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House Calendar

THURSDAY, APRIL 24, 2008

108th DAY OF ADJOURNED SESSION

House Convenes at 10:30 A M

TABLE OF CONTENTS

                                                                                                               Page No.

ACTION CALENDAR

Unfinished Business of Wednesday, April 23, 2008

S. 168  Operating a Motor Vehicle Under Influence of Alcohol or Drugs....... 2347

          Rep. Courcelle Amendment................................................................ 2349

          Rep Koch Amendment....................................................................... 2349

S. 281  Relating to End-of-Life Care and Pain Management.......................... 2349

          Rep. Frank for Human Services

          Rep. Hunt for Appropriations.............................................................. 2351

NEW BUSINESS

Third Reading

S. 114  Enhancing Mental Health Parity........................................................ 2352

          Rep. Donahue Amendment

S. 336  Relating to Juvenile Judicial Proceedings........................................... 2352

          Rep. Flory Amendment....................................................................... 2352

S. 354  Public Agency Deferred Compensation Plans................................... 2371

S. 361  Relating to Authority to Lease the State Lottery................................ 2371

S. 373  Full funding of Decommissioning Costs of Nuclear Plant.................... 2371

Favorable with Amendment

S. 284  Relating to BISHCA....................... 2374Rep. Kupersmith for Commerce

S. 304  Relating to Groundwater Withdrawal Permit Program....................... 2381

          Rep. Anderson for Fish, Wildlife and Water Resources

          Rep. Helm Amendment....................................................................... 2390

S. 311  Relating to the Use Value Appraisal Program.................................... 2391

          Rep. Randall for Fish, Wildlife and Water Resources

          Rep. Winters for Ways and Means..................................................... 2397

          Rep. Hutchinson for Appropriations.................................................... 2397

 

S. 345  Lowering the Cost of Workers’ Compensation Insurance................. 2398

          Rep. Kitzmiller for Commerce

          Rep. Keenan for Appropriations......................................................... 2409

          Rep. Bray  et al Amendment............................................................... 2410

          Rep. McDonald Amendment.............................................................. 2411


S. 357
  Relating to Domestic Violence.......................................................... 2412

          Rep. Lippert for Judiciary

          Rep. Howard for Ways and Means..................................................... 2432

          Rep. Heath for Appropriations............................................................ 2433

S. 364  Comprehensive Assessment VT Yankee Nuclear Facility.................. 2435

          Rep. Klein for Natural Resources and Energy

          Rep. Keenan for Appropriations......................................................... 2442

          Rep. Klein Amendment....................................................................... 2442

Favorable

S. 227  Relating to Angel Investors............................................................... 2443

          Rep. Botzow for Commerce

 

S. 270  Agreement Between States to Elect President by Popular Vote......... 2443

          Rep. Sweaney for Government Operations

Senate Proposals of Amendment

H. 11  Relating to the Commissioner of Health.............................................. 2443

H.  94  Retail Sales and Taxing of Specialty Beers........................................ 2444

          Rep. Wright Amendment.................................................................... 2445

H. 290  Underground Utility Damage Prevention System.............................. 2446

H. 306  Relating to Telemarketing................................................................ 2448

H. 330  Repeal of Law Relating to Municipal Trailer Park Ordinances.......... 2450

H. 432  Establishing Juneteenth National Freedom Day................................. 2450

H. 515  Collection and Disposition of Mercury-Added Thermostats.............. 2451

H. 617  Relating to Guardianships................................................................ 2458

H. 711  Agriculture, Forestry and Horticultural Education............................. 2460

H. 777  Relating to Certificate of Need Program........................................... 2461

H. 806  Relating to Public Water Systems.................................................... 2467

H. 867  Health Insurance for Athletic Trainer Services.................................. 2468

Senate Proposals of Amendment to House Proposals of Amendment

S. 240  Repealing Sunset Law Social Security Breach Notice Act................. 2470

S. 290  Agriculture Water Quality Financing................................................. 2471

 

 

 

 

NOTICE CALENDAR

Favorable with Amendment

S. 112  Relating to Victims Compensation.................................................... 2471

          Rep. Grad for Judiciary

S. 250  Cocaine and Heroin Drug Trafficking Penalties................................. 2472

          Rep. Lippert for Judiciary

S. 350  Relating to Energy Independence and Economic Prosperity............... 2473

          Rep. Cheney for Natural Resources and Energy

          Rep. Branagan for Ways and Means................................................... 2487

          Rep. Keenan for Appropriations......................................................... 2487

H. 859  Increasing Substance Abuse Treatment; Training & Housing............. 2487

          Senate Proposal of  Amendment

          Rep. Emmons for Corrections and Institutions..................................... 2503       

Senate Proposals of Amendment

H. 203  Estate Entitlement of Surviving Spouse............................................. 2490

H. 278  Relating to Financing Campaigns...................................................... 2490

H. 436  Amendments to Local Election & Municipal Gov’t Laws.................. 2490

Governor’s Veto

S. 278  Relating to Campaign Finance.......................................................... 2542

 

CONSENT CALENDAR

(See Addendum to House and Senate Calendar)

H.C.R. 280  Congratulating Supt. Brenda Needham VT Supt. Of Year........ 2545

H.C.R. 281  Congratulating Windsor Fall Fit & Healthy Kids Challenge....... 2545

H.C.R. 282  Honoring VT Council on World Affairs.................................... 2545

H.C.R. 283  Congratulating Robert Hamlin for HS Wrestling Career............ 2545

H.C.R. 284  Congratulating Stowe HS Field Hockey Team......................... 2545

H.C.R. 285  Congratulating Stowe HS Girls’ Nordic Team.......................... 2545

H.C.R. 286  Congratulating Marion Gray 2008 Scholarship Winners............ 2545

H.C.R. 287   Congratulating Stowe HS Soccer Team.................................. 2545

H.C.R. 288  Congratulating Chandler Kennedy for Vocal Competitions....... 2545

H.C.R. 289  Congratulating United Counseling on 50th Anniversary............. 2545

H.C.R. 290  Congratulating Nat’l Life Group on 160th Anniversary............. 2545

H.C.R. 291  Congratulating VT MATHCOUNTS Competitions.................. 2545

H.C.R. 292  Congratulating  Dr. Marshall Land of Shelburne ...................... 2546

H.C.R. 293  Congratulating VT’s All-Vermont Academic Teams................. 2546

S.C.R.   52  Honoring Robert Stiller for Achievements and Vision................ 2546

ORDERS OF THE DAY

ACTION CALENDAR

          Unfinished Business of Wednesday, April 23, 2008

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 )

Amendment to be offered by Rep. Courcelle of Rutland City to proposal of amendment of the Committee on Judiciary to S. 168

Moves to amend the proposal of amendment in Sec. 3 (a) (4), after the word “Vermont” by inserting the words “, and the advisability of lowering the .04 blood alcohol limit on commercial driver’s licenses   

Amendment to be offered by Rep. Koch of Barre Town to proposal of amendment of the Committee on Judiciary to S. 168

Moves to amend the proposal of amendment as follows:

First:  In Sec. 1, 23 V.S.A. § 1130a(a)(1), after the words “alcohol or” by inserting the words “one or more

Second:  In Sec. 2, 23 V.S.A. § 1200(2), by striking subdivision (B) in its entirety and inserting in lieu thereof a new subdivision (B) to read as follows:

(B)  any substance or combination of substances, other than alcohol, which affects the nervous system, brain, or muscles of a person as to impair, noticeably and appreciably, a person’s ability to drive a vehicle safely.  

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 )

Third Reading

S. 114

An act relating to enhancing mental health parity.

     Amendment to be offered by Rep. Donahue of Northfield to proposal of amendment of the Committee on Human Services to S. 114

     Moves the proposal of amendment as amended by the house committee on human services be further amended by striking Sec. 1, subsection (d)(e), in its entirety and inserting in lieu thereof the following:

(d)(e) A Notwithstanding the provisions of subdivision (c)(1) of this section, 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, provided that a health insurance plan that uses management of care for an insured for treatment of mental health and other health conditions shall not place, or permit an affiliate to place, any greater burden on the insured’s access to treatment for mental health conditions than it does on access to treatment for the majority of other specialty care under the plan.  The commissioner may adopt rules requiring health insurers to demonstrate compliance with this subsection and may disapprove any plan that the commissioner determines to be inconsistent with the purposes of this section.

S. 336

An act relating to juvenile judicial proceedings.

Amendment to be offered by Rep. Flory of Pittsford to Proposal of Amendment of the Committee on Judiciary to S. 336

Moves the proposal of amendment be amended by adding a new Sec. 8 to read as follows:

Sec. 8.  33 V.S.A. chapter 53 is added to read:

Chapter 53.  Children in Need of Care

or Supervision

§ 5301.  Taking into custody 

A child may be taken into custody:

(1)  Pursuant to an order of the family court under the provisions of this chapter.

(2)  By an officer when the officer has reasonable grounds to believe that the child is in immediate danger from his or her surroundings and that removal is necessary for the child’s protection.

(3)  By an officer when the officer has reasonable grounds to believe that the child has run away from a custodial parent, a foster parent, a guardian, a custodian, a noncustodial parent lawfully exercising parent-child contact, or care provider.

§ 5302.  Request for Emergency Care Order  

(a)  If an officer takes a child into custody pursuant to subdivisions 5301(1) and (2) of this title, the officer shall immediately notify the child’s custodial parent, guardian, or custodian and release the child to the care of the child’s custodial parent, guardian, or custodian unless the officer determines that the child’s immediate welfare requires the child’s continued absence from the home.

(b)  If the officer determines that the child’s immediate welfare requires the child’s continued absence from the home, the officer shall:

(1)  Remove the child from the child’s surroundings, contact the department, and deliver the child to a location designated by the department.  The department shall have the authority to make reasonable decisions concerning the child’s immediate placement, safety and welfare pending the issuance of an emergency care order.

(2)  Prepare an affidavit in support of a request for an emergency care order and provide the affidavit to the state’s attorney.  The affidavit shall include:  the reasons for taking the child into custody; and to the degree known, placements with which the child is familiar; the names, addresses, and telephone number of the child’s parents, guardian, custodian, or care provider; the name, address, and telephone number of any relative who has indicated an interest in taking temporary custody of the child.  The department may prepare an affidavit as a supplement to the affidavit of the law enforcement officer if the department has additional information with respect to the child or the family.

(c)  If the child is taken into custody during regular court hours, the state’s attorney shall immediately file a request for an emergency care order accompanied by the supporting affidavit or direct the immediate return of the child to the child’s custodial parent, guardian, or custodian.  If the child is taken into custody after regular court hours or on a weekend or holiday, the state’s attorney or officer shall contact a judge to request an emergency care order or return the child to the child’s custodial parent, guardian, or custodian.  If an order is granted, the state’s attorney shall file the supporting affidavit with the court on the next day that the court is open.

(d)  If the judge denies a request for an emergency care order, the state’s attorney shall direct immediate return of the child to the child’s custodial parent, guardian, or custodian.    

§ 5303.  Procedure for runaway children  

(a)  If an officer takes a child into custody pursuant to subdivision 5301(3) of this title, the officer shall deliver the child to:  

(1)  the child’s custodial parent, foster parent, guardian, custodian, or noncustodial parent lawfully exercising parent-child contact; or

(2)  a shelter designated by the department pursuant to section 5304 of this title as qualified to assist children who have run away for the purpose of reuniting them with their parents, guardian, or legal custodian.

(b)  Upon delivery of a child to a shelter, the shelter program director or his or her designee, shall notify the child’s parents, guardian, or custodian that the child has been taken into custody and make reasonable efforts to mediate the differences between the parties.

(c)  A child may remain at a designated shelter for a period not to exceed seven days.

(d)  Upon expiration of the seven-day period or sooner at the request of the child or the custodial parent:

(1)  the child shall be released to his or her custodial parent, foster parent, guardian, custodian, or noncustodial parent lawfully exercising

parent-child contact; or

(2)  an officer shall seek an emergency care order pursuant to section 5302 of this title.

(e)  Unless otherwise ordered by the court, the custody status of the child shall remain the same during the period of time the child is at the shelter.

§ 5304.  Designated shelters for runaway children  

The commissioner shall designate shelters throughout the state where a child taken into custody pursuant to subdivision 5301(3) of this title may be housed for a period not to exceed seven days.

§ 5305.  Emergency Care Order; CONDITIONAL CUSTODY

              ORDER

(a)  Transfer of temporary custody.  If the court determines that the child’s continued residence in the home is contrary to the child’s welfare, the court may issue an emergency care order transferring temporary custody of the child to the department pending a temporary care hearing.  The determination may be made ex parte, provided that it is reasonably supported by the affidavit prepared in accordance with section 5302 of this title. 

(b)  Contents of emergency care order.  The emergency care order shall contain: 

(1)  a written finding that the child’s continued residence in the home is contrary to the child’s welfare and the factual allegations that support that finding;

(2)  the date, hour, and place of the temporary care hearing to be held pursuant to section 5307 of this title; and

(3)  notice of a parent’s right to counsel at the temporary care hearing.

(c)  Conditional custody order.  If the court determines that the child may safely remain in the custody of the custodial parent, guardian, or custodian subject to such conditions and limitations necessary and sufficient to protect the child pending a temporary care hearing, the court may deny the request for an emergency care order and issue an emergency conditional custody order.  An emergency conditional custody order shall contain the date, hour, and place of the temporary care hearing and notice of a parent’s right to counsel at the hearing.

§ 5306.  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 parent, guardian, or custodian of the child.  If delivery cannot be made in a timely manner, the officer shall otherwise notify the custodial parent or cause them to be notified of the order, the date, the 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 parents.

(b)  Notice to noncustodial parent.  The department shall make reasonable efforts to locate any noncustodial parent and provide the noncustodial parent with the emergency care order or conditional care order, notice of the date, hour, and place of the temporary care hearing, and 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)  Failure to locate.  The hearing shall not be delayed by reason of not being able to locate either the custodial or noncustodial parent.

(d)  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)  A representative of 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. 

§ 5307.  Temporary Care Hearing

(a)  A temporary care hearing shall be held within 72 hours of the issuance of an emergency care order or conditional custody order under section 5305 of this title.  State holidays shall be excluded from the computation of 72 hours.   If the custodial parent, guardian, or custodian has not been notified in accordance with section 5306 of this title and does not appear or waive appearance at the temporary care hearing and files thereafter with the court an affidavit so showing, the court shall hold another temporary care hearing within one business day of the filing of the affidavit as if no temporary care hearing had theretofore been held.

(b)  If the state’s attorney is seeking a temporary care order, he or she shall file a petition in accordance with section 5308 of this title prior to the temporary care hearing.  If the state’s attorney elects not to file a petition, he or she shall so notify the court and the court shall vacate the emergency care order and order the return of the child to the custodial parent, guardian, or custodian.

(c)  The following persons shall be present at the temporary care hearing:

(1)  The child, unless the child is under 10 years of age and the presence of the child is waived by the child’s attorney.  For good cause shown, the court may waive the presence of a child who is 10 years of age or older.

(2)  The child’s custodial parent, guardian, or custodian, unless the parent, guardian, or custodian cannot be located or fails to appear in response to notice.

(3)  The child’s guardian ad litem.

(4)  An attorney for the child.

(5)  An attorney for the custodial parent, if requested.

(6)  The department.

(7)  The state’s attorney.

(d)  A noncustodial parent and his or her attorney shall have the right to be present at the hearing; however, the hearing shall not be delayed by reason of the inability of the department to locate the noncustodial parent.

(e)  The department shall provide the following information to the court at the hearing:

(1)  Any reasons for the child’s removal which are not set forth in the affidavit required pursuant to subsection 5302(b) of this title.

(2)  Services, if any, provided to the child and the family in an effort to prevent removal.

(3)  The need, if any, for continued custody of the child with the department pending a hearing to adjudicate the merits of the petition.

(4)  Services which could facilitate the return of the child to the custodial parent, guardian, or custodian.

(5)  The identity and location of a noncustodial parent, a relative, or person with a significant relationship with the child known to the department who may be appropriate, capable, willing, and available to assume temporary legal custody of the child.  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.

(6)  Additional information as required by the Uniform Child Custody Jurisdiction Act pursuant to 15 V.S.A. § 1037 and the Indian Child Welfare Act pursuant to 25 U.S.C. Section 1901 et seq. 

(f)  All parties shall have the right to present evidence on their own behalf and examine witnesses.  Hearsay, to the extent it is deemed relevant and reliable by the court, shall be admissible.  The court may, in its discretion, limit testimony and evidence to only that which goes to the issues of removal of the child from the home and the child’s temporary legal custody.

(g)  The temporary care hearing shall also be a preliminary hearing on the petition.

§ 5308.  Temporary Care Order

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

(1)  A return of legal custody could result in substantial danger to the physical health, mental health, welfare, or safety of the child.

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

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

(A)  a parent, guardian, or custodian receives actual notice that a person has committed or is alleged to have committed physical or sexual abuse against a child; and

(B)  the parent, guardian, or custodian knowingly or recklessly allows the child to be in the physical presence of the alleged abuser after receiving such notice.

(4)  The custodial parent, guardian, or guardian has abandoned the child.

(5)  The child or another child in the same household has been neglected and there is substantial risk of harm to the child who is the subject of the petition.

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

(B)  Requiring the department to provide the child with services.

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

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

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

(F)  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.

§ 5309.  Filing of a petition 

(a)  The state’s attorney having jurisdiction shall prepare and file a petition alleging that a child is in need of care or supervision upon the request of the commissioner or, in the event the child is truant from school, upon the request of the superintendent of the school district in which the child is enrolled or resides.  If the state’s attorney fails to file a petition within a reasonable amount of time, the department or the superintendent of the school district may request that the attorney general file a petition on behalf of the department.

(b)  If the court has issued an emergency care order placing the child who is the subject of the petition in the temporary legal custody of the department or has issued a conditional custody order, the state’s attorney shall file the petition on or before the date of the temporary care hearing.  

(c)  A petition may be withdrawn by the state’s attorney at any time prior to the hearing thereon, in which event the child shall be returned to the custodial parent, guardian, or custodian, the proceedings under this chapter terminated, and all files and documents relating thereto sealed under section 5119 of this title.

(d)  Upon the request of the agency of human services, the state’s attorney may file a petition pursuant to subsection (a) of this section alleging that a

16- to 17.5-year-old youth who is not in the custody of the state is a child in need of care or supervision under subdivision 5102(2)(B)(ii) of this title when the child meets the criteria set forth in subdivision 5102(2)(B)(ii) of this title.  The petition shall be accompanied by a report from the department which sets forth facts supporting the specific requirements of subdivision 5102(2)(C) of this title and that it is in the best interests of the child to be considered as a child in need of care or supervision.

§ 5310.  Petition, contents 

(a)  The petition shall be supported by an affidavit of an officer or the department. 

(b)  The petition shall contain the following:

(1)  A concise statement of the facts which support the conclusion that the child is a child in need of care or supervision together with a statement that it is in the best interests of the child that the proceedings be brought. 

(2)  The name, date of birth, telephone number, and residence address, if known, of the child, the custodial and noncustodial parents, the guardian or custodian of the child if other than parent.  If a parent is a participant in the Safe At Home Program pursuant to 15 V.S.A. § 1152, the petition shall so specify.

(3)  Jurisdictional information required pursuant to the Uniform Child Custody Jurisdiction Act, 15 V.S.A. § 1032 et seq.

§ 5311.  Service of Summons and Petition; no request for

            temporary care Order; PRELIMINARY HEARING

(a)  When the state’s attorney files a petition but does not request a temporary care order, the court shall set a date for a preliminary hearing on the petition no later than 15 days from the date the petition is filed and issue a judicial summons addressed to the custodial parent, guardian, custodian, or care provider.  A copy of the petition shall be attached to the summons.  The court shall make reasonably diligent efforts to serve a noncustodial parent with a copy of the summons and petition.

(b)  The summons shall contain:

(1)  The name and address of the person to whom the notice is directed.

(2)  The date, time, and place for the preliminary hearing on the petition.

(3)  The name of the minor on whose behalf the petition has been brought.

(4)  Notice of a parent’s right to counsel.

(5)  A statement that the parent, guardian or custodian may be liable for the cost of the support of a child if the child is placed in the legal custody of the department.

(6)  An order directing the parent, guardian, custodian, or care provider to appear at the hearing with the child.

(c)  The summons and petition may be served by mailing a copy by certified mail return receipt requested to the child and to the child’s parent, guardian, custodian, or care provider.  Service of the summons and petition may also be made by any sheriff, deputy, or constable.  The court shall provide a copy of the summons to the state’s attorney and a copy of the summons and petition to the department and the attorney for the child. 

(d)  Notice and a copy of the petition shall be served on all persons required to receive notice as soon as possible after the petition is filed and at least five days prior to the date set for the preliminary hearing.

(e)  A party may waive service of the petition and notice by written stipulation or by voluntary appearance at the hearing.

(f)  Once a parent, guardian, or custodian has been served, the court shall provide notice of hearing either directly or by mail.  The parent shall be responsible for providing the court with information regarding any changes in address. 

§ 5312.  Failure to Appear at Preliminary Hearing    

(a)  If a parent, guardian, or custodian has been served by certified mail with the petition and notice of hearing and fails to appear at the preliminary hearing, the court may order that the parent, guardian, or custodian be served with a judicial summons ordering the person to appear in court with the child at a specified date and time.

(b)  If, after being summoned to appear, the parent, guardian, or custodian fails to appear or fails to bring the child to court as ordered, the court may issue a pick-up order or warrant pursuant to section 5108 of this title. 

§ 5313.  Timelines for pretrial and merits hearing

(a)  Pretrial hearing.  At the time of the temporary care hearing or at the preliminary hearing on the petition if there is no request for temporary legal custody, the court shall set a pretrial hearing on the petition.  The hearing shall be held within 15 days of the temporary care hearing or the preliminary hearing.  In the event that there is no admission or dismissal at or before the pretrial hearing, the court shall set the matter for a hearing to adjudicate the merits of the petition.

(b)  Merits hearing.  If the child who is the subject of the petition has been removed from the legal custody of the custodial parent, guardian, or custodian pursuant to a temporary care order, a merits hearing shall be held and merits adjudicated no later than 60 days from the date the temporary care order is issued.  In all other cases, merits shall be adjudicated in a timely manner in the best interests of the child.

§ 5314.  Filing of Initial Case Plan 

(a)  If a temporary care order is issued transferring legal custody of the child to the commissioner, the department shall prepare and file with the court an initial case plan for the child and the family within 60 days of removal of a child from home.  The department shall provide a copy of the case plan to the parties, their attorneys, and the guardian ad litem.

(b)  The initial case plan shall not be used or referred to as evidence prior to a finding that a child is in need of care or supervision.

§ 5315.  Merits Adjudication 

(a)  At a hearing on the merits of a petition, the state shall have the burden of establishing by a preponderance of the evidence that the child is in need of care and supervision.  In its discretion, the court may make findings by clear and convincing evidence.

(b)  The parties may stipulate to the merits of the petition.  Such stipulation shall include a stipulation as to the facts that support a finding that the child is in need of care and supervision.

(c)  If the merits are contested, all parties shall have the right to present evidence on their own behalf and to examine witnesses.

(d)  A merits hearing shall be conducted in accordance with the Vermont Rules of Evidence.  A finding of fact made after a contested temporary care hearing based on nonhearsay evidence may be adopted by the court as a finding of fact at a contested merits hearing provided that a witness who testified at the temporary care hearing may be recalled by any party at a contested merits hearing to supplement his or her testimony.  

(e)  If the merits are contested, the court after hearing the evidence shall make its findings on the record. 

(f)  If the court finds that the allegations made in the petition have not been established, the court shall dismiss the petition and vacate any temporary orders in connecting with this proceeding.

(g)  If the court finds that the allegations made in the petition have been established based on the stipulation of the parties or on the evidence if the merits are contested, the court shall order the department to prepare a disposition case plan within 28 days of the merits hearing and shall set the matter for a disposition hearing.

(h)  The court in its discretion and with the agreement of the parties may waive the preparation of a disposition case plan and proceed directly to disposition based on the initial case plan filed with the court pursuant to section 5314 of this title.      

§ 5316.   Disposition Case Plan

(a)  The department shall file a disposition case plan ordered pursuant to subsection 5315(g) of this title no later than 28 days from the date of the finding by the court that a child is in need of care or supervision. 

(b)  A disposition case plan shall include, as appropriate:

(1)  A permanency goal.  The long-term goal for a child found to be in need of care and supervision is a safe and permanent home.  A disposition case plan shall include a permanency goal and an estimated date for achieving the permanency goal.  The plan shall specify whether permanency will be achieved through reunification with a custodial parent, guardian, or custodian; adoption; permanent guardianship; or other permanent placement.  In addition to a primary permanency goal, the plan may identify a concurrent permanency goal.

(2)  An assessment of the child’s medical, psychological, social, educational, and vocational needs.

(3)  A description of the child’s home, school, community, and current living situation.

(4)  An assessment of the family’s strengths and risk factors, including a consideration of the needs of children and parents with disabilities.

(5)  A statement of family changes needed to correct the problems necessitating state intervention, with timetables for accomplishing the changes.

(6)  A recommendation with respect to legal custody for the child and a recommendation for parent-child contact and sibling contact, if appropriate.

(7)  A plan of services that shall describe the responsibilities of the child, the parents, guardian, or custodian, the department, other family members, and treatment providers including a description of the services required to achieve the permanency goal.  The plan shall also address the minimum frequency of contact between the social worker assigned to the case and the family.

(8)  A request for child support.

(9)  Notice to the parents that failure to substantially accomplish the objectives stated in the plan within the time frames established may result in termination of parental rights.

§ 5317.  Disposition Hearing 

(a)  Timeline.  A disposition hearing shall be held no later than 35 days after a finding that a child is in need of care and supervision.

(b)  Hearing procedure.  If disposition is contested, all parties shall have the right to present evidence and examine witnesses.  Hearsay may be admitted and may be relied on to the extent of its probative value.  If reports are admitted, the parties shall be afforded an opportunity to examine those making the reports, but sources of confidential information need not be disclosed.

(c)  Standard of proof.  If the court terminates the parental rights of one or both parents, the standard of proof on the issue of termination shall be clear and convincing evidence.  On all other issues, the standard of proof shall be a preponderance of the evidence.

(d)  Termination of parental rights.  If the commissioner or the attorney for the child seeks an order at disposition terminating the parental rights of one or both parents and transfer of legal custody to the commissioner without limitation as to adoption, the court shall consider the best interests of the child in accordance with section 5114 of this title.

(e)  Further hearing.  On its own motion or on the motion of a party, the court may schedule a further hearing to obtain reports or other information necessary for the appropriate disposition of the case.  The court shall make an appropriate order for the temporary care of the child pending a final disposition order.  The court shall give scheduling priority to cases in which the child has been removed from home.

§ 5318.  Disposition Order

(a)  Custody.  At disposition, the court shall make such orders related to legal custody for a child who has been found to be in need of care and supervision as the court determines are in the best interest of the child, including:

(1)  An order continuing or returning legal custody to the custodial parent, guardian, or custodian.  Following disposition, the court may issue a conditional custody order for a fixed period of time not to exceed two years.   The court shall schedule regular review hearings to determine whether the conditions continue to be necessary.

(2)  When the goal is reunification with a custodial parent, guardian, or custodian an order transferring temporary custody to a noncustodial parent, a relative, or a person with a significant relationship with the child.  The order may provide for parent-child contact.   Following disposition, the court may issue a conditional custody order for a fixed period of time not to exceed two years.  The court shall schedule regular review hearings to evaluate progress toward reunification and determine whether the conditions and continuing jurisdiction of the juvenile court are necessary.

(3)  An order transferring legal custody to a noncustodial parent and closing the juvenile proceeding.  The order may provide for parent-child contact with the other parent.  Any orders transferring legal custody to a noncustodial parent issued under this section shall not be confidential and shall be made a part of the record in any existing parentage or divorce proceeding involving the child.  On the motion of a party or on the court’s own motion, the court may order that a sealed copy of the disposition case plan be made part of the record in a divorce or parentage proceeding involving the child.

(4)  An order transferring legal custody to the commissioner.  

(5)  An order terminating all rights and responsibilities of a parent by transferring legal custody and all residual parental rights to the commissioner without limitation as to adoption.

(6)  An order of permanent guardianship pursuant to 14 V.S.A. § 2664.

(7)  An order transferring legal custody to a relative or another person with a significant relationship with the child.  The order may be subject to conditions and limitations and may provide for parent-child contact with one or both parents.  The order shall be subject to periodic review as determined by the court.

(b)  Case plan.  If the court orders the transfer of custody pursuant to subdivision (a)(2), (4), or (5) of this section, the court shall establish a permanency goal for the minor child and adopt a case plan prepared by the department which is designed to achieve the permanency goal.  If the court determines that the plan proposed by the department does not adequately support the permanency goal for the child, the court may reject the plan proposed by the department and order the department to prepare and submit a revised plan for court approval.

(c)  Sixteen- to 17.5-year olds.  In the event that custody of a 16- to

17.5-year old is transferred to the department pursuant to a petition filed under subsection 5309(d) of this title services to the child and to his or her family shall be provided through a coordinated effort by the agency of human services, the department of education, and community-based interagency teams. 

(d)  Modification.  A disposition order is a final order which may only be modified based on the stipulation of the parties or pursuant to a motion to modify brought under section 5113 of this title. 

(e)  Findings.  Whenever the court orders the transfer of legal custody to a noncustodial parent, a relative, or a person with a significant relationship with the child, such orders shall be supported by findings regarding the suitability of that person to assume legal custody of the child and the safety and appropriateness of the placement.    

§ 5319.  Parent-Child Contact and Contact with Siblings

              and Relatives

(a)  The court shall order parent-child contact unless the court finds that it is necessary to deny parent-child contact because the protection of the physical safety or emotional well-being of the child so requires.  Except for good cause shown, the order shall be consistent with any existing parent-child contact order.

(b)  The court may determine the reasonable frequency and duration of parent-child contact and may set such conditions for parent-child contact as are in the child’s best interests including whether parent-child contact should be unsupervised or supervised.

(c)  Parent-child contact may be modified by stipulation or upon motion of a party or upon the court’s own motion pursuant to section 5113 of this title. 

(d)  The court may terminate a parent-child contact order in a juvenile proceeding upon a finding that:

(1)  a parent has without good cause failed to maintain a regular schedule of contact with the child and that the parent’s failure to exercise regular contact has had a detrimental impact on the emotional well-being of the child; or

(2)  continued parent-child contact in accordance with the terms of the prior order will have a detrimental impact on the physical or emotional

well-being of the child.

(e)  Upon motion of the child’s attorney, the court may also order contact between the child and the child’s siblings, an adult relative with whom the child has a significant relationship, or an adult friend with whom the child has a significant relationship.

(f)  Failure to provide parent-child contact due to the child’s illness or other good cause shall not constitute grounds for a contempt or enforcement proceeding against the department.

§ 5320.  Post-Disposition Review Hearing

If the permanency goal of the disposition case plan is reunification with a parent, guardian, or custodian, the court shall hold a review hearing within 60 days of the date of the disposition order for the purpose of monitoring progress under the disposition case plan and reviewing parent-child contact.  Notice of the review shall be provided to all parties.  A foster parent, preadoptive parent, or relative caregiver shall be provided with notice of any post disposition review hearings and an opportunity to be heard at the hearings.  Nothing in this section shall be construed as affording such person party status in the proceeding.

§ 5321.  Permanency hearing 

(a)  Purpose.  Unless otherwise specified therein, an order under the authority of this chapter transferring legal custody or residual parental rights and responsibilities of a child to the department pursuant to subdivision 5318(a)(4) or (5) of this title shall be for an indeterminate period and shall be subject to periodic review at a permanency hearing.   At the permanency hearing, the court shall determine the permanency goal for the child and an estimated time for achieving that goal.  The goal shall specify when:

(1)  legal custody of the child will be transferred to the parent, guardian, or custodian;

(2)  the child will be released for adoption;

(3)  a permanent guardianship will be established for the child;

(4)  a legal guardianship will be established for the child pursuant to an order under chapter 111 of Title 14; or

(5)  the child will remain in the same living arrangement or be placed in another planned permanent living arrangement because the commissioner has demonstrated to the satisfaction of the court a compelling reason that it is not in the child’s best interests to:

(A)  return home;

(B)  have residual parental rights terminated and be released for adoption; or

(C)  be placed with a fit and willing relative or legal guardian.

(b)  The court shall adopt a case plan designed to achieve the permanency goal. 

(c)  A permanency review hearing shall be held no less than every 12 months with the first hearing to be held 12 months after the date the legal custody of the child was transferred, subject to the following exceptions:

(1)  If the child was three years of age or younger at the time of the initial transfer of legal custody, the court may order that permanency review hearings be held as frequently as every three months.

(2)  If the child is between the ages of three and six at the time of the initial transfer of legal custody, the court may order that permanency review hearings be held as frequently as every six months.

(d)  If the court shortens the time for the permanency review hearing for a younger sibling, that shortened review interval shall be applied to all siblings in the family who are in the legal custody of the department.  

(e)(1)  The department shall file with the court a notice of permanency review together with a case plan and recommendation for a permanency goal.  The department shall provide notice to the state’s attorney having jurisdiction and to all parties to the proceeding in accordance with the rules for family proceedings.  The court shall hold a permanency review hearing within 30 days of the filing of notice by the department.  Failure to give such notice or to review an order shall not terminate the original order or limit the court’s jurisdiction.

(2)  A foster parent, preadoptive parent, or relative caregiver for the child shall be provided notice of and an opportunity to be heard at any permanency hearing held with respect to the child.  Nothing in this subsection shall be construed as affording such person party status in the proceeding.

(f)  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 at an adjudication hearing. 

(g)  The permanency hearing may be held by an administrative body appointed or approved by the court.  The administrative body may consist of one but not more than three persons.  No person employed by the department shall be a member of the administrative body.  In the event that the administrative body determines that the existing order should be altered, it shall submit its recommendation to the court for its consideration.  In the event that the administrative body determines that the existing order should not be altered, its determination shall be binding unless any party requests review by the court within ten days of receipt of the determination.  A copy of the determination shall be sent to each party and to the court.  The court, on its own motion or on the request of any party, shall conduct a review de novo within 30 days of receipt of such request.

(h)  Upon the filing of a petition for a finding of reasonable efforts and a report or affidavit by the department for children and families with notice to all parties, the court shall hold a hearing within 30 days of the filing of the petition to determine, by a preponderance of the evidence, whether the department for children and families has made reasonable efforts to finalize the permanency plan for the child that is in effect at the time of the hearing.  The hearing may be consolidated with or separate from a permanency hearing.  Reasonable efforts to finalize a permanency plan may consist of:

(1)  reasonable efforts to reunify the child and family following the child’s removal from the home, where the permanency plan for the child is reunification; or

(2)  reasonable efforts to arrange and finalize an alternate permanent living arrangement for the child, in cases where the permanency plan for the child does not include reunification.

§ 5322.  Placement of a Child in a Facility Used for

               Treatment of Delinquent Children

A child found by the court to be a child in need of care and supervision shall not be placed in or transferred to an institution used solely for the treatment or rehabilitation of delinquent children unless the child has been charged with or adjudicated as having committed a delinquent act.

S. 354

An act relating to public agency deferred compensation plans.

S. 361

An act relating to authority to lease the state lottery.

S. 373

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

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.

Amendment to be offered by Rep. Helm of Castleton proposal of amendment of the Committee on Fish, Wildlife and Water Resources to S. 304

     Moves the proposal of amendment be amended by adding a new Sec. 7a to read:

Sec. 7a.  10 V.S.A. § 1973(j) is added to read:

(j)  Notwithstanding any provision of law to the contrary, any retail sales establishment may place up to three picnic tables outdoors within the bounds of its property without being required to obtain a state or local permit, or permit amendment, under this chapter.

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 received by the municipality for recording”, and by striking the words “property tax transfer” and inserting in lieu thereof “property transfer tax”; 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)

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)

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

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, 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 February 1, 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)  Two members of the house of representatives, appointed by the speaker of the house;

(5)  Two members of the forestry industry appointed by the governor;

(6)  One member of the forest products industry appointed by the governor; and

(7)  One member 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 without dramatically disrupting medical and indemnity benefits to injured workers by creating a balanced approach to benefits that meets the needs of employees and employers and promotes return to work programs aimed at gainful employment in the following ways:

(A)  Increasing and improving workplace safety.

(B)  Addressing benefits to be more balanced when compared to national and regional 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 wilfully or recklessly causes bodily injury to a family or household member, or wilfully 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.

     First: In Sec. 18, in 13 V.S.A. § 7282(a)(8), by striking subdivision (B) and inserting in lieu thereof a new subdivision (B) to read:

(B)  For any offense or violation committed after June 30, 2008, $35.00, of which $27.75 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.

     Second:  By striking Sec. 19

     Third:  By striking Sec. 20

     Fourth:  In Sec. 25, in subsection (a), by striking “$1,147,000.00 from the general fund”, and inserting in lieu thereof “$690,000.00 from the victims’ compensation fund created by 13 V.S.A. § 5359”; and in subsection (b) by striking “from the general fund” and inserting in lieu thereof “from the victims’ compensation fund

     Fifth:  By adding Secs. 28 and 29 to read:

Sec. 28.  32 V.S.A. § 605(f) is added to read:

     (f) Each fee report submitted in accordance with subsections (b)(1), (2) or (3) of this section shall also include a report of every surcharge, assessment, add-on, fee, tax, or other type of charge imposed or administered by any state agency, the receipts of which are not deposited into the general fund, the transportation fund or the education fund, regardless of whether the charge falls within the definition of “fee” in section 602 of this subchapter.  A report under this subsection (f) shall include for each charge all of the information described in subsections (c) and (d) of this section.

Sec. 29.  32 V.S.A. § 602(2)(B) is amended to read:

(B) The following charges are exempt from the provisions of this subchapter , except as provided in subsection 605(f) of this subchapter:

* * *

 (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) 

Amendment to be offered by Rep. Klein of East Montpelier to proposal of amendment of the Committee on Natural Resources and Energy to S. 364

     Moves the proposal be amended as follows:

     First: In Sec. 6, in subsection (a), by striking subdivision (1), and inserting in lieu thereof a new subdivision (1) to read:

(1) Three members shall be appointed by the speaker of the house, the president pro tempore of the senate and the governor, with their unanimous consensus on each appointment; and 

     Second: In Sec. 6, in subsection (b), by striking the second sentence.

  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.

Amendment to be offered by Rep. Wright of Burlington to Senate Proposal of Amendment to H. 94

Moves to amend the proposal of amendment by striking Sec. 3 and inserting in lieu thereof the following:

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 malt-based beverages containing other ingredients such as flavored distilled spirits, and “alcohol energy drinks,” which are malt beverages containing other ingredients such as caffeine. 

(b)  The department shall complete the study and issue a written report of its findings, conclusions, and recommendations on or before January 15, 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.

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.

NOTICE CALENDAR

Favorable with Amendment

S. 112

An act relating to victims compensation.

Rep. Grad of Moretown, for the Committee on Judiciary, recommends that the House propose to the Senate that the bill be amended by adding a new Sec. 5 to read as follows:

Sec. 5 to read as follows:

Sec. 5.  13  V.S.A. § 5353 is amended to read:

§ 5353. APPLICATION FOR COMPENSATION

(a) A victim or a dependent of a victim shall, upon application, be eligible for compensation if:

(1) a law enforcement official has filed a report concluding that a crime was committed which resulted in the injury or death of the victim; and

(2) the crime was committed in this state; or

(3) the victim is a Vermont resident, the state in which the crime occurred does not have an eligible crime victim's compensation program and the applicant would have been eligible for compensation under this chapter if the crime had been committed in this state; or

(4)  the victim is a Vermont resident who is injured or killed by an act of terrorism outside of the United Sates, to the extent that compensation is not otherwise available under federal law.

* * *

(Committee vote: 10-0-1)

S. 250

An act relating to decreasing the amounts of cocaine and heroin required to be possessed to trigger drug trafficking penalties.

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.  18 V.S.A. § 4231(c)(1) is amended to read:

(c)(1)  Trafficking.  A person knowingly and unlawfully possessing cocaine in an amount consisting of 300 225 grams or more of one or more preparations, compounds, mixtures, or substances containing cocaine with the intent to sell or dispense the cocaine shall be imprisoned not more than 30 years or fined not more than $1,000,000.00, or both.  There shall be a permissive inference that a person who possesses cocaine in an amount consisting of 300 225 grams or more of one or more preparations, compounds, mixtures, or substances containing cocaine intends to sell or dispense the cocaine.  The amount of possessed cocaine under this subdivision to sustain a charge of conspiracy under 13 V.S.A. § 1404 shall be no less than 800 600 grams in the aggregate.

Sec. 2.  18 V.S.A. § 4233(c) is amended to read:

(c)  Trafficking.  A person knowingly and unlawfully possessing heroin in an amount consisting of seven five grams or more of one or more preparations, compounds, mixtures, or substances containing heroin with the intent to sell or dispense the heroin shall be imprisoned not more than 30 years or fined not more than $1,000,000.00, or both.  There shall be a permissive inference that a person who possesses heroin in an amount of seven five grams or more of one or more preparations, compounds, mixtures, or substances containing heroin intends to sell or dispense the heroin.  The amount of possessed heroin under this subsection to sustain a charge of conspiracy under 13 V.S.A. § 1404 shall be no less than 20 15 grams in the aggregate.

Sec. 3.  18 V.S.A. § 4252 is added to read:

§ 4252.  PENALTIES FOR DISPENSING OR SELLING REGULATED

DRUGS IN A DWELLING

(a)  No person shall knowingly permit a dwelling, building, or structure owned by or under the control of the person to be used for the purpose of illegally dispensing or selling a regulated drug.

(b)  A person who violates subsection (a) of this section shall be imprisoned not more than two years or fined not more than $1,000.00 or both.

(c)  For purposes of this section, a landlord may assert as an affirmative defense that he or she has commenced eviction proceedings against a tenant dispensing or selling a regulated drug.

Sec. 4.  SENTENCING COMMISSION DRUG POLICY STUDY

(a)(1)  The Vermont sentencing commission shall review current state practices regarding:

(A)  sentencing for drug offenses;

(B)  prevention and treatment of drug abuse; and

(C)  investigation, prosecution, and punishment for drug offenses. 

(2)  The commission shall determine whether Vermont laws are consistent with best practices, considering the costs and benefits to different approaches with best practices.  This review shall be given priority as the commission outlines its work for 2008 and 2009. 

(b)  The commission shall report its findings and recommendations to the senate and house committees on judiciary no later than March 30, 2009.  

(c)  In conducting the review, the committee shall have the assistance and cooperation of all state and local agencies and departments, including the department of public safety.

(Committee vote: 10-0-1)

S. 350

An act relating to energy independence and economic prosperity.

Rep. Cheney of Norwich, 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:

* * * State Agencies * * *

Sec. 1.  3 V.S.A. § 838(c) is amended to read:

(c) The economic impact statement shall analyze the anticipated costs and benefits to be expected from adoption of the rule. Specifically, each economic impact statement shall, for each requirement in the rule:

(1) list categories of people, enterprises and government entities potentially affected and estimate for each the costs and benefits anticipated;

(2) compare the economic impact of the rule with the economic impact of other alternatives to the rule, including no rule on the subject or a rule having separate requirements for small business;

(3) include a flexibility statement. The flexibility statement shall compare the burden imposed on small businesses by compliance with the rule to the burden which would be imposed by alternatives considered under section 832a of this title.

(4)  include a greenhouse gas impact statement.  The greenhouse gas impact statement shall explain how the rule has been crafted to reduce the extent to which greenhouse gases are emitted.  The secretary of administration, in conjunction with the secretaries of agriculture, food and markets, natural resources, and transportation, and the commissioner of public service shall provide a  checklist which shall be used in the adoption of rules to assure the full consideration of greenhouse gas impacts, direct and indirect.

* * *

Sec. 1a.  3 V.S.A. § 2291(c) is amended to read:

(c)  The secretary of administration with the cooperation of the commissioners of public service and of buildings and general services shall develop and oversee the implementation of a state agency energy plan for state government.  The plan shall be adopted by June 30, 2005, modified as necessary, and readopted by the secretary on or before January 15 of each fifth year subsequent to 2005.  The plan shall accomplish the following objectives and requirements:

(1)  To conserve resources, save energy, and reduce pollution.  The plan shall devise strategies to identify to the greatest extent feasible, all opportunities for conservation of resources through environmentally and economically sound infrastructure development, purchasing, and fleet management, and investments in renewable energy and energy efficiency available to the state which are cost effective on a life cycle cost basis.

(2)  To consider state policies and operations that affect energy use.

(3)  To devise a strategy to implement or acquire all prudent opportunities and investments in as prompt and efficient a manner as possible.

(4)  To include appropriate provisions for monitoring resource and energy use and evaluating the impact of measures undertaken.

(5)  To identify education, management, and other relevant policy changes that are a part of the implementation strategy.

(6)  To devise a strategy to reduce greenhouse gas emissions.  The plan shall include steps to encourage more efficient trip planning, to reduce the average fuel consumption of the state fleet, and to encourage alternatives to solo-commuting state employees for commuting and job-related travel.

(7)  To provide, where feasible, for the installation of renewable energy systems including solar energy systems, which shall include equipment or building design features, or both, designed to attain the optimal mix of minimizing solar gain in the summer and maximizing solar gain during the winter, as part of the new construction or major renovation of any state building.  The cost of implementation and installation will be identified as part of the budget process presented to the general assembly.

* * * Agency of Agriculture, Food and Markets * * *

Sec. 2.  6 V.S.A. § 1(c),(d), and (e) are added to read:

(c)  The secretary shall provide data and funding recommendations to the Vermont climate change oversight committee with regard to:

(1)  Funding and implementing state conservation programs in order to increase carbon sequestration.

(2)  Providing cost-share assistance for farmers to purchase manure injection equipment to retrofit existing manure spreaders or purchase new equipment.

(3)  Providing cost-share assistance for farms to develop and implement nutrient management plans for smaller dairy farms and continuing to provide annual assistance so that existing plans on medium-sized farms continue to be implemented.

(4)  Providing cost-share assistance under the farm agronomic practices program so that farms implement cover crops and other soil erosion and land cover practices.

(5)  Other ways to create incentives for carbon sequestration on farm and forest land, Vermont’s “green bank.”

(d)  The secretary shall continue the agency’s methane capture program and shall collaborate with the Vermont climate change oversight committee  with regard to the availability of additional funds for these purposes.  The goal of the methane digester portion of the program shall be to digest and use 15 percent of the state’s dairy cattle manure by 2012, and 50 percent by 2028.  The goal of a second aspect of this emissions reduction program shall be to increase the percentage of poultry and nondairy livestock manure composted to 25 percent by 2012, and 50 percent by 2028. 

* * * Air Quality * * *

Sec. 3.  10 V.S.A. § 552 is amended to read:

§ 552.  DEFINITIONS

As used in this chapter:

* * *

(11)  “Greenhouse gas” means any chemical or physical substance that is emitted into the air and that the secretary may reasonably anticipate to cause or contribute to climate change, including, but not limited to, carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

Sec. 3a.  10 V.S.A. § 578 is amended to read:

§ 578.  GREENHOUSE GAS REDUCTION GOALS

(a)  General goal of greenhouse gas reduction. It is the goal of the state to reduce emissions of greenhouse gases from within the geographical boundaries of the state and those emissions outside the boundaries of the state that are caused by the use of energy in Vermont in order to make an appropriate contribution to achieving the regional goals of reducing emissions of greenhouse gases from the 1990 baseline by:

(1)  25 percent by January 1, 2012;

(2)  50 percent by January 1, 2028;

(3) if practicable using reasonable efforts, 75 percent by January 1, 2050.

(b)  Climate change action plan Vermont climate collaborative.  The secretary will coordinate with the governor's commission on climate change established by executive order and will consult with any interested members of Vermont's participate in the Vermont climate collaborative, a collaboration between state government and Vermont’s higher education, business, agricultural, labor, and environmental communities, in developing a climate change action plan state programs to reduce greenhouse gas emissions in ways that are permanent, quantifiable, and verifiable.  The secretary shall notify each member of the general assembly of the development of this plan and of the general public that the collaborative is developing greenhouse gas reduction programs and shall provide meaningful opportunity for public comment on program developmentThis plan Programs shall be developed in a manner that implements state energy policy, as specified in 30 V.S.A. § 202a.  Not later than September 1, 2007 January 15, 2009 and January 15, 2010, the secretary shall present this plan report on program development to the committees of the general assembly having jurisdiction over matters relating to the environment, agriculture, energy, transportation, commerce, and public health.

(c)  Implementation of climate change action plan state programs to reduce greenhouse gas emissions.  In order to facilitate the state's compliance with the goals established in this section, all state agencies shall consider, whenever practicable, any increase or decrease in greenhouse gas emissions in their decision-making procedures with respect to the purchase and use of equipment and goods; the siting, construction, and maintenance of buildings; the assignment of personnel; and the planning, design and operation of programs, services and infrastructure.

(d)  Advocacy for cap and trade program for greenhouse gases.  In order to increase the likelihood of the state meeting the goals established under this section, the public service board, the secretary of natural resources, and the commissioner of public service shall advocate before appropriate regional or national entities and working groups in favor of the establishment of a regional or national cap and trade program for greenhouse gas emissions.  This may take the form of an expansion of the existing regional greenhouse gas initiative (RGGI), or it may entail the creation of an entirely new and separate regional or national cap and trade initiative that includes a 100 percent consumer allocation system.

Sec. 4.  10 V.S.A. § 580 is added to read:

§ 580.  GREENHOUSE GAS INVENTORIES; REGISTRY

(a)  Inventory and forecasting.  The secretary shall work, in conjunction with other states or a regional consortium, to establish a periodic and consistent inventory of greenhouse gas emissions.  The secretary shall publish a Vermont greenhouse gas emission inventory and forecast by no later than June 1, 2010, and updates shall be published annually until 2028, until a regional or national inventory and registry program is established in which Vermont participates, or until the federal National Emissions Inventory includes mandatory greenhouse gas reporting. 

(b)  Inventory updates.  To develop the inventory under this section, the secretary, in coordination with the secretaries of administration, transportation, agriculture, food and markets, and commerce and community development, and the commissioner of the department of public service, shall aggregate all existing statewide data on greenhouse gas emissions currently reported to state or federal entities, existing statewide data on greenhouse gas sinks, and otherwise publicly available data.  Greenhouse gas emissions data that is more than 36 months old shall be updated either by statistical methods or seeking updated information from the reporting agency or department.  The information shall be standardized to reflect the emissions in tons per CO2 equivalent, shall be set out in the inventory by sources or sectors such as agriculture, manufacturing, automobile emissions, heating, and electricity production, shall be compatible with the inventory included with the governor’s commission on climate change final report and shall include, but not be limited to, the following sources:

(1)  information collected for reporting in the national emissions inventory, which includes air toxics, criteria pollutants, mobile sources, point sources, and area sources;

(2)  in-state electricity production using RGGI and state permit information;

(3)  vehicle miles travelled and vehicle registration data; and

(4) agricultural activities, including livestock and crop practices.

(c)  Forecast.  The secretary shall use best efforts to forecast statewide emissions for a five- and ten-year period based on the inventory data and other publicly available information.

(d)  Registry.  The secretary shall work, in conjunction with other states or a regional consortium, to establish a regional or national greenhouse gas registry.

(1)  Any registry in which Vermont participates shall be designed to apply to the entire state and to as large a geographic area beyond state boundaries as is possible.

(2)  It shall accommodate as broad an array of sectors, sources, facilities and approaches as is possible, and shall allow sources to start as far back in time as is permitted by good data, affirmed by third-party verification.

(e)  Rules.  The secretary may adopt rules to implement the provisions of this section and shall review existing and proposed international, federal, and state greenhouse gas emission reporting programs and make reasonable efforts to promote consistency among the programs established pursuant to this section and other programs, and to streamline reporting requirements on greenhouse gas emission sources.  Nothing in this section shall limit a state agency from adopting any rule within its authority.

* * * Pollution Abatement Facilities * * *

Sec. 5.  10 V.S.A. § 1278(a) is amended to read:

(a)  Findings.  The general assembly finds that the state shall protect Vermont’s lakes, rivers, and streams from pollution by implementing programs to prevent sewage spills to Vermont waters and by requiring emergency planning to limit the damage from spills which do occur.  In addition, the general assembly finds it to be cost-effective and generally beneficial to the environment to continue state efforts to ensure energy efficiency in the operation of treatment facilities.

* * * Solid Waste Planning * * *

Sec. 6.  10 V.S.A. § 6604(a) is amended to read:

(a)  No later than April 30, 1988 the secretary shall publish and adopt, after notice and public hearing pursuant to chapter 25 of Title 3, a solid waste management plan which sets forth a comprehensive state-wide strategy for the management of waste, including whey.  No later than July 1, 1991, the secretary shall publish and adopt, after notice and public hearing pursuant to chapter 25 of Title 3, a hazardous waste management plan, which sets forth a comprehensive statewide strategy for the management of hazardous waste.

(1)(A)  The plans shall be based upon the following priorities, in descending order:

(A)(i)  the greatest feasible reduction in the amount of waste generated;

(B)(ii)  reuse and recycling of waste to reduce to the greatest extent feasible the volume remaining for processing and disposal;

(C)(iii)  waste processing to reduce the volume or toxicity of the waste stream necessary for disposal;

(D)(iv)  land disposal of the residuals.

(B)  Processing and disposal alternatives shall be preferred which do not foreclose the future ability of the state to reduce, reuse and recycle waste. In determining feasibility, the secretary shall evaluate alternatives in terms of their expected life-cycle costs.

(2)  The plans shall be revised at least once every five years and shall include:

(A)  methods to reduce and remove material from the waste stream, including commercially generated and other organic wastes, used clothing, and construction and demolition debris, and to separate, collect, and recycle, treat or dispose of specific waste materials that create environmental, health, safety, or management problems, including, but not limited to, tires, batteries, obsolete electronic equipment, and unregulated hazardous wastes.  These portions of the plans shall include strategies to assure recycling in the state, and to prevent the incineration or other disposal of marketable recyclables.  They shall consider both the current solid waste stream and its projected changes, and shall be based on:

(i)  an analysis of the volume and nature of wastes generated in the state, the sources of those wastes, and the current fate or disposition of those wastes;

(ii)  an assessment of the feasibility and cost of recycling each type of waste, including an assessment of the feasibility of providing the option of single source recycling;

(iii)  a survey of existing and potential markets for each type of waste that can be recycled;

(B)  a proposal for the development of facilities and programs necessary at the state, regional or local level to achieve the priorities identified in subdivision (a)(1) of this section.  Consideration shall be given to the need for additional regional or local composting facilities, the need to expand the collection of commercially generated organic wastes, and the cost effectiveness of developing single stream waste management infrastructure adequate to serve the entire population, which may include material recovery centers.  These portions of the plan shall be based, in part, on an assessment of the status, capacity, and life expectancy of existing treatment and disposal facilities, and they shall include siting criteria for waste management facilities, and shall establish requirements for full public involvement.

* * * Transportation * * *

Sec. 7.  19 V.S.A. § 10b is amended to read:

§ 10b.  STATEMENT OF POLICY; GENERAL

(a)  The agency shall be the responsible agency of the state for the development of transportation policy.  It shall develop a mission statement to reflect state transportation policy encompassing, coordinating, and integrating all modes of transportation, the need for transportation projects that will improve the state’s economic infrastructure, as well as the use of resources in efficient, coordinated, integrated, cost effective, and environmentally sound ways.  The agency shall coordinate planning and education efforts with those of the Vermont climate change oversight committee and those of local and regional planning entities:

(1)  to assure that the transportation system as a whole is integrated, that access to the transportation system as a whole is integrated, and that statewide local, and regional conservation and efficiency opportunities and practices are integrated; and

(2)  to support employer or local or regional government-led conservation, efficiency, rideshare, and bicycle programs and other innovative transportation advances, especially employer-based incentives.

(b)  In developing the state’s annual transportation program, the agency shall, consistent with the planning goals listed in 24 V.S.A. § 4302 as amended by No. 200 of the Acts of the 1987 Adj. Sess. (1988) and with appropriate consideration to local, regional, and state agency plans:

(1)  Develop or incorporate designs that provide integrated, safe, and efficient transportation and promote economic opportunities for Vermonters and the best use of the state’s environmental and historic resources. 

(2)  Manage available funding to:

(A)  give priority to preserving the functionality of the existing transportation infrastructure, including bicycle and pedestrian trails regardless of whether they are located along a highway shoulder; and

(B)  adhere to credible project delivery schedules.

* * *

Sec. 8.  19 V.S.A. § 10e is amended to read:

§ 10e.  STATEMENT OF POLICY; RAILROADS

(a)  The general assembly recognizes that rail service, both passenger and freight, is an integral part of the state’s transportation network and that it must be fully integrated into the state’s transportation network as a whole.  Accordingly, it is hereby declared to be the policy of the state of Vermont:

(1)  to To provide opportunities for rail passenger services by cooperating with the federal government, other states, and providers of those services, with priority to be given to the services likely to complement the state’s other transportation resources and Vermont’s economic development efforts and to meet the needs of the traveling public;.  Goals to increase passenger rail use will be in accordance with the agency’s rail plan.

(2)  to To preserve and modernize for continued freight railroad service those railroad lines, both within the state of Vermont and extending into adjoining states, which directly affect the economy of the state or provide connections to other railroad lines which directly affect the economy of the state;.  Goals to increase freight rail use will be in accordance with the agency’s rail plan.

 (3)  in In those cases where continuation of freight railroad service is not economically feasible under present conditions, to preserve established railroad rights-of-way for future reactivation of railroad service, trail corridors, and other public purposes not inconsistent with future reactivation of railroad service; and.

(4)  to To seek federal aid for rail projects that implement this section’s policy goals.

(5)  To maintain and improve intercity bus and rail and freight and commuter rail services, and the necessary intermodal connections, and to increase the efficiency of equipment and the extent to which equipment selection and operation can limit or avoid the emission of greenhouse gases.

(6)  To plan for increased ridership with city‑to‑city and commuter rail service, and for increased coordination of rail service with bus service,

car-pooling, and ride-sharing opportunities.

* * *

Sec. 9.  19 V.S.A. § 10f is amended to read:

§ 10f.  STATEMENT OF POLICY; PUBLIC TRANSPORTATION

(a)  It shall be the state’s policy to make maximum use of available federal funds for the support of public transportation.  State operating support funds shall be included in agency operating budgets to the extent that funds are available. It shall be the state’s policy to support the maintenance of existing public transportation services, to assure the rapid replacement of any unplanned decrease in service, and to support the creation of new service that is accessible and affordable to those who use these services.

(b)  The agency of transportation shall develop and periodically update a plan for investment in public transportation services and infrastructure as part of an integrated transportation system consistent with the goals established in 24 V.S.A. § 5083, and regional transportation development plan proposals and regional plans as required by 24 V.S.A. § 5089.

(1)  The plan shall include components that shall coordinate rideshare, public transit, park and ride, interstate, and bicycle and pedestrian planning and investment at the state, regional, and local levels, and create or expand regional connections within the state, in order to maximize interregional ridesharing and access to public transit.

(2)  The agency shall develop and make available to the traveling public an integrated, statewide online service that coordinates transportation options and provides web-based access to information that will allow the traveling public integrated, convenient, affordable, and dependable access to alternative transportation modes sufficient to allow efficient, cost-effective, and timely travel throughout the state.

Sec. 10.  19 V.S.A. § 2310 is amended to read:

§ 2310.  PAVEMENT OF HIGHWAY SHOULDERS

(a)  Notwithstanding the provisions of section 10c of this title, it is the policy of the state to provide paved shoulders on major state highways with the intent to develop an integrated bicycle route system and make the shoulders safer for pedestrian traffic.  This shall not apply to the interstate highway and certain other limited access highways.

(b)  Any construction, or reconstruction, including upgrading and resurfacing projects on these highways, shall include paved shoulders unless the agency deems certain sections to be cost prohibitive maintain or improve existing access and road surface conditions for bicycles and pedestrians along the shoulders of these highways, unless the area is adequately served by bicycle and pedestrian paths that are not located along the shoulders of these highways, or unless the agency deems it to be cost-prohibitive.

* * * Zoning Regulations * * *

Sec. 11.  24 V.S.A. § 4414 is amended to read:

§ 4414.  ZONING; PERMISSIBLE TYPES OF REGULATIONS

Any of the following types of regulations may be adopted by a municipality in its bylaws in conformance with the plan and for the purposes established in section 4302 of this title.

* * *

(14)  Green development incentives.  A municipality may encourage the use of low‑embodied energy in construction materials, planned neighborhood developments that allow for reduced use of fuel for transportation, and increased use of renewable technology by providing for regulatory incentives, including increased densities and expedited review.

* * * Combined Heat and Power * * *

Sec. 12.  30 V.S.A. § 202(i) is added to read:

(i)  It shall be a goal of the electrical energy plan to assure, by 2028, that at least 60 MW of power are generated within the state by combined heat and power (CHP) facilities powered by renewable fuels or by nonqualifying SPEED resources, as defined in section 8002 of this title.  In order to meet this goal, the plan shall include incentives for development and strategies to identify locations in the state that would be suitable for CHP.  The plan shall include strategies to assure the consideration of CHP potential during any process related to the expansion of natural gas services in the state.

* * * Least-Cost Planning * * *

Sec. 13.  30 V.S.A. § 218c(a) is amended to read:

(a)(1)  A “least cost integrated plan” for a regulated electric or gas utility is a plan for meeting the public’s need for energy services, after safety concerns are addressed, at the lowest present value life cycle cost, including environmental and economic costs, through a strategy combining investments and expenditures on energy supply, transmission and distribution capacity, transmission and distribution efficiency, and comprehensive energy efficiency programs.  Economic costs shall be determined with due regard to:

(A)  the greenhouse gas inventory developed under the provisions of 10 V.S.A. § 580;

(B)  the state’s progress in meeting its greenhouse gas reduction goals; and

(C)  the value of the financial risks associated with greenhouse gas emissions from various power sources.

* * *

Sec. 13a. INVESTIGATION OF DISTRIBUTED GENERATION

The commissioner of public service shall hold workshops concerning distributed generation and what barriers exist to the development throughout the state of distributed generation.  The commissioner shall present recommendations on these matters by no later than January 15, 2009, to the legislative committees on natural resources and energy, commerce, and finance.

Sec. 14.  VERMONT CLIMATE CHANGE OVERSIGHT COMMITTEE

(a)  The Vermont climate change oversight committee is established, to consist of nine members who shall not be members of the general assembly at the time of appointment.  Members shall include the state treasurer or a designee together with one member appointed by the speaker of the house, one member appointed by the committee on committees, and two members appointed by the governor, one of whom shall be a board member of the Vermont climate collaborative.  In addition, there shall be a chair and a vice chair appointed by joint action of the speaker of the house, the committee on committees, and the governor, and two additional public members appointed in this manner.  Members shall be appointed who have skills and knowledge that will support the needs of the committee, which may include persons with knowledge of business, “green” business and technology, economics, public health, public utilities, agriculture, ecological science, carbon trading, municipal planning,  transportation and land use planning and development, forestry and ecology, waste management, and education. 

(b)  The powers of the committee are vested in its members, and a quorum shall consist of five members.  No action of the committee shall be considered valid unless the action is supported by a majority vote of its members.  The committee shall be entitled to staff assistance from the natural resources board and from the agency of natural resources, which shall coordinate any requested assistance from state agencies and departments.  The committee shall invite public input, form task forces, work with stakeholder groups and state entities, work with local, state-based, and national interest groups, and take other appropriate steps to gather information and develop its recommendations.

(c)  The primary mission of the committee shall be to consider the recommendations of the governor’s commission on climate change and its plenary group and the recommendations of the Vermont council on rural development:

(1)  to identify barriers to be overcome in reducing the greenhouse gas emissions of the state;

(2)  to identify areas that merit priority consideration in this regard because of their ease of implementation and their potential to reduce greenhouse gas emissions;

(3)  to develop recommendations for ways to overcome those barriers;

(4)  to identify resource needs and funding options; and

(5)  to facilitate state and private entities in addressing these issues.

(d)  In this process, the committee shall work with the Vermont climate collaborative and other interested persons and groups.

(e)  The committee shall present a report to the general assembly by no later than January 30, 2009. 

* * *  Weatherization Program * * *

Sec. 15.  33 V.S.A. § 2502(b) is amended to read:

(b)  In addition, the director shall supplement, or supplant, any federal program with a state home weatherization assistance program providing:

* * *

(3)  funding for the installation of solar domestic hot water systems and other renewable energy systems on eligible homes, where cost effective and consistent with other program needs.

* * * Methane Digesters * * *

Sec. 16.  REGIONAL DAIRY METHANE DIGESTERS

The secretary of natural resources shall review and make appropriate regulatory revisions or recommend appropriate statutory amendments to its regulatory programs that may be preventing the use of wastes, such as food processing wastes, whey, and brewers’ waste, in farm-based methane digester systems.

Sec. 17.  STATUS REPORT ON VEHICLE EMISSIONS LABELING

By no later than January 30, 2009, the secretary of natural resources shall provide to the house and senate committees on transportation a status report with regard to the implementation of the vehicle emissions labeling program for new motor vehicles, established under 10 V.S.A. § 579.

Sec. 18.  REPORT ON INCENTIVES FOR EFFICIENT

TRANSPORTATION

By December 15, 2008, the agency of transportation, in collaboration with the University of Vermont transportation research center and the agency of natural resources, shall report to the house and senate committees on natural resources and energy and on transportation, to the house committee on ways and means, and to the senate committee on finance with:

(1) An analysis of the role of motor vehicles in creating and contributing to air contaminants in Vermont, and a determination of what portion of overall statewide energy consumption is due to the use of motor vehicles.

(2) Recommendations regarding policy options that would encourage and reward efficient transportation, reduce the amount of greenhouse gases generated by the transportation sector, and support alternative modes of transportation.

(3) Recommendations for public education regarding clean and efficient transportation.

(4)  Other recommendations regarding the efficient use of transportation services.

(Committee vote: 11-0-0)

Rep. Branagan of Georgia, for the Committee on Ways and Means, reports same without recommendation.

(Committee vote: 8-0-3)

Rep. Keenan of St. Albans, 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: 10-0-1)

H. 859

     An act relating to increasing substance abuse treatment, vocational training, and transitional housing for offenders in order to reduce recidivism, increase public safety and reduce corrections costs.

Senate Proposal of Amendment

     An act relating to increasing substance abuse treatment, vocational training, and transitional housing for offenders in order to reduce recidivism, increase public safety, and reduce corrections costs.

     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 AND INTENT

(a)  The general assembly finds that:

(1)  Vermont’s incarcerated population is growing at an unsustainable rate.

(2)  Property and drug offenders are the fastest growing segment of the prison population.  Between 2000 and 2006, over half the increase in the felony prison population was due to property and substance abuse offenses.

(3)  Seventy-seven percent of those sentenced for a property or drug felony have a substance abuse disorder.  Two-thirds of them report having received mental health treatment in the past.  Fifty-five percent report being frequently unemployed prior to incarceration.

(4)  Of those incarcerated for a property or drug felony, only 13 percent are receiving treatment.

(b)  The general assembly further finds that:

(1)  Each month approximately 70 inmates meet the criteria for reentering the community under the supervision of the commissioner of corrections on conditional reentry status.  However, almost half are not released because of insufficient housing options.

(2)  Studies show that the length of sentences served by offenders does not affect their recidivism rates.  Therefore, current law authorizes the commissioner of corrections to release certain offenders on reintegration furlough 90 days prior to the minimum sentence date.  However, on average, eligible inmates serve only 53 days in reintegration furlough status.  If all those who are eligible serve the full 90 days of reintegration status, the result could be a savings of up to 90 corrections beds.

(c)  Therefore, in order to reduce recidivism, increase public safety, and reduce the cost to the state of incarcerating offenders, it is the intent of the general assembly to increase substance abuse treatment services, vocational training, and transitional housing available to offenders; and establish processes for reducing incarceration time when appropriate.

(d)  It is further the intent of the general assembly that the provisions of this act are a long-range plan to guide expenditures from additional corrections savings in future years.

(e)  The general assembly recognizes and values the dedication and experience of the classified state employees of the department of corrections, whose skill and expertise will continue to be needed as the department continues to pursue its goals and mission.

(f)  The general assembly intends the following results from the restructuring necessary to achieve the cost savings required for this act:

(1)  The incumbents in the five classified positions that will be eliminated at Northwest State Correctional Facility shall continue to be employed at that facility in classified positions that are vacant, unless the incumbents voluntarily seek employment in other state positions or leave state service.

(2)  The temporary and exempt superintendent positions at the Dale facility shall be eliminated.

(3)  An incumbent in a classified position that will be eliminated at the Dale facility who does not accept any existing vacant classified position and who exercises the contractual right to fill an existing temporary position at any department facility shall receive his or her classified position base salary and the benefits of the bargaining unit to which that temporary position would be assigned if permanent, with the exceptions of scheduling days of work, shift assignment, and post assignment. The rights established by this subdivision shall be available until January 1, 2011, or until an affected employee accepts an existing classified position, whichever occurs first.

(4)  Except as otherwise provided in this section, all existing state employee contract provisions and protections shall remain fully in force for any affected corrections employee covered by the contract.

Sec. 2.  28 V.S.A. § 1(b) is amended to read:

(b)  The department shall formulate its programs and policies recognizing that almost all criminal offenders ultimately return to the community, and that the traditional institutional prisons fail to reform or rehabilitate, operating instead to increase the risk of continued criminal acts following release.  The department shall develop and implement a comprehensive program which will provide necessary closed custodial confinement of frequent, dangerous offenders, but which also will establish as its primary objective the disciplined preparation of offenders for their responsible roles in the open community.  The department shall ensure that the comprehensive program required by this subsection includes a process by which each offender sentenced to any term of imprisonment other than for life without parole, within 30 days after receiving his or her sentence, shall begin to develop and implement a plan preparing for return to the community.  The department shall assess each offender for substance abuse treatment needs using an assessment tool designed to assess the suitability of a broad range of treatment services and shall use the results of this assessment in preparing the reentry plan.  The department may assess an offender sentenced to a minimum term of more than five years later than 30 days after the offender receives the sentence but shall assess the offender at least within a year of the offender’s receiving the sentence.

Sec. 3.  28 V.S.A. § 102(b) is amended to read:

(b)  The commissioner is charged with the following powers:

* * *

(5)  To order the assignment and transfer of persons committed to the custody of the commissioner to correctional facilities, including out-of-state facilities.

* * *

Sec. 4.  28 V.S.A. § 202 is amended to read:

§ 202.  POWERS AND RESPONSIBILITIES OF THE COMMISSIONER REGARDING PROBATION

The commissioner shall be charged with the following powers and responsibilities regarding the administration of probation:

(1)  To maintain general supervision of persons placed on probation, and to prescribe rules and regulations, consistent with any orders of the court, governing the conduct of such persons;

(2)  To supervise the administration of probation services and establish policies and standards and make rules and regulations regarding probation investigation, supervision, case work and case loads, record keeping, and the qualification of probation officers.  The commissioner may use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on probation.  Transdermal alcohol monitoring equipment shall be used for such purposes as preventing persons whose licenses have been suspended for DUI from operating motor vehicles on Vermont highways.  

Sec. 5.  28 V.S.A. § 205 is amended to read:

§ 205.  PROBATION

(a)(1)  After passing sentence, a court may suspend all or part of the sentence and place the person so sentenced in the care and custody of the commissioner upon such conditions and for such time as it may prescribe in accordance with law or until further order of court.

(2)  The term of probation for misdemeanors shall be for a specific term not to exceed two years unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.

(3)(A)  The term of probation for nonviolent felonies shall not exceed the statutory maximum term of imprisonment for the offense unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.

(B)  As used in this subdivision, "nonviolent felonies" means an offense which is not:

(i)  a listed crime as defined in subdivision 5301(7) of Title 13; or

(ii)  an offense involving sexual exploitation of children in violation of chapter 6 of Title 13.

(4)  Nothing in this subsection shall prevent the court from terminating the period of probation and discharging a person pursuant to section 251 of this title.

(5)  The probation officer of a person on probation for a specific term shall review the person's case file during probation and, not less than 45 days prior to the expiration of the probation term, may file a petition with the court requesting the court to extend the period of probation for a specific term not to exceed one year in order to provide the person the opportunity to complete programming consistent with special conditions of probation.  A hearing on the petition for an extension of probation under this subsection shall comply with the procedures set forth in Rule 32.1 of the Vermont Rules of Criminal Procedure.

(b)  The victim of a listed crime as defined in 13 V.S.A. § 5301(7) for which the offender has been placed on probation shall have the right to request, and receive from the department of corrections information regarding the offender's general compliance with the specific conditions of probation. Nothing in this section shall require the department of corrections to disclose any confidential information revealed by the offender in connection with participation in a treatment program.

(c)(1)  Unless the court in its discretion finds that the interests of justice require additional standard and special conditions of probation, when the court orders a specific term of probation for a qualifying offense, the only conditions of probation shall be that the probationer:

(A)  register with the department of corrections’ probation and parole office in his or her district;

(B)  notify the probation officer of his or her current address each month; and

(C)  not have probable cause found for a criminal offense during the term of probation.

(2)  As used in this subsection, “qualifying offense” means:

(A)  Unlawful mischief under 13 V.S.A. § 3701.

(B)  Retail theft under 13 V.S.A. §§ 2575 and 2577.

(C)  Operating after suspension or revocation of license under 23 V.S.A. § 674(a).

(D)  Bad checks under 13 V.S.A. § 2022.

(E)  Theft of services under 13 V.S.A. § 2582.

(F)  Disorderly conduct under 13 V.S.A. § 1026, unless the original charge was a listed offense as defined in 13 V.S.A. § 5301(7).

(G)  Theft of rented property under 13 V.S.A. § 2591.

(H)  Operation without consent of owner under 23 V.S.A. § 1094(a).

(I)  Petit larceny under 13 V.S.A. § 2502.

(J)  Negligent operation of a motor vehicle under 23 V.S.A.

§ 1091(a).

(K)  False reports to law enforcement under 13 V.S.A. § 1754.

(L)  Setting fires under 13 V.S.A. § 508.

(M)  A first offense of a minor’s misrepresenting age, procuring, possessing, or consuming liquors under 7 V.S.A. § 657.

(N)  Simple assault by mutual consent under 13 V.S.A. § 1023(b).

(O)  Unlawful trespass under 13 V.S.A. § 3705(a).

(P)  A first offense of possession under 18 V.S.A. § 4230(a)(1).

Sec. 6.  28 V.S.A. § 252(b) is amended and (d) is added to read:

(b)  When imposing a sentence of probation, the court may, as a condition of probation, require that the offender:

* * *

(16)  Satisfy any other conditions reasonably related to his or her rehabilitation.  The court shall not impose a condition prohibiting the offender from engaging in any legal behavior unless the condition is reasonably related to the offender’s rehabilitation.

(d)  The commissioner shall review the record of each probationer serving a specified term during the month prior to the midpoint of that probationer’s specified term and may file a motion requesting the sentencing court to dismiss the probationer from probation or deduct a portion of the specified term from the period of probation if the offender has successfully completed a program or has attained a goal or goals specified by the conditions of probation.  The commissioner may include in the motion a request that the court deduct a portion of the specified term for each condition completed or goal attained. Any motion under this section shall be made at the sole discretion of the commissioner pursuant to a rule adopted by the commissioner under 3 V.S.A. chapter 25.

Sec. 7.  28 V.S.A. § 256 is added to read:

§ 256.  CASELOAD CAPACITY; HIGH RISK OFFENDERS

(a)  Probation officers designated to work exclusively with offenders 21 years of age and younger shall have caseloads of no more than 25 youths.

(b)  The department shall review the severity of offenses and assess the risk to reoffend of all offenders older than 21 years of age under its jurisdiction in the community and assign one of the following levels of supervision to each offender: 

(1)  Risk management supervision, which shall mean supervision at a level of intensity that includes case planning and measures to reduce risk of reoffense.

(2)  Response supervision, which shall mean monitoring of the offender’s compliance with conditions of probation or parole, including staff responding to violation behavior.

(3)  Administrative supervision, which shall mean monitoring of the offender’s address and compliance with the law. 

(c)  An offender may be reassigned to a lower supervision level after a reassessment of the offender’s risk.

(d)  The department shall establish the following probation officer caseload ranges for offender profiles:

(1)  All listed offenders requiring risk management shall be supervised at no more than 45 offenders per probation officer.

(2)  All nonlisted offenders requiring risk management shall be supervised at no more than 60 offenders per probation officer.

(3)  All offenders requiring response supervision shall be supervised at no more than 150 offenders per probation officer.

(4)  All offenders requiring administrative supervision may be supervised on caseloads consistent with the capacity of automated status reporting systems as established by the department.

(5)  When there is a mixed profile caseload in which a single probation officer supervises offenders with different supervision levels and at least

one-third of the offenders require a more intensive supervision demand than the other offenders, the caseload shall be supervised at the lowest level of offender-to-staff ratio. 

(e)  If the caseloads established in subsection (d) of this section are exceeded for longer than 120 days, the commissioner shall be authorized to designate community correctional officers to partially augment staffing caseloads.  If such designation does not remedy the excess caseloads:

(1)  The commissioner shall report to the joint corrections oversight committee the causes for the excess and proposals for addressing them.

(2)  The department shall have the authority, if the commissioner believes that the excess will not be eliminated within 60 days, to hire persons from the states position vacancy pool as limited service employees for an initial period of up to one year.  The initial period may be extended for up to two more years if the department deems it necessary.

(f)  Each time a position is established under subdivision (e)(2) of this section, the commissioner shall report it at the next meeting of the joint corrections oversight committee.  The costs for each position shall be presented in the department’s budget adjustment proposal and, if the positions are necessary for an ongoing period, in the department’s annual budget request.

Sec. 8.  28 V.S.A. § 403(1) is amended to read:

(1)  To supervise and control persons placed on parole, subject to the rules and orders of the parole board as to the conditions of parole.  The commissioner may use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on parole.  Transdermal alcohol monitoring equipment shall be used for such purposes as preventing persons whose licenses have been suspended for DUI from operating motor vehicles on Vermont highways;

Sec. 9.  28 V.S.A. § 723(c) is added to read:

(c)  Prior to release under this section, the department shall screen and, if appropriate, assess each felony drug and property offender for substance abuse treatment needs using an assessment tool designed to assess the suitability of a broad range of treatment services, and it shall use the results of this assessment in preparing a reentry plan.  The department shall attempt to identify all necessary services in the reentry plan and work with the offender to make connections to necessary services prior to release so that the offender can begin receiving services immediately upon release. 

Sec. 10.  28 V.S.A. § 808(a)(8) is amended to read:

(8)  To prepare for reentry into the community.

* * *

(E)  An offender incarcerated for driving while under the influence of alcohol under 13 V.S.A. § 1210(d) or (e) may be furloughed to the community up to 180 days prior to completion of the minimum sentence at the commissioner’s discretion and in accordance with rules adopted pursuant to subdivision (C) of this subdivision (8), provided that an offender sentenced to a minimum term of fewer than 270 days shall not be eligible for furlough under this subdivision until the offender has served at least 90 days of his or her minimum term of incarceration and provided that the commissioner uses electronic equipment to monitor continually the offender’s location and blood alcohol level.

(F)  Prior to release under this subdivision (8), the department shall screen, and if appropriate, assess each felony drug and property offender for substance abuse treatment needs using an assessment tool designed to assess the suitability of a broad range of treatment services, and it shall use the results of this assessment in preparing a reentry plan.  The department shall attempt to identify all necessary services in the reentry plan and work with the offender to make connections to necessary services prior to release so that the offender can begin receiving services immediately upon release. 

Sec. 11.  28 V.S.A. § 808(b) is amended to read:

(b)  An inmate granted a furlough pursuant to this section may be accompanied by an employee of the department, in the discretion of the commissioner, during the period of the inmate's furlough.  The department may use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on furlough.

Sec. 12.  33 V.S.A. § 708 is amended to read:

§ 708.  TREATMENT AND SERVICES

* * *

(d)  A person judged by a law enforcement officer to be incapacitated, and who has not been charged with a crime, may be lodged in protective custody in a lockup or community correctional center secure facility not operated by the department of corrections for up to 24 hours or until judged by the person in charge of the facility to be no longer incapacitated, if and only if:

(1)  The person refuses to be transported to an appropriate facility for treatment, or if once there, refuses treatment or leaves the facility before he or she is considered by the responsible staff of that facility to be no longer incapacitated; or

(2)  No approved substance abuse treatment program with detoxification capabilities and no staff physician or other medical professional at the nearest licensed general hospital can be found who will accept the person for treatment.

(e)  No person shall be lodged in a lockup or community correctional center secure facility not operated by the department of corrections under subsection (d) of this section without first being evaluated by a substance abuse crisis team, a designated substance abuse counselor, a clinical staff person of an approved substance abuse treatment program with detoxification capabilities or a professional medical staff person at a licensed general hospital emergency room and found to be indeed incapacitated.

(f)  No lockup or community correctional center secure facility not operated by the department of corrections shall refuse to admit an incapacitated person in protective custody whose admission is requested by a law enforcement officer, in compliance with the conditions of this section.

(g)  Notwithstanding subsection (d) of this section, a person under 18 years of age who is judged by a law enforcement officer to be incapacitated and who has not been charged with a crime shall not be held at a lockup or community correctional center. If needed treatment is not readily available the person shall be released to his or her parent or guardian.  If the person has no parent or guardian in the area, arrangements shall be made to house him or her according to the provisions of chapter 55 of this title.  The official in charge of an adult jail or lockup shall notify the director of the office of drug and alcohol abuse of any person under the age of 18 brought to an adult jail or lockup pursuant to this chapter.

(h)  If an incapacitated person in protective custody is lodged in a lockup or community correctional center secure facility not operated by the department of corrections, his or her family or next of kin shall be notified as promptly as possible.  If the person is an adult and requests that there be no notification, his or her request shall be respected.

(i)  A taking into protective custody under this section is not an arrest.

(j)  Law enforcement officers or persons responsible for supervision in a lockup or community correctional center secure facility not operated by the department of corrections or members of a substance abuse crisis team or designated substance abuse counselors who act under the authority of this section are acting in the course of their official duty and are not criminally or civilly liable therefor, unless for gross negligence or willful or wanton injury.

Sec. 13.  33 V.S.A. § 708a is added to read:

§ 708a.  INCARCERATION FOR INEBRIATION PROHIBITED

No person who has not been charged with a crime shall be incarcerated in a facility operated by the department of corrections on account of the person’s inebriation.

Sec. 14.  TRANSITION UNITS

(a)  The general assembly intends in this act to provide the opportunity for a successful transition to offenders who are eligible for release into the community.

(b)  The department of corrections shall establish a transition unit within the Northwest State Correctional Facility which enables inmates to work in the community while residing in the facility.  The unit shall be modeled on the transition unit at the Chittenden Regional Correctional Facility.

(c)  The department shall make every effort to incorporate a transition unit into any facility where renovations are necessary to implement the provisions of this act.

(d)  The department shall report to the corrections oversight committee on or before September 30, 2008, on the implementation of this section, including a plan for establishing transition units at all state correctional facilities.   

Sec. 15.  BUDGETARY SAVINGS ALLOCATIONS IN FISCAL YEARS 2009 AND 2010

(a)  Findings.  Department of corrections expenditures on correctional services including out-of-state beds grew from $93,255,650.00 in fiscal year 2004 to $120,533,309.00 in fiscal year 2008.  The amount of funding proposed for fiscal year 2009 is $123,589,833.00.  This rate of increase has been and remains unsustainable.

(b)  Action.  In order to reduce the unsustainable increases in the expenditures of the department of corrections, the following action shall be taken by the executive branch:

(1)  In fiscal year 2009, the Dale Correctional Facility in Waterbury shall be closed.

(2)  In fiscal year 2009, the mission of the Southeast State Correctional Facility in Windsor shall change to be a therapeutic community in a work camp model, consistent with any further directive set forth in the 2008 Capital Construction Act, S.365.

(3)  In fiscal year 2009, sections of the Northwest State Correctional Facility in Swanton shall be closed and the facility otherwise configured to house and program women, with consideration given to housing male detainees, consistent with any further directive set forth in the 2008 Capital Construction Act, S.365.

(c)  Goal; fiscal year 2009.  It is the goal of the general assembly to achieve in the fourth quarter of fiscal year 2009 approximately $600,000.00 in savings in the department of corrections budget, which will be reinvested in substance abuse screening, assessment, treatment, and reentry support, the goal of which is to reduce recidivism for the target group indentified in Sec. 1(a) of this act.

(d)  Goal; fiscal year 2010.  It is the goal of the general assembly to achieve in fiscal year 2010 approximately $3,044,949 in savings in the department of corrections budget, some of which will be reinvested in a variety of effective programs to further reduce recidivism for the target group indentified in Sec. 1(a) of this act. 

Sec. 16b.  ANTICIPATED BUDGETARY SAVINGS ALLOCATIONS IN FISCAL YEAR 2009 

(a)  In the last quarter of fiscal year 2009, from within the amounts appropriated to the department of corrections from the general fund, the department shall reinvest $600,000.00 as follows:

(1)  the amount of $150,000.00 shall be used to fund substance abuse programs and vocational training in a state work camp facility;

(2)  the amount of $450,000.00 shall be transferred to the secretary of human services and used to fund the following activities:

(A)  $200,000.00 shall be used to expand the capacity of community alcohol and substance abuse prevention and treatment providers to provide services, including services to public inebriates; and

(B)  $250,000.00 shall be used to expand the availability of public inebriate beds outside the department of corrections.

(b)  The joint fiscal office shall track and report to the joint fiscal committee in January and July of 2009 savings in the corrections budget resulting from the provisions of this act.

Sec. 17.  ANTICIPATED BUDGETARY SAVINGS ALLOCATIONS IN FISCAL YEAR 2010

In fiscal  year 2010, from within the amounts appropriated to the department of corrections from the general fund, the department shall reinvest a portion of the savings identified by either the commissioner of corrections or the corrections oversight committee as follows:

(1)  $150,000.00 to increase the capacity of the department of corrections’ intensive substance abuse program (ISAP), which provides services on an intensive out-patient basis;

(2)  $150,000.00 to expand the ISAP program to include a community based residential substance abuse treatment component for those who have been furloughed to the community pursuant to 28 V.S.A. § 808(a)(7);

(3)  $150,000.00 to enter into contracts with several community-based substance abuse treatment providers in different geographic regions of the state and to provide the substance abuse treatment services to persons on conditional reentry status pursuant to subchapter 1A of chapter 11 of Title 28;

(4)  $650,000.00 to provide vocational training and residential substance abuse programs in one or more state-owned and -operated work camps;

(5)(A)  $1,200,000.00 to provide grants to community providers to increase by 60 the number of beds available for at least 120 offenders who will be staying in the transitional housing for three to six months before reentering the community on furlough pursuant to 28 V.S.A. § 808 or conditional reentry, pursuant to subchapter 1A of chapter 11 of Title 28, provided that the new transitional housing shall include a range from lightly supervised with no treatment programs to heavily supervised with wrap-around treatment programs, and that $200,000.00 of this amount shall be used to provide life skills programming. 

(B)  To the extent that the purposes identified in subdivision (A) of this subdivision (5) can be accomplished without using all of the funds appropriated in that subdivision, the department may use up to $200,000.00 of the appropriation to expand housing readiness, search, and retention services, housing assistance funding which may be granted to housing authorities and other community agencies in response to requests for proposals or memorandums of understanding entered into in accordance with department policy and directives; and

(6)  $211,000.00 to purchase electronic monitoring equipment, including automated voice recognition telephone equipment, global position monitoring system bracelets, and transdermal alcohol monitoring equipment; the commissioner shall use the equipment to augment supervision of offenders on probation, parole, or furlough and to enhance the capacity of field staff to monitor and control offenders who would otherwise be incarcerated;  

(7)  $110,000.00 for recovery centers; and

(8)(A)  $200,000.00 shall be transferred to the secretary of human services to expand the capacity of community alcohol and substance abuse prevention and treatment providers to provide services, including services to public inebriates.

(B)   $200,000.00 shall be transferred to the secretary of human services to fund the establishment of a pilot program at a location approved by the court administrator to:

(i)  conduct a voluntary and confidential screening and assessment, when screening indicates that an assessment is appropriate, for substance abuse and mental health treatment needs at the time of arraignment of individuals charged with felony property, drug, or fraud offenses;

(ii)  conduct a mandatory screening and assessment, when screening indicates that an assessment is appropriate, for substance abuse and mental health treatment needs following adjudication and prior to sentencing of individuals found guilty of felony property, drug, or fraud offenses;

(iii)  provide the results of any screening and assessment conducted under this section to the judge following adjudication and prior to sentencing so that the judge can use the information to determine the level of treatment to be provided while the individual is in the custody of the commissioner of corrections; and

(iv)  enable the commissioner to gather data regarding the prevalence of co-occurring substance abuse and mental health disorders.

Sec. 18.  STATEWIDE DRUG COURT STUDY

The court administrator, the defender general, the executive director of the department of state’s attorneys and sheriffs, the deputy commissioner of the department of health in charge of the alcohol and drug abuse, and the commissioner of mental health shall report to the house and senate committees on judiciary by December 15, 2008, on the advisability and feasibility of expanding the drug court program to every county in the state.  The report shall address:

(1)  the financial costs of expanding the drug court program statewide;

(2)  the workforce impact which a statewide expansion of the program would have and whether new staff would be required;

(3)  whether current state facilities have the capacity to support statewide expansion and whether and where any new facilities would be required; and

(4)  any other matter deemed relevant to the issue of statewide drug court expansion.    

Sec. 19.  PUBLIC INEBRIATES TASK FORCE

(a)  A public inebriates task force is established.  The task force shall consist of the following members:

(1)  Two members employed by the office of alcohol and drug abuse appointed by the commissioner of the department of health.

(2)  Two substance abuse treatment providers appointed by the substance abuse treatment providers association.

(3)  One member appointed by the department of public safety.

(4)  One member appointed by the Vermont police association.

(5)  One member appointed by the Vermont League of Cities and Towns.

(6)  Two members appointed by the Vermont medical society who shall be hospital emergency room personnel.

(7)  Two members appointed by the Vermont recovery network.

(8)  Two employees of the department of corrections appointed by the commissioner of the department of corrections.

(b)  The task force shall report to the senate and house committees on judiciary, institutions, and appropriations no later than January 1, 2009 with a plan to ensure that public inebriates are given appropriate care rather than incarcerated.  The plan shall ensure the regional availability of supportive voluntary and secured accommodations for public inebriates by January 1, 2010, and shall include a timetable for providing reimbursement of expenses to programs that house and maintain public inebriates.

Sec. 20.  ACCOUNTABILITY; REPORTS

(a)  On or before January 15, 2010, the commissioner of corrections shall report to the senate committee on judiciary, the house committee on institutions and corrections, and the house committee on judiciary on:

(1)  the prevalence of co-occurring mental health and substance abuse disorders among those committed to the custody of the commissioner of corrections;

(2)  the success of and problems encountered in:

(A)  expanding the ISAP program pursuant to Sec. 6(c)(1) of this act:

(B)  implementing the pilot program authorized and funded in Sec. 6(c)(3) of this act, as well as recommendations for continuing the program or expanding the program or both; and

(C)  developing reentry plans which identify services needed upon release and in working with community providers to ensure that each offender receives those services immediately upon release;

(3)  the progress made since passage of this act in establishing a comprehensive system of community substance abuse treatment services which is coordinated with corrections services;

(4)  a proposal to increase the furlough days for nonlisted offenders from the existing average of 53 to a target of 75. 

(b)  The department of corrections shall upon passage of this act manage  existing furlough procedures to create the same amount of financial savings that the department would have realized had this act made it mandatory to furlough offenders 90 days prior to completion of the offenders’ minimum sentence.

(c)  On or before January 15, 2011, the commissioner of corrections shall report to the senate committee on judiciary, the house committee on institutions and corrections, and the house committee on judiciary on the successes of and problems encountered in working to meet the following goals with the funds provided and through the programs established in this act:

(1)  increase by at least 30 the number of offenders with sentences of one or more years placed in the department of corrections’ intensive substance abuse program (ISAP) pursuant to 28 V.S.A. § 808(a)(7);

(2)  move at least 10 offenders who are in the intensive phase of receiving ISAP services under 28 V.S.A. § 808(a)(7) and who are unsuccessful and would otherwise be reincarcerated to a community-based residential substance abuse treatment program which may be a component of ISAP;

(3)  incarcerate no more than 20 percent of offenders who are receiving substance abuse treatment services under 28 V.S.A. § 808(a)(7); 

(4)  reduce by 10 percent the number of reincarcerations of those on conditional reentry with a high need for substance abuse treatment;

(5)  increase the number of inmates released on furlough, pursuant to 28  V.S.A. § 808, by 25 individuals per month; and

(6)  increase the average number of days released on reintegration furlough pursuant to 28 V.S.A. § 808(a)(8) prior to the minimum sentence to as close to 90 days as possible. 

(d)  Until the corrections oversight committee informs the commissioner that it no longer requires the information, the commissioner of corrections shall include in monthly reports to the committee:

(1)  the number of inmates eligible for furlough under 28 V.S.A. § 808 and considered appropriate for release by the commissioner but who have not been released because the commissioner is unable to find appropriate housing, employment, treatment, or other services;

(2)  which treatment or other services would have been necessary and in which geographic region the services would have been needed, to enable release; and

(3)  the number of days of incarceration that could have been avoided if the community resources had been available and these offenders had been released.

(4)  a detailed description of the progress made on increasing the use of electronic monitoring as authorized by 28 V.S.A. §202, 28 V.S.A. §403(1) and 28 V.S.A. §808(b). 

(e)  On or before January 15, 2011, the court administrator's office, in consultation with the office of alcohol and drug abuse programs in the Vermont department of health, the department of corrections, the defender general, and the executive director of the department of state’s attorneys and sheriffs shall report to the senate and house committees on judiciary on the costs, cost savings, and effectiveness of the pilot project established pursuant to Sec. 17(a)(8)(B) of this act and shall make a recommendation as to the continuation of the pilot project and its expansion to other counties.

(f)  The joint fiscal office and office of finance and management shall jointly document the impact of the policies and provisions of this act on corrections costs and shall report their findings to the general assembly on or before January 15, 2010, and in January of each year for five years thereafter.

(g) The Vermont center for justice research shall study and evaluate the effectiveness of the system of administrative probation established by subsection 2059(c) of Title 28, including whether the people who receive such probation commit further offenses, and the nature of those offenses.  The center shall report its evaluation of administrative probation to the senate and house committees on judiciary on or before December 15, 2011.

Sec.21.  EFFECTIVE DATE

This act shall take effect on July 1, 2008, except for Secs. 12, 13, and 14, which shall take effect on July 1, 2010.

Rep. Emmons of Springfield, for the Committee on Corrections and Institutions, recommends the House concur with the Senate proposal of amendment  by striking the proposal of amendment and inserting in lieu thereof the following:

Sec. 1.  FINDINGS AND INTENT

(a)  The general assembly finds that:

(1)  Vermont’s incarcerated population is growing at an unsustainable rate.

(2)  Property and drug offenders are the fastest growing segment of the prison population.  Between 2000 and 2006, over one-half the increase in the felony prison population was due to property and substance abuse offenses.

(3)  Seventy-seven percent of those sentenced for a property or drug felony have a substance abuse disorder.  Two-thirds of them report having received mental health treatment in the past.  Fifty-five percent report being frequently unemployed prior to incarceration.

(4)  Of those incarcerated for a property or drug felony, only 13 percent are receiving treatment.

(b)  The general assembly further finds that:

(1)  Each month, approximately 70 inmates meet the criteria for reentering the community under the supervision of the commissioner of corrections on conditional reentry status.  However, almost one-half are not released because of insufficient housing options.

(2)  Studies show that the length of sentences served by offenders does not affect their recidivism rates.  Therefore, current law authorizes the commissioner of corrections to release certain offenders on reintegration furlough 90 days prior to the minimum sentence date.  However, on average, eligible inmates serve only 53 days on reintegration furlough status.  If all those who are eligible serve the full 90 days of reintegration status, the result could be a savings of up to 90 corrections beds.

(c)  The general assembly intends:

(1)  to reduce recidivism, increase public safety, and reduce the cost to the state of incarcerating offenders by increasing substance abuse treatment services, vocational training, and transitional housing available to offenders, and by establishing processes for reducing incarceration time when appropriate; and

(2)  that the provisions of this act are a long-range plan to guide expenditures from additional corrections savings in future years.

Sec. 2.  28 V.S.A. § 102(b) is amended to read:

(b)  The commissioner is charged with the following powers:

* * *

(5)  To order the assignment and transfer of persons committed to the custody of the commissioner to correctional facilities, including out-of-state facilities.

* * *

Sec. 3.  28 V.S.A. § 202 is amended to read:

§ 202.  POWERS AND RESPONSIBILITIES OF THE COMMISSIONER

            REGARDING PROBATION

The commissioner shall be charged with the following powers and responsibilities regarding the administration of probation:

(1)  To maintain general supervision of persons placed on probation, and to prescribe rules and regulations, consistent with any orders of the court, governing the conduct of such persons;

(2)  To supervise the administration of probation services and establish policies and standards and make rules and regulations regarding probation investigation, supervision, case work and case loads, record keeping, and the qualification of probation officers;

(3)  To use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on probation.  Transdermal alcohol monitoring equipment shall be used for such purposes as preventing persons whose licenses have been suspended for DUI from operating motor vehicles on Vermont highways.   

Sec. 4.  28 V.S.A. § 205(c) is added to read:

(c)(1)  Unless the court in its discretion finds that the interests of justice require additional standard and special conditions of probation, when the court orders a specific term of probation for a qualifying offense, the offender shall be placed on administrative probation which means that the only conditions of probation shall be that the probationer:

(A)  register with the department of correction’s probation and parole office in his or her district;

(B)  notify the probation officer of his or her current address each month;

(C)  within 72 hours, notify the department of corrections if probable cause is found for a criminal offense during the term of probation; and

(D)  not be convicted of a criminal offense during the term of probation.

(2)  As used in this subsection, “qualifying offense” means:

(A)  Unlawful mischief under 13 V.S.A. § 3701.

(B)  Retail theft under 13 V.S.A. §§ 2575 and 2577.

(C)  Operating after suspension or revocation of license under 23 V.S.A. § 674(a).

(D)  Bad checks under 13 V.S.A. § 2022.

(E)  Theft of services under 13 V.S.A. § 2582.

(F)  Disorderly conduct under 13 V.S.A. § 1026, unless the original charge was a listed offense as defined in 13 V.S.A. § 5301(7).

(G)  Theft of rented property under 13 V.S.A. § 2591.

(H)  Operation without consent of owner under 23 V.S.A. § 1094(a).

(I)  Petit larceny under 13 V.S.A. § 2502.

(J)  Negligent operation of a motor vehicle under 23 V.S.A.

§ 1091(a).

(K)  False reports to law enforcement under 13 V.S.A. § 1754.

(L)  Setting fires under 13 V.S.A. § 508.

(M)  A first offense of a minor’s misrepresenting age, procuring, possessing, or consuming liquors under 7 V.S.A. § 657.

(N)  Simple assault by mutual consent under 13 V.S.A. § 1023(b) unless the original charge was a listed offense as defined in 13 V.S.A. § 5301(7).

(O)  Unlawful trespass under 13 V.S.A. § 3705(a).

(P)  A first offense of possession under 18 V.S.A. § 4230(a)(1).

(3)  Nothing in this subsection shall prohibit a court from requiring participation in the restorative justice program established in chapter 12 of this title.

Sec. 5.  28 V.S.A. § 252(b) is amended and (d) is added to read:

(b)  When imposing a sentence of probation, the court may, as a condition of probation, require that the offender:

* * *

(16)  Satisfy any other conditions reasonably related to his or her rehabilitation.  The court shall not impose a condition prohibiting the offender from engaging in any legal behavior unless the condition is reasonably related to the offender’s rehabilitation or necessary to reduce risk to public safety.

(d)  The commissioner shall review the record of each probationer serving a specified term during the month prior to the midpoint of that probationer’s specified term and may file a motion requesting the sentencing court to dismiss the probationer from probation or deduct a portion of the specified term from the period of probation if the offender has successfully completed a program or has attained a goal or goals specified by the conditions of probation.  The commissioner may include in the motion a request that the court deduct a portion of the specified term for each condition completed or goal attained. Any motion under this section shall be made pursuant to a rule adopted by the commissioner under 3 V.S.A. chapter 25 which shall provide that the decision to make or refrain from making a motion shall be made at the sole discretion of the commissioner and shall not be subject to appeal.

Sec. 6.  28 V.S.A. § 105 is added to read:

§ 105.  OFFENDERS IN THE COMMUNITY; CASELOAD CAPACITY

(a)  The department shall define and document, in writing, its management practices and processes to ensure that there are sufficient trained correctional field staff to support the success of offenders supervised in the community and to assure that department functions are not transferred to local law enforcement agencies.

(b)  The department shall reassess annually the appropriateness of its written documentation as defined in this section.  This reassessment shall take into account changes in best practice, legislation, and technological advances.

(c)  In order to ensure that caseload capacities allow for adequate supervision of offenders and for the support of successful reintegration of incarcerated offenders, the department shall implement procedures which address the following:

(1)  Ongoing review of local caseload capacities in order to support adequate supervision of these offenders.

(2)  Assurances that caseloads are of such a number and kind as to allow for adequate supervision of these offenders.

(3)  Case management practices that support the efficient termination, discharge, or transfer to a more appropriate level of supervision of probation cases.

(d)  The department shall review offender characteristics and distinguish those offenders who require less supervision to ensure public safety from those who require more intensive and intrusive intervention.  This review of offender characteristics shall include the offender’s risk to reoffend using DOC assessment instruments that reflect best practice at the time caseload decisions are being considered.  Assessment technology shall also take into account caseload composition and psychosocial risk factors that may influence the risk to reoffend.

(e)  The department shall review caseloads and task assignment processes when assigning offenders to correctional staff.  In general, field sites will maintain larger caseloads of those offenders who require less supervision to ensure public safety, and smaller caseloads of those who require more intensive and intrusive supervision.

(f)  When assigning caseloads to correctional staff, the department shall consider related noncasework activities, such as co-facilitation of treatment and education groups, conducting investigations and related report writing, and supporting the activities of community reparative or reentry boards.

(g)  The department shall review the severity of offenses and assess the risk to reoffend of all offenders older than 21 years of age under its jurisdiction in the community and assign one of the following levels of supervision to each offender:

(1)  Risk management supervision, which shall mean supervision at a level of intensity that includes case planning and measures to reduce the risk of reoffense.

(2)  Response supervision, which shall mean monitoring of the offender’s compliance with conditions of probation or parole, including staff responding to violation behavior.

(3)  Administrative supervision, which shall mean monitoring of the offender’s address and compliance with the law.

(h)  An offender may be reassigned to a lower or higher supervision level after a reassessment of the offender’s risk.

(i)  All offenders requiring administrative supervision may be supervised on caseloads consistent with the capacity of automated status reporting systems as established by the department.

(j)  In order to ensure that public safety is not compromised and that offenders in the community who are under the custody of the commission have supervision adequate to minimize the chances for recidivism, the commissioner shall develop standards which shall include a range of maximum and minimum caseload sizes for correctional officers. 

Sec. 7.  CASELOAD SIZE STANDARDS; REPORT

On or before September 1, 2008, the commissioner of corrections shall report on the standards developed pursuant to 28 V.S.A. § 105(j) to the corrections oversight committee.

Sec. 8.  28 V.S.A. § 403(1) is amended to read:

(1)  To supervise and control persons placed on parole, subject to the rules and orders of the parole board as to the conditions of parole.  The commissioner may use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on parole.  Transdermal alcohol monitoring equipment shall be used for such purposes as preventing persons whose licenses have been suspended for DUI from operating motor vehicles on Vermont highways;

Sec. 9.  28 V.S.A. § 723(c) is added to read:

(c)  Prior to release under this section, the department shall screen and, if appropriate, assess each felony drug and property offender for substance abuse treatment needs using an assessment tool designed to assess the suitability of a broad range of treatment services, and it shall use the results of this assessment in preparing a reentry plan.  The department shall attempt to identify all necessary services in the reentry plan and work with the offender to make connections to necessary services prior to release so that the offender can begin receiving services immediately upon release. 

Sec. 10.  28 V.S.A. § 808(a)(8)(E) is added to read:

(8) To prepare for reentry into the community.

* * *

(E)  Prior to release under this subdivision (8), the department shall screen and, if appropriate, assess each felony drug and property offender for substance abuse treatment needs using an assessment tool designed to assess the suitability of a broad range of treatment services, and it shall use the results of this assessment in preparing a reentry plan.  The department shall attempt to identify all necessary services in the reentry plan and work with the offender to make connections to necessary services prior to release so that the offender can begin receiving services immediately upon release. 

Sec. 11.  28 V.S.A. § 808(b) is amended to read:

(b)  An inmate granted a furlough pursuant to this section may be accompanied by an employee of the department, in the discretion of the commissioner, during the period of the inmate’s furlough.  The department may use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on furlough.

Sec. 12.  33 V.S.A. § 708 is amended to read:

§ 708.  TREATMENT AND SERVICES

* * *

(d)  A person judged by a law enforcement officer to be incapacitated, and who has not been charged with a crime, may be lodged in protective custody in a lockup or community correctional center secure facility not operated by the department of corrections for up to 24 hours or until judged by the person in charge of the facility to be no longer incapacitated, if and only if:

(1)  The person refuses to be transported to an appropriate facility for treatment, or if once there, refuses treatment or leaves the facility before he or she is considered by the responsible staff of that facility to be no longer incapacitated; or

(2)  No approved substance abuse treatment program with detoxification capabilities and no staff physician or other medical professional at the nearest licensed general hospital can be found who will accept the person for treatment.

(e)  No person shall be lodged in a lockup or community correctional center secure facility under subsection (d) of this section without first being evaluated by a substance abuse crisis team, a designated substance abuse counselor, a clinical staff person of an approved substance abuse treatment program with detoxification capabilities or a professional medical staff person at a licensed general hospital emergency room and found to be indeed incapacitated.

(f)  No lockup or community correctional center secure facility shall refuse to admit an incapacitated person in protective custody whose admission is requested by a law enforcement officer, in compliance with the conditions of this section.

(g)  Notwithstanding subsection (d) of this section, a person under 18 years of age who is judged by a law enforcement officer to be incapacitated and who has not been charged with a crime shall not be held at a lockup or community correctional center.  If needed treatment is not readily available the person shall be released to his or her parent or guardian.  If the person has no parent or guardian in the area, arrangements shall be made to house him or her according to the provisions of chapter 55 of this title.  The official in charge of an adult jail or lockup shall notify the director of the office of drug and alcohol abuse of any person under the age of 18 brought to an adult jail or lockup pursuant to this chapter.

(h)  If an incapacitated person in protective custody is lodged in a lockup or community correctional center secure facility, his or her family or next of kin shall be notified as promptly as possible.  If the person is an adult and requests that there be no notification, his or her request shall be respected.

(i)  A taking into protective custody under this section is not an arrest.

(j)  Law enforcement officers or , persons responsible for supervision in a lockup or community correctional center or secure facility, members of a substance abuse crisis team or , and designated substance abuse counselors who act under the authority of this section are acting in the course of their official duty and are not criminally or civilly liable therefor, unless for gross negligence or willful or wanton injury.

Sec. 13.  33 V.S.A. § 708a is added to read:

§ 708a.  INCARCERATION FOR INEBRIATION PROHIBITED

A person who has not been charged with a crime shall not be incarcerated in a facility operated by the department of corrections on account of the person’s inebriation.

Sec. 14.  TRANSITION UNITS

(a)  The general assembly intends in this act to provide to offenders who are eligible for release into the community the opportunity for a successful transition.

(b)  The department shall report to the corrections oversight committee on or before September 30, 2008, on:

(1)  the feasibility and costs of establishing within the Northwest State Correctional Facility a transition unit which is modeled on the transition unit at the Chittenden Regional Correctional Facility which enables inmates to work in the community while residing in the facility; and

(2)  the feasibility and costs of incorporating a transition unit into any facility where renovations are necessary to implement the provisions of this act.

Sec. 15.  CORRECTIONAL FACILITIES REORGANIZATION;
                PLAN

(a)  Findings.  Department of corrections expenditures on correctional services including out-of-state beds grew from $93,255,650.00 in fiscal year 2004 to $120,533,309.00 in fiscal year 2008.  The amount of funding proposed for fiscal year 2009 is $123,589,833.00.  This rate of increase has been and remains unsustainable.

(b)  Action.  In order to reduce the unsustainable increases in the expenditures of the department of corrections, the commissioner of corrections and commissioner of buildings and general services, in consultation with the corrections oversight committee, shall develop and evaluate options for reorganization of correctional facilities which will result in savings.  It is the intent of the general assembly to reinvest savings in services which will reduce recidivism, increase public safety, and reduce the cost to the state of incarcerating offenders.  On or before January 15, 2009, the two commissioners shall report to the senate and house committees on judiciary,  on appropriations, the senate committee on institutions, and the house committee on corrections and institutions on options considered, the preferred option, and cost estimates for the preferred plan.  Among other options, the commissioners shall consider:

(1)  Close the Dale Correctional Facility in Waterbury, change the mission of the Southeast State Correctional Facility in Windsor to be a therapeutic community with substance abuse treatment and vocational training services in a work camp model, and close sections of the Northwest State Correctional Facility in St. Albans and renovate the facility to house and provide services to women.

(2)  Renovate the Northwest State Correctional Facility in St. Albans to be a job training center for male inmates which may include a work camp and other more secure job training programs.

(3)  Close the Dale Correctional Facility in Waterbury and expand the Southeast State Correctional Facility in Windsor to be the facility for all female inmates in the state.

(c)  An incumbent in a classified position that will be eliminated due to the closing of a correctional facility due to action taken under this section, who does not accept an existing vacant classified position, and who exercises the contractual right to fill an existing temporary position at a department facility shall receive his or her classified position base salary and the benefits of the bargaining unit to which that temporary position would be assigned if permanent, with the exceptions of scheduling days of work, shift assignment, and post assignment. The rights established by this subsection shall be available until January 1, 2012, or until the affected employee accepts an existing classified position, whichever occurs first.  Except as otherwise provided in this subsection, all existing state employee contract provisions and protections shall remain fully in force for any affected corrections employee covered by the contract.

Sec. 16.  BUDGETARY SAVINGS; ALLOCATIONS IN FISCAL YEAR                                        2009 AND FISCAL YEAR 2010

(a)  It is the intent of the general assembly to achieve savings in the department of corrections budget which will be reinvested in substance abuse screening, assessment, and treatment and reentry support to result in reduced recidivism.

(b)  In fiscal year 2009, from within the amounts appropriated to the department of corrections from the general fund, the department shall spend $600,000 as follows:

(1)  The amount of $100,000.00 shall be to increase the capacity of the department of corrections’ intensive substance abuse program (ISAP) to provide services to those offenders with drug abuse disorders who are on preapproved furlough status under 28 V.S.A. § 808(a)(7).

(2)  The amount of $212,000.00 shall be for entering into contracts with several community‑based substance abuse treatment providers in different geographic regions of the state to provide the substance abuse treatment services to persons on conditional reentry status pursuant to subchapter 1A of chapter 11 of 28 V.S.A. or furlough pursuant to 28 V.S.A. § 808.

(3)  The amount of $200,000.00 shall be to fund the establishment of a screening and assessment pilot program at a location approved by the court administrator to:

(A)  conduct a voluntary and confidential screening and assessment, when screening indicates that an assessment is appropriate, for substance abuse and mental health treatment needs at the time of arraignment of individuals charged with felony property, drug, or fraud offenses;

(B)  conduct a mandatory screening and assessment, when screening indicates that an assessment is appropriate, for substance abuse and mental health treatment needs following adjudication and prior to sentencing of individuals found guilty of felony property, drug, or fraud offenses;

(C)  provide the results of any screening and assessment conducted under this section to the judge following adjudication and prior to sentencing so that the judge can use the information to determine the level of treatment to be provided while the individual is in the custody of the commissioner of corrections; and

(D)  enable the commissioner to gather data regarding the prevalence of co-occurring substance abuse and mental health disorders.   

(4)  The amount of $88,000.00 shall be to assess offenders for substance abuse treatment needs prior to release.

(c)  Based on a recommendation from the commissioner of corrections and the corrections oversight committee, the joint fiscal committee may authorize further spending of funds from the fiscal year 2009 corrections appropriation for all or part of the amounts of this subsection, in the order listed in this subsection.  In fiscal year 2010, from within the amounts appropriated to the department of corrections from the general fund, the department shall reinvest a portion of the savings identified by the commissioner of corrections and the corrections oversight committee as follows:

(1)  The amount of $150,000.00 shall be to provide grants to community providers of transitional housing to increase the number of beds available by 10 beds for three to six months of housing for at least 20 offenders reentering the community on furlough pursuant to 28 V.S.A. § 808 or on conditional reentry pursuant to subchapter 1A of chapter 11 of Title 28;

(2)  The amount of $200,000.00 shall be to develop the capacities of community substance abuse treatment providers to work effectively with offenders and to function efficiently as a collaborative system;

(3)  The amount of $1,200,000.00 shall be to provide grants to community providers to increase by 60 the number of beds available for at least 120 offenders who will be staying in the transitional housing for three to six months before reentering the community on furlough pursuant to 28 V.S.A. § 808 or conditional reentry, pursuant to subchapter 1A of chapter 11 of Title 28.  The new transitional housing shall include a range from lightly supervised with no treatment programs to heavily supervised with wrap-around treatment programs.  Of the amount appropriated in this subdivision $200,000.00 shall be used to:

(A)  provide life skills programming;

(B)  expand housing readiness, search, and retention services; and

(C)  expand housing assistance funding which may be granted to housing authorities and other community agencies in response to requests for proposals or memorandums of understanding entered into in accordance with department policy and directives;

(4)  The amount of $365,000.00 shall be to expand the ISAP program to include a residential component for those who have been furloughed to the community pursuant to 28 V.S.A. § 808(a)(7); and

(5)  The amount necessary to continue funding the screening and assessment pilot program established in subdivision (a)(3) of this section for one more year.

(d)  The joint fiscal office shall track and report to the joint fiscal committee in January and July of 2009 savings in the corrections budget resulting from the provisions of this act.

Sec. 17.  STATEWIDE DRUG COURT STUDY

The court administrator, the defender general, the executive director of the department of state’s attorneys and sheriffs, the deputy commissioner of the department of health in charge of the office of alcohol and drug abuse programs, and the commissioner of mental health shall report to the house and senate committees on judiciary by December 15, 2008, on the advisability and feasibility of expanding the drug court program to every county in the state.  The report shall address:

(1)  the financial costs of expanding the drug court program statewide;

(2)  the workforce impact which a statewide expansion of the program would have and whether new staff would be required;

(3)  whether current state facilities have the capacity to support statewide expansion and whether and where any new facilities would be required; and

(4)  any other matter deemed relevant to the issue of statewide drug court expansion.    

Sec. 18.  PUBLIC INEBRIATES TASK FORCE

(a)  A public inebriates task force is established.  The task force shall consist of the following members:

(1)  Two members employed by the office of alcohol and drug abuse programs appointed by the commissioner of the department of health.

(2)  Two substance abuse treatment providers appointed by the substance abuse treatment providers association.

(3)  One member appointed by the department of public safety.

(4)  One member appointed by the Vermont police association.

(5)  One member appointed by the Vermont League of Cities and Towns.

(6)  Two members appointed by the Vermont medical society who shall be hospital emergency department personnel.

(7)  Two members appointed by the Vermont recovery network.

(8)  Two employees of the department of corrections appointed by the commissioner of the department of corrections.

(9)  A representative of the Vermont Association of Hospitals and Health Systems.

(b)  The task force shall report to the senate and house committees on judiciary, institutions, and appropriations no later than January 1, 2010 with a plan to ensure that public inebriates are given appropriate care rather than incarcerated.  The plan shall ensure the regional availability of supportive voluntary and secure accommodations for public inebriates by January 1, 2011, and shall include a timetable for providing reimbursement of expenses to programs that house and maintain public inebriates.

Sec. 19.  ACCOUNTABILITY; REPORTS

(a)  On or before January 15, 2009, the commissioner of corrections and the court administrator shall report to the senate and house committees on judiciary, and the house committee corrections and institutions on implementing the screening and assessment pilot program authorized and funded in Sec. 16(b)(3) of this act, as well as recommendations for continuing the program or expanding the program or both.

(b)  On or before January 15, 2010, the commissioner of corrections shall report to the senate committee on judiciary, the house committee on corrections and institutions, and the house committee on judiciary on:

(1)  the prevalence of co-occurring mental health and substance abuse disorders among those committed to the custody of the commissioner of corrections;

(2)  the success of and problems encountered in:

(A)  expanding the ISAP program pursuant to Sec. 16(b)(1) of this act;

(B)  developing reentry plans which identify services needed by offenders upon release, and in working with community providers to ensure that each offender receives those services immediately upon release;

(C)  implementing the screening and assessment pilot program authorized and funded in Sec. 16(b)(3) of this act, as well as recommendations for continuing the program or expanding the program or both.  The commissioner shall make this report jointly with the court administrator;

(3)  the progress made since passage of this act in establishing a comprehensive system of community substance abuse treatment services which is coordinated with corrections services;

(4)  a proposal to increase the furlough days for nonlisted offenders from the existing average of 53 to a target of 75. 

(c)  On or before January 15, 2011, the commissioner of corrections shall report to the senate committee on judiciary, the house committee on corrections and institutions, and the house committee on judiciary on the successes of and problems encountered in working to meet the following goals with the funds provided and through the programs established in this act:

(1)  increase by at least 30 the number of offenders with sentences of one or more years placed in the department of corrections’ intensive substance abuse program (ISAP) pursuant to 28 V.S.A. § 808(a)(7);

(2)  move at least 10 offenders who are in the intensive phase of receiving ISAP services under 28 V.S.A. § 808(a)(7) and who are unsuccessful and would otherwise be reincarcerated to a community-based residential substance abuse treatment program which may be a component of ISAP;

(3)  incarcerate no more than 20 percent of offenders who are receiving substance abuse treatment services under 28 V.S.A. § 808(a)(7); 

(4)  reduce by 10 percent the number of reincarcerations of those on conditional reentry with a high need for substance abuse treatment;

(5)  increase by 25 the average per month number of inmates released on furlough, pursuant to 28 V.S.A. § 808; and

(6)  increase the average number of days inmates are released on reintegration furlough pursuant to 28 V.S.A. § 808(a)(8) prior to the minimum sentence to as close to 90 days as possible. 

(d)  Until the corrections oversight committee informs the commissioner that it no longer requires the information, the commissioner of corrections shall include in monthly reports to the committee:

(1)  the number of inmates eligible for furlough under 28 V.S.A. § 808 and considered appropriate for release by the commissioner but who have not been released because the commissioner is unable to find appropriate housing, employment, treatment, or other services;

(2)  which treatment or other services would have been necessary and in which geographic region the services would have been needed to enable release;

(3)  the number of days of incarceration that could have been avoided if the community resources had been available and these offenders had been released; and

(4)  a detailed description of the progress made on increasing the use of electronic monitoring as authorized by 28 V.S.A. §§ 202, 403(1) and 808(b). 

(e)  On or before January 15, 2011, the court administrator’s office, in consultation with the office of alcohol and drug abuse programs in the Vermont department of health, the department of corrections, the defender general, and the executive director of the department of state’s attorneys and sheriffs, shall report to the senate and house committees on judiciary on the costs, cost savings, and effectiveness of the screening and assessment pilot project established pursuant to Sec. 16(b)(3) of this act and shall make a recommendation as to the continuation of the screening and assessment pilot project and its expansion to other counties.

(f)  The joint fiscal office and the office of finance and management shall jointly document the impact of the policies and provisions of this act on corrections costs and shall report their findings to the general assembly on or before January 15, 2010, and in January of each year for five years thereafter.

(g)  The Vermont center for justice research shall study and evaluate the effectiveness of the system of administrative probation established by subsection 205(c) of Title 28, including whether the people who receive such probation commit further offenses and the nature of those offenses.  The center shall report its evaluation of administrative probation to the senate and house committees on judiciary on or before December 15, 2011.

Sec. 20.  EFFECTIVE DATES

(a)  Secs. 12 and 13 of this act shall take effect on July 1, 2011.

(b)  All remaining sections of this act shall take effect on July 1, 2008.

(Committee vote: 10-0-1)

(For text see House Journal 2/29/2008 – P. 468-478)

Senate Proposals of Amendment

H. 203

     An act relating to increasing the amount of an estate to which a surviving spouse is entitled when the deceased spouse dies without a will.

     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

Chapters 41, 43 and 45 of Title 14 are repealed.

Sec. 2.  14 V.S.A. chapter 42 is added to Part 2 to read:

Chapter 42.  Descent and Survivors’ Rights

Subchapter 1.  General Provisions

§ 301.  Intestate Estate

(a)  Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs, except as modified by the decedent’s will.

(b)  A decedent’s will may expressly exclude or limit the right of an individual or a class to inherit property.  If such an individual or member of such a class survives the decedent, the share of the decedent’s intestate estate which would have passed to that individual or member of such a class passes subject to any such limitation or exclusion set forth in the will.

(c)  Nothing in this section shall preclude the surviving spouse of the decedent from making the election and receiving the benefits provided by section 319 of this title.

§ 302.  Dower and Curtesy Abolished

The estates of dower and curtesy are abolished.

§ 303.  Afterborn Heirs

For purposes of this chapter and chapter 1 of this title relating to wills, an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth.

Subchapter 2.  Survivors’ Rights and Allowances

§ 311.  Share of Surviving Spouse

After payment of the debts, funeral charges, and expenses of administration, the intestate share of the decedent’s surviving spouse is as follows.

(1)  The entire intestate estate if no descendant of the decedent survives the decedent or if all of the decedent’s surviving descendants are also descendants of the surviving spouse.

(2)  In the event there shall survive the decedent one or more descendants of the decedent, who are not descendants of the surviving spouse and are not excluded by decedent’s will from inheriting from the decedent, the surviving spouse shall receive one-half of the intestate estate.

§ 312.  Surviving Spouse to Receive Household Goods

Upon motion, the surviving spouse of a decedent may receive out of the decedent’s estate all furnishings and furniture in the decedent’s household when the decedent leaves no descendants who object.  If any objection is made by any of the descendants, the court shall decide what, if any, of such personally shall pass under this section.  Goods and effects so assigned shall be in addition to the distributive share of the estate to which the surviving spouse is entitled under other provisions of law.  In making a determination pursuant to this section, the court may consider the length of the decedent’s marriage, the sentimental and monetary value of the property, and the source of the decedent’s interest in the property.

§ 313.  Surviving spouse; vessel, snowmobile, or all-terrain vehicle

Whenever the estate of a decedent who dies intestate consists principally of a vessel, snowmobile, or all-terrain vehicle, the surviving spouse shall be deemed to be the owner of the vessel, snowmobile, or all-terrain vehicle, and title to the vessel, snowmobile, or all-terrain vehicle shall automatically pass to the surviving spouse.

§ 314.  Share of Heirs other than Surviving Spouse

(a)  The balance of the intestate estate not passing to the decedent’s surviving spouse under section 311 of this title passes to the decedent’s descendants by right of representation. 

(b)  If there is no taker under subsection (a) of this section, the intestate estate passes in the following order: 

(1)  to the decedent’s parents equally if both survive or to the surviving parent;

(2)  to the decedent’s siblings or the descendants of any deceased siblings by right of representation;

(3)  one-half of the intestate estate to the decedent’s paternal grandparents equally if they both survive or to the surviving paternal grandparent and one-half of the intestate estate to the decedent’s maternal grandparents equally if they both survive or to the surviving maternal grandparent and if decedent is survived by a grandparent, or grandparents on only one side, to that grandparent or those grandparents;

(4)  in equal shares to the next of kin in equal degree.

(c)  If property passes under this section by right of representation, the property shall be divided into as many equal shares as there are children or siblings of the decedent, as the case may be, who either survive the decedent or who predecease the decedent leaving surviving descendants.

§ 315.  Parent and Child Relationship

For the purpose of intestate succession, an individual is the child of his or her parents, regardless of their marital status, but a parent shall not inherit from a child unless the parent has openly acknowledged the child and not refused to support the child.  The parent and child relationship may be established in parentage proceedings under subchapter 3A of chapter 5 of Title 15.

§ 316.  Support of Surviving Spouse and Family During Settlement

The probate court may make reasonable allowance for the expenses of maintenance of the surviving spouse and minor children or either, constituting the family of a decedent, out of the personal estate or the income of real or personal estate from date of death until settlement of the estate, but for no longer a period than until their shares in the estate are assigned to them or, in case of an insolvent estate, for not more than eight months after administration is granted.  This allowance may take priority, in the discretion of the court, over debts of the estate.

§ 317.  Allowance to Children before Payment of Debts

When a person dies leaving children under 18 years of age, an allowance may be made for the necessary maintenance of such children until they become 18 years of age.  Such allowance shall be made before any distribution of the estate among creditors, heirs, or beneficiaries by will.

§ 318.  Allowance to Children After Payment of Debts

Before any partition or division of an estate among the heirs or beneficiaries by will, an allowance may be made for the necessary expenses of the support of the children of the decedent under 18 years of age until they arrive at that age.  The probate court may order the executor or administrator to retain sufficient estate assets for that purpose, except where some provision is made by will for their support.

§319.  Waiver of Will by Surviving Spouse

(a)  A surviving spouse may waive the provisions of the decedent’s will and in lieu thereof elect to take one-half of the balance of the estate, after the payment of claims and expenses.

(b)  The surviving spouse must be living at the time this election is made.  If the surviving spouse is mentally disabled and cannot make the election personally, a guardian or attorney in fact under a valid durable power of attorney may do so.

(c)  Notwithstanding the provisions of subsection (a), the rights of election of the surviving spouse in subsection 319(a) of this chapter may be waived in whole or in part before marriage by a written contract or waiver signed by the surviving spouse that is witnessed and acknowledged.  Such an agreement is not enforceable if the surviving spouse proves any of the following:

(1)  the surviving spouse did not execute the written contract or waiver voluntarily;

(2)  the written contract or waiver was unconscionable when it was made;

(3)  one spouse did not have separate legal representation at the time the written contract or waiver was executed;

(4)  the surviving spouse (i) was not provided with a full and fair financial disclosure of the property or financial obligations of the decedent; (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosures provided; and (iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.

(d)  The provisions of subsection (c) of this section shall have no affect with respect to the provisions of 12 V.S.A. § 181(3).

(e)  This section shall apply to any agreements entered into on or after the effective date of this act.

§ 320.  Effect of Divorce Order

A final divorce order from any state shall have the effect of nullifying a gift by will or inheritance by operation of law to an individual who was the decedent’s spouse at the time the will was executed if the decedent was no longer married to that individual at the time of death, unless his or her will specifically states to the contrary.

§ 321.  Conveyances to Defeat Spouse’s Interest

Except as provided in subsection 319(c) of this title, a voluntary transfer of any property by an individual during marriage, made without adequate consideration and for the primary purpose of defeating a surviving spouse in a claim to a share of the decedent’s property so transferred, shall be void and inoperative to bar the claim.  The decedent shall be deemed at the time of his or her death to be the owner and seised of an interest in such property sufficient for the purpose of assigning and setting out the surviving spouse’s share.

§ 322.  Unlawful Killing Affecting InheritancE

Notwithstanding sections 311 through 314 of this title or provisions otherwise made, in any case where an individual is entitled to inherit or receive property under the last will of a decedent, or otherwise, such individual’s share in the decedent’s estate shall be forfeited and shall pass to the remaining heirs or beneficiaries of the decedent if such person intentionally and unlawfully kills the decedent.  In any proceedings to contest the right of an individual to inherit or receive property under a will, the record of such person’s conviction of intentionally and unlawfully killing the decedent shall be admissible evidence that such person did intentionally kill the decedent.

Subchapter 3.  Descent, Omitted Issue and Lapsed Legacies

§ 331.  Degrees; How Computed:  Kindred of Half-Blood

Kindred of the half-blood shall inherit the same share they would inherit if they were of the whole blood.

§ 332.  Share of After-Born Child

When a child of a testator is born after the making of a will and provision is not therein made for that child, he or she shall have the same share in the estate of the testator as if the testator had died intestate unless it is apparent from the will that it was the intention of the testator that provision should not be made for the child.

§ 333.  Share of Child or Descendant of Child Omitted from Will

When a testator omits to provide in his or her will for any of his or her children, or for the descendants of a deceased child, and it appears that the omission was made by mistake or accident, the child or descendants, as the case may be, shall have and be assigned the same share of the estate of the testator as if the testator had died intestate.

§ 334.  After-born AND OMITTED Child; From What Part of Estate Share Taken

When a share of a testator's estate is assigned to a child born after the making of a will, or to a child or the descendant of a child omitted in the will, the share shall be taken first from the estate not disposed of by the will, if there is any.  If that is not sufficient, so much as is necessary shall be taken from the devisees or legatees in proportion to the value of the estate they respectively receive under the will.  If the obvious intention of the testator, as to some specific devise, legacy, or other provision in the will, would thereby be defeated, the specific devise, legacy, or provision may be exempted from such apportionment and a different apportionment adopted in the discretion of the court.

§ 335.  Beneficiary Dying before Testator: Descendants to Take

When a testamentary gift is made to a child or other kindred of the testator, and the designated beneficiary dies before the testator, leaving one or more descendants who survive the testator, such descendants shall take the gift that the designated beneficiary would have taken if he or she had survived the testator, unless a different disposition is required by the will.

§ 336.  Individual Absent and Unheard of; Share of Estate

If an individual entitled to a distributive share of the estate of a decedent is absent and unheard of for six years, two of which are after the death of the decedent, the probate court in which the decedent’s estate is pending may order the share of the absent individual distributed in accordance with the terms of the decedent’s will or the laws of intestacy as if such absent individual had not survived the decedent.  If the absent individual proves to be alive, he or she shall be entitled to the share of the estate notwithstanding prior distribution, and may recover in an action on this statute any portion thereof which any other individual received under order.  Before an order is made for the payment of distribution of any money or estate as authorized in this section, notice shall be given as provided by the Vermont Rules of Probate Procedure.

§ 337.  Requirement that Individual Survive Decedent for 120 hours

Except as provided in the decedent’s will, an individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, intestate succession, and taking under decedent’s will, and the decedent’s heirs and beneficiaries shall be determined accordingly.  If it is not established by clear and convincing evidence that an individual who would otherwise be an heir or beneficiary survived the decedent by 120 hours, it is deemed that the individual failed to survive for the required period.  This section is not to be applied if its application would result in escheat.

§ 338.  DISTRIBUTION; ORDER IN WHICH ASSETS APPROPRIATED; ABATEMENT

(a)(1)  Except as provided in subsection (b) of this section, shares of distributes given under a will abate, without any preference or priority as between real and personal property, in the following order:

(A)  property not disposed of by the will;

(B)  residuary devises and bequests;

(C)  general devises and bequests;

(D)  specific devises and bequests.

(2)  For purpose of abatement, a general devise or bequest charged on any specific property or fund is a specific devise or bequest to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise or bequest to the extent of the failure or insufficiency.  Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.

(b)  If the will expresses an order of abatement or if the testamentary plan or the express or implied purpose of a devise or bequest would be defeated by the order of abatement listed in subsection (a) of this section, the shares of the distributees shall abate as may be necessary to give effect to the intention of the testator.

(c)  If the subject of a preferred devise or bequest is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

§ 339.  REFERRAL TO STATE’S ATTORNEY

A probate judge who finds there is good cause to believe that an individual has misapplied fiduciary property in violation of 13 V.S.A. § 2540 shall make a report to the state’s attorney.

Sec. 3.  13 V.S.A. § 2540 is added to read:

§ 2540.  MISAPPLICATION OF FIDUCIARY PROPERTY

(a)  For purposes of this section:

(1)  “fiduciary” includes:

(A)  a trustee, a guardian, an administrator, an executor, a conservator, and a receiver;

(B)  an attorney in fact or an agent appointed under a durable power of attorney as provided by section 3508 of Title 14; and

(C)  any other person acting in a fiduciary capacity, but not a commercial bailee.

(2)  “Misapply” means deal with property contrary to:

(A)  an agreement under which the fiduciary holds the property; or

(B)  a law prescribing the custody or disposition of the property.

(b)  A person commits an offense if he or she intentionally or recklessly misapplies property he or she holds as a fiduciary in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held.

(c)  A person who violates subsection (b) of this section shall be imprisoned not more than one year or fined not more than $1,000.00 or both if the value of the property misapplied does not exceed $900.00 in value.

(d)  A person who violates subsection (b) of this section shall be imprisoned not more than ten years or fined not more than $5,000.00 or both if the value of the property misapplied exceeds $900.00 in value.

Sec. 4.  13 V.S.A. § 2578 is amended to read:

§ 2578.  RESTITUTION

(a)  A sentencing court may order reasonable restitution where:

(1)  merchandise stolen is not recovered or is recovered in damaged condition.  Damages shall be calculated based on retail value; or

(2)  fiduciary property has been misapplied pursuant to section 2540 of this title.  Damages shall be based on the value of the property misapplied.

(b)  Restitution may be ordered in addition to any other penalties imposed.

(c)  Restitution shall be supervised by the department of corrections.

Sec. 5.  23 V.S.A. § 2023 is amended to read:

§ 2023.  TRANSFER OF INTEREST IN VEHICLE

(a)  If an owner transfers his or her interest in a vehicle, other than by the creation of a security interest, he or she shall, at the time of delivery of the vehicle, execute an assignment and warranty of title to the transferee in the space provided therefor on the certificate or as the commissioner prescribes, and of the odometer reading or hubometer reading or clock meter reading of the vehicle at the time of delivery in the space provided therefor on the certificate, and cause the certificate and assignment to be mailed or delivered to the transferee or to the commissioner.  Where title to a vehicle is in the name of more than one person, the nature of the ownership must be indicated by one of the following on the certificate of title:

(1)  TEN ENT (tenants by the entirety);

(2)  JTEN (joint tenants);

(3)  TEN COM (tenants in common); or

(4)  PTNRS (partners); or

(5)  TOD (transfer on death).

(b)  Upon request of the owner or transferee, a lienholder in possession of the certificate of title shall, unless the transfer was a breach of his or her security agreement, either deliver the certificate to the transferee for delivery to the commissioner or, upon receipt from the transferee of the owner's assignment, the transferee's application for a new certificate and the required fee, mail or deliver them to the commissioner.  The delivery of the certificate does not affect the rights of the lienholder under his security agreement.

(c)  If a security interest is reserved or created at the time of the transfer, the certificate of title shall be retained by or delivered to the person who becomes the lienholder, and the parties shall comply with the provisions of section 2043 of this title.

(d)  Except as provided in section 2024 of this title and as between the parties, a transfer by an owner is not effective until the provisions of this section and section 2026 of this title have been complied with; however, an owner who has delivered possession of the vehicle to the transferee and has complied with the provisions of this section and section 2026 of this title requiring action by him or her is not liable as owner for any damages thereafter resulting from operation of the vehicle.

(e)  Notwithstanding other provisions of the law, whenever the estate of an individual who dies intestate consists principally of an automobile, the surviving spouse shall be deemed to be the owner of the motor vehicle and title to the same shall automatically and by virtue hereof pass to said surviving spouse.  Registration of the vehicle in the name of the surviving spouse shall be effected by payment of a transfer fee of $7.00.  This transaction is exempt from the provisions of the purchase and use tax on motor vehicles.

(1)  Notwithstanding other provisions of the law, and except as provided in subdivision (2) of this subsection, whenever the estate of an individual consists in whole or in part of a motor vehicle, and the person's will or other testamentary document does not specifically address disposition of motor vehicles, the surviving spouse shall be deemed to be the owner of the motor vehicle and title to the motor vehicle shall automatically pass to the surviving spouse. Registration and title of the motor vehicle in the name of the surviving spouse shall be effected by payment of a transfer fee of $7.00.  This transaction is exempt from the provisions of the purchase and use tax on motor vehicles.

(2)  This subsection shall apply to no more than two motor vehicles, and shall not apply if the motor vehicle is titled in the name of one or more persons other than the decedent and the surviving spouse.

(f)  Where the title identifies a person who will become the owner upon the death of the principal owner (transfer on death), the principal owner shall have all rights of ownership and rights of transfer until his or her death.  The designated transferee shall have no rights of ownership until such time as the principal owner has died as established by a valid death certificate.  At that time, the transferee shall become the owner of the vehicle subject to any existing security interests.

Sec. 5a.  27  V.S.A. §101 and §102 are amended to read:

§ 101. Definition; exemption from attachment and execution

The homestead of a natural person consisting of a dwelling house, outbuildings and the land used in connection therewith, not exceeding $75,000.00 $175,000.00 in value, and owned and used or kept by such person as a homestead together with the rents, issues, profits and products thereof, shall be exempt from attachment and execution except as hereinafter provided.

§ 102. Designating homestead in case of levy

When an execution is levied upon real estate of the person of which a homestead is a part or upon that part of a homestead in excess of the limitation of $75,000.00 $175,000.00 in value, that person may designate and choose the part thereof, not exceeding the limited value, to which the exemption created in section 101 of this title shall apply. Upon designation and choice or refusal to designate or choose, the officer levying the execution, if the parties fail to agree upon appraisers, shall appoint three disinterested freeholders of the vicinity who shall be sworn by him or her and who shall fix the location and boundaries of the homestead to the amount of $75,000.00 $175,000.00 in value. The officer shall then proceed with the sale of the residue of the real estate on the execution as in other cases, and the doings in respect to the homestead shall be stated in the return upon the execution.

Sec. 6.  EFFECTIVE DATE

Sec. 2 of this act shall only apply to the estates of persons dying after January 1, 2009.

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

AN ACT RELATING TO DISPOSITION OF PROPERTY UPON DEATH, MISAPPLICATION OF FIDUCIARY PROPERTY, TRANSFER OF INTEREST IN VEHICLE UPON DEATH, AND HOMESTEAD EXEMPTION.

H. 436

     An act relating to miscellaneous amendments to local election and municipal government laws.

     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.  3 V.S.A. § 2473a(e) is amended to read:

(e)  The receipt and expenditure of moneys from the revolving fund shall be under the supervision of the business manager and at the direction of the publisher, subject to the provisions of this section.  Vermont Life magazine shall maintain accurate and complete records of all receipts and expenditures by and from the fund, and shall make an annual report on the condition of the fund to the secretary of the agency, who shall in turn provide the report to the secretary of administration.  The fund shall be audited annually by the auditor of accounts.

Sec. 2.  7 V.S.A. § 805 is amended to read:

§ 805.  -AUDIT OF OPERATIONS

On or before February 28 of each year, each state college and university licensed under this chapter shall submit a financial report on its operations under this chapter to audit by the state auditor of accounts. Such audit shall examine the financial condition and operation of such licensees for the preceding calendar year and shall be submitted to the liquor control board by April 1 of each year.

Sec. 3.  16 V.S.A. § 2177(b) is amended to read:

(b)  The books and accounts financial statements of the corporation shall be audited annually as of June 30 under the supervision of the auditor of accounts who shall publish the audit report in detail by an independent public accounting firm registered in Vermont in accordance with government auditing standards issued by the United States Government Accountability Office (GAO).  The auditor of accounts or his or her designee shall be the state’s nonvoting representative to an audit committee established by the board

Sec. 4.  16 V.S.A. § 2281 is amended to read:

§ 2281.  ANNUAL AUDIT; REPORTS; CONTROL OF FUNDS

(a)  The books and accounts of the University of Vermont and State Agricultural College shall be audited annually as of June 30, under the supervision of the auditor of accounts.  The report of such audit shall be published in detail by the auditor of accounts by an independent accounting firm registered in the state of Vermont in accordance with government auditing standards issued by the United States Government Accountability Office (GAO).  The auditor of accounts or his or her designee shall be the state’s nonvoting representative to an audit committee established by the board

* * *

(f)  Control of funds appropriated and of the work carried on under the terms of section 2321 of this title shall be vested in the board of trustees of the University of Vermont and State Agricultural College.  The University of Vermont and State Agricultural College shall provide an accounting service which shall account for the expenditure of funds by divisions and shall make an annual financial report to the governor of the state.  All funds appropriated to the agricultural college shall be kept in a separate account and shall be audited annually by the auditor of accounts an independent accounting firm registered in the state of Vermont in accordance with government auditing standards issued by the United States Government Accountability Office (GAO).

Sec. 5.  16 V.S.A. § 2835 is amended to read:

§ 2835.  CONTROLS, AUDITS, AND REPORTS

Control of funds appropriated and all procedures incident to the carrying out of the purposes of this chapter shall be vested in the board.  The books of account of the corporation shall be audited annually under the direction of the auditor of accounts by an independent public accounting firm registered in the state of Vermont in accordance with government auditing standards issued by the United States Government Accountability Office (GAO) and a the resulting audit report filed with the secretary of administration not later than November 1 each year.  The auditor of accounts or his or her designee shall be the state’s nonvoting representative to an audit committee established by the board.  Biennially, the board shall report to the legislature on its activities during the preceding biennium.

Sec. 6.  17 V.S.A. § 2353(a) is amended to read:

(a)  The name of any person shall be printed upon the primary ballot as a candidate for nomination by any major political party for any office indicated, if petitions containing the requisite number of signatures made by legal voters, in substantially the following form, are filed with the proper official, together with the person's written consent to having his or her name printed on the ballot:

STATE OF VERMONT

County of  .......................... )

ss.

City (town) of  .................... )

 

I join in a petition to place on the primary ballot of the .............................................................. party the name of  ........................................................., whose residence is in the (city), (town) of  ............................................... in the county of ............................................., for the office of  ………………............................. to be voted for on Tuesday, the  .................................. day of September, 20  ..................; and I certify that I am at the present time a registered voter and am qualified to vote for a candidate for this office.

Sec. 7.  17 V.S.A. § 2402 is amended to read:

§ 2402.  REQUISITES OF STATEMENT

(a)  A statement of nomination shall contain:

* * *

(4)  In the case of nomination for president or vice president of the United States, the name and state of residence of each candidate for such office, together with the name, town of residence, and correct mailing address of each nominee for the office of elector.  The statement of nomination shall include certification by the town clerk of each town where the signers appear to be voters that the persons whose names appear as signers of the statement are registered voters in the town and of the total number of valid signers from the town.  Only the number of signers certified by each town clerk shall count toward the required number of signatures.  The statement shall also be accompanied by a consent form from each nominee for elector.  The consent form shall be similar to the consent form prescribed in section 2361 of this title.

(b)  To constitute a valid nomination, a statement shall contain signatures of voters qualified to vote in an election for the office in question, equal in number to at least:

(1)  For presidential and vice presidential offices, 1,000;

(2)  For state and congressional offices, 250 500;

* * *

(c)  A statement shall state that each signer is qualified to vote in an election for the office in question and that the voter's residence is as set forth next to the voter's name.  Every statement of nomination shall include the certificate of the town clerk where the signers appear to be voters, certifying whether the persons whose names appear as signers of the statement are registered voters in the town.  Only those names certified by the town clerk to be those of registered voters of the town shall count toward the required number of signatures.

(d)  A statement of nomination and a completed and signed consent form shall be filed not later than the time for filing the statements prescribed in section 2386 of this title sooner than the first Monday in June and not later than the third day after the primary election.  No public official receiving nominations shall accept a petition unless a completed and signed consent form is filed at the same time.

(e)  The secretary of state shall prescribe and furnish forms for a statement of nomination.

Sec. 8.  17 V.S.A. § 2456 is amended to read:

§ 2456.  DISQUALIFICATIONS

Notwithstanding the preceding sections of this subchapter, no person shall serve as an election official in any election in which his or her name appears on a ballot of the Australian ballot system as a candidate for any office unless he or she is the only candidate for that office, or unless the office for which he or she is a candidate is that of moderator, justice of the peace, town clerk,

clerk-treasurer, treasurer, ward clerk, or inspector of elections.  When an Australian ballot is not used, a person shall not serve as an election official during the election to fill any office for which he or she is a nominee.  For the purpose of this section, "clerk-treasurer" means a person who is a candidate for the offices of town clerk and town treasurer at the same time.

Sec. 9.  17 V.S.A. § 2494 is amended to read:

§ 2494.  CONSTRUCTION WITH OTHER LAWS

Except as this subchapter affects the method of registering votes and ascertaining the result, the laws of this state pertaining to elections shall be applicable.  The laws pertaining to early or absentee voters shall in no way be affected by this subchapter, and votes cast by early or absentee voters shall be counted with votes registered on voting machines.  In towns using voting machines, the board of civil authority may vote to open polling places at 5:00 a.m., provided that at least three elections officials are present, two of whom are from different parties, solely for the purpose of checking voters who voted by early voter absentee ballot off the checklist and depositing the ballots into the ballot box or voting machine.  If all early voter absentee ballots have not been deposited into the voting machines before the closing of the polls at 7:00 p.m., the elections officials shall continue to deposit ballots using the same procedure as provided in subsection 2561(b) of this title, treating each ballot as a voter waiting to cast his or her ballot at the close of the polls.

Sec. 10.  17 V.S.A. § 2561(a) is amended to read:

(a)  At all elections using the Australian ballot system, the polls shall may open no earlier than 5:00 a.m. and shall open no later than 10:00 a.m. as set by the board of civil authority in each town unless the board of civil authority has elected to open the polls earlier than 6:00 a.m. as provided in section 2494 of this title.  The polls in all polling places shall close at 7:00 p.m.

Sec. 11.  17 V.S.A. § 2640(c) is amended to read:

(c)  In a town which starts its annual meeting on any day before the first Tuesday in March and which uses the Australian ballot system, Notwithstanding section 2508 of this title, public discussion of ballot issues and all other issues appearing in the warning, other than election of candidates, shall be permitted on that day at the annual meeting, regardless of the location of the polling place.

Sec. 12.  17 V.S.A. § 2664 is amended to read:

§ 2664.  BUDGET

A town shall vote such sums of money as it deems necessary for the interest of its inhabitants and for the prosecution and defense of the common rights.  It shall express in its vote the specific amounts, or the rate on a dollar of the grand list, to be appropriated for laying out and repairing highways and for other necessary town expenses.  If a town votes specific amounts in lieu of a rate on a dollar of the grand list, the selectmen selectboard shall, after the grand list book has been computed and lodged in the office of the town clerk, set the tax rate necessary to raise the specific amounts voted.  The selectboard may apply for grants and may accept and expend grants or gifts above those which are approved in the town budget.  The selectboard shall include, in its annual report, a description of all grants or gifts accepted during the year and associated expenditures.

Sec. 13.  17 V.S.A. § 2680 is amended to read:

§ 2680.  AUSTRALIAN BALLOT SYSTEM; GENERAL

* * *

(c)  Budgets.  A vote whether to use the Australian ballot system to establish the budget shall be in substantially the following form:

"Shall (name of municipality) adopt its budget article or articles by Australian ballot?"

If a budget voted on by Australian ballot is rejected, the legislative body shall prepare a revised budget.  The legislative body shall establish a date for the vote on the revised budget, and shall take appropriate steps to warn a public informational meeting on the budget and the vote.  The date of the public informational meeting shall be at least five days following the public notice. The date of the vote shall be at least seven days following the public notice. The vote on the revised budget shall be by Australian ballot and shall take place in the same locations that the first vote was taken.  The budget shall be established if a majority of all votes cast are in favor.  If the revised budget is rejected, the legislative body shall repeat the procedure in this subsection until a budget is adopted.  Once a municipality votes to establish its budget by the Australian ballot system, the vote on the budget shall be taken by Australian ballot until the municipality votes to discontinue use of the system.

* * *

(g)  Whenever a municipality has voted to adopt the Australian ballot system of voting on any public question or budget, except the budget revote as provided in subsection (c) of this section, the legislative body shall hold a public informational hearing on the question by posting warnings at least 10 days in advance of the hearing in at least two public places within the municipality and in the town clerk's office.  The hearing shall be held within the 10 days preceding the meeting at which the Australian ballot system is to be used.  The hearing under this subsection may be held in conjunction with the meeting held under subsection 2640(c), in which case the moderator shall preside.

Sec. 14.  19 V.S.A. § 13 is amended to read:

§ 13.  Central garage fund

* * *

(f)  Annually the auditor of accounts shall conduct an examination of the central garage revolving fund and report his or her findings in accordance with 32 V.S.A. § 163(5).

(g)  [Repealed.]

(h)  For purposes of this section, “equipment” means registered motor vehicles and highway maintenance equipment assigned to the central garage.

(i)(g)  Each year at the September meeting of the joint transportation oversight committee called pursuant to 19 V.S.A. § 12b(d), the agency shall present to the joint transportation oversight committee a report detailing:

* * *

Sec. 15.  20 V.S.A. § 3546 is amended to read:

§ 3546.  INVESTIGATION OF VICIOUS DOMESTIC PETS OR WOLF-HYBRIDS; ORDER

* * *

(d)  The procedures provided in this section shall only apply if the domestic pet or wolf-hybrid is not a rabies suspect.  If a member of the legislative body or a municipal official designated by the legislative body determines that the animal is a rabies suspect, the provisions of subchapter 5 of this chapter and the rules of the department of health shall apply.

(e)  The procedures provided in this section shall not apply if the voters of a municipality, at a special or annual meeting duly warned for the purpose, have authorized the legislative body of the municipality to regulate domestic pets or wolf-hybrids by ordinances that are inconsistent with this section, in which case those ordinances shall apply.

Sec. 16.  20 V.S.A. § 3549 is amended to read:

§ 3549.  DOMESTIC PETS OR WOLF-HYBRIDS, REGULATION BY TOWNS

The legislative body of a city or town by ordinance may regulate the keeping, leashing, muzzling, restraint, impoundment, and destruction of domestic pets or wolf-hybrids and their running at large.

Sec. 17.  22 V.S.A. § 281 is amended to read:

§ 281.  MEMBERS AND TRUSTEES EX OFFICIO

The secretary of state, auditor of accounts and the state librarian, by virtue of their offices, shall be members of the Vermont Historical Society and of the board of trustees thereof.

Sec. 18.  24 V.S.A. § 871 is amended to read:

§ 871.  ORGANIZATION OF SELECTMEN SELECTBOARD; APPOINTMENTS

Forthwith after their election and qualification, the selectmen selectboard shall organize and elect a chairman chair and, if so voted, a clerk from among their number, and file a certificate of such election for record in the office of the town clerk.  Such selectmen shall The selectboard shall thereupon appoint from among the legally qualified voters a tree warden and may thereupon appoint from among the legally qualified voters the following officers who shall serve until their successors are appointed and qualified, and shall certify such appointments to the town clerk who shall record the same:

(1)  Three fence viewers;

(2)  A poundkeeper, for each pound; voting residence in the town need not be a qualification for this office provided appointee gives his or her consent to the appointment;

(3)  One or more inspectors of lumber, shingles and wood; and

(4)  One or more weighers of coal; and

(5)  A tree warden.

* * *

Sec. 19.  24 V.S.A. § 2291(10) is amended to read:

§ 2291.  ENUMERATION OF POWERS

For the purpose of promoting the public health, safety, welfare, and convenience, a town, city, or incorporated village shall have the following powers:

* * *

(10)  To regulate the keeping of dogs, and to provide for their leashing, muzzling or, restraint, impoundment, and destruction.

* * *

Sec. 20.  24 V.S.A. § 4442(c) is amended to read:

(c)  Routine adoption.

(1)  A bylaw, bylaw amendment, or bylaw repeal shall be adopted by a majority of the members of the legislative body at a meeting that is held after the final public hearing, and shall be effective 21 days after adoption unless, by action of the legislative body, the bylaw, bylaw amendment, or bylaw repeal is warned for adoption by the municipality by Australian ballot at a special or regular meeting of the municipality.

(2)  However, a rural town with a population of fewer than 2,500 persons, by action of the legislative body or by vote of that town at a special or regular meeting duly warned on the issue, may elect to require that bylaws, bylaw amendments, or bylaw repeals shall be adopted by vote of the town by Australian ballot at a special or regular meeting duly warned on the issue.  That procedure shall then apply until rescinded by the voters at a regular or special meeting of the town.

Sec. 21.  29 V.S.A. § 160(e) is amended to read:

(e)  The commissioner of buildings and general services shall supervise the receipt and expenditure of moneys comprising the property management revolving fund, subject to the provisions of this section.  He or she shall maintain accurate and complete records of all such receipts and expenditures, and shall make an annual report on the condition of the fund to the secretary of administration.  All balances remaining at the end of a fiscal year shall be carried over to the following year, and the fund shall be audited by the auditor of accounts.

Sec. 22.  29 V.S.A. § 168(b)(8) is amended to read:

(8)  All balances remaining at the end of a fiscal year shall be carried over to the following year, and the auditor of accounts shall audit the fund.

Sec. 23.  32 V.S.A. § 163 is amended to read:

§ 163.  DUTIES OF THE AUDITOR OF ACCOUNTS

In addition to any other duties prescribed by law, the auditor of accounts shall:

(1)  Examine annually the financial statements of the funds of state government and at his or her discretion audit financial and other records Annually perform or contract for the audit of the basic financial statements of the state of Vermont and, at his or her discretion, conduct governmental audits as defined by governmental auditing standards issued by the United States Government Accountability Office (GAO), of every department, institution, and agency of the state including trustees or custodians of retirement and other trust funds held by the state or any officer or officers of the state, and also including every county officer who receives or disburses funds of the state or for the benefit of the state or any county.  He or she shall upon request of a town establish a uniform system of accounting and reporting.

(2)  In his or her discretion, conduct a continuing post audit of all disbursements made through the office of the commissioner of finance and management or the office of the state treasurer, including disbursements to a municipality, school supervisory union, school district, or county.

* * *

(4)  Upon request, assist the commissioner of finance and management in the preparation of the state budget.

(5)  From time to time, as examinations audits are completed, report his or her audit findings first to the speaker of the house of representatives and the president pro tempore of the senate, then to the governor, the secretary of administration, the commissioner of finance and management, and the head of the department, institution, or agency covered by the report.  The audit reports shall be public records and four 10 copies of each report shall be furnished to and kept in the state library for public use.

(6)(5)  Make special audits of any department, institution, and agency as the governor may from time to time require.

(7)(6)  Make a biennial report Report on or before February 15 of each year to the general assembly house and senate committees on appropriations in which he or she shall summarize his or her significant findings, and make such comments and recommendations as he or she finds necessary.

(8)(7)  Subject to the provisions of chapter 13 of Title 3, employ and set the compensation of such assistants, clerical or otherwise, as he or she deems necessary for the proper and efficient administration of his or her office.  However, he or she shall not expend or authorize expenditure of funds for his or her office in excess of the amount appropriated for his or her office in any fiscal year.

(9)  Approve and coordinate all requests by state departments, agencies, commissions and state-created authorities for accounting or auditing services by an independent accounting firm for any of the departments’, agencies’, commissions’ or state-created authorities’ funds, financial accounts, and records, or for any accounting or auditing services for which payment is to be made from any funds controlled or administered by any state department, agency, commission or state-created authority, prior to the negotiation of any contractual obligations with the independent firms.  All audit reports and reports of findings and recommendations issued by an independent accounting firm under this section shall be addressed to the auditor of accounts for distribution in accordance with subdivision 5 of this section.

(10)(8)  Require all state departments and agencies to file with the auditor of accounts all audit reports and reports of findings and recommendations received as a result of audits and examinations conducted by or for any federal agency.

(11)(9)  Perform, or contract with independent public accountants licensed in the state of Vermont to perform, financial and compliance audits as required by the Federal Single Audit Act of 1984, 31 U.S.C. § 7501 et seq. This subdivision shall not apply to the University of Vermont and the Vermont State Colleges.

(12)(A)  Biennially audit the economic advancement tax incentives program established under chapter 151, subchapter 11E of this title to determine compliance with that subchapter and all other applicable statutes and regulations.  The auditor’s report shall be made available to the general assembly during the fourth quarter of the second year of each biennium. The auditor shall include in this biennial audit verifications of any of the inspections done by the tax department of awardees of economic advancement tax incentives to determine the relationship between performance and credits claimed.

(B)(10)  Biennially audit the Vermont employment growth incentive program established under 32 V.S.A. § 5930b and other applicable statutes and regulations, and report the audit to the general assembly, the Vermont department of taxes, and the Vermont economic progress council by March 31 after the audit yearThe audit shall include a comparative examination of the economic advancement tax incentive program and the Vermont employment growth incentives program with respect to performance measurements, program expenditure controls, the adequacy and availability of program information, and recommendations for improved accountability and fiscal controls.  The auditor shall develop benchmarks, known as “best management practices” that in the judgment of the auditor need to be met so that the Vermont employment growth incentives program may be administered in the most fiscally sound and well-managed manner.  The auditor’s report shall be submitted during the first quarter of the second year of each biennium to the department of taxes and the economic incentive review board established by 32 V.S.A. § 5930a(a) (except that in the second year of the 2007-2008 biennium the auditor’s report shall be submitted to the Vermont economic progress council).  The department and the board (and in the 2007-2008 biennium, the council) shall review the auditor’s report and in the fourth quarter of each biennium report to the senate committee on economic development, housing and general affairs, the senate committee on finance, the house committee on commerce and the house committee on ways and means in response to the findings and recommendations of the auditor together with any recommendations for improvements or amendments.

Sec. 24.  32 V.S.A. § 167(a) is amended to read:

(a)  For the purpose of examination and audit authorized by law, all the records, accounts, books, papers, reports, and returns in all formats of all departments, institutions, and agencies of the state including the trustees or custodians of trust funds and all municipal, school supervisory union, school district, and county officers who receive or disburse funds for the benefit of the state, shall be made available to the auditor of accounts.  It shall be the duty of each officer of each department, institution, and agency of the state or municipality, school supervisory union, school district, or county to provide the records, accounts, books, papers, reports, returns, and such other explanatory information when required by the auditor of accounts.

Sec. 25.  32 V.S.A. § 431(a) is amended to read:

(a)  The treasurer, the auditor and the governor shall select the banks in which the funds of the state treasury shall be deposited.  Each agency or department of the state shall be required to obtain the approval of the treasurer to establish and maintain a bank account of a selected bank as well as develop procedures, approved by the treasurer, to reconcile a bank account.  The treasurer shall annually furnish the auditor, on a timely basis, a certified statement from each bank, with which he or she has an account, of the amount of such account.

Sec. 26.  32 V.S.A. § 432 is amended to read:

§ 432.  MANAGEMENT OF INVESTED STATE MONEY

In the management of funds and securities belonging to the state or held in the treasury, with approval of the governor and auditor of accounts, he or she may change the form of investment thereof by exchange of securities or by sale and reinvestment of the same, as may be required for the safety and permanent security of such funds, may collect accruing interest and reinvest the same and may collect, enforce payment of, and reinvest all maturing securities and obligations and, for such purposes, may make legal transfers of the title of the same.

Sec. 27.  32 V.S.A. § 901 is amended to read:

§ 901.  BORROWING MONEY

The treasurer shall not make a contract binding the state for money borrowed unless it is countersigned by the secretary of state and the auditor.

Sec. 28.  32 V.S.A. § 1001(d)(1) is amended to read:

(1)  Membership.  Committee membership shall consist of:

(A)  As ex officio members:

(i)  the state treasurer;

(ii)  the auditor of accounts;

(iii)  the secretary of administration; and

(iv)(iii)  the secretary of the Vermont municipal bond bank.

(B)  One individual not an official or employee of state government appointed by the governor for a two-year term.

(C)  The auditor of accounts who shall be a nonvoting ex officio member.

Sec. 29.  32 V.S.A. § 1671(a)(6) is amended to read:

(6)  Notwithstanding any other provision of law to the contrary, for the recording or filing, or both, of any document that is to become a matter of public record in the town clerk's office, or for any certified copy of such document, a fee of $8.00 per page shall be charged; except that for the recording or filing, or both, of a property transfer return, a fee of $8.00 shall be charged;

Sec. 30.  32 V.S.A. § 4774(b) is amended to read:

(b)(1)  The treasurer or collector shall deposit to the general fund any tax overpayment by a taxpayer who has paid by mail or electronic fund transfer, provided that:

(1)(A)  the payment made was equal to the taxes due without regard to the discount under section 4773 of this title; and

(2)(B)  the overpayment amount is $2.00 $10.00 or less.

(2)  If the taxpayer requests refund of such an overpayment within one year of payment, the treasurer or collector shall refund it.

Sec. 31.  32 V.S.A. § 5137 is amended to read:

§ 5137.  RECORDING DELINQUENT PAYMENTS

A collector of taxes for a town or municipality within it shall receipt for every payment made to the collector on account of delinquent taxes.  Such receipt shall be written in triplicate in a bound book or other permanent record purchased at the expense of the municipality and shall indicate the date of the payment, the name of the person making the payment, the name of the person against whom was assessed the tax on which the payment is to be applied, the year in which such tax was assessed and if a partial payment on an annual tax bill, whether applied on poll, personal property or real estate taxes.  Such collector shall detach and deliver the original receipt forthwith to the person making the payment and one copy thereof within 30 days to the town clerk who shall keep such copy on file.  Such collector shall purchase at the expense of the municipality for which the collector is acting a sufficient number of such bound triplicate receipt books having the sets of originals and copies consecutively numbered.  Annually, on or before February 5, the collector shall deliver to the auditors of each municipality for which the collector is acting all such bound volumes in which entries pertaining to such municipality have been made during the year ending January 31 next preceding, and the auditors shall audit the books forthwith and after the completion of audit shall return such books to such collector.

Sec. 32.  REPEAL

(a)  10 V.S.A. § 1960(f) (annual audit of advisory committee books) shall be repealed.

(b)  32 V.S.A. § 163(10) (biennial audit of employment growth incentive program) shall be repealed on December 31, 2012.

Sec. 33.  EFFECTIVE DATE

Secs. 6 and 7 shall take effect upon passage.

and that upon passage, the title of the bill shall read:

“AN ACT RELATING TO MISCELLANEOUS AMENDMENTS TO ELECTION AND GOVERNMENT LAWS

Governor’s Veto

S. 278

     An act relating to financing campaigns.

Pending Question: Shall the bill pass, the failure of the Governor to approve notwithstanding?  (2/3 vote required)

Text of Veto Message

     The text of the communication from His Excellency, the Governor, whereby he vetoed and returned unsigned Senate Bill No. 278 to the House is as follows:

 

“April 4, 2008

The Honorable David A. Gibson

Secretary of the Senate

State House

115 State Street, Drawer 33

Montpelier, VT   05633

Dear Mr. Secretary:

     Pursuant to Chapter II, Section 11 of the Vermont Constitution, I am returning S. 278, An Act Relating to Financing Campaigns, without my signature because of objections described herein.

     I was optimistic that after last year’s veto we could come together to craft meaningful campaign finance legislation that establishes reasonable and responsible limits on contributions to candidates for public office – limits that do not favor incumbents whose advantage over challengers is undeniable.  It is with great disappointment that I am unable to support this legislation because it does not address the flaws contained in last year’s bill. 

I continue to support campaign finance laws that do not give an advantage to incumbents and that set reasonable contribution limits, establish timely and transparent reporting requirements, and reflect Vermont’s values and commitment to free speech.  This bill still contains among its flaws a provision that would restrict political party contributions and therefore allow our elections to be controlled by outside special interest groups.  I cannot allow that to happen.

After hearing from lawmakers that they wished to have my administration more directly involved during this session, I answered that request.  While I have expressed a number of concerns with this legislation, I focused on two of the most problematic provisions.  Unfortunately, the area of greatest concern – the limits on party contributions to candidates – was not addressed and remains at the core of my objection to this bill.

     The proposed party contribution limits extend unfair political protection to incumbents by establishing an obstacle for challengers. These limits would be of particular disadvantage to potential candidates of modest means who are unable to fund their own campaigns.  Vermonters want and expect real reforms that ensure a truly level playing field for incumbents and challengers alike – a fundamental component of democracy.  This bill falls short of meeting that goal.

I had the privilege to serve as Secretary of State – Vermont’s top election official – for 12 years and understand well the impacts of our election laws.  While this bill does not directly affect me as a candidate for Governor, it would have unfair consequences for other candidates, especially those for the Legislature.  Because of my continued commitment to protecting our election process, I cannot support this bill.

     I am proud that Vermonters run clean, honest and transparent elections.  This bill would undermine that tradition by limiting party involvement and encouraging the swift proliferation of special interest political action committees (PACs).  PACs, by design, represent special interests.  Political parties, however, are the very framework around which individuals of similar political beliefs can work together toward a common goal, a common good.  Unfortunately, this bill favors the special interest over the common good.  It has the regrettable distinction of being influenced by special interest groups with their own self-interest and not the public’s interest in mind. 

     One of the bill’s findings states that “in Vermont, campaign expenditures by persons who are not candidates have been increasing and public confidence is eroded when unidentified expenditures are made, particularly during the final days of a campaign.”  The proposed limits on the activity of parties would not lessen the amount of money spent in a particular race.  Instead it would create a vacuum that candidates themselves would be unable to fill.  The result would be the empowerment of special interest groups who are poised to fill this void.  Their independent actions, fundraising and expenditures without the input, and worse, without the approval of the candidate, are unlimited.  This provision would ensure that these well-financed, often out-of-state, organizations to run more attack ads and make more independent expenditures than ever before.   

An election system once predominantly financed and organized by Vermonters would be influenced more significantly by special interest PACs.  No candidate should be at the mercy of these groups.  I do not believe that the voice of a candidate should be drowned out by the noise of special interests.  

     While I make no determination as to the constitutionality of S. 278, like the law rejected as unconstitutional by the Supreme Court of the United States, we can expect that it would be challenged.  In fact, the winning attorney in Randall v. Sorrell has testified that this bill contains provisions that – in his legal opinion – are most certainly unconstitutional and would result in a challenge.  The previous lawsuit took ten years to resolve in court and cost taxpayers nearly $1.5 million in fees to the prevailing attorneys alone.  It is only prudent that as we face challenging economic times we not ignore the possible fiscal impacts of legislation we consider.

I do not believe this is the direction Vermonters want to move in or what anyone except the special interests themselves would consider reform.  I again extend to the Legislature my commitment to establish campaign finance standards that are fair and enhance transparency.   

Sincerely,

/s/James H. Douglas

James H. Douglas

Governor

Ordered to Lie

H. 549

     An act relating to establishing buffer zones along waterways of the state.

Pending question: Shall the bill be amended as recommended by the Fish Wildlife & Water Resources committee and the committee on Appropriations?

 

CONSENT CALENDAR

Concurrent Resolutions for Notice Under Joint Rule 16

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

(For text of Resolutions, see Addendum to House and Senate Notice Calendar for Thursday, April 24, 2008)

H.C.R. 280

House concurrent resolution congratulating Windsor School District Superintendent Brenda Needham on being named the 2007 Vermont Superintendent of the Year and Frederick H. Tuttle Service Award recipient

H.C.R. 281

House concurrent resolution congratulating the State Street School in Windsor on winning the 2007 Fall Fit & Healthy Kids Challenge

H.C.R. 282

House concurrent resolution honoring the Vermont Council on World Affairs for its facilitation of Vermonters’ increased understanding of world affairs and international visitors’ knowledge of Vermont

H.C.R. 283

House concurrent resolution congratulating Robert Hamlin on his extraordinary high school wrestling career

H.C.R. 284

House concurrent resolution congratulating the 2007 Stowe High School Raiders Division III championship field hockey team

H.C.R. 285

House concurrent resolution congratulating the 2008 Stowe High School Raiders 2008 championship girls Division II Nordic ski team

H.C.R. 286

     House concurrent resolution congratulating the 2008 Marion Gray Women’s History Month Scholarship Contest winners

H.C.R. 287

House concurrent resolution congratulating the Stowe High School Raiders 2007 Division III championship soccer team

H.C.R. 288

House concurrent resolution congratulating Chandler Kennedy on her victories in state and international country music vocal competitions

H.C.R. 289

House concurrent resolution congratulating the United Counseling Service of Bennington on its 50th anniversary

H.C.R. 290

House concurrent resolution congratulating the National Life Group on the 160th anniversary of its charter and for the company’s forward-thinking energy efficiency and environmental conservation initiatives 

H.C.R. 291

House concurrent resolution congratulating the winners in the Vermont MATHCOUNTS competition

 

H.C.R. 292

House concurrent resolution congratulating Dr. Marshall Land of Shelburne on being named the first R. James McKay Jr. M.D. Green & Gold Professor in Pediatrics at the University of Vermont’s College of Medicine

H.C.R. 293

House concurrent resolution congratulating Vermont’s 2008 All-Vermont Academic Team members, New Century Scholar, and Senator Stafford and Senator Aiken award winners

S.C.R. 52. 

Senate concurrent resolution honoring Robert Stiller for his entrepreneurial achievements and vision.

Ordered to Lie

H. 549

     An act relating to establishing buffer zones along waterways of the state.

Pending question: Shall the bill be amended as recommended by the Fish Wildlife & Water Resources committee and the committee on Appropriations?

 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us