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Senate Calendar

wednesday, march 28, 2007

85th DAY OF BIENNIAL SESSION

TABLE OF CONTENTS

                                                                                                                Page No.

ACTION CALENDAR

UNFINISHED BUSINESS OF WEDNESDAY, MARCH 21, 2007

Second Reading

Favorable with Recommendation of Amendment

S. 143     Use of racing fuel containing additive MTBE ..................................... 366

                              Transportation Committee Report...................................... 366

NEW BUSINESS

Third Reading

S. 170     Disposition of bodily remains and funeral goods and services............. 366

                              Sen. Sears and Illuzzi amendment....................................... 366

S. 164     Campaign Finance and the Vermont campaign finance option............. 367

Second Reading

Favorable with Recommendation of Amendment

S. 67       Closure of the Bennington state office building................................... 367

                              Economic Development, Housing and General Affairs

                              ................................................................... Committee Report      367

                              Appropriations Committee Report..................................... 370      Sen. Illuzzi amendment  371

S. 190     Establishing a brownfields advisory committee................................... 372

                              Sen. Racine for the Committee on Economic Development,

                              Housing and General Affairs............................................... 372

                              Appropriations Committee Report..................................... 372

Favorable with Proposal of Amendment

H. 357    Relating to registration of lobbyists.................................................... 372

                              Government Operations Committee Report........................ 372

NOTICE CALENDAR

Favorable

H. 72      Approval of amendments to the charter of the city of Barre................ 373

                              Government Operations Committee Report........................ 373

Favorable with Recommendation of Amendment

S. 115     Transparency of prescription drug pricing and information.................. 373

                              Health and Welfare Committee Report............................... 373

                              Finance Committee Report................................................ 381

ORDERED TO LIE

S. 70       Empowering municipalities to regulate application of pesticides........... 385

S. 194     Firefighters and cancer caused by employment.................................. 385


S. 196     Failure to insure for workers’ compensation coverage........................ 386



 

ORDERS OF THE DAY

ACTION CALENDAR

UNFINISHED BUSINESS OF WEDNESDAY, MARCH 21, 2007

Second Reading

Favorable with Recommendation of Amendment

S. 143

An act relating to authorizing the use of racing fuel containing the additive MTBE or other gasoline ethers.

Reported favorably with recommendation of amendment by Senator Scott  for the Committee on Transportation.

The Committee recommends that the bill be amended in Sec. 1, 10 V.S.A. § 577 on page 2, by striking out subsection (c) in its entirety and inserting in lieu thereof a new subsection (c) to read as follows:

(c)  A fuel product used in a race or sports car event, as both are defined in 26 V.S.A. § 4801, may contain a gasoline ether and may be sold at retail or sold for use in the state, provided that it is sold in prepackaged drums, pails, or containers.

(Committee vote: 5-0-0)

NEW BUSINESS

Third Reading

S. 170

An act relating to the rights of family members, funeral directors, and crematory operators concerning the disposition of bodily remains and funeral services.

AMENDMENT TO S. 170 TO BE OFFERED BY SENATORS SEARS AND ILLUZZI BEFORE THIRD READING

Senators Sears and Illuzzi move to amend the bill in Sec. 5, 18 V.S.A. §5201 subsection (b), in the second sentence by striking out the following “If the attorney general, a state’s attorney, or any law enforcement officer” and inserting in lieu thereof the following:  If the attorney general or a state’s attorney


S. 164

An act relating to campaign finance and the Vermont campaign finance option.

Second Reading

Favorable with Recommendation of Amendment

S. 67

     An act relating to closure of the Bennington state office building.

Reported favorably with recommendation of amendment by Senator Illuzzi for the Committee on Economic Development, Housing and General Services.

The Committee recommends that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  LEGISLATIVE FINDINGS AND STATEMENT OF PURPOSE

(a)  The general assembly finds the following:

(1)  The state of Vermont has owned and operated the Bennington state office building (BSOB) located at 200 Veteran’s Memorial Drive since 1977.

(2)  In 1990, the state of Vermont completed a significant addition to the BSOB increasing the total square footage to 63,500 square feet.  At the end of 2006, approximately 135 people were employed at the BSOB.

(3)  Results of a health survey conducted by the Vermont department of health in 2006 found that the occupants of the BSOB reported higher than expected rates of sarcoidosis.

(4)  Sarcoidosis is a disease of unknown causes characterized by inflammation in one or more organ.

(5)  To date, six current or former state employees who worked in the BSOB report that they have been diagnosed with sarcoidosis.  According to the Foundation for Sarcoidosis Research, nationally, sarcoidosis occurs at a rate of one in 10,000 people. 

(6)  The workers’ compensation system was established to provide benefits to individuals who suffer injury or illness arising out of and in the course of employment and represents a public policy compromise in which workers who suffer injury or illness arising out of and in the course of employment give up the right to sue the employer for negligence in return for which the employer assumes strict liability and the obligation to provide a speedy and certain remedy for work-related injuries and illnesses.  Gerrish v. Savard, 169Vt. 468 (1999).

(7)  Workers’ compensation laws are to be construed liberally to accomplish the humane purposes for which they were passed.  Giguere v. E.B. & A.C. Whiting Co., 107 Vt. 151(1935).

(8)  In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted.  Goodwin v. Fairbanks, 123 Vt. 161 (1962).

(9)  The claimant has the burden of showing a causal connection between the injury and employment, and that the claimant is therefore entitled to relief under the workers’ compensation act.  Egbert v. Book Press 144 Vt. 367 (1984).

(10)  There must be created in the mind of the trier of fact something more than a possibility, suspicion, or surmise that such was the cause, and the inference from the facts proved must be at least the more probable hypothesis, with reference to the possibility of other hypotheses.  Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).

(11)  It is difficult to prove a causal connection between sarcoidosis and the workplace, since the cause of sarcoidosis is unknown.  

(b)  The purpose of this act is:

(1)  To minimize the difficulty of proving causation by providing a mechanism for employees at the Bennington state office building who are diagnosed with sarcoidosis to be deemed eligible for workers’ compensation benefits, provided they meet the criteria identified in subsection (a) of this section.

(2)  To retain and not to contravene, amend, overturn, or in any way alter the conclusions of law in the cases referenced in subdivisions (a)(8), (9), and (10) of this section, except that claimants who satisfy the criteria of subsection (a) of this section are entitled to the presumption created by this act and shall not be required to satisfy the standards of proof regarding causation articulated in those cases.

Sec. 2.  WORKERS’ COMPENSATION; PRESUMPTION OF COMPENSABILITY; STATE EMPLOYEES; BENNINGTON STATE OFFICE BUILDING 

Any person who has worked as a state employee at the Bennington state office building for at least six consecutive months prior to January 1, 2007, and who, after that six-month period of employment, is or has been diagnosed with sarcoidosis, shall be presumed to have suffered a work illness, injury, or disease caused by exposure to the air quality of the work environment in the Bennington state office building, unless it is shown by a preponderance of the evidence that the illness, injury, or disease was proximately caused by nonwork‑related risk factors or exposure and shall be entitled to workers’ compensation benefits pursuant to chapter 9 of Title 21, notwithstanding any statute of limitations for filing a workers’ compensation claim.  Such state employee shall be entitled to workers’ compensation benefits beginning the first day that the employee was or is diagnosed with sarcoidosis, and those benefits shall be paid in accordance with the provisions of chapter 9 of Title 21.

Sec. 3.  BENNINGTON STATE OFFICE BUILDING; CLOSURE

No state employee with a workplace in the Bennington state office building shall be permitted to work in that building after April 1, 2007, until such time as the air quality and health conditions of the building have been determined by the department of health to be safe and free from levels of airborne pathogens, particulates, mold, and other environmental contaminants that are likely to cause injury or disease to humans.  This prohibition shall not apply to employees who are properly equipped to work in the building to perform rehabilitation and reconstruction work necessary to make the building habitable as an office. 

Sec. 4.  BENNINGTON STATE OFFICE LOCATION TASK FORCE;  CREATION

(a)  The Bennington state office location task force is created for the purpose of evaluating the best alternatives for permanent relocation of the state employees in downtown Bennington in a single building, or if not, that the buildings are within easy walking distance of each other. 

(b)  The task force shall be composed of 12 members to include the following:

(1)  The chair of the Bennington selectboard, who shall be chair of the task force.

(2)  The Bennington town manager.

(3)  The director of planning and development from Bennington.

(4)  A member of the Bennington planning commission.

(5)  A member of the board of directors of the Better Bennington Corporation.

(6)  The executive director of the Better Bennington Corporation.

(7)  A member of the board of directors of the Bennington Area Chamber of Commerce.

(8)  The executive director of the Bennington Area Chamber of Commerce.

(9)  A member or employee of the Vermont state employees’ association.

(10)  The secretary of human services or designee.

(11)  The commissioner of buildings and general services or designee.

(12)  The senior member of the house of representatives from Bennington district 2-2.

(c)  The task force shall hold its first meeting no later than April 1, 2007 and will meet as needed thereafter until October 1, 2007.  No later than January 15, 2008, the task force shall issue a written report of its findings and recommendations for downtown office space for state employees in Bennington to the Bennington selectboard, the Vermont general assembly, and the governor. 

(Committee vote: 5-0)

Reported favorably with recommendation of amendment by Senator Sears for the Committee on Appropriations.

     The Committee recommends that the bill be amended by striking out Sec. 4 and inserting in lieu thereof the a new Sec. 4 to read as follows:

Sec. 4.  BENNINGTON STATE OFFICE LOCATION TASK FORCE

(a)  The Bennington state office location task force is created to act as the representative of the “legislative body of the municipality” as that term is used in 24 V.S.A. §2794(a)(12).  The task force is created specifically to evaluate the best alternatives for permanent relocation of the state employees in the event that the department of health determines that the Bennington state office building cannot be reoccupied and used as an office building.  If relocation is necessary, the task force shall consider multiple locations within the downtown area that are within easy walking distance of each other in the designated downtown district of Bennington. The task force shall carry out the purposes of this section consistent with chapter 76a of Title 24.  

(b)  The task force shall be composed of nine members to include the following:

(1)  The chair of the Bennington selectboard, who shall be chair of the task force.

(2)  The Bennington town manager, or designee.

(3) The director of planning and development for Bennington, or designee.

(4)  A member of the Bennington planning commission.

(5)  The executive director of the Better Bennington Corporation, or designee.

(6)  The executive director of the Bennington Area Chamber of Commerce, or designee.

(7)  A member or employee of the Vermont state employees’ association.

(8)  A member of the house of representatives representing Bennington appointed by the speaker of the house.

(9)  A member of the senate from Bennington district appointed by the committee on committees.

(c)  The task force shall hold its first meeting within 30 days after the diagnostic report on the building is issued, and shall meet as needed thereafter.  No later than January 15, 2008, the task force shall issue a written report of its findings and recommendations for office space for state employees in the designated downtown of Bennington to the Bennington selectboard, the commissioner of buildings and general services, the senate committee on institutions and appropriations and the house committees on institutions and appropriations. 

(Committee vote: 7-0-0)

AMENDMENT TO PROPOSAL OF AMENDMENT OF THE COMMITTEE ON ECONOMIC DEVELOPMENT, HOUSING AND GENERAL SERVICES TO S. 67 TO BE OFFERED BY SENATOR ILLUZZI

Senator Illuzzi moves to amend the proposal of amendment of the Committee on Economic Development, Housing and General Services in Sec. 1(b) by striking out subdivision (2) in its entirety and inserting in lieu thereof a new subdivision (2) to read as follows:

(2)  To retain and not to contravene, amend, overturn, or in any way alter the conclusions of law in the cases referenced in subdivisions (a)(8), (9), and (10) of this section, except that claimants who satisfy the criteria of Sec. 2 of this act are entitled to the presumption created by this act and shall not be required to satisfy the standards of proof regarding causation articulated in section (a).


S. 190

An act relating to establishing a brownfields advisory committee.

By the Committee on Economic Development, Housing and General Affairs. (Sen. Racine for the Committee)

Reported favorably with recommendation of amendment by Senator Shumlin for the Committee on Appropriations.

The Committee recommends that the bill be amended as follows:

First:  In Sec. 1, subsection (a), by striking out subdivisions (8) and (9) in their entirety and by renumbering the remaining subdivisions to be numerically correct

Second:  In Sec. 1, by striking out subsection (c) in its entirety and inserting in lieu thereof a new subsection (c) to read as follows:

(c)  The agency of natural resources shall provide administrative support to the committee. 

(Committee vote: 7-0-0)

Favorable with Proposal of Amendment

H. 357

An act relating to registration of lobbyists.

Reported favorably with recommendation of proposal of amendment by Senator Flanagan for the Committee on Government Operations.

The Committee recommends that the Senate propose to the House to amend the bill as follows:

First:  In Sec. 4, 2 V.S.A. § 264b, in subsection (a), in the first sentence, by striking out “a disclosure report which includes”,

Second:  In Sec. 4, 2  V.S.A. §264b subsection (b), in the first sentence, by striking out “Disclosure reports under this section shall be due on the same day as are lobbyist disclosure reports under subsection 264(a) of this title and” and inserting in lieu thereof the following:

Every lobbying firm shall file a disclosure report on the same day as lobbyist disclosure reports are due under subsection 264(a) of this title which

(Committee Vote: 4-0-1)

(No House amendments.)


NOTICE CALENDAR

Favorable

H. 72

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

Reported favorably by Senator Doyle for the Committee on Government Operations.

(Committee vote: 5-0-0)

(No House amendments)

Favorable with Recommendation of Amendment

S. 115

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

Reported favorably with recommendation of amendment by Senator Racine for the Committee on Health and Welfare.

The Committee recommends that the bill be amended as follows:

First:  In Sec. 1, by striking out 33 V.S.A. § 1998(a)(7) and inserting in lieu thereof a new subdivision (7) to read:

(7)  A plan to inform Vermonters of the availability of health services provided by federally qualified health centers (FQHC) and FQHC look-alikes, including that prescription drug pricing is more affordable, focusing on participants in the Medicaid and Medicaid waiver programs, state employees, individuals under the supervision of corrections, individuals receiving workers’ compensation benefits if applicable, and any other state or publicly funded purchaser of prescription drugs.

Second:  In Sec. 1, by striking out 33 V.S.A. § 1998(c)(1) and inserting in lieu thereof a new subdivision (1) to read:

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

Third:  In Sec. 1, 33 V.S.A. § 1998(f)(6), by striking out the following:  reference to “(a)(8) and inserting in lieu thereof the following (c)(1)

Fourth:  In Sec. 2, 33 V.S.A. § 1998(g), by striking out the following: “, such as the Oregon Health and Science University Drug Effectiveness Review Project (DERP),

Fifth:  In Sec. 3, 33 V.S.A. § 2005(a)(3), by inserting the words and the office of Vermont health access where they firstly appear, after the words “department of health

Sixth:  In Sec. 5, 33 V.S.A. § 2010(b) by striking out the words “or may adopt its own standards by rule

Seventh:  In Sec. 5, by striking out subsection 33 V.S.A. § 2010(d) in its entirety and inserting in lieu thereof a new subsection (d) to read:

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

Eighth:  In Sec. 6, 33 V.S.A. § 2003, after subsection (b), by inserting the following:

(c)  As used in this section:

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

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

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

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

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

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

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

Ninth:  In Sec. 7, in 18  V.S.A. §9472, by striking out subdivision (a)(1) in its entirety and inserting in lieu thereof a new subdivision (a)(1) to read:

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

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

Tenth:  In Sec. 7, in 18 V.S.A. §9472 by striking out subsection (c) in its entirety and inserting in lieu thereof a new subsection (c) to read:

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

Eleventh: In Sec. 7, by striking out 18 V.S.A. § 9473 in its entirety and inserting in lieu thereof a new § 9473 to read:

§ 9473.  ENFORCEMENT

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

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

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

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

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

Twelfth:  In Sec. 8, in 18 V.S.A. § 9421, by striking out subsections (b) and (c)(1) in their entirety and inserting a new (b) and (c)(1) to read:

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

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

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

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

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

Thirteenth:  In Sec. 12, 18 V.S.A. § 4622(a),after the following: “attorney general,” by inserting the following:  the University of Vermont area health center program, and the office of Vermont health access

Fourteenth:  In Sec. 12, 18 V.S.A. § 4622(c), by striking out the following “, such as the Oregon Health and Science University Drug Effectiveness Review Project (DERP)

Fifteenth:  By striking out Sec. 13 in its entirety and inserting in lieu thereof a new Sec. 13 to read:

Sec. 13.  REPORT ON NEW HAMPSHIRE CONFIDENTIALITY OF PRESCRIPTION INFORMATION LAW

The staff of the legislative council shall report to the house committee on health care and the senate committee on health and welfare on the status of New Hampshire’s law prohibiting the commercial use of prescriber-identifiable data contained in prescription data no later than November 1, 2007.  The report shall include a summary of any court decisions and status of the litigation on this law currently pending in New Hampshire and any related information provided by the state of New Hampshire. 

Sixteenth:  By striking out Secs. 14, 15, and 16 in their entirety

Seventeenth:  By striking out Sec. 17 in its entirety and inserting in lieu thereof a new Sec. 17 to read:

Sec. 17.  18 V.S.A. chapter 91, subchapter 5 is added to read:

Subchapter 5.  Unconscionable Pricing

§ 4651.  Purpose

The purpose of this subchapter is to ensure Vermonters affordable access to prescription drugs necessary for the treatment of certain health conditions determined to be a serious public health problem in the state.

§ 4652.  DEFINITIONS

For purposes of this subchapter:

(1)  “Affected party” means any person directly or indirectly affected by unconscionable prices of prescription drugs, including any organization representing such persons or any person or organization representing the public interest.

(2)  “Most favored purchase price” means the price offered with all rights and privileges accorded by the seller to the most favored purchaser in Vermont.

(3)  “Purchaser” means any person who engages primarily in selling drugs directly to consumers.

(4)  “Seller” means any person who trades in drugs for resale to purchasers in this state.

§ 4653.  UnconsCionable Pricing PROHIBITED

A manufacturer of prescription drugs or its licensee shall not sell, supply for sale, or impose minimum resale requirements for a prescription drug necessary to treat a serious public health threat provided for in section 4654 of this title that results in that prescription drug being sold in Vermont for an unconscionable price.

§ 4654.  SERIOUS PUBLIC health THREAT

(a)(1)  The commissioner of health may issue a declaration that a health condition or disease is prevalent in Vermont to such an extent as to constitute a serious public health threat.

(2)  The attorney general may request a determination by the commissioner of health on whether a health condition or disease meets the criteria in this section.  If the attorney general makes a request under this subdivision, the commissioner of health shall consider the request.

(b)  At minimum, the commissioner shall consider the following factors when declaring that a health condition or disease is a serious public health threat:

(1)  if a large number of Vermonters suffer from the health condition and the condition is life-threatening in the short term or has a severe consequence to health in the short term, or if the condition is highly contagious and threatens a large number of Vermonters;

(2)  if the costs to the state, employer-sponsored insurance, and private insurers of treating the health condition with prescription drugs would be expensive without intervention allowed for under this chapter;

(3)  if the cost of a prescription drug or a class of prescription drugs used to treat the health condition is prohibitively expensive, to the extent that information is available;

(4)  whether a prescription drug or class of prescription drugs is essential for maintaining health or life;

(5)  whether consumers affected with the health condition are unable to afford the prescription drug at the current price; and

(6)  other relevant factors as determined by the commissioner.

§ 4655.  Unconscionable pricing; PRIMA FACIE CASE

(a)  A prima facie case of unconscionable pricing as prohibited in section 4653 of this title shall be established where the wholesale price of a prescription drug in Vermont is over 30 percent higher than the prices available to federal agencies under the federal supply schedule, the prices available through the Healthy Vermonters program, or the most favored purchase price.

(b)  If a prima facie case of unconscionable pricing is shown, the burdens of providing evidence and of proving by a preponderance of the evidence shall shift to the defendant to show that a prescription drug is not unconscionably priced by showing the demonstrated costs of invention, development, and production of the prescription drug, global sales and profits to date, consideration of any government‑funded research that supported the development of the drug, and the impact of price on access to a prescription drug by residents and the government of Vermont.

§ 4656.  consumer fraud ACTION

The attorney general or state’s attorney shall enforce the provisions of this section under the Vermont consumer fraud act in chapter 63 of Title 9.  All rights, authority, and remedies available to enforce the consumer fraud act shall be available to enforce the provisions of this subchapter.

§ 4657.  Civil Action

(a)  Any affected party shall have standing to file a civil suit in a court of competent jurisdiction for a violation of this chapter and to seek a remedy, including declaratory and injunctive relief.

(b)  Whenever an affected party, other than the attorney general, brings an action pursuant to this chapter, a copy of any pleadings shall be served on the attorney general pursuant to Rule 5 of the Vermont Rules of Civil Procedure. Failure to comply with this provision shall not affect the validity of the proceedings commenced under this section.

§ 4658.  Remedies FOR CIVIL ACTIONS

If in an action brought by an affected party under section 4657 of this title, a court determines that any person has violated this chapter, the court is authorized to render:

(1)  temporary, preliminary, or permanent injunctions to enjoin the sales of prescription drugs in Vermont at unconscionable prices;

(2)  an order of damages, including treble damages;

(3)  an order requiring reimbursement to the state of Vermont for the reasonable value of its services and its expenses in investigating and prosecuting the action;

(4)  costs and reasonable attorney’s fees; and

(5)  any other relief deemed appropriate by the court.

Eighteenth:  By striking out Sec. 19 in its entirety and inserting a new Sec. 19 to read as follows:

Sec. 19.  9 V.S.A. § 2466a is added to read:

§ 2466a.  Consumer Protections; Prescription Drugs

(a)  A violation of section 4655 of Title 18 shall be considered a violation under this chapter.

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

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

(2)  For purposes of this section:

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

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

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

and by renumbering all Secs. to be numerically correct

(Committee vote: 6-0-0)

Reported favorably with recommendation of amendment by Senator Cummings for the Committee on Finance.

The Committee recommends that the recommendation of amendment of the Committee on Health and Welfare be further amended as follows:

First:  By striking out the Seventeenth recommendation of amendment in its entirety and inserting in lieu thereof the following:

Seventeenth:  By striking out Sec. 17 in its entirety and inserting in lieu thereof a new Sec. 17 to read:

Sec. 17.  18 V.S.A. chapter 91, subchapter 5 is added to read:

Subchapter 5.  Unconscionable Pricing

§ 4651.  Purpose

The purpose of this subchapter is to ensure Vermonters affordable access to prescription drugs necessary for the treatment of certain health conditions determined to be a serious public health problem in the state.

§ 4652.  DEFINITIONS

For purposes of this subchapter:

(1)  “Affected party” means any person in Vermont directly or indirectly affected by unconscionable prices of prescription drugs, including any organization representing such persons or any person or organization representing the public interest.

(2)  “Most favored purchase price” means the price offered with all rights and privileges accorded by the seller to the most favored purchaser in Vermont.

(3)  “Purchaser” means any person who engages primarily in selling drugs directly to consumers.

(4)  “Seller” means any person who trades in drugs for resale to purchasers in this state.

§ 4653.  UnconsCionable Pricing PROHIBITED

A manufacturer of prescription drugs or its licensee shall not sell in Vermont for an unconscionable price a prescription drug necessary to treat a serious public health threat provided for in section 4654 of this title.

§ 4654.  SERIOUS PUBLIC health THREAT

(a)(1)  The commissioner of health may issue a declaration that a health condition or disease is prevalent in Vermont to such an extent as to constitute a serious public health threat.

(2)  The attorney general may request a determination by the commissioner of health on whether a health condition or disease meets the criteria in this section.  If the attorney general makes a request under this subdivision, the commissioner of health shall consider the request.

(b)  At minimum, the commissioner shall consider the following factors when declaring that a health condition or disease is a serious public health threat:

(1)  the number of Vermonters that suffer from the health condition;

(2)  the costs to the state, employer-sponsored insurance, and private insurers of treating the health condition with prescription drugs;

(3)  the cost of a prescription drug or a class of prescription drugs used to treat the health to the extent that information is available;

(4)  whether a prescription drug or class of prescription drugs is essential for maintaining health or life;

(5)  whether consumers affected with the health condition are unable to afford the prescription drug at the current price; and

(6)  other relevant factors as determined by the commissioner.

§ 4655.  Unconscionable pricing; PRIMA FACIE CASE

(a)  A prima facie case of unconscionable pricing as prohibited in section 4653 of this title shall be established where the price of a prescription drug in Vermont is over 30 percent higher than the prices available to federal agencies in Vermont under the federal supply schedule, the prices available through the Healthy Vermonters program, or the most favored purchase price available in Vermont.

(b)  If a prima facie case of unconscionable pricing is shown, the burdens of providing evidence and of proving by a preponderance of the evidence shall shift to the defendant to show that a prescription drug is not unconscionably priced by showing the demonstrated costs of invention, development, and production of the prescription drug, global sales and profits to date, consideration of any government‑funded research that supported the development of the drug, and the impact of price on access to a prescription drug by residents and the government of Vermont.

§ 4656.  consumer fraud ACTION

The attorney general or state’s attorney shall enforce the provisions of this section under the Vermont consumer fraud act in chapter 63 of Title 9.  All rights, authority, and remedies available to enforce the consumer fraud act shall be available to enforce the provisions of this subchapter.

§ 4657.  Civil Action

(a)  Any affected party shall have standing to file a civil suit in a court of competent jurisdiction for a violation of this chapter and to seek a remedy, including declaratory and injunctive relief.

(b)  Whenever an affected party, other than the attorney general, brings an action pursuant to this chapter, a copy of any pleadings shall be served on the attorney general pursuant to Rule 5 of the Vermont Rules of Civil Procedure. Failure to comply with this provision shall not affect the validity of the proceedings commenced under this section.

§ 4658.  Remedies FOR CIVIL ACTIONS

If in an action brought by an affected party under section 4657 of this title, a court determines that any person has violated this chapter, the court is authorized to render:

(1)  temporary, preliminary, or permanent injunctions to enjoin the sales of prescription drugs in Vermont at unconscionable prices;

(2)  an order of damages, including treble damages;

(3)  an order requiring reimbursement to the state of Vermont for the reasonable value of its services and its expenses in investigating and prosecuting the action;

(4)  costs and reasonable attorney’s fees; and

(5)  any other relief deemed appropriate by the court.

Second:  By striking out the Fifteenth recommendation of amendment in its entirety and inserting in lieu thereof the following:

Fifteenth:  By striking out Sec. 13 in its entirety and inserting in lieu thereof a new Sec. 13 to read:

Sec. 13.  18 V.S.A. § 4634 is added to read:

§ 4634.  Pharmaceutical Marketer Prescription Information Disclosure Program

(a)  When a pharmaceutical marketer engages in any form of prescription drug marketing directly to a physician or other person authorized to prescribe prescription drugs, the marketer shall disclose to the physician or other prescriber any identifiable prescription information, relating to the physician or other prescriber, accessible to the pharmaceutical marketer.  If the information is available to the marketer, disclosure shall include the name of the prescriber, name of patient, name of the drug, date of the prescription, and amount of the drug prescribed.  The marketer shall also provide the prescriber with an information sheet describing any program that the manufacturing company participates in that collects, assembles, transfers, or reviews identifiable prescription information for commercial purposes.  Such programs shall include sales force effectiveness programs. 

(b)  The marketer shall provide the prescriber with a form that would enable the prescriber to opt in to the program, creating identifiable prescription information relating to the prescriber for commercial purposes.

(c)  The disclosures, information sheets, and opt‑in required under this section shall be on a form and in a manner prescribed by the office of the attorney general.  The attorney general may adopt rules to implement the provisions of this section.

(d)  In addition to any other remedy provided by law, the attorney general after consultation with the commissioner of banking, insurance, securities, and health care administration and the commissioner of health may file an action in superior court for a violation of this section or of rules adopted under this section.  In any such action, the attorney general shall have the same authority to investigate and to obtain remedies as if the action were brought under the consumer fraud act, chapter 63 of Title 9.  Each violation of this section or of rules adopted under this section constitutes a separate civil violation for which the attorney general may obtain relief.

(e)  As used in this section:

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

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

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

And in Sec. 21, (recodification) subdivision (3), after the word “section” by striking out “4634” and inserting in lieu thereof 4535

(Committee vote: 5-1-1)

ORDERED TO LIE

S. 70

An act relating to empowering municipalities to regulate the application of pesticides within their borders.

PENDING ACTION:  Second reading of the bill.

S. 194

An act relating firefighters and cancer caused by employment.

PENDING ACTION:  Second reading of the bill.

S. 196

An act relating to failure to insure for workers’ compensation coverage by employers and contractors.

PENDING ACTION:  Third reading of the bill.

CONFIRMATIONS

The following appointments will be considered by the Senate, as a group, under suspension of the Rules, as moved by the President pro tempore, for confirmation together and without debate, by consent thereby given by the Senate.  However, upon request of any senator, any appointment may be singled out and acted upon separately by the Senate, with consideration given to the report of the Committee to which the appointment was referred, and with full debate; and further, all appointments for the positions of Secretaries of Agencies, Commissioners of Departments, Judges, Magistrates, and members of the Public Service Board shall be fully and separately acted upon.

Robert Britt of South Burlington - Member of the Vermont Economic Development Authority - By Sen. Condos for the Committee on Finance.  (1/25)

David E. L. Brown of Shelburne - Member of the Board of Libraries - By Sen. Giard for the Committee on Education.  (1/31)

John Rosenthal of Charlotte - Member of the Board of Libraries - By Sen. Doyle for the Committee on Education.  (1/31)

Kenneth Gibbons of Hyde Park - Member of the Vermont Educational and Health Buildings Finance Agency - By Sen. McCormack for the Committee on Finance.  (2/2)

David R. Coates of Colchester - Member of the Municipal Bond Bank - By Sen. Condos for the Committee on Finance.  (2/21)

Paul. Beaulieu of Manchester Center - Member of the Vermont Housing Finance Agency - By Sen. Maynard for the Committee on Finance.  (2/21)

Susan Davis of Shelburne - Member of the Travel Information Council - By Sen. Mazza for the Committee on Transportation.  (3/13)

Jireh Billings of Bridgewater - Member of the Capitol Complex Commission - By Sen. Campbell for the Committee on Institutions.  (3/14)

John LaBarge of South Hero - Member of the Travel Information Council - By Sen. Mazza for the Committee on Transportation.  (3/21)

Susan K. Blair of Colchester - Alternate Member of the Parole Board - By Sen. Mazza for the Committee on Institutions.  (3/23)

William J. Pettengill of Guilford - Member Parole Board - By Sen. Coppenrath for the Committee on Institutions.  (3/23)

Jeffrey Larkin of Duxbury - Member of the Travel Information Council - By Sen. Scott for the Committee on Transportation.  (3/28)

PUBLIC HEARINGS

     Thursday, March 29, 2007 - 7:00-9:00 P.M. - Interactive television sites:  Bennington, Castleton, Johnson, Lyndonville, Middlebury, Montpelier, Randolph Center, Springfield, St. Albans, White River Junction and Williston.  Re:  S. 102, S. 118 - Education Cost Containment - Sen. Committee on Education.

Tuesday, April 3, 2007 - Room 11 - 6:00-9:00 - Re:  Public Transit - House Committee on Transportation.

REPORTS ON FILE

Pursuant to the provisions of 2 V.S.A. §20(c), one (1) copy of the following reports is on file in the office of the Secretary of the Senate:

     127.  Vermont Department of State’s Attorneys Annual Report.  (March 2007).

 



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