1)

Amendment to be offered by Rep. McCormack of Rutland to H. 641

     Moves the bill be amended by adding a new Sec. 3  to read as follows:

Sec. 3.  4 V.S.A. § 1102 is amended to read:

§ 1102. JUDICIAL BUREAU; JURISDICTION

* * *

(b) The judicial bureau shall have jurisdiction of the following matters:

* * *

(14)  Violations of 21 V.S.A. § 305, relating to employment practices for nursing mothers in the workplace.

Third Reading

H. 617

     An act relating to guardianships.

J. R. H. 54

     Joint resolution urging Congress to eliminate the Enron Loophole regulatory exemption for energy and metal commodities traded on electronic commodities markets.

Committee Bill for Second Reading

H. 875

An act relating to the sale  of real property or transmissions facilities by certain regulated generators of electricity.

(Rep. Errecart of Shelburne will speak for the Committee on Natural Resources and Energy.)

Amendment to be offered by Rep. Errecart to H. 875

     Moves the bill be amended by striking it in its entirety after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  30 V.S.A. § 109 is amended to read:

§ 109.  SALES AND LEASES; HEARINGS

(a)  Except in connection with replacement or exchange, a corporation or a foreign corporation subject to the jurisdiction of the public service board, shall not make a sale or lease or series of sales or leases in any one calendar year constituting ten percent or more of the company's property located within this state and actually used in or required for public service operations nor merge nor consolidate pursuant to the provisions of sections 301-307 of this title, nor after any such sale, lease, consolidation, or merger shall any subsequent like action be taken, except after opportunity for hearing by the public service board and a finding by such board that the same will promote the general good of the state.  Such notice of the hearing shall be given as the board directs.  A certificate of consent of the public service board shall be filed with the secretary of state.  

(b)  No company owning or operating an electric generating plant in this state with a capacity of 80 megawatts, or greater, may sell or lease any real property or transmission facilities located at that plant that are required or may be required to generate electricity, interconnect generation facilities with electric transmission facilities, or transmit electricity from the plant, without first obtaining a certificate of consent from the public service board. 

     (c)  No company owning or operating an electric transmission facility located in this state that is capable of operating at 100 kilovolts or greater may sell or lease any real property or equipment that is required or may be required to transmit electricity using that facility without first obtaining a certificate of consent from the public service board.

(d)  To obtain a certificate of consent pursuant to subsection (b) or (c) of this section, the company shall notify the board and department in writing of its intention to enter into such a sale or lease at least 45 days before the effective date of the proposed transaction.  Within 30 days of receiving this notice, the department shall file a written recommendation with the board as to whether it should consent to the proposed sale or lease, and whether further inquiry or hearing is warranted.  Within 15 days of receiving the department’s recommendation, and after considering the company’s notice and the department’s recommendation, the board shall determine whether further inquiry into the proposed sale or lease is warranted and, if so, shall so proceed. If the department recommends approval of the proposed transaction without further inquiry or opportunity for hearing, and if the board takes no further action within 15 days after the department has filed such a recommendation, then the proposed transaction shall be deemed approved as consistent with the general good of the state.

(e)  The public service board shall issue a certificate of consent under this section only if it determines that the proposed transaction shall promote the general good of the state. 

(f)  Any notice provided by a company pursuant to subsection (d) of this section shall be accompanied by a statement containing the material terms of the proposed transaction and such further explanation of the proposed transaction as the board may prescribe.  The board may adopt such rules as it deems appropriate for determining the necessity for and scope of any inquiry or hearing concerning a request for board consent to a sale or lease under subsection (b) or (c) of this section.  In developing these rules, the board shall ensure that due consideration is given to issues such as potential rate payer impacts of the transactions to be reviewed and least cost integrated planning principles as defined in subdivision 218c(a)(1) of this title.  The board’s rulemaking authority under this section shall include the discretion to:

(1)  decrease to no less than 50 megawatts the threshold for review under subsection (b) of this section;

(2)  establish a minimum value threshold to trigger review under subsection (b) or (c) of this section; and

(3)  adopt or amend other rules appropriately to minimize duplicative regulatory review under this title.

Sec. 2.  EFFECTIVE DATE

This act shall take effect upon passage.

Favorable with Amendment

H. 338

     An act relating to a state purchasing code of conduct.

Rep. Manwaring of Wilmington, for the Committee on Government Operations, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS AND INTENT

(a)  The general assembly finds that:

(1)  Vermont citizens believe employers should fairly compensate hard work, that the health and safety of working people should be protected, and that no form of unlawful discrimination or abuse should be tolerated.

(2)  Vermont citizens are aware that laws and regulations designed to safeguard basic tenets of ethical business practice are disregarded in many workplaces, commonly referred to as “sweatshops.”

(3)  State government purchase of goods made under abusive conditions on behalf of the state’s citizens offends Vermont citizens’ sense of justice and decency.

(4)  When the state of Vermont contracts with vendors whose suppliers profit by providing substandard wages and working conditions, Vermont’s businesses are put at a competitive disadvantage.

(5)  The state of Vermont believes in doing business with vendors who make a good-faith effort to ensure that their suppliers and those at the point of assembly adhere to the principles set forth in this act.

(b)  By this act, the general assembly intends that:

(1)  In its role as a market participant that procures apparel, footwear, and textiles, the state of Vermont seeks to protect the interests of Vermont citizens and businesses by exercising its state sovereignty to spend Vermont citizens’ tax dollars in a manner consistent with their express wishes that the state deal with responsible bidders who seek contracts to supply goods to the state of Vermont, and protect legally compliant Vermont businesses and workers from unfair competition created by downward pressure on prices and conditions attributable to businesses that violate applicable workplace laws.

(2)  Seeking to protect these local interests through the least discriminatory means available, the state of Vermont requires that all bidders seeking contracts to supply the state of Vermont with apparel, footwear, and textiles certify that they and, to the best of their knowledge, their suppliers at the point of assembly comply with workplace laws of the vendor’s or supplier’s site of assembly and with treaty obligations that are shared by the United States and the country in which the goods are assembled.

Sec. 2.  29 V.S.A. §§ 901–920 are designated as subchapter 1 which is added to read:

Subchapter 1.  General Provisions

Sec. 3.  29 V.S.A. chapter 49, subchapter 2 is added to read:

Subchapter 2.  State Purchasing of Apparel, Footwear, or Textiles

§ 921.  Application of subchapter; definitions

(a)  This subchapter applies to competitive bids for sale of apparel, footwear, or textiles pursuant to subchapter 1 of this chapter.

(b)  As used in this subchapter, unless the context otherwise indicates, the following terms shall have the following meanings:

(1)  “Commissioner” means the commissioner of buildings and general services.

(2)  “Independent monitor” means a nonprofit organization that is neither funded nor controlled, in whole or in part, by businesses that sell or manufacture apparel, footwear, or textiles.

§ 922.  BIDS FOR THE SALE OF APPAREL, FOOTWEAR, OR TEXTILES

(a)  The commissioner shall require that a bidder for the sale of apparel, footwear, or textiles certify that, to the best of the bidder’s knowledge, each supplier at the point of assembly of the goods:

(1) complies with all applicable wage, health, labor, environmental, and safety laws, legal guarantees of freedom of association, building and fire codes, and laws relating to discrimination in hiring, promotion, and compensation on the basis of race, disability, national origin, gender, sexual orientation, and affiliation with any political, nongovernmental, and civic group except when federal law precludes the state from attaching the procurement conditions provided in this subchapter; and

(2) complies with all human and labor rights treaty obligations that are shared by the United States and the country in which the goods are assembled, including obligations with regard to forced labor, indentured labor, slave labor, child labor, involuntary prison labor, physical and sexual abuse, and freedom of association.

(b)  Prior to the awarding of a contract, a bidder for the sale of apparel, footwear, or textiles shall submit a list of the names and addresses of suppliers at the point of assembly of goods subject to the bid process.

(c)  If, after complying with the filing requirements of this section, a bidder is awarded a contract, that contractor shall, during the term of the contract, promptly inform the commissioner of any change in the information furnished to the commissioner pursuant to this section.

§ 923.  EXCEPTION

The commissioner may accept a bid from and award a contract to a supplier who has not met the requirements provided in section 922 of this title if, after reasonable investigation by the commissioner, it appears that the required unit or item of supply or brand of that unit or item is procurable by the state from only that supplier or under other extraordinary circumstances.  The approval of an exception pursuant to this section shall be documented in writing, signed by the commissioner, and retained as part of the contract file.

§ 924.  REPORT

By January 15 of each year, the commissioner shall submit a report to the house and senate committees on government operations concerning the degree of voluntary compliance with this subchapter; the number of vendors who agreed to and the number that declined to comply with the provisions of this subchapter; the status of the commissioner’s efforts to coordinate with other states with those jurisdictions’ efforts to develop an effective strategy to monitor vendor compliance with the requirements of this subchapter or with similar requirements of those jurisdictions; a description of any exceptions approved pursuant to section 923 of this title; and any other information relevant to this subchapter.

§ 925.  Complaints of noncompliance with SUBCHAPTER; investigations of complaints

(a)  The commissioner shall initiate an investigation to determine whether a violation of this subchapter has occurred if:

(1)  The commissioner has knowledge that a contractor or a supplier at the point of assembly of goods subject to a contract is not in compliance with this subchapter.

(2)  The contractor informs the commissioner that the contractor or a supplier at the point of assembly of goods subject to a contract is not in compliance with this subchapter.

(3)  A worker for a contractor or for a supplier at the point of assembly of goods subject to a contract files a written complaint directly with the commissioner stating that the contractor or supplier, to the best of the worker’s knowledge, is not in compliance with this subchapter.

(4)  A third party established and based in the United States, on behalf of or on the basis of information from a worker or workers, files directly with the commissioner a written complaint, signed and dated under oath before an official authorized by applicable law to administer oaths, stating that, to the best of the third party’s knowledge, a contractor or a supplier at the point of assembly of goods subject to a contract is not in compliance with this subchapter.

(5)  A third party established and based outside the United States, on behalf of or on the basis of information from a worker or workers, files directly with the commissioner a signed and dated written complaint stating that, to the best of the third party’s knowledge, a contractor or a supplier at the point of assembly of goods subject to a contract is not in compliance with this subchapter.

(b)  After receiving a complaint alleging noncompliance with this subchapter, the commissioner shall contact in a timely manner, in writing and by certified letter, the contractor that is the subject of the complaint or whose supplier is the subject of the complaint.

§ 926.  DETERMINATIONS OF NONCOMPLIANCE WITH SUBCHAPTER

(a)  In making a determination of whether a violation of this subchapter has occurred, the commissioner may take into account any factors, information, sources of information, and materials determined reliable and relevant by the commissioner, as determined on a case-by-case basis.  The commissioner has specific authority and discretion to employ an independent monitor to investigate a complaint.

(b)  The determination of whether a party subject to a complaint is in compliance with this subchapter is solely that of the commissioner.

(c)  After rendering a determination under this section, the commissioner promptly shall inform the complainant and contractor in writing.

§ 927.  CONSEQUENCES OF NONCOMPLIANCE WITH SUBCHAPTER

If, in the opinion of the commissioner, a contractor that has been determined to be not in compliance with this subchapter does not make good-faith efforts to change its practices or use its bargaining position with an offending supplier to change the supplier’s practices, the commissioner may take appropriate remedial action, including barring the contractor from bidding on future state contracts or terminating the state’s contract with the contractor.  Reference to the authority given in this section shall be specifically referenced in state contracts with contractors that are subject to this subchapter.

§ 928.  COORDINATION WITH OTHER JURISDICTIONS

The commissioner shall coordinate with other jurisdictions of the United States of America with those jurisdictions’ efforts to develop an effective strategy to monitor vendor compliance with the requirements of this subchapter or similar requirements of those jurisdictions.

And that upon passage the title of the bill shall be amended to read:

“AN ACT RELATING TO State Purchasing of Apparel, Footwear, or Textiles”

(Committee vote: 10-0-0)

H. 636

     An act relating to embezzlement by a public official.

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

Sec. 1.  13 V.S.A. § 2537 is amended to read:

§ 2537.  PERSON HOLDING PROPERTY IN OFFICIAL CAPACITY OR BELONGING TO THE STATE OR A MUNICIPALITY

A state, county, town, or municipal officer or other person who in his or her official capacity receives, collects, controls, or holds money, obligations, or securities belonging to a corporation, public or private, or to a private person, or other property, who embezzles or fraudulently converts to his or her own use any of such money, obligations or, securities, or other property, or a person who embezzles or fraudulently converts to his or her own use, money or other property belonging to the state or to a county or municipality, or a municipal corporation, or a special purpose district, shall be guilty of larceny and shall be imprisoned not more than ten years or fined not more than $1,000.00, or both.

Sec. 2.  13 V.S.A. § 7554 is amended to read:

§ 7554.  RELEASE PRIOR TO TRIAL

(a)  Any person charged with an offense, other than a person held without bail under section 7553 or 7553a of this title, shall at his or her appearance before a judicial officer be ordered released pending trial in accordance with this section.

* * *

(2)  If the judicial officer determines that conditions of release imposed to assure appearance will not reasonably protect the public, the judicial officer may in addition impose the least restrictive of the following conditions or the least restrictive combination of the following conditions which will reasonably assure protection of the public:

(A)  Place the person in the custody of a designated person or organization agreeing to supervise him or her.

(B)  Place restrictions on the travel, association, or place of abode of the person during the period of release.

(C)  Require the person to participate in an alcohol or drug treatment program.  The judicial officer shall take into consideration the defendant’s ability to comply with an order of treatment and the availability of treatment resources.

(D)  Impose any other condition found reasonably necessary to protect the public, except that a physically restrictive condition may only be imposed in extraordinary circumstances

(E)  If the person is a state, county, or municipal officer charged with violating section 2537 of this title, the court may suspend the officer’s duties in whole or in part, if the court finds that it is necessary to protect the public.

* * *

Sec. 3.  24 V.S.A. § 176 is amended to read:

§ 176.  DEPUTY CLERK

A county clerk may, subject to the approval of the assistant judges, appoint one or more deputies who may perform the duties of clerk for whose acts he or she shall be responsible and whose deputations he or she may revoke at pleasure.  A record of the appointments shall be made in the office of the clerk.  In case of the death of the clerk or his or her inability to act, the deputy or deputies in order of appointment shall perform the duties of the office until a clerk is appointed.  In case of the suspension of the clerk’s duties as a condition of release pending trial for violating 13 V.S.A. § 2537, the deputy or deputies in order of appointment shall perform the duties of the office until the charge of violating 13 V.S.A. § 2537 is resolved.  The compensation for the deputy clerk shall be fixed by the assistant judges and paid for by the county.  Such compensation may include such employment benefits as are presently provided to state employees including, but not limited to, health insurance, life insurance, and pension plan, the expense for which shall be borne by the county and the employees.

Sec. 4.  24 V.S.A. § 211 is amended to read:

§ 211.  APPOINTMENT; VACANCY

Biennially, on February 1, the assistant judges of the superior court shall appoint a treasurer for the county who shall hold office for two years and until his or her successor is appointed and qualified.  If such treasurer dies or in the opinion of the assistant judges becomes disqualified, they may appoint a treasurer for the unexpired term.  If the treasurer has his or her duties suspended as a condition of release pending trial for violating 13 V.S.A. § 2537, the assistant judges may appoint a person to perform the duties of the treasurer until the charge of violating 13 V.S.A. § 2537 is resolved.

Sec. 5.  24 V.S.A. § 294 is amended to read:

§ 294.  SHERIFF IMPRISONED

If a sheriff is confined in prison by legal process, or has his or her duties suspended as a condition of release pending trial for violating 13 V.S.A. § 2537, his or her functions as sheriff shall be suspended.  When he or she is released from imprisonment during his or her term of office, he or she shall file a certificate of his or her discharge signed by one of the judges of the superior court, in the office of the county clerk, and deliver a like certificate to the high bailiff.  Thereupon he or she shall resume the powers and execute the duties of sheriff.

Sec. 6.  24 V.S.A. § 363 is amended to read:

§ 363.  DEPUTY STATE’S ATTORNEYS

A state’s attorney may appoint as many deputy state’s attorneys as necessary for the proper and efficient performance of his or her office, and with the approval of the governor, fix their pay not to exceed that of the state’s attorney making the appointment, and may remove them at pleasure.  Deputy state’s attorneys shall be compensated only for periods of actual performance of the duties of such office.  Deputy state’s attorneys shall be reimbursed for their necessary expenses incurred in connection with their official duties when approved by the state’s attorneys and the commissioner of finance.  Deputy state’s attorneys shall exercise all the powers and duties of the state’s attorneys except the power to designate someone to act in the event of their own disqualification.  If the state’s attorney’s duties are suspended as a condition of release pending trial for violating 13 V.S.A. § 2537, the deputy or deputies in order of appointment shall perform the duties of the state’s attorney until the charge of violating 13 V.S.A. § 2537 is resolved.  Deputy state’s attorneys may not enter upon the duties of the office until they have taken the oath or affirmation of allegiance to the state and the oath of office required by the constitution, and until such oath together with their appointment is filed for record with the county clerk.  In case of a vacancy in the office of state’s attorney, the appointment of the deputy shall expire upon the appointment of a new state’s attorney.

Sec. 7.  24 V.S.A. § 961 is amended to read:

§ 961.  VACANCY OR SUSPENSION OF OFFICER’S DUTIES

(a)  When a town officer resigns his or her office, or has been removed therefrom, or dies, or becomes insane or removes from town, such office shall become vacant.  Notice of this vacancy shall be posted by the legislative body in at least two public places in the town, and in and near the town clerk’s office, within 10 days of the creation of the vacancy.

(b)  In the event there are so many vacancies on the selectboard that a quorum cannot be achieved, the remaining selectperson or selectpersons shall be authorized to draw orders for payment of continuing obligations and necessary expenses until the vacancies are filled pursuant to section 963 of this title.

(c)  The legislative body of a town may designate a person to perform the duties of an officer whose duties have been suspended as a condition of release pending trial for violating 13 V.S.A. § 2537.

Sec. 8.  24 V.S.A. § 962 is amended to read:

§ 962.  SPECIAL MEETING

A town at a special meeting may fill a vacancy in a town office or designate a person to perform the duties of an officer whose duties have been suspended as a condition of release pending trial for violating 13 V.S.A. § 2537.

Sec. 9.  24 V.S.A. § 1171 is amended to read:

§ 1171.  -DUTIES

Such assistant clerk shall be sworn and is authorized to perform the recording and filing duties of the town clerk, to issue licenses and certified copies of records and, in the absence, death or disability of the town clerk, or the suspension of the town clerk’s duties as a condition of release pending trial for violating 13 V.S.A. § 2537, is further authorized to perform all other duties of such clerk.  If the town clerk dies, the authority of the assistant town clerk to perform the duties of the town clerk shall continue until a successor is appointed by the selectmen under section 963 of this title.

Sec. 10.  32 V.S.A. § 167(b) is amended to read:

(b)  In connection with any of his or her duties, the auditor of accounts may administer oaths and may subpoena any person to appear before him or her. Such persons shall testify under oath and be subject to the penalties of perjury, and may be examined concerning any matter relating to the statutory duties of the auditor provided by section 163 of this title.  Nothing in this subsection shall limit a person’s fifth amendment rights against self‑incrimination.

(Committee vote: 10-0-1)

S. 108

An act relating to the election of U.S. representative and U. S. senator by the instant runoff voting method.

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

     In Sec. 3, 17 V.S.A. § 2473a(b), by striking “the Vermont municipal clerks and treasurers association” and inserting in lieu thereof “local election officials

(Committee vote: 9-0-2)

(For text see Senate Journal 4/25/07 – P. 625 )

Rep. Larson of Burlington, for the Committee on Appropriations, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Government Operations.

(Committee vote: 6-5-0)

NOTICE CALENDAR

Favorable with Amendment

H. 629

     An act relating to an evaluation of Vermont’s system of caring for mentally ill offenders.

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

Sec. 1.  28 V.S.A. § 701a is amended to read:

§ 701a.  SEGREGATION OF INMATES WITH A SERIOUS MENTAL ILLNESS FUNCTIONAL IMPAIRMENT

(a)  The commissioner shall adopt rules pursuant to chapter 25 of Title 3 regarding the classification, treatment, and segregation of an inmate with a serious mental illness functional impairment as defined in subdivision 906(1) and identified under subchapter 6 of this title chapter; provided that the length of stay in segregation for an inmate with a serious mental illness functional impairment:

(1)  Shall not exceed 15 days if the inmate is segregated for disciplinary reasons.

(2)  Shall not exceed 30 days if the inmate requested the segregation, except that the inmate may remain segregated for successive 30-day periods following assessment by a qualified mental health professional and approval of a physician for each extension.

(3)  Shall not exceed 30 days if the inmate is segregated for any reason other than the reasons set forth in subdivision (1) or (2) of this subsection, except that the inmate may remain segregated for successive 30-day periods following a due process hearing for each extension, which shall include assessment by a qualified mental health professional and approval of a physician.

(b)  For purposes of this title, and despite other names this concept has been given in the past or may be given in the future, “segregation” means a form of separation from the general population which may or may not include placement in a single occupancy cell and which is used for disciplinary, administrative, or other reasons.

(c)  On or before the 15th day of each month, the department’s health services director shall provide to the joint legislative corrections oversight committee a report that, while protecting inmate confidentiality, lists each inmate who was in segregation during the preceding month by a unique indicator and identifies the reason the inmate was placed in segregation, the length of the inmate’s stay in segregation, whether the inmate has a serious mental illness, functional impairment or is otherwise on the department’s mental health roster identified as receiving mental health services, and, if so, the nature of the mental illness functional impairment or services provided.  The report shall also indicate any incident of self harm or attempted suicide by inmates in segregation.  The committee chair shall ensure that a copy of the report is forwarded to the Vermont defender general and the executive director of Vermont Protection and Advocacy, Inc. on a monthly basis.

Sec 2.  28 V.S.A. chapter 11, subchapter 6 is amended to read:

Subchapter 6.  Services for Inmates with Serious

Mental Illness Functional Impairment

§ 906.  DEFINITIONS

As used in this subchapter:

(1)  “Serious mental illness functional impairment” means:

(A)  a substantial disorder of thought, mood, perception, orientation, or memory, any of as diagnosed by a qualified mental health professional, which grossly substantially impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life and which substantially impairs the ability to function within the correctional setting; or

(B)  a developmental disability, traumatic brain injury or other organic brain disorder, or various forms of dementia or other neurological disorders, as diagnosed by a mental health professional, which substantially impair the ability to function in the correctional setting.

(2)  “Mental Qualified mental health professional” means a person with professional training, experience and demonstrated competence in the treatment of mental illness or serious functional impairments, who is a physician, psychiatrist, psychologist, social worker, nurse, or other qualified person determined by the commissioner of mental health.

(3)  “Mental illness or disorder” means a condition that falls under any Axis I diagnostic categories or the following Axis II diagnostic categories as listed in the American Psychiatric Association’s Diagnostic and Statistical Manual, Volume IV, as updated from time to time:  borderline personality disorder, histrionic personality disorder, mental retardation,

obsessive-compulsive personality disorder, paranoid personality disorder, schizoid personality disorder, schizotypal personality disorder.

(4)  “Screening” means an initial survey to identify whether an inmate has immediate treatment needs or is in need of further evaluation.

§ 907.  MENTAL HEALTH SERVICE FOR INMATES; POWERS AND RESPONSIBILITIES OF COMMISSIONER

The commissioner shall administer a program of mental health services which shall be available to all inmates and shall provide adequate staff to support the program.  The program shall provide the following services:

(1)  Within 24 hours of admittance to a correctional facility all inmates shall be screened for any signs of serious mental illness or disorder, trauma, and serious functional impairment.  If as a result of the screening it is determined that the inmate has received developmental services in Vermont or similar services for neurological disorders or is currently receiving community rehabilitation and treatment services, he or she will automatically be designated as having a serious functional impairment.

(2)  A thorough evaluation, conducted in a timely and reasonable fashion by a qualified mental health professional, which includes a review of available medical and psychiatric records.  The evaluation shall be made of each inmate who:

 (A)  has a history of serious mental illness or disorder;

(B)  has significant trauma;

(C)  has received community rehabilitation and treatment services; or

(D)  who shows signs or symptoms of serious mental illness or disorder or of serious functional impairment at the initial screening or as observed subsequent to entering the department in a timely and reasonable fashion facility

The evaluation shall be conducted by a mental health professional who is qualified by training and experience to provide diagnostic, rehabilitative, treatment or therapeutic services to persons with serious mental illness.  The evaluation shall include review of available medical and psychiatric records. 

(3)  The development and implementation of an individual treatment plan, when a clinical diagnosis by a qualified mental health professional indicates an inmate is suffering from serious mental illness or disorder from or serious functional impairment.  The treatment plan shall be explained to the inmate by a qualified mental health professional.

(4)  Access to a variety of services and levels of care consistent with the treatment plan to inmates suffering serious mental illness or disorder or serious functional impairment.  These services shall include, as appropriate, the following:

(A)  Follow-up evaluations.

(B)  Crisis intervention.

(C)  Crisis beds.

(D)  Residential care within a correctional institution.

(E)  Clinical services provided within the general population of the correctional facility.

(F)  Services provided in designated special needs units.

(G)  As a joint responsibility with the department of mental health and the department of aging and independent living, and working with community mental health centers, the implementation of discharge planning for community services.

(H)  Other services that the department of corrections, the department of aging and independent living, and the department of mental health jointly determine to be appropriate.

(5)  Procedures to actively seek and identify any inmate who has not received the enhanced screening, evaluation and access to mental health services appropriate for inmates suffering from a serious mental illness or disorder or a serious functional impairment.

(6)  Special training to medical and correctional staff to enable them to identify and initially deal with inmates with a serious mental illness or disorder or a serious functional impairment.  This training shall include the following:

(A)  Recognition of signs and symptoms of serious mental illness or disorder or of serious functional impairment in the inmate population.

(B)  Recognition of signs and symptoms of chemical dependence and withdrawal.

(C)  Recognition of adverse reactions to psychotropic medication.

(D)  Recognition of improvement in the general condition of the inmate.

(E)  Recognition of mental retardation.

(F)  Recognition of mental health emergencies and specific instructions on contacting the appropriate professional care provider and taking other appropriate action.

(G)  Suicide potential and prevention.

(H)  Precise instructions on procedures for mental health referrals.

(I)  Any other training determined to be appropriate.

* * *

Sec. 3.  EVALUATION OF VERMONT'S SYSTEM OF CARING FOR                                          MENTALLY ILL OFFENDERS

(a)  The legislative council and joint fiscal office, with assistance from the secretary of human services, the commissioner of mental health, the commissioner of corrections, the deputy commissioner of  alcohol and drug abuse prevention, and the court administrator shall:

(1)  conduct a review of Vermont’s system for determining where, how, and what services are provided to offenders with a mental illness;

(2)  develop options for providing service and care to mentally ill offenders; and

(3)  analyze the costs and benefits of each option.

(b)  The legislative council and joint fiscal office may seek assistance from higher education institutions.

(c)  The review of Vermont’s system under subdivision (a)(1) of this section shall include an examination of the system for determining competency to stand trial and caring for those declared incompetent, the services provided in Vermont’s communities, the work of the mental health courts, and services that are provided within the corrections system.

(d)  The legislative council and joint fiscal office shall report their findings and recommendations to the corrections oversight committee on or before October 15, 2008, and to the senate committees on judiciary and health and welfare and the house committees on institutions and human services on or before January 15, 2009.

(Committee vote: 10-0-1)

H. 635

     An act relating to reports of child abuse or neglect.

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

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

Subchapter 2.  Reporting Abuse of Children

§ 4911.  Purpose

The purpose of this subchapter is to:

(1)  protect Protect children whose health and welfare may be adversely affected through abuse or neglect;.

(2)  strengthen Strengthen the family and make the home safe for children whenever possible by enhancing the parental capacity for good child care;.

(3)  provide Provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes require the reporting of suspected child abuse and neglect, an assessment or investigation of such reports and provision of services, when needed, to such child and family.

(4)  Establish a range of responses to child abuse and neglect that take into account different degrees of child abuse or neglect and which recognize that child offenders should be treated differently from adults.

(5)  Establish a tiered child protection registry that balances the need to protect children and the potential employment consequences of a registry record for persons who are substantiated for child abuse and neglect. 

§ 4912.  Definitions

As used in this subchapter:

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

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

(3)  “Harm” can occur by:

(A)  Physical injury or emotional maltreatment;

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

(C)  Abandonment of the child.

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

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

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

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

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

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

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

(11)  [Repealed.]

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

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

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

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

(16)  “Investigation” means a response to a report of child abuse or neglect that begins with the systematic gathering of information to determine whether the abuse or neglect has occurred and, if so, the appropriate response.  An investigation shall result in a formal determination as to whether the reported abuse or neglect has occurred.

(17)  “Assessment” means a response to a report of abuse or neglect that focuses on the identification of the strengths and support needs of the child and the family, and any services they may require to improve or restore their

well-being and to reduce the risk of future harm.  The child and family assessment does not result in a formal determination as to whether the reported abuse or neglect has occurred.

§ 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, emergency medical personnel as defined in 24 V.S.A.

§ 2651(6), dentist, psychologist, pharmacist, any other health care provider, child care worker, school superintendent, school teacher, school librarian, child care worker, school principal, school guidance counselor, and any other person employed by or contracted to work for a school district, 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)(1)  Any person enumerated in subsection (a) or (b) of this section, other than a person suspected of child abuse, who in good faith makes a report to the department of social and rehabilitation services shall be immune from any civil or criminal liability which might otherwise be incurred or imposed as a result of making a report. 

(2)  An employer or supervisor shall not discharge, demote, transfer, reduce pay, benefits, or work privileges, prepare a negative work performance evaluation, or take any other action detrimental to any employee because that employee filed a good faith report in accordance with the provisions of this subchapter.  Any person making a report under this subchapter shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of the reporting party by reason of his or her making a report.

(d)  The name of and any identifying information about either the person making the report or any person mentioned in the report shall be confidential unless:

(1)  the person making the report specifically allows disclosure or unless;

(2)  a human services board proceeding or a judicial proceeding results therefrom or unless;

(3)  a court, after a hearing, finds probable cause to believe that the report was not made in good faith and orders the department to make the name of the reporter available; or

(4)  a review has been requested pursuant to section 4916a of this title and the department has determined that identifying information can be provided without compromising the safety of the reporter or the persons mentioned in the report.

(e)(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 other appropriate agency staff other than staff of the department for children and families.  If the report is substantiated, services shall be offered to the child and to his or her family or caretaker according to the requirements of section 4915 4915b of this title.

§ 4915.  ASSESSMENT AND INVESTIGATION; REMEDIAL ACTION

(a)  Upon receipt of a report of abuse or neglect, the department shall promptly determine whether it constitutes an allegation of child abuse or neglect as defined in section 4912 of this title.  The department shall respond to reports of alleged neglect or abuse that occurred in Vermont and to out-of-state conduct when the child is a resident of or is present in Vermont. 

(b)  If the report is accepted as a valid allegation of abuse or neglect, the department shall determine whether to conduct an assessment as provided for in section 4915a of this title or to conduct an investigation as provided for in section 4915b of this title.  The department shall begin either an assessment or an investigation within 72 hours after the receipt of a report made pursuant to section 4914 of this title, provided that it has sufficient information to proceed.

(c)  The decision to conduct an assessment shall include consideration of the following factors:

(1)  the nature of the conduct and the extent of the child’s injury, if any;

(2)  the accused person’s prior history of child abuse or neglect, or lack thereof; and

(3)  the accused person’s willingness or lack thereof to accept responsibility for the conduct and cooperate in remediation. 

(d)  The department shall conduct an investigation when an accepted report involves allegations indicating substantial child endangerment.  For purposes of this section, “substantial child endangerment” includes conduct by an adult involving or resulting in sexual abuse, and conduct by a person responsible for a child’s welfare involving or resulting in abandonment, child fatality, malicious punishment, or abuse or neglect that causes serious physical injury.  The department may conduct an investigation of any report.

(e)  The department shall begin an immediate investigation if, at any time during an assessment, it appears that an investigation is appropriate.

(f)  The department may collaborate with child protection, law enforcement, and other departments and agencies in Vermont and other jurisdictions to assess risk to a child and to determine the service needs of the child and family.  The department may enter into reciprocal agreements with other jurisdictions to further the purposes of this subchapter.

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

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

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

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

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

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

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

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

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

(8)  All other data deemed pertinent.

(c)  For cases investigated by the department, the commissioner may, to the extent that it is reasonable, provide assistance to the child and the child’s family.

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

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

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

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

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

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

§ 4915a.  Procedures for Assessment

(a)  An assessment, to the extent that is reasonable under the facts and circumstances presented by the particular allegation of child abuse or neglect, shall include the following:

(1)  An interview with the child’s caretakers, focused on ensuring the immediate safety of the child and mitigating the future risk of harm to the child in the home environment.

(2)  An evaluation of the safety of the subject child and any other children living in the same home environment.  The evaluation may include an interview with or observation of the child or children.  Such interviews or observations shall occur with the permission of the child’s parent or caretaker.

(3)  In collaboration with the family, identification of family strengths, resources, and service needs, and the development of a plan of services that reduces the risk of harm and improves or restores family well-being. 

(b)  The assessment shall be completed within 45 days.  Upon written justification by the department, the assessment may be extended, not to exceed a total of 60 days.

(c)  Families have the option of declining the services offered as a result of the assessment.  If the family declines the services, the case shall be closed unless the department determines that sufficient cause exists to begin an investigation or to request the state’s attorney to file a CHINS petition pursuant to chapter 55 of this title.  In no instance shall a case be investigated solely because the family declines services.

(d)  When an assessment case is closed, there shall be no finding of abuse or neglect and no indication of the intervention shall be placed in the registry.  However, the department shall document the outcome of the assessment.

§ 4915b.  Procedures for Investigation

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

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

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

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

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

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

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

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

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

(8)  All other data deemed pertinent.

(b)  For cases investigated and substantiated by the department, the commissioner shall, to the extent that it is reasonable, provide assistance to the child and the child’s family.  For cases investigated and not substantiated by the department, the commissioner may, to the extent that it is reasonable, provide assistance to the child and the child’s family.

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

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

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

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

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

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

(f)  The department shall not substantiate cases in which neglect is caused solely by the lack of financial resources of the parent or guardian.

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

(a)(1)  The commissioner shall maintain a child abuse and neglect protection registry which shall contain a record of all investigations that have resulted in a substantiated report on or after January 1, 1992.  Except as provided in subdivision (2) of this subsection, prior to placement of a substantiated report on the registry, the commissioner shall comply with the procedures set forth in section 4916a of this title.

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

(A)  Reviewing the investigation file.

(B)  Making written findings in consideration of:

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

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

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

(4)  If the name of a person has been placed on the registry in accordance with subdivision (2) of this subsection, it shall be removed from the registry if the substantiation is rejected after an administrative review.

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

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

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

For all substantiated reports of child abuse or neglect made on or after the date the final rules are adopted, the commissioner shall create a registry record that reflects a designated child protection level related to the risk of future harm to children. This system of child protection levels shall be based upon an assessment of the risk the person responsible for the abuse or neglect poses to the safety of children.  The risk assessment shall include consideration of the following factors:

(A)  the nature of the conduct and the extent of the child’s injury, if any;

(B)  the person’s prior history of child abuse or neglect as either a victim or perpetrator; 

(C)  the person’s response to the investigation and willingness to engage in recommended services; and

(D)  the person’s age and developmental maturity.

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

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

The commissioner shall develop rules for the implementation of a system of child protection registry levels for substantiated cases.  The rules shall address:

(1)  the length of time a person’s name appears on the registry;

(2)  when and how names are expunged from the registry;

(3)  whether the person is a juvenile or an adult;

(4)  whether the person was charged with or convicted of a criminal offense arising out of the incident of abuse or neglect; and

(5)  whether a family court has made any findings against the person.

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

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

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

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

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

§ 4916a.  CHALLENGING PLACEMENT ON THE REGISTRY

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

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

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

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

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

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

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

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

(d)  The department shall hold an administrative review conference within 14 35 days of receipt of the request for review.  At least seven ten days prior to the administrative review conference, the department shall provide to the person requesting review a copy of the redacted investigation file, notice of time and place of the conference, and conference procedures, including information that may be submitted and mechanisms for providing testimony.  The department shall also provide to the person those redacted investigation files that relate to prior investigations that the department has relied upon to make its substantiation determination in the case in which a review has been requested.

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

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

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

(1)  reject the department’s substantiation determination;

(2)  accept the department’s substantiation; or

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

(h)  If the administrative reviewer accepts the department’s substantiation determination, a registry record shall be made immediately.  If the reviewer rejects the department’s substantiation determination, no registry record shall be made.

(i)  Within seven days of the decision to reject or accept or to place the substantiation on hold in accordance with subsection (g) of this section, the administrative reviewer shall provide notice to the person of his or her decision.  If the administrative reviewer accepts the department’s substantiation, the notice shall advise the person of the right to appeal the administrative reviewer’s decision to the human services board in accordance with section 4916b of this title.  In exceptional circumstances, the commissioner, in his or her sole and nondelegable discretion, may reconsider any decision made by a reviewer.  A commissioner’s decision that creates a registry record may be appealed to the human services board in accordance with section 4916b of this title.

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

(k)  If no administrative review is requested, the department’s decision in the case shall be final, and the person shall have no further right of review under this section.  The commissioner may grant a waiver and permit such a review upon good cause shown.  Good cause may include an acquittal or dismissal of a criminal charge arising from the incident of abuse or neglect.

§ 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 three 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

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. 

§ 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. 

§ 4917.  Multi-disciplinary teams; empaneling

(a)  The commissioner of social and rehabilitation services, or his or her designee may empanel a multi-disciplinary team wherever in the state there may be a probable case of child abuse or neglect which warrants the coordinated use of several professional services.

(b)  The commissioner of social and rehabilitation services, or his or her designee, in conjunction with professionals and community agencies, shall appoint members to the multi-disciplinary teams which may include persons who are trained and engaged in work relating to child abuse or neglect such as medicine, mental health, social work, nursing, day child care, education, law or law enforcement.  Additional persons may be appointed when the services of those persons are appropriate to any particular case.

 (c)  The empaneling of a multi-disciplinary team shall be authorized in writing and shall specifically list the members of the team.  This list may be amended from time to time as needed as determined by the commissioner or his or her designee.

§ 4918.  Multi-disciplinary teams; functions; guidelines

(a)  Multi-disciplinary teams shall assist local district offices of the department of social and rehabilitation services in identifying and treating child abuse and or neglect cases.  With respect to any case referred to it, the team shall may assist the district office by providing:

(1)  case diagnosis or identification,;

(2)  a comprehensive treatment plan,; and

(3)  coordination of services pursuant to the treatment plan.

(b)  Multi-disciplinary teams may also provide public informational and educational services to the community about identification, treatment and prevention of child abuse and neglect.  It shall also foster communication and cooperation among professionals and organizations in its community, and provide such recommendations or changes in service delivery as it deems necessary.

§ 4919.  DISCLOSURE OF INFORMATION REGISTRY RECORDS

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

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

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

(3)  To an employer if such information is used to determine whether to hire or retain a specific individual providing care, custody, treatment, transportation, or supervision of children or vulnerable adults.  The employer may submit a request concerning a current employee, volunteer, grantee, or contractor or an individual to whom the employer has given a conditional offer of a contract, volunteer position, or employment.  The request shall be accompanied by a release signed by the current or prospective employee, volunteer, grantee, or contractor.  If that individual has a record of a substantiated report, the commissioner shall provide the registry record to the employer;.  The employer shall not disclose the information contained in the registry report.

(4)  To the commissioner commissioners of disabilities, aging, and independent living, and of mental health, or the commissioner’s designee their designees, for purposes related to the licensing or registration of facilities regulated by the department of disabilities, aging, and independent living; those departments.

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

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

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

(8)  To the person substantiated for child abuse and neglect who is the subject of the record.

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

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

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

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

(f)  In no event shall registry records be made available for employment purposes other than as set forth in this subsection, or for credit purposes.  Any person who violates this subsection shall be fined not more than $500.00.

(g)  Nothing in this subsection shall limit the department’s right to use and disclose information from its records as provided in section 4921 of this chapter.

§ 4920.  Retaliatory action by employer prohibited

An employer or supervisor shall not discharge, demote, transfer, reduce pay, benefits or work privileges, prepare a negative work performance evaluation or take any other action detrimental to any employee because that employee filed a good faith report in accordance with the provisions of this subchapter. Any person making a report under this subchapter shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of the reporting party by reason of his or her making a report.

§ 4921.  Department’s Records of abuse and neglect

(a)  The commissioner shall maintain all records of all investigations, assessments, reviews, and responses initiated under this subchapter.  The department may use and disclose information from such records in the usual course of its business, including to assess future risk to children, to provide appropriate services to the child or members of the child’s family, or for other legal purposes.

(b)  The commissioner shall promptly inform the parent or guardian of the child that a report has been accepted and the department’s response to the report.

(c)  The redacted investigation file shall be disclosed to:

(1)  the child’s parent, foster parent, or guardian, absent good cause shown by the department, provided that the child’s parent, foster parent, or guardian is not the subject of the investigation; and

(2)  the person alleged to have abused or neglected the child, as provided for in subsection 4916a(d) of this title.

(d)  Records of abuse and neglect investigations and assessments shall be disclosed to:

(1)  the court, parties to the juvenile proceeding, and the child’s guardian ad litem if there is a pending juvenile proceeding or if the child is in the custody of the commissioner;

(2)  the commissioner or person designated by the commissioner to receive such records; 

(3)  persons assigned by the commissioner to conduct  investigations;

(4)  law enforcement officers engaged in a joint investigation with the department, an assistant attorney general or a state’s attorney;

(5)  other state agencies conducting related inquiries or proceedings; and 

(6)  probate courts involved in guardianship proceedings.

(e)  Records relating to an investigation, assessment or review may be disclosed to:

(1)  service providers working with a person or child who is the subject of the report; and

(2)  other governmental entities for purposes of child protection.

(f)  The commissioner may inform the person who made the report under subsection 4913(a) of this title whether a report has been substantiated.

§ 4922.  RULEMAKING

(a)  The commissioner shall develop rules to implement this subchapter. These shall include:

 (1)  rules setting forth criteria for determining whether to conduct an assessment or an investigation;

(2)  rules setting out procedures for assessment and service delivery;

(3)  rules outlining procedures for investigations;

(4)  rules for conducting the administrative review conference; and

(5)  rules regarding access to and maintenance of department records of investigations, assessments, reviews, and responses.

(b)  The rules shall strike an appropriate balance between protecting children and respecting the rights of a parent or guardian with disabilities, and shall recognize that persons with a disability can be successful parents.  The rules shall include the possible use of adaptive equipment and supports.

(c)  These rules shall be adopted no later than July 1, 2009.

Sec. 2.  EFFECTIVE DATES

(a)  Sections 4915 and 4915a shall take effect upon adoption of final rules by the department for children and families.

(b)  Section 4916c shall take effect on September 1, 2008.

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

(Committee vote: 11-0-0)

CONSENT CALENDAR

Concurrent Resolutions for Notice Under Joint Rule 16

     The following concurrent resolutions have been introduced for approval by the House and Senate and have been printed in the Senate and House Addendum to today’s calendars. These will be adopted automatically unless a member requests floor consideration before the end of the session of the next legislative day.  Requests for floor consideration should be communicated to the Clerk of the House or to a member of his staff.

(For text of Resolutions, see Addendum to House and Senate Notice Calendar for Thursday, March 13, 2008)

H.C.R. 227

House concurrent resolution congratulating the Poultney High School Blue Devils Division III 2008 cheerleading champions

H.C.R. 228

House concurrent resolution congratulating Howard Herrington on being named the 2007 Wal-Mart Vermont Teacher of the Year

H.C.R. 229

 House concurrent resolution in memory of former Representative Peter Martin of St. Albans Town

H.C.R. 230

House concurrent resolution congratulating the Governor’s Institutes of Vermont on their 25th anniversary

H.C.R. 231

House concurrent resolution congratulating the Girl Scout Council of Vermont’s 2007 Gold and Silver Award winners

H.C.R. 232

House concurrent resolution honoring the Girl Scout Council of Vermont during Girl Scout Week

H.C.R. 233

House concurrent resolution honoring the Federal TRIO Programs in Vermont

H.C.R. 234

House concurrent resolution congratulating the 2008 BFA-St. Albans Comets girls’ Division I championship hockey team

H.C.R. 235

House concurrent resolution in memory of former speaker of the house and lieutenant governor John Burgess of Brattleboro

 

PUBLIC HEARINGS

Thursday, March 13, 2008, Room 11 – 6.00 – 8.00 PM,  House Committee on Ways and Means – H. 866 – Education Adjusted Gross Income Tax & H. 869 – Local Affordability Education Formula (LEAF)

     Thursday, March 27, 2008, Room 11 – 5:00 –7:00 PM, House Committee on Fish, Wildlife and Water Resources – H. 543  Funding of the Department of Fish and Wildlife

 

CROSSOVER DEADLINE

            All bills must be reported out by the committees of reference by the end of the day of Friday, March 14.  Bills that are then referred to a money committee must be reported out of the money committee by the end of the day of the following Friday, March 21. 

 

            Exceptions to the foregoing deadlines include the major money bills (Appropriations, Transportation, Capital Construction, and the Misc. Tax Bill).

 

 

 

 

 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us