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House Calendar

WEDNESDAY, APRIL 23, 2008

107th DAY OF ADJOURNED SESSION

House Convenes at 1:00 P M

TABLE OF CONTENTS

                                                                                                               Page No.

ACTION CALENDAR

Unfinished Business of Monday, April 21, 2008

Senate Proposal of Amendment

H. 884  Prekindergarten Education Programs in School District.................... 2175

Unfinished Business of Tuesday, April 22, 2008

Favorable with Amendment

S. 114  Enhancing Mental Health Parity........................................................ 2176                    Rep. Fisher for Human Services

S. 168  Operating a Motor Vehicle Under Influence of Alcohol or Drugs....... 2184

          Rep. Lippert for Judiciary

S. 281  Relating to End-of-Life Care and Pain Management.......................... 2186

          Rep. Frank for Human Services

          Rep. Hunt for Appropriations.............................................................. 2188

S. 336  Relating to Juvenile Judicial Proceedings........................................... 2188

          Rep. Flory for Judiciary

          Rep. Haas for Human Services........................................................... 2215

S. 354  Public Agency Deferred Compensation Plans................................... 2216

          Rep. Jerman for Government Operations

Favorable

S. 361  Relating to Authority to Lease the State Lottery................................ 2217

          Rep. Aswad for Ways and Means

S. 373  Full funding of Decommissioning Costs of Nuclear Plant.................... 2217

          Rep. Kitzmiller for Commerce

          Rep. Errecart et al Amendment........................................................... 2217

Senate Proposal of Amendment

H. 748  Students to Possess and Self-Administer Emergency Medication...... 2217

 

     Third Reading

H. 659  Adoption of Amendments to Charter Town of Enosburg.................. 2219

          Rep. Manwaring Amendment

H. 892  Amendments to Charter of Village of Enosburg Falls........................ 2219

H. 893  Amendment to Charter of City of Rutland........................................ 2219

S.   89  Payment of Rent into Court Pursuant to Commercial lease................ 2219

S. 107  Mapping Class Four Town Highways and Trails............................... 2219

S. 171  Relating to Discharge of Mortgage by an Attorney............................ 2219

S. 201  State Employee Whistleblower Protection........................................ 2220

S. 283  Managed Care Organizations and Blueprint for Health...................... 2220

S. 313  Relating to a License to Store and Ship Wine.................................... 2220

S. 322  Relating to Vermont Dairy Promotion Council................................... 2220

S. 368  Addition of New Disinfectants in Public Water Systems.................... 2220

S. 372  Evictions, Unpaid Rent, Abandoned Property in Rental..................... 2220

J.R.H.  59  Accelerated Learning Opportunities........................................... 2220

For Action Under Rule 52

J.R.S. 64  Observance 2008 National Crime Victims’ Rights Week............. 2221

NOTICE CALENDAR

Favorable with Amendment

S. 284  Relating to BISHCA........................................................................ 2221

          Rep. Kupersmith for Commerce

S. 304  Relating to Groundwater Withdrawal Permit Program....................... 2229

          Rep. Anderson for Fish, Wildlife and Water Resources

S. 311  Relating to the Use Value Appraisal Program.................................... 2239

          Rep. Randall for Fish, Wildlife and Water Resources

          Rep. Winters for Ways and Means..................................................... 2245

          Rep. Hutchinson for Appropriations.................................................... 2245

S. 345  Lowering the Cost of Workers’ Compensation Insurance................. 2245

          Rep. Kitzmiller for Commerce

          Rep. Keenan for Appropriations......................................................... 2257

          Rep. Bray  et al Amendment............................................................... 2257

          Rep. McDonald Amendment.............................................................. 2258

 

S. 357  Relating to Domestic Violence.......................................................... 2259

          Rep. Lippert for Judiciary

          Rep. Howard for Ways and Means..................................................... 2276                    Rep. Heath for Appropriations 2276

S. 364  Comprehensive Assessment VT Yankee Nuclear Facility.................. 2279

          Rep. Klein for Natural Resources and Energy

          Rep. Keenan for Appropriations......................................................... 2286

         

Favorable

S. 227  Relating to Angel Investors............................................................... 2286

          Rep. Botzow for Commerce

 

S. 270  Agreement Between States to Elect President by Popular Vote......... 2186

          Rep. Sweaney for Government Operations

 

Senate Proposals of Amendment

H. 11  Relating to the Commissioner of Health.............................................. 2286

H.   94  Retail Sales and Taxing of Specialty Beers....................................... 2287

H. 290  Underground Utility Damage Prevention System.............................. 2288

H. 306  Relating to Telemarketing................................................................ 2291

H. 330  Repeal of Law Relating to Municipal Trailer Park Ordinances.......... 2293

H. 432  Establishing Juneteenth National Freedom Day................................. 2293

H. 515  Collection and Disposition of Mercury-Added Thermostats.............. 2293

H. 617  Relating to Guardianships................................................................ 2300

H. 711  Agriculture, Forestry and Horticultural Education............................. 2302

H. 777  Relating to Certificate of Need Program........................................... 2303

H. 806  Relating to Public Water Systems.................................................... 2309

H. 867  Health Insurance for Athletic Trainer Services.................................. 2310

H. 889  Re the State’s Transportation Program............................................ 2312

Senate Proposals of Amendment to House Proposals of Amendment

S. 240  Repealing Sunset Law Social Security Breach Notice Act................. 2343

S. 290  Agriculture Water Quality Financing................................................. 2343

 

 

ORDERS OF THE DAY

ACTION CALENDAR

Unfinished Business of Monday, April 21, 2008

Senate Proposal of Amendment

H. 884

     An act relating to ensuring quality in prekindergarten  education programs offered by or through school districts.

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

First:  In Sec. 2, subsection (a) by striking out the words “any prekindergarten education program offered by a school district” and inserting in lieu thereof the words any prekindergarten education program operated by a school district or by a private provider on behalf of a school district

Second:  By adding a new section to be Sec. 3 to read:

Sec. 3.  Sec. 15 of No. 62 of the Acts of 2007 is amended to read:

Sec. 15.  EFFECTIVE DATES

This act shall take effect on July 1, 2007, except that the rules required by Sec. 3 of this act shall apply beginning in the 2008–2009 academic year.  A prekindergarten education program operated by a school district or by a private provider on behalf of a school district that was operating on or before
October 1, 2008 shall have one year from the effective date of the rules required by Sec. 3 of this act to achieve full compliance with provisions in the rules related to conducting child development assessments and governing the manner in which school districts and private providers establish and negotiate contract payments.

Third:  By adding two new section to be numbered Secs. 4 and 5 to read as follows:

Sec. 4.  16 V.S.A. § 4001(1)(C) is amended to read:

(C)  The full-time equivalent enrollment for each prekindergarten child as follows:  If a child is enrolled in 10 or more hours of prekindergarten education per week or receives 10 or more hours of essential early education services per week, the child shall be counted as one full-time equivalent pupil. If a child is enrolled in six or more but fewer than 10 hours of prekindergarten education per week or if a child receives fewer than 10 hours of essential early education services per week, the child shall be counted as a percentage of one full-time equivalent pupil, calculated as one multiplied by the number of hours per week divided by ten.  A child enrolled in prekindergarten education for fewer than six hours per week shall not be included in the district’s average daily membership.  Although there is no limit on the total number of children who may be enrolled in prekindergarten education or who receive essential early education services, the total number of prekindergarten children that a district may include within its average daily membership shall be limited as follows:

(i)  All children receiving essential early education services may be included.

(ii)  Of the children enrolled in prekindergarten education offered by or through a school district who are not receiving essential early education services, the greater of the following may be included:

(I)  ten children; or

(II)  the number resulting from:

(aa)  one plus the average annual percentage increase or decrease in the district’s first grade enrollment average daily membership as counted in the census period of the previous five years; multiplied by

(bb)  the most immediately previous year’s first grade census count average daily membership; or

(III)  the total number of four-year-olds in the district  the total number of children residing in the district who are enrolled in the prekindergarten program or programs and who are eligible to enter kindergarten in the district in the following academic year

Sec. 5.  16 V.S.A. § 4001(15) is amended to read:

(15)  “Prekindergarten child” means a three- or four-year-old child who is enrolled in a prekindergarten program offered by or through a public school district pursuant to rules adopted under section 829 of this title or who is receiving essential early education services offered pursuant to section 2956 of this title.  Prekindergarten child also means a five-year-old child who otherwise meets the terms of this definition if that child is not yet eligible for or enrolled in kindergarten.

No House Amendments

Unfinished Business of Tuesday, April 22, 2008

Favorable with Amendment

S. 114

An act relating to enhancing mental health parity.

Rep. Fisher of Lincoln, 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.  8 V.S.A. § 4089b is amended to read:

(a)  It is the goal of the general assembly that treatment for mental health conditions be recognized as an integral component of health care, that health insurance plans cover all necessary and appropriate medical services without imposing practices that create barriers to receiving appropriate care, and that integration of health care be recognized as the standard for care in this state.

(a)(b) As used in this section:

(1) "Health insurance plan" means any health insurance policy or health benefit plan offered by a health insurer, as defined in 18 V.S.A. § 9402(7). Health insurance plan includes any health benefit plan offered or administered by the state, or any subdivision or instrumentality of the state.

(2) "Mental health condition" means any condition or disorder involving mental illness or alcohol or substance abuse that falls under any of the diagnostic categories listed in the mental disorders section of the international classification of disease, as periodically revised.

(3) "Rate, term or condition" means any lifetime or annual payment limits, deductibles, copayments, coinsurance and any other cost-sharing requirements, out-of-pocket limits, visit limits, and any other financial component of health insurance coverage that affects the insured.

(b)(c)  A health insurance plan shall provide coverage for treatment of a mental health condition and shall:

(1)  not establish any rate, term, or condition that places a greater financial burden on an insured for access to treatment for a mental health condition than for access to treatment for a physical other health conditions;

(2) not exclude from its network or list of authorized providers any licensed mental health or substance abuse provider located within the geographic coverage area of the health benefit plan if the provider is willing to meet the terms and conditions for participation established by the health insurer; and

(3) make any deductible or out-of-pocket limits required under a health insurance plan comprehensive for coverage of both mental health and physical health conditions.

 (c)(d)(1)(A) A health insurance plan that does not otherwise provide for management of care under the plan, or that does not provide for the same degree of management of care for all health conditions, may provide coverage for treatment of mental health conditions through a managed care organization provided that the managed care organization is in compliance with the rules adopted by the commissioner that assure that the system for delivery of treatment for mental health conditions does not diminish or negate the purpose of this section.  In reviewing rates and forms pursuant to section 4062 of this title, the commissioner shall consider the compliance of the policy with the provisions of this section.

(B)  The rules adopted by the commissioner shall assure that:

(i)  timely and appropriate access to care is available; that

(ii)  the quantity, location and specialty distribution of health care providers is adequate; and that

(iii)  administrative or clinical protocols do not serve to reduce access to medically necessary treatment for any insured;

(iv)  utilization review and other administrative and clinical protocols do not deter timely and appropriate care, including emergency hospital admissions;

(v)  in the case of a managed care organization which contracts with a health insurer to administer the insurer’s mental health benefits, the portion of a health insurer’s premium rate attributable to the coverage of mental health benefits is reviewed under sections 4062, 4513, 4584, or 5104 of this title to determine whether it is excessive, inadequate, unfairly discriminatory, unjust, unfair, inequitable, misleading or contrary to the laws of this state;

(vi)  the health insurance plan is consistent with the Blueprint for Health with respect to mental health conditions, as determined by the commissioner under section 9414(b)(2) of Title 18;

(vii)  a quality improvement project is completed annually as a joint project between the health insurance plan and its mental health managed care organization to implement policies and incentives to increase collaboration among providers that will facilitate clinical integration of services for medical and mental health conditions, including:

(I)  evidence of how data collected from the quality improvement project are being used to inform the practices, policies, and future direction of care management programs for mental health conditions; and

(II)  demonstration of how the quality improvement project is supporting the incorporation of best practices and evidence-based guidelines into the utilization review of mental health conditions;

(viii)  an up-to-date list of active mental health care providers in the plan’s network who are available to the general membership is available on the health insurer’s and managed care organization’s websites and provided to consumers upon request; and

(ix)  the health insurers and managed care organizations make accessible to consumers the toll-free telephone number for the Vermont health care administration’s consumer protection help line.

(C)  Prior to the adoption of rules pursuant to this subdivision, the commissioner shall consult with the commissioner of mental health and the task force established pursuant to subsection (h) of this section concerning:

(i)  developing incentives and other measures addressing the availability of providers of care and treatment for mental health conditions, especially in medically underserved areas;

(ii)  incorporating nationally recognized best practices and evidence-based guidelines into the utilization review of mental health conditions; and

(iii)  establishing benefit design, infrastructure support, and payment methodology standards for evaluating the health insurance plan’s consistency with the Blueprint for Health with respect to the care and treatment of mental health conditions.

(2)  A managed care organization providing or administering coverage for treatment of mental health conditions on behalf of a health insurance plan shall comply with this section, sections 4089a and 4724 of this title, and section 9414 of Title 18, with rules adopted pursuant to those provisions of law, and with all other obligations, under Title 18 and under this title, of the health insurance plan and the health insurer on behalf of which the review agent is providing or administering coverage.  A violation of any provision of this section shall constitute an unfair act or practice in the business of insurance in violation of section 4723 of this title.

(3)  A health insurer that contracts with a managed care organization to provide or administer coverage for treatment of mental health conditions is fully responsible for the acts and omissions of the managed care organization, including any violations of this section or a rule adopted pursuant to this section.

(4)  In addition to any other remedy or sanction provided for by law, if the commissioner, after notice and an opportunity to be heard, finds that a health insurance plan or managed care organization has violated this section or any rule adopted pursuant to this section, the commissioner may:

(A)  Assess a penalty on the health insurer or managed care organization under section 4726 of this title;

(B)  Order the health insurer or managed care organization to cease and desist in further violations;

(C)  Order the health insurer or managed care organization to remediate the violation, including issuing an order to the health insurer to terminate its contract with the managed care organization; and

(D)  Revoke or suspend the license of a health insurer or managed care organization, or permit continued licensure subject to such conditions as the commissioner deems necessary to carry out the purposes of this section.

(5)  As used in this subsection, the term “managed care organization” includes any of the following entities that provide or administer the coverage of mental health benefits on behalf of a health insurance plan:

(A)  a review agent as defined in section 4089a of this title;

(B)  a health insurer or an affiliate of a health insurer as defined in section 9402 of Title 18;

(C)  a managed care organization or an affiliate of a managed care organization as defined in section 9402 of Title 18; and

(D)  a person or entity that should be licensed as a managed care organization.

(d)(e)  Notwithstanding the provisions of subdivision (c)(1) of this section, a A health insurance plan shall be construed to be in compliance with this section if at least one choice for treatment of mental health conditions provided to the insured within the plan has rates, terms and conditions that place no greater financial burden on the insured than for access to treatment of physical other health conditions. The commissioner may disapprove any plan that the commissioner determines to be inconsistent with the purposes of this section.

(e)(f) To be eligible for coverage under this section the service shall be rendered:

(1) For treatment of mental illness:

(A) by a licensed or certified mental health professional; or

(B) in a mental health facility qualified pursuant to rules adopted by the secretary of human services or in an institution, approved by the secretary of human services, that provides a program for the treatment of a mental health condition pursuant to a written plan. A nonprofit hospital or a medical service corporation may require a mental health facility or licensed or certified mental health professional to enter into a contract as a condition of providing benefits.

(2) For treatment of alcohol or substance abuse:

(A) by a substance abuse counselor or other person approved by the secretary of human services based on rules adopted by the secretary that establish standards and criteria for determining eligibility under this subdivision; or

(B) in an institution, approved by the secretary of human services, that provides a program for the treatment of alcohol or substance dependency pursuant to a written plan.

(f)(g)  On or before July 15 of each year, health insurance companies doing business in Vermont, and whose individual share of the commercially-insured Vermont market, as measured by covered lives, comprises at least five percent of the commercially-insured Vermont market, shall file with the commissioner, in accordance with standards, procedures, and forms approved by the commissioner:

(1) A report card on the health insurance plan's performance in relation to quality measures for the care, treatment, and treatment options of mental health and substance abuse conditions covered under the plan, pursuant to standards and procedures adopted by the commissioner by rule, and without duplicating any reporting required of such companies pursuant to Rule 10 of the division of health care administration, "Quality Assurance Standards and Consumer Protections for Managed Care Plans," and regulation 95-2, "Mental Health Review Agents," of the division of insurance, as amended, including:

(A) the discharge rates from inpatient mental health and substance abuse care and treatment of insureds;

(B) the average length of stay and number of treatment sessions for insureds receiving inpatient and outpatient mental health and substance abuse care and treatment;

(C) the percentage of insureds receiving inpatient and outpatient mental health and substance abuse care and treatment;

(D) the number of insureds denied mental health and substance abuse care and treatment;

(E) the number of denials appealed by patients reported separately from the number of denials appealed by providers;

(F) the rates of readmission to inpatient mental health and substance abuse care and treatment for insureds with a mental health condition;

(G) the level of patient satisfaction with the quality of the mental health and substance abuse care and treatment provided to insureds under the health insurance plan; and

(H) any other quality measure established by the commissioner.

(2) [Repealed.]  The health insurance plan’s revenue loss and expense ratio relating to the care and treatment of mental health conditions covered under the health insurance plan.  The expense ratio report shall list amounts paid in claims for services and administrative costs separately.

 (g)(h)  The commissioner shall establish a task force to develop performance quality measures, and address oversight issues for managed behavioral health care organizations, and review the results of any quality improvement projects not otherwise confidential or privileged, undertaken by managed care organizations for mental health and substance abuse care and treatment under subdivision (d)(1)(A)(vii) of this section and section 9414(i) of Title 18.  The task force shall report to the senate committees on health and welfare of the senate and the house of representatives committees on health care and on human services on or before January 15 of each year with a report on the activities and recommendations of the task force.  The task force shall include the following:

(1)  the commissioner of developmental and mental health services or a designee;

(2)  the director of the office of Vermont health access or a designee;

(3)  the commissioner of banking, insurance, securities, and health care administration or a designee;

(4)  the deputy commissioner of the department of health for alcohol and drug abuse programs or a designee;

(4)(5)  fourteen additional members appointed by the commissioner of banking, insurance, securities, and health care administration, including:

(A)  four representatives of the health insurance and behavioral managed care organization industry;

(B)  two consumers, after consultation with the health care ombudsman;

(C)  one psychologist, after consultation with the Vermont psychological association;

(D)  one psychiatrist, after consultation with the Vermont psychiatric association;

(E)  one social worker, after consultation with the National Association of Social Workers, Vermont Chapter;

(F)  one mental health counselor, after consultation with the Vermont mental health counselors association;

(G)  one drug and alcohol counselor, after consultation with the Vermont association of drug and alcohol counselors;

(H)  one representative from a consumer or citizen's organization;

(I)  one representative from the business community; and

(J)  one representative of community mental health centers.

Sec. 2.  18 V.S.A. § 9414(g) is amended to read:

(g)(1)  If In addition to any other remedy or sanction provided by law, after notice and an opportunity to be heard, if the commissioner determines that a managed care organization has violated or failed to comply with any of the provisions of this section or any rule adopted pursuant to this section, the commissioner may:

(A)  sanction the violation or failure to comply as provided in Title 8, including sanctions provided by or incorporated in sections 5108 and 5109 of Title 8 and section 4726 of Title 8, and may use any information obtained during the course of any legal or regulatory action against a managed care organization;

(B)  order the managed care organization to cease and desist in further violations; and

(C)  order the managed care organization to remediate the violation, including issuing an order to the managed care organization to terminate its contract with any person or entity which administers claims or the coverage of benefits on behalf of the managed care organization.

(2)  A managed care organization that contracts with a person or entity to administer claims or provide coverage of health benefits is fully responsible for the acts and omissions of such person or entity.  Such person or entity shall comply with all obligations, under this title and Title 8, of the health insurance plan and the health insurer on behalf of which the such person or entity is providing or administering coverage.

(3)  A violation of any provision of this section or a rule adopted pursuant to this section shall constitute an unfair act or practice in the business of insurance in a violation of section 4723 of Title 8.

Sec. 3.  18 V.S.A. § 9414(i) is added to read:

(i)  Upon review of the managed care organization’s clinical data, or after consideration of claims or other data, the commissioner may:

(1)  identify quality issues in need of improvement; and

(2)  direct the managed care organization to propose quality improvement initiatives to remediate those issues.

Sec. 4.  EFFECTIVE DATE; LEGISLATIVE INTENT; APPLICABILITY

(a)  This act shall take effect upon passage.

(b)  The provisions of 8 V.S.A. § 4089b(d)(2) and (3), and 18 V.S.A. § 9414(g)(2) and (3) are intended to clarify existing law.  The remedies provided for in 8 V.S.A. § 4089b(d)(4), and 18 V.S.A. § 9414(g)(1) shall apply to legal or regulatory violations that occur before and after passage of this act.

(Committee vote: 10-1-0)

(For text see Senate Journal 3/19/08 – P. 352 )

S. 168

An act relating to operating a motor vehicle under the influence of alcohol or drugs.

Rep. Lippert of Hinesburg, for the Committee on Judiciary, 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.  23 V.S.A. § 1130a is added to read:

§ 1130A.  PERMITTING UNDULY DANGEROUS PERSON TO OPERATE

(a)    No person shall knowingly and voluntarily permit a motor vehicle owned by him or her or under his or her control to be operated by a person:

(1)  whom the person permitting the operation knows or should know is under the influence of alcohol or drugs; or

(2)  whose license or privilege to operate a motor vehicle has been revoked, suspended or refused by the commissioner of motor vehicles for a violation of subsections 1091(b) or section 1201 or a suspension under section 1205 of this title, if the person permitting the operation knows of the revocation, suspension, or refusal.

(b)  Except as provided in subsection (c) of this section, a person who violates subsection (a) of this section shall be fined not more than $1,000.00.

(c)  A person who violates subsection (a) of this section shall be fined not more than $5,000.00 or imprisoned not more than two years, or both, if the person who was permitted to operate the vehicle causes an accident which results in death or serious bodily injury as defined in 13 V.S.A.§ 1021(2) to any person other than the operator.  The provisions of this subdivision do not limit or restrict prosecutions for manslaughter.

(d)  For purposes of this section, a person may assert as an affirmative defense a necessity defense, including that threat or coercion was used by the operator to obtain permission from the person to operate the motor vehicle.

Sec. 2.  23 V.S.A. § 1200 is amended to read:

§ 1200.  DEFINITIONS

As used in this subchapter,:

* * *

(2)  “Drug” means:

(A)  a regulated drug as defined in section 4201 of Title 18; or

(B)  any substance or combination of substances, other than alcohol, which affects the nervous system, brain, or muscles of a person as to noticeably and appreciably impair a person’s ability to safely drive a vehicle in the manner that an ordinarily prudent and cautious person, in full possession of his or her faculties, using reasonable care, would drive a similar vehicle under like conditions.

* * *

Sec. 3.  ALCOHOL IGNITION INTERLOCKS STUDY:  MULTIPLE DUI

          AND HIGH BLOOD-ALCOHOL-CONTENT FIRST OFFENSE DUI

(a)  The Vermont sentencing commission shall study the issue of implementing a system of alcohol ignition interlocks in Vermont for persons with multiple DUI convictions, as well as for first time DUI offenders with high blood-alcohol-content levels at the time of arrest.  The commission may consult with any other persons and entities able to assist the study, and shall:

(1)  gather and analyze information about alcohol ignition interlock systems, and review current practices regarding use of the systems in other states;

(2)  study the feasibility of having the costs of alcohol ignition interlock systems be borne by DUI offenders;

(3)  study the net costs of implementing an alcohol ignition interlock system in Vermont, including the availability of federal funding for that purpose; and

(4)  study the advisability and feasibility of implementing a system of conditional drivers licenses in Vermont.

(b)  The commission shall report its findings and make recommendations to the senate and house committees on judiciary no later than December 15, 2008. 

Sec. 4.  LAW ENFORCEMENT ROADSIDE ACCESS TO DEPARTMENT

          OF CORRECTION RECORDS

The department of public safety, the department of corrections, and the department of motor vehicles shall collaborate to develop and implement procedures allowing law enforcement officers roadside access to department of corrections records, including records regarding probation, parole, and conditions of release.  The departments shall make a report to the senate and house committees on judiciary no later than December 15, 2008.

(Committee vote: 9-0-2)

(For text see Senate Journal 3/13/08 – P. 308 )

S. 281

An act relating to end-of-life care and pain management.

Rep. Frank of Underhill, 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.  STUDY AND REPORT ON PALLIATIVE CARE, END-OF-LIFE CARE, AND PAIN MANAGEMENT

(a)  The office of the attorney general, in cooperation with the departments of health and of disabilities, aging, and independent living, shall convene and lead a group of stakeholders to discuss and make recommendations on legislative and non-legislative solutions for improving:

(1)  palliative care,

(2)  end-of-life care,

(3)  management of chronic pain, and

(4)  access to these services for children.

(b)  Participants shall include:

(1)  the Vermont Program for Quality in Health Care;

(2)  the Hospice and Palliative Care Council of Vermont;

(3)  the Vermont health care ombudsman;

(4)  the Vermont long-term care ombudsman;

(5)  Patient Choices at End of Life – Vermont;

(6)  the Vermont Alliance for Ethical Healthcare;

(7)  the Community of Vermont Elders;

(8)  the Vermont Ethics Network;

(9)  the Vermont Health Care Association;

(10)  the Vermont Association of Hospitals and Health Systems;

(11)  the Vermont Medical Society;

(12)  the Vermont Coalition on Disability Rights;

(13)  the American Cancer Society;

(14)  AARP Vermont;

(15)  one representative appointed by the speaker of the house and one senator appointed by the president pro tempore; and

(16)  other interested stakeholders.

(c)  The group shall consider:

(1)  available data and studies from existing sources and evaluate their utility for driving improvements in palliative care, end-of-life care, and pain management services across settings in this state;

(2)  the value and feasibility of conducting ongoing studies or preparing an annual report card, or both;

(3)  recommendations for improving ongoing coordination of activities directed toward improving palliative care, end-of-life care, and pain management services throughout the state;

(4)  how best to protect the interests of persons who:

(A)  have a terminal illness,

(B)  are receiving hospice care, or

(C)  are suffering chronic pain;

(5)  how to advance the goal of improving health care services for children with painful or life-threatening medical conditions, including:

(A)  the current availability of insurance coverage for pediatric palliative care services and treatment for chronic pain, and

(B)  avenues for increasing children’s access to care;

(6)  recommendations for improving methods of informing consumers about options in this state for end-of-life care, palliative care, and management of chronic pain, and about the importance of having an advance directive, including means to ensure that:

(A)  persons suffering from chronic pain are aware of their right to request or reject the use of all medications, and

(B)  persons with a terminal illness are informed about their end-of-life care options;

(7)  recommendations on the adoption and implementation of statewide standards on pain management for each of the health care professions licensed in this state; and

(8)  such other issues as the group determines necessary and appropriate.

(d)  No later than January 15, 2009, the stakeholders’ group shall provide a written progress report on its initial findings and recommendations, including the appropriateness of an annual report card, to the house committees on human services and on health care and the senate committee on health and welfare.  No later than December 15, 2009, the group shall provide a final report on its findings and recommendations, including recommendations on the group’s continued duration and future activities, to the house committees on human services and on health care and the senate committee on health and welfare.

(Committee vote: 11-0-0)

Rep. Hunt of Essex, for the Committee on Appropriations, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Human Services and when further amended follows:

In Sec. 1 by adding a new (e) to read:

(e) Participants of the stakeholders group established by this act who are members of the General Assembly are entitled to receive per diem compensation and reimbursement of expenses as provided by 2  V.S.A. §406.

(Committee vote: 9-1-1)

(For text see Senate Journal 1/31/08 – P. 84 )

S. 336

An act relating to juvenile judicial proceedings.

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

First:  In Sec. 1, 33 V.S.A., by striking chapter 51 in its entirety and inserting in lieu thereof a new chapter 51 to read as follows:

Chapter 51.  GENERAL PROVISIONS

§ 5101.  Purposes  

(a)  The juvenile judicial proceedings chapters shall be construed in accordance with the following purposes:

(1)  To provide for the care, protection, education, and healthy mental, physical, and social development of children coming within the provisions of the juvenile judicial proceedings chapters.

(2)  To remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior and to provide supervision, care, and rehabilitation which assure:

(A)  balanced attention to the protection of the community;

(B)  accountability to victims and the community for offenses; and

(C)  the development of competencies to enable children to become responsible and productive members of the community.

(3)  To preserve the family and to separate a child from his or her parents only when necessary to protect the child from serious harm or in the interests of public safety.

(4)  To assure that safety and timely permanency for children are the paramount concerns in the administration and conduct of proceedings under the juvenile judicial proceedings chapters.

(5)  To achieve the foregoing purposes, whenever possible, in a family environment, recognizing the importance of positive parent-child relationships to the well-being and development of children.

(6)  To provide judicial proceedings through which the provisions of the juvenile judicial proceedings chapters are executed and enforced and in which the parties are assured a fair hearing, and their constitutional and other legal rights are recognized and enforced.

(b)  The provisions of the juvenile judicial proceedings chapters shall be construed as superseding the provisions of the criminal law of this state to the extent the same are inconsistent with this chapter.

§ 5102.  Definitions and provisions of general application  

As used in the juvenile judicial proceedings chapters, unless the context otherwise requires:

(1)  “Care provider” means a person other than a parent, guardian, or custodian who is providing the child with routine daily care but to whom custody rights have not been transferred by a court.

(2)  “Child” means any of the following:

(A)  An individual who is under the age of 18 and is a child in need of care or supervision as defined in subdivision (3)(A), (B), or (D) of this section (abandoned, abused, without proper parental care, or truant).

(B)(i)  An individual who is under the age of 18, is a child in need of care or supervision as defined in subdivision (3)(C) of this section (beyond parental control), and was under the age of 16 at the time the petition was filed; or

(ii)  an individual who is between the ages of 16 to 17.5, is a child in need of care or supervision as defined in subdivision (3)(C) of this section (beyond parental control), and who is at high risk of serious harm to himself or herself or others due to problems such as substance abuse, prostitution, or homelessness.

(C)  An individual who has been alleged to have committed or has committed an act of delinquency after becoming ten years of age and prior to becoming 18 years of age; provided, however:

(i)  that an individual who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining the age of 10 but not the age of 14 may be treated as an adult as provided therein;

(ii)  that an individual who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining the age of 14 but not the age of 16 shall be subject to criminal proceedings as in cases commenced against adults, unless transferred to the court in accordance with the juvenile judicial proceedings chapters;

(iii)  that an individual who is alleged to have committed an act before attaining the age of 10 which would be murder as defined in section 2301 of Title 13 if committed by an adult may be subject to delinquency proceedings; and

(iv)  that an individual may be considered a child for the period of time the court retains jurisdiction under section 5104 of this title.   

(3)  “Child in need of care or supervision (CHINS)” means a child who:

(A)  has been abandoned or abused by the child’s parent, guardian, or custodian.  A person is considered to have abandoned a child if the person is: unwilling to have physical custody of the child; unable, unwilling, or has failed to make appropriate arrangements for the child’s care; unable to have physical custody of the child and has not arranged or cannot arrange for the safe and appropriate care of the child; or has left the child with a care provider and the care provider is unwilling or unable to provide care or support for the child, the whereabouts of the person are unknown, and reasonable efforts to locate the person have been unsuccessful.

(B)  is without proper parental care or subsistence, education, medical, or other care necessary for his or her well-being;

(C)  is without or beyond the control of his or her parent, guardian, or custodian; or

(D)  is habitually and without justification truant from compulsory school attendance.

(4)  “Commissioner” means the commissioner of the department for children and families or the commissioner’s designee.

(5)  “Conditional custody order” means an order issued by the court in a juvenile proceeding conferring legal custody of a child to a parent, guardian, relative, or a person with a significant relationship with the child subject to such conditions and limitations as the court may deem necessary to provide for the safety and welfare of the child.

(6)  “Court” means the Vermont family court.

(7)  “Custodial  parent” means a parent who, at the time of the commencement of the juvenile proceeding, has the right and responsibility to provide the routine daily care and control of the child.  The rights of the custodial parent may be held solely or shared and may be subject to the

court-ordered right of the other parent to have contact with the child.

(8)  “Custodian” means a person other than a parent or legal guardian to whom legal custody of the child has been given by order of a Vermont family or probate court or a similar court in another jurisdiction.

(9)  “Delinquent act” means an act designated a crime under the laws of this state, or of another state if the act occurred in another state, or under federal law.  A delinquent act shall include 7 V.S.A. §§ 656 and 657; however, it shall not include:

(A)  Snowmobile offenses in subchapter 1 and motorboat offenses in subchapter 2 of chapter 29 of Title 23, except for violations of sections 3207a, 3207b, 3207c, 3207d, and 3323.

(B)  Motor vehicle offenses committed by an individual who is at least 16 years of age, except for violations of subchapter 13 of chapter 13 and of section 1091 of Title 23.        

(10)  “Delinquent child” means a child who has been adjudicated to have committed a delinquent act.

(11)  “Department” means the department for children and families.

(12)  “Guardian” means a person who, at the time of the commencement of the juvenile judicial proceeding, has legally established rights to a child pursuant to an order of a Vermont probate court or a similar court in another jurisdiction.

(13)  “Judge” means a judge of the family court.

(14)  “Juvenile judicial proceedings chapters” means this chapter and chapters 52 and 53 of this title.

(15)  “Juvenile proceeding” means a proceeding in the family court under the authority of the juvenile judicial proceedings chapters.

(16)(A)  “Legal custody” means the legal status created by order of the court under the authority of the juvenile judicial proceedings chapters which invests in a party to a juvenile proceeding or another person the following rights and responsibilities:

(i)  The right to routine daily care and control and to determine where and with whom the child shall live.

(ii)  The authority to consent to major medical, psychiatric, and surgical treatment for a child.

(iii)  The responsibility to protect and supervise a child and to provide the child with food, shelter, education, and ordinary medical care. 

(iv)  The authority to make decisions which concern the child and are of substantial legal significance, including the authority to consent to marriage and enlistment in the armed forces of the United States, and the authority to represent the child in legal actions.

(B)  If legal custody is transferred to a person other than a parent, the rights, duties, and responsibilities so transferred are subject to the residual parental rights of the parents.

(17)  “Listed crime” means the same as defined in 13 V.S.A. § 5301.

(18)  “Noncustodial parent” means a parent who is not a custodial parent at the time of the commencement of the juvenile proceeding.

(19)  “Officer” means a law enforcement officer, including a state police officer, sheriff, deputy sheriff, municipal police officer, or constable who has been certified by the criminal justice training council pursuant to section 2358 of Title 20.

(20)  “Parent” means a child’s biological or adoptive parent, including custodial parents, noncustodial parents, parents with legal or physical responsibilities or both and parents whose rights have never been adjudicated.

(21)  “Parent-child contact” means the right of a parent to have visitation with the child by court order.

(22)  “Party” includes the following persons:

(A)  The child with respect to whom the proceedings are brought.

(B)  The custodial parent, the guardian, or the custodian of the child in all instances except a hearing on the merits of a delinquency petition. 

(C)  The noncustodial parent for the purposes of custody, visitation, and such other issues  which the court may determine are proper and necessary to the proceedings, provided that the noncustodial parent has entered an appearance.

(D)  The state’s attorney.

(E)  The commissioner.

(F)  Such other persons as appear to the court to be proper and necessary to the proceedings.

(23)  “Probation” means the legal status created by order of the family court in proceedings involving a violation of law whereby a delinquent child is subject to supervision by the department under conditions specified in the court’s juvenile probation certificate and subject to return to and change of legal status by the family court for violation of conditions of probation at any time during the period of probation.

(24)  “Protective supervision” means the authority granted by the court to the department in a juvenile proceeding to take reasonable steps to monitor compliance with the court’s conditional custody order, including unannounced visits to the home in which the child currently resides.

(25)  “Reasonable efforts” means the exercise of due diligence by the department to use appropriate and available services to prevent unnecessary removal of the child from the home or to finalize a permanency plan.  When making the reasonable efforts determination, the court may find that no services were appropriate or reasonable considering the circumstances.  If the court makes written findings that aggravated circumstances are present, the court may make, but shall not be required to make, written findings as to whether reasonable efforts were made to prevent removal of the child from the home.  Aggravated circumstances may exist if:

(A)  a court of competent jurisdiction has determined that the parent has subjected a child to abandonment, torture, chronic abuse, or sexual abuse;

(B)  a court of competent jurisdiction has determined that the parent has been convicted of murder or manslaughter of a child;

(C)  a court of competent jurisdiction has determined that the parent has been convicted of a felony crime that results in serious bodily injury to the child or another child of the parent; or

(D)  the parental rights of the parent with respect to a sibling have been involuntarily terminated.

(26)  “Residual parental rights and responsibilities” means those rights and responsibilities remaining with the parent after the transfer of legal custody of the child, including the right to reasonable contact with the child, the responsibility for support, and the right to consent to adoption.

(27)  “Shelter” means a shelter designated by the commissioner where a child taken into custody pursuant to subdivision 5301(3) of this title may be held for a period not to exceed seven days.

(28)  “Youth” shall mean a person who is the subject of a motion for youthful offender status or who has been granted youthful offender status.

§ 5103.  Jurisdiction  

(a)  The family court shall have exclusive jurisdiction over all proceedings concerning a child who is or who is alleged to be a delinquent child or a child in need of care or supervision brought under the authority of the juvenile judicial proceedings chapters, except as otherwise provided in such chapters.

(b)  Orders issued under the authority of the juvenile judicial proceedings chapters shall take precedence over orders in other family court proceedings and any order of another court of this state, to the extent they are inconsistent.  This section shall not apply to child support orders in a divorce, parentage, or relief from abuse proceedings until a child support order has been issued in the juvenile proceeding.

(c)  Except as otherwise provided by this title, jurisdiction over a child shall not be extended beyond the child’s 18th birthday.

(d)  The court may terminate its jurisdiction over a child prior to the child’s 18th birthday by order of the court.  If the child is not subject to another juvenile proceeding, jurisdiction shall terminate automatically in the following circumstances:

(1)  Upon the discharge of a child from juvenile probation, providing the child is not in the legal custody of the commissioner.

(2)  Upon an order of the court transferring legal custody to a parent, guardian, or custodian without conditions or protective supervision.

(3)  Upon the adoption of a child following a termination of parental rights proceeding.

§ 5104.   Retention of jurisdiction over youthful

                offenders    

(a)  The family court may retain jurisdiction over a youthful offender up to the age of 22.

(b)  In relation to the retention of jurisdiction provision of subsection (a) of this section, any party may request, or the court on its own motion may schedule, a hearing to determine the propriety of extending the jurisdictional time period.  This hearing shall be held within the three-month time period immediately preceding the child’s 18th birthday, and the order of continued jurisdiction shall be executed by the court on or before that birthday. In determining the need for continued jurisdiction, the court shall consider the following factors:

(1)  the extent and nature of the child’s record of delinquency;

(2)  the nature of past and current treatment efforts and the nature of the child’s response to them;

(3)  the prospects for reasonable rehabilitation of the child by use of procedures, services, and facilities currently available to the court; and

(4)  whether the safety of the community will best be served by a continuation of jurisdiction.

(c)  A hearing under subsection (b) of this section shall be held in accordance with the procedures provided in section 5113 of this title.

§ 5105.  Venue and Change of Venue 

(a)  Proceedings under the juvenile judicial proceedings chapters may be commenced in the county where:

(1)  the child is domiciled;

(2)  the acts constituting the alleged delinquency occurred; or

(3)  the child is present when the proceedings commenced, if it is alleged that a child is in need of care or supervision.

(b)  If a child or a parent, guardian, or custodian changes domicile during the course of a proceeding under the juvenile judicial proceedings chapters or if the petition is not brought in the county in which the child is domiciled, the court may change venue upon the motion of a party or its own motion, taking into consideration the domicile of the child and the convenience of the parties and witnesses.

§ 5106.  Powers and duties of commissioner

Subject to the limitations of the juvenile judicial proceedings chapters or those imposed by the court, and in addition to any other powers granted to the commissioner under the laws of this state, the commissioner has the following authority with respect to a child who is or may be the subject of a petition brought under the juvenile judicial proceedings chapters: 

(1)  To undertake assessments and make reports and recommendations to the court as authorized by the juvenile judicial proceedings chapters.

(2)  To investigate complaints and allegations that a child is in need of care or supervision for the purpose of considering the commencement of proceedings under the juvenile judicial proceedings chapters.

(3)  To supervise and assist a child who is placed under the commissioner’s supervision or in the commissioner’s legal custody by order of the court.

(4)  To place a child who is in the commissioner’s  legal custody in a family home or a treatment, rehabilitative, detention, or educational facility or institution subject to the provisions of sections 5292 and 5293 of this title.  To the extent that it is appropriate and possible siblings in the commissioner’s custody shall be placed together. 

(5)  To make appropriate referrals to private or public agencies.

(6)  To perform such other functions as are designated by the juvenile judicial proceedings chapters.

§ 5107.  Contempt power   

Subject to the laws relating to the procedures therefor and the limitations thereon, the court has the power to punish any person for contempt of court for disobeying an order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of its orders.

§ 5108.  Authority to issue warrants  

(a)  The court may order a parent, guardian, or custodian to appear at any hearing or to appear at the hearing with the child who is the subject of a petition.

(b)  If, after being summoned, cited, or otherwise notified to appear, a party fails to do so, the court may issue a warrant for the person’s appearance.  If the child is with the parent, guardian, or custodian, the court may issue a warrant for the person to appear in court with the child or, in the alternative, the court may issue an order for an officer to pick up the child and bring the child to court.

(c)  If a summons cannot be served or the welfare of the child requires that the child be brought forthwith to the court, the court may issue a warrant for the parent, guardian, or custodian to appear in court with the child.  In the alternative, the court may issue an order for an officer to pick up the child and bring the child to court during court hours.

(d)  A person summoned who fails to appear without reasonable cause may be found in contempt of court.

§ 5109.  Subpoena 

Upon application of a party or on the court’s own motion, the clerk of the court shall issue subpoenas requiring attendance and testimony of witnesses and production of papers at any hearing under the juvenile judicial proceedings chapters.

§ 5110.  Conduct of hearings 

(a)  Hearings under the juvenile judicial proceedings chapters shall be conducted by the court without a jury and shall be confidential.  

(b)  The general public shall be excluded from hearings under the juvenile judicial proceedings chapters, and only the parties, their counsel, witnesses, persons accompanying a party for his or her assistance, and such other persons as the court finds to have a proper interest in the case or in the work of the court, may be admitted by the court.  This subsection shall not prohibit a victim’s exercise of his or her rights under sections 5333 and 5234 of this title, and as otherwise provided by law. 

(c)  There shall be no publicity given by any person to any proceedings under the authority of the juvenile judicial proceedings chapters except with the consent of the child, the child’s guardian ad litem, and the child’s parent, guardian, or custodian.  A person who violates this provision may be subject to contempt proceedings pursuant to Rule 16 of the Vermont Rules for Family Proceedings.

§ 5111.  Noncustodial Parents    

(a)  If a child is placed in the legal custody of the department and the identity of a parent has not been legally established at the time the petition is filed, the court may order that the mother, the child, and the alleged father submit to genetic testing and may issue an order establishing parentage pursuant to subchapter 3A of Title 15.  A parentage order issued pursuant to this subsection shall not be deemed to be a confidential record.

(b)  If a child is placed in the legal custody of the department, the department shall make reasonably diligent efforts to locate a noncustodial parent as early in the proceedings as possible, and notify the court of the noncustodial parent’s address.  A hearing shall not be delayed by reason of the inability of the department to locate or serve a noncustodial parent. 

(c)  The court may order a custodial parent to provide the department with information regarding the identity and location of a noncustodial parent.

(d)  As soon as his or her address is known, a noncustodial parent shall be served with the petition and a copy of the summons.  Thereafter, the court shall mail notices of the hearing to the noncustodial parent.  The noncustodial parent shall be responsible for providing the court with information regarding any changes in address.

§ 5112.  Attorney and guardian ad litem for child  

(a)  The court shall appoint an attorney for a child who is a party to a proceeding brought under the juvenile judicial proceedings chapters. 

(b)  The court shall appoint a guardian ad litem for a child who is a party to a proceeding brought under the juvenile judicial proceedings chapters.  In a delinquency proceeding, a parent, guardian, or custodian of the child may serve as a guardian ad litem for the child, providing his or her interests do not conflict with the interests of the child.  The guardian ad litem appointed under this section shall not be a party to that proceeding or an employee or representative of such party.

§ 5113.  Modification or vacation of orders 

(a)  An order of the court may be set aside in accordance with Rule 60 of the Vermont Rules of Civil Procedure.

(b)  Upon motion of a party or the court’s own motion, the court may amend, modify, set aside, or vacate an order on the grounds that a change in circumstances requires such action to serve the best interests of the child.  The motion shall set forth in concise language the grounds upon which the relief is requested.

(c)  Any order under this section shall be made after notice and hearing; however, the court may waive the hearing upon stipulation of the parties.  All evidence helpful in determining the questions presented, including hearsay, may be admitted and relied upon to the extent of its probative value, even though not competent in a hearing on the petition.

§ 5114.  Best interests of the child 

(a)  At the time of a permanency review under section 5321 of this title, a modification hearing under section 5113 of this title, or at any time a petition or request to terminate all residual parental rights of a parent without limitation as to adoption is filed by the commissioner or the attorney for the child, the court shall consider the best interests of the child in accordance with the following:

(1)  The interaction and interrelationship of the child with his or her parents, siblings, foster parents, if any, and any other person who may significantly affect the child’s best interests.

(2)  The child’s adjustment to his or her home, school, and community.

(3)  The likelihood that the parent will be able to resume or assume parental duties within a reasonable period of time.

(4)  Whether the parent has played and continues to play a constructive role, including personal contact and demonstrated love and affection, in the child’s welfare.

(b)  Except in cases where a petition or request to terminate all residual parental rights of a parent without limitation as to adoption is filed by the commissioner or the attorney for the child, the court shall also consider whether the parent is capable of playing a constructive role, including demonstrating love and affection, in the child’s welfare.

§ 5115.  Protective order 

(a)  On motion of a party or on the court’s own motion, the court may make an order restraining or otherwise controlling the conduct of a person if the court finds that such conduct is or may be detrimental or harmful to a child.

(b)  The person against whom the order is directed shall be served with notice of the motion and the grounds therefor and be given an opportunity to be heard.

(c)  Upon a showing that there is a risk of immediate harm to a child, the court may issue a protective order ex parte.  A hearing on the motion shall be held no more than 10 days after the issuance of the order.

(d)  The court may review any protective order at a subsequent hearing to determine whether the order should remain in effect.

(e)  A person who is the subject of an order issued pursuant to this section who violates a provision of the order that concerns contact between the child and that person shall be punished in accordance with 13 V.S.A. § 1030.

§ 5116.  Costs and expenses for care of child 

(a)  The commissioner may incur such expenses for the proper care, maintenance, and education of a child, including without limitation, the expenses of medical, surgical, or psychiatric examination or treatment, as the commissioner considers necessary in connection with proceedings under the juvenile judicial proceedings chapters.

(b)  The costs of any proceeding under the juvenile judicial proceedings chapters incurred under the provisions of Title 33 shall be borne by the court.

(c)  The court may, in any order of disposition under the juvenile judicial proceedings chapters, make and enforce by levy and execution an order of child support to be paid by the parent of the child.

(d)  The court may delegate to the office of magistrate its authority to make and enforce an order of child support to be paid by the parent of a child.

(e)  A child support order shall only remain in effect as long as the child who is the subject of the support order is in the legal custody of the commissioner and placed with someone other than the parent or parents responsible for support.

(f)  Except as otherwise provided in section 5119 of this title, orders issued pursuant to this section shall not be confidential.

(g)  Notwithstanding subsection 5103(b) of this title, an order terminating a parent’s residual parental rights ends that parent’s obligation to pay child support.  However, in no event shall an order terminating residual parental rights terminate an obligation for child support arrearages accrued by the parent prior to the date of the termination of parental rights order.

§ 5117.  records OF JUVENILE JUDICIAL PROCEEDINGS  

(a)  Except as otherwise provided, court and law enforcement reports and files concerning a person subject to the jurisdiction of the court shall be maintained separate from the records and files of other persons.  Unless a charge of delinquency is transferred for criminal prosecution under chapter 52 of this title or the court otherwise orders in the interests of the child, such records and files shall not be open to public inspection nor their contents disclosed to the public by any person.  However, upon a finding that a child is a delinquent child by reason of commission of a delinquent act which would have been a felony if committed by an adult, the court, upon request of the victim, shall make the child’s name available to the victim of the delinquent act.  If the victim is incompetent or deceased, the child’s name shall be released, upon request, to the victim’s guardian or next of kin.

(b)(1)  Notwithstanding the foregoing, inspection of such records and files by the following is not prohibited:

(A)  A court having the child before it in any juvenile judicial proceeding.

(B)  The officers of public institutions or agencies to whom the child is committed as a delinquent child.

(C)  A court in which a person is convicted of a criminal offense for the purpose of imposing sentence upon or supervising the person, or by officials of penal institutions and other penal facilities to which the person is committed, or by a parole board in considering the person’s parole or discharge or in exercising supervision over the person.

(D)  Court personnel, the state’s attorney or other prosecutor authorized to prosecute criminal or juvenile cases under state law, the child’s guardian ad litem, the attorneys for the parties, probation officers, and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the child.

(E)  The child who is the subject of the proceeding, the child’s parents, guardian, custodian, and guardian ad litem may inspect such records and files upon approval of the family court judge.

(F)  Any other person who has a need to know may be designated by order of the family court.

(2)  Records and files inspected under this subsection shall be marked: UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00.

(c)  Upon motion of a party in a divorce or parentage proceeding related to parental rights and responsibilities for a child or parent-child contact, the court may order that court records in a juvenile proceeding involving the same child or children be released to the parties in the divorce proceeding.  The public shall not have access to records from a juvenile proceeding that are filed with the court or admitted into evidence in the divorce or parentage proceeding.

(d)  Such records and files shall be available to state’s attorneys and all other law enforcement officers in connection with record checks and other legal purposes.

(e)  Any records or reports relating to a matter within the jurisdiction of the court prepared by or released by the court or the department for children and families, any portion of those records or reports, and information relating to the contents of those records or reports shall not be disseminated by the receiving persons or agencies to any persons or agencies, other than those persons or agencies authorized to receive documents pursuant to this section.

(f)  This section does not provide access to records sealed in accordance with section 5119 of this title unless otherwise provided in section 5119.

§ 5118.  Limited exception to confidentiality of records

               of juveniles maintained by the family court 

(a)  For the purposes of this section:

(1)  “Delinquent act requiring notice” means conduct resulting in a delinquency adjudication related to a listed crime as defined in 13 V.S.A.

§ 5301(7).

(2)  “Independent school” means an approved or recognized independent school under 16 V.S.A. § 166.

(b)  While records of juveniles maintained by the family court should be kept confidential, it is the policy of the general assembly to establish a limited exception for the overriding public purposes of rehabilitating juveniles and protecting students and staff within Vermont’s public and independent schools.

(c)  Notwithstanding any law to the contrary, a court finding that a child has committed a delinquent act requiring notice shall, within seven days of such finding, provide written notice to the superintendent of schools for the public school in which the child is enrolled or, in the event the child is enrolled in an independent school, the school’s headmaster.

(d)  The written notice shall contain only a description of the delinquent act found by the court to have been committed by the child and shall be marked: “UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00.”  The envelope in which the notice is sent by the court shall be marked:  “CONFIDENTIAL:  TO BE OPENED BY THE SUPERINTENDENT OR HEADMASTER ONLY.”

(e)  The superintendent or headmaster, upon receipt of the notice, shall inform only those persons within the child’s school with a legitimate need to know of the delinquent act, and only after first evaluating rehabilitation and protection measures that do not involve informing staff or students.  Persons with a legitimate need to know are strictly limited to only those for whom the information is necessary for the rehabilitation program of the child or for the protection of staff or students.  “Need to know” shall be narrowly and strictly interpreted.  Persons receiving information from the superintendent or headmaster shall not, under any circumstances, discuss such information with any other person except the child, the child’s parent, guardian, or custodian, others who have been similarly informed by the superintendent or headmaster, law enforcement personnel, or the juvenile’s probation officer.

(f)  The superintendent and headmaster annually shall provide training to school staff about the need for confidentiality of such information and the penalties for violation of this section.

(g)  The written notice shall be maintained by the superintendent or headmaster in a file separate from the child’s education record.  If the child transfers to another public or independent school, the superintendent or headmaster shall forward the written notice in the original marked envelope to the superintendent or headmaster for the school to which the child transferred.  If the child either graduates or turns 18 years of age, the superintendent or headmaster then possessing the written notice shall destroy such notice.

(h)  If legal custody of the child is transferred to the commissioner, or if the commissioner is supervising the child’s probation, upon the request by a superintendent or headmaster, the commissioner shall provide to the superintendent or headmaster information concerning the child which the commissioner determines is necessary for the child’s rehabilitation or for the protection of the staff or students in the school in which the child is enrolled.

(i)  A person who intentionally violates the confidentiality provisions of this section shall be fined not more than $2,000.00.

(j)  Except as provided in subsection (i) of this section, no liability shall attach to any person who transmits, or fails to transmit, the written notice required under this section.

§ 5119.  Sealing of records  

(a)(1)  In matters relating to a child who has been adjudicated delinquent on or after July 1, 1996, the court shall order the sealing of all files and records related to the proceeding if two years have elapsed since the final discharge of the person unless, on motion of the state’s attorney, the court finds: 

(A)  the person has been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent of such an offense after such initial adjudication, or a proceeding is pending seeking such conviction or adjudication; or 

(B)  rehabilitation of the person has not been attained to the satisfaction of the court. 

(2)  At least 60 days prior to the date upon which a person is eligible to have his or her delinquency record automatically sealed pursuant to subdivision (1) of this subsection, the court shall provide such person’s name and other identifying information to the state’s attorney in the county in which the person was adjudicated delinquent.  The state’s attorney may object, and a hearing may be held to address the state’s attorney’s objection. 

(3)  The order to seal shall include all the files and records relating to the matter in accordance with subsection (d) of this section; however, the court may limit the order to the court files and records only upon good cause shown by the state’s attorney.

(4)  The process of sealing files and records under this subsection for a child who was adjudicated delinquent on or after July 1, 1996, but before

July 1, 2001 shall be completed by January 1, 2010.  The process of sealing files and records under this subsection for a child who was adjudicated delinquent on or after July 1, 2001 but before July 1, 2004 shall be completed by January 1, 2008. 

(b)  In matters relating to a child who has been adjudicated delinquent prior to July 1, 1996, on application of the child or on the court’s own motion and after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds: 

(1)  the person has not been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent for such an offense after such initial adjudication, and no new proceeding is pending seeking such conviction or adjudication; and 

(2)  the person’s rehabilitation has been attained to the satisfaction of the court. 

(c)  On application of a person who, while a child, was found to be in need of care or supervision or, on the court’s own motion, after notice to all parties of record and hearing, the court may order the sealing of all files and records related to the proceeding if it finds: 

(1)  the person has reached the age of majority; and

(2)  sealing the person’s record is in the interest of justice.

(d)  Except as provided in subdivision (a)(3) and subsection (h) of this section or otherwise provided, orders issued in accordance with this section shall include the files and records of the court, law enforcement, prosecution, and the department for children and families related to the specific court proceeding that is the subject of the sealing. 

(e)(1)  Except as provided in subdivision (2) of this subsection, upon the entry of an order sealing such files and records under this section, the proceedings in the matter under this act shall be considered never to have occurred, all general index references thereto shall be deleted, and the person, the court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter.  Copies of the order shall be sent to each agency or official named in the order. 

(2)(A)  Any court, agency, or department that seals a record pursuant to an order under this section may keep a special index of files and records that have been sealed.  This index shall only list the name and date of birth of the subject of the sealed files and records and the docket number of the proceeding which was the subject of the sealing.  The special index shall be confidential and may be accessed only for purposes for which a department or agency may request to unseal a file or record pursuant to subsection (f) of this section. 

(B)  Access to the special index shall be restricted to the following persons: 

(i)  the commissioner and general counsel of any administrative department; 

(ii)  the secretary and general counsel of any administrative agency;

(iii)  a sheriff;

(iv)  a police chief; 

(v)  a state’s attorney; 

(vi)  the attorney general; 

(vii)  the director of the Vermont crime information center; and

(viii)  a designated clerical staff person in each office identified in subdivisions (i)–(viii) of this subdivision (B) who is necessary for establishing and maintaining the indices for persons who are permitted access. 

(C)  Persons authorized to access an index pursuant to subdivision (B) of this subdivision (2) may access only the index of their own department or agency. 

(f)(1)  Except as provided in subdivisions (2), (3), and (4) of this subsection, inspection of the files and records included in the order may thereafter be permitted by the court only upon petition by the person who is the subject of such records, and only to those persons named in the record. 

(2)  Upon a confidential motion of any department or agency that was required to seal files and records pursuant to subsection (d) of this section, the court may permit the department or agency to inspect its own files and records if it finds circumstances in which the department or agency requires access to such files and records to respond to a legal action, a legal claim, or an administrative action filed against the department or agency in relation to incidents or persons that are the subject of such files and records.  The files and records shall be unsealed only for the minimum time necessary to address the circumstances enumerated in this subdivision, at which time the records and files shall be resealed. 

(3)  Upon a confidential motion of the department for children and families, the court may permit the department to inspect its own files and records if the court finds extraordinary circumstances in which the state’s interest in the protection of a child clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the state’s interest.  The motion may be heard ex parte if the court, based upon an affidavit, finds a compelling purpose exists to deny notice to the subject of the files and records when considering whether to grant the order.  If the order to unseal is issued ex parte, the court shall send notice of the unsealing to the subject of the files and records within 20 days unless the department provides a compelling reason why the subject of the files and records should not receive notice.  The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances, at which time the files and records shall be resealed. 

(4)  Upon a confidential motion of a law enforcement officer or prosecuting attorney, the court may permit the department or agency to inspect its own files and records if the court finds extraordinary circumstances in which the state’s interest in public safety clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the state’s interest.  The motion may be heard ex parte if the court, based upon an affidavit, finds a compelling public safety purpose exists to deny notice to the subject of the files and records when considering whether to grant the order.  If the order to unseal is issued ex parte, the court shall send notice of the unsealing to the subject of the files and records within 20 days unless the law enforcement officer or prosecuting attorney provides a compelling public safety reason why the subject of the files and records should not receive notice.  The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances, at which time the files and records shall be resealed. 

(5)  The order unsealing a record must state whether the record is unsealed entirely or in part and the duration of the unsealing.  If the court’s order unseals only part of the record or unseals the record only as to certain persons, the order must specify the particular records that are unsealed or the particular persons who may have access to the record, or both. 

(g)  On application of a person who has pleaded guilty to or has been convicted of the commission of a crime committed under the laws of this state prior to attaining the age of majority, or on the motion of the court having jurisdiction over such a person, after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds:  

(1)  two years have elapsed since the final discharge of the person;  

(2)  the person has not been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent for such an offense after the initial conviction, and no new proceeding is pending seeking such conviction or adjudication; and

(3)  the person’s rehabilitation has been attained to the satisfaction of the court. 

(h)(1)  In matters relating to a person who was charged with a criminal offense on or after July 1, 2006 and prior to the person attaining the age of majority, the files and records of the court applicable to the proceeding shall be sealed immediately if the case is dismissed.

(2)  In matters relating to a person who was charged with a criminal offense prior to July 1, 2006 and prior to the person attaining the age of majority, the person may apply to seal the files and records of the court applicable to the proceeding.  The court shall order the sealing, provided that two years have elapsed since the dismissal of the charge. 

(i)  Upon receipt of a court order to seal a record relating to an offense for which there is an identifiable victim, a state’s attorney shall record the name and date of birth of the victim, the offense, and the date of the offense.  The name and any identifying information regarding the defendant shall not be recorded.  Victim information retained by a state’s attorney pursuant to this subsection shall be available only to victims’ advocates, the victims’ compensation program, and the victim and shall otherwise be confidential. 

(j)  For purposes of this section, to “seal” a file or record means to physically and electronically segregate the record in a manner that ensures confidentiality of the record and limits access only to those persons who are authorized by law or court order to view the record.  A “sealed” file or record is retained and shall not be destroyed unless a court issues an order to expunge the record. 

(k)  The court shall provide assistance to persons who seek to file an application for sealing under this section. 

(l)  Any entities subject to sealing orders pursuant to this section shall establish policies for implementing this section and shall provide a copy of such policies to the house and senate committees on judiciary no later than January 15, 2007. State’s attorneys, sheriffs, municipal police, and the judiciary are encouraged to adopt a consistent policy that may apply to each of their independent offices and may submit one policy to the general assembly. 

§ 5120.  Indian Child Welfare Act

The federal Indian Child Welfare Act, 25 U.S.C. Section 1901 et seq., governs any proceeding under this title that pertains to an Indian child, as defined by the Indian Child Welfare Act, and prevails over any inconsistent provision of this title.

§ 5121.  CASE PLANNING PROCESS

The department shall actively engage families, and solicit and integrate into the case plan the input of the child, the child’s family, relatives and other persons with a significant relationship to the child.  Whenever possible, parents, guardians and custodians shall participate in the development of the case plan.

§ 5122.  MISCONDUCT DURING COURT PROCEEDINGS

A person who engages in misconduct while participating in a court proceeding under chapters 51, 52, or 53 of this title may be subject to appropriate sanctions, including criminal charges, as provided by relevant law, regulation, rule, or employment policy.  The confidentiality requirements of subsection 5110(c) of this title shall not apply to the extent necessary to report and respond to allegations of misconduct under chapters 51, 52, and 53 of this title.  This section shall not be construed to create a private right of action or a waiver of sovereign immunity.

Second: In Sec. 2, 33  V.S.A. § 5203(e), by striking subdivisions (1), (2), and (3) in their entirety.

Third: In Sec. 2, 33 V.S.A. § 5221(c), after the word “child’s” by inserting the word “custodial

Fourth:  In Sec. 2, 33 V.S.A. § 5223(b), after the word “notice” by inserting the words  “,including the noncustodial parent,”  

Fifth:  In Sec.2, 33 V.S.A. § 5224, after the words “child or” by striking the word “parent” and inserting in lieu thereof the words “custodial parent, guardian, or custodian” 

Sixth:  In Sec. 2, 33 V.S.A. § 5225, by striking subsection (c) in its entirety and inserting in lieu thereof a new subsection (c) to read as follows:

(c)  At the preliminary hearing, the court shall appoint a guardian ad litem for the child.  The guardian ad litem may be the child’s parent, guardian, or custodian.  On its own motion or motion by the child’s attorney, the court may appoint a guardian ad litem other than a parent, guardian, or custodian.

Seventh:  In Sec. 2, 33 V.S.A. § 5230(b)(6), by striking the word “parents” and inserting in lieu thereof the words “parent, guardian, or custodian

Eighth:  In Sec. 2, 33 V.S.A. § 5235, by striking subsection (j) in its entirety and inserting in lieu thereof new subsections (j) and (k) to read as follows:

(j)  In accordance with 13  V.S.A. § 5363, the restitution unit is authorized to make payments to victims of delinquent acts where restitution was ordered by a court prior to July 1, 2008.

(k)(1)  The restitution unit may bring an action to enforce a restitution order issued under this section in the superior or small claims court of the county where the offender resides or in the county where the order was issued. In an action under this subsection, a restitution order issued in a juvenile proceeding shall be enforceable in superior or small claims court in the same manner as a civil judgment. Superior and small claims court filing fees shall be waived for an action under this subsection, and for an action to renew a restitution judgment.

(2)  An action under this subsection may be brought only after the offender reaches 18 years of age, and shall not be subject to any limitations period.

(3)  For purposes of this subsection, a restitution order issued in a juvenile proceeding shall not be confidential.

Ninth:  In Sec. 2, 33 V.S.A. § 5252, by striking subsection (a) in its entirety and inserting in lieu thereof a new subsection (a) to read as follows:

(a)  If an officer takes a child who is alleged to be delinquent into custody, the officer shall immediately notify the child’s custodial parent, guardian, or custodian and release the child to the care of child’s custodial parent, guardian, or custodian unless the officer determines that the child’s immediate welfare or the protection of the community, or both, require the child’s continued removal from the home.

Tenth: In Sec. 2, 33 V.S.A. § 5252(c), after the word “child’s” where it twicely appears, by inserting the word “custodial

Eleventh: In Sec. 2, 33 V.S.A. § 5253(a)(2), after the word “made” by striking the words “without hearing or notice to the custodial parent, guardian, or custodian” and inserting in lieu thereof the words “ex parte

Twelfth: In Sec.2, by striking § 5254 in its entirety and inserting in lieu

thereof a new § 5254 to read as follows:

§ 5254.   Notice of Emergency Care Order and Temporary

               Care Hearing

(a)  Notice to custodial parent.  An officer shall deliver a copy of the emergency care order or conditional custody order to the custodial parent, guardian, or custodian of the child.  If delivery cannot be made in a timely manner, the officer shall otherwise notify them or cause them to be notified of the order, the date, time, and place of the temporary care hearing, and the parent’s right to counsel.  If the custodial parent, guardian, or custodian cannot be located, the officer shall so certify to the court in an affidavit describing the efforts made to locate the parent, guardian, or custodian.

(b)  Notice to noncustodial parent.  The department shall make reasonable efforts to locate any non custodial parent and provide the noncustodial parent with the emergency care or conditional custody order, notice of the date, hour, and place of the temporary care hearing and of the right to counsel.  If the noncustodial parent cannot be located, the department shall provide to the court, in writing, a summary of the efforts made to locate the parent.

(c)  Notice to other parties.  The court shall notify the following persons of the date and time of the temporary care hearing:

(1)  The state’s attorney.

(2)  The department.

(3)  An attorney to represent the child.

(4)  A guardian ad litem for the child.

(5)  An attorney to represent each parent.  The attorney may be court appointed in the event the parent is eligible, or may be an attorney who has entered an appearance on behalf of a parent.

Thirteenth:  In Sec. 2, 33 V.S.A. § 5255(d), after the words “noncustodial parent” by inserting the words “and his or her attorney

Fourteenth:  In Sec.2, 33 V.S.A., by striking §5256 in its entirety and inserting in lieu thereof a new § 5256 to read as follows:

§ 5256.  Temporary Care Order

(a)  The court shall order that custody be returned to the child’s parent, guardian, or custodian, unless the court finds by a preponderance of the evidence that return to the home would be contrary to the welfare of the child because of any of the following:

(1)  The child cannot be controlled at home and is at risk of harm to self or others.

(2)  Continued residence in the home will not protect the community because of the serious and dangerous nature of the act the child is alleged to have committed.

(3)  The child’s welfare is otherwise endangered.

(b)  Upon a finding that any of the conditions set forth in subsection (a) of this section exists, the court may issue such temporary orders related to the legal custody of the child as it deems necessary and sufficient to protect the welfare and safety of the child including, in order of preference:

(1)  A conditional custody order returning legal custody of the child to the custodial parent, guardian, or custodian, subject to such conditions and limitations as the court may deem necessary and sufficient to protect the child.

(2)(A)  Upon a personal appearance and a request by a noncustodial parent for temporary legal custody and upon a determination that parentage is not contested, the noncustodial parent shall present to the court a care plan that describes the history of the noncustodial parent’s contact with the child, including any reasons why contact did not occur, and that addresses:

(i)  the child’s need for a safe, secure, and stable home;

(ii)  the child’s need for proper and effective care and control; and

(iii)  the child’s need for a continuing relationship with the custodial parent, if appropriate.

(B)  The court shall consider court orders and findings from other proceedings related to the custody of the child.

(C)  The court shall transfer legal custody to the noncustodial parent unless the court finds by a preponderance of the evidence that the transfer would be contrary to the child’s welfare because any of the following exists:

(i)  The care plan fails to meet the criteria set forth in subdivision (2)(A) of this subsection.

(ii)  Transferring temporary legal custody of the child to the noncustodial parent could result in substantial danger to the physical health, mental health, welfare, or safety of the child.

(iii)  The child or another child residing in the same household as the noncustodial parent has been physically or sexually abused by the noncustodial parent or a member of the noncustodial parent’s household, or another person known to the noncustodial parent.

(iv)  The child or another child residing in the same household as the noncustodial parent is at substantial risk of physical or sexual abuse by the noncustodial parent or a member of the noncustodial parent’s household, or another person known to the noncustodial parent.  It shall constitute prima facie evidence that a child is at substantial risk of being physically or sexually abused if:

(I)  a noncustodial parent receives actual notice that a person has committed or is alleged to have committed physical or sexual abuse against a child; and

(II)  the noncustodial parent knowingly or recklessly allows the child to be in the physical presence of the alleged abuser after receiving such notice.

(v)  The child or another child in the noncustodial parent’s household has been neglected, and there is substantial risk of harm to the child who is the subject of the petition.

(D)  If the noncustodial parent’s request for temporary custody is contested, the court may continue the hearing and place the child in the temporary custody of the department pending further hearing and resolution of the custody issue.  Absent good cause shown, the court shall hold a further hearing on the issue within 30 days.

(3)  An order transferring temporary legal custody of the child to a relative, provided:

(A)  The relative seeking legal custody is a grandparent,

great-grandparent, aunt, great-aunt, uncle, great-uncle, stepparent, sibling, or step-sibling of the child.

(B)  The relative is suitable to care for the child.  In determining suitability, the court shall consider the relationship of the child and the relative and the relative’s ability to:

(i)  Provide a safe, secure, and stable environment.

(ii)  Exercise proper and effective care and control of the child.

(iii)  Protect the child from the custodial parent to the degree the court deems such protection necessary.

(iv)  Support reunification efforts, if any, with the custodial parent.

(v)  Consider providing legal permanence if reunification fails.

(C)  In considering the suitability of a relative who is entitled to preferential consideration, the court may order the department to conduct an investigation and file a written report of its findings with the court.  The court may place the child in the temporary custody of the department pending such investigation.

(4)  A temporary care order transferring temporary legal custody of the child to a relative who is not listed in subdivision (3)(A) of this subsection or a person with a significant relationship with the child, provided that the criteria in subdivision (3)(B) of this subsection are met.  The court may make such orders as provided in subdivision (3)(C) of this subsection to determine suitability under this subdivision.

(5)  A temporary care order transferring temporary legal custody of the child to the commissioner.

(c)  If the court transfers legal custody of the child, the court shall issue a written temporary care order. 

(1)  The order shall include:

(A)  a finding that remaining in the home is contrary to the child’s welfare and the facts upon which that finding is based; and

(B)  a finding as to whether reasonable efforts were made to prevent unnecessary removal of the child from the home.  If the court lacks sufficient evidence to make findings on whether reasonable efforts were made to prevent the removal of the child from the home, that determination shall be made at the next scheduled hearing in the case but, in any event, no later than 60 days after the issuance of the initial order removing a child from the home.

(2)  The order may include other provisions as may be necessary for the protection and welfare of the child, such as:

(A)  Conditions of release.

(B)  Establishing parent-child contact under such terms and conditions as are necessary for the protection of the child.

(C)  Requiring the department to provide the child with services if legal custody has been transferred to the commissioner.

(D)  Requiring the department to refer a parent for appropriate assessments and services, including a consideration of the needs of children and parents with disabilities.

(E)  Requiring genetic testing if parentage of the child is at issue.

(F)  Requiring the department to make diligent efforts to locate the noncustodial parent.

(G)  Requiring the custodial parent to provide the department with names of all potential noncustodial parents and relatives of the child.

(d)  If a party seeks to modify a temporary care order in order to transfer legal custody of a child from the commissioner to a relative or a person with a significant relationship with the child, the relative shall be entitled to preferential consideration under subdivision (b)(3) of this section, provided that a disposition order has not been issued and the motion is filed within 90 days of the date that legal custody was initially transferred to the commissioner.

Fifteenth:  In Sec. 2, 33 V.S.A., by striking § 5258 in its entirety and inserting in lieu thereof a new § 5258 to read as follows:

§ 5258.  PostDisposition Review and Permanency Review

              for Delinquents in Custody

Whenever custody of a delinquent child is transferred to the commissioner, the custody order of the court shall be subject to a postdisposition review hearing pursuant to section 5320 of this title and permanency reviews pursuant to section 5321 of this title. 

Sixteenth:  In Sec. 2, 33 V.S.A. § 5263(b), after the word “juvenile” where it appears the second time, by striking the words “and the parents or the guardian or custodian of the child, if other than parent” and inserting in lieu thereof the words “and a custodial parent, guardian, or custodian

Seventeenth:  In Sec. 2, 33 V.S.A. § 5263(c), after the words “signature of a” by inserting the word “custodial

Eighteenth:  In Sec. 2, 33 V.S.A. § 5284(b)(2)(A), after the word “offender;” by striking the word “or” and inserting in lieu thereof the word “and

Nineteenth:  In Sec. 2, 33 V.S.A. § 5293(a)(2)(A)(i), after the word “her” by striking the word “parents” and inserting in lieu thereof the words “custodial parent

Twentieth:  By adding a new Sec. 5 to read as follows:

Sec. 5.  33 V.S.A. § 5802 is added to read:

§ 5802.  SEPARATION OF VICTIM OF SEXUAL ASSAULT AND

              PERPETRATOR

The commissioner of the department for children and families shall develop policies applicable when the department knows or learns that a sexual assault perpetrator and his or her victim have been simultaneously placed at the facility.  The policies shall include processes and procedures for continued separation of or minimizing incidental contact between the perpetrator and the victim, while ensuring that they both receive educational and other appropriate services.

Twenty-first:  By adding a new Sec. 6 to read as follows:

Sec. 6.  JUVENILE JURISDICTION POLICY AND OPERATIONS

            COORDINATING COUNCIL

(a)  The juvenile jurisdiction policy and operations coordinating council is established in order to plan and develop the steps advisable to better address age appropriate responses to older youth within the juvenile justice system.  The council shall report to the House and Senate Committees on Judiciary on or before December 15, 2008.  The report may consider the Juvenile Justice Jurisdiction Study submitted to the agency of human services in December 2007 as well as other relevant information and recommend any changes to Vermont juvenile justice jurisdiction policy the council decides are advisable.  With respect to any policy changes recommended, the report shall include:

(1)  Necessary statutory changes;

(2)  Necessary structural modifications to the juvenile system, including personnel and programming requirements and changes; and

(3)  Cost implications and financial impacts.

(b)  The Council shall consist of the following members:

(1)  The administrative judge or designee.

(2)  The court administrator or designee.

(3)   The defender general or designee.

(4)  The attorney general or designee.

(5)  The executive director of the department of state's attorney’s and sheriffs or designee.

(6)  The commissioner of the department for children and families or designee.

(7)  The director of the juvenile justice commission or designee.

(8)  The commissioner of corrections or designee.

(9)  The commissioner of public safety or designee.

And by renumbering the remaining sections to be numerically correct.

(Committee vote: 10-0-1)

(For text see Senate Journal 3/11/08 – P. 271; 3/12/08 – P. 304 )

Rep. Haas of Rochester, for the Committee on Human Services, recommends that the report of the committee on Judiciary be amended as follows:

First:  In Sec. 1, 33 V.S.A. § 5117, by adding a new subsection (g) to read as follows:

(g)  Until an information regarding the matter is filed in district court and becomes a public record, all records relating to the citation, arrest, or detention of a child under the age of 18 for a delinquent or criminal offense other than a listed crime shall be maintained in the manner required by subsection (a) of this section. 

Second:  In Sec. 2, 33 V.S.A. § 5251(2), by striking “52” and inserting “51

Third:  In Sec.2, 33 V.S.A. § 5256(b) after the words “safety of the child” by inserting the words “and the safety of the community,

Fourth:  In Sec.2, 33 V.S.A. § 5256(b)(1) after the words “to protect the child” by inserting the words “and the community

Fifth:  In Sec.2, 33 V.S.A. § 5256(b)(2)(A)(ii) after the word “control” by inserting the words “sufficient to protect the community

Sixth:  In Sec.2, 33 V.S.A. § 5256(b)(2)(C)(ii) after the words “safety of the child” by inserting the words “or the safety of the community

Seventh:  In Sec.2, 33 V.S.A. § 5256(b)(3)(B)(ii) after the word “child” by inserting the words “sufficient to protect the community

Eighth:  In Sec. 2, after the word “youth” by striking the word “offender

Ninth:  In Sec. 6, subsection (a), by adding new subdivisions (4) and (5) to read: 

(4)  Review of the impact on 16- and 17-year olds of being commingled with older offenders.

(5)  A summary of evidence-based research on outcomes and recidivism rates by juvenile offenders and juvenile delinquents, including comparisons of minors processed as juvenile delinquents with minors processed as adult offenders. 

Tenth:  In Sec. 6, subsection (b), by adding new subdivisions (10) and (11) to read:

(10)  A mental health professional with experience working with juveniles, appointed by the Vermont council of developmental and mental health services.

(11)  A law enforcement officer with experience working with juveniles, appointed by the commissioner of public safety.

Eleventh: By adding a new Sec. 7 to read as follows:

Sec. 7.    REPORT FROM THE DEPARTMENT FOR CHILDREN AND

               FAMILIES

(a)  No later than December 1, 2008, the department for children and families shall report to the general assembly on the following:

(1)  Procedures used to identify parents with disabilities.

(2)  Procedures for modifying case plans, disposition case plans, service plans and permanency plans to include the use of adaptive equipment and parental supports for parents with disabilities.

(3)  Procedures used to assess family strengths and weaknesses as they relate to children and parents with disabilities.

(4)  The state’s ability to accommodate the court-related needs of children and parents with disabilities as they relate to juvenile judicial proceedings.

(b)  In preparation of the report, the department for children and families shall consult with:

(1)  The family support project at the University of Vermont.

(2)  The Vermont judiciary.

(3)  The office of the defender general.

(4)  The department of aging and independent living.

And by renumbering the remaining sections to be numerically correct.

(Committee vote: 11-0-0)

(For text see Senate Journal 3/11/08 – P. 271; 3/12/08 – P. 304 )

S. 354

An act relating to public agency deferred compensation plans.

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

      In Sec. 2, 3 V.S.A. § 651(f), by striking the last sentence in its entirety and inserting in lieu thereof the following: “An investment program established by the teachers’ board shall be optional for public agencies set forth in subdivision 650(4)(C) of this title.  The public agency shall be the trustees of its plans created under Subsection 403(b) of the Internal Revenue Code.

(Committee vote: 10-0-1)

(For text see Senate Journal 3/20/08 – P. 306)

Favorable

S. 361

An act relating to authority to lease the state lottery.

Rep. Aswad of Burlington, for the Committee on Ways and Means, recommends that the bill ought to pass in concurrence.

(Committee Vote: 10-0-1)

(For text see Senate Journal 2/26/08 – P. 191)

S. 373

An act relating to full funding of decommissioning costs of a nuclear plant

Rep. Kitzmiller of Montpelier, for the Committee on Commerce, recommends that the bill ought to pass in concurrence.

(Committee Vote: 7-4-0)

Amendment to be offered by Reps. Errecart of Shelburne, Krawczyk of Bennington, LaVoie of Swanton, and Canfield of Fair Haven to S. 373

     Move that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  Legislative Communication on full funding of decommissioning costs of a nuclear plant

The speaker of the house, the president pro tempore of the senate, the chair of the senate committee on finance, and the chair of the house committee on commerce are authorized and directed to communicate to the public service board and the department of public service the strong recommendation of the general assembly that any company seeking to acquire a controlling interest in a company that owns or operates a nuclear power plant in Vermont have sufficient funds or other financial guarantees available only for the purpose of decommissioning the plant to a “greenfield” state in which the equipment, structures and portions of the facility and site containing radioactive contaminants are removed or decontaminated as soon as technically possible after cessation of operations.

Senate Proposal of Amendment

H. 748

     An act relating to permitting students to possess and self-administer emergency medication.

     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.  16 V.S.A. § 1387 is added to read:

§ 1387.  POSSESSION AND SELF-ADMINISTRATION OF EMERGENCY MEDICATION

(a)  Pursuant to the requirements of this section, each public and approved independent school in the state shall permit students with life-threatening allergies or with asthma to possess and self-administer emergency medication during the school day, on school grounds, at school-sponsored activities, on school-provided transportation, and during school-related programs.

(b)  In each school year for which possession and self‑administration of emergency medication is requested, the student’s parent or guardian shall provide the school with:

(1)  Written authorization, on a form to be provided by the school, for the student to possess and self-administer emergency medication. 

(2)  Written documentation from the student’s physician:

(A)  Stating that the student has one or more life-threatening allergies or asthma or both.

(B)  Providing the name of the emergency medication, the dosage, and the times and circumstances under which the medication is to be taken.

(C)  Affirming that the student:

(i)  Is capable of, and has been instructed by the physician in, the proper method of self-administration of the emergency medication.

(ii)  Has been advised of possible side-effects of the medication.

(iii)  Has been informed of when and how to access emergency services.

(D)  Affirming that the student has been instructed to inform the school nurse or another school employee or agent immediately after
self-administering the emergency medication.

(c)  In each school year for which possession and self‑administration of

emergency medication is requested, the student’s parent or guardian shall:

(1)  Develop, in consultation with the school nurse or the designated health care staff at an approved independent school, a plan of action regarding responding to the student’s life‑threatening allergy or allergies or asthma.  The plan of action shall be based upon the written documentation provided by the student’s physician and shall include the name of each emergency medication, the dosage, and the times and circumstances under which the medication is to be taken.  The written plan shall prominently state that the medication is solely for the use of the student covered by the plan. 

(2)  It shall be the responsibility of the student’s parent or guardian to provide a copy of the plan of action to any school employee or agent responsible for the student before or after the normal hours of the school day; provided, however, it shall be the school’s responsibility to give a copy of the plan to the drivers of a bus providing routine transportation between the student’s home and the school, regardless of whether the transportation is operated by the school or is a service for which it contracts.

(d)  The student’s parent or guardian shall sign a statement on a form to be provided by the school, releasing the school and its employees and agents, including volunteers, from liability as a result of any injury arising from the student’s self-administration of the emergency medication, except when the conduct of the school, school employee, or agent would constitute gross negligence, recklessness, or intentional misconduct. 

(e)  Nothing in this section shall prohibit a public school district or an approved independent school from adopting school policies and individual plans of action regarding the possession and self-administration of emergency medication for medical conditions other than asthma and life-threatening allergies.

Sec. 2.  EFFECTIVE DATE

This act shall apply during the 2008–2009 academic year and after.

(For text see House Journal 3/19/08 - PP. 622-623 and House Journal of 3/20/08 – PP. 649 - 650)

Third Reading

H. 659

     An act relating to approval of the adoption of the charter of the town of Enosburg.

Amendment to be offered by Rep. Manwaring of Wilmington to H. 659

     Moves to amend the bill in Sec. 3, by striking “upon passage” and inserting in lieu thereof “on March 3, 2009

H. 892

     An act relating to approval of amendments to the charter of the village of Enosburg Falls.

H. 893

     An act relating to approval of amendments to the charter of the city of Rutland.

S. 89

An act relating to permitting payment of rent into court pursuant to a commercial lease.

S. 107

An act relating to mapping class four town highways and trails and mass discontinuances of unmapped town highways.

S. 171

An act relating to discharge of a mortgage by an attorney.

S. 201

An act relating to state employee whistleblower protection.

S. 283

An act relating to managed care organizations and the blueprint for health.

S. 313

An act relating to a license to store and ship wine.

S. 322

An act relating to the Vermont Dairy Promotion Council.

S. 368

An act relating to the addition of new types of disinfectants to public water systems.

S. 372

An act relating to evictions, unpaid rent and abandoned property in rental property.

J. R. H. 59

     Joint resolution urging secondary school and post secondary educators and administrators to collaborate on accelerated learning opportunities for Vermont high school students.

 

 

 

For Action Under Rule 52

     J. R. S. 64

Joint resolution in observance of the 2008 National Crime Victims’ Rights Week.

(For text see House Journal April 22, 2008)

NOTICE CALENDAR

Favorable with Amendment

S. 284

An act relating to the department of banking, insurance, securities and health care administration.

Rep. Kupersmith, for the Committee on South Burlington, recommends that the House propose to the Senate that the bill be amended as follows:

First:  By striking Sec. 1 in its entirety and inserting in lieu thereof a new Sec. 1 to read as follows:

Sec. 1.  8 V.S.A. § 2201(c)(14) is added to read:

(14)  nonprofit organizations established under testamentary instruments, exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3), and which make loans for postsecondary educational costs to students and their parents, provided that the organizations provide annual accountings to the probate court pursuant to 14 V.S.A. § 2324.

Second:  By adding Secs. 9–13 to read:

Sec. 9.  8 V.S.A. § 4840(d) is amended to read:

(d)  The commissioner may waive or reduce the requirements of this section for an attorney that is under common ownership or control with a reciprocal insurer.  The commissioner may reduce by 50 percent the bond amount required by this section for an attorney that is not under common ownership or control with a reciprocal insurer if the commissioner finds sufficient evidence of financial responsibility, notwithstanding the reduction of the bond amount.

Sec. 10.  8 V.S.A. § 6006(i) is amended to read:

(i)  The provisions of subchapter 3, and subchapter 3A of chapter 101 of this title, pertaining to mergers, consolidations, conversions, mutualizations, redomestications, and mutual holding companies, shall apply in determining the procedures to be followed by captive insurance companies in carrying out any of the transactions described therein, except that:

* * *

(3)  the provisions of subsections 3423(f) and (h) of this title shall not apply, and the commissioner may waive or modify the requirement of subdivision 3423(b)(4) of this title, with respect to market value of a converted company as necessary or desirable to reflect applicable restrictions on ownership of companies formed under this chapter; and

(4)  an alien insurer may be a party to a merger authorized under this subsection; provided that the requirements for a merger between a captive insurance company and a foreign insurer under section 3431 of this title shall apply to a merger between a captive insurance company and an alien insurer under this subsection.  Such alien insurer shall be treated as a foreign insurer under section 3431 and such other jurisdictions shall be the equivalent of a state for purposes of section 3431; and

(5)  the commissioner may issue a certificate of general good to permit the formation of a captive insurance company that is established for the sole purpose of merging with or assuming existing insurance or reinsurance business from an existing Vermont licensed captive insurance company.  The commissioner may, upon request of such newly formed captive insurance company, waive or modify the requirements of subdivisions 6002(c)(1)(B) and (2) of this title.

Sec. 11.  8 V.S.A. § 6048n is amended to read:

§ 6048n.  SPONSORED CAPTIVES

In addition to the provisions of sections 6048a-6048m of this subchapter, the provisions of this section shall apply to any sponsored captive insurance company licensed as a special purpose financial captive insurance company pursuant to this subchapter.

* * *

(4)  The special purpose financial captive insurance company on behalf of a protected cell shall be entitled to assert the same claims and defenses in actions in law or equity as if the protected cell were a corporation established under Title 11A of the Vermont Statutes Annotated, including, but not limited to, claims and defenses in actions at law or equity alleging alter ego, corporate veil piercing, offset, substantive consolidation, equitable subordination, or recoupment.  In connection with the conservation, rehabilitation, or liquidation of a special purpose financial captive insurance company or one or more of its protected cells, the assets and liabilities of a protected cell shall at all times be kept separate from, and shall not be commingled with, those of other protected cells and the special purpose financial captive insurance company, and the assets of one protected cell shall not be used to satisfy the obligations or liabilities of another protected cell or the special purpose financial captive insurance company based on legal or equitable claims or defenses, including but not limited to alter ego, piercing the corporate veil, offset, substantive consolidation, equitable subordination, or recoupment, unless such claims or defenses would apply to such protected cell if it were a special purpose finance captive insurance company without separate cells.

(4)(5)  Notwithstanding subdivision 6034(1) of this chapter, the special purpose financial captive insurance company may issue securities to any person approved in advance by the commissioner.

(5)(6)  Notwithstanding section 6048g of this subchapter, the special purpose financial captive insurance company shall possess and thereafter maintain unimpaired paid-in capital and surplus of not less than $500,000.00.

(6)(7)  The “general account” of a sponsored captive insurance company licensed as a special purpose financial captive insurance company shall mean all assets and liabilities of the sponsored captive insurance company not attributable to a protected cell.

(7)(8)(A)  Any security issued by a special purpose financial captive insurance company with respect to a protected cell and any other contract or obligation of the special purpose financial captive insurance company with respect to a protected cell shall include the designation of such protected cell and shall include a disclosure in a form and content satisfactory to the commissioner to the effect that the following statement, or such other statement as may be required by the commissioner:

(i)  In the case of a security:  “The holder of such this security and any counterparty to such contract or obligation shall have no right or recourse against the special purpose financial captive insurance company and its assets other than against assets properly attributable to such the designated protected cell. and the special purpose financial captive insurance company’s general account, to the extent permitted by Vermont law.”

(ii)  In the case of a contract or obligation:  “The counterparty to this contract or obligation shall have no right or recourse against the special purpose financial captive insurance company and its assets other than against assets properly attributable to the designated protected cell and the special purpose financial captive insurance company’s general account, to the extent permitted by Vermont law.”

(B)  Notwithstanding the requirements of this subdivision (7)(8) and subject to the provisions of this chapter and other applicable law or regulation, the failure to include such disclosure, in whole or part, in such security, contract, or obligation with respect to a protected cell shall not serve as the sole basis for a creditor, ceding insurer, or any other person to have recourse against the general account of the special purpose financial captive insurance company in excess of the limitations provided for in subdivision (12)(E) of this subsection, or against the assets of any other protected cell.

(8)(9)  In addition to the provisions of section 6034 of this chapter, the special purpose financial captive insurance company shall be subject to the following with respect to its protected cells:

(A)  The special purpose financial captive insurance company shall establish a protected cell only for the purpose of insuring or reinsuring risks of one or more reinsurance contracts with a ceding insurer or two or more affiliated ceding insurers, with the intent of facilitating an insurance securitization.  A separate protected cell shall be established with respect to each such ceding insurer, provided that a separate protected cell shall be established with respect to each reinsurance contract or contracts that are funded in whole or in part by a separate securitization transaction; and

(B)  A sale, an exchange, or another transfer of assets may not be made by the special purpose financial captive between or among any of its protected cells without the prior approval of the commissioner.

(9)(10)  All attributions of assets and liabilities to the protected cells and the general account shall be in accordance with the plan of operation approved by the commissioner.  No other attribution of assets or liabilities may be made by a special purpose financial captive insurance company between its general account and any protected cell or between any protected cells.  The special purpose financial captive insurance company shall attribute all insurance obligations, assets, and liabilities relating to a reinsurance contract entered into with respect to a protected cell and shall attribute the related insurance securitization transaction, including any securities issued by the special purpose financial captive insurance company as part of the insurance securitization, to such protected cell.  The rights, benefits, obligations, and liabilities of any securities attributable to such protected cell and the performance under such reinsurance contract and the related securitization transaction and any tax benefits, losses, refunds, or credits allocated pursuant to a tax allocation agreement to which the special purpose financial captive insurance company is a party, including any payments made by or due to be made to the special purpose financial captive insurance company pursuant to the terms of such agreement, shall reflect the insurance obligations, assets, and liabilities relating to the reinsurance contract and the insurance securitization transaction that are attributed to such protected cell.

(10)(11)  For purposes of applying the provisions of chapter 145 of this title to a sponsored captive insurance company licensed as a special purpose financial captive insurance company, the definition of “insolvency” and “insolvent” in subdivision 6048c(2) shall be applied separately to each protected cell and to the special purpose financial captive insurance company’s general account.

(11)(12)  In addition to the provisions of section 6048m of this chapter:

(A)  The provisions of chapter 145 of this title shall apply to each protected cell of the special purpose financial captive. Any proceeding or action taken by the commissioner pursuant to chapter 145 of this title with respect to a protected cell of a special purpose financial captive shall not be the sole basis for a proceeding pursuant to chapter 145 of this title with respect to any other protected cell of such special purpose financial captive insurance company or the special purpose financial captive insurance company’s general account.

(B)  The receiver of a special purpose financial captive insurance company shall ensure that the assets attributable to one protected cell are not applied to the liabilities attributable to another protected cell or to the special purpose financial captive insurance company’s general account unless an asset or liability is attributable to more than one protected cell, in which case the receiver shall deal with the asset or liability in accordance with the terms of any relevant governing instrument or contract.

(C)  The insolvency of a protected cell shall not be the sole basis for the commissioner to prohibit payments by the special purpose financial captive insurance company made pursuant to a special purpose financial captive insurance company security or reinsurance contract with respect to any other protected cell or to prohibit any action required to make such payments.

(A)  Except as otherwise modified in this section, the terms and conditions set forth in chapter 145 of this title pertaining to administrative supervision of insurers and the rehabilitation, receiverships, and liquidation of insurers apply in full to special purpose financial captive insurance companies or any of the special purpose financial captive insurance company’s protected cells, independently, without causing or otherwise effecting a conservation, rehabilitation, receivership, or liquidation of the special purpose financial captive insurance company or another protected cell that is not otherwise insolvent.

(B)  Notwithstanding the provisions of chapter 145 of this title, and without causing or otherwise effecting the conservation or rehabilitation of an otherwise solvent protected cell of a special purpose financial captive insurance company and subject to the provisions of subdivision (G)(v) of this subdivision (12), the commissioner may apply by petition to the superior court for an order authorizing the commissioner to conserve, rehabilitate, or liquidate a special purpose financial captive insurance company domiciled in this state on one or more of the following grounds:

(i)  embezzlement, wrongful sequestration, dissipation, or diversion of the assets of the special purpose financial captive insurance company intended to be used to pay amounts owed to the ceding insurer or the holders of special purpose financial captive insurance company securities; or

(ii)  the special purpose financial captive insurance company is insolvent; or

(iii)  the holders of a majority in outstanding principal amount of each class of special purpose financial captive insurance company securities attributable to each particular protected cell requests or consents to conservation, rehabilitation, or liquidation pursuant to the provisions of this subchapter.

(C)  Notwithstanding the provisions of chapter 145 of this title, the commissioner may apply by petition to the superior court for an order authorizing the commissioner to conserve, rehabilitate, or liquidate one or more of a special purpose financial captive insurance company’s protected cells, independently, without causing or otherwise effecting a conservation, rehabilitation, receivership, or liquidation of the special purpose financial captive insurance company generally or another of its protected cells, on one or more of the following grounds:

(i)  embezzlement, wrongful sequestration, dissipation, or diversion of the assets of the special purpose financial captive insurance company attributable to the affected protected cell or cells intended to be used to pay amounts owed to the ceding insurer or the holders of special purpose financial captive insurance company securities of the affected protected cell or cells; or

(ii)  the affected protected cell is insolvent; or

(iii)  the holders of a majority in outstanding principal amount of each class of special purpose financial captive insurance company securities attributable to that particular protected cell request or consent to conservation, rehabilitation, or liquidation pursuant to the provisions of this subchapter.

(D)  Except where consent is given as described in subdivisions (B)(iii) and (C)(iii) of this subdivision (12), the court may not grant relief provided by subdivision (B) or (C) of this subdivision (12) unless, after notice and a hearing, the commissioner, who shall have the burden of proof, establishes by clear and convincing evidence that relief must be granted.  The court’s order may be made in respect of one or more protected cells by name, rather than the special purpose financial captive insurance company generally.

(E)  Notwithstanding another provision in this title, regulations adopted under this title, or another applicable law or regulation, upon any order of conservation, rehabilitation, or liquidation of a special purpose financial captive insurance company, or one or more of the special purpose financial captive insurance company’s protected cells, the receiver shall manage the assets and liabilities of the special purpose financial captive insurance company or the applicable protected cell pursuant to the provisions of this subchapter.  The assets attributable to one protected cell shall not be applied to the liabilities attributable to another protected cell, unless an asset or liability is attributable to more than one protected cell, in which case the receiver shall deal with the asset or liability in accordance with the terms of any relevant governing instrument or contract.  Recourse to the special purpose financial captive insurance company’s general account in connection with the conservation, rehabilitation, or liquidation of a protected cell shall be limited to the greater of the amount of assets in the general account as of the date such proceeding is commenced or the required minimum capital for the general account as of the date such proceeding is commenced.  Assets attributable to one protected cell or the special purpose financial captive insurance company’s general account shall not be set off against the liabilities attributable to another protected cell or to the special purpose financial captive insurance company’s general account.  Relief shall not be granted nor shall any order be issued based on equitable theories of recovery, including substantive consolidation, equitable subordination, or recoupment, to attach or seize the assets of any solvent protected cell for the benefit of another protected cell or special purpose financial captive insurance company, or to pierce the corporate veil of any protected cell, in connection with the conservation, rehabilitation, or liquidation of a special purpose financial captive insurance company or one or more protected cells, unless such equitable theories, attachment, seizure or corporate veil piercing would apply to such cell if it were a special purpose financial captive insurance company without separate cells.

(F)  With respect to amounts recoverable under a reinsurance contract, the amount recoverable by the receiver of a special purpose financial captive insurance company must not be reduced or diminished as a result of the entry of an order of conservation, rehabilitation, or liquidation with respect to the ceding insurer, notwithstanding another provision in the contract or other documentation governing the insurance securitization.

(G)  Notwithstanding the provisions of chapter 145 of this title or other laws of this state:

(i)  An application or petition, or a temporary restraining order or injunction issued pursuant to the provisions of chapter 145 of this title, with respect to a ceding insurer, does not prohibit the transaction of business by a special purpose financial captive insurance company with the ceding insurer, including any payment by a special purpose financial captive insurance company made pursuant to a security issued by a special purpose financial captive insurance company with respect to a protected cell, or any action or proceeding against a special purpose financial captive insurance company or its assets.

(ii)  The commencement of a summary proceeding or other interim proceeding commenced before a formal delinquency proceeding with respect to a special purpose financial captive insurance company, and any order issued by the court, does not prohibit the payment by a special purpose financial captive insurance company made pursuant to a security issued by a special purpose financial captive insurance company with respect to a protected cell or special purpose financial captive insurance company contract or the special purpose financial captive insurance company from taking any action required to make the payment.

(iii)  A receiver of a ceding insurer may not void a nonfraudulent transfer by the ceding insurer to a special purpose financial captive insurance company of money or other property made pursuant to a reinsurance contract.

(iv)  A receiver of a special purpose financial captive insurance company may not void a nonfraudulent transfer by the special purpose financial captive insurance company of money or other property made to a ceding insurer pursuant to a reinsurance contract or made to or for the benefit of any holder of a special purpose financial captive insurance company security issued with respect to a protected cell, or a special purpose financial captive insurance company security.

(v)  In the event of an insolvency of a special purpose financial captive insurance company where one or more protected cells remain solvent, the commissioner shall separate the special purpose financial captive insurance company’s solvent protected cells from the insolvent special purpose financial captive insurance company, shall allow on petition of the sponsor for the conversion of such solvent protected cells into one or more special purpose financial captive insurance companies, and shall issue such orders as the commissioner deems necessary to protect the solvency of the remaining solvent protected cells.  In the event of an insolvency of a protected cell, the special purpose financial captive insurance company’s assets shall be accounted for and managed in compliance with subdivision (E) of this subdivision (12) and the other laws of this state.

(H)  Subdivision (G) of this subdivision (12) does not prohibit the commissioner from taking any action permitted under chapter 145 of this title with respect only to the conservation or rehabilitation of a special purpose financial captive insurance company with protected cell or cells, provided the commissioner would have had sufficient grounds to seek to declare the special purpose financial captive insurance company insolvent; subject to and without otherwise affecting the provisions of subdivision (G)(v) of this subdivision (12).  In this case, with respect to the solvent protected cell or cells, the commissioner may not prohibit payments made by the special purpose financial captive insurance company pursuant to the special purpose financial captive insurance company security, reinsurance contract, or otherwise made under the insurance securitization transaction that are attributable to these protected cell or cells or prohibit the special purpose financial captive insurance company from taking any action required to make these payments.

(I)  With the exception of the fulfillment of the obligations under a special purpose financial captive insurance company contract, and notwithstanding another provision of this title or other laws of this state, the assets of a special purpose financial captive insurance company, including assets held in trust, shall not be consolidated with or included in the estate of a ceding insurer in any delinquency proceeding against the ceding insurer pursuant to the provisions of this title for any purpose, including, without limitation, distribution to creditors of the ceding insurer.

Sec. 12.  8 V.S.A. § 3614(a) is amended to read: 

§ 3614.  BOARD OF DIRECTORS

(a)  The board of directors of the association shall consist of not less than five nor more than nine persons serving, at least three of whom shall be persons who are officers, directors, or employees of insurance companies incorporated under the laws of this state, unless there are fewer than three such companies, in which case there shall be one director for each such company.  The directors shall serve terms as established in the plan of operation.  The members of the board shall be selected by member insurers subject to the approval of the commissioner.  Vacancies on the board shall be filled for the remaining period of the term by a majority vote of the remaining board members, subject to the approval of the commissioner.  Not less than one-half of the directors shall be persons who are officers, directors or employees of insurance companies incorporated under the laws of this state.

Sec. 13.  EFFECTIVE DATE

This act shall take effect July 1, 2008, except for Sec. 2, which shall take effect upon passage.

(Committee vote: 10-0-1)

S. 304

An act relating to a groundwater withdrawal program.

Rep. Anderson of Montpelier, for the Committee on Fish, Wildlife and Water Resources, 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.  10 V.S.A. § 1390 is amended to read:

§ 1390.  POLICY

It is the policy of the state of Vermont that it shall protect its groundwater resources to maintain high quality drinking water and shall manage its groundwater resources to minimize the risks of groundwater quality deterioration by limiting human activities that present unreasonable risks to the use classifications of groundwater in the vicinities of such activities while balancing the state’s groundwater policy with the need to maintain and promote a healthy and prosperous agricultural community The general assembly hereby finds and declares that:

(1)  the state should adhere to the policy for management of groundwater of the state as set forth in section 1410 of this title;

(2)  in recognition that the groundwater of Vermont is a precious, finite, and invaluable resource upon which there is an ever-increasing demand for present, new, and competing uses; and in further recognition that an adequate supply of groundwater for domestic, farming, dairy processing, and industrial uses is essential to the health, safety, and welfare of the people of Vermont, the withdrawal of groundwater of the state should be regulated in a manner that benefits the people of the state; is compatible with long-range water resource planning, proper management, and use of the water resources of Vermont; and is consistent with Vermont’s policy of managing groundwater as a public resource for the benefit of all Vermonters;

(3)  it is the policy of the state that the state shall protect its groundwater resources to maintain high-quality drinking water;

(4)  it is the policy of the state that the groundwater resources of the state shall be managed to minimize the risks of groundwater quality deterioration by regulating human activities that present risks to the use of groundwater in the vicinities of such activities while balancing the state’s groundwater policy with the need to maintain and promote a healthy and prosperous agricultural community; and

(5)  it is the policy of the state that the groundwater resources of the state are held in trust for the public.  The state shall manage its groundwater resources in accordance with the policy of this section, the requirements of this subchapter, and section 1392 of this title for the benefit of citizens who hold and share rights in such waters.  The designation of the groundwater resources of the state as a public trust resource shall not be construed to allow a new right of legal action by an individual other than the state of Vermont, except to remedy injury to a particularized interest related to water quantity protected under this subchapter. 

Sec.  2.  10 V.S.A. chapter 48, subchapter 6 is added to read:

Subchapter 6.  Groundwater Withdrawal Program

§ 1416.  DEFINITIONS

As used in this subchapter:

(1)  “Farming” means farming as the term is defined in subdivision 6001(22) of this title.

(2)  “Groundwater” means water below the land surface, including springs.

(3)  “Person” means any individual, partnership, company, corporation, cooperative, association, unincorporated association, joint venture, trust, the state of Vermont or any department, agency, subdivision, or municipality, the United States government or any department, agency, or subdivision, or any other legal or commercial entity.

(4)  “Spring” means a groundwater source where groundwater flows naturally to the surface of the earth and is collected with a developed structure that is designed to locate or extract groundwater. 

(5)  “Surface water” means waters within the meaning of subdivision 1251(13) of this title.

(6)  “Water resources” means groundwater or surface water.

(7)  “Well” means any hole drilled, driven, bored, excavated, or created by similar method into the earth to locate, monitor, extract, or recharge groundwater where the water table or potentiometric surface is artificially lowered through pumping.

(8)  “Withdraw” or “withdrawal” means the intentional removal by any method or instrument of groundwater from a well, spring, or combination of wells or springs.

§ 1417.  EXISTING GROUNDWATER WITHDRAWAL; REPORTING

(a)  Beginning September 1, 2009, any person that withdraws more than 20,000 gallons per day, averaged over a calendar month at a single tract of land or place of business shall file a groundwater report with the secretary of natural resources on or before September 1 for the preceding calendar year.  The report shall be made on a form prescribed by the secretary and shall include:

(1)  the location, capacity, frequency, and rate of the withdrawal;

(2)  a description of the use of the water withdrawn; and

(3)  where feasible, the distance of each withdrawal from the nearest surface water source and wetland.

(b)  The following are exempt from the reporting requirements of this section:

(1)  a groundwater withdrawal for fire suppression or other public emergency purposes;

(2)  a withdrawal reported to the agency of natural resources under any program that requires the reporting of substantially similar data.  The agency of natural resources shall record such withdrawals with the information from withdrawals reported under this section;

(3)  domestic, residential use;

(4)  groundwater withdrawal for farming

(5)  dairy processors and milk handlers licensed in accordance with 6 V.S.A. § 2721;

(6)  public water systems, as that term is defined in section 1671 of this title; and

(7)  closed loop, standing column, or similar non-extractive geothermal heat pumps.

(c)  The secretary of natural resources may adopt rules to implement this section, including methods for calculating or estimating the amount of groundwater withdrawn from a well or spring.

§ 1418.  GROUNDWATER WITHDRAWAL PERMIT

(a)  On and after July 1, 2010, no person, for commercial or industrial uses, shall make a new or increased groundwater withdrawal of more than 57,600 gallons a day from any well or spring on a single tract of land or at a place of business without first receiving from the secretary of natural resources a groundwater withdrawal permit.  The following shall constitute a “new or increased withdrawal”:

(1)  The expansion of any existing withdrawal through:

(A)  additional withdrawal from one or more new wells or springs; or

(B)  an increase in the rate of withdrawal from a well or spring above the maximum rate set forth in any existing permit issued by the secretary of natural resources under this section; or

(2)  For previously unpermitted withdrawals, an increase in the rate of withdrawal after July 1, 2010 from a well or spring on a single tract of land or at a place of business of 25 percent of the baseline withdrawal or an increase of 57,600 gallons of groundwater withdrawn, whichever is smaller.

(3)  For the purposes of this subsection, the baseline withdrawal shall be the highest amount withdrawn by a person between 2005 and 2010.

(b)  The following are exempt from the permitting requirements of this section:

(1)  a groundwater withdrawal for fire suppression or other public emergency purpose;

(2)  domestic, residential use;

(3)  groundwater withdrawal for farming;

(4)  dairy processors and milk handlers licensed in accordance with 6 V.S.A. § 2721;

(5)  public water systems, as that term is defined in section 1671 of this title; and

(6)  closed loop, standing column, or similar non-extractive geothermal heat pumps.

(c)(1)  At least 30 days before filing an application for a permit under this section, the applicant shall hold an informational hearing in the municipality in which the withdrawal is proposed in order to describe the proposed project and to hear comments regarding the proposed project.  Public notice shall be given by posting in the municipal offices of the town in which the withdrawal is proposed and by publishing in a local newspaper at least 10 days before the meeting.

(2)  On or before the date of filing with the secretary of natural resources an application for a permit under this section, an applicant for a withdrawal under this section shall notify:

(A)  the clerk, legislative body, and any conservation commission in the municipality in which the proposed withdrawal is located;

(B)  adjoining municipalities;

(C)  the regional planning commission in the region where the proposed withdrawal is located;

(D)  all landowners and mobile home park residents within the zone of influence of a groundwater withdrawal or within one quarter mile downstream from a withdrawal from a spring.  Notice to the officers of a condominium association shall be deemed sufficient under this subdivision for notice to residents of a condominium; and

(E)  any public water systems permitted by the agency of natural resources in the municipality where the proposed withdrawal is located.

(3)  The applicant shall publish notice of the application in a newspaper of general circulation in the area in which the withdrawal is proposed and shall post a copy of the notice in the municipal clerk’s office in the municipality in which the withdrawal is located.

(4)  On its own motion or on receipt of a written request, the agency shall hold a public meeting in the municipality in which the withdrawal is proposed in order to describe the proposed project and to hear comments regarding the proposed project.  Opportunity shall be given all participants at a public meeting to ask questions and comment on all issues involved.  The agency shall prepare a responsiveness summary for each public meeting conducted.  Public notice shall be given by posting in the municipal offices of the town in which the withdrawal is proposed and by publishing in a local newspaper at least 10 days before the meeting.

(5)  No defect in the form or substance of any notice requirements in subdivisions (1), (2), or (3) of this subsection shall invalidate an application for a permit under this section provided that reasonable efforts are made to provide adequate posting and notice.  An application for a permit under this section shall be invalid when a defective posting or notice was materially misleading in content.  If an action is ruled to be invalid by the environmental court, the applicant may reapply and provide new posting and notice.

(d)  Application for a permit shall be on a form prepared by the secretary.  An application shall, at a minimum, contain the information necessary to make the determinations contained in subsection (e) of this section, and the following:

(1)  the purpose for the withdrawal;

(2)  the location and source of the withdrawal;

(3)  the amount of the proposed withdrawal, including estimates of the projected mean and peak daily, monthly, and annual withdrawals;

(4)  the place of the proposed return flow of withdrawn water;

(5)  the estimated amount of water that will not be returned to the watershed where the proposed withdrawal is located;

(6)  the location, demand on, and yield of existing sources of groundwater and surface water utilized by the applicant; and

(7)  a brief description of the alternative means considered for satisfying the applicant’s stated use for water.

(e)  The secretary shall not issue a permit for a new or increased groundwater withdrawal unless the secretary determines:

(1)  that the proposed withdrawal is planned in a fashion that provides for efficient use of the water;

(2)  that the proposed withdrawal, in combination with other existing withdrawals, will meet the standards set by the secretary of natural resources in rule for establishing a safe yield in the area of the withdrawal;

(3)  that the proposed withdrawal is consistent with the town or regional plan in which the proposed withdrawal is located, and with any duly adopted state policy to manage groundwater as a shared resource for the benefit of all citizens of the state, including any policies and programs of the state of Vermont regarding long-range planning, management, allocation, and use of groundwater and surface water in effect at the time the application for the withdrawal is filed;

(4)  that the proposed withdrawal will not have an undue adverse effect on existing uses of water dependent on the same water source;

(5)  that the proposed withdrawal will not have an undue adverse effect on a public water system permitted by the agency of natural resources;

(6)  that the proposed withdrawal will not have an undue adverse effect on significant wetlands under the Vermont wetland rules or on other water resources hydrologically interconnected with the well or spring from which the proposed withdrawal would be made;

(7)  that the proposed withdrawal will not violate the Vermont water quality standards; and

(8)  any other consideration that the secretary determines necessary for the conservation of water or protection of groundwater quality.

(f)  A permit issued under this section shall be valid for the period of time specified in the permit but not for more than 10 years.  A permit issued under this section shall include the following:

(1)  that groundwater withdrawals from a well or spring for drinking water supplies, farming, or dairy processing shall be given priority over other uses during times of shortage; and

(2)  any other condition that the secretary determines necessary for the conservation of water or protection of groundwater quality.

(g)  The secretary may require any person withdrawing groundwater in the state to obtain a permit under this section if the withdrawal is not exempt under subsection (b) of this section and secretary determines that the withdrawal violates the Vermont water quality standards or has an undue adverse effect on an existing use of groundwater, a public water system permitted by the agency of natural resources, wetlands, or water resources hydrologically interconnected with the well or spring from which the withdrawal occurs.  The secretary shall make a determination under this section based on review of the information set forth under subsection (d) of this section that is readily available to the secretary. 

(h)  A withdrawal permit issued under this section may be transferred upon a change of ownership of the facility or project for which the permit was issued, provided that the new owner applies for an administrative amendment to the permit certifying its agreement to comply with all terms and conditions of the transferred permit and assume all other associated obligations.

(i)  The following groundwater withdrawals shall be deemed to comply with the public trust requirements of the state for groundwater management and shall be entitled to a presumption that the withdrawal complies with the public trust requirements of the state:

(1)  A groundwater withdrawal permitted under this section;

(2)  A groundwater withdrawal for domestic, residential use;

(3)  A groundwater withdrawal for public water systems, except for a bottled water facility operating under a source permit issued prior to the effective date of this act, permitted under chapter 56 of this title;

(4)  A groundwater withdrawal for a potable water supply permitted under chapter 64 of this title;

(5)  A groundwater withdrawal for farming conducted in compliance with the requirements of chapter 215 of Title 6; and

(6)  A groundwater withdrawal by a dairy processor or milk handler licensed in accordance with 6 V.S.A. § 2721.

(j)  On or before July 1, 2010, the secretary shall adopt rules to implement this section.  When rules are adopted by the secretary under this section, section 1415 of this title shall be repealed.  The rules adopted under this section shall include:

(1)  requirements for the mitigation of an undue adverse effect on drinking water supplies, farming, public water systems, or any other affected use when the secretary determines such an undue adverse effect is likely to occur due to a proposed withdrawal;

(2)  requirements for the renewal of permits issued under this section.

(k)  Nothing contained in this subchapter shall be construed to alter or modify a right under a deed or contract to access groundwater in this state.

§ 1419.  CIRCUMVENTION

The secretary may require a person to report under section 1417 of this title or obtain a permit under section 1418 of this title when the secretary, in his or her discretion, determines that a withdrawal, subdivision of land, transfer of property, or other action is intended to circumvent the requirements of this subchapter.

Sec. 3.  10 V.S.A. § 1410 is amended to read:

§ 1410.  GROUNDWATER; RIGHT OF ACTION

* * *

(b)  Definitions.  As used in this section:

(1)  “Groundwater” means water below the land surface.

(2)  “Surface water” means any water on the land surface.

(3)  “Person” means any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont, or any agency, department, or subdivision of the state, federal agency, or any other legal or commercial entity.

* * *

(g)  For the purposes of this section, a person who obtains and complies with a withdrawal permit issued pursuant to the requirements of section 1418 of this title shall be presumed to be engaged in a reasonable use of groundwater and not to cause unreasonable harm under subsection (b) of this section.

Sec. 4.  6 V.S.A. § 4851 is amended to read:

§ 4851.  PERMIT REQUIREMENTS FOR LARGE FARM OPERATIONS

* * *

(g)  A farm that is permitted under this section and that withdraws more than 57,600 gallons of groundwater per day averaged over any 30

consecutive-day period, shall annually report estimated water use to the secretary of agriculture, food and markets.  The secretary of agriculture, food and markets shall share information reported under this subsection with the agency of natural resources.

Sec. 5.  10 V.S.A. § 1675(g) is amended to read:

(g)(1)  Effective July 1, 2006, a public water system applying for a permit under this section for the bottling of more than 50,000 gallons of drinking water a day from a single source for public distribution and sale shall, in addition to complying with the requirements of this chapter and any rules adopted thereunder, submit to the Vermont state geologist and the department of environmental conservation a geologic cross section and groundwater contour map of an area, the size of which shall be in conformance with appendix A, part 3, subsection 3.3.5.2 of the Vermont water supply rule, surrounding the proposed source.

(2)  The requirements of subdivision (1) of this subsection shall apply to a public water system permitted under this section when the system proposes to expand the bottling of drinking water from a single source such that the total gallons of water bottled from the single source would exceed 50,000 gallons a dayBeginning July 1, 2010, the secretary shall not issue a source permit for a bottled drinking water supply unless, in addition to all other requirements for a source permit:

(1)  the permit application contains the information required by subdivisions 1418(d)(4)–(7) of this title;

(2)  the secretary finds that considerations in subdivisions 1418(e)(1)–(3) and (6)–(8) of this title have been satisfied;

(3)  the permit contains the permit conditions required by subsection (f) of this section; and

(4)  the permit applicant complies with the notice requirements of subsection 1418(c) of this title.

(h)  A public water system permitted after the effective date of this act that bottles drinking water for public distribution and sale shall obtain from the secretary a source water permit under subsection 1672(b) of this title upon renewal of its operating permit under this section and every 10 years thereafter.

Sec. 6.  10 V.S.A. § 6001d is added to read:

§ 6001d.  LARGE VOLUME GROUNDWATER WITHDRAWAL

In addition to all other applicable law, any withdrawal of more than 340,000 gallons of groundwater per day from any well or spring on a single tract of land or at a place of business, independent of the acreage of the tract of land or place of business, shall be a development under this chapter if the withdrawal requires a permit under section 1418 of this title or is by a bottled water facility regulated under chapter 56 of this title.

Sec. 7.  6 V.S.A. § 2674 is amended to read:

§ 2674.  RECORDS AND REPORTS--HANDLERS

(a)  On or before March 1 of each year all handlers shall send the secretary a full and accurate report of the amount of business done during the preceding year, together with such other statistical information as he may require.

(b)  A milk handler that is licensed under this chapter and that withdraws more than 57,600 gallons of groundwater per day averaged over any 30 consecutive‑day period shall annually report estimated water use to the secretary of agriculture, food and markets.  The secretary of agriculture, food and markets shall share information reported under this section with the agency of natural resources.

Sec. 8.  EFFECTIVE DATE

This act shall take effect upon passage.

S. 311

An act relating to the use value appraisal program.

Rep. Randall of Troy, for the Committee on Fish, Wildlife and Water Resources, 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; INTENT

(a)  The general assembly finds that the use value appraisal program:

(1)  Continues to achieve the goals of the program although the goal of protecting natural ecological systems could be better met by amending the 20‑percent rule to allow for more flexibility in the enrollment of ecological areas, such as rare or exemplary natural communities, riparian buffers, wetlands, vernal pools, and significant wildlife habitat;

(2)  Needs electronic coordination;

(3)  Appears to need appropriate staff increases at the division of property valuation and review and at the department of forests, parks and recreation;

(4)  Needs administrative streamlining;

(5)  Should provide consistent oversight between the agricultural and forest land programs;

(6)  Should generate more funding for sufficient administration of the program;

(7)  Has serious misperceptions about it in the minds of the general public, listers, potentially eligible landowners, enrolled landowners, attorneys, and realtors that the state must lead an educational effort to correct.

(b)  Therefore, the general assembly intends that this act will improve this successful program.

* * * New Application at Time of Transfer of Ownership and Increase of the Application Fee * * *

Sec. 2.  32 V.S.A. § 3756(e) is amended to read:

(e)  Once a use value appraisal has been applied for and granted under this section, such appraisal shall remain in effect for subsequent tax years pursuant to the provisions of subsection (f) of this section, and until the property concerned is transferred to another owner or is no longer eligible under provisions of section 3752 or 3755 of this chapter, or due to a change of use or as otherwise provided in section 3757 of this chapter.  If enrolled property is transferred to another owner, the new owner shall be entitled to continue to have the eligible property appraised at its use value, provided the property remains eligible and provided the new owner shall elect the continuation of use value appraisal on the property transfer tax return at the time of transfer and, within 30 days after the property tax transfer return is received by the department, has applied to the director and paid the fees described in this subsection.  The grant of use value appraisals of agricultural forest land and farm buildings shall be recorded in the land records of the municipality by the clerk of the municipality.  The department of taxes may collect from applicants Applications shall include the fees specified in subdivision 1671(a)(6) or subsection 1671(c) of this title, and a fee of $25.00 for deposit in a special fund established and managed pursuant to subchapter 5 of chapter 7 of this title, and which. The fund shall be available as payment for the fees of the clerk of the municipality and for the improvement of the management of the program.

Sec. 3.  32 V.S.A. § 3757(e)(3) is amended to read:

(3)  of any transfer of ownership.  A transfer of ownership, alone, will not affect eligibility of the parcel, and no new maps will be required solely because of a transfer, but failure to provide maps, a new application, or transfer information to the division of property valuation and review within 30 days of a request being sent by certified mail by the director will result in removal of the parcel from the program.

Sec. 4.  PROPERTY TRANSFER TAX RETURN

The commissioner of taxes shall amend the property transfer tax return to include an election to continue eligible property in the use value appraisal program at the time of transfer to a new owner, as allowed under 32 V.S.A. § 3756(e).

* * * Increase Time and Flexibility to Inspect Forest Parcels * * *

Sec. 5.  32 V.S.A. § 3755(b)(3) and (c) are amended to read:

(3)  there has not been filed with the director an adverse inspection report by the department stating that the management of the tract is contrary to the forest or conservation management plan, or contrary to the minimum acceptable standards for forest or conservation management.  The management activity report of conformance with any management plan shall be on a form prescribed by the commissioner of forests, parks and recreation in consultation with the commissioner of taxes and shall include a detachable section signed by all the owners that shall contain the federal tax identification numbers of all the owners.  The section containing federal tax identification numbers shall not be made available to the general public, but shall be forwarded to the commissioner of taxes within 30 days after receipt and used for tax administration purposes.  If any owner shall satisfy the department that he or she was prevented by accident, mistake or misfortune from filing a management plan which is required to be filed on or before October 1 or an annual conformance a management activity report which is required to be filed on or before February 1 of the year following the year when the management activity occurred, the department may receive that management plan or annual conformance management activity report at a later date; provided, however, no management plan shall be received later than December 31 and no annual conformance management activity report shall be received later than March 1.

(c)  At intervals not to exceed five years, the The department of forests, parks and recreation shall audit periodically review the management plans and each year review the conformance management activity reports for each parcel of managed forest land qualified for use value appraisal.  Likewise, at that have been filed.  At intervals not to exceed five ten years, that department shall inspect each tract parcel of managed forest land qualified for use value appraisal to verify that the terms of the management plan have been carried out in a timely fashion.  If that department finds that the management of the tract is contrary to the conservation or forest management plan, or contrary to the minimum acceptable standards for conservation or forest management, it shall file with the owner, the assessing officials and the director an adverse inspection report within 30 days of the inspection.

Sec. 6.  32 V.S.A. § 3756(i) is amended to read:

(i)  The director shall remove from use value appraisal an entire parcel of managed forest land and notify the owner in accordance with the procedure in subsection (b) of this section when the department of forests, parks and recreation has not received a conformance management activity report or has received an adverse inspection report, unless the lack of conformance consists solely of the failure to make prescribed planned cutting.  In that case, the director may delay removal from use value appraisal for a period of one year at a time to allow time to bring the parcel into conformance with the plan.

* * * Allow for Management of Ecological Areas * * *

Sec. 7.  COMMISSIONER OF FORESTS, PARKS AND RECREATION

The commissioner of forests, parks and recreation shall amend the minimum standards of forest management to expand the eligibility of Site 4 land and to identify certain ecologically sensitive areas that will be allowed to be managed for other purposes than timber production, as follows:

(1)  A parcel may be eligible if no more than 20 percent of the acres to be enrolled are Site 4, plus open and not to be restocked within two years, plus ecologically significant areas designated by the department.  These acres need not be managed for timber production.

(2)  The commissioner, in partnership with the Vermont nongame and natural heritage program, should take note of and consider criteria developed by the American Tree Farm System and the Forest Stewardship Council in addition to the criteria submitted in testimony for determining ecologically sensitive areas.  The public shall be given an opportunity to comment on the amended standards.

(3)  If more than 20 percent of the acres to be enrolled are Site 4, plus open not to be restocked, plus ecologically significant not to be managed for timber production, landowners may apply to the commissioner for approval.  The plans and maps shall be reviewed by the county foresters of the county where the parcel is located.  In no situation shall a parcel be approved that does not provide for at least 80 percent of the land classified as Site 1, 2, or 3 to be managed for timber production. 

(4)  The amended standards shall be in effect on or before April 15, 2009.

(5)  The commissioner shall report to the house and senate committees on natural resources and energy and the house committees on fish, wildlife and water resources and agriculture on the changes in the standards on or before January 15, 2009.

* * * Flexibility in Updating Use Value on Town Grand List * * *

Sec. 8.  32 V.S.A. § 4111(e) and (g) are amended to read:

(e)  When the listers return the grand list book to the town clerk, they shall notify by first class mail, on which postage has been prepaid and which has been addressed to their last known address, all affected persons, listed as property owners in the grand list book of any change in the appraised value of such property or any change in the allocation of value to the homestead as defined under subdivision 5401(7) of this title or the housesite as defined under subdivision 6061(11) of this title, and also notify them of the amount of such change and of the time and place fixed in the public notice hereinafter provided for, when persons aggrieved may be heard.  No notice shall be required for a change solely to reflect a new use value set by the current use advisory board.  Notices shall be mailed at least 14 days before the time fixed for hearing.  Such personal notices shall be given in all towns and cities within the state, anything in the charter of any city to the contrary notwithstanding.  At the same time, the listers shall post notices in the town clerk’s office and in at least four other public places in the town or in the case of a city, in such other manner and places as the city charter shall provide, setting forth that they have completed and filed such book as an abstract and the time and place of the meeting for hearing grievances and making corrections.  Unless the personal notices required hereby were sent by registered or certified mail, or unless an official certificate of mailing of the same was obtained from the post office, in the case of any controversy subsequently arising it shall be presumed that the personal notices were not mailed as required.

(g)  A person who feels aggrieved by the action of the listers and desires to be heard by them, shall, on or before the day of the grievance meeting, file with them his or her objections in writing and may appear at such grievance meeting in person or by his or her agents or attorneys.  No grievance shall be allowed for a change solely to reflect a new use value set by the current use advisory board.  Upon the hearing of such grievance, the parties thereto may submit such documentary or sworn evidence as shall be pertinent thereto.

* * * Municipalities Allowed to Enroll Land in Other Municipalities * * *

Sec. 9.  32 V.S.A. § 3752(10) is amended to read:

(10)  “Owner” means the person who is the owner of record of any land, provided that a municipality shall not be an owner for purposes of this subchapter.  When enrolled land is mortgaged, the mortgagor shall be deemed the owner of the land for the purposes of this subchapter, until the mortgagee takes possession, either by voluntary act of the mortgagor or foreclosure, after which the mortgagee shall be deemed the owner.

Sec. 10.  32 V.S.A. § 3760 (a) is amended to read:

(a)(1)  Annually the state shall pay to each town municipality the amount necessary to limit its tax rate increase in the prior year due to the loss of municipal property tax revenue for that year based on use value of enrolled property as compared to municipal property tax revenue for that year based on fair market value of enrolled property, to zero.

(2)  The director of property valuation and review shall determine the amount of the available funds under this section to be paid to each town municipality, and a town municipality may appeal the director's decision in the same manner and under the same procedures as an appeal from a decision of a board of civil authority, as set forth in subchapter 2 of chapter 131 of this title.

(3)  On November 1 of each year, the director of property valuation and review shall pay to each municipality the amount calculated as described in this section.  If the appropriation for the year is insufficient to pay the full amount due to every town municipality under this subsection, payments in that year shall be made to such towns proportionately.

(4)  If the appropriation for the year is insufficient to pay the full amount due to any municipality for enrolled property owned by another municipality, the municipality in which the property is located may assess the other municipality and the other municipality shall pay the difference.

(5)  The director's calculation of payment amounts to municipalities shall be based on grand list values and total tax appropriations as submitted to the director for the prior year.

Sec. 11.  ELECTRONIC COORDINATION PROJECT AND REPORT

The department of information and innovation in collaboration with the division of property valuation and review, the agency of natural resources, and the agency of agriculture, food and markets, the Vermont Assessors and Listers Association, and the Vermont League of Cities and Towns shall continue in the effort to bring electronic coordination to the use value appraisal program. No later than January 15, 2009, the department shall submit a report on this project to the house committees on ways and means and on fish, wildlife and water resources and the senate committees on finance and on natural resources and energy.  The report shall address the recommendations on administrative matters of the use value appraisal task force and include a proposed budget and time frame for the different parts of the project.  The report shall include a review of different funding options to make the administration of the program self-sustainable.

Sec. 12.  OUTREACH AND EDUCATION ABOUT THE PROGRAM

(a)  The department of forests, parks and recreation, the division of property valuation and review, the agency of agriculture, food and markets, and the current use advisory board shall consult with the Vermont Assessors and Listers Association, the Vermont League of Cities and Towns, the Vermont Use Value Appraisal Coalition, the Vermont Farm Bureau, the Vermont Land Trust, the Vermont Forest Products Association, Rural Vermont, the Vermont Natural Resources Council, and other stakeholders to

(1)  develop an outreach and education program to address possible misperceptions about the program identified by the use value appraisal task force in its report. The program shall be comprehensive and shall outline a strategy to communicate with the general public, listers, potentially eligible landowners, enrolled landowners, attorneys, and realtors.

(2)  include a plan to address the areas of further investigation identified by the task force, including:

(A)  the program definitions of “agricultural land” and “farmer”;

(B)  whether there should be different valuations of land based on the kind of use of the land;

(C)  use of the Geographic Information System in the program;

(D)  review of the results of the amendment to the 20-percent rule;

(E)  whether conserved parcels managed for ecological purposes should be enrolled in the program;

(F)  ongoing monitoring of the program.

(b)  The group shall submit a detailed report on its efforts on or before January 15, 2009 to the house committees on fish, wildlife and water resources and on agriculture and the senate committees on natural resources and energy and on agriculture.

Sec. 13.  EFFECTIVE DATE

This act shall take effect upon passage except for Sec. 8, which shall apply to grand lists of April 1, 2009 and after.

(Committee vote: 9-0-0)

Rep. Winters of Williamstown, for the Committee on Ways and Means, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Fish, Wildlife and Water Resources and when further amended as follows:

First:  In Sec. 2, 32 V.S.A. § 3756(e), in the second sentence, by striking “is received by the department” and inserting in lieu thereof “has been recorded by the municipality” and in the fourth sentence, by striking “$25.00” and inserting in lieu thereof “$30.00

Second:  In Sec. 8, 32 V.S.A. § 4111(e), in the second sentence, at the end before the period, by adding “or the adjustment of that value by the common level of appraisal” and in subsection (g), in the second sentence, at the end before the period, by adding “or the adjustment of that value by the common level of appraisal

(Committee vote: 10-0-1)

(For text see Senate Journal 3/25/08 – P. 448; 3/27/08 – P. 476 )

Rep. Hutchinson of Randolph, for the Committee on Appropriations, recommends the bill ought to pass in concurrence when amended as recommended by the Committees on Fish, Wildlife and Water Resources and Ways and Means.

(Committee vote: 9-1-1)

S. 345

An act relating to lowering the cost of workers’ compensation insurance.

Rep. Kitzmiller of Montpelier, for the Committee on Commerce, 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 AND PURPOSE

(a)  The general assembly finds the following:

(1)  The workers’ compensation program was established in 1915 to dispense with the concept of negligence by providing compensation to any employee who is injured on the job and to limit employers’ exposure to lawsuits for negligence in the workplace.  In addition, this program removed the need for injured employees to rely on tax-funded public assistance programs.

(2)  The National Council on Compensation Insurance, NCCI, the nation’s largest provider of workers’ compensation and employee injury data, recommends to the Vermont department of banking, insurance, securities, and health care administration proposed workers’ compensation voluntary market loss costs and assigned risk market rates by classification codes.

(3)  In March 2008, the department of banking, insurance, securities, and health care administration approved an average 4.2 percent decrease in both the voluntary market loss costs and assigned risk market rates, representing the largest decrease in a decade.  This decrease provided many Vermont employers, including sawmill, logging, and carpentry operations, hospitals, restaurants, and ski areas, with a modest decrease in their workers’ compensation premiums. Other Vermont employers with good safety records may enjoy even higher premium rate reductions.

(4)  The decrease is attributed mainly to a decline in workplace injuries.  Two major cost drivers of workers’ compensation premiums are the frequency of claims and the seriousness of claims.  Another cost driver is medical costs which are increasing more rapidly than the rate of inflation.  The duration of claims also adds to workers’ compensation costs.

(5)  Despite recent stability in workers’ compensation rates, the comparatively high cost of workers’ compensation insurance in Vermont remains an issue of great concern to many Vermont employers.

(6)  The increased implementation of safety training programs and measures by Vermont employers has reduced the frequency of workplace injuries, which is the most effective way to reduce workers’ compensation costs.

(7)  The fact that only 8.5 percent of the Vermont employers are in the residual market validates that workers’ compensation insurers perceive that the Vermont workers’ compensation program is working effectively.  The residual market is less than half the size it was five years ago indicating that many employers have found appropriate coverage in the voluntary market, in which employers can benefit from competition between carriers.  The lack of competition among carriers for certain industries such as dairy farming presents a disadvantage for those industries.

(8)   Workers’ compensation premiums for farmers are increasing while premiums for most other employer categories are going down. Farming is inherently more hazardous than many other industries, and the pool of farmers to spread the risk is small.  Agricultural workers have a higher frequency and suffer more serious work injuries than other workers, particularly those working on farms with hoofed animals.

(9)  It is important to provide incentives to improve farm safety through comprehensive training programs.  Extensive outreach and safety education will go a long way toward reducing workers’ compensation premium rates for farmers. The Vermont farm bureau, the agency of agriculture, the U.S. department of agriculture, the university of Vermont extension service, and other organizations are working to develop enhanced farm safety training programs.

(10)  A significant number of employers are improperly classifying employees as “independent contractors” either due to a lack of understanding or knowingly to avoid legal obligations under federal and state labor and tax laws governing payment of wages, unemployment insurance, workers’ compensation, and income and social security taxation.

(11)  Misclassification of employees as “independent contractors” adversely impacts the Vermont economy because it deprives workers of legal protections and benefits; reduces compliance with employment and safety standards; gives employers who misclassify an improper financial competitive advantage over law-abiding businesses; deprives the state of substantial revenue; and imposes indirect costs from decreased legitimate business activity and increased demand for social services.  A recent survey of workers’ compensation insurers conducted in compliance with No. 57 of the Acts of 2007 reveals that misclassification is a significant problem that may add 10 to 20 percent or more to the cost of workers’ compensation.

(12)  Historically, compliance and enforcement have been divided among various governmental entities, which reduces efficiency and effectiveness.  Improved cooperation, sharing information, and joint enforcement of serious violations would be effective approaches to reducing employer misclassification.

(13)  While a reduction in workers’ compensation benefits would lower workers’ compensation premiums across all class codes, this reduction would be at the expense of injured workers and provide little incentive for improving safety.

(b)  Therefore, it is the purpose of this act to address the problems of employee misclassification and miscoding, improve farm safety, and make other positive changes to the workers’ compensation laws that are intended to reduce the cost of workers’ compensation.

Sec. 2.  DEFINITIONS

For the purposes of this act:

(1)  “Misclassification” means improperly classifying employees as independent contractors for the purposes of workers’ compensation insurance or unemployment insurance, as the context dictates.

(2)  “Miscoding” means the improper categorization of employees under the national council on compensation insurance (NCCI) worker classification codes, which account for varying levels of risk attributable to different job types for the purposes of determining workers’ compensation insurance premiums.

* * * Fraud and Misclassification * * *

Sec. 3.  8 V.S.A. § 4750(b) is amended to read:

(b)  The commissioner may require an insurer to file annually its anti-fraud plan with the department and an annual summary of the insurer’s anti-fraud activities and results, including misclassification and miscoding.  A workers’ compensation insurer shall file an anti-fraud plan with the department of labor, including information about fraud investigations, referrals, or prosecutions involving Vermont workers’ compensation claims, misclassifications, and miscoding, if requested by the commissioner of labor.  Information regarding fraud investigations and referrals shall not be public unless the commissioner of labor or the attorney general commences administrative or criminal proceedings.

Sec. 4.  13 V.S.A. § 2031 is amended to read:

§ 2031.  INSURANCE FRAUD

(a)  Definitions.  As used in this section:

* * *

(2)  “Insurance policy” has the same meaning as in 8 V.S.A. § 4722(3) and includes a workers’ compensation policy issued pursuant to chapter 9 of Title 21.

(3)  “Insurer” has the same meaning as in 8 V.S.A. § 4901(2) and includes a workers’ compensation insurer pursuant to chapter 9 of Title 21.

(4)  “Person” means a natural person, company, corporation, unincorporated association, partnership, professional corporation, agency of government, or any other entity.

* * *

(g)  This section shall not apply to workers’ compensation fraud. Cases involving workers’ compensation fraud shall be prosecuted under section 2024 of this title.

(h)  The public policy of this state is that the standards of this section shall not apply or be introduced into evidence in any civil or administrative proceeding, whether to argue public policy, materiality, or for any other purpose.

Sec. 5.  CREATION OF WORKERS’ COMPENSATION EMPLOYEE

             CLASSIFICATION AND CODING TASK FORCE

(a)  There is created a workers’ compensation classification and coding task force to be composed of eight members to include the following:

(1)  The commissioner of labor or designee.

(2)  The commissioner of banking, insurance, securities, and health care administration or designee.

(3)  The attorney general or designee.

(4)  One member from the house committee on commerce to be appointed by the speaker.

(5)  One member of the senate committee on economic development, housing and general affairs to be appointed by the committee on committees.

(6)  A member from the insurance industry appointed by the American Insurance Association.

(7)  Two members appointed by the employer and employee members of the department of labor advisory counsel established in 21 V.S.A. § 1306 as follows:

(A)  One member who represents labor.

(B)  One member who represents management.

(b)  The task force shall meet as needed, and the legislative council shall provide administrative support.

(c)  For attendance at a meeting when the general assembly is not in session, the legislative members shall be entitled to the same per diem compensation and reimbursement of necessary expenses as provided to members of standing committees under 2 V.S.A. § 406.

(d)  The task force shall:

(1)  Investigate and analyze misclassification and miscoding of employees and offer recommendations to address the following:

(A)  Coordination, speed, and efficiency of communication among appropriate governmental entities and law enforcement organizations in the prevention, investigation, and enforcement of actual and suspected employee misclassification and miscoding.

(B)  Ways to improve outreach to and public education for businesses and labor to promote wider understanding of and compliance with the requirements for classifying and coding employees.  This outreach and education shall identify costs associated with misclassification and miscoding, help businesses identify incidents of misclassification and miscoding, and encourage filing of complaints and identification of potential violators.

(2)  The task force shall issue a progress report on or before January 1, 2009, and a final report on or before October 15, 2009.  Both reports shall be provided to the house committee on commerce and the senate committee on economic development, housing and general affairs.  The progress report shall outline the task force’s advancement in its investigation, and the final report shall outline the task force’s findings and recommendations regarding the following:

(A)  A description of progress made by state government to reduce the frequency of employee misclassification and miscoding, including the number of employers cited for violations related to misclassification and miscoding, a description of the types of misclassification and miscoding cited, the approximate number of employees affected, and the amount of wages, premiums, taxes, and other payments or penalties collected.

(B)  Administrative, legislative, or regulatory changes designed to reduce misclassification and miscoding of employees by improving public and business education, sharing information, and increasing the cooperation and efficiency of enforcement of employee misclassification.

(C)  A consistent, workable, and fair method for determining independent contractor status both in regard to workers’ compensation and unemployment compensation.

(D)  Any other issue relevant to reducing the incidences of employee misclassification and miscoding including a recommendation as to whether the task force should continue meeting and, if so, for how long.

Sec. 6.  FRAUD ENFORCEMENT STUDY; DEPARTMENT OF LABOR;

             DEPARTMENT OF BANKING, INSURANCE, SECURITIES, AND

              HEALTH CARE ADMINISTRATION

The department of labor in collaboration with the department of banking, insurance, securities, and health care administration and the attorney general shall perform an assessment of the fraud problem and develop proposals for legislation that will improve the effectiveness and enforcement of the current fraud statutes, including specific recommendations for improving enforcement, stimulating interagency cooperation including information sharing and prosecution, and creating a fraud unit complete with proposals for staffing, reporting, structure, and funding.  The department of labor shall issue a progress report on or before February 1, 2009, and a final report on or before October 15, 2009.  Both reports shall be provided to the governor, the house committee on commerce, and the senate committee on economic development, housing and general affairs.  The progress report shall outline the department of labor’s advancement in its assessment, and the final report shall contain a comprehensive outline of the assessment and legislative proposals.

* * * Safety Incentives * * *

Sec. 7.  WORKERS’ COMPENSATION DISCOUNTS; IMPROVED EFFICIENCY AND SAFETY; STUDY; DEPARTMENT OF LABOR; DEPARTMENT OF BANKING, INSURANCE, SECURITIES, AND HEALTH CARE ADMINISTRATION

(a)  The department of labor and the department of banking, insurance, securities, and health care administration in consultation with the department of labor advisory council established in 21 V.S.A. § 1306 shall investigate and, as appropriate, propose specific legislation and administrative rules that affect the following:

(1)  Providing workers’ compensation premium discounts for employers whose employees have demonstrated the successful implementation and effectiveness of a workplace safety certification program.

(2)  Providing rate reductions for employers who implement an effective return-to-work program or a drug and alcohol prevention program, or both.

(3)  Reviewing the fairness of the distribution of workers’ compensation liability for preexisting conditions.

(4)   Surveying other state workplace safety discount programs to evaluate their effectiveness in improving workplace safety as well as their impact on premiums paid by nonparticipants.

(5)  Improving the rate of return to employment for claimants receiving permanent disability benefits by examining best practices for returning injured employees to work that have been used successfully by providers, employers, and relevant programs in Vermont and other jurisdictions.

(6)  Assuring the application of best practices to the vocational rehabilitation system in order to improve its functionality and effectiveness in increasing employability.

(7)  Identifying and facilitating the implementation of industry best practices and other methods designed to increase substantially workplace safety.   

(b)  The department of labor shall issue a progress report on or before February 1, 2009, and a final report on or before October 15, 2009.  Both reports shall be provided to the governor, the house committee on commerce, and the senate committee on economic development, housing and general affairs.  The progress report shall outline the department of labor’s advancement in its study, and the final report shall contain a comprehensive outline of the study, as well as suggestions for legislation and administrative rulemaking.

* * * First‑Aid‑Only Injuries and Deductible Policies * * *

Sec. 8.  21 V.S.A. § 640(e) is added to read:

(e)  In the case of a work‑related, first‑aid‑only injury, the employer shall file the first report of injury with the department of labor.  The employer shall file the first report of injury with the workers’ compensation insurance carrier or pay the medical bill within 30 days.  If the employer contests a claim, a first report of injury shall be forwarded to the department of labor and the insurer within five days of notice.  If additional treatment or medical visits are required or if the employee loses more than one day of work, the claim shall be promptly reported to the workers’ compensation insurer, which shall adjust the claim.  “Work‑related, first‑aid‑only‑treatment” means any one-time treatment that generates a bill for less than $750.00 and for which the employee loses no time from work except for the time for medical treatment and recovery not to exceed one day of absence from work.

Sec. 9.  21 V.S.A. § 687(e) is added to read:

(e)  All insurance carriers authorized to write workers’ compensation insurance coverage in Vermont shall make available, at the written request of the employer, a workers’ compensation insurance rate that contains a deductible provision that binds the employer to reimburse the workers’ compensation insurer for at least the first $500.00 of benefits, medical or indemnity, due to an injured employee.  Claims shall be adjusted and paid by the insurer, and the employer shall reimburse the insurer for the amount of the deductible.

* * * Evaluation of Permanent Impairment * * *

Sec. 10.  EVALUATION OF PERMANENT IMPAIRMENT; USE OF AMA

                GUIDES

Notwithstanding 21 V.S.A. § 648(b), the department of labor shall continue to use the American Medical Association Guides to the Evaluation of Permanent Impairment, fifth edition, until such time as the commissioner of labor, in consultation with the department of labor advisory council established in 21 V.S.A. § 1306, has evaluated an analysis of the sixth edition performed by NCCI or other appropriate rating agency to assure that adoption of the sixth edition will not have a significantly detrimental impact on injured workers entitled to permanent disability benefits.  At least 60 days before adopting the sixth edition, the department shall submit a written report to the house committee on commerce and the senate committee on economic development, housing and general affairs, outlining the analysis that formed the basis for determining that use of the sixth edition will not have a significantly detrimental impact on injured workers entitled to permanent disability benefits.

* * * Computation of Average Weekly Wage and COLA Adjustment * * *

Sec. 11.  21 V.S.A. § 650(a) and (d) are amended to read:

(a)  Average weekly wages shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the 12 26 weeks preceding an injury; but where, by reason of the shortness of the time during which the worker has been in the employment, or the casual nature of the employment, or the terms of the employment, it is impracticable to compute the rate of remuneration, average weekly wages of the injured worker may be based on the average weekly earnings during the 12 26 weeks previous to the injury earned by a person in the same grade employed at the same or similar work by the employer of the injured worker, or if there is no comparable employee, by a person in the same grade employed in the same class of employment and in the same district.  If during the period of 12 26 weeks an injured employee has been absent from employment on account of sickness or suspension of work by the employer, then only the time during which the employee was able to work shall be used to determine the employee’s average weekly wage.  If the injured employee is employed in the concurrent service of more than one insured employer or self-insurer the total earnings from the several insured employers and self-insurers shall be combined in determining the employee’s average weekly wages, but insurance liability shall be exclusively upon the employer in whose employ the injury occurred.  The average weekly wage of a volunteer firefighter, volunteer rescue or ambulance worker, volunteer reserve police officer, or volunteer as set forth in subdivision 1101(b)(4) of Title 3, who is injured in the discharge of duties as a firefighter, rescue or ambulance worker, police officer, or state agency volunteer, shall be the employee’s average weekly wage in the employee’s regular employment or vocation but the provisions of section 642 of this title relative to maximum weekly compensation and weekly net income rates, shall apply.  For the purpose of calculating permanent total or permanent partial disability compensation, the provisions relating to the maximum and minimum weekly compensation rate shall apply.  In any event, if a worker at the time of the injury is regularly employed at a higher wage rate or in a higher grade of work than formerly during the 12 26 weeks preceding the injury and with larger regular wages, only the larger wages shall be taken into consideration in computing the worker’s average weekly wages.

(d)  Compensation computed pursuant to this section shall be adjusted annually on July 1, so that such compensation continues to bear the same percentage relationship to the average weekly wage in the state as computed under this chapter as it did at the time of injury.  Temporary total or temporary partial compensation shall first be adjusted on the first July 1 following the receipt of 26 weeks of benefits.

* * * Temporary Total Two‑Year Review * * *

Sec. 12.  21 V.S.A. § 642a is added to read:

§ 642a.  TEMPORARY TOTAL; INSURER REVIEW

The employer shall review every claim for temporary total disability benefits that continues for more than 104 weeks.  No later than 30 days after 104 weeks of continuous temporary total disability benefits have been paid, the employer shall file with the department and the claimant a medical report from a physician that evaluates the medical status of the claimant, the expected duration of the disability, and when or if the claimant is expected to return to work.  If the evaluating physician concludes that the claimant has reached a medical end result, the employer shall file a notice to discontinue.

* * * Vocational Rehabilitation * * *

Sec. 13.  21 V.S.A. § 641(a)(1) and (c) are amended to read:

(1)  The employer shall designate a vocational rehabilitation provider from a list provided by the commissioner to initially provide services. Thereafter, absent good cause, the employee may have only one opportunity to select another vocational rehabilitation provider from a list provided by the commissioner upon giving the employer written notice of the employee’s reasons for dissatisfaction with the designated provider and the name and address of the provider selected by the employee. 

(c)  Any vocational rehabilitation plan for a claimant presented to the employer shall be deemed valid if the employer was provided an opportunity to participate in the development of the plan and has made no objections or changes within 21 days after submission.

(d)  The commissioner may adopt rules necessary to carry out the purpose of this section.

Sec. 14.  VOCATIONAL REHABILITATION; DEPARTMENT OF LABOR

(a)  The commissioner of labor shall consult with the department of labor advisory council established in 21 V.S.A. § 1306 to review current practices and activities in the following areas:

(1)  Insurance carriers providing timely notification to the department of labor of all claimants who have been out of work for 90 consecutive days and the department requiring immediate administrative enforcement for any failure to provide that notification.

(2)  Ensuring that all lost‑time claimants receive simple, understandable notices of their rights to and how to request vocational rehabilitation services no later than their receipt of their first workers’ compensation indemnity benefits.

(3)  Enabling timely review and resolution of insurance coverage and payment issues and other disputes arising in the development and implementation of vocational rehabilitation services.

(4)  Developing performance standards to measure the success of vocational rehabilitation plans and other appropriate approaches to increase the number of injured workers returning to suitable employment.

(b)  The department shall issue a written report to the house committee on commerce and the senate committee on economic development, housing and general affairs on or before March 15, 2009.  The report shall outline any deficiencies discovered under subsection (a) of this section and any rules to be adopted to solve the deficiencies.

* * * Attorney Fees * * *

Sec. 15.  21 V.S.A. § 678 is amended to read:

§ 678. COSTS; ATTORNEY FEES

* * *

(b)  In appeals to the superior or supreme courts, if the claimant, if he or she prevails, he or she shall be entitled to reasonable attorney’s attorney fees as approved by the court, and interest at the rate of 12 percent per annum on that portion of any award the payment of which is contested.  Interest shall be computed from the date of the award of the commissioner.

* * *

(d)  In cases that are not resolved pursuant to a formal hearing, the commissioner may award reasonable attorney fees if the claimant has retained an attorney in response to an actual or effective denial of a claim, a hearing has been requested, and thereafter payments are made to the claimant as a result of the attorney’s efforts. 

* * * Assistance to Claimants * * *

Sec. 16.  ASSISTANCE TO CLAIMANT; BARGAINING AGENT;

                RULEMAKING; DEPARTMENT OF LABOR

The department of labor shall adopt a rule that permits a representative of the claimant’s bargaining unit to provide informal assistance to a workers’ compensation claimant in regard to any claim for workers’ compensation benefits in all aspects except at a formal hearing.

* * * Farm Safety Programs * * *

Sec. 17.  FARM SAFETY PROGRAMS; AGENCY OF AGRICULTURE,

               FOOD AND MARKETS; STUDIES

(a)  The secretary of agriculture, food and markets in collaboration with the department of labor and the University of Vermont extension service shall:

(1)  In collaboration with farm organizations and other relevant organizations develop farm safety and occupational health best management practices for the protection of farm workers and shall develop educational programs that will enable farm workers to understand and comply with those best management practices.

(2)  In collaboration with the department of banking, insurance, securities, and health care administration and representatives of the insurance industry investigate the feasibility of developing a safety certification program for farms.  The investigation shall consider approaches to providing a premium reduction for farmers certified under such a safety certification program.

(3)  In collaboration with the University of Vermont extension service rural and agricultural vocational rehabilitation program (RAVR) develop rural and agricultural vocational rehabilitation best management practices for use by vocational rehabilitation counselors.

(b)  Administrative support shall be provided by the legislative council and the joint fiscal office.

(c)  The results and recommendations resulting from the studies required under subsection (a) of this section shall be presented in a written report to the senate committees on agriculture and on economic development, housing and general affairs and to the house committees on agriculture and on commerce on or before February 1, 2009.

Sec. 18.  FIRST-AID-ONLY INJURIES AND DEDUCTIBLE POLICIES;

STUDY

By July 1, 2012, the department of labor shall report to the house committee on commerce and the senate committee on economic development, housing and general affairs on the utilization of 21 V.S.A. § 640(e) and 21 V.S.A. § 687(e).  The report shall summarize the frequency of use, the insurer experience, and realized cost savings of the provisions, as well as a recommendation of whether the provisions should be retained in statute, repealed, or terminated at a future point certain through the addition of a sunset provision.

(Committee vote: 9-2-0)

Rep. Keenan, for the Committee on Appropriations, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Commerce.

(Committee vote: 9-0-2)

Amendment to be offered by Rep. Bray of New Haven, Lawrence of Lyndon, Potter of Clarendon, Copeland-Hanzas of Bradford, Leriche of Hardwick, Marcotte of Coventry, Clarkson of Woodstock, Evans of Essex, Haas of Rochester, Jewett of Ripton, Malcolm of Pawlet, McCullough of Williston, Perry of Richford, Randall of Troy, Sharpe of Bristol, Keenan of St. Albans City, Fisher of Lincoln, Botzow of Pownal, Helm of Castleton, and Peltz of Woodbury to S. 345

     Move that the amendment, as proposed for amendment by the Committee on Commerce, be further amended by adding Sec. 19 to read as follows:

Sec. 19.  DEPARTMENT OF LABOR STUDY OF SAFETY STANDARDS

        FOR FORESTRY AND FOREST PRODUCTS INDUSTRIES

(a)  The general assembly finds that workers’ compensation insurance rates for the forestry and forest products industries are significantly higher than industry rates in neighboring states and significantly higher than those of the vast majority of other industries within the state.

(b)  The commissioner of labor, in consultation with the commissioner of forests, parks and recreation shall convene a working group to develop safety standards for the forestry and forest products industries that will help reduce injury rates and workers’ compensation insurance rates for the industries.  In developing the safety standards, the commissioner shall use the safety standards adopted in other states, including Maine, as a guide.  On or before January 15, 2009, the commissioner of labor shall report to the house and senate committees on commerce, the house and senate committees on natural resources and energy, and the house and senate committees on agriculture with the results of the working group.  The report shall include:

(1)  Proposed safety standards for the forestry and forest products industries;

(2)  A recommended methodology for implementing the proposed safety standards in the forestry and forest products industries;

(3)  An estimate of the cost to implement the proposed safety standards, including the cost to the department of labor, the department of forests, parks and recreation, insurance providers, and members of the forestry and forest products industries; 

(4)  A proposed schedule for implementing the proposed safety standards.

(c)  The working group shall consist of:

(1)  The commissioner of labor or his or her designee;

(2)  The commissioner of forests, parks and recreation or his or her designee;

(3)  One member of the senate, appointed by the senate pro tempore;

(4)  One member of the house of representatives, appointed by the speaker of the house;

(5)  Three members of the forestry and forest products industries appointed by the governor; and

(6)  Two members of the insurance industry, appointed by the governor.

(d)  The working group may elect a chair and vice chair and may hold public hearings.  The department of labor and the department of forests, parks and recreation shall provide support for the working group.

(e)  All members of the committee shall serve on the committee for the duration of the working group unless circumstances dictate a permanent replacement, except that the legislative members shall serve for the term of their election.  Vacancies shall be appointed in the same manner as an original appointment.

(f)  Legislative members of the working group are entitled to per diem payment and reimbursement for expenses pursuant to 2 V.S.A. § 406.

Amendment to be offered by Rep. McDonald of Berlin to S. 354

Moves to amend the proposal of amendment of the Committee on Commerce as follows:

First:  In Sec. 1, by striking subdivision (13) in its entirety

Second:  In Sec. 1, by adding a new subdivision (6) and renumbering the following subdivisions to be numerically sequential.  New subdivision (6) shall read as follows:

(6)  The cost of workers’ compensation insurance can be lowered considerably without disrupting medical and indemnity benefits to injured workers through a realignment of benefits that promote return to work programs aimed at gainful employment in the following ways:

(A)  Increasing and improving workplace safety.

(B)  Conforming benefits to correspond with national norms.

(C) Improving accountability.

(D)  Improving enforcement of workers’ compensation fraud.

(E)  Promoting return-to-work programs by modifying rehabilitation laws to encourage employee participation.

Second:  By adding a new Sec. 11a to read as follows:

Sec. 11a.  21 V.S.A. §601(18) is amended to read:

(18) "Maximum weekly compensation" shall mean means a sum of money equal to 150 125 percent of the average compensation, rounded to the next higher dollar.

(For text see Senate Journal 3/25/08 – P. 437; 3/27/08 – P. 472 )

S. 357

An act relating to domestic violence.

Rep. Lippert, for the Committee on Judiciary, 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

(a)  The general assembly finds that domestic violence directly affects the lives of Vermont’s citizens each year.  Domestic violence is a pervasive community problem which requires a comprehensive approach by the state, the public, and community providers to prevent, respond to, and remedy its devastating effects.  Domestic violence is consistently the leading cause of homicides in Vermont each year.  According to the 2008 Vermont Fatality Review Commission Report data covering 1994–2007, 50 percent of all Vermont homicides during the past 13 years were related to domestic violence.  In 2007, 64 percent of all Vermont homicides were domestic-violence-related. Reported occurrences of domestic violence continue to rise, and many incidents continue to go unreported.  The 16-member programs of the Vermont Network Against Domestic and Sexual Violence responded to 15,259 hotline crisis calls and served 8,337 victims of domestic violence in 2006.  An increasing number of families in Vermont are homeless due to domestic violence.  The member programs of the Vermont Network Against Sexual and Domestic Violence sustained a 27-percent increase in bed-nights in 2007. 

(b)  The general assembly recognizes the importance of specific intervention programs for domestic violence offenders in breaking the generational cycle of domestic violence.  The general assembly recommends that persons convicted of domestic assault be referred to appropriate intervention programs provided by the department of corrections or certified by the Vermont council on domestic violence.  In instances where certified programs are not available, alternative programs should be provided with a focus placed on victim safety and offender accountability.

Sec. 2.  12 V.S.A. § 5131 is amended to read:

§ 5131.  DEFINITIONS

As used in this chapter:

* * *

(5)  “Sexually assaulted the plaintiff” means that the defendant engaged in conduct that meets elements of lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602, sexual assault as defined in 13 V.S.A. § 3252, or aggravated sexual assault as defined in 13 V.S.A. § 3253, use of a child in a sexual performance as defined in 13 V.S.A. § 2822, or consenting to a sexual performance as defined in 13 V.S.A. § 2823 and that the plaintiff was the victim of the offense.

* * *

Sec. 3.  12 V.S.A. § 5134 is amended to read:

§ 5134.  EMERGENCY RELIEF

(a)  In accordance with the Vermont Rules of Civil Procedure, a person other than a family or household member as defined in 15 V.S.A. § 1001(2) may file a complaint for a temporary order against stalking or sexual assault. Such complaint shall be filed during regular court hours.  The plaintiff shall submit an affidavit in support of the order.  The court may issue a temporary order under this chapter ex parte, without notice to the defendant, upon motion and findings by the court that the defendant has stalked or sexually assaulted the plaintiff.  An order may be granted requiring the defendant to refrain from stalking or sexually assaulting the plaintiff and to refrain from interfering with the plaintiff’s personal liberty  The court may order the defendant to stay away from the plaintiff or the plaintiff’s children, or both, and may make any other such order it deems necessary to protect the plaintiff or the plaintiff’s children, or both.

* * *

Sec. 4.  13 V.S.A. § 1030 is amended to read:

§ 1030.  VIOLATION OF ABUSE PREVENTION ORDER OR AN ORDER

              AGAINST STALKING OR SEXUAL ASSAULT

(a)  A person who commits an act prohibited by a court or who fails to perform an act ordered by a court in violation of an abuse prevention order issued under chapter 21 of Title 15 or chapter 69 of Title 33, or an order against stalking or sexual assault issued under chapter 178 of Title 12, after the person has been served notice of the contents of the order as provided in those chapters; or a foreign abuse prevention order or an order against stalking or sexual assault issued by a court in any other state, federally recognized Indian tribe, territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia; shall be imprisoned not more than one year or fined not more than $5,000.00, or both.

(b)  A person who is convicted of a second or subsequent offense under this section or is convicted of an offense under this section and has previously been convicted of domestic assault under section 1042 of this title, first degree aggravated domestic assault under section 1043 of this title, or second degree aggravated domestic assault under section 1044 of this title shall be imprisoned not more than three years or fined not more than $25,000.00, or both.

* * *

Sec. 5.  13 V.S.A. § 1042 is amended to read:

§ 1042.  DOMESTIC ASSAULT

Any person who attempts to cause or willfully or recklessly causes bodily injury to a family or household member, or willfully causes a family or household member to fear imminent serious bodily injury shall be imprisoned not more than one year 18 months or fined not more than $5,000.00, or both.

Sec. 6.  13 V.S.A. § 1044 is amended to read:

§ 1044.  SECOND DEGREE AGGRAVATED DOMESTIC ASSAULT

(a)  A person commits the crime of second degree aggravated domestic assault if the person:

(1)  commits the crime of domestic assault and causes bodily injury to another person and such conduct violates:

(A)  specific conditions of a criminal court order in effect at the time of the offense imposed to protect that other person;

(B)  a final abuse prevention order issued under section 1103 of Title 15;

(C)  an order against stalking or sexual assault issued under chapter 178 of Title 12; or

(D)  an order against abuse of a vulnerable adult issued under chapter 69 of Title 33.

(2)  commits a second or subsequent offense of domestic assault, which causes bodily injury the crime of domestic assault; and

(A)  has a prior conviction within the last ten years for violating an abuse prevention order issued under section 1030 of this title; or

(B)  has a prior conviction for domestic assault under section 1042 of this title.

(b)  A person who commits the crime of second degree aggravated domestic assault shall be imprisoned not more than five years or fined not more than $10,000.00, or both.

(c)  Conduct constituting the offense of second degree aggravated domestic assault under this section shall be considered a violent act for the purpose of determining bail.

Sec. 7.  13 V.S.A. § 1031 is added to read:

§ 1031.  INTERFERENCE WITH ACCESS TO EMERGENCY SERVICES

A person who, during or after the commission of a crime, willfully prevents or attempts to prevent a person from seeking or receiving emergency medical assistance, emergency assistance from a third party, or emergency assistance from law enforcement shall be imprisoned not more than one year or fined not more than $5,000.00 or both.

Sec. 8.  13 V.S.A. § 2602 is amended to read:

§ 2602.  LEWD OR LASCIVIOUS CONDUCT WITH CHILD

(a)(1)  No person shall willfully and lewdly commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of 16 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of such person or of such child.

(2)  This section shall not apply if the person is less than 19 years old, the child is at least 15 years old, and the conduct is consensual.

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

(1)  For a first offense, imprisoned not less than two years and not more than 15 years, and, in addition, may be fined not more than $5,000.00, or both.

(2)  For a second offense, imprisoned not less than five years and a maximum term of life, and, in addition, may be fined not more than $25,000.00, or both.

(3)  For a third or subsequent offense, imprisoned not less than ten years and a maximum term of life, and, in addition, may be fined not more than $25,000.00, or both.

* * *

(e)  Any prior conviction for sexual assault or aggravated sexual assault shall be considered a prior offense for purposes of sentencing enhancement.  This section shall not apply to a person who was convicted of sexual assault committed when the person was younger than 19 years of age and which involved consensual sex with a child at least 15 years of age.

Sec. 9.  15 V.S.A. § 668a is amended to read:

§ 668a.  ENFORCEMENT OF VISITATION

(a)  When a noncustodial parent who is ordered to pay child support or alimony and who is awarded visitation rights fails to pay child support or alimony, the custodial parent shall not refuse to honor the noncustodial parent’s visitation rights.

(b)  When a custodial parent refuses to honor a noncustodial parent’s visitation rights, the noncustodial parent shall not fail to pay any ordered child support or alimony.

(c)  If a custodial parent refuses to honor a noncustodial parent’s visitation rights, the court shall enforce such rights unless it finds good cause for the failure or that a modification of the visitation rights is in the best interests of the child.  Unless restoration of the visitation is not in the best interests of the child, enforcement of the visitation rights shall include the restoration of the amount of visitation improperly denied.  When a party files a motion for enforcement of parent-child contact under this subsection, the court shall conduct a hearing within 30 days of service of the motion.

(d)  A person who violates this section may be punished by contempt of court or other remedies as the court deems appropriate, including awarding attorney’s fees and costs to the prevailing party.

(e)(1)  If a custodial parent refuses to honor a noncustodial parent’s visitation rights without good cause, the court may modify the parent-child contact order if found to be in the best interests of the child.  Good cause shall include a pattern or incidence of domestic or sexual violence, a history of failure to honor the visitation schedule agreed to in the parent child contact order, or reasonable fear for the child or the custodial parent’s safety.

Good cause shall include:

(A)  a pattern or incidence of domestic or sexual violence;

(B)  a reasonable fear for the child’s or the custodial parent’s safety; or

(C)  a history of failure to honor the visitation schedule agreed to in the parent-child contact order.

(2)  A custodial parent, upon a showing of good cause as defined in subdivision (1)(A) or (B) of this subsection, may receive an ex parte order suspending a noncustodial parent’s visitation rights until a court hearing is held. A hearing shall be held within 10 days from the issuance of the order.  

(f)  All parent-child contact orders issued by the family court in connection with a divorce or parentage proceeding shall bear the following statement:  “A PERSON WHO FAILS TO COMPLY WITH ALL TERMS OF THE CURRENT ORDER GOVERNING PARENT-CHILD CONTACT MAY BE SUBJECT TO CONTEMPT OF COURT CHARGES. THE COURT MAY IMPOSE ADDITIONAL REMEDIES, INCLUDING A MODIFICATION OF THE CURRENT PARENT-CHILD CONTACT ORDER IF FOUND TO BE IN THE BEST INTERESTS OF THE CHILD.” 

Sec. 10.  15 V.S.A. § 1103 is amended to read:

§ 1103.  REQUESTS FOR RELIEF

(a)  Any family or household member may seek relief from abuse by another family or household member on behalf of him or herself or his or her children by filing a complaint under this chapter.  The plaintiff shall submit an affidavit in support of the order.

(b)  Except as provided in section 1104 of this title, the court shall grant relief only after notice to the defendant and a hearing.  The plaintiff shall have the burden of proving abuse by a preponderance of the evidence.

(c)  If the court finds that the defendant has abused the plaintiff and that there is a danger of further abuse, the court shall make such orders as it deems necessary to protect the plaintiff, the children, or both, which may include the following: (1)  The court shall make such orders as it deems necessary to protect the plaintiff, the children, or both, if the court finds that the defendant has abused the plaintiff, and:

(A)  there is a danger of further abuse; or

(B)  the defendant is currently incarcerated and has been convicted of one of the following:  murder, attempted murder, kidnapping, domestic assault, aggravated domestic assault, sexual assault, aggravated sexual assault, stalking, aggravated stalking, lewd or lascivious conduct with child, use of a child in a sexual performance, or consenting to a sexual performance.

(2)  In determining whether there is a danger of further abuse, the court may consider the defendant’s past conduct within the prior ten years as relevant evidence, including instances of prior abuse as defined in section 1101 of Title 15, or threatening behavior as defined in section 5131 of Title 12.

(3)  The court order may include the following:

(1)(A)  an order that the defendant refrain from abusing the plaintiff, his or her children or both and from interfering with their personal liberty, including restrictions on the defendant’s ability to contact the plaintiff or the children in person, by phone or by mail and restrictions prohibiting the defendant from coming within a fixed distance of the plaintiff, the children, the plaintiff’s residence, or other designated locations where the plaintiff or children are likely to spend time;

(2)(B)  an order that the defendant immediately vacate the household and that the plaintiff be awarded sole possession of a residence;

(3)(C)  a temporary award of parental rights and responsibilities in accordance with the criteria in section 665 of this title;

(4)(D)  an order for parent-child contact under such conditions as are necessary to protect the child or the plaintiff, or both, from abuse.  An order for parent-child contact may if necessary include conditions under which the plaintiff may deny parent-child contact pending further order of the court;

(5)(E)  if the court finds that the defendant has a duty to support the plaintiff, an order that the defendant pay the plaintiff’s living expenses for a fixed period of time not to exceed three months;

(6)(F)  if the court finds that the defendant has a duty to support the child or children, a temporary order of child support pursuant to chapter 5 of this title, for a period not to exceed three months.  A support order granted under this section may be extended if the relief from abuse proceeding is consolidated with an action for legal separation, divorce, or parentage;

(7)(G)  an order concerning the possession, care and control of any animal owned, possessed, leased, kept, or held as a pet by either party or a minor child residing in the household.

* * *

Sec. 11.  15 V.S.A. § 1105 is amended to read:

§ 1105.  SERVICE

(a)  A complaint or ex parte temporary order or final order issued under this chapter shall be served in accordance with the rules of civil procedure and may be served by any law enforcement officer.  Abuse orders shall be served at the earliest possible time and shall take precedence over other summonses and orders.  Orders shall be served in a manner calculated to insure the safety of the plaintiff.  Methods of service which include advance notification to the defendant shall not be used.  The person making service shall file a return of service with the court stating the date, time and place at which the order was delivered personally to the defendant.  A defendant who attends a hearing held under section 1103 or 1104 of this title at which a temporary or final order under this chapter is issued, and who receives notice from the court on the record that the order has been issued, shall be deemed to have been served.

* * *

Sec. 12.  15 V.S.A. § 665a is added to read:

§ 665a.  CONDITIONS OF PARENT-CHILD CONTACT IN CASES

              INVOLVING DOMESTIC VIOLENCE

(a)  If within the prior ten years, one of the parents has been convicted of domestic assault or aggravated domestic assault against the other parent, or has been found to have committed abuse against a family or household member, as defined in section 1101 of this title, the court shall award parent-child contact to that parent under such conditions as it finds necessary and appropriate to ensure the safety and protection of the child and the parent who is a victim of domestic violence.

(b)  In a parent-child contact order issued under subsection (a) of this section, a court may:

(1)  order an exchange of a child to occur in a protected setting;

(2)  order parent-child contact supervised by another person or agency;

(3)  order the perpetrator of domestic violence to participate in, to the satisfaction of the court, a program of intervention for perpetrators, where available, or other designated counseling as a condition of the visitation;

(4)  if alcohol or drugs were involved in the domestic abuse, order the perpetrator of domestic violence to abstain from being under the influence of alcohol or controlled substances without a prescription during the visitation and for 24 hours preceding parent-child contact;

(5)  order the perpetrator of domestic violence to pay a fee to defray the costs of supervised parent-child contact, provided that the perpetrator can afford to pay the fee;

(6)  prohibit overnight parent-child contact;

(7)  impose any other condition that is deemed necessary or appropriate to provide for the safety of the child, the victim of domestic violence, or another family or household member.

(c)  Whether or not parent-child contact is allowed, the court may order the address of the child and the victim to be kept confidential.

(d)  If a court allows a family or household member to supervise

parent-child contact, the court shall establish conditions to be followed during

parent-child contact.

Sec. 13.  15 V.S.A. chapter 21, subchapter 4 is added to read:

Subchapter 4.  Vermont Council on Domestic Violence

§ 1171.  CREATION OF VERMONT COUNCIL ON DOMESTIC
              VIOLENCE

There is created the Vermont council on domestic violence.  The council shall provide leadership for Vermont’s statewide effort to eradicate domestic violence.

§ 1172.  PURPOSE; POWERS; DUTIES

(a)  The council shall:

(1)  facilitate opportunities for dialogue, advocacy, education, and support among state agencies, advocacy groups, and the public;

(2)  collect, review, and analyze data and information relating to domestic violence;

(3)  provide assistance in developing effective responses to domestic violence, including model policies and procedures, prevention and education initiatives, and domestic-violence-related programs for the criminal justice and human services sectors; specifically, the council shall work with the department of state’s attorneys and the department of corrections to develop recommendations for practice in evidence-based prosecution, risk assessment with domestic violence offenders, the use of deferred sentences in domestic violence cases, standardized probation conditions for domestic violence offenders, appropriate programming options for domestic violence offenders, and strategies for addressing victims of domestic violence who commit crimes as a result of the coercion of a batterer;

(4)  recommend changes in state programs, laws, administrative regulations, policies, and budgets related to domestic violence;

(5)  establish and maintain standards for intervention programs for perpetrators of domestic violence, and develop a process for certifying that programs are complying with the standards;

(6)  review and comment upon legislation relating to domestic violence introduced in the general assembly at the request of any member of the general assembly or on its own initiative; and

(7)  study the issue of employment discrimination against victims of domestic violence and suggest model workplace protections and policies.

(b)  The council shall collaborate with the Vermont fatality review commission to develop strategies for implementing the commission’s recommendations.

(c)  The council shall make a biennial report to the general assembly, the governor, the supreme court, and the people of Vermont explaining all relevant data about domestic violence collected by the council, and evaluating the strengths and weaknesses of Vermont’s current domestic violence intervention response strategies.

§ 1173.  COMPOSITION AND MEETINGS

(a)  The council shall consist of the following members to be appointed as follows:

(1)  To be appointed by the governor:

(A)  one member of the public who shall be a survivor of domestic violence;

(B)  a representative from the same-sex domestic violence service provider community;

(C)  a representative from the deaf and disability service provider community;

(D)  a representative from the department of state’s attorneys;

(E)  a prosecutor from one of the STOP Domestic Violence units;

(F)  a member of the Vermont clergy;

(G)  one member of the public representing the interests of children exposed to domestic violence.

(2)  To be appointed by the chief justice of the Vermont supreme court:

(A)  five members of the judiciary, one of whom may be a magistrate, one of whom may be an assistant judge, and one of whom may be a court manager;

(B)  one guardian ad litem;

(C)  a representative of Vermont Legal Aid;

(D)  a representative of the Vermont bar experienced in family law.

(3)  The following members:

(A)  the secretary of human services or designee;

(B)  the director of the Vermont criminal information center or designee;

(C)  the defender general or designee;

(D)  the attorney general or designee;

(E)  the executive director of the Vermont center for crime victims services or designee;

(F)  the director of the Vermont network against domestic and sexual violence or designee;

(G)  the executive director of the criminal justice training council or designee;

(H)  the executive director of the Vermont commission on women or designee;

(I)  a representative from each county domestic violence task force;

(J)  a representative from Vermont’s supervised visitation coalition;

(K)  a representative from the Vermont police chiefs’ association;

(L)  a representative from the Vermont sheriffs’ association;

(M)  a representative from the Vermont coalition of batterer intervention services;

(N)  the commissioner of the department for children and families or designee;

(O)  the commissioner of the department of public safety or designee;

(P)  the commissioner of the department of corrections or designee; and

(Q)  the commissioner of the department of education or designee.

(b)  The council may establish any committees necessary to carry out its duties.

(c)  The council shall meet at least quarterly to conduct its business.

Sec. 14.  20 V.S.A. § 2365 is added to read:

§ 2365.  DOMESTIC VIOLENCE TRAINING

(a)  In order to remain certified, law enforcement officers shall receive by 2010 at least eight hours of domestic violence training in a program approved by the Vermont criminal justice training council and the Vermont network against sexual and domestic violence.

(b)  Law enforcement officers shall receive domestic violence retraining every two years in a program approved by the Vermont criminal justice training council.

(c)  The Vermont police academy shall employ a domestic violence trainer.

Sec. 15.  33 V.S.A. § 4917 is amended to read:

§ 4917.  MULTI-DISCIPLINARY TEAMS; EMPANELING

(a)  The commissioner of social and rehabilitation services, or his or her designee may empanel a multi-disciplinary team or a special investigative multi-task force team or both 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 or special investigative multi-task force 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 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 or special investigative

multi-task force team shall be authorized in writing and shall specifically list the members of the team.  This list may be amended from time to time as needed as determined by the commissioner or his or her designee.

Sec. 16.  STUDY OF HOUSING DISCRIMINATION AGAINST VICTIMS

               OF DOMESTIC AND SEXUAL VIOLENCE

(a)  A committee is established to study the issue of housing discrimination against victims of domestic and sexual violence.

(b)  The committee shall consist of:

(1)  one member appointed by the agency of human services;

(2)  one member appointed by the Vermont public housing agency;

(3)  one member appointed by the Vermont apartment owners’ association;

(4)  one member appointed by Vermont legal aid;

(5)  one member appointed by the Champlain valley office of economic opportunity;

(6)  one member appointed by the Vermont department of housing and community affairs;

(7)  one member appointed by the Vermont human rights commission; and

(8)  one member appointed by the Vermont network against domestic and sexual violence.

(c)  The committee shall convene its first meeting not later than

September 1, 2008.  The executive director of the Vermont human rights commission is designated to convene the initial meeting.  The Vermont human rights commission shall provide administrative support to the committee.  The committee may utilize the expertise of nonmembers in its work.  The committee shall report its findings to the senate committees on judiciary and on economic development, housing and general affairs and the house committees on judiciary and on general, housing and military affairs no later than December 15, 2008.  The report shall include an analysis of policies adopted by other states and recommendations to the general assembly about how to respond to the problem of housing discrimination.

Sec. 17.  STUDY OF THE HARASSMENT AND BULLYING OF
               STUDENTS IN VERMONT SCHOOLS

(a)  A committee is established to study the issue of harassment and bullying in Vermont schools.  The committee shall examine:

(1)  the need for further training of educators and school staff to recognize and appropriately respond to the harassment and bullying of students;

(2)  the need for legislative enactments to address cyber-bullying;

(3)  state laws and regulations regarding harassment and bullying;

(4)  school policies and procedures regarding harassment and bullying; and

(5)  any other issues regarding harassment and bullying that the committee deems relevant.

(b)  The committee shall also study the issue of cyber-bullying of Vermont students and recommend measures to address this growing and destructive phenomenon.

(c)  The committee shall consist of:

(1)  one member appointed by the Vermont department of education;

(2)  one member appointed by the Vermont school boards association;

(3)  one member appointed by the Vermont superintendents association;

(4)  one member appointed by the Vermont principals association;

(5)  one member appointed by the Vermont national education association;

(6)  one member appointed by the Vermont human rights commission;

(7)  one member appointed by the Vermont commission on women;

(8)  one member appointed by outright Vermont;

(9)  one member appointed by the Vermont ecumenical council;

(10)  one member appointed by the ALANA community organization;

(11)  one member appointed by the Vermont office of attorney general;

(12)  one law enforcement officer knowledgeable in the investigation of computer crime to be appointed by the Vermont department of public safety;

(13)  two members with expertise and experience in school issues, one to be appointed by the speaker of the house and one to be appointed by the president pro tempore of the senate;

(14)  two youths, one to be appointed by the speaker of the house and one to be appointed by the pro tempore of the senate; and

(15)  one member appointed by the American Civil Liberties Union of Vermont.

(d)  The committee shall convene its first meeting no later than

September 1, 2008.  The executive director of the Vermont human rights commission is designated to convene the initial meeting.  The Vermont human rights commission shall provide administrative support to the committee.  The committee may utilize the expertise of non-members in its work. 

(e)  The committee shall report its findings to the senate committees on judiciary and on education, and to the house committees on judiciary and on education no later than December 15, 2008.  The report shall include a strategic plan to reduce the prevalence of harassment and bullying in Vermont schools.

Sec. 18.  13 V.S.A. § 7282 is amended to read:

§ 7282.  ASSESSMENT

(a)  In addition to any penalty or fine imposed by the court or judicial bureau for a criminal offense or any civil penalty imposed for a traffic violation, including any violation of a fish and wildlife statute or regulation, violation of a motor vehicle statute, or violation of any local ordinance relating to the operation of a motor vehicle, except violations relating to seat belts and child restraints and ordinances relating to parking violations, the clerk of the court or judicial bureau shall levy an additional fee of:

* * *

(8)(A)  For any offense or violation committed after June 30, 2006, but before July 1, 2008, $26.00, of which $18.75 shall be deposited in the victims’ compensation special fund and $2.25 shall be deposited into the criminal justice training council special fund established in section 2363 of Title 20.

(B)  For any offense or violation committed after June 30, 2008, $39.00, of which $18.75 shall be deposited in the victims’ compensation special fund and $2.25 shall be deposited into the criminal justice training council special fund established in section 2363 of Title 20.

* * *

Sec. 19.  32 V.S.A. § 1431 is amended to read:

§ 1431.  FEES IN SUPREME, SUPERIOR, DISTRICT, FAMILY, AND

  ENVIRONMENTAL COURTS

* * *

(b)(1)  Prior to the entry of any cause in the superior court or environmental court there shall be paid to the clerk of the court for the benefit of the state a fee of $225.00 in lieu of all other fees not otherwise set forth in this section.

(2)  Prior to the entry of any divorce or annulment proceeding in the family court there shall be paid to the clerk of the court for the benefit of the state a fee of $225.00 $275.00 in lieu of all other fees not otherwise set forth in this section; however, if the divorce or annulment complaint is filed with a stipulation for a final order acceptable to the court, the fee shall be $75.00.

* * *

Sec. 20.  32 V.S.A. § 1712 is amended to read:

§ 1712.  TOWN CLERKS

Town clerks shall receive the following fees in the matter of vital registration:

(1)  For issuing and recording a marriage or civil union license, $23.00 $35.00 to be paid by the applicant, $8.00 $10.00 of which sum shall be retained by the town clerk as a fee and $15.00 $25.00 of which sum shall be paid by the town clerk to the state treasurer in a return filed quarterly upon forms furnished by the state treasurer and specifying all fees received by him or her during the quarter.  Such quarterly period shall be as of the first day of January, April, July, and October.

* * *

Sec. 21.  8 V.S.A. § 4080f is amended to read:

§ 4080f.  CATAMOUNT HEALTH

(a)  As used in this section:

* * *

(9)  “Uninsured” means an individual who does not qualify for Medicare, Medicaid, the Vermont health access plan, or Dr. Dynasaur, and had no private insurance or employer-sponsored coverage that includes both hospital and physician services within 12 months prior to the month of application, or lost private insurance or employer-sponsored coverage during the prior 12 months for any of the following reasons:

(A)  the The individual’s private insurance or employer-sponsored coverage ended because of:

(i)  loss of employment, unless the employer has terminated its employees for the primary purpose of discontinuing employer-sponsored coverage and establishing their eligibility for Catamount Health;

(ii)  death of the principal insurance policyholder;

(iii) divorce or dissolution of a civil union;

(iv)  no longer qualifying as a dependent under the plan of a parent or caretaker relative; or

(v)  no longer receiving COBRA, VIPER, or other state continuation coverage; or .

(B)  college- College- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, or otherwise terminated studies.

(C)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisor, member of the clergy, or health care provider, as defined in 18 V.S.A. § 9432(8).  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent by the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the requested information.

Sec. 22.  33 V.S.A. § 1973 is amended to read:

§ 1973.  VERMONT HEALTH ACCESS PLAN

(a)  The agency of human services or its designee shall establish the Vermont health access plan (VHAP) pursuant to a waiver of federal Medicaid law.  The plan shall remain in effect as long as a federal 1115 demonstration waiver is granted or renewed.

(b)  The purpose of the Vermont health access plan is to provide health care coverage for uninsured or underinsured low income Vermonters.  The agency of human services or its designee shall establish rules regarding eligibility and administration of the plan.

(c)  An individual who has been enrolled in an approved

employer-sponsored insurance plan with premium assistance under section 1974 of this title shall not be subject to a 12-month waiting period before becoming eligible for the Vermont health access plan as provided for in subdivision 1974(d)(1).

(d)  An individual who has been enrolled in Catamount Health, with or without premium assistance, shall not be subject to a 12-month waiting period before becoming eligible for the Vermont health access plan.

(e)  For purposes of this section, “uninsured” means:

(1)  an An individual with household income, after allowable deductions, at or below 75 percent of the federal poverty guideline for households of the same size; .

(2)  an An individual who had no private insurance or

employer-sponsored coverage that includes both hospital and physician services within 12 months prior to the month of application; or .

(3)  an An individual who lost private insurance or employer-sponsored coverage during the prior 12 months for any of the following reasons:

(A)  the The individual’s coverage ended because of:

(i)  loss of employment;

(ii)  death of the principal insurance policyholder;

(iii)  divorce or dissolution of a civil union;

(iv)  no longer qualifying as a dependent under the plan of a parent or caretaker relative; or

(v)  no longer receiving COBRA, VIPER, or other state continuation coverage; or .

(B)  college- College- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, or otherwise terminated studies.

(C)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisor, member of the clergy, or health care provider, as defined in 18 V.S.A. § 9432(8).  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent by the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the requested information.

Sec. 23.  33 V.S.A. § 1974 is amended to read:

§ 1974.  EMPLOYER-SPONSORED INSURANCE; PREMIUM

              ASSISTANCE

* * *

(c)  Uninsured individuals; premium assistance.

(1)  For the purposes of this subsection:

* * *

(B)  “Uninsured” means an individual who does not qualify for Medicare, Medicaid, the Vermont health access plan, or Dr. Dynasaur and had no private insurance or employer-sponsored coverage that includes both hospital and physician services within 12 months prior to the month of application, or lost private insurance or employer-sponsored coverage during the prior 12 months for the following reasons:

(i)  the individual’s coverage ended because of:

(I)  of employment, unless the employer has terminated its employees for the primary purpose of discontinuing employer-sponsored coverage and establishing their eligibility for Catamount Health;

(II)  death of the principal insurance policyholder;

(III)  divorce or dissolution of a civil union;

(IV)  no longer qualifying as a dependent under the plan of a parent or caretaker relative; or

(V)  no longer receiving COBRA, VIPER, or other state continuation coverage; or .

(ii)  college- College- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, or otherwise terminated studies.

(iii)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisor, member of the clergy, or health care provider, as defined in 18 V.S.A.

§ 9432(8).  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent by the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the required information.

* * *

 

Sec. 24.  33 V.S.A. § 1982 is amended to read:

§ 1982.  DEFINITIONS

As used in this subchapter:

(1)  “Catamount Health” means the health benefit plan offered under section 4080f of Title 8.

(2)  “Uninsured” means an individual who does not qualify for Medicare, Medicaid, the Vermont health access plan, or Dr. Dynasaur and had no private insurance or employer-sponsored coverage that includes both hospital and physician services within 12 months prior to the month of application, or lost private insurance or employer-sponsored coverage during the prior 12 months for the following reasons:

(A)  the individual’s private insurance or employer-sponsored coverage ended because of:

(i)  loss of employment, unless the employer has terminated its employees for the primary purpose of discontinuing employer-sponsored coverage and establishing their eligibility for Catamount Health;

(ii)  death of the principal insurance policyholder;

(iii)  divorce or dissolution of a civil union;

(iv)  no longer qualifying as a dependent under the plan of a parent or caretaker relative; or

(v)  no longer receiving COBRA, VIPER, or other state continuation coverage; or  .

(B)  college- College- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, or otherwise terminated studies.

(C)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisor, member of the clergy, or health care provider, as defined in 18 V.S.A.

§ 9432(8).  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent by the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the requested information.

* * *

Sec. 25.  APPROPRIATIONS

(a)  The amount of $1,147,000.00 from the general fund shall be available in FY 2009 for the center for crime victim services for the Vermont network against domestic and sexual violence.  This amount shall be used to fund domestic violence prevention programs and services in order to break the generational cycle of domestic violence and to support the victims of domestic and sexual violence.

(b)  Of the appropriation in subsection (a) of this section, the amount of $76,805.00 from the general fund shall be available for the Vermont police academy to employ a domestic violence training and curriculum development coordinator.

Sec. 26.  PILOT PROGRAM

The general assembly recognizes the significant impact of domestic violence on victims and their children.  The department for children and families, division of economic services, may expand emergency and general assistance pilot programs and may develop at least one pilot program specifically addressing the needs of victims of domestic violence.

(Committee vote: 10-0-1)

Rep. Howard of Rutland City, for the Committee on Ways and Means, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Judiciary.

(Committee vote: 10-0-1)

Rep. Heath of Westford, for the Committee on Appropriations, recommends the bill ought to pass in concurrence when amended as recommended by the Committees on Judiciary and Ways and Means and when further amended as follows:

First:  In Sec. 21, 8 V.S.A. § 4080f, in subdivision (a)(9), by inserting “; or” in subdivision (B) following “or otherwise terminated studies” and by striking subdivision (C) in its entirety and inserting a new subdivision (C) as follows:

(C)(i)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency of human services with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisory, member of the clergy, or health care provider, as defined in section 9402 of Title 18.  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent of the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the requested information.

(ii)  Subdivision (i) of this subdivision (C) shall take effect upon issuance by the Centers for Medicare and Medicaid Services of approval of an amendment to the Global Commitment for Health Medicaid Section 1115 Waiver allowing for a domestic violence exception to the Catamount Health waiting period.

Second:  In Sec. 22, 33 V.S.A. § 1973, in subdivision (e)(3), by inserting

; or” in subdivision (B) following “or otherwise terminated studies” and by striking subdivision (C) in its entirety and inserting a new subdivision (C) as follows:

(C)(i)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency of human services with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisory, member of the clergy, or health care provider, as defined in section 9402 of Title 18.  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent of the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the requested information.

(ii)  Subdivision (i) of this subdivision (C) shall take effect upon issuance by the Centers for Medicare and Medicaid Services of approval of an amendment to the waiver set forth in subsection (a) of this section allowing for a domestic violence exception to the VHAP waiting period.

Third:  In Sec. 23, 33 V.S.A. § 1974, in subdivision (c)(1)(B), by inserting “; or” in subdivision (B)(ii) following “or otherwise terminated studies” and by striking subdivision (B)(iii) in its entirety and inserting a new subdivision (B)(iii)as follows:

(iii)(I)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency of human services with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisory, member of the clergy, or health care provider, as defined in section 9402 of Title 18.  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent of the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the requested information.

(II)  Subdivision (I) of this subdivision (B)(iii) shall take effect upon issuance by the Centers for Medicare and Medicaid Services of approval of an amendment to the waiver set forth in subsection (f) of this section allowing for a domestic violence exception to the premium assistance program waiting period.

Fourth:  In Sec. 24, 33 V.S.A. § 1982, by inserting “; or” in subdivision (2)(B) following “or otherwise terminated studies” and by striking subdivision (2)(C) in its entirety and inserting a new subdivision (C) as follows:

(C)(i)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency of human services with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisory, member of the clergy, or health care provider, as defined in section 9402 of Title 18.  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent of the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the requested information.

(ii)  Subdivision (i) of this subdivision (C) shall take effect upon issuance by the Centers for Medicare and Medicaid Services of approval of an amendment to the Global Commitment for Health Medicaid Section 1115 Waiver allowing for a domestic violence exception to the Catamount Health premium assistance waiting period.

* * *

Fifth:  By adding a Sec. 27 as follows:

Sec. 27.  DOMESTIC VIOLENCE EXCEPTION TO HEALTH CARE

            WAITING PERIOD

The secretary of human services shall request approval from the Centers for Medicare and Medicaid Services for an amendment to the Global Commitment for Health Medicaid Section 1115 Waiver to implement the domestic violence exception to the health care waiting periods set forth in Secs. 21, 22, 23, and 24 of this act.

(Committee vote: 10-0-1)

S. 364

An act relating to a comprehensive vertical audit and reliability assessment of the Vermont Yankee nuclear plant.

Rep. Klein of East Montpelier, for the Committee on Natural Resources and Energy, 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.  LEGISLATIVE INTENT AND PURPOSE

(a)  No. 160 of the Acts of the 2005 Adj. Sess. (2006) reconfirmed the obligation and authority of the general assembly to examine the reliability of the nuclear power station of Entergy Nuclear Vermont Yankee (ENVY) in order to determine if it should be authorized to operate in this state beyond the expiration of its current operating license on March 21, 2012.

(b)  The general assembly finds that Entergy Nuclear Vermont Yankee has had one of the highest percentage power increases of any plant in the country and now is applying for a 20-year life extension beyond its 40-year design.  It is therefore the intent of the general assembly to determine on behalf of the people of the state of Vermont the reliability issues associated with operating ENVY for an additional 20 years after its scheduled closure in 2012.

(c) The general assembly finds that Entergy Nuclear Vermont Yankee provides approximately one-third of the power used by the citizens of Vermont.  It has been a reliable generation source for Vermont.  However, in 2007 it experienced two operational difficulties that required that it reduce power or go to zero power production.  When the station reduces power output or does not produce power, Vermont utilities have to purchase market power, often at a greater price to our citizens. It is in the State’s economic interests to ensure that the station is a reliable source of power.

(d)  It is the purpose of this act to provide for a thorough, independent, and public assessment of the reliability of the systems, structures, and components of the Entergy Nuclear Vermont Yankee facility.  The comprehensive reliability assessment required by this act shall:

(1)  Achieve the goals and objectives set out in Sec. 2 of this act;

          (2)  Assess the reliability of specific systems identified in Sec. 3 of this        act;

(3)  Address the specific audit inquiries with respect to those systems, as set out in Sec. 4 of this act; and

(4)  Employ audit methodologies as set out in Sec. 5 of this act.

Sec. 2.  GOALS AND OBJECTIVES

Giving due consideration to the following areas consistent with Vermont’s legitimate state interests, the goals and objectives of an independent comprehensive reliability assessment of the Vermont Yankee nuclear facility are to:

(1)  Assess the conformance of the facility to its design and licensing bases, for operating at up to 120 percent of its originally intended power production level, including appropriate reviews at the plant's site and its corporate offices;

(2)  Identify all relevant deviations, exemptions, or waivers, or any combination of these from any regulatory requirements applicable to Vermont Yankee and from any regulatory requirements applicable to new nuclear reactors, and verify whether adequate operating margins are retained despite the cumulative effect of any deviations, exemptions, or waivers for the present licensed power level for the proposed period of license extension;

(3)  Assess the facility's operational performance, and the facility’s reliability for continued power production, giving risk perspectives where appropriate;

(4)  Evaluate the effectiveness of licensee self-assessments, corrective actions, and improvement plans; and

(5)  Determine the cause or causes of any significant operational shortcomings identified and draw conclusions on overall performance.

Sec. 3.  SPECIFIC SYSTEMS TO BE ASSESSED

(a) The comprehensive reliability assessment shall include an in-depth inspection of at least the seven whole plant systems listed in this subsection. 

(1)  An electrical system:  the back-up or stand-by electrical system, including the diesel generators, batteries, the Vernon dam tie, and all associated electrical connections and controls.

(2)  An emergency system:  the emergency core cooling system, including both high- and low-pressure injection systems.

(3)  A mechanical system:  the condensate feed water system, including the condenser.

(4)  The primary containment system, including all associated systems, structures, and components, such as dry well shell, torus supports, residual heat removal system, isolation valves, containment spray, and adequate suction.

(5)  A heat removal system:  the cooling towers and alternate cooling system, including both cooling tower cells used for normal cooling and those that are emergency-related towers.

(6)  A cooling system dependent upon Connecticut River water: alternate cooling system and emergency service water.

(7) An underground piping system that carries radionuclides.

(b) Additional systems may be selected for audit by the public oversight panel established in Sec. 6 of this act in consultation with the department of public service.                   (c)  In addition, the audit shall include an investigation and assessment of a generic systems issue:  cable separation — separation of safety systems, including physical and electrical separation.

Sec. 4.  SPECIFIC AUDIT INQUIRIES

The audit of each system shall include physical and documentation examination of the entire system, including each system’s relevant components.  Specific inquiries to be addressed shall include, but are not limited to, the following:

(1)  Initial conditions.  What were the codes and standards with which

the system was designed to comply and what was the design basis?  Is the design of the system in keeping with the expected initial conditions and its design basis?

(2)  Procurement.  If there were procurement changes, was a new set of review calculations completed for those procurement changes and were those procurement changes compared against the original design and all of its calculations?

(3)  Installation - “as-built.”  Do plant records adequately represent the as-built condition of the plant?  Are all changes reflected in all documents from the design basis through as-built and through current operations?

(4)  Operation.  What changes or compensations have been made to accommodate unanticipated operations outcomes?  Have those changes, compensations, and accommodations been duly noted in procedural manuals and logs?  Have root cause analyses been conducted to reflect unanticipated outcomes?  If root cause analyses were not conducted in any particular instance, why not?  If root cause analyses were not conducted in any particular instance, have any unanticipated system operations outcomes been duly corrected or compensated in all safety and reliability operations and procedures?

(5)  Testing.  When systems have undergone periodic tests, what have been the results?  Are resulting corrective actions reflected in all documents from design through as-built through current operations?

(6)  Inspection.  When systems have undergone periodic inspections, have those inspections been successful?  Are the resulting changes reflected in all documents from design through as-built through current operations?

(7)  Maintenance.  Has the management system for aging components been adequately maintained to assure the components meet the design basis?  Is there a track-change system in place to determine what components have been reviewed, repaired, or replaced?  Is there an accurate system in place to record when those reviews and repairs were completed?  Is there a program of operations or a schedule of operations that specifically delineates what aging management systems, as identified in the industry-wide database, are being reviewed and when?  Is adequate time allowed in each outage for aging management review and adequate maintenance?  Are the aging factors discovered actually being repaired in a timely manner?

(8)  Repairs.  Have repairs been performed which assure the system will operate as expected?  Are all repairs completed as soon as possible?  Are repairs sufficiently in-depth to effectively invest in the plant and its operational systems?

(9)  Modifications.  Do all modifications to the system also comply with the system's original design basis?  Have all procedure manuals and operations manuals been updated to reflect the impact of any modifications made to any system?

(10)  Redesign.  Have changes made to the plant since its original construction been reviewed to ensure that safety margins have not been reduced?  Has each component modified for uprate been reviewed to assure that operational margins have not been reduced and to assure that design basis redundancy has not been compromised?   Have any repairs, maintenance, or modifications impacted the original design of the redundant safety systems?  Are all systems still “single failure proof”?

(11)  Seismic analysis.  When was the most recent modern,

computer-generated, finite element seismic analysis performed on each of the seven vertical slice systems examined in the audit?  Does ENVY remain capable of withstanding design basis events beyond the original 40-year design life of the plant to reflect the age-related changes in the plant and weight changes from all modifications during the first 35 years of operation?

(12)  Training.  Has an adequate review and evaluation of operator training and operating procedures been conducted?  Has each change been adequately reflected in the operations procedures?  Have operations personnel been adequately trained in all modifications to all systems?  Are operations personnel frequently updated and trained regarding any troublesome issues other plants have uncovered which may compromise operations and safe shutdown?

(13)  Corrective action programs.  What corrective action programs have been established for each of the systems audited?  Have the corrective actions taken been properly integrated in the corrective action program?  Have corrective actions been taken in a timely manner?  Where recorded items have been deferred, have they been appropriately evaluated for risks and potential consequences of deferral and appropriately tracked while awaiting resolution?

Sec. 5.  DESIGN AND METHODOLOGY

     (a) The department of public service, in consultation with the public oversight panel, shall design the work plan and establish a time frame for the comprehensive reliability assessment.  The following methodology shall be employed unless with respect to any specific system, component or procedure the department, in consultation with the oversight panel, determines that employing such methodology would be inefficient or ineffective: 

          (1)  Vertical investigation.  The audit shall commence with an examination of the initial start-up conditions of the Vermont Yankee plant and examine the subsequent history of its modifications, maintenance, repairs, and current operations.  Such vertical inspection shall be made of each whole plant system selected for assessment.

          (2)  Horizontal investigation.  At any point in the vertical inspection at which an emergency-related function, the operability, the design, the performance, or aging issues, or other unanalyzed or nonconforming conditions are encountered, a thorough horizontal or lateral exploration shall be conducted to determine extent-of-condition and root cause with attention to evaluating licensee performance in problem identification and resolution, testing, engineering, in-service inspection, and maintenance.

(b)  In addition to the vertical and horizontal inspections prescribed in this section, the department in consultation with the public oversight panel may include in the design of the audit the investigation or assessment of any other system, component, or procedure utilizing any other methodology that the department and oversight panel deem necessary to provide a complete and comprehensive evaluation of the reliability of the Vermont Yankee nuclear facility.

Sec. 6.  PUBLIC OVERSIGHT PANEL

(a)  The comprehensive reliability assessment required by this act shall be conducted with the maximum amount of transparency and public oversight and involvement.  To that end, a public oversight panel is created to include five members who have demonstrated expertise in nuclear technology or nuclear regulation to be selected as follows:

(1)  The speaker of the house, the president pro tempore of the senate, and the governor shall jointly appoint three members; and

(2)  Two members shall be selected jointly by the three members appointed pursuant to subdivision (1) of this subsection.

(b)  The public oversight panel shall be appointed as soon as possible after the effective date of this act.  If after twenty-one days from this act’s effective date the speaker, president pro tem and the governor fail to reach consensus on any of the three joint appointments, the Public Service Board shall make that appointment. The panel shall elect a chair and vice chair from among its members, and upon its request, the panel shall have the assistance of the department of public service for administrative support.

(c) The public oversight panel shall have access to all records and documents consulted and generated in developing and conducting the comprehensive reliability assessment and to records and documents generated in any other audit of the Vermont Yankee Nuclear facility pertinent to the comprehensive reliability assessment. Because the public oversight panel will be reviewing and discussing proprietary and security related documents, the public oversight panel shall not be considered a public body pursuant to 1 V.S.A. § 310 nor shall it be subject to the access to public records statutes embodied in 1 V.S.A. §§ 315-320. After the public oversight panel publicly reports its findings and evaluation to the general assembly as required in subsection (d) of this section, the panel may be subject to public access requests for material relied upon in making its findings and report with redactions of proprietary or security information as needed.

(d)  No later than January 30, 2009, the public oversight panel shall publicly report its findings and evaluation to the general assembly for the purpose of informing the legislature in making its determination whether the Entergy Nuclear Vermont Yankee plant should be authorized to operate in the state beyond the expiration of its current license on March 21, 2012.

(e)  The evaluation and recommendations of the public oversight panel and the report and findings of the audit shall be made available to the director of public advocacy of the department of public service, and may be used by the director of public advocacy as deemed appropriate by the department to represent the interests of the public in any proceedings before the public service board relating to a certificate of public good for relicensing ENVY for operation beyond March 21, 2012 or for decommissioning, or other related proceedings.

Sec. 7.  AUDIT INSPECTION TEAM

The department of public service in consultation with the public oversight panel shall select an audit inspection team of a sufficient number of qualified consultants, experts, and technicians as necessary to conduct all or any part of the comprehensive reliability assessment required by this act. The consultants, experts and technicians selected shall not at any time during the three years prior to the effective date of this act have worked for or at the Vermont Yankee facility, Entergy Nuclear Vermont Yankee, or any other nuclear power plant owned and operated by Entergy Nuclear Vermont Yankee or any of its affiliates.

Sec. 8.  Expenses and Costs

(a)  The members of the public oversight panel are entitled to receive compensation as determined jointly by the speaker of the house, the president pro tempore of the senate, and the secretary of administration.  Members of the public oversight evaluation panel shall also be entitled to reimbursement for actual and necessary expenses related to the performance of their duties.  The compensation and costs incurred by the public oversight panel shall be charged to the petitioner for a license extension under the provisions of

30 V.S.A. §§ 20 and 21.

(b)  The compensation and costs incurred by the audit inspection team and other expenses incurred in the conduct of the comprehensive reliability assessment shall be charged to the petitioner for a license extension under the provisions of 30 V.S.A. §§ 20 and 21.

Sec. 9.  EFFECTIVE DATE

(a) This act shall take effect from passage.

(b) Notwithstanding the July 1, 2008 commencement date in 30 V.S.A. §248(e)(2), added by No. 160 of the Acts of  2006, the Public Service Board may at any time after the passage of this act commence proceedings on any petition to operate a nuclear plant beyond the date permitted in its existing certificate of public good.

(Committee vote: 11-0-0)

Rep. Keenan of St. Albans City, for the Committee on Appropriations, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Natural Resources and Energy.

(Committee vote: 9-0-2)       No Senate Amendments

Favorable

S. 227

An act relating to angel investors.

Rep. Botzow of Pownal, for the Committee on Commerce, recommends that the bill ought to pass in concurrence.

(Committee Vote: 10-0-1)

S. 270

An act relating to the agreement among the states to elect the president by national popular vote.

Rep. Sweaney of Windsor, for the Committee on Government Operations, recommends that the bill ought to pass in concurrence.

(Committee Vote: 8-3-0)

Senate Proposals of Amendment

H. 11

     An act relating to the commissioner of health.

     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.  18 V.S.A. § 104 is amended to read:

§ 104.  COMMISSIONER OF HEALTH; DUTIES

(a)  The secretary shall appoint a commissioner of health, as provided in 3 V.S.A. § 3051, who shall be either a physician licensed to practice medicine and surgery in this state or a health care professional who has at least a master’s degree in public health or a related health care field and who, in addition, has had educational and practical experience in the field of public health. 

(b)  The commissioner may delegate such powers and assign such duties to members of the department as may be deemed appropriate and necessary for the proper execution of the provisions of this title.  If the commissioner is not a physician licensed to practice medicine and surgery in this state, the commissioner shall fill an existing exempt position within the department by appointing a chief medical officer who shall be a physician licensed to practice medicine and surgery in this state and who shall report to the commissioner.

H. 94

     An act relating to retail sales and taxing of specialty beers.

     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.  7 V.S.A. § 2(11), (14) and (20) are amended to read:

(11)  “Hotels”: a first class hotel as determined by the liquor control board Specialty beer” means a malt beverage that contains more than eight percent alcohol and not more than 16 percent alcohol by volume at 60 degrees Fahrenheit.  

(14)  “Malt beverages”:  all fermented beverages of any name or description manufactured for sale from malt, wholly or in part, or from any substitute therefor therefore, known as beer, porter, ale, and stout, containing not less than one percent nor more than eight 16 percent of alcohol by volume at 60 degrees fahrenheit Fahrenheit.  However, if such a beverage has an alcohol content of more than six percent and not more than eight percent and has a terminal specific gravity of less than 1.009, it shall be deemed to be a spirit and not a malt beverage.  The holder of the certificate of approval or the manufacturer shall certify to the liquor control board the terminal specific gravity of the beverage when the alcohol content is more than six percent and not more than eight percent.           

(20)  “Spirits”:  beverages for sale containing more than one percent of alcohol obtained by distillation, by chemical synthesis, or through concentration by freezing; and vinous beverages containing more than 16 percent of alcohol; and all vermouths of any alcohol content; malt beverages containing more than eight 16 percent of alcohol or more than six percent of alcohol if the terminal specific gravity thereof is less than 1.009; in each case measured by volume at 60 degrees fahrenheit Fahrenheit.

Sec. 2.  7 V.S.A. § 421(a) is amended to read:

§ 421.  TAX ON MALT AND VINOUS BEVERAGES

(a)  Every bottler and wholesaler shall pay to the commissioner of taxes the sum of 26 and one-half cents per gallon for every gallon or its equivalent of malt beverage containing not more than six percent of alcohol by volume at 60 degrees fahrenheit sold by them to retailers in the state and the sum of 55 cents per gallon for each gallon of malt beverage containing more than six percent and not more than eight percent of alcohol by volume at 60 degrees fahrenheit and each gallon of vinous beverages sold by them to retailers in the state and shall also pay to the liquor control board all fees for bottler’s and wholesaler’s licenses.

Sec. 3.  STUDY OF FLAVORED MALT BEVERAGES; DEPARTMENT OF  LIQUOR CONTROL

(a)  The department of liquor control shall study and identify best practices for the marketing, sale, and taxation of flavored malt beverages, commonly called “alcopops,” malt based beverages containing other ingredients such as flavored distilled spirits, and “alcohol energy drinks,”  which are malt beverages continuing other ingredients such as caffeine.  The department shall consider the following:

(1)  Whether these beverages should be considered spirits, malt beverages, or a completely separate category of alcoholic beverages.

(2)  Whether these beverages and other flavored malt beverages should be distributed by wholesalers or the department.

(3)  The impact and future implications of these beverages in regard to controlling underage drinking and other public health and safety concerns.

(4)  Whether these beverages should be taxed at the lower malt beverage rate, the higher spirits rate, or a different tax rate.

(5)  Legislative and regulatory activities undertaken by other states in regard to these beverages.

(b)  The department shall complete the study and issue a written report of its findings, conclusions, and recommendations on or before January 1, 2009.  The report shall be provided to the house committees on general, housing and military affairs, and on ways and means and the senate committees on economic development, housing and general affairs and on finance.

H. 290

     An act relating to underground utility damage prevention system.

     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.  30 V.S.A. § 7001(4) is amended and (11), (12), (13), and (14) are added to read:

(4)  "Excavation activities" means activities involving the removal of earth, rock or other materials in the ground, disturbing the subsurface of the earth, or the demolition of any structure, by the discharge of explosives or the use of powered or mechanized equipment, including but not limited to digging, trenching, blasting, boring, drilling, hammering, post driving, wrecking, razing, or tunneling, within 100 feet of an underground utility facility.  Excavation activities shall not include the tilling of the soil for agricultural purposes, routine gardening outside easement areas and public rights-of-way, activities relating to routine public highway maintenance, or the use of hand tools by a company, or the company’s agent or a contractor working under the agent’s direction, to locate or service the company’s facilities, provided the company has a written damage prevention program.

(11)  “Powered or mechanized equipment” means equipment that is powered or energized by any motor, engine, or hydraulic or pneumatic device and that is used for excavation or demolition work.

(12)  “Hand tools” means tools powered solely by human energy.

(13)  “Verified” means the location and depth has been physically determined.

(14)  “Damage prevention program” means a program established to ensure employees involved in excavation activities are aware of and utilize appropriate and safe excavating practices.

Sec. 2.  30 V.S.A. § 7004(e) is added to read:

(e)  Notice of excavation activities shall be valid for an excavation site until one of the following occurs:

(1)  The excavation is not completed within 30 days of the notification;

(2)  The markings become faded, illegible, or destroyed; or

(3)  The company installs new underground facilities in a marked area still under excavation.

Sec. 3.  30 V.S.A. § 7006b is amended to read:

§ 7006b.  EXCAVATION AREA PRECAUTIONS

Any person engaged in excavating activities in the approximate location of underground utility facilities marked pursuant to section 7006 of this title shall take reasonable precautions to avoid damage to underground utility facilities, including but not limited to any substantial weakening of the structural or lateral support of such facilities or penetration, severance or destruction of such facilities.  When excavation activities involve horizontal or directional boring, the person engaged in excavation activities shall expose underground facilities to verify their location and depth, in a safe manner, at each location where the work crosses will cross a facility and at reasonable intervals when paralleling an underground facility.  Powered or mechanized equipment may only be used within the approximate location where the facilities have been verified.

Sec. 4.  30 V.S.A. § 7008 is amended to read:

§ 7008.  PENALTIES

(a)  Vermont Digsafe Program.  Any person who violates any provisions of sections 7004, 7006a, 7006b, or 7007 of this title shall be subject to a civil penalty of up to $1,000.00, in addition to any other remedies or penalties provided by law or any liability for actual damages.  Notices of probable violation shall be issued within 12 months from the date the department receives the underground facility damage report, unless an ongoing investigation requires an extension of time.

(b)  Any company which does not mark the location of its underground facilities as required by section 7006 or 7006a of this title shall be subject to a civil penalty of up to $1,000.00.  Notices of probable violation shall be issued within 12 months from the date the department receives the underground facility damage report, unless an ongoing investigation requires an extension of time.

* * *

(e)  Any person who violates any provisions of sections 7004 through 7007 of this title as to an underground gas distribution or transmission facility shall also be subject to the civil penalties described in section 2816 of this title.  However, a person who has been assessed a civil penalty pursuant to section 2816 of this title shall not be subject to the payment of an assessed penalty under the provisions of this section for the same violation.

Sec. 5.  30 V.S.A. § 2816(a) is amended to read:

(a)  Gas Pipeline Safety Program.  Any person who violates any statute, rule, regulation or order of the public service board relating to safety standards or safety practices applicable to transportation of gas through gas pipeline facilities subject to the jurisdiction of the public service board is subject to a civil penalty of not more than $10,000.00 $100,000.00 for each violation for each day that the violation persists.  However, the maximum civil penalty shall not exceed $500,000.00 $1,000,000.00 for any related series of violations.  The penalty may be imposed by the board after notice to the offending person of the alleged violations and opportunity for hearing.

Sec. 6.  REPEAL

30 V.S.A. § 7004(d)(2) is repealed January 1, 2010.

After passage, the title of the bill is to be amended to read:

     AN ACT RELATING TO THE VERMONT DIG SAFE PROGRAM AND THE FEDERAL GAS PIPELINE SAFETY PROGRAM.

H. 306

     An act relating to telemarketing.

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

First:  By adding two new sections to be numbered Secs. 1 and 2 to read as follows:

Sec. 1.  FINDINGS AND PURPOSE

(a)  Findings. 

(1) Title 9 V.S.A. section 2464, which is part of the Consumer Fraud Act, was enacted in 1997 in response to complaints about certain telemarketing practices.  Specifically, a fraudulent telemarketer, often based in another country, would charge a Vermonter’s bank account.  The only piece of information needed to do this was the code number at the bottom of the consumer’s check, known as a “MICR” code.  Armed with that information, the telemarketer would hire a U.S.-based third-party processor to (a) print up unsigned checks, called “demand drafts,” to deposit into the telemarketer’s own bank account; or (b) electronically withdraw funds from the consumer’s account, using an “automated clearing house” or “ACH” debit.

(2) Although such debits are often used, they are usually not reported because many consumers do not know that their bank accounts can be charged without their permission.  One court action brought by the Attorney General’s Office (along with several other states and the Federal Trade Commission) against a third-party processor began with a single complaint from an elderly consumer’s daughter who found an unauthorized charge on her mother’s bank statement, which in turn led to the discovery of a handful of other related complaints and over 100 times that number of Vermont victims.

(3) Fraudulent telemarketers obtain bank account numbers by tricking consumers, by promising goods and services that they do not deliver, and by buying lists of past victims’ account information.

(4) Existing law provides protections for Vermont consumers against this type of fraud.  If a telemarketer wishes to charge a Vermonter’s bank account using a demand draft, the telemarketer must first obtain written permission.  If the telemarketer wishes to charge the consumer’s account with an ACH debit, the telemarketer can only do so based on an inbound call from the consumer, or based on a prior business relationship with the consumer, but in either event, the telemarketer must also confirm the consumer’s consent, typically with a digital voice recording.  Third-party processors hired by telemarketers must follow the same standards.

(5) Nonetheless, there are two gaps in existing law.  The first is that when telemarketers confirm a consumer’s consent to an ACH debit, they usually do so by recording just a short “verification” portion of their telemarketing call, which has little information on it and often does not reveal what the consumer is consenting to; recording the entire call instead would resolve this problem.  The second gap is that there may be a delay of years before a fraudulent telemarketer’s debits to Vermonters’ bank accounts are discovered, so it is important for state investigators to be able to check telemarketing and processor records going back more than the two years that they are now required to be kept.

Sec. 2.  9 V.S.A. § 2464(a)(4) is amended to read:

(4) "Telemarketer" means any person who initiates telephone calls to, or who receives telephone calls from, a consumer in connection with a plan, program, or campaign to market goods or services. The term "telemarketer" does not include: any person who initiates telephone calls to or who receives telep

* * *

(C)  A hone calls from a consumer in connection with collection of an amount due for goods or services previously provided to the consumer.

(D)  Any company registered with and regulated by the public service board.

(E)  Any other category of persons that the attorney general may exempt by rule consistent with the purposes of this section.

     And by renumbering the remaining sections of the bill to be numerically correct.

Second:  In renumbered Sec. 3, 9 V.S.A. § 2464(a)(1)(B), at the end after the period by adding Isolated and inadvertent failure to comply with this record-keeping requirement shall not give rise to liability under this subsection, provided that the telemarketer has in place reasonable procedures designed to comply with this requirement.

Third:  In renumbered Sec. 5, in 9 V.S.A. § 2464(e), by striking out the following: “federally-insured” and inserting in lieu thereof the following: federally insured and by striking out subdivision (1) in its entirety and inserting in lieu thereof a new subdivision (1) to read as follows:

(1)  fail to obtain, before processing the transaction, any prior written authorization required by subdivision (b)(2) of this section or any tape recording or copy of a written confirmation required by subdivision (b)(3) of this section as part of the consumer’s express oral authorization; or

 

H. 330

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

     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.  REPEAL

(a)  As of July 1, 2008, subchapter 9 of chapter 61 of Title 24, relating to municipal ordinances for trailer parks, is repealed.

(b)  A municipal ordinance adopted under subchapter 9 of chapter 61 of Title 24 prior to July 1, 2008 shall remain in effect until July 1, 2010, unless repealed by the municipality prior to that date.

H. 432

     An act establishing Juneteenth National Freedom Day.

The Senate proposes to the House to amend the bill in Sec. 1, subdivision (4), by striking out the words “designation as a state holiday” and inserting in lieu thereof the words to be designated as a day of commemoration

H. 515

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

     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.  FINDINGS

The general assembly finds:

(1)  According to a 2004 study by the U.S. Environmental Protection Agency, titled “International Mercury Market Study and the Role and Impact of U.S. Environmental Policy,” more than 10 percent of the estimated mercury reservoir in the United States is in thermostats.

(2)  In 2000, thermostat manufacturers General Electric, Honeywell, and White Rodgers established the Thermostat Recycling Corporation (TRC) that runs the program for collecting mercury‑containing thermostat discarded in Vermont.  Under the TRC program, thermostat wholesalers volunteer to place bins where heating, ventilation, and air‑conditioning (HVAC) contractors can discard thermostats.

(3)  The manufacturers of mercury‑containing thermostats, with the cooperation of the agency of natural resources, should be encouraged to submit a single unified plan for the collection of mercury‑containing thermostats, the cost of which should be appropriately apportioned between participating manufacturers.

Sec. 2.  10 V.S.A. § 7102 is amended to read:

§ 7102.  Definitions

As used in this chapter:

* * *

(6)(A)  “Manufacturer” means any person, firm, association, partnership, corporation, governmental entity, organization, combination, or joint venture that (i) produces a mercury‑added product, or (ii) serves as an importer or domestic distributor of a mercury‑added product produced outside the United States.

(B)  This definition shall not apply to retailers for whom importing is not their primary business.

(C)  In the case of a multi‑component mercury‑added product, the manufacturer is the last manufacturer to produce or assemble the product.

(D)  In the case of mercury‑containing thermostats, the manufacturer is the original equipment manufacturer.

* * *

(16)  “Mercury‑containing thermostat” means a product or device that uses a  mercury switch to sense and control room temperature through communication with heating, ventilating, or air‑conditioning equipment.  “Mercury‑containing thermostat” includes thermostats used to sense and control room temperature in residential, commercial, industrial, and other buildings but does not include a thermostat used to sense and control temperature as part of a manufacturing process.

(17)  “Person” means any individual, corporation, partnership, cooperative, association, firm, sole proprietorship, governmental agency, or other entity.

(18)  “Thermostat retailer” means a person who sells thermostats of any kind directly to homeowners or other nonprofessionals through any selling or distribution mechanism, including but not limited to sales using the internet or catalogues.  A retailer may also be a wholesaler if it meets the definition of wholesaler.

(19)  “Thermostat wholesaler” means a person that is engaged in the distribution and wholesale sale of heating, ventilation, and air‑conditioning components to contractors who install heating, ventilation, and air‑conditioning components.

Sec. 3.  10 V.S.A. § 7107 is amended to read:

§ 7107.  DISCARDED MERCURY‑ADDED PRODUCTS

(a)  Management of discarded mercury‑added products.  After July 1, 2007, discarded mercury‑added products, except for mercury‑added button cell batteries, products containing mercury‑added button cell batteries as their only mercury‑added components, and photographic film shall be managed as provided in this section.

(1)  Disposal ban.  No person shall knowingly dispose of mercury‑added products in a solid waste landfill or combustor.

(2)  Source separation.  Except as otherwise provided by this section, every person who discards solid waste shall separate mercury‑added products from that solid waste for management as hazardous waste or universal hazardous waste, according to all applicable state and federal regulations.  Any contractor who replaces or removes mercury‑added products shall assure that any discarded mercury‑added product is subject to proper separation and management as a hazardous waste or universal hazardous waste.  Any contractor who replaces a mercury‑containing thermostat from a building shall deliver the mercury‑containing thermostat to an appropriate collection location for recycling.
* * *

(d)  Removal of mercury‑added components.  The agency shall conduct a study and make recommendations for requirements to remove effectively and feasibly mercury‑added components in products prior to disposal or recycling processes.  This report shall identify removal and collection systems at public and private solid waste management facilities and salvage businesses, manufacturer‑sponsored or operated collection and take‑back programs; and other feasible programs.  The agency will identify costs mechanisms for financing such programs.  The study shall address removal and collection of mercury‑added components in automobiles and the collection of switches, relays, and gauges in home appliances, heating devices, and other equipment.  The agency shall report to the general assembly no later than January 15, 2006.  The agency shall conduct a study, and in consultation with the advisory committee on mercury pollution, make recommendations on methods to increase recycling of mercury thermostats.  The study shall identify incentive‑based programs and other feasible programs, including costs and mechanisms for financing such programs. The agency shall report to the general assembly no later than January 15, 2008.

* * *

Sec. 4.  10 V.S.A. § 7116 is added to read:

§ 7116.  MERCURY‑CONTAINING THERMOSTATS

(a)  Manufacturer responsibility.  Each thermostat manufacturer that has offered for final sale, sold at final sale, or has distributed mercury containing thermostats in Vermont shall, individually or collectively:

(1)  Not later than October 1, 2008 submit a plan to the agency for approval that describes a collection and financial incentive program for mercury thermostats.  The program contained in this plan shall ensure that the following take place:

(A)  that an effective education and outreach program shall be developed and shall be directed toward wholesalers, retailers, contractors, and homeowners.  There shall be no cost to thermostat wholesalers or thermostat retailers for education and outreach materials. 

(B)  that handling and recycling of mercury‑containing thermostats are accomplished in a manner that is consistent with the provisions of the universal waste rules adopted by the secretary.

(C)  that containers for mercury‑containing thermostat collection are provided to all thermostat wholesalers.  The cost to thermostat wholesalers shall be limited to an initial, reasonable one‑time fee per container as specified in the plan.

(D)  that collection systems are provided to all collection points registered pursuant to subdivision (d)(3) of this section.  Collection systems can include individual product mail back or multiple collection containers.  The cost to registered collection points shall be limited to an initial, reasonable one‑time fee per container as specified in the plan.

(E)  that a financial incentive is established with a minimum value of $5.00 for the return of each mercury‑containing thermostat to a thermostat wholesaler by a contractor or service technician.  The financial incentive shall be in the form of cash or coupons that are redeemable by the contractor or service technician.

(F)  that a financial incentive is established with a minimum value of $5.00 to homeowners or non‑professionals for the return of each mercury‑containing thermostat to a collection point registered with the agency.  The financial incentive shall be in the form of cash or in the form of a coupon that can be redeemed for cash from the manufacturer or can redeemed for a credit toward purchase of general merchandize in the retail location where the thermostat was returned.

(G)  mechanisms to protect against the fraudulent return of thermostats are established.

(2)  No later than April 1, 2009, implement a mercury thermostat collection plan approved by the secretary under subsection (d)(1) of this section.

(3)  Beginning in 2010, submit an annual report to the secretary by April 1 of each year that includes, at a minimum, all of the following:

(A)  The number of mercury‑containing thermostats collected and recycled by that manufacturer pursuant to this section during the previous calendar year.

(B)  The estimated total amount of mercury contained in the thermostat components collected by that manufacturer pursuant to this section.

(C)  An evaluation of the effectiveness of the manufacturer’s collection program and the financial incentive.

(D)  An accounting of the administrative costs incurred in the course of administering the collection and recycling program and the financial incentive plan.

(b)  Thermostat wholesaler and thermostat retailer responsibilities. 
(1)  By April 1, 2009, a thermostat wholesaler shall not offer for final sale, sell at final sale, or distribute thermostats unless the wholesaler:
(A)  acts as a collection site for thermostats that contain mercury.
(B)  promotes and utilizes the collection containers provided by thermostat manufacturers to facilitate a contractor collection program as established by subsection (a) of this section, and all other tasks as needed to establish and maintain a cost‑effective manufacturer collection and financial incentive program.
(2)  By April 1, 2009, a thermostat retailer shall not offer for final sale, sell, or distribute thermostats in the state unless the thermostat retailer participates in an education and outreach program to educate consumers on the collection program for mercury thermostats.

(c)  Sales prohibition.  Beginning April 1, 2009, the following sales prohibitions shall apply to manufacturers, thermostat wholesalers, and thermostat retailers:

(1)  A manufacturer not in compliance with this section is prohibited from offering any thermostat for final sale in the state, selling any thermostat at final sale in the state, or distributing any thermostat in the state.  A manufacturer not in compliance with this section shall provide the necessary support to thermostat wholesalers and thermostat retailers to ensure the manufacturer’s thermostats are not offered for final sale, sold at final sale, or distributed in this state.

(2)  A thermostat wholesaler or thermostat retailer shall not offer for final sale, sell at final sale, or distribute in this state any thermostat of a manufacturer that is not in compliance with this section.

(d)  Agency responsibilities.

(1)  Within 60 days of receipt of a complete application from a manufacturer, the agency shall review and may grant, deny, or approve with modifications a manufacturer plan required by subdivision (a)(1) of this section.  The agency shall not approve a plan unless all elements of subdivision (a)(1) are adequately addressed.  In reviewing a plan, the agency may consider consistency of the plan with collection and financial incentive requirements in other states and consider consistency between manufacturer collection programs.  In reviewing plans, the agency shall ensure that education and outreach programs are uniform and consistent to ensure ease of implementation by thermostat wholesalers and thermostat retailers.

(2)  The agency shall establish a process under which a plan submitted by a manufacturer is, prior to plan approval, available for public review and comment for 30 days.  The agency shall consult with interested persons, including representatives from thermostat manufacturers, environmental groups, thermostat wholesalers, thermostat retailers, service contractors, municipalities, and solid waste districts.

(3)  Registered collection points.  The agency shall maintain and post on the agency of natural resources’ website a list of municipalities, solid waste districts, and thermostat retailers who wish to register as collection points for mercury thermostats.

(4)  Education and outreach.  In conjunction with the educational and outreach programs implemented by manufacturers, the agency shall conduct an education and outreach program directed toward wholesalers, retailers, contractors, and homeowners to promote the collection of discarded mercury‑containing thermostats.

(5)  Report.  By January 15, 2010, and annually thereafter, the agency shall submit a report on the collection and recycling of mercury‑containing thermostats in the state to the house committee on fish, wildlife and water resources and the senate committee on natural resources and energy.  The report due in 2010 must include a description and discussion of the financial incentive plan established under this section and recommendations for any statutory changes concerning the collection and recycling of mercury‑containing thermostats.  Subsequent reports must include an evaluation of the effectiveness of the thermostat collection and recycling programs established under this section, information on actual collection rates, and recommendations for any statutory changes concerning the collection and recycling of mercury‑containing thermostats.  These reporting requirements may be combined with other reports on mercury that the agency is required to provide to the general assembly.

(e)  Rate of collection.  By July 1, 2010, the agency shall estimate the number of out‑of‑service thermostats generated in Vermont on an annual basis, in consultation with interested persons, including representatives from thermostat manufacturers, thermostat wholesalers, thermostat retailers, service contractors, environmental groups, municipalities, and solid waste districts.  Beginning July 1, 2011, should collection efforts fail to result in the collection and recycling of at least 50 percent of the out-of-service mercury‑containing thermostats in the state, the agency shall, in consultation with interested persons, require modifications to manufacturers’ collection plans in an attempt to improve collection rates in accordance with these goals.

Sec. 5.  MERCURY ADVISORY COMMITTEE REPORT ON TOXIC SUBSTANCES

(a)  On or before January 15, 2009, the mercury advisory committee shall report to the senate and house committees on natural resources and energy and the house committee on fish, wildlife and water resources and the senate committee on health and welfare regarding whether the jurisdiction of the mercury advisory committee should be expanded to include review of additional toxic substances.  In preparing the report, the committee may consult with interested parties.  The report shall include:

(1)  A summary of existing Vermont programs and entities that identify or address the use of and risks posed by harmful toxic substances.

(2)  A summary of how other states identify and minimize the risk posed by harmful toxic substances.

(3)  A recommendation as to whether the jurisdiction of the mercury advisory committee or any other existing Vermont program or state agency should be expanded to include review of additional toxic substances.

(4)  If a recommendation under subdivision (3) of this subsection is made to expand the jurisdiction of the mercury advisory committee or the jurisdiction of any other Vermont program or state agency, the report shall include each of the following::

(A)  A recommendation of the toxic substances or categories of toxic substances that should be added to the jurisdiction of the mercury advisory committee or, if relevant, the jurisdiction of any other Vermont program or state agency, including an explanation of the criteria employed to review and identify such substances;

(B)  Recommended statutory changes to the mercury advisory committee’s statutory charge under 10 V.S.A. § 7113 or recommended statutory changes to the statutory charge of any other Vermont program or state agency, including an analysis of the impact of such expansion relative to the ability of the committee, program, or state agency to meet its current responsibilities;

(C)  A recommendation for how to improve the toxic use reduction and hazardous waste reduction programs established under 10 V.S.A. chapter 159;

(D)  A recommended date to which the repeal of the mercury advisory committee should be extended; and

(E)  The estimated cost, if any, of expanding the jurisdiction of the mercury advisory committee or expanding the jurisdiction of another Vermont program or state agency, including identification of additional resources that would be required for implementing the expanded jurisdiction.

(b)  For the purposes of this section, the mercury advisory committee shall consist of the members set forth in 10 V.S.A. § 7113(a), the attorney general of Vermont or his or her designee, the department of health state toxicologist, an employee of the department of environmental conservation designated by the secretary of the agency of natural resources, and a member of a consumer interest group to be appointed by the governor.

Sec. 6.  SUNSET

Subdivisions 7116(a)(3) (reporting requirement for manufacturers of mercury-containing thermostats) and (d)(4) (agency of natural resources reporting requirement regarding mercury-containing thermostats) of Title 10 shall be repealed on April 2, 2015.

H. 617

     An act relating to guardianships.

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

First:  In Sec. 1, 14 V.S.A. § 3071(b), after “3069” by striking out “and 3070” and inserting in lieu thereof and 3070

Second:  In Sec. 1, 14 V.S.A. § 3072(a), by striking out subdivision (2) in its entirety and inserting in lieu thereof a new subdivision (2) to read as follows:

(2)  No individual may be appointed or serve as guardian for a person under or in need of guardianship if the individual operates a boarding home, residential care home, assisted living residence, nursing home, group home, developmental home, correctional facility, psychiatric unit at a designated hospital, or other similar facility in which the person under or in need of guardianship resides or is receiving care.

Third:  In Sec. 1, 14 V.S.A. § 3072(b), by striking out subdivisions (1) and (2) in their entirety and inserting in lieu thereof new subdivisions (1) and (2) to read as follows:

(1)  the preference of the ward the nomination of a guardian in an advance directive, trust or in a will;

(2)  any current or past expressed preferences of the respondent;

Fourth:  In Sec.1, 14 V.S.A. § 3075(e), by striking out “3069(b)(2)” and inserting in lieu thereof 3069(c)(2)

Fifth:  In Sec. 1, 14 V.S.A. § 3075, by striking out subsections (g), (h), and (i) in their entirety and inserting in lieu thereof new subsections (g) and (h) to read as follows:

(g)(1)  The guardian shall obtain prior written approval by the probate court following notice and hearing:

(A)  if the person under guardianship objects to the guardian’s decision, on constitutional grounds or otherwise;

(B)  if the court orders prior approval for a specific surgery, procedure, or treatment, either in its initial order pursuant to subdivision 3069(c)(2) of this title or anytime after appointment of a guardian;

(C)  except as provided in subdivision (2) of this subsection, and unless the guardian is acting pursuant to an advance directive, before withholding or withdrawing life-sustaining treatment other than antibiotics; or

(D)  unless the guardian is acting pursuant to an advance directive, before consenting to a do-not-resuscitate order unless a clinician as defined in subdivision 9701(5) of Title 18 certifies that the person under guardianship is likely to experience cardiopulmonary arrest before court approval can be obtained.  In such circumstances, the guardian shall immediately notify the court by telephone of the need for a decision, shall obtain the clinician’s certification prior to consenting to the do-not-resuscitate order and shall file the clinician’s certification with the court after consent has been given.

(2)  The requirements of subdivision (1)(C) of this subsection shall not apply if obtaining a court order would be impracticable due to the need for a decision before court approval can be obtained.  In such circumstances, the guardian shall immediately notify the court by telephone of the need for a decision, and shall notify the court of any decision made.

(h)  The procedures in chapter 181 of Title 18 shall be the exclusive mechanism:

(1)  For admission to inpatient psychiatric care when the person under guardianship objects to the guardian’s decision on constitutional grounds or otherwise.

(2)  To obtain approval for administration of nonemergency involuntary psychiatric medication to a person under guardianship.

Sixth:  In Sec. 1, 14 V.S.A. § 3077(a), after “Any” by adding A

Seventh:  By striking out Sec. 3 (Guardianship Task Force) in its entirety.

H. 711

     An act relating to agricultural, forestry, and horticultural education.

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

First:  In Sec. 3, subsection (a), by striking out the words “and the department of education shall jointly perform” and inserting in lieu thereof the following:  , the department of education, the Vermont technical college, and the Vermont youth conservation corps jointly shall perform, in consultation with the department of corrections,

Second:  In Sec. 3, subsection (a), after the word “provide” by inserting the words recommendations for

Third:  In Sec. 3, subsection (b), subdivision (5), by striking out words “The need for a statewide specialist to provide” and inserting in lieu thereof the words Options for providing statewide leadership on

Fourth:  By adding a new section to be numbered Sec. 4 to read as follows:

Sec. 4.  16 V.S.A. §§ 912 and 913 are added to read:

§ 912.  Pupil’s right of refusal; animal dissection

(a)  Any student in a public or independent elementary or secondary school may refuse to dissect, vivisect, incubate, capture, or otherwise harm or destroy an animal or any part of an animal, or to observe any of these activities, as part of a course of instruction.

(b)  Not less than three weeks prior to a course exercise involving the use or dissection of an animal, a school shall notify each student enrolled in the course and his or her parent or guardian of the student’s right to refuse to participate in or observe the exercise.

(c)  A student who chooses to refrain from participating in or observing a portion of a course pursuant to this section shall be assigned an alternative education project to learn the material required by the course.  If course assessments require harmful or destructive use of animals, the student shall be offered an alternative assessment by which to demonstrate mastery of the material.  A student may refuse to participate in any alternative education project or alternative assessment that involves or necessitates the harmful use of an animal or animal parts.  A student shall not be discriminated against based upon his or her decision to exercise the right afforded by this section.

(d)  As used in this section, the word “animal” means any living organism of the kingdom animalia and includes an animal’s cadaver or the severed parts of any animal’s cadaver.

§ 913.  Animal use in science classes and science fairs

(a)  In public and independent elementary and secondary schools, live vertebrate animals shall not:

(1)  Be experimentally medicated in a manner causing painful reactions or inducing painful or lethal pathological conditions.

(2)  Be injured in any other manner, including anesthetization and electric shock. 

(b)  Live animals on school premises shall be housed and cared for in a humane and safe manner.

     And by renumbering the remaining section to be numerically correct.

H. 777

     An act relating to the certificate of need program.

     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.  18 V.S.A. § 9432(4) is amended to read:

(4)  “Capital expenditure” means an expenditure for the plant or equipment which is not properly chargeable as an expense of operation and maintenance and includes acquisition by purchase, donation, leasehold expenditure, or operating lease which is treated as capital expense in accordance to the accounting standards established for lease expenditures by the Financial Accounting Standards Board, calculated over the length of the lease for plant or equipment, and includes assets having an expected life of at least three years.  A capital expenditure includes the cost of studies, surveys, designs, plans, working drawings, specifications and other activities essential to the acquisition, improvement, expansion, or replacement of the plant and equipment.

Sec. 2.  18 V.S.A. § 9439(b) is amended to read:

(b)  When a letter of intent to compete has been filed, the review process is suspended and the time within which a decision must be made as provided in subdivision 9440(c)(2) 9440(d)(4) of this title is stayed until the competing application has been ruled complete or for a period of 55 days from the date of notification under subdivision 9440(b)(4) 9440(c)(8) as to the original application, whichever is shorter.

Sec. 3.  18 V.S.A. § 9440(c)(6) is amended to read:

(6)  If an applicant fails to respond to an information request under subdivision (4) of this subsection within six months or, in the case of review cycle applications under section 9439 of this title, within such time limits as the commissioner shall establish by rule, the application will be deemed inactive unless the applicant has, within said six months, filed an adequate, as determined by the commissioner, amended letter of intent requests in writing that the application be reactivated and the commissioner grants the request.  If an applicant fails to respond to an information request within 12 months or, in the case of review cycle applications under section 9439 of this title, within such time limits as the commissioner shall establish by rule, the application will become invalid unless the applicant requests, and the commissioner grants, an extension.

Sec. 4.  18 V.S.A. § 9440(c)(9) is amended to read:

(9)  The health care ombudsman’s office established under section 4089j subchapter 1A of chapter 107 of Title 8 or, in the case of nursing homes, the long-term care ombudsman’s office established under section 7502 of Title 33, is authorized but not required to participate in any administrative or judicial review of an application under this subchapter and shall be considered an interested party in such proceedings upon filing a notice of intervention with the commissioner.

Sec. 5.  18 V.S.A. § 9440(d)(4) and (7) are amended to read:

(4)  A review shall be completed and the commissioner shall make a final decision within 120 days after the date of notification under subdivision (b)(4)(c)(4) of this section.  Whenever it is not practicable to complete a review within 120 days, the commissioner may extend the review period up to an additional 30 days.  Any review period may be extended with the written consent of the applicant and all other applicants in the case of a review cycle process.

(7)  Notice of the final decision shall be sent to the applicant, competing applicants, and interested parties.  This notice The final decision shall make include written findings and conclusions stating the basis of the decision.

Sec. 5a.  18 V.S.A. § 9440(e) is amended to read:

(e)  The commissioner shall adopt rules governing procedures for the expeditious processing of applications for replacement, repair, rebuilding, or reequipping of any part of a health care facility or health maintenance organization destroyed or damaged as the result of fire, storm, flood, act of God, or civil disturbance, or any other circumstances beyond the control of the applicant, and of applications where the health care facility is affected by bankruptcy proceedings, where the commissioner finds that the circumstances require action in less time than normally required for review. If the nature of the emergency requires it, an application under this subsection may be reviewed by the commissioner only, without notice and opportunity for public hearing or intervention by any party.

Sec. 5b.  18 V.S.A. § 9440(g) is added to read:

(g)  If the commissioner has reason to believe that the applicant has violated a provision of this subchapter, a rule adopted pursuant to this subchapter, or the terms or conditions of a prior certificate of need, the commissioner may take into consideration such violation in determining whether to approve, deny, or approve the application subject to conditions.  The applicant shall be provided an opportunity to contest whether such violation occurred, unless such an opportunity has already been provided.  The commissioner may impose as a condition of approval of the application that a violation be corrected or remediated before the certificate may take effect.

Sec. 5c.  18 V.S.A. § 9445(d) is added to read:

(d)  The commissioner shall adopt by rule criteria for assessing the circumstances in which a violation of a provision of this subchapter, a rule adopted pursuant to this subchapter, or the terms or conditions of a certificate of need require that a penalty under this section shall be imposed, and criteria for assessing the circumstances in which a penalty under this section may be imposed.

Sec. 5d.  18 V.S.A. § 9440(c)(5) is amended to read:

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

Sec. 5e.  18 V.S.A. § 9440(e) is amended to read:

(e)  The commissioner shall adopt rules governing procedures for the expeditious processing of applications for replacement, repair, rebuilding, or reequipping of any part of a health care facility or health maintenance organization destroyed or damaged as the result of fire, storm, flood, act of God, or civil disturbance, or any other circumstances beyond the control of the applicant, and of applications where the health care facility is affected by bankruptcy proceedings, where the commissioner finds that the circumstances require action in less time than normally required for review. If the nature of the emergency requires it, an application under this subsection may be reviewed by the commissioner only, without notice and opportunity for public hearing or intervention by any party.

Sec. 6.  18 V.S.A. § 9444 is amended to read:

§ 9444.  REVOCATION OF CERTIFICATES; MATERIAL CHANGE

The commissioner may revoke a certificate of need for substantial noncompliance with the scope of the project as designated in the application, or for failure to comply with the conditions set forth in the certificate of need granted by the commissioner.  In the event that after a project has been approved, its proponent wishes to materially change the scope or cost of the approved project, all such changes are subject to review under this subchapter. If a change itself would be considered a new health care project as defined in subsection 9434(a) section 9434 of this title, it shall be considered as material.  If the change itself would not be considered a new health care project as defined in subsection 9434(a) section 9434 of this title, the commissioner may decide not to review the change and shall notify the applicant and all parties of such decision.  Where the commissioner decides not to review a change, such change will be deemed to have been granted a certificate of need.

Sec. 7.  18 V.S.A. § 9445 is amended to read:

§ 9445.  ENFORCEMENT

(a)  Any person who offers or develops any new health care project within the meaning of this subchapter without first obtaining a certificate of need as required herein, or who otherwise violates any of the provisions of this subchapter, shall may be subject to the following administrative sanctions by the commissioner, after notice and an opportunity to be heard:

(1)  The state shall not issue a commissioner may order that no license or certificate permitted to be issued by the department or any other state agency may be issued to any health care facility to operate, offer, or develop any new health care project in violation of this subchapter and without a certificate of need or certificate of exemption issued pursuant thereto for a specified period of time, or that remedial conditions be attached to the issuance of such licenses or certificates.

(2)  The state shall not furnish from any reimbursement program commissioner may order that payments or reimbursements to the entity for claims made under any health insurance policy, subscriber contract, or health benefit plan offered or administered by any public or private health insurer, including the Medicaid program and any other health benefit program administered by the state, nor shall any entity chartered under the laws of this state or any person doing business in the state provide reimbursement for any new health care project offered or developed in contravention of the requirements of this subchapter be denied, reduced, or limited, and in the case of a hospital that the hospital’s annual budget approved under subchapter 7 of this chapter be adjusted, modified or reduced.

(3)(b)  In addition to all other sanctions, if any person offers or develops any new health care project without first having been issued a certificate of need or certificate of exemption therefore, or violates any other provision of this subchapter or any lawful rule or regulation promulgated thereunder, the commissioner and health care providers or consumers located in the state shall have standing to maintain a civil action in the superior court of the county wherein such alleged violation has occurred, or wherein such person may be found, to enjoin, restrain, or prevent such violation.  Upon written request by the commissioner, it shall be the duty of the attorney general of the state to furnish appropriate legal services and to prosecute an action for injunctive relief to an appropriate conclusion, which shall not be reimbursed under subdivision (2) of this subsection.

(b)(c)  After notice and an opportunity for hearing, the commissioner may impose on a person who knowingly violates a provision of this subchapter, or a rule or order adopted pursuant to this subchapter or section 15 of Title 8, a civil administrative penalty of no more than $40,000.00, or in the case of a continuing violation, a civil administrative penalty of no more than $100,000.00 or one-tenth of one percent of the gross annual revenues of the health care facility, whichever is greater, which shall not be reimbursed under subdivision (a)(2) of this section, and the commissioner may order the entity to cease and desist from further violations, and to take such other actions necessary to remediate a violation.  A person aggrieved by a decision of the commissioner under this subdivision may appeal the commissioner’s decision to the supreme court.

Sec. 8.  18 V.S.A. § 9437 is amended to read:

§ 9437. CRITERIA

A certificate of need shall be granted if the applicant demonstrates and the commissioner finds that:

(1) the application is consistent with the health resource allocation plan;

(2) the cost of the project is reasonable, because:

(A) the applicant's financial condition will sustain any financial burden likely to result from completion of the project;

(B) the project will not result in an undue increase in the costs of medical care.  In making a finding under this subdivision the commissioner shall consider and weigh relevant factors including:

(i)  the financial implications of the project on hospitals and other clinical settings, including the impact on their services, expenditures, and charges; 

(ii)  whether the impact on  services, expenditures and charges is outweighed by the benefit of the project to the public; and

Sec. 9.  EMERGENCY RULES; EFFECTIVE DATE; PROSPECTIVE REPEAL

(a)  The commissioner may adopt emergency rules to carry out the purposes of Sec. 5a of this act.

(b)  This act shall take effect on July 1, 2008, except that Sec. 5a of this act shall take effect on passage, and Sec. 5e of this act shall take effect on July 1, 2009.

(c)  Subsection (a) of this section shall be repealed on June 30, 2009.

H. 806

     An act relating to public water systems.

     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.  10 V.S.A. § 1675a is added to read:

§ 1675a.  PERMITTING EXEMPTION

(a)  The requirements of this chapter and the rules adopted under this chapter, except the construction permitting requirements, shall not apply to a public water system that:

(1)  Consists only of distribution and storage facilities and does not have any collection and treatment facilities;

(2)  Obtains all of its water from, but is not owned or operated by, a public water system to which this chapter applies;

(3)  Does not engage in the sale of water to any person.  For purposes of this section and subdivision 203(3) of title 30,  a “sale” of water does not occur when:

(A) the rate charged to the consumer by the receiving water system is the same as the rate charged by the public water system for supplying water to the receiving water system; and

(B) the receiving water system follows the uniform water and sewer disconnect requirements of chapter 129 of title 24, except that section 5147 of title 24 shall not apply and appeals shall be governed by the Vermont rules of civil procedure; and

(4)  Is not a carrier which conveys passengers in interstate commerce;

(5)  Serves less than 500 persons; and

(6)  Is served by a public water system that certifies to the secretary that:

(A)  The receiving public water system is responsible for the repair and maintenance of their own water system unless otherwise agreed to by the wholesale system; and

(B)  The public water system supplying water to the receiving water system is responsible for:

(i)  including the receiving public water system in its water quality sampling plans;

(ii)  providing consumer confidence reports to the receiving system’s users; and

(iii)  issuing public notice to the receiving system’s users if a violation of a drinking water contaminant standard exists or if the secretary determines that a condition exists that may present a risk to public health.

(b)  The water system supplying water to the receiving water system is responsible for the requirements contained in subdivision (a)(6)(B) of this section until 180 days after the water system supplying water to the receiving water system files a notice with the secretary of natural resources and the receiving system of its intent to withdraw from any obligation made under subdivision (a)(6)(B) of this section.

(c)  Notwithstanding the exemption contained in subsection (a) of this section, the secretary of natural resources may take any reasonable steps that are necessary to abate a public health threat at a public water system that is otherwise exempt

Sec. 2.  30 V.S.A. § 203(3) is amended to read:

(3) A company other than a municipality or a water system exempted under the provisions of section 1675a of title 10 engaged in the collecting, sale and distribution of water for domestic, industrial, business or fire protection purposes;

H. 867

     An act relating to health insurance plan coverage for athletic trainer services.

     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.  8 V.S.A. § 4088f is added to read:

§ 4088f.  COVERAGE FOR COVERED SERVICES PROVIDED BY ATHLETIC TRAINERS

(a)  To the extent a health insurance plan provides coverage for a particular type of health service or for any particular medical condition that is within the scope of practice of athletic trainers, a licensed athletic trainer who acts within the scope of practice authorized by law shall not be denied reimbursement by the health insurer for those covered services if the health insurer would reimburse another health care provider for those services.  A health insurer may require that the athletic trainer services be provided by a licensed athletic trainer under contract with the insurer.  Services provided by athletic trainers may be subject to reasonable deductibles, co-payment and co-insurance amounts, fee or benefit limits, practice parameters, and utilization review consistent with applicable rules adopted by the department of banking, insurance, securities, and health care administration; provided that the amounts, limits, and review shall not function to direct treatment in a manner unfairly discriminative against athletic trainer care, and collectively shall be no more restrictive than those applicable under the same policy for care or services provided by other health care providers but allowing for the management of the benefit consistent with variations in practice patterns and treatment modalities among different types of health care providers.  Nothing in this section shall be construed as impeding or preventing either the provision or coverage of health care services by licensed athletic trainers within the lawful scope of athletic trainer practice.

(b)  As used in this section, “health insurance plan” means an individual or group health insurance policy, a hospital or medical service corporation or health maintenance organization subscriber contract, or another health benefit plan offered, issued, or renewed for a person in this state by a health insurer, as defined in subdivision 9402(7) of Title 18.  The term shall not include benefit plans providing coverage for specific disease or other limited benefit coverage.

Sec. 2.  26 V.S.A. § 2086 is added to read:

§ 2086.   PATIENT CARE MANAGEMENT

(a)  A physical therapist shall be professionally responsible and legally liable for all aspects of the physical therapy care of each of his or her patients.  The director of the office of professional regulation shall identify by rule physical therapy services that only a physical therapist may perform.  At a minimum, a physical therapist shall provide:

(1)  the initial examination and documentation for each of his or her patients;

(2)  periodic reexamination and documentation of each of his or her patients;

(3)  the documented discharge of the patient, including the response to therapeutic intervention at the time of discharge.

(b)  A physical therapist shall ensure the qualifications of all physical therapist assistants and physical therapy aides under his or her direction or supervision.

(c)  For each of his or her patients on each date of treatment, a physical therapist shall provide all of the therapeutic intervention that requires the expertise of a physical therapist and shall determine the use of physical therapist assistants or physical therapy aides who provide for the delivery of care that is safe, effective, and efficient, provided the assigned acts, tasks, or procedures do not exceed the person’s education or training and provided:

(1)  A physical therapist assistant shall work under a physical therapist’s supervision.  A physical therapist assistant may document care pursuant to the existing treatment plan from the supervising physical therapist.

(2)  A physical therapist may use physical therapy aides for designated routine tasks.  A physical therapy aide shall work under the on-site supervision of a physical therapist who is continuously on site and present at the facility, who is immediately available to assist the person being supervised in the services being performed, and who maintains continued involvement in appropriate aspects of each treatment session in which a component of treatment is assigned.  This supervision by the physical therapist may extend to off-site supervision of the aide only when the physical therapy aide is accompanying and working directly with a physical therapist assistant with a specific patient or when performing nonpatient-related tasks.

(d)  A physical therapist’s responsibility for patient care management shall include accurate documentation of and billing for the services provided.

(e)  A physical therapist shall be responsible for communicating the status of a patient’s progress and other relevant information to the patient’s referring health care professional unless the patient declines to authorize release of the patient’s physical therapy records.

Sec. 3.  REPEAL

(a)  26 V.S.A. § 2081a(1) (definition of assistive personnel) shall be repealed on July 1, 2009.

(b)  26 V.S.A. § 2085 (legal liability for physical therapists) shall be repealed on July 1, 2009.

Sec. 4.  EFFECTIVE DATE: APPLICABILITY

(a)  Sec. 1 of this act shall take effect on July 1, 2008 and shall apply to all health benefit plans offered, issued, or renewed on or after October 1, 2008.

(b)  Sec. 2 of this act shall take effect on July 1, 2009.

H. 889

An act relating to the state's transportation program.

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.  TRANSPORTATION PROGRAM; ADVANCEMENTS, CANCELLATIONS, AND DELAYS

(a)  The state’s proposed fiscal year 2009 transportation program appended to the agency of transportation’s proposed fiscal year 2009 budget, as amended by this act, is adopted to the extent federal, state, and local funds are available. 

(b)  As used in this act, unless otherwise indicated, the term “agency” means the agency of transportation, and the term “secretary” means the secretary of transportation.  As used in this act, the table heading “As Proposed” means the transportation program referenced in subsection (a) of this section; the table heading “As Amended” means the amendments as made by this act; the table heading “Change” means the difference obtained by subtracting the “As Proposed” figure from the “As Amended” figure; and the term “change” or “changes” in the text refers to the project- and program-specific amendments, the aggregate sum of which equals the net “Change” in the applicable table heading.

* * * State Bridges * * *

Sec. 2.  PROGRAM DEVELOPMENT – STATE BRIDGES

The following modifications are made to the program development – state bridges program:

(1)  Funding of the state bridge development and evaluation program is amended to read:

FY09                   As Proposed              As Amended                 Change

PE                       1,049,648                                0           -1,049,648

ROW                     256,419                                0              -256,419

Construction                      0                                0                           0

Other                                 0                                0                           0

Total                    1,306,067                                0           -1,306,067

Sources of funds

State                       263,993                                0              -263,993

Federal                1,042,074                                0           -1,042,074

Local                                 0                                0                           0

Total                    1,306,067                                0           -1,306,067

(2)  Funding is added as follows to advance state bridge projects not scheduled for construction in fiscal year 2009.  The authorized funds shall be expended on projects according to their priority ranking.  To the extent the agency determines that the funds would be more efficiently spent advancing a lower ranking project due to permitting, right-of-way, or other practical constraints that impede the advancement of a higher ranking project, the agency shall substantiate and report its determination to the joint transportation oversight committee at its July 2008 meeting.

FY09                   As Proposed              As Amended                 Change

PE, ROW or other             0                  1,306,067             1,306,067

Total                                  0                  1,306,067             1,306,067

Sources of funds

State                                  0                     263,993                263,993

Federal                              0                  1,042,074             1,042,074

Local                                 0                                0                           0

Total                                  0                  1,306,067             1,306,067

* * *  Roadway * * *

Sec. 3.  PROGRAM DEVELOPMENT – ROADWAY

The following modifications are made to the program development – roadway program:

(1)  Authorized spending on the Cabot-Danville FEGC F 028-3(26)C/1 project is amended to read:

FY09                   As Proposed              As Amended                 Change

PE                                     0                                0                           0

ROW                                0                                0                           0

Construction        3,700,000                  1,000,000           -2,700,000

Other                                 0                                0                           0

Total                    3,700,000                  1,000,000           -2,700,000

Sources of funds

State                       185,000                       50,000              -135,000

Federal                3,515,000                     950,000           -2,565,000

Local                                 0                                0                           0

Total                    3,700,000                  1,000,000           -2,700,000

(2)  Authorized spending on the Hartford-Newbury I-91 IM 091-2(72) project is amended to read:

FY09                   As Proposed              As Amended                 Change

PE                                     0                                0                           0

ROW                                0                                0                           0

Construction        4,500,000                                0           -4,500,000

Other                                 0                                0                           0

Total                    4,500,000                                0           -4,500,000

Sources of funds

State                       900,000                                0              -900,000

Federal                3,600,000                                0           -3,600,000

Local                                 0                                0                           0

Total                    4,500,000                                0           -4,500,000

(3)  Authorized spending on the Derby GSA border crossing IM 091-34(45) project is amended to read:

FY09                   As Proposed              As Amended                 Change

PE                                     0                                0                           0

ROW                                0                                0                           0

Construction                      0                                0                           0

Other                      287,500                                0              -287,500

Total                       287,500                                0              -287,500

Sources of funds

State                       287,500                                0              -287,500

Federal                              0                                0                           0

Local                                 0                                0                           0

Total                       287,500                                0              -287,500

(4)  The following project has received a federal earmark and is added to program development – roadway program – roadway projects candidates list: Bristol STP 021-1 ( ) – Downtown Streetscape and Sidewalk Improvements – $240,000; 100% federal funds available until expended.

(5)  The following project has received a federal earmark and is added to program development – roadway program – roadway projects candidates list: Essex Junction STP 5300 ( ) – Route 15 Streetscape Improvements – $1,641,500 to be allocated between this project and the existing project Colchester TCSP TCSE (7) – Campus Connector; 100% federal funds available until expended.

* * *  Paving * * *

Sec. 4.  PROGRAM DEVELOPMENT – PAVING

The following modifications are made to the program development – paving program:

(1) Authorized spending in the district leveling program is amended to read:

FY09                   As Proposed              As Amended                 Change

PE                                     0                                0                           0

ROW                                0                                0                           0

Construction        1,650,000                  2,550,000                900,000

Other                                 0                                0                           0

Total                    1,650,000                  2,550,000                900,000

Sources of funds

State                    1,650,000                  2,550,000                900,000

Federal                              0                                0                           0

Local                                 0                                0                           0

Total                    1,650,000                  2,550,000                900,000

(2) In addition to the change made in subdivision (1) of this section, total authorized spending in the paving program is increased by $866,850 in transportation funds and $3,467,400 in federal funds. The agency shall allocate the additional funds to paving projects in its discretion.

* * * Bike and Pedestrian Facilities * * *

Sec. 5.  PROGRAM DEVELOPMENT – BIKE AND PEDESTRIAN FACILITIES

The following modifications are made to the program development – bike and pedestrian facilities:

(1)  The following project has received a federal earmark and is added to program development – bike and pedestrian facilities – bike and pedestrian facilities candidates list as follows: Bennington – STP WALK ( ) – Streetscape Improvement Project – $490,000; 100% federal funds available until expended.

* * * Traffic and Safety Operations * * *

Sec. 6.  PROGRAM DEVELOPMENT – TRAFFIC AND SAFETY OPERATIONS

The following modifications are made to the program development – traffic and safety operations program:

(1)  The agency is authorized to add to the transportation program a signalization project at the east entrance to Fort Ethan Allen on Vermont Route 15 for the primary purpose of providing more direct public transportation service along the Chittenden County Transportation Authority’s (CCTA) Essex Junction route subject to the agency’s approval of CCTA’s innovative financing proposal for construction of the project and concurrent approval and inclusion by the Chittenden County Metropolitan Planning Organization (CCMPO) of the project in the CCMPO’s transportation improvement program (TIP).  Subject to the project being added to the transportation program, spending on the project is authorized as follows:

FY09                   As Proposed              As Amended                 Change

PE                                     0                       50,000                  50,000

ROW                                0                                0                           0

Construction                      0                                0                           0

Other                                 0                                0                           0

Total                                  0                       50,000                  50,000

Sources of funds

State                                  0                                0                           0

Federal                              0                                0                           0

Local                                 0                       50,000                  50,000

Total                                  0                       50,000                  50,000

* * * Park & Ride * * *

Sec. 7. PROGRAM DEVELOPMENT – PARK & RIDE

The following modifications are made to the program development park & ride  program:

(1) Authorized spending in the municipal park & ride grant program is amended to read:

FY09                   As Proposed              As Amended                 Change

PE                                     0                                0                           0

ROW                                0                                0                           0

Construction           250,000                     300,000                  50,000

Other                                 0                                0                           0

Total                       250,000                     300,000                  50,000

Sources of funds

State                       250,000                     300,000                  50,000

Federal                              0                                0                           0

Local                                 0                                0                           0

Total                       250,000                     300,000                  50,000

* * * Transportation Buildings * * *

Sec. 8.  TRANSPORTATION BUILDINGS

The following modifications are made to the transportation buildings program:

(1)  Authorized spending of development and evaluation funds on the Essex garage and office project is amended to read:

FY09                   As Proposed              As Amended                 Change

PE                              3,000                                0                  -3,000

ROW                                0                                0                           0

Construction                      0                                0                           0

Other                                 0                                0                           0

Total                           3,000                                0                  -3,000

Sources of funds                                                                             

State                           3,000                                0                  -3,000

Federal                              0                                0                           0

Local                                 0                                0                           0

Total                           3,000                                0                  -3,000

(2)  The agency shall report by January 15, 2009 to the house and senate committees on transportation on the agency’s plans for the location of maintenance facilities in Chittenden and Addison counties and in the interim shall not advance its current plan for the relocation of the facilities.

* * * Maintenance * * *

Sec. 9.  MAINTENANCE

(a)  Total authorized spending in the maintenance program is amended as follows:

FY09                               As Proposed       As Amended             Change

Personal Services           32,012,562         32,012,562                      0

Operating Expenses       32,156,492         31,686,242          -470,250

Grants                                316,020              316,020                      0

Total                              64,485,074         64,014,824          -470,250

Sources of funds

State                              60,733,558         60,305,808          -427,750

Federal                            3,651,516           3,609,016            -42,500

Other                                  100,000              100,000                      0

Total                              64,485,074         64,014,824          -470,250

(b)  These changes are made to reduce funding for the purchase of temporary bridge parts and to reduce fund in the ITS program. Authorized spending in the ITS program includes support for the installation of RWIS stations along the Interstate 89 corridor between Royalton and Williston.

* * * Aviation * * *

Sec. 10.  AVIATION

The following modifications are made to the aviation program:

(1)  Authorized spending on the Burlington International Airport AIP program is amended to read:

FY09                   As Proposed              As Amended                 Change

PE                          360,000                     360,000                           0

ROW                     900,000                     900,000                           0

Construction        3,210,000                  3,210,000                           0

Other                                 0                                0                           0

Total                    4,470,000                  4,470,000                           0

Sources of funds

State                       218,200                     180,000                -38,200

Federal                4,023,000                  4,023,000                           0

Local                      228,800                     267,000                  38,200

Total                    4,470,000                  4,470,000                           0

(2)  In addition to the change made in subdivision (1) of this section, total authorized spending in the aviation program is reduced by $100,000 in transportation funds.  The agency shall determine where the reductions are to be made.

* * * Bridge Maintenance * * *

Sec. 11.  BRIDGE MAINTENANCE

The following modifications are made to the bridge maintenance program:

(1)  Authorized spending for the purchase of a servi-lift vehicle is amended to read:

FY09                   As Proposed              As Amended                 Change

PE                                     0                                0                           0

ROW                                0                                0                           0

Construction           500,000                                0              -500,000

Other                                 0                                0                           0

Total                       500,000                                0              -500,000

Sources of funds

State                       500,000                                0              -500,000

Federal                              0                                0                           0

Local                                 0                                0                           0

Total                       500,000                                0              -500,000

* * * Town Bridges * * *

Sec. 12.  TOWN BRIDGE

The following modifications are made to the town bridge program:

(1)  Authorized spending on the Dummerston TH62 West River BHO 1442(28) project is amended to read:

FY09                   As Proposed              As Amended                 Change

PE                                     0                                0                           0

ROW                                0                                0                           0

Construction        1,128,000                                0           -1,128,000

Other                                 0                                0                           0

Total                    1,128,000                                0           -1,128,000

Sources of funds

State                       225,600                                0              -225,600

Federal                   902,400                                0              -902,400

Local                                 0                                0                           0

Total                    1,128,000                                0           -1,128,000

(2) Authorized spending on the Stamford TH14 TH3 9611 project is a amended to read:

FY09                   As Proposed              As Amended                 Change

PE                            34,669                                0                -34,669

ROW                       48,286                                0                -48,286

Construction                      0                                0                           0

Other                                 0                                0                           0

Total                         82,955                                0                -82,955

Sources of funds

State                         74,660                                0                -74,660

Federal                              0                                0                           0

Local                          8,295                                0                  -8,295

Total                         82,955                                0                -82,955

(3)  A project to reconstruct the Bridge Street bridge in Morrisville on VT 100 is added to the transportation program. 

(4)  A project to reconstruct the Ripley bridge on Ripley Road in Rutland City near the intersection of Ripley Road and Dorr Drive is added to the transportation program.

* * * Town Highway Emergency Fund * * *

Sec. 13.  TOWN HIGHWAY EMERGENCY FUND

Funding of the town highway emergency fund is amended to read:

FY09                   As Proposed              As Amended                 Change

Other                                 0                     312,860                312,860

Total                                  0                     312,860                312,860

Sources of funds

State                                  0                     312,860                312,860

Federal                              0                                0                           0

Local                                 0                                0                           0

Total                                  0                     312,860                312,860

* * * Rail * * *

Sec. 14.  RAIL

The following modifications are made to the rail program:

(1)  Authorized spending on the three-way partnership program is amended to read as follows.  In future budget years, funding for the program shall be limited to the costs of specific projects.

FY09                   As Proposed              As Amended                 Change

PE                                     0                                0                           0

ROW                                0                                0                           0

Construction                      0                                0                           0

Other                      750,000                       45,000              -705,000

Total                       750,000                       45,000              -705,000

Sources of funds

State                       250,000                       15,000              -235,000

Federal                              0                                0                           0

Local                      500,000                       30,000              -470,000

Total                       750,000                       45,000              -705,000

(2)(A)  Authorized spending for the project to design, permit, and rehabilitate the railroad tunnel under North Avenue (TH3) in Burlington is amended to read as follows:

FY09                   As Proposed              As Amended                 Change

PE                            50,000                                0                -50,000

ROW                                0                                0                           0

Construction                      0                                0                           0

Other                                 0                  1,200,000             1,200,000

Total                         50,000                  1,200,000             1,150,000

Sources of funds

State                         50,000                                0                -50,000

Federal                              0                     960,000                960,000

Local                                 0                     240,000                240,000

Total                         50,000                  1,200,000             1,150,000

(B)  The project shall be advanced to construction as quickly as possible, using western corridor federal earmark funds for the $960,000 federal share. As a precondition to advancing the project, the tunnel’s owner, New England Central Railroad, Inc., must agree to be entirely responsible for the non-federal share as well as for any additional costs that may be incurred to complete the scope of work agreed to in the project agreement.

(C)  The agency of transportation shall work with the Federal Highway Administration (FHWA) and the Federal Railroad Administration (FRA) to have federal oversight responsibility for federal earmark funds used for the North Avenue tunnel project transferred from FHWA to FRA.

(D)  To replace the federal earmark funding used on the project, the agency is authorized to seek additional federal earmarks for other western corridor projects.     

(3)  Authorized spending on lease and encroachment management of railroad right-of-way is amended to read:

FY09                   As Proposed              As Amended                 Change

Other                      350,000                     300,000                -50,000

Total                       350,000                     300,000                -50,000

Sources of funds

State                       350,000                     300,000                -50,000

Federal                              0                                0                           0

Local                                 0                                0                           0

Total                       350,000                     300,000                -50,000

(4)  Authorized spending on maintenance of railroad buildings is amended to read:

FY09                   As Proposed              As Amended                 Change

Other                      175,000                     125,000                -50,000

Total                       175,000                     125,000                -50,000

Sources of funds

State                       175,000                     125,000                -50,000

Federal                              0                                0                           0

Local                                 0                                0                           0

Total                       175,000                     125,000                -50,000

* * * Rail Quiet Zones * * *

Sec. 15.  RAIL QUIET ZONES

(a)  The secretary of the agency shall negotiate and may approve an agreement on behalf of the state with the municipalities of Burlington, South Burlington, and Shelburne to cooperatively administer and fund the maintenance expenses of the quiet zones on the Vermont Railway.  Any agreement shall include but not be limited to the following conditions:

(1) The agreement shall take effect in fiscal year 2010;

(2) Subject to availability of appropriated funds, total participation by the state of Vermont shall not exceed 50 percent of the total annual operating costs; and

(3) The agreement will be open to renegotiation in the event that a change in train traffic triggers the need to consider noise mitigation under an applicable federal statute or regulation.

* * * Annual Reports * * *

Sec. 16.  19 V.S.A. § 10c(k) is added to read:

(k)  The agency shall by January 15 of each year submit a report on the pavement conditions of the state highway system to the house and senate committees on transportation.

Sec. 17.  19 V.S.A. § 10c(l) is added to read:

(l)  The agency shall by January 15 of each year submit a report on the condition of bridges, culverts, and other structures on the state system and town highways to the house and senate committees on transportation.

* * * Project Prioritization and Addition of New Projects* * *

Sec. 18.  PROJECT PRIORITIZATION PROCESS AND PROPOSAL OF NEW PROJECTS FOR THE STATE  TRANSPORTATION PROGRAM BY REGIONAL PLANNING  COMMISSIONS

(a)  To better reflect regional economic development, land use, and project priorities, the agency, in cooperation with the regional planning commissions, shall modify the existing project prioritization system to ensure that local input is assigned appropriate weighting in the system.

(b)  The agency and the regional planning commissions shall jointly develop and adopt and the agency shall implement a written procedure that allows a regional planning commission to propose that a new project be substituted for an existing project or projects within the same region that are in the state transportation program.  The procedure shall:

(1)  ensure that the proposed new project for addition to the transportation program and the existing project or projects to be deleted from the program are roughly comparable in cost, using updated cost estimates;

(2) consider for removal from the transportation program only projects that are in candidate status;

(3)  describe the project identification requirements and time line requirements that an RPC must satisfy to present the proposed change in the transportation program to the general assembly in a particular fiscal year; and

(4)  describe the agency-regional planning commission communication protocols that will apply to the process.

(c)  Each year, the agency’s proposed transportation program shall include a separate report entitled “RPC Proposals” which shall describe all regional planning commission-proposed changes to the state’s transportation program made in accordance with the procedure adopted pursuant to subsection (b) of this section.

(d)  The agency and regional planning commissions shall report on the adopted procedure described in subsection (b) of this section and on changes made to the priority system in response to subsection (a) of this section to the committees on transportation by January 15, 2009.

Sec. 19.  19 V.S.A. § 10g(g) is added to read:

(g)  The agency’s annual transportation program shall include a separate report referencing this section describing all proposed projects in the program which would be new to the state transportation program if adopted.

* * * Study of Transportation Bonding Options * * *

Sec. 20.  STUDY OF TRANSPORTATION BONDING OPTIONS AND REDUCTION OF USE OF TRANSPORTATION FUNDS IN SUPPORT OF GENERAL GOVERNMENT

(a)  The state treasurer shall select and oversee, pursuant to a public competitive selection process, an investment bank to act as an adviser to the state to develop multiple financing proposals, including general obligation, revenue, and GARVEE bond options, for a program dedicated to assisting in closing the gap between transportation needs and available revenue.

(b)  The state treasurer shall issue a report on the funding options available to the state for the purposes stated in subsection (a) of this section to the members of the joint fiscal committee and the capital debt affordability advisory committee.  These committees shall meet on or before September 1, 2008 to review the report.  Based on the treasurer’s report, the joint fiscal office shall prepare for consideration by the joint fiscal committee transportation funding options available to the state which shall include annual reductions in the amount of transportation funds appropriated for general government purposes.  On or before October 1, 2008, the joint fiscal committee, in consultation with the capital debt affordability advisory committee, shall make  recommendations to the governor for the purpose of advising the governor during the budget preparation process.

* * * State-Owned Railroad Property * * *

Sec. 21.  Sec. 17(e) of No. 175 of the Acts of the 2005 Adj. Sess. (2006) is amended to read:

(e)  The authority granted by this section shall expire on June 30, 2008 2009.

* * * Central Garage * * *

Sec. 22.  AGENCY VEHICLE FLEET

Pursuant to 19 V.S.A. § 13(b), the agency of transportation is authorized to add one vehicle to the fleet as follows:

(1)  one light duty vehicle for use by the program development division structures section for bridge inspections.

Sec. 23.  TRANSFER TO THE CENTRAL GARAGE FUND

Notwithstanding 19 V.S.A. § 13(c), in fiscal year 2009, $1,120,000.00 shall be transferred from the transportation fund to the central garage fund and allocated to the transportation equipment replacement account within the central garage fund for the purchase of equipment as authorized in 19 V.S.A. § 13(b). 

* * * Limitation on Use of State Highway Facilities * * *

Sec. 24.  REPEAL

19 V.S.A. § 21(c) (agency rules for parking) is repealed.

Sec. 25.  23 V.S.A. § 1106 is added to read:

§ 1106.  LIMITATIONS ON USE OF STATE HIGHWAY FACILITIES

(a)  For purposes of this section, “state highway facility” means a state highway rest area, picnic ground, parking area, or park-and-ride facility.

(b)  No person shall enter or remain on any state highway facility for the purpose of overnight camping unless the particular facility has been designated for that purpose by the traffic committee.

(c) The traffic committee, after evaluating function, safety, and transportation mobility at a particular state highway facility, may prohibit persons entering or remaining at the particular facility for the purpose of selling, hiring, or leasing any goods, wares, merchandise or services.

(d)  The traffic committee, on the basis of an engineering and traffic investigation or findings as to adverse effects on the quiet enjoyment and property values of people living adjacent to a state highway facility, may designate the size and types of vehicles allowed to park in a state highway facility or in particular areas of a state highway facility.

(e)  Notice of the prohibitions under this section shall be posted at the affected facilities by regulatory signs conforming to the manual on uniform traffic control devices.

* * * Transportation Fund; Sales Tax on Aviation Jet Fuel * * *

Sec. 26.  32 V.S.A. § 9741(7) is amended to read:

(7)  Sales of motor fuels taxed or exempted under chapter 28 of Title 23, provided, however, that aviation jet fuel shall be taxed under this chapter with the proceeds to be allocated to the transportation fund in accordance with section 11 of Title 19.

* * * Public Transit Study * * *

Sec. 27.  PUBLIC TRANSIT STUDY

(a)  Public transit study.  Consistent with the goals, findings, and recommendations of the January 15, 2008 legislative report (Sec. 45 of No. 75 of the Acts of 2007) titled “A Study Regarding the Regional Connectivity of Vermont’s Public Transit System,” the agency of transportation, in cooperation with the joint fiscal office, shall conduct a further study to develop findings and recommendations for improving the efficient and effective delivery of public transit services in Vermont. 

(b)  Goal of study.  The goal of the study is to recommend a governance and funding structure for public transportation that creates the most efficient use of taxpayer funds while simultaneously creating the most efficient system of public transportation services consistent with the statutory policy goals in 24 V.S.A. § 5083.  The study shall:

(1)  Make use of the data and information generated by the current short-range transit planning process to assess the strengths and weaknesses of the public transit delivery system;

(2)  Compare the organizational structure and current service delivery system with those of several other states;

(3)  Analyze different possible organizational structures for Vermont that could lower administrative or operating costs and improve service delivery throughout the state.

(c)  The agency shall direct the study with the involvement of the agency of human services and of all public transit providers in the state who are direct grantees and sub-recipients of state and federal funds.

(d)  Consistent with federal United We Ride initiatives, the study shall consider all federal and state funding invested through or by state and federal agencies on public, human service, and related transportation programs and shall evaluate the potential for achieving greater efficiency through coordination of effort or consolidation of funding and effort.

(e)  The study report shall be delivered to the general assembly on or before January 15, 2009.

* * * Larrabee’s Point Ferry * * *

Sec. 28.  Sec. 1 of No. 59 of the Acts of 1991 is amended to read:

Sec. 1.  LARRABEE’S POINT FERRY

(a)  Rights granted.

The right and privilege of maintaining and operating a ferry across Lake Champlain from Larrabee’s Point in the town of Shoreham, county of Addison and state of Vermont, to the town of Ticonderoga in the state of New York, is granted to Shorewell Ferries, Inc 1759 Ltd. d/b/a Fort Ticonderoga Ferry, a Vermont corporation having its principal office at Shoreham in the county of Addison, its successors and assigns, for a period of 20 45 years from the first day of January, 1991.  No person other than Shorewell Ferries, Inc. 1759 Ltd. d/b/a Fort Ticonderoga Ferry, its successors or assigns, may operate a ferry within ten miles north or ten miles south from the ferry landing now in use on Larrabee’s Point during such 20 year 45-year period.  The right and privilege herein granted includes the right to maintain the existing landings.

(b)  Conditions.

Shorewell Ferries, Inc. 1759 Ltd. d/b/a Fort Ticonderoga Ferry, its successors and assigns, shall be subject to the orders of the transportation board as authorized in Title 5, parts 1 and 3 and shall pay all taxes assessed this franchise and any property of Shorewell Ferries, Inc. 1759 Ltd. d/b/a Fort Ticonderoga Ferry, used in connection with the ferry.  If the rights granted under this act are transferred to or acquired by the successors or assigns of Shorewell Ferries, Inc. 1759 Ltd. d/b/a Fort Ticonderoga Ferry, the transfer shall be recorded in the office of the secretary of state.

(c)  Forfeiture.

If Shorewell Ferries, Inc. 1759 Ltd. d/b/a Fort Ticonderoga Ferry, its successors or assigns, establishes and operates a ferry under authority of this act, it shall be the duty of Shorewell Ferries, Inc. 1759 Ltd. d/b/a Fort Ticonderoga Ferry, its successors or assigns, as the case may be, to maintain suitable and safe ferryboats, sufficient for carrying and transporting motor and other vehicles, horses, cattle, passengers, and goods, and to operate ferry service at reasonable and seasonal times as required by the transportation board, but in no event shall the transportation board require the ferry to be operated prior to May 15 or after November 15 in any calendar year.  Failure to comply with any order of the transportation board, or to pay any tax lawfully assessed against the franchise or against property of Shorewell Ferries, Inc. 1759 Ltd. d/b/a Fort Ticonderoga Ferry, its successors or assigns, owned or used in connection with the franchise, shall work a forfeiture of the rights and privileges granted under this act.

(d)  Investments made.

All investments made by 1759 Ltd. d/b/a Fort Ticonderoga Ferry into the ferry service shall be reported to the agency of transportation, upon request, to obtain appropriate toll credits.

* * * Highway Maintenance Vehicles—Right-of-Way * * *

Sec. 29.  23 V.S.A. § 1050a is added to read:

§ 1050a.  AUTHORIZED HIGHWAY MAINTENANCE VEHICLES

(a)  For purposes of this section, “authorized vehicle” means a vehicle authorized by the agency of transportation (in the case of state highways) or the municipality (in the case of town highways) to perform maintenance on a highway.

(b)  The driver of a vehicle shall yield the right-of-way to any authorized vehicle obviously and actually engaged in work upon a highway when the vehicle displays flashing lights meeting the requirements of subsection 1252(b) of this title.

* * * Vermont Coordinate System * * *

Sec. 30.  1 V.S.A. § 671 is amended to read:

§ 671.  VERMONT COORDINATE SYSTEMS DEFINED

The systems of plane coordinates which have been established by the National Ocean Service/National Geodetic Survey (formerly the United States Coast and Geodetic Survey) or its successors for defining and stating the horizontal positions or locations of points on the surface of the earth within the state of Vermont are hereafter to be known and designated as the “Vermont Coordinate System 1927 and the Vermont Coordinate System 1983.”  The term “Vermont Coordinate System” is synonymous with the term “Vermont State Plane Coordinate System.”

Sec. 31.  1 V.S.A. § 672 is amended to read:

§ 672.  COORDINATES DEFINED

The plane coordinate values for a point on the earth’s surface, used to express the horizontal position or location of such point on the Vermont Coordinate Systems, shall consist of two distances, expressed in U.S. Survey feet and decimals of a foot when using the Vermont Coordinate System 1927 and expressed in meters and decimals of a meter, or U.S. Survey feet and decimals of a foot when using the Vermont Coordinate System 1983.  One of these distances, to be known as the “x-coordinate,” shall give the position in an east-and-west direction; the other, to be known as the “y-coordinate,” shall give the position in a north-and-south direction.  These coordinates shall be made to depend upon and conform to plane rectangular coordinate values for the monumented points of the North American Horizontal Geodetic Control Network National Spatial Reference System established by the United States Coast and Geodetic Survey, its predecessor, or its successors.

* * * Railroad Vandalism Prevention * * *

Sec. 32.  13 V.S.A. § 3110 is added to read:

§ 3110.  RAILROAD VANDALISM

(a)  Purpose.  The purpose of this section is to prevent acts of vandalism to railroad property which affect the health, safety, and welfare of the traveling public, the neighboring community, and railroad employees; to protect railroad property and freight in transportation by railroad; and otherwise to enhance the safety of transportation by railroad.

(b)  Definitions.  For purposes of this section:

(1)  “Bodily injury” shall have the same meaning as in subdivision 1021(1) of this title.

(2)  “Railroad” means any form of non-highway ground transportation that runs on rails or electromagnetic guideways, including:

(A)  commuter or other short-haul railroad passenger service in a  metropolitan or suburban area; and

(B)  high-speed ground transportation systems that connect metropolitan areas, but does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation.

(3)  “Railroad carrier” means a person providing railroad transportation.

(4)  “Railroad property” means all property owned, leased, or operated by a railroad carrier, including a right-of-way, track, bridge, yard, shop, station, tunnel, viaduct, trestle, depot, warehouse, terminal, railroad signal system, train control system, centralized dispatching system, or any other structure, appurtenance, or equipment owned, leased, or used in the operation of any railroad carrier, including a train, locomotive, engine, rail car, work equipment, rolling stock, or safety device.  “Railroad property” does not include administrative buildings, administrative offices, or administrative office equipment.

(5)  “Right-of-way” means the track or roadbed owned, leased, or operated by a railroad carrier which is located on either side of its tracks and which is readily recognizable to a reasonable person as being railroad property or is reasonably identified as such by fencing or appropriate signs.

(6)  “Serious bodily injury” shall have the same meaning as in subdivision 1021(2) of this title.

(c)  Vandalism of railroad property.  No person shall, with reckless disregard for railroad property or the safety of another, commit an act which causes damage to railroad property.

(d)  Penalty for vandalism of railroad property. 

(1)  A person who violates subsection (c) of this section shall be fined not more than $500.00 or imprisoned for not more than six months, or both, if the violation results in property damage of $900.00 or less. 

(2)  A person who violates subsection (c) of this section shall be fined not more than $1,000.00 or imprisoned for not more than one year, or both, if the violation results in bodily injury to another person or property damage of greater than $900.00. 

(3)  A person who violates subsection (c) of this section shall be fined not more than $20,000.00 or imprisoned for not more than 15 years, or both, if the violation results in death or serious bodily injury to another person.

(e)  Aggravated railroad vandalism.  A person who intentionally causes damage to railroad property which results in death or serious bodily injury to another person shall be guilty of aggravated railroad vandalism.

(f)  Penalty for aggravated railroad vandalism.  A person who violates subsection (e) of this section shall be fined not more than $25,000.00 or imprisoned for not more than 15 years, or both. 

(g)  If serious bodily injury or death results to more than one person other than the defendant as a result of a violation of this section, the defendant may be convicted of a separate violation of this section for each decedent or person injured.

Sec. 33.  REPEALS

(1)  13 V.S.A. §§ 3101-3104 are repealed (railroad crimes).

(2)  5 V.S.A. § 3733 is repealed (damage to mills, dams and bridges).

* * * Bennington Rail Banking Project * * *

Sec. 34.  BENNINGTON RAIL BANKING PROJECT

The Bennington rail banking project, of which the project Bennington STP Bike (26) is a portion, is authorized pursuant to the following conditions:

(1)  Subject to Surface Transportation Board and Vermont Railway, Inc. approval, the rail banking shall commence at a point south of the VT 7A underpass, but not south of valuation station 3103+00 of which is located 1,700 feet south of the VT 7A underpass, and extend southerly to the terminus of the railroad in Bennington.

 (2)  A runaround track shall be constructed as part of the bike path project north of valuation station 3103+00 when project Bennington STP Bike (26) is constructed.

(3)  The town of Bennington shall be responsible for:

(A)  all fees and expenses incurred as part of the STB rail banking proceedings;

(B)  all costs associated with the removal and proper disposal of the rails and ties with the town retaining the entire salvage value of the rails and ties; and

(C)  after the rails and ties have been removed, all costs associated with grading the rail bed to a uniform grade in a neat appearance, allowing for proper drainage of the rail bed.

(4)  where feasible and with the approval of the Vermont Railway, Inc., a portion of the railroad right-of-way between valuation station 3103+00 and VT 7A may be used for a transportation path provided it does not interfere with railroad operations.

* * * School Bus Exemption for School Employees and Volunteers * * *

Sec. 35.  23 V.S.A. § 4(34)(A)(iv) is amended to read:

(iv)  motor vehicles with a manufacturer’s rated seating capacity of fewer than 11 persons, including the operator, which are owned, leased, or hired by a school, or for which services are reimbursed by a school.  However, if used to transport students, these shall be considered a Type II school bus for purposes of licensure, shall display an identification sign as prescribed in subdivision 1283(a)(1) of this title, and shall be equipped with a simple system of at least two red alternating warning lights; unless the driver is a school employee or a volunteer approved by the school or a regional public transit agency after a criminal background check, and is transporting no more than four students excluding the operator, provided that the vehicle has seat belts for all persons being transported;

* * * Public Transportation System Integrity * * *

Sec. 36.  PUBLIC TRANSPORTATION SYSTEM INTEGRITY

(a)  Notwithstanding any other law to the contrary, the agency of transportation is authorized, first, to spend up to $100,000.00 in federal funds from the Public Transit Program – Statewide Encouragement of Carpools (STP RIDE) program and, second, to spend up to $350,000.00 in funds ($315,000.00 federal funds and $35,000.00 state funds) from the Public Transit Program – Statewide Capital to make grant awards to subrecipients and other public transportation providers for the purpose of maintaining existing public transportation services statewide. 

(b)  To help the agency of transportation determine whether increased costs are likely to trigger service reductions in the statewide system of general public transportation services, each public transportation provider, by May 31, 2008, shall provide the agency of transportation with an estimate of its projected budget deficit, if any, for fiscal year 2009, assuming continuation of the services in existence upon passage of this act.  Each projected budget deficit estimate shall be the difference in the amount between revenues budgeted by the provider agency in a board-approved budget and the expenses now necessary to incur to maintain current service levels.  Public transportation providers shall inform the agency of transportation of the per-gallon fuel price used to determine operating expenses, their capacity to use preventive maintenance funding to maintain existing levels of service, as well as any other information that the agency of transportation may deem necessary to conduct its analysis.

(c)  The agency of transportation in making grant awards under this section shall mitigate to the greatest extent practicable loss of general public transportation services.  In addition, the agency of transportation shall provide for an equitable geographic distribution of funds statewide, if possible, depending upon each provider’s ability to utilize preventive maintenance funding. 

(d)  Any funding not needed to maintain existing services shall remain in the capital program.

(e)  As early as practicable, the agency of transportation shall issue a report to the joint transportation oversight committee  established under 19 V.S.A. § 12b(a) regarding grant awards made under this section.

* * * Transportation Funds in Support of General Government * * *

Sec. 37.  19 V.S.A. § 11a is amended to read:

§ 11a.  Transportation funds appropriated for support of government

The maximum amount of transportation funds that may be appropriated for the support of government, other than for the agency of transportation, the transportation board, transportation pay act funds, construction of transportation capital facilities used by the agency of transportation, and transportation debt service shall not exceed $35,007,219 $35,007,219.00 in fiscal year 2008 and in fiscal year 2009 and thereafter shall not exceed $32,852,807.00.

* * * Recycled Asphalt Pavement * * *

Sec. 38.  19 V.S.A. § 10c(m) is added to read:

(m)  Recycled asphalt pavement (RAP) shall be used on all agency paving projects to the extent sources of quality RAP are available consistent with producing quality hot mix asphalt.  To that extent, the agency shall define paving project specifications and contract bid documents to allow the use of up to 50 percent RAP.  The agency shall compare the cost-benefit of the state retaining the RAP versus the contractor retaining the RAP, and the agency shall report to the house and senate committees on transportation on the results of the comparison of the 2009 and 2010 legislative sessions.

* * * Smugglers Notch * * *

Sec. 39.  23 V.S.A. § 1006b is amended to read:

§ 1006b.  SMUGGLERS NOTCH; WINTER CLOSURE OF VERMONT ROUTE 108

     The agency of transportation may close the Smugglers Notch segment of Vermont Route 108 during periods of winter weather. To enforce the winter closure, the agency shall erect a lockable gate at both closure points, extending the width of the highway, posted with signs advising that the highway is closed and that traveling on the highway when it is closed is a violation of the motor vehicle laws of the state.  Notwithstanding any law to the contrary, if the highway is officially closed but the gates at both closure points are not in a locked position across the highway, no ticket or any other form of summons and notice of a motor vehicle violation shall be issued to motorists driving on the closed portion of the highway signs conforming to the standards established by section 1025 of this title.

Sec. 40.  SUPPLEMENTARY MEASURES; RECREATIONAL AND EMERGENCY ACCESS

To preclude unauthorized access by motor vehicles to the Smugglers Notch segment of Vermont Route 108 when it is closed during periods of winter weather, the agency of transportation shall develop and implement a plan by December 15, 2008 to provide for installation of physical barriers and supplementary signage.  The plan shall provide for the continued accommodation of recreational and emergency access.

* * * State Rail Trails * * *

Sec. 41.  STATE MAINTAINED RAIL TRAILS

The agency shall report to the house and senate committees on transportation by January 15, 2009 on a funding and management plan for all rail trails that are owned and maintained by the agency.

* * * Repeal of Miscellaneous Reporting Requirements * * *

Sec. 42.  SESSION LAW REPEALS

The following provisions of session law are repealed:

(1)  Sec. 2(a) of  No. 144 of (1998) of the Acts of the 1997 Adj. Sess. (report on changes in the scheduling of projects in the transportation capital program or project development plan).

(2)  Sec. 3(a) of No. 18 of 1999 (report on changes in the scheduling of projects in the transportation capital program or project development plan).

(3)  Sec. 3(a) of No. 156 of (2000) the Acts of the 1999 Adj. Sess. (report on changes in the scheduling of projects in the transportation capital program or project development plan).

(4)  Sec. 48(c) of No. 80 of 2005 (report on the status of Connecticut River bridge projects).

(5)  Sec. 20 of No. 175 of (2006) the Acts of the 2005 Adj. Sess. (report on purchase of equipment for Amtrak).

(6)  Sec. 50 of No. 175 of (2006) of the Acts of the 2005 Adj. Sess. (report on collection of town bridge and culvert inventory data).

Sec. 43.  TITLE 19 REPEALS

The following provisions of Title 19 are repealed:

(1)  § 10g(d)(1) (analysis of balance between the state’s commitment to transportation projects and total available resources over the 10-year period commencing with the fiscal year of the transportation program).

(2)  § 10g(e) (separate report regarding certain projects with cost estimates exceeding $5 million). 

Sec. 44.  TITLE 23 REPEALS

The following provisions of Title 23 are repealed:

(1) § 304b(a) (report regarding conservation motor vehicle registration plates).

(2)  § 1042(d) (report on municipal truck routes).

(3)  § 1803(k) (annual report of Vehicle Equipment Safety Commission).

Sec. 45.  TITLE 32 REPEAL

32 V.S.A. § 706(4) (report on transfers of appropriation balances within the agency of transportation) is repealed:

* * * Aggregate Sources * * *

Sec. 46. AGGREGATE SOURCES

The agency of transportation shall coordinate with the agency of natural resources to investigate the potential for prepermitting new state aggregate sources, including the temporary installation of portable asphalt pavement plants associated with transportation resurfacing projects.  The agency’s director of program development shall brief the house and senate committees on transportation on the outcome of the evaluation during testimony on the fiscal year 2010 budget.

* * * Addison-Crown Point, NY Bridge * * *

Sec. 47. ADDISON-CROWN POINT, NY BRIDGE

Before entering into any agreement with the New York state department of transportation regarding replacement or rehabilitation of the bridge over Lake Champlain between Addison, VT and Crown Point, NY, the agency of transportation shall ensure that the agreement provides for thorough consideration of alternative transportation options, including replacement of the bridge with a ferry.    

* * * Truck Annual Permit Pilot Project * * *

Sec. 48.  23 V.S.A. §1402(e) is added to read:

(e)  Pilot project allowing annual permits for low bed trailers.

(1)  The commissioner may issue an annual permit to allow the transportation of a so-called “low-bed” trailer.  A “low-bed” trailer is defined as a trailer manufactured for the primary purpose of carrying heavy equipment on a flat-surfaced deck, which deck is at a height equal to or lower than the top of the rear axle group.

(2)  A blanket permit may be obtained for an annual fee of $250.00 per unit, provided the total vehicle length does not exceed 75 feet, does not exceed a loaded width of 12’6”, does not exceed a total weight of 108,000 lbs., and has a height not exceeding 14 feet.

(3)  Warning signs and flags shall be required if the vehicle exceeds 75 feet in length, or exceeds 8’6” in width.

(4)  This subsection shall expire on June 30, 2010.  No later than January 15, 2010, the department of motor vehicles, after consultation with the agency of transportation, Vermont League of Cities and Towns, and Vermont Truck and Bus Association, shall report to the house and senate committees on transportation on the results of this two year pilot project.  The report shall include recommendations on extending this provision on low bed trailers, as well as other recommendations relating to longer vehicle lengths.

* * * Vermont Truck Network * * *

Sec. 49.  23 V.S.A. § 1432(c) is amended to read:

(c)  The truck network.  The truck network shall consist of the following: U.S. Route 2 between the New Hampshire state line and the junction of U.S. Route 5; U.S. Route 2 from the junction of exit 21 on I-91 to exit 8 on Interstate 89; U.S. Route 2 between the New York state line and VT Route 78; VT Route 2A; U.S. Route 4 from the New York state line to the junction of VT Route 100 south; VT Route 279 from the New York state line to the junction of U.S. Route 7; U.S. Route 5 from the junction of U.S. Route 2 to the junction of exit 20 of I-91; U.S. Route 5 between I-91 at exit 22 to the south entrance of the St. Johnsbury-Lyndonville industrial park; U.S. Route 5 south from I-91 at exit 22 to the intersection of St. Johnsbury Railroad Street and Hastings Hill Street; U.S. Route 7; VT Route 9 from the New York state line to the junction of exit 2 on I-91; VT Route 9 from the junction of exit 3 on I-91 to the New Hampshire state line; VT Route 18 from U.S. Route 2 to the New Hampshire state line; VT Route 22A between U.S. Route 4 and U.S. Route 7; VT Route 78; VT Route 103; VT Route 105 from the junction of U.S. Route 7 to the junction of VT Route 100, then southerly on VT Route 100 to the junction of VT Route 100 and VT Route 14, then easterly on VT Route 14 to the junction of VT Route 14 and U.S. Route 5, then northerly on U.S. Route 5 to the junction of U.S. Route 5 and VT Route 105, then easterly on VT Route 105 from the junction of U.S. Route 5 to the New Hampshire border; VT Route 104 from VT Route 105 to I-89 at exit 19; VT Route 253 from the New Hampshire border to the Canadian border; VT Route 289; and U.S. Route 302. The commissioner is authorized to place special restrictions applying to motor vehicles on any route of the truck network when, in his or her opinion, the restrictions would provide for the safe operation of all vehicles on the route.

* * * Enhancement Grants * * *

Sec. 50.  TRANSPORTATION ENHANCEMENT GRANTS

Notwithstanding 19 V.S.A. § 38(e), no new awards will be made under the transportation enhancement grant program during federal fiscal year 2009.  The agency shall advise towns and other potential applicants of the one-year suspension.

* * * Authority to Purchase Amtrak Equipment * * *

Sec. 51.  Sec. 44 of No. 75 of the Acts of 2007 is amended as follows:

Sec. 44.  LEGISLATIVE APPROVAL FOR PURCHASE OF EQUIPMENT  FOR AMTRAK VERMONT SERVICE

(a)  Pursuant to Sec. 20 of No. 175 of the Acts of the 2005 Adj. Sess. (2006), the general assembly approves the state of Vermont’s purchase, through the agency of transportation, of five Colorado Rail Car units, consisting of three motorized units and two passenger cars.

(b)  This approval is subject to the following conditions:

(1)  Financing for the demonstration project must be available under the Railroad Rehabilitation & Improvement Financing (RRIF) loan program administered by the Federal Railroad Administration (FRA).

(2)  The Diesel Multiple Unit (DMU) equipment selected by Amtrak through a competitive procurement process in 2003 must be utilized.

(3)  The purchase contract with the DMU vendor shall include an option to purchase future equipment, with pricing protections.

(4)  The DMU equipment must meet or exceed current Federal Railroad Administration (FRA) structural safety requirements. 

(5)  The DMU equipment must comply with accessibility standards under the Americans with Disabilities Act (ADA).

(6)  The vendor of the DMU equipment must agree, should the state of Vermont determine that the demonstration project is unsuccessful, to act as the state’s agent to sell the DMU equipment at a minimum of 90 percent of the purchase price and, should the DMU equipment not sell within one year, to purchase the DMU equipment back at 90 percent of the purchase price.  The stipulation in the vendor contract related to the equipment buyback must be reviewed by the state treasurer as containing satisfactory protection for the state’s financial interest related to the state indebtedness limits.

(7)  The contract for construction and purchase of the DMU equipment must be approved by the state treasurer and the attorney general as including sufficient guarantees to assure successful manufacture and delivery of the DMU equipment, as well as performance of the vendor’s undertakings to sell or buy back the DMU equipment, should the state determine that the demonstration project is unsuccessful.

(8)  Any agreements between the state of Vermont and Amtrak or the FRA must be flexible enough to permit redeployment of the DMU equipment in the event of the reconfiguration of Amtrak service to Vermont.

* * * Report on Diesel Tax Exemption * * *

Sec. 52. REPORT ON MOTOR BUS EXEMPTION FROM DIESEL TAX

The joint fiscal office shall analyze and report by January 15, 2009 to the house and senate committees on transportation on the transportation fund revenue implications of amending the diesel tax to eliminate the exemption for motor buses.  The report shall specifically consider the revenue implications of amending 23 V.S.A. § 3003(d) to read:

§ 3003.  IMPOSITION OF TAX; EXCEPTIONS

* * *

(d)(1)  For users, the following uses shall be exempt from taxation under this chapter and be entitled to a credit for any tax paid for such uses under section 3020 of this title:

(A)  uses, the taxation of which would be precluded by the laws and Constitution of the United States and this state;

(B)  uses for agricultural purposes not conducted on the highways of the state;

(C)  uses by any state, municipal, school district, fire district or other governmentally owned vehicles for official purposes;

(D)  uses by any vehicle off the highways of the state; and

(E)  uses by motor buses registered in this state; and

(F)  uses by any vehicle registered as a farm truck under subsection 367(f) of this title.

(2) Provided, however, that no tax shall be due with respect to fuel for use in any state, municipal, school district, fire district or other governmentally-owned vehicle owned, leased, or contracted for other than single-trip use by a government entity, as long as the distributor takes from the purchaser at the time of sale an exemption certificate in the form prescribed by the commissioner; and provided, further, that no tax shall be due with respect to fuel delivered for farm use to a farm bulk fuel storage tank.

* * *

* * * Railroad Farm Crossings * * *

Sec. 53.  5 V.S.A. § 3456 is amended to read:

§ 3456.  JURISDICTION

Without affecting special provisions of law relating to matters contained herein, the board shall have jurisdiction on due notice to hear, determine, render judgment, and make orders and decrees in all matters provided for in the charter of any railroad, or in the statutes of this state relating to railroads, and shall have like jurisdiction in all matters respecting:

* * *

(3)  The construction and maintenance of proper fences, cattle guards and, farm crossings, and rural crossings;

* * *

Sec. 54.  5 V.S.A. § 3639 is amended to read:

§ 3639.  FARM CROSSINGS AND CATTLE GUARDS; CONSTRUCTION AND MAINTENANCE

(a)  For the purposes of this subchapter, “farm crossing” means a railroad crossing that is utilized exclusively as access to and from adjoining property which is actively used for farming including one residence of the farmer or farm family, or residence of a farm employee or employee family when the housing is owned by the farmer, and the resident is directly involved in the day-to-day operation of the farm.

(b)  A crossing that does not completely meet the criteria for a “farm crossing” as set forth in subsection (a) of this section nor the criteria for a rural crossing as set forth in section 3639a of this title shall be deemed a private crossing.  The owner of property accessed by a private crossing shall be liable for the total costs associated with construction, upgrade, and maintenance of the crossing as well as securing and maintaining liability insurance.

(c)(1)  For the purposes of this subchapter, “farming” shall mean any of the following activities that, by themselves or together, amount to a minimum of 50 percent of the use of the land served by the farm crossing:

(A)  the cultivation or other use of land for growing food, fiber, Christmas trees, maple sap, horticultural and orchard crops, or forest products; or

(B)  the raising, feeding, or management of livestock, poultry, fish, or bees; or

(C)  the operation of greenhouses; or

(D)  the production of maple syrup; or

(E)  the on-site storage, preparation, and wholesale of agricultural products principally produced on the farm; or

(F)  the on-site production of fuel or power from agricultural products or wastes produced on the farm.

(2)  Farming shall not include retail and other activities which involve use of a crossing by the general public, including but not limited to farm stands, pick-your-own operations, and cut-your-own operations.

(d)(1)  A person or corporation owning or operating a railroad shall construct and maintain farm crossings of the road railroad for the use of the proprietors of accommodation of farming on lands adjoining the railroad, and .  If livestock are kept on those adjoining lands, the railroad shall provide cattle guards or gates at all farm and road highway crossings sufficient to prevent cattle and animals from getting on the railroad.  A farm crossing may be temporarily or permanently closed or discontinued by mutual agreement between all parties having an interest therein.  If no such mutual agreement can be reached by such interested parties, then a person or corporation owning or operating a railroad and desiring to close any farm crossing shall make application to the transportation board.  The board shall thereupon give notice to all parties interested, in such manner as the board may direct, of hearing on such application, such hearing to be in the county where such crossing is located. After such hearing, a person or corporation owning or operating a railroad shall not close such farm crossing without the approval of the transportation board.  A person aggrieved by the closing of a farm crossing after January 1, 1955, by a person or corporation owning or operating a railroad may notify the transportation board by registered or certified mail of such closing, and thereupon such board shall conduct a hearing.  Notice and place of hearing shall be as hereinbefore provided.  The transportation board may require the reopening of any such crossing and make such other order as is permitted in section 3649 of this title.  At any such hearing the burden of proof shall rest with the person or persons effecting or seeking to effect the closing of such farm crossing.  Any person aggrieved by an order of the transportation board may, in accordance with Rule 75 of the Vermont Rules of Civil Procedure, appeal to the superior court, whereupon such cause shall be tried as an original action brought under the provisions of section 402 of Title 12.  The railroad shall file for record notice of the existence of the farm crossing maintained by the railroad in the clerk’s office of the town where the crossing is located.

(2)  In the event that a farmer significantly increases actual use of a farm crossing, either temporarily or permanently, the farmer shall notify the railroad of the nature, scope, and duration of the increase prior to the increase so as to give the railroad sufficient time to alert its train crews operating a train over the crossing of the increase in use.  Where the nature, scope, and duration of the increase in use is such that an upgrade is necessary, the railroad shall pay the first $2,500.00 of the cost, three-fourths of the cost between $2,500.00 and $5,000.00, one-half of the cost from $5,000.00 to $10,000.00, and the farmer shall pay all of the cost of the upgrade over $10,000.00.  Where the railroad and the farmer cannot come to mutual agreement over the necessary upgrade and the cost of the upgrade, application shall be made to the transportation board pursuant to section 3639b of this title.  A railroad shall be notified by the farmer of a crossing whenever a farm crossing that has not been permanently closed is again being used.

(b)  A person or railroad corporation closing any farm crossing in violation of a provision of this section or failing to comply with any such order shall be fined not less than $50.00 nor more than $500.00 and any person aggrieved by such violation may recover his or her damages in an action on this statute.

Sec. 55.  5 V.S.A. § 3639a is added to read:

§ 3639a.  RURAL CROSSINGS

(a)  For purposes of this section, a “rural crossing” is a crossing that:

(1)  Was a farm crossing in existence on January 1, 1955;

(2)  Has not been authorized for closure by mutual agreement of the parties or by an order of the public service board or the transportation board;

(3)  Is no longer used for the accommodation of farming as defined in section 3639 of this title;

(4)  Is not the subject of a private crossing agreement between the railroad and the owner of the land accommodated by the crossing; and

(5)  Has not been laid out as a town or state highway.

(b)  Notwithstanding section 3425 of this title, a railroad shall maintain rural crossings to accommodate the historic uses of the crossings as they existed for 15 or more years prior to January 1, 2008.  The railroad shall file for record notice of the existence of the rural crossing maintained by the railroad in the clerk’s office of the town where the crossing is located.  However, a railroad shall not be under any obligation to construct improvements to the crossing to accommodate new or additional uses of the crossings.

(c)  A railroad shall not close a rural crossing except by agreement with the owner of the land accommodated by the crossing or pursuant to an order of the transportation board under section 3639b of this title which authorizes the closure.

Sec. 56.  5 V.S.A. § 3639b is added to read:

§ 3639b.  TRANSPORTATION BOARD HEARINGS

(a)  A farm or rural crossing may be temporarily or permanently closed,  discontinued, consolidated, upgraded, or moved by mutual agreement between all parties having an interest in the crossing.  If a mutual agreement cannot be reached by the interested parties, then a railroad desiring to close, discontinue, consolidate, or move any farm or rural crossing shall make application to the transportation board.  The board shall give notice of the hearing to all interested parties, including, but not limited to, the owner of the land accommodated by the crossing, the legislative body of the municipality in which the crossing is located, the secretary of transportation, and the secretary of agriculture, food and markets.  The hearing shall be held in the county where the crossing is located.

(b)  In considering whether to approve closure, discontinuance, consolidation, upgrade, or movement of a farm or rural crossing, the board shall consider the following:

(1)  The availability of alternative access to the property served by the crossing;

(2)  The feasibility of consolidating two or more existing crossings;

(3)  Safety issues, taking into account actual and expected pedestrian and vehicular use of the crossing, as well as present and reasonably foreseeable rail traffic and train speeds; and

(4)  The cost of improvements to the crossing as compared to the value of the land accommodated by the crossing. 

(c)  The board may delay the effective date of an order approving closure, discontinuance, consolidation, upgrade, or movement of a farm or rural crossing for up to one year to allow the parties a reasonable opportunity to negotiate a private crossing agreement.

(d)  A person aggrieved by a railroad’s closing, discontinuance, consolidation, upgrade, or movement of a farm or rural crossing after January 1, 1955 or by a railroad’s failure to maintain a farm or rural crossing as required in sections 3639 and 3639a of this title shall notify the parties by certified mail, specifying the location of the crossing and the relief sought from the railroad.  If the person remains aggrieved 10 days after providing notice, the person may file a request for hearing with the board, which shall promptly schedule a hearing in accordance with subsections (a) and (b) of this section.

(e)  The transportation board shall retain jurisdiction of cases where there has been a change of conditions regarding a crossing.

(f)  The final order of the transportation board shall be filed by the aggrieved party for record in the clerk’s office of the town where the crossing is located.

Sec. 57.  5 V.S.A. § 3639c is added to read:

§ 3639c.  CIVIL PENALTY

A railroad closing any farm or rural crossing in violation of sections 3639 and 3639a of this title, or in violation of an order of the transportation board under section 3639b of this title, shall be subject to a civil penalty of not less than $500.00 nor more than $5,000.00.  A person aggrieved by such a violation may recover his or her damages in an action on this statute.

Sec. 58.  23 V.S.A. § 1006 is amended to read:

§ 1006.  STOPPING AT RAILROAD CROSSINGS

The traffic committee may designate particularly dangerous railroad grade crossings, and the agency of transportation shall erect stop signs at each railroad grade crossing designated by the traffic committee.  The expense of erecting these stop signs shall be borne by the agency of transportation.

* * * Bellows Falls Mural * * *

Sec. 59. BELLOWS FALL MURAL

The art deco style mural painted on the side of a building celebrating the town of Bellows Falls located on property at 660 Rockingham Road (U.S. Rt. 5) in Bellows Falls approximately 0.6 miles south of exit 6 of Interstate 91 is not subject to the provisions of 10 V.S.A. Chapter 21.

* * * Effective Dates * * *

Sec. 60.  EFFECTIVE DATES

Secs. 14(2), 20, and 36 of this act shall take effect from passage.

Senate Proposals of Amendment to House Proposals of Amendment

S. 240

     An act relating to repealing the sunset of the law enforcement exemption to the social security breach notice act.

The Senate concurs in the House proposal of amendment, with the following amendment thereto:

By striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  EXTENSION OF SUNSET OF LAW ENFORCEMENT EXEMPTION TO SECURITY BREACH NOTICE ACT

Sec. 5 of No. 162 of the Acts of the 2005 Adj. Sess. (2006) is amended to read:

Sec. 5.  SUNSET

9 V.S.A. § 2435(h) (exemption for law enforcement agencies from security breach notice act) shall be repealed June 30, 2008 2012.

The Senate further proposes that after passage, the title of the bill be amended to read:

An act relating to EXTENDING the sunset of the law enforcement exemption to the security breach notice act

S. 290

     An act relating to agricultural water quality financing.

The Senate concurs in the House proposal of amendment  with the following amendment thereto:

In Sec. 1, 6 V.S.A., § 4828, subsection (b) after the words “plan implementation” by inserting the following: and for the purchase of contract services to conduct nutrient management, including contracting with custom spreaders for application of manure.

 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us