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Senate Calendar

thursday, april 24, 2008

108th DAY OF BIENNIAL SESSION

TABLE OF CONTENTS

                                                                                                                Page No.

ACTION CALENDAR

CONSIDERATION POSTPONED TO THURSDAY, APRIL 24, 2008

Third Reading

H. 700    Sale of bottles of wine at festivals.................................................... 1951

                        Sen. Illuzzi amendment........................................................... 1951

NEW BUSINESS

Third Reading

H. 619    Relating to the regulation of sexual assault nurse examiners............... 1953

Favorable

H. 894    Approval of amendments to the charter of the town of Windsor....... 1954

                        Government Operations Committee Report............................ 1954

Favorable with Proposal of Amendment

H. 558    Waste facility franchise tax exemption for mining waste.................... 1954

                        Natural Resources and Energy Committee Report.................. 1954

                        Finance Committee Report.................................................... 1954

H. 870    Regulation of professions and occupations....................................... 1955

                        Government Operations Committee Report............................ 1955

                        Finance Committee Report.................................................... 1958

H. 881    Role of electric & gas utilities in deployment of communications ..............                   facilities through the state     1958

                        Finance Committee Report.................................................... 1958

House Proposals of Amendment

S. 226     Requiring the installation of photoelectric only smoke alarms............ 1967

                        Sen. Illuzzi amendment........................................................... 1968

S. 271     Relating to support for children with disabilities................................ 1969

S. 301     Penalties for assaulting a law enforcement officer & crime of assault ........                   with bodily fluids     1969


Joint Resolution for Action

JRH 62  Commemorating the observance of 2008 Equal Pay Day................. 1970

NOTICE CALENDAR

Favorable with Proposal of Amendment

H. 112    Protection of health care & public safety personnel.......................... 1970

                        Health and Welfare Committee Report................................... 1970

H. 599    Boating while intoxicated and driving while intoxicated..................... 1970

                        Judiciary Committee Report................................................... 1970

H. 685    Relating to enforcement of environmental laws................................. 1977

                        Natural Resources & Energy Committee Report..................... 1977

H. 863    Affordable housing and smart growth development.......................... 1977

                        Ec. Dev., Housing & General Affairs Committee Report......... 1977

ORDERED TO LIE

S. 70       Empowering municipalities to regulate pesticides.............................. 1993


S. 108     Electing U.S. Representative & U.S. Senator by instant runoff......... 1993

H. 331    Financing the purchase of a mobile home......................................... 1993

H. 332    Sale and closure of mobile home parks............................................ 1993

JRS 24   Congressional “fast track” review of trade agreements..................... 1993

Concurrent Resolutions for Notice

(For text of Resolutions, see Addendum to April 24, 2008)

SCR 54      Honoring Robert Stiller for his entrepreneurial achievements........... 188

HCR 280   Windsor School District Superintendent Brenda Needham............. 190

HCR 281   State Street School in Windsor 2007 Fall Fit & Healthy Kids........ 191

HCR 282   Vermont Council on World Affairs................................................ 192

HCR 283   Robert Hamlin on extraordinary high school wrestling career.......... 193

HCR 284   Stowe High School championship field hockey team...................... 195

HCR 285   Stowe High School championship girls Nordic ski team................. 196

HCR 286   Marion Gray Women’s History Month scholarship winners............ 197

HCR 287   Stowe High School championship soccer team.............................. 198

HCR 288   Chandler Kennedy on country music vocal competitions................ 199

HCR 289   United counseling Service of Bennington 50th anniversary.............. 201

HCR 290   National Life Group on 160 anniversary of its charter..................... 203

HCR 291   Winners of the Vermont MATHCOUNTS competition................. 204

HCR 292   Dr. Marshall Land of Shelburne..................................................... 205

HCR 293   Vermont’s 2008 All-Vermont Academic Team members............... 206

For Information Purposes

H. 887    Health care reform..................................................................................

                        Health and Welfare Committee Report................................... 1996

 



 

ORDERS OF THE DAY

ACTION CALENDAR

CONSIDERATION POSTPONED TO THURSDAY, APRIL 24, 2008

Third Reading

H. 700

An act relating to sale of bottles of wine at festivals.

PROPOSAL OF AMENDMENT TO H. 700 TO BE OFFERED BY SENATOR ILLUZZI BEFORE THIRD READING

Senator Illuzzi moves that the Senate propose to the House to amend the bill by adding two new sections to be numbered Secs. 2 and 3 to read as follows:

Sec. 2.  9 V.S.A. chapter 82 is added to read:

CHAPTER 82.  SCRAP METAL PROCESSORS

§ 3021.  DEFINITIONS

As used in this chapter:

(1)  “Authorized scrap seller” means:

     (A)  a licensed plumber, electrician, or HVAC contractor;

     (B)  An established and known building or construction contractor, demolition contractor, construction and demolition debris contractor;

     (C)  a public utility, transportation company, licensed peddler or broker;

     (D)  an established and known industrial or manufacturing company; marine, automobile, or aircraft salvage and wrecking company; or

     (E)  a government entity.

(2)  “Ferrous scrap” means any scrap metal consisting primarily of iron, steel, or both, including large manufactured articles such as automobile bodies that may contain other substances to be removed and sorted during normal processing operations of scrap metal.

(3)  “Metal article” means any manufactured item consisting of metal that is usable for its originally intended purpose without processing, repair, or alteration, including railings, copper or aluminum wire, copper pipe and tubing, bronze cemetery plaques, urns, markers, plumbing fixtures, and cast‑iron radiators.

(4)  “Nonferrous scrap” means any scrap metal consisting primarily of metal other than iron or steel, and does not include aluminum beverage cans, post-consumer household items, items removed during building renovations or demolitions, or large manufactured items containing small quantities of nonferrous metals such as automobile bodies and appliances.

(5)  “Proprietary article” means any of the following:

(A)  Any metal article stamped, engraved, stenciled, or marked as being or having been the property of a governmental entity, public utility, or a  transportation, shipbuilding, ship repair, mining, or manufacturing company.

(B)  Any hard-drawn copper electrical conductor, cable, or wire greater than 0.375 inches in diameter, stranded or solid.

(C)  Any aluminum conductor, cable, or wire greater than 0.75 inches in diameter, stranded or solid.

(D)  Metal beer kegs.

(E)  Manhole covers.

(F)  Catalytic converters.

(6)  “Scrap metal” means any manufactured item or article that contains metal.

(7)  “Scrap metal processor” means a person authorized to conduct a business that processes and manufactures scrap metal into prepared grades for sale as raw material to mills, foundries, and other manufacturing facilities.

§ 3022.  PURCHASE OF NONFERROUS SCRAP, METAL ARTICLES, AND PROPRIETARY ARTICLES

(a)  A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles directly from an authorized scrap metal seller or the seller’s authorized agent or employee.

(b)  A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles from a person who is not an authorized scrap metal seller or the seller’s authorized agent or employee, provided the scrap processor complies with all the following procedures:

(1)  At the time of sale, requires the seller to provide a current government-issued photographic identification that indicates the seller’s full name, current address, and date of birth, and records in a permanent ledger the identification information of the seller, the time and date of the transaction, the license number of the seller’s vehicle, and a description of the items received from the seller.  This information shall be retained for at least five years at the processor’s normal place of business or other readily accessible and secure location.  On request, this information shall be made available to any law enforcement official or authorized security agent of a governmental entity who provides official credentials at the scrap metal processor’s business location during regular business hours.

(2)  Requests documentation from the seller of the items offered for sale, such as a bill of sale, receipt, letter of authorization, or similar evidence that establishes that the seller lawfully owns the items to be sold.

(3)  After purchasing an item from a person who fails to provide documentation pursuant to subdivision (2) of this subsection, submits to the local law enforcement agency no later than the close of the following business day a report that describes the item and the seller’s identifying information required in subdivision (1) of this subsection, and holds the proprietary article for at least 15 days following purchase.

§ 3023.  PENALTIES

(a)  A scrap metal processor who violates any provision of this chapter for the first time may be assessed a civil penalty not to exceed $1,000.00 for each transaction.

(b)  A scrap metal processor who violates any provision of this chapter for a second or subsequent time shall be fined not more than $25,000.00 for each transaction.

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

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

* * *

(14)  Violations of 9 V.S.A. § 3023(a), relating to the purchase and sale of scrap metal.

NEW BUSINESS

Third Reading

H. 619

An act relating to the regulation of sexual assault nurse examiners.


Second Reading

Favorable

H. 894

An act relating to approval of amendments to the charter of the town of Windsor.

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

(Committee vote: 5-0-0)

(No House amendments.)

Favorable with Proposal of Amendment

H. 558

An act relating to wastewater facility franchise tax exemption for mining waste.

Reported favorably by Senator MacDonald for the Committee on Natural Resources and Energy.

(Committee vote: 5-0-0)

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

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

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

Sec. 1.  3 V.S.A. § 2822(j)(6) is amended to read:

(6)  For solid waste treatment, storage, transfer, or disposal facility certifications issued under 10 V.S.A. chapter 159:

* * *

(E)  original and renewal                  $200.00 plus $0.41

applications for facilities, certified                    per cubic yard of certified

pursuant to 10 V.S.A §§ 6605 and 6605b,     for facilities with an operational

that treat, store, or dispose of waste               capacity less than 25,000 cubic

generated solely from mining, extraction,         yards; for facilities with

or mineral processing                                      operational capacity above 15,000

                                                                      25,000 cubic yards $0.95 per

                                                                      cubic yard of operational capacity

                                                                      prorated and paid on an

                                                                      annual basis over the term

                                                       of the certification.

                                                       Maximum annual

                                                                      payment, $35,000.00

                                                                      $75,000.00.

* * *

Second:  By adding a new section to be numbered Sec. 2a to read as follows:

Sec. 2a.  AGENCY OF NATURAL RESOURCES PUBLICATION OF MONITORING

(a)  Upon certification of the OMYA facility under 10 V.S.A. chapter 159, the secretary of natural resources shall post on the website of the agency of natural resources the results of the monitoring activities required under the certification.

(b)  The agency of natural resources shall require staff time associated with the OMYA facility to be assigned a specific accounting code, and all work or review of the OMYA facility shall be accounted for with the assigned OMYA code.

(Committee Vote: 5-2-0)

(For House amendments, see House Journal for March 25, 2008, page 743.)

H. 870

An act relating to the regulation of professions and occupations.

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

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

First:  By adding a new Sec. 6a to read as follows:

Sec. 6a.  26 V.S.A. § 273 is amended to read:

§ 273.  EXEMPTIONS

The provisions of this chapter regulating barbers and cosmetologists shall not:

* * *

(3)  prohibit a licensee from providing barbering or cosmetology services outside a licensed shop so long as those services are limited to only:

* * *

(C)  persons as part of a special occasion event so long as those services are limited to hair styling and makeup and the sanitation standards expected of licensees in licensed shops are followed;

* * *

Second:  By adding a new Sec. 8a to read as follows:

Sec. 8a.  26 V.S.A. § 378 is added to read:

§ 378.  LIMITED TEMPORARY LICENSES

(a)  Notwithstanding section 371 of this title, the board may grant an applicant a limited temporary license to practice podiatry for a period of up to 54 weeks if the applicant:

(1)  furnishes the board with satisfactory proof that he or she has attained the age of majority;

(2)  has received a diploma or certificate of graduation from an accredited school of podiatric medicine approved by the board;

(3)  has been appointed as an intern, resident, fellow, or medical officer in a licensed hospital or in a clinic which is affiliated with a licensed hospital, or in a hospital or an institution maintained by the state, or in a clinic or an outpatient clinic affiliated with or maintained by the state; and

(4)  pays the fee set forth in subdivision 1401a(a)(3) of this title.

(b)  A limited temporary license may be renewed upon payment of the fee set forth in subdivision 1401a(a)(3) of this title for the period of the applicant’s postgraduate training, internship, or fellowship program.

(c)  A limited temporary license shall entitle the applicant to practice podiatry only in the hospital or other institution designated on his or her certificate of limited temporary license and in clinics operated by or affiliated with that designated hospital or institution and only if the applicant is under the direct supervision and control of a licensed podiatrist.  The licensed podiatrist shall be legally responsible and liable for all negligent or wrongful acts or omissions of the limited temporary licensee and shall file with the board the name and address both of himself or herself and of the limited temporary licensee and the name of the hospital or other institution.

(d)  A limited temporary license shall be revoked upon the death or legal incompetency of the supervising licensed podiatrist or, upon 10 days’ written notice, by withdrawal of his or her filing by the supervising licensed podiatrist.  A limited temporary licensee shall at all times exercise the same standard of care and skill as a licensed podiatrist.  Termination of appointment as intern, resident, fellow, or medical officer of a designated hospital or institution shall operate as a revocation of a limited temporary license.

Third:  By adding a new Sec. 9a to read as follows:

Sec. 9a.  26 V.S.A. § 996(e) is amended to read:

(e) In addition to the provisions of subsection (a) of this section, an applicant for renewal shall have satisfactorily completed continuing education as required by the board. For purposes of this subsection, the board shall require, by rule, not less than six nor more than ten hours of approved continuing education as a condition of renewal.   A licensee who is licensed as a funeral director shall only be required to complete continuing education requirements for a funeral director and not those for an embalmer.

Fourth:  By adding a new Sec. 10a to read as follows:

Sec. 10a.  26 V.S.A. § 1256(e) is amended to read:

(e) In addition to the provisions of subsection (a) of this section, an applicant for renewal as a funeral director shall have satisfactorily completed continuing education as required by the board. For purposes of this subsection, the board shall require, by rule, not less than six nor more than ten hours of approved continuing education as a condition of renewal and may require up to three hours of continuing education for removal personnel in the subject area of universal precautions and infectious diseases.  An applicant for renewal as a funeral director who is over the age of 65 shall have satisfactorily completed two hours of approved continuing education as a condition of renewal.

Fifth:  In Sec. 14, 26 V.S.A. § 2081a(1), by striking out the first instance of the word “therapy” and inserting in lieu thereof the word therapist

Sixth:  In Sec. 17, 26 V.S.A. § 2085(a), by striking out the first sentence in its entirety and inserting in lieu thereof a new first sentence to read as follows:  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, including care provided by physical therapist assistants, physical therapy aides, and assistive personnel.

Seventh:  In Sec. 17, 26 V.S.A. § 2085(c)(2), in the second sentence, by striking out the word “delegated” and inserting in lieu thereof the word assigned

Eighth:  In Sec. 37, 26 V.S.A. § 4121, by striking out subdivision (11)(12) in its entirety and inserting in lieu thereof a new subdivision to read as follows:

(11)(12)  ”Topical medicines” mean medicines applied to the surface of the body and include topical analgesics, anesthetics, antiseptics, scabicides, antifungals, antibacterials, and cryo-agents, and anti-inflammatory agents.

Ninth:  By adding a new Sec. 46 to read as follows:

Sec. 46.  OFFICE OF PROFESSIONAL REGULATION; BOARD OF FUNERAL SERVICE; STUDY

The office of professional regulation, in consultation with the board of funeral service, funeral consumers, providers of funeral services, and other stakeholders identified by the office, shall study the necessity of amending the statutes and administrative rules relating to funeral service in Vermont in the interest of public protection.  The study shall address the reorganization of the embalmer, crematory, and funeral services chapters of the Vermont Statutes Annotated, possible restructuring of the composition of the funeral board, continuing education requirements, and other amendments as deemed appropriate by the office and the board.  The office shall report to the house and senate committees on government operations with its recommendations no later than January 15, 2009.

(Committee Vote: 5-0-0)

Reported favorably by Senator Ayer for the Committee on Finance.

(Committee vote: 7-0-0)

(For House amendments, see House Journal for February 29, 2008, page 467.)

H. 881

An act relating to the role of electric and gas utilities in facilitating the deployment of communications facilities throughout the state.

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

The Committee recommends that the Senate propose 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 PURPOSE          

The general assembly finds that:

(1)  As found in 30 V.S.A. § 8060(a)(1): “The availability of mobile telecommunications and broadband services is essential for promoting the economic development of the state, the education of its young people and life‑long learning, the delivery of cost-effective health care, the public safety, and the ability of citizens to participate fully in society and civic life.”

(2)  Electric and gas companies have networks that extend throughout the state.  Some of these networks can be leveraged to improve the economics of deploying mobile telecommunications and broadband service throughout the state.

(3)  Electric and gas companies hold easements that allow for specific utility use, but certain of these easements may not allow for the attachment or the installation of communications facilities.

(4)  Therefore, the goals of the general assembly in this act are to ensure that electric and gas utilities allow and enable access to their facilities and easements to communications companies as a necessary element of serving the public good in a flexible manner that is fair to both the utilities’ ratepayers and customers of communications service providers.

Sec. 2.  30 V.S.A. chapter 92 is added to read:

CHAPTER 92.  ACCESS FOR THE INSTALLATION AND MAINTENANCE OF COMMUNICATIONS FACILITIES

§ 8090.  DEFINITIONS

For the purposes of this chapter:

(1)  “Communications facilities” shall mean facilities that are used to send and receive audio, images, data, or other information via any electromagnetic media, including wires, cables, microwaves, radio waves, light waves, or any combination of these or similar media.

(2)  “Communications service provider” shall mean the Vermont telecommunications authority, a company subject to the jurisdiction of the public service board under subdivision 203(5) or section 502 of this title, or a broadband service provider who is considered to be an “attaching entity” pursuant to subsection 209(g) of this title.

(3)  “Company” or “companies” shall mean an electric or gas utility subject to the jurisdiction of the public service board.

§ 8091.  ACCESS TO FACILITIES

(a)  Any company shall allow and enable access to its plant and equipment where possible for the installation and maintenance of communications facilities by communications service providers.

(b)  When constructing or substantially reconstructing lines or structures used for electric or gas transmission or electric distribution, a company shall allow for the construction and maintenance of communications facilities thereupon if requested by a communications service provider.

(c)  Access and services required by this section shall be subject to regulation by the public service board and department of public service and shall be offered on rates, terms, and conditions, including terms of ownership of facilities, established in section 8092 of this chapter, except that services under tariffs developed pursuant to public service board rules regarding pole attachments shall be governed by those rules.

(d)  Owners of self-generation facilities, those not connected to the electric grid and net-metered generators, shall not be obligated to comply with this section.

(e)  If a communications service provider requests services from a company pursuant to this title, then the communications service provider shall be responsible for all of the costs the company incurs to obtain any easements or limited rights in property necessary to provide those services to the communications service provider, including compensation, legal fees, and the administrative costs of the utility.

§ 8092.  RATES; TERMS; CONDITIONS

(a)  Any company providing electric or gas service under public service board jurisdiction pursuant to this title shall prepare and file with the public service board, with a copy provided to the commissioner of the department of public service and the director for public advocacy, a statement of generally available rates, terms, and conditions for attachments and installations required under section 8091 of this chapter.  The nature and specificity of such statement may take into account the nature and size of the company, an assessment of the types of communications facilities for which requests are most likely, and such other factors as necessary to ensure that the rates, terms, and conditions set forth in the statement are sufficiently flexible to meet the capacities of the company, the interests of the company’s ratepayers, and the goal of facilitating broadband and wireless service.

(b)  The department and the board shall review the statement of generally available rates, terms, and conditions filed by each company.  In the event that the board or the department has grounds to believe that the rates, terms, or conditions are not just and reasonable, the board may open an investigation into the statement.  In the absence of an investigation, or while such an investigation is pending, the company’s filed statement of rates, terms, and conditions shall take effect or shall remain in effect without requiring the approval of the board.  Changes to any company’s filed statement of rates, terms, and conditions shall not take effect until 45 days after the statement has been filed with the board and the department.

(c)  In the event of a board investigation into a company’s statement of rates, terms, and conditions pursuant to this chapter, the board may alter or change the rates, terms, or conditions in effect for attachments and installations after notice and hearing, upon a finding that the company’s rates, terms, or conditions are not just and reasonable.  In making its determination, the board shall consider evidence that may be presented regarding the commercial reasonableness of the rates given the local market and the public interest in reasonable rates for electric or gas service and availability of communications services in the state.  Any change in rates, terms, and conditions required as a result of a board investigation shall be effective as of the date of the board’s order without any refund.

(d)  The statement shall include rates, terms, and conditions for services for which the company may reasonably expect to receive requests, including at a minimum:

(1)  For wireline communications facilities:

(A)  Attachment of communications facilities to electric transmission facilities and maintenance of these communications facilities.

(B)  Contribution to construction for communications facilities installed concurrently with the construction or reconstruction of electric and gas company facilities when requested by a communications service provider.

(2)  For wireless communication facilities:

(A)  Attachment of communications facilities to electric transmission and generation facilities and maintenance of these communications facilities.

(B)  Contribution to construction for communications facilities installed concurrently with the construction or reconstruction of electric company facilities when requested by a communications service provider.

(e)  Rates, terms, and conditions for contributions to construction and for maintenance of communications facilities installed concurrently when companies are constructing or substantially reconstructing electric transmission or distribution lines or structures or gas transmission lines shall be based on the incremental cost of adding the communications facility to the project, as long as the communications facilities will provide service in the municipality in which they are located and surrounding municipalities.

(f)  The company may negotiate rates, terms, and conditions of service that deviate from the statement of rates, terms, and conditions on file, but the company may not refuse a request to provide service in accordance with the rates, terms, and conditions on file.  Section 229 of this title does not apply to deviations from the statement of rates, terms, and conditions, unless a company provides service pursuant to this chapter to an affiliate of the company that is not an electric or gas utility. 

(g)  Companies with facilities meeting the requirements of this section shall submit their statement of rates, terms, and conditions within 150 days of the date of the enactment of this legislation.

(h)  A company may limit wireline attachments on electric transmission structures exclusively carrying voltages of 110 kV or higher to fiber-optic facilities attached and maintained by the company, if the company allows communications service providers to use fiber-optic facilities installed and maintained by the company and offers to install such fiber-optic facilities on such electric transmission structures where there are not sufficient facilities for use by communications service providers.  Rates, terms, and conditions for access to such company-attached and company-maintained facilities shall be made available consistent with the requirements of this section.

(i)  The public service board may establish rules to implement this chapter.  Such rules may include default rates, terms, and conditions to implement subsections (c) and (h) of this section.  As part of the implementation of this chapter, the board shall establish rules to require, to the extent the board is not preempted, communications providers to extend their facilities as far as the board’s authority permits.

§ 8093.  NOTIFICATION

(a)  For cases of gas transmission projects, and for projects involving electric transmission lines requiring approval pursuant to section 248 of this title, companies shall provide notice to the Vermont telecommunications authority at the same time that they provide notice pursuant to subdivision 248(a)(4)(C) of this title.

(b)  In cases of projects involving electric transmission or distribution lines which do not require approval pursuant to section 248 of this title, and which are greater than 2,500 feet, companies under the jurisdiction of the public service board shall notify the Vermont telecommunications authority of the project at least 90 days prior to planned commencement of construction for company-initiated projects, or as soon as possible for customer-initiated projects or projects required for urgent reasons of service quality or reliability.

(c)  The notice shall include:

(1)  The location of the project, including the town and a description of the route to be followed;

(2)  The nature of the project;

(3)  The date the project is planned to commence;

(4)  The contact person for the project and his or her contact information.

(d)  For good cause shown by a company, the public service board may shorten or eliminate the notice period required under this section.

(e)  In the alternative to filing notice under subsection (b) of this section, a company may file with the public service board, the department of public service, and the Vermont telecommunications authority its capital plan or construction work plan, describing the location of linear projects which do not require approval pursuant to section 248 of this title, and in the case of a multi-year plan, the year in which a linear project is scheduled to commence.  No construction called for under the capital plan or construction work plan shall commence until the plan has been on file for at least 90 days, unless the construction is required for customer-initiated projects or for urgent reasons of service quality or reliability.

(f)  A company may specify in its statement of rates, terms, and conditions a deadline or procedure for requests to attach or add communications facilities to a project.  Unless otherwise specified by the company in its statement of rates, terms, and conditions, a company shall provide a period for responses of not less than either 45 days after notice is provided, if the company provides notice pursuant to subsection (b) of this section, or 45 days before the planned construction commences, if the company provides notice pursuant to subsection (e) of this section.  If a company does not receive a response by the deadline or according to the procedure established for responding to the notice required by this section, it may commence construction of a project prior to the end of the notice period required under subsection (b) or (e) of this section.

§ 8094.  EVALUATION OF COMMERCIAL WIRELESS NETWORKS

(a)  No company subject to public service board jurisdiction and providing electric service shall begin construction of a two-way point-to-multipoint mobile wireless communication network for the purpose of communication between its facilities for its own personnel unless:

(1)  The company has solicited proposals from commercial wireless service providers; and

(2)  For solicitations issued after July 1, 2008, the company has provided notice prior to the solicitation to the Vermont telecommunications authority and to the commissioner of the department of public service and the director for public advocacy.

(b)  Nothing in this section shall be construed to authorize or disallow the costs of such a network for the purpose of a rate proceeding for the company.

§ 8095.  LIMITATION

Nothing in this chapter limits the existing rights and obligations of entities currently authorized to attach to poles and other facilities pursuant to board rule 3.700. 

§ 8096.  LEGISLATIVE INTENT

The general assembly intends that this chapter will result in improved and increased access to mobile telecommunications and broadband services for all underserved Vermont households and businesses.

Sec. 3.  30 V.S.A. § 110a is added to read:

§ 110a. INCLUSION OF COMMUNICATIONS FACILITIES

When a gas or electric utility subject to the jurisdiction of the board files a petition to condemn an easement or limited right in property, there shall be a rebuttable presumption that access to the utility’s facilities provided pursuant to chapter 92 of this title shall be a necessary component of the utility’s rendering of adequate service to the public.

Sec. 4.  30 V.S.A. § 111a is added to read:

§ 111a.  PREEXISTING UTILITY LINES

(a)  When a corporation seeks to condemn property or an easement or other right over property where a currently existing utility line capable of operating at 100 kilovolts or less that has not been abandoned and was in place on July 1, 1993, there is a rebuttable presumption that the condemnation of the property right authorizing the existing utility line or lines is necessary in order that the petitioner may render service to the public, provided that the property right is limited to that which is required to allow the operation, maintenance, and repair of the existing line or lines, and does not (1) significantly alter the capabilities or capacity of the line or lines, (2) materially alter the degree of land use associated with the presence of the line or lines, and (3) authorize the company to perform replacements or upgrades that would have a significant impact under the criteria set forth in section 248 of this title. 

(b)  When a corporation seeks to condemn property or establish an easement or other right over property where a utility line, that has not been abandoned, was in place on July 1, 1993, the corporation shall present a petition to the public service board and to the department of public service describing the property or right, and why the action is necessary.  The property or right shall be limited to that which is required to allow the operation, maintenance, and repair of the existing line or lines, subject to the limitations set forth in subsection (a) of this section.  The board shall issue a citation upon each person whose property or right the petitioner proposes to condemn and each municipality and each planning body where the property is located, or on absent persons in such manner as the supreme court may by rule provide for service of process in civil actions, including by publication. 

(c)  Upon the filing of the petition with the board and department, any pending actions and proceedings against the petitioner affecting its right to use and enjoy the subject property are stayed for the pendency of the condemnation proceeding before the board, and the petitioner may enter upon the property to be condemned for the purposes of examination and obtaining necessary information in order to proceed with the taking and to conduct the minimum amount of maintenance and repairs necessary to provide service.

(d)  The board shall fix the time and the place for hearing.

(e)  If the utility line for which the corporation seeks to acquire easements through condemnation under this section crosses more than one property, the corporation may petition the board to hold a single hearing to determine necessity for all persons subject to condemnation under subsection (b) of this section.

(f)  A person owning or having an interest in lands or rights to be taken may stipulate as to the necessity of the taking.  The stipulation shall be filed with the board.  The board shall issue an order on necessity within 45 days upon receiving the stipulation.

(g)  A stipulation under subsection (f) of this section shall be accompanied by an affidavit sworn to before a person authorized to take acknowledgments.  The stipulation shall include the following:

(1)  a recital that the person or persons executing the stipulation have examined the proposed easement, which includes a description of the property or rights to be taken; and

(2)  an explanation of the legal and property rights affected.

(h)  If a hearing is required, the board shall hear all persons whose property or right is the subject of the condemnation petition and who wish to be heard at the time and place appointed for the hearing.  The board shall make findings of fact, and by its order, determine whether necessity requires the taking of the land and rights as set forth in the petition.

(i)  Following a determination of necessity pursuant to subsection (f) or (h) of this section, the board shall expeditiously appoint a time and place for examining the premises and provide an opportunity for a hearing on the issue of compensation, giving at least 10 days’ notice in writing to the persons that are subject to the condemnation petition.

(j)  There shall be rebuttable presumptions that compensation for the taking or use of property rights under the provision of this section shall be the diminution of value caused by the existence of such utility lines across the property at the time the petition was filed with the board and that, where a property owner acquired the property with the utility line already in place, the diminution in value was reflected in the terms of acquiring the property.  Upon rebuttal of either of these presumptions under the standard set forth in subsection (m) of this section, the board shall determine compensation pursuant to the criteria established by subdivision 112(3) of this title.

(k)(1)  When the board renders judgment, it shall send by registered mail to each of the parties in interest or their attorneys, within 30 days thereafter, a certified copy of such judgment.  If the judgment is in favor of the petitioner, the board, in the same manner, shall send to such parties a certified copy of the findings which shall include a description of the property or right to be condemned.  The petitioner shall cause a certified copy of the judgment and findings to be recorded in the clerk’s office of the town or towns in which such property is located within 30 days after the clerk receives the copies.

(2)  Upon the payment or deposit of the amounts awarded by the board, with interest, in accordance with its order, the petitioner shall be the owner of the property or right described in the findings.  However, when an appeal is taken as provided in section 12 of this title, such ownership shall be an equitable title only with right of possession until the judgment of the supreme court is complied with.

(l)  Section 112 of this title does not apply to petitions filed under this section except as provided in subsection (j) of this section.  An appeal or review relating to an action under this section shall be to the supreme court pursuant to section 12 of this title.

(m)  The presumptions arising under subsections (a) and (j) of this section shall operate in accordance with the provisions of Vermont Rule of Evidence 301(a).  These presumptions shall shift only the burden of production, and shall lose their effect as soon as any evidence to support a finding of the nonexistence of the presumed fact is introduced.

(n)  Nothing in this section shall impact any permitting or regulatory requirements that may apply to the corporation.

Sec. 5.  INVESTIGATION INTO SUBSTATION NETWORKS

The public service board shall conduct an investigation into the benefits and costs of construction of fiber-optic or other telecommunications facility networks linking electric company substations and submit a report to the committees of jurisdiction of the general assembly on or before January 15, 2009.  In addition to other information it deems appropriate, the public service board shall require from each electric company an analysis of the likely cost of connecting its substations with fiber-optic facilities and other alternative means, and the benefits to electric company operations, including benefits for system management and reliability.  If it finds good cause to do so, the board may excuse companies without more than one substation and companies which have already connected all company substations with fiber-optic facilities.  In the event that the public service board determines that the benefit of such a network exceeds its costs, it shall recommend an implementation schedule for construction of such a network and include the schedule in its report.  The board may issue an implementation schedule for individual companies prior to January 15, 2009.

(Committee Vote: 6-0-1)

(No House amendments.)

House Proposal of Amendment

S. 226

An act relating to requiring the installation of photoelectric only smoke alarms.

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

First:  In Sec. 1, subdivision (a)(3), near the end, by striking “is” and inserting “are”, in subdivision (a)(5), by striking “;” and inserting “.”, in subdivision (a)(6), by striking “are” and inserting “is”, by adding a new subdivision, to be subdivision (a)(10), to read as follows:

(10)  Photoelectric-type smoke detectors provide earlier detection and warning than ionization-type smoke detectors in smoldering fires by minutes or tens of minutes.  Ionization-type smoke detectors provide earlier detection and warning than photoelectric-type smoke detectors in flaming fires by seconds or tens of seconds.  Therefore, although this act requires photoelectric-only-type smoke detectors for the reasons set forth in these findings, the general assembly does not discourage the use of ionization-type smoke detectors and combination smoke detectors in addition to photoelectric-only-type smoke detectors.

by renumbering the remaining subdivisions to be numerically correct and in subsection (b), after “Therefore” by adding “,

Second:  In Sec. 2, 9 V.S.A. § 2882(a) and (b), in both of the two instances, by striking “photoelectric type only” and inserting in lieu thereof “photoelectric-only-type

Third:  In Sec. 3, 9 V.S.A. § 2883(a) and (b), in both of the two instances, by striking “photoelectric type only” and inserting in lieu thereof “photoelectric-only-type

Fourth:  In Sec. 5 (Effective Date), in subsection (a), by striking “July 1, 2008” and inserting in lieu thereof “upon passage”; in subsection (b), by striking “single family” and inserting in lieu thereof  “single-family” and by striking “July 1, 2008” and inserting in lieu thereof “January 1, 2009”; in subsection (c), by striking “Sec. 2. (b) and Sec. 3” and inserting in lieu thereof “Secs. 2(b) and 3”; and in subsection (d), by striking ‘“photoelectric type only”’ and inserting in lieu thereof “photoelectric-only-type” and after “prohibit” by inserting “and does not discourage

and that after passage, the title of the bill should read:

“AN ACT RELATING TO REQUIRING THE INSTALLATION OF

PHOTOELECTRIC-ONLY-TYPE SMOKE DETECTORS”

SENATE PROPOSAL OF AMENDMENT TO HOUSE PROPOSAL OF AMENDMENT TO S. 226 TO BE OFFERED BY SEN. ILLUZZI

     Senator Illuzzi moves that the Senate concur in the House proposal of amendment with the following amendment thereto:

     In Sec. 1, subsection (a) by striking out subdivision (10) in its entirety and inserting in lieu thereof a new subdivision (10) to read as follows:

(10)  Photoelectric-type smoke detectors provide earlier detection and warning than ionization-type smoke detectors in smoldering fires by minutes or tens of minutes.  Ionization-type smoke detectors provide earlier detection and warning than photoelectric-type smoke detectors in flaming fires by seconds or tens of seconds.  Therefore, although this act requires photoelectric-only-type smoke detectors for the reasons set forth in these findings, the general assembly does not discourage the use of separately powered ionization-type smoke detectors in addition to photoelectric-only-type smoke detectors required by this act.

House Proposal of Amendment

S. 271

An act relating to support for children with disabilities.

The House proposes to the Senate to amend the bill by striking Sec. 1 in its entirety and inserting a new Sec l. as follows:

Sec. 1.  15 V.S.A. § 658(g) is added to read:

(g)  Upon motion, the court may extend child support up to the age of 22 for an individual found by the court to have significant physical, mental, or developmental disabilities.  The court shall consider the factors identified in section 659 of this title in making its decision.  The parent seeking the order shall provide the court with documentation of the child’s disability.

House Proposal of Amendment

S. 301

An act relating to enhancing the penalties for assaulting a law enforcement officer and to the crime of assault with bodily fluids.

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

Sec. 1.  13 V.S.A. § 1028 is amended to read:

§ 1028.  ASSAULT OF LAW ENFORCEMENT OFFICER, FIREFIGHTER, EMERGENCY ROOM PERSONNEL, OR EMERGENCY MEDICAL PERSONNEL MEMBER

A person convicted of a simple or aggravated assault against a law enforcement officer, firefighter, emergency room personnel, or member of emergency services personnel as defined in subdivision 2651(6) of Title 24 while the officer, firefighter, or emergency medical personnel member is performing a lawful duty, in addition to any other penalties imposed under sections 1023 and 1024 of this title, shall:

(1)  For the first offense, be imprisoned not more than one year;

(2)  For the second offense and subsequent offenses, be imprisoned not more than ten years.

And request that the title be amended to read as follows “AN ACT RELATING TO ASSAULTS ON EMERGENCY ROOM PERSONNEL” 


Joint Resolution for Action

J.R.H. 62

     Joint resolution commemorating the observance of 2008 Equal Pay Day.

     (For text of resolution, see Senate Journal of April 23, 2008, page 839.

NOTICE CALENDAR

Favorable with Proposal of Amendment

H. 112

An act relating to protection of health care and public safety personnel from communicable disease.

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

The Committee recommends that the Senate propose to the House to amend the bill in Sec. 1, 18  V.S.A. § 1141, subsection (e), before the period, by adding the following: 

, and may be considered unprofessional conduct under applicable licensing, certification, and registration laws” 

(Committee Vote: 6-0-0)

(For House amendments, see House Journal for February 28, 2008, page 428; March 12, 2008, page 490.)

H. 599

An act relating to boating while intoxicated and driving while intoxicated.

Reported favorably with recommendation of proposal of amendment by Senator Campbell for the Committee on Judiciary.

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

Sec. 1.  LEGISLATIVE INTENT

It is the intent of the general assembly in this act to address, among other issues, the Vermont supreme court’s decisions in State v. LaBounty, 2005 VT 124, and State v. Martin, 2007 VT 96.  In LaBounty, the court held that if more than one person was injured, an offender could be charged with only one count of grossly negligent operation of a motor vehicle with injury resulting.  Similarly, the court held in Martin that if more than one person was killed, an offender could be charged with only one count of boating while intoxicated with death resulting.  In this act, the general assembly responds to Martin and LaBounty by amending several motor vehicle statutes to permit an offender to be charged with a separate count of violating the statute for each person who was killed or injured as a result of the offense.

Sec. 2.  23 V.S.A. § 1091(b) is amended to read:

(b)  Grossly negligent operation.

(1)  A person who operates a motor vehicle on a public highway in a grossly negligent manner shall be guilty of grossly negligent operation.

(2)  The standard for a conviction for grossly negligent operation in violation of this subsection shall be gross negligence, examining whether the person engaged in conduct which involved a gross deviation from the care that a reasonable person would have exercised in that situation.

(3)  A person who violates this subsection shall be imprisoned not more than two years or fined not more than $5,000.00, or both.  If the person has previously been convicted of a violation of this section, the person shall be imprisoned not more than four years or fined not more than $10,000.00, or both.  If serious bodily injury as defined in section 1021 of Title 13 or death of any person other than the operator results, the person shall be imprisoned for not more than 15 years or fined not more than $15,000.00, or both.  If serious bodily injury or death results to more than one person other than the operator, the operator may be convicted of a separate violation of this subdivision for each decedent or person injured.

Sec. 3.  23 V.S.A. § 1133 is amended to read:

§ 1133.  ATTEMPTING TO ELUDE A POLICE OFFICER

(a)  No operator of a motor vehicle shall fail to bring his or her vehicle to a stop when signaled to do so by an enforcement officer:

(1)  displaying insignia identifying him or her as such; or

(2)  operating a law enforcement vehicle sounding a siren and displaying a flashing blue or blue and white signal lamp.

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

(2)(A)  In the event that death or serious bodily injury to any person other than the operator is proximately caused by the operator’s knowing violation of subsection (a) of this section, the operator shall be imprisoned for not more than five years or fined not more than $3,000.00, or both.

(B)  If death or serious bodily injury to more than one person other than the operator is proximately caused by the operator’s knowing violation of subsection (a) of this section, the operator may be convicted of a separate violation of this subdivision for each decedent or person injured.

(c)  In a prosecution under this section, the operator may raise as an affirmative defense, to be proven by a preponderance of the evidence, that the operator brought his or her vehicle to a stop in a manner, time, and distance that was reasonable under the circumstances.

* * *

Sec. 4.  23 V.S.A. § 1201 is amended to read:

§ 1201.  OPERATING VEHICLE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR OTHER SUBSTANCE; CRIMINAL REFUSAL

(a)  A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway:

(1)  when the person’s alcohol concentration is 0.08 or more, or 0.02 or more if the person is operating a school bus as defined in subdivision 4(34) of this title; or

(2)  when the person is under the influence of intoxicating liquor; or

(3)  when the person is under the influence of any other drug or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of driving safely; or

(4)  when the person’s alcohol concentration is 0.04 or more if the person is operating a commercial motor vehicle as defined in subdivision 4103(4) of this title.

* * *

(e)  A person may not be convicted of more than one offense under violation of subsection (a) of this section arising out of the same incident.

* * *

Sec. 5.  23 V.S.A. § 1210 is amended to read:

§ 1210.  PENALTIES

* * *

(e)(1)  Death resulting.  If the death of any person results from a violation of section 1201 of this title, the person convicted of the violation shall be fined not more than $10,000.00 or imprisoned not less than one year nor more than 15 years, or both.  The provisions of this subsection do not limit or restrict prosecutions for manslaughter.

(2)  If the death of more than one person results from a violation of section 1201 of this title, the operator may be convicted of a separate violation of this subdivision for each decedent.

(f)(1)  Injury resulting.  If serious bodily injury, as defined in 13 V.S.A. § 1021(2), results to any person other than the operator from a violation of section 1201 of this title, the person convicted of the violation shall be fined not more than $5,000.00, or imprisoned not less than one year nor more than 15 years, or both.

(2)  If serious bodily injury as defined in 13 V.S.A. § 1021(2) results to more than one person other than the operator from a violation of section 1201 of this title, the operator may be convicted of a separate violation of this subdivision for each person injured.

* * *

Sec. 6.  23 V.S.A. § 3317 is amended to read:

§ 3317.  PENALTIES

* * *

(d)  Boating while intoxicated; privilege suspension.  Any person who is convicted of violating section 3323 of this title shall have his or her privilege to operate a vessel, except a nonmotorized canoe and a nonmotorized rowboat, suspended for a period of one year and until the person complies with section 1209a of this title.

(e)  Boating while intoxicated; criminal penalty.  Any person who violates a provision of section 3323 of this title shall be imprisoned for not more than one year and subject to the following fines:

(1)  for a first offense, not less than $200.00 nor more than $750.00;

(2)  for a second or subsequent offense, not less than $250.00 nor more than $1,000.00.

(f)(1)(A)  Boating while intoxicated; death resulting.  If the death of any person results from the violation of section 3323 of this title, the person convicted shall, instead of any other penalty imposed in this section, be imprisoned not less than one year nor more than five 15 years or fined not more than $2,000.00 $10,000.00,or both; but the provisions of this section shall not be construed to limit or restrict prosecutions for manslaughter.

(B)  If the death of more than one person results from a violation of section 3323 of this title, the operator may be convicted of a separate violation of this subdivision for each decedent.

(2)(A)  Boating while intoxicated; serious bodily injury resulting.  If serious bodily injury, as defined in 13 V.S.A. § 1021(2), results to any person other than the operator from a violation of section 3323 of this title, the person convicted of the violation shall be fined not more than $5,000.00 or imprisoned not more than 15 years, or both.

(B)  If serious bodily injury as defined in 13 V.S.A. § 1021(2) results to more than one person other than the operator from a violation of section 3323 of this title, the operator may be convicted of a separate violation of this subdivision for each person injured. 

* * *

Sec. 7.  23 V.S.A. § 3323 is amended to read:

§ 3323.  OPERATING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; B.W.I.

(a)  A person shall not operate, attempt to operate, or be in actual physical control of a vessel on the waters of this state while:

(1)  there is 0.08 percent or more by weight of alcohol in his or her blood, as shown by analysis of his or her breath or blood; or

(2)  under the influence of intoxicating liquor; or

(3)  under the influence of any other drug or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of operating safely.

* * *

(e)  A person may not be convicted of more than one offense under violation of subsection (a) of this section arising out of the same incident.

Sec. 8.  9 V.S.A. chapter 82 is added to read:

CHAPTER 82.  SCRAP METAL PROCESSORS

§ 3021.  DEFINITIONS

As used in this chapter:

(1)  “Authorized scrap seller” means a licensed plumber, electrician, HVAC contractor, building or construction contractor, demolition contractor, construction and demolition debris contractor, public utility, transportation company, licensed peddler or broker, an industrial and manufacturing company; marine, automobile, or aircraft salvage and wrecking company, or a government entity.

(2)  “Ferrous scrap” means any scrap metal consisting primarily of iron, steel, or both, including large manufactured articles such as automobile bodies that may contain other substances to be removed and sorted during normal processing operations of scrap metal.

(3)  “Metal article” means any manufactured item consisting of metal that is usable for its originally intended purpose without processing, repair, or alteration, including railings, copper or aluminum wire, copper pipe and tubing, bronze cemetery plaques, urns, markers, plumbing fixtures, and cast‑iron radiators.

(4)  “Nonferrous scrap” means any scrap metal consisting primarily of metal other than iron or steel, and does not include aluminum beverage cans, post-consumer household items, items removed during building renovations or demolitions, or large manufactured items containing small quantities of nonferrous metals such as automobile bodies and appliances.

(5)  “Proprietary article” means any of the following:

(A)  Any metal article stamped, engraved, stenciled, or marked as being or having been the property of a governmental entity, public utility, or a  transportation, shipbuilding, ship repair, mining, or manufacturing company.

(B)  Any hard-drawn copper electrical conductor, cable, or wire greater than 0.375 inches in diameter, stranded or solid.

(C)  Any aluminum conductor, cable, or wire greater than 0.75 inches in diameter, stranded or solid.

(D)  Metal beer kegs.

(E)  Manhole covers.

(6)  “Scrap metal” means any manufactured item or article that contains metal.

(7)  “Scrap metal processor” means a person authorized to conduct a business that processes and manufactures scrap metal into prepared grades for sale as raw material to mills, foundries, and other manufacturing facilities.

§ 3022.  PURCHASE OF NONFERROUS SCRAP, METAL ARTICLES, AND PROPRIETARY ARTICLES

(a)  A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles directly from an authorized scrap metal seller or the seller’s authorized agent or employee.

(b)  A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles from a person who is not an authorized scrap metal seller or the seller’s authorized agent or employee, provided the scrap processor complies with all the following procedures:

(1)  At the time of sale, requires the seller to provide a current government-issued photographic identification that indicates the seller’s full name, current address, and date of birth, and records in a permanent ledger the identification information of the seller, the time and date of the transaction, the license number of the seller’s vehicle, and a description of the items received from the seller.  This information shall be retained for at least five years at the processor’s normal place of business or other readily accessible and secure location.  On request, this information shall be made available to any law enforcement official or authorized security agent of a governmental entity who provides official credentials at the scrap metal processor’s business location during regular business hours.

(2)  Requests documentation from the seller of the items offered for sale, such as a bill of sale, receipt, letter of authorization, or similar evidence that establishes that the seller lawfully owns the items to be sold.

(3)  After purchasing an item from a person who fails to provide documentation pursuant to subdivision (2) of this subsection, submits to the local law enforcement agency no later than the close of the following business day a report that describes the item and the seller’s identifying information required in subdivision (1) of this subsection, and holds the proprietary article for at least 15 days following purchase.

§ 3023.  PENALTIES

(a)  A scrap metal processor who violates any provision of this chapter for the first time may be assessed a civil penalty not to exceed $1,000.00 for each transaction.

(b)  A scrap metal processor who violates any provision of this chapter for a second or subsequent time shall be fined not more than $25,000.00 for each transaction.

Sec. 9.  4 V.S.A. § 1102(b) is amended to read:

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

* * *

(14)  Violations of 9 V.S.A. § 3023(a), relating to the purchase and sale of scrap metal.

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for January 22, 2008, page 55.)

H. 685

An act relating to the enforcement of environmental laws.

Reported favorably with recommendation of proposal of amendment by Senator MacDonald for the Committee on Natural Resources and Energy.

The Committee recommends that the Senate propose to the House to amend the bill by striking out Sec. 9 in its entirety and inserting in lieu thereof the following:

Sec. 9.  10 V.S.A. § 8017 is amended to read:

§ 8017.  ANNUAL REPORT

The secretary and the attorney general shall report annually to the president pro tempore of the senate, the speaker of the house, the house committee on fish, wildlife and water resources, and the chairs of the senate and house committees on natural resources and energy.  The report shall be filed no later than January 15, on the enforcement actions taken under this chapter, and on the status of citizen complaints about environmental problems in the state.  The report shall describe, at a minimum, the number of violations, the actions taken, disposition of cases, the amount of penalties collected, and the cost of administering the enforcement program.

(Committee Vote: 4-0-1)

(For House amendments, see House Journal for April 1, 2008, page 808; April 2, 2008, page 824.)

H. 863

An act relating to creation and preservation of affordable housing and smart growth development.

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

The Committee recommends that the Senate propose to the House to amend the bill striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  LEGISLATIVE ACKNOWLEDGMENT

The general assembly gratefully thanks and acknowledges Gregory Brown, the executive director of the Chittenden County regional planning commission for:

(1)  His time, commitment, and tenacity in helping to make the Vermont Neighborhood program a reality. 

(2)  His earlier, equally outstanding efforts that greatly contributed to the creation of the Vermont downtown program. 

(3)  His strong and committed leadership as the executive director of the Chittenden County regional planning commission between March 2003 and July 1, 2008, when he is scheduled to retire.

* * * Vermont Neighborhoods Program * * *

Sec. 2.  24 V.S.A. § 2791(15) is added to read:

(15)  “Vermont neighborhood” means an area of land that is in a municipality with an approved plan, a confirmed planning process, zoning bylaws, and subdivision regulations, and is in compliance with all the following:

(A)  Is located in one of the following:

(i)  A designated downtown, village center, new town center, or growth center.

(ii)  An area of land that is within the municipality and outside but contiguous to a designated downtown, village center, or new town center and is not more than 100 percent of the total acreage of the designated downtown, 50 percent of the village center, or 75 percent of the new town center.

(B)  Contains substantially all the following characteristics:

(i)  its contiguous land, if any, complements the existing downtown district, village center, or new town center by integrating new housing units with existing residential neighborhoods, commercial and civic services and facilities, and transportation networks, and is consistent with smart growth principles;

(ii)  it is served by either a municipal sewer infrastructure or a community or alternative wastewater system approved by the agency of natural resources;

(iii)  it incorporates minimum residential densities of no fewer than four units of single-family, detached dwelling units per acre, and higher densities for duplexes and multi-family housing; and

(iv)  tt incorporates neighborhood design standards that promote compact, pedestrian-oriented development patterns and networks of sidewalks or paths for both pedestrians and bicycles that connect with adjacent development areas.

Sec. 3.  24 V.S.A. § 2793d is added to read:

§ 2793d.  DESIGNATION OF VERMONT NEIGHBORHOODS

(a)  A municipality that has a duly adopted and approved plan and a planning process that is confirmed in accordance with section 4350 of this title, has adopted zoning bylaws and subdivision regulations in accordance with section 4442 of this title, and has a designated downtown district, a designated village center, a designated new town center, or a designated growth center served by municipal sewer infrastructure or a community or alternative wastewater system approved by the agency of natural resources, is authorized to apply for designation of a Vermont neighborhood.  A municipal decision to apply for designation shall be made by the municipal legislative body after at least one duly warned public hearing.  Designation is possible in two different situations:

(1)  Per se approval.  If a municipality submits an application in compliance with this subsection for a designated Vermont neighborhood that would have boundaries that are entirely within the boundaries of a designated downtown district, designated village center, designated new town center, or designated growth center, the downtown board shall issue the designation.

(2)  Designation by downtown board in towns without growth centers.  If an application is submitted in compliance with this subsection by a municipality that does not have a designated growth center and proposes to create a Vermont neighborhood that has boundaries that include land that is not within its designated downtown, village center, or new town center, the expanded downtown board shall consider the application.  This application may be for approval of one or more Vermont neighborhoods that are outside but contiguous to a designated downtown district, village center, or new town center.  The application for designation shall include a map of the boundaries of the proposed Vermont neighborhood, including the property outside but contiguous to a designated downtown district, village center, or new town center and verification that the municipality has notified the regional planning commission and the regional development corporation of its application for this designation. 

(b)  Designation Process.  Within 45 days of receipt of a completed application, the expanded downtown board, after opportunity for public comment, shall designate a Vermont neighborhood if the board finds the applicant has met the requirements of subsections (a) and (c) of this section.  When designating a Vermont neighborhood, the board may change the boundaries that were contained in the application by reducing the size of the area proposed to be included in the designated neighborhood, but may not include in the designation land that was not included in the application for designation.  A Vermont neighborhood decision made by the expanded board is not subject to appeal.  Any Vermont neighborhood designation shall terminate when the underlying downtown, village center, new town center, or growth center designation terminates.

(c)  Designation Standards.  The board shall determine that the applicant has demonstrated all of the following:

(1)  the municipality has a duly adopted and approved plan and a planning process that is confirmed in accordance with section 4350 of this title, and has adopted zoning bylaws and subdivision regulations in accordance with section 4442 of this title;

(2)  the cumulative total of all Vermont neighborhood land located within the municipality but outside a designated downtown district, designated village center, or designated new town center is not more than 100 percent of the total acreage of the designated downtown district, 50 percent of the village center, or 75 percent of the new town center;

(3)  the contiguous land of the Vermont neighborhood complements the existing designated downtown district, village center, or new town center by integrating new housing units with existing residential neighborhoods, commercial and civic services and facilities, and transportation networks, and the contiguous land, in combination with the designated downtown development district, village center, or new town center, is consistent with smart growth principles established under subdivision 2791(13) of this title;

(4)  the Vermont neighborhood shall be served by one of  the following:

(A)  A municipal sewer infrastructure; or

(B)  A community or alternative wastewater system approved by the agency of natural resources; and

(5)  The municipal zoning bylaw requires the following for all land located within the Vermont neighborhood:

(A)  Minimum residential densities shall require all the following:

(i)  No fewer than four units of single-family, detached dwelling units per acre, exclusive of accessory apartments; and

(ii)  Higher density for duplexes and multi-family housing; and

(B)  Neighborhood design standards that promote compact, pedestrian-oriented development patterns that include the following:

(i)  Pedestrian scale and orientation of development.  Networks of sidewalks or paths, or both, are provided and available to the public to connect the Vermont neighborhood with adjacent development areas, existing and planned adjacent sidewalks, paths, and public streets and the designated downtown, village center, or new town center; and

(ii)  Interconnected and pedestrian-friendly street networks.  Street networks are designed to safely accommodate both pedestrians and bicycles through the provisions of sidewalks on at least one side of the street, on-street parking, and traffic-calming features.

(d)  Vermont Neighborhood Incentives for Municipalities and Developers.  Incentives for Vermont neighborhoods include the following:

(1)  The agency of natural resources shall charge no more than a $50.00 fee for wastewater applications under 3 V.S.A. § 2822(j)(4) where the applicant has received an allocation for sewer capacity from an approved municipal system. 

(2)  Act 250 fees under 10 V.S.A. § 6083a for residential developments in Vermont neighborhoods shall be 50 percent of the fee otherwise applicable.  Fifty percent of the reduced fees shall be paid upon application, and 50 percent shall be paid within 30 days of the issuance or denial of the permit.

(3)  Land Gains Tax Exemption.  No land gains tax under chapter 236 of Title 32 shall be levied on a transfer of land in a Vermont neighborhood.

(4)  Municipal Revenue Sharing; Affordable Units. 

     (A)  Affordable Home Ownership.  The municipality in which a designated Vermont neighborhood is located may retain and reallocate 75 percent of the state education tax portion of the property tax on the increased grand list value of the homes and lots for housing units constructed in the Vermont neighborhood that do not exceed the maximum affordable price as determined by the Vermont housing finance agency and that meet the definition of homestead as defined in 32 V.S.A. §5401(7) for a period of three years after the issuance of a certificate of occupancy for the first unit and successive units in the Vermont neighborhood. 

     (B)  Affordable Rental Housing.  The value of rental property constructed in a Vermont neighborhood that is rent restricted to no more than the HUD fair market rents by contract, deed restriction, or other enforceable provision for at least 15 years shall contribute to the tax increment eligible for reallocation to the municipality. 

     (C)  The municipality may retain the reallocation under this subsection provided it is used only to finance municipal infrastructure.

(e)  Length of Designation.  Initial designation of a Vermont neighborhood shall be for a period of five years, after which, the expanded state board shall review a Vermont neighborhood concurrently with the next periodic review conducted of the underlying designated downtown, village center, new town center or growth center, even if the underlying designated entity was originally designated by the downtown board and not by the expanded state board.  However, the expanded board, on its motion, may review compliance with the designation requirements at more frequent intervals.  If at any time the expanded state board determines that the designated Vermont neighborhood no longer meets the standards for designation established in this section, it may take any of the following actions:

(1)   require corrective action within a reasonable time frame;

(2)  remove the Vermont neighborhood designation, with that removal not retroactively affecting any of the benefits already received by the municipality or land owner in the designated Vermont neighborhood; and

(3)  prospectively limiting benefits authorized in this chapter, with the limitation not retroactively affecting any of the benefits already received by the municipality or land owner in the designated Vermont neighborhood.

* * * New Town Center Acreage * * *

Sec. 4.  24 V.S.A. §2793b(b)(2)(A) is amended to read:

(A) A map of the designated new town center. The total area of land encompassed within a designated new town center shall not exceed 125 acres.  In a municipality with a population greater than 15,000, the total area of land encompassed within a designated new town center may include land in excess of 125 acres provided that the additional area is needed to facilitate the redevelopment of predominately developed land in accordance with the smart growth principles defined under subdivision 2791(13) of this title.

* * * Codifying Agency of Natural Resources Incentives * * *

Sec. 5.  3 V.S.A. § 2822(j)(4)(D) is amended to read:

(D)  Notwithstanding the other provisions of this subdivision,:

* * *

(ii)  when a potable water supply is subject to the fee provisions of this subdivision and subdivision (j)(7)(A) of this section, only the fee required by subdivision (j)(7)(A) shall be assessed; and

(iii)  when a project is subject to the fee provision for the subdivision of land and the fee provision for potable water supplies and wastewater systems of this subdivision, only the higher of the two fees shall be assessed; and

(iv)  when a project is located in a Vermont neighborhood, as designated under 24 V.S.A. chapter 76A, the fee shall be no more than $50.00 in situations in which the application has received an allocation for sewer capacity from an approved municipal system.

* * * Act 250 Provisions * * *

Sec. 6.  10 V.S.A. § 6001(3)(B) and (C) are amended to read:  

(3)(A)  “Development” means:

* * *

(B)(i)  Smart Growth Jurisdictional Thresholds.  Notwithstanding the provisions of subdivision (3)(A) of this section, if a project consists exclusively of any combination of mixed income housing or mixed use and is located entirely within a growth center designated pursuant to 24 V.S.A. § 2793c or within a downtown development district designated pursuant to 24 V.S.A. § 2793, “development” means:

(i)(I)  Construction of mixed income housing with 100 200 or more housing units or a mixed use project with 100 200 or more housing units, in a municipality with a population of 20,000 15,000 or more.

(ii)(II)  Construction of mixed income housing with 50 100 or more housing units or a mixed use project with 50 100 or more housing units, in a municipality with a population of 10,000 or more but less than 20,000 15,000.

(iii)(III)  Construction of mixed income housing with 30 50 or more housing units or a mixed use project with  30 50 or more housing units, in a municipality with a population of 5,000 6,000 or more and less than 10,000.

(iv)(IV)  Construction of mixed income housing with 25 30 or more housing units or a mixed use project with 25 30 or more housing units, in a municipality with a population of 3,000 or more but less than 5,000 6,000.

(v)(V)  Construction of mixed income housing with 25 or more housing units or a mixed use project with 25 or more housing units, in a municipality with a population of less than 3,000.

(VI)  Historic Buildings.  Construction of 10 or more units of mixed income housing or a mixed use project with 10 or more housing units where the construction involves the demolition of one or more buildings that are listed on or eligible to be listed on the state or national register of historic places.  However, demolition shall not be considered to create jurisdiction under this subdivision if the division for historic preservation has determined the proposed demolition will have: no adverse effect; no adverse effect provided that specified conditions are met; or, will have an adverse effect, but that adverse effect will be adequately mitigated.  Any imposed conditions shall be enforceable through a grant condition, deed covenant, or other legally binding document.

(ii)  Notwithstanding the jurisdictional provisions of subdivision (3)(A) of this section, the higher jurisdictional thresholds set forth in subdivision 3(B)(i) of this section shall apply if a project consists exclusively of mixed income housing located entirely within a Vermont neighborhood designated pursuant to 24 V.S.A. § 2793d(a)(2).  In a designated downtown and in a designated growth center, the higher jurisdictional thresholds in subdivision 3(B)(i) shall apply to a project that consists exclusively of any combination of mixed income housing or mixed use and is located entirely within a growth center designated pursuant to 24 V.S.A. § 2793c or within a downtown development district designated pursuant to 24 V.S.A. § 2793.

(C)  For the purposes of determining jurisdiction under subdivisions (3)(A) and (3)(B) of this section:

(i)  Housing units constructed by a person partially or completely outside a designated downtown development district or designated growth center shall not be counted to determine jurisdiction over housing units constructed by a person entirely within a designated downtown development district or designated growth center.

(ii)  Five Year, Five Mile Jurisdiction Threshold.  Within any continuous period of five years, housing units constructed by a person located entirely within a designated downtown district or, designated growth center, or designated Vermont neighborhood shall be counted together with housing units constructed by a that person located partially or completely outside a designated downtown development district or, designated growth center, or designated Vermont neighborhood to determine jurisdiction over the housing units constructed by a person partially or completely outside the designated downtown development district or, designated growth center, or designated Vermont neighborhood and within a five-mile radius.

(iii)  Each Project Stands Alone.  All housing units constructed by a person within a designated downtown development district or, designated growth center within any continuous period of five years, commencing on or after the effective date of this subdivision, or designated Vermont neighborhood shall be counted together, but only if the housing units are part of a discrete project located on a single tract or multiple contiguous tracts of land.

* * *

(v)  Per Project Increased Thresholds for Land Subdivision in Vermont Neighborhood; Per Project Threshold for Permanently Affordable Housing.  Notwithstanding subdivision (C)(iii) of this subdivision (3), any affordable housing units, as defined by this section, (3)(A)(iv) and subdivision (19) of this section, jurisdiction shall be determined exclusively by counting housing units, and when counting housing units to determine jurisdiction, only housing units in a discrete project on a single tract or multiple contiguous tracts of land shall be counted, regardless of whether located within an area designated under 24 V.S.A. chapter 76A, provided that the housing units are affordable housing units, as defined by this section, that are subject to housing subsidy covenants as defined in 27 V.S.A. § 610 that preserve their affordability for a period of 99 years or longer, and that are constructed by a person within a designated downtown development district, designated village center, or designated growth center, shall count toward the total number of housing units used to determine jurisdiction only if they were constructed within the previous 12-month period, commencing on or after the effective date of this subdivision.

* * *  Rules on Mixed Income Housing * * *

Sec. 7.  10 V.S.A. § 6001(27) is amended to read:

(27)  “Mixed income housing” means a housing project in which at least 15 percent of the total housing units are affordable housing units:

(A)  Owner occupied Housing.  Owner-occupied housing, the purchase price of which does not at the time of first sale exceed the new construction, targeted area purchase price limits established and published annually by the Vermont housing finance agency; or

(B)  Affordable Rental Housing.  Housing that is rented by the occupants whose gross annual household income does not exceed 60 percent of the county median income, or 60 percent of the standard metropolitan statistical area income if the municipality is located in such an area, as defined by the United States Department of Housing and Urban Development for use with the Housing Credit Program under Section 42(g) of the Internal Revenue Code, and the total annual cost of the housing, as defined at Section 42(g)(2)(B) is not more than 30 percent of the gross annual household income as defined at Section 42(g)(2)(C), and with a duration of affordability of no less than 15 years.

* * * Act 250 Fees In Vermont Neighborhood * * *

Sec. 8.  10 V.S.A. § 6083a(d) is amended to read:

(d)  Vermont Neighborhood Fees.  Fees for residential development in a Vermont neighborhood designated according to 24 V.S.A. §2793d shall be no more than 50 percent of the fee otherwise charged under this section, with 50 percent due with the application, and 50 percent due within 30 days after the permit is issued or denied.

* * * Chapter 117 Conditional Use Appeals * * *

Sec. 9.  24 V.S.A. § 4471(e) is added to read:

(e)  Vermont Neighborhood.  Notwithstanding subsection (a) of this section, a determination by an appropriate municipal panel shall not be subject to appeal if the determination is that a proposed residential development within a designated downtown development district, designated growth center, or designated Vermont neighborhood seeking conditional use approval will not result in an undue adverse effect on the character of the area affected, as provided in subdivision 4414(3)(A)(ii) of this title.

* * * Report * * *

Sec. 10.  REPORT ON POLLUTION CONTROL SYSTEM

By no later than January 15, 2009, the secretary of natural resources shall report to the legislative committees on natural resources and energy with regard to the agency’s implementation of and compliance with the municipal pollution control priority system rules, and as to the impact of these rules on development.

* * * VHFA Sunset Repeal * * *

Sec. 11.  10 V.S.A. § 625(1) is amended to read:

(1)  The residential housing is primarily for occupancy by persons and families of low and moderate income, or qualifies for financing with proceeds of federally tax-exempt obligations, or at least 20 percent of the units are for occupancy by persons and families of low and moderate income;

* * * Land Gains Tax * * *

Sec. 12.  32 V.S.A. § 10002(p) is added to read:

(p)  Vermont Neighborhood.  Also excluded from the definition of “land” is any land in a Vermont neighborhood designated in accordance with 24 V.S.A. § 2793d.

* * * Housing Tax Credit * * *

Sec. 13.  32 V.S.A. § 5930u is amended to read:

§ 5930u.  TAX CREDIT FOR AFFORDABLE HOUSING

(a)  As used in this section:

(1)  “Affordable housing project” or “project” means a rental housing project identified in 26 U.S.C. § 42(g) or owner-occupied housing identified in 26 U.S.C. § 143(e) and (f) and eligible under the Vermont housing finance agency allocation plan criteria.

* * *

(9)  “Allocation plan” means the plan recommended by the committee and approved by the Vermont housing finance agency, which sets forth the eligibility requirements and process for selection of eligible housing projects to receive affordable housing tax credits under this section.  The allocation plan shall include requirements for creation and retention of affordable housing for low income persons, and requirements to ensure that eligible housing is maintained as affordable by subsidy covenant, as defined in 27 V.S.A. § 610 on a perpetual basis, and meets all other requirements of the Vermont housing finance agency related to affordable housing.

(b)(1)  Affordable housing credit allocation.  Prior to the placement of an affordable housing project in service, the owner, or a person having the right to acquire ownership of a building, may apply to the committee for an allocation of affordable housing tax credits under this section.  The committee shall advise the allocating agency on an affordable housing tax credit application based upon published priorities and criteria.  An eligible applicant may apply to the allocating agency for an allocation of affordable housing tax credits under this section related to an affordable housing project authorized by the allocating agency under the allocation plan.  In the case of a specific affordable rental housing project, the eligible applicant must also be the owner or a person having the right to acquire ownership of the building and must apply prior to placement of the affordable housing project in service.  In the case of owner-occupied housing units, the applicant must apply prior to purchase of the unit and must ensure that the allocated funds will be used to ensure that the housing qualifies as affordable for all future owners of the housing.  The allocating agency shall issue a letter of approval if it finds that the applicant meets the priorities, criteria, and other provisions of subdivision (2) of this subsection.  The burden of proof shall be on the applicant.

(2)  Upon receipt of a completed application, an allocation of affordable housing tax credits with respect to a project under this section shall be granted to an applicant, provided the applicant demonstrates to the satisfaction of the committee all of the following:

(A)  The owner of the project has received from the allocating agency a binding commitment for, a reservation or allocation of, an out-of-cap determination letter for, Section 42 credits, or meets the requirements of the allocation plan for development of units to be owner-occupied;

(B)  The project has received community support.

* * *

(g)  In any fiscal year, the allocating agency may award up to $400,000.00 in total first-year credit allocations to all applicants under this subchapter for rental housing projects; and may award up to $100,000.00 per year for owner‑occupied unit applicants.  In any fiscal year, total first-year allocations plus succeeding-year deemed allocations shall not exceed $2,000,000.00 $2,500.000.00.

* * * Property Transfer Tax * * *

Sec. 14.  32 V.S.A. § 9602(1) is amended to read:

A tax is hereby imposed upon the transfer by deed of title to property located in this state.  The amount of the tax equals one and one quarter one-quarter percent of the value of the property transferred, or $1.00, whichever is greater, except as follows:

(1)  with respect to the transfer of property to be used for the principal residence of the transferee:  the tax shall be imposed at the rate of five-tenths of one percent of the first $100,000.00 in value of the property transferred and at the rate of one and one quarter one-quarter percent of the value of the property transferred in excess of $100,000.00; except that no tax shall be imposed on the first $110,000.00 in value of the property transferred if the purchaser obtains a purchase money mortgage funded in part with a homeland grant through the Vermont housing and conservation trust fund or which the Vermont housing and finance agency or U.S. Department of Agriculture and Rural Development has committed to make or purchase and tax at the rate of one and one-quarter percent shall be imposed on the value of that property in excess of $110,000.00.

Sec. 15. 24 V.S.A. § 2792(a) is amended to read:

(a)  A "Vermont downtown development board," also referred to as the "state board," is created to administer the provisions of this chapter. The state board members shall be composed of the following permanent members, or their designees:

(1)  The secretary of commerce and community development;.

(2)  The secretary of transportation;.

(3)  The secretary of natural resources;.

(4)  The secretary of human services;

(5)  The commissioner of public safety;.

(6)  The commissioner of housing and community affairs; and

(5)  A person appointed by the governor from a list of three names submitted by the Vermont Natural Resources Council, the Preservation Trust of Vermont, and Smart Growth Vermont.                  

(6)  A person appointed by the governor from a list of three names submitted by the Association of Chamber Executives.               

(7)  Three public members representative of local government, one of whom shall be designated by the Vermont league of cities and towns, and two shall be appointed by the governor.

Sec. 16.  SMART GROWTH; STUDY COMMITTEE

(a)  A smart growth study committee is created to:

(1)  Study Act 250 (10 V.S.A. § 6086) criterion 5, relating to traffic, criterion 9(H), relating to scattered development, and criterion 9(L), relating to rural development, to determine the effectiveness of those criteria to promote compact settlement patterns and prevent sprawl and to make recommendations to improve the effectiveness of those criteria in preserving the economic vitality of Vermont’s existing settlements and preventing sprawl development.

(2)  Evaluate the development potential of existing designated downtowns new town centers and village centers to determine if their size and the land area immediately surrounding them are adequate to accommodate additional housing in Vermont neighborhoods.  If more flexibility is needed to promote needed housing development, evaluate the community and natural resource impacts of developing those lands.

(3)  Make recommendations for incentives designed to encourage municipalities to develop Vermont neighborhoods and new housing.

(b)  The committee shall be composed of the following 12 members:

(1)  Two members of the house, one from the committee on general, housing and military affairs and one from the committee on natural resources and energy, appointed by the speaker of the House;

(2)  Two members of the senate, one from the committee on economic development, housing and general affairs and one from the committee on natural resources and energy, appointed by the President pro tempore;    

(3)  A representative from each of the following organizations: 

(A)  Vermont Homebuilders and Remodelers Association.

(B)  Lake Champlain Regional Chamber of Commerce.

(C)  a municipal planner appointed by Vermont Planners Association.

(D)  A regional planner appointed by Vermont Association of Planning and Development Agencies.

(E)  Smart Growth Vermont.

(F)  Vermont Natural Resources Council.

(G)  Vermont Natural Resources Board.

(H)  Vermont Association of Realtors.

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

(d)   The chair shall be elected from any of the four legislative members by the members of the study committee from among the four legislative members.  The committee shall meet as needed, and the legislative council shall provide administrative support. 

(e)  The committee shall issue a brief report on its findings and recommendations and draft legislation to the house committees on general, housing and military affairs and on natural resources and energy and the senate committees on economic development, housing and general affairs and on natural resources and energy on or before January 15, 2009. 

* * * State Surplus Land Inventory * * *

Sec. 17.  STATE SURPLUS LAND IN CLOSE PROXIMITY TO OR WITHIN A DOWNTOWN, VILLAGE CENTER, OR NEW TOWN CENTER; INVENTORY AND PROGRAM PROPOSALS 

(a)  The secretary of commerce and community affairs, in consultation with Vermont housing finance agency, the Vermont housing and conservation board, and any other interested parties, shall:

(1)  Compile an inventory of state lands deemed to be surplus to state needs and located in close proximity to or within a designated downtown, a designated village center, a designated new town center or a designated growth center that would be appropriate for developing housing that meets the community housing needs.

(2)  Develop program recommendations for the use of suitable state surplus land that will ensure that housing development on this land includes a substantial amount of affordable housing, including permanently affordable housing.

(3)  Recommend processes and mechanisms for transfer of the land to assure its use for housing development whether by outright sale, long-term lease, or some other appropriate mechanism.

(b)  On or before January 15, 2009, the secretary of commerce and community development shall issue a report that includes an inventory of state surplus land and recommendations developed pursuant to the goals of subsection (a) of this section.  The report shall be provided to the house committees on corrections and institutions and on general, housing and military affairs and the senate committees on institutions and on economic development, housing and general.

* * * VHFA Economic Stimuli * * *

Sec. 18.  3 V.S.A. § 523(e) is amended to read:

(e)  The committee may formulate policies and procedures deemed necessary and appropriate to carry out its functions.  Notwithstanding the foregoing, the committee shall consider, consistent with chapter 147 of Title 9, subsection 472a(b) of this title, 16 V.S.A. § 1943a(b), and 24 V.S.A. § 5063a(b), investing up to $17,500,000.00 with the Vermont housing finance agency to assist in its homeownership financing programs for persons and families of low and moderate income as defined in 10 V.S.A. § 601(11).

Sec. 19.  INVESTMENT OF STATE MONEYS

The treasurer is hereby authorized to establish a short-term credit facility for the Vermont housing finance agency in an amount of up to $30,000,000.00 to be used as interim financing for its homeownership mortgage loan program as authorized under chapter 25 of Title 10.

Sec. 20.  10 V.S.A. § 632(d) is amended to read:

(d)  In order to assure the maintenance of the debt service reserve requirement in each debt service reserve fund established by the agency, there may be appropriated annually and paid to the agency for deposit in each such fund, such sum as shall be certified by the chair of the agency, to the governor or the governor-elect, the president of the senate, and the speaker of the house, as is necessary to restore each such debt service reserve fund to an amount equal to the debt service reserve requirement for such fund.  The chair shall annually, on or about February 1, make and deliver to the governor or the governor-elect, the president of the senate, and the speaker of the house, his or her certificate stating the sum required to restore each such debt service reserve fund to the amount aforesaid, and the sum so certified may be appropriated, and if appropriated, shall be paid to the agency during the then current state fiscal year.  The principal amount of bonds or notes outstanding at any one time and secured in whole or in part by a debt service reserve fund to which state funds may be appropriated pursuant to this subsection shall not exceed $125,000,000.00 $155,000,000.00, provided that the foregoing shall not impair the obligation of any contract or contracts entered into by the agency in contravention of the Constitution of the United States of America.

* * * Effective Dates, Transitional Provisions, and Sunset * * *

Sec 20.  TRANSITIONAL PROVISION

The owner or applicant of any undeveloped land located in a designated approved Vermont neighborhood that was previously subject to a land use permit for residential development under chapter 151 of Title 10 as of the effective date of this act, shall have the option of proceeding in accordance with the provisions of 24 V.S.A. §2793d and not those required by any issued land use permit.

Sec. 21.  EFFECTIVE DATES; SUNSET

This act shall take effect on passage except that:

(1)  Sec. 11 (VHFA Sunset Repeal) of this act shall take effect on July 1, 2008, at which time the prospective repeal provisions of Sec. 7a of No. 189 of the Acts of the 2005 Adj. Sess. (2006) shall have no force or effect.

(2)  Sec. 13 (VHFA Home Ownership Tax Credit) of this act, amending 32 V.S.A. § 5930u, shall take effect July 1, 2008, and shall thereafter.

(3)  Sec. 14 (Low Income Home Ownership Program) of this act, amending 32 V.S.A. § 9602, shall apply to transfers on or after July 1, 2008.

(4)  Sec. 19 (Short Term Loan form State Treasury to VHFA) of this act shall expire on June 30, 2009.

And after passage, the title of the bill is to be amended to read:

     AN ACT RELATING TO CREATING VERMONT NEIGHBORHOODS AND ENCOURAGING SMART GROWTH DEVELOPMENT.

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for March 18, 2008, page 560; March 19, 2008, page 625.)


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. 108

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

PENDING QUESTION:  Shall the bill pass, notwithstanding the refusal of the Governor to approve the bill?

H. 331

An act relating to financing the purchase of a mobile home.

PENDING ACTION:  Second reading of the bill.

H. 332

An act relating to sale and closure of mobile home parks.

PENDING ACTION:  Second reading of the bill.

J.R.S. 24

Joint resolution relating to the federal “fast track” process for congressional review of international trade agreements.

PENDING ACTION:  Second reading of the resolution.

Concurrent Resolutions

     The following concurrent resolutions have been introduced for approval by the Senate and House and will be adopted automatically unless a Senator or Representative requests floor consideration before the end of the session of the next legislative day.  Requests for floor consideration in either chamber should be communicated to the Secretary’s office and/or the House Clerk’s office, respectively.

S.C.R. 54

     Senate concurrent resolution honoring Robert Stiller for his entrepreneurial achievements and vision.


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

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.

Richard G. Grassi of White River Junction - Member of the Parole Board - By Sen. Campbell for the Committee on Institutions.  (4/4)

Heather Shouldice of East Calais - Member of the Capitol Complex Commission - By Sen. Coppenrath for the Committee on Institutions.  (4/4)

Susan Hayward of Middlesex - Member of the Capitol Complex Commission - By Sen. Scott for the Committee on Institutions.  (4/4)

Dean George of Middlebury - Member of the Parole Board - By Sen. Mazza for the Committee on Institutions.  (4/4)

Stephanie O’Brien of South Burlington - Member of the Liquor Control. Board - By Sen. Condos for the Committee on Economic Development, Housing and General Affairs.  (4/24)

John P. Cassarino of Rutland - Member of the Liquor Control Board - By Sen. Carris for the Committee on Economic Development, Housing and General Affairs.  (4/24)

Walter E. Freed of Dorset - Member of the Liquor Control Board - By Sen. Illuzzi for the Committee on Economic Development, Housing and General Affairs.  (4/24)

Richard W. Park of Williston - Member of the State Labor Relations Board - By Sen. Racine for the Committee on Economic Development, Housing and General Affairs.  (4/24)

James Kiehle of Brattleboro - Member of the State Labor Relations Board - By Sen. Carris for the Committee on Economic Development, Housing and General Affairs.  (4/24)

James J. Dunn, Esq. of South Burlington - Member of the State Labor Relations Board - By Sen. Condos for the Committee on Economic Development, Housing and General Affairs.  (4/24)

Leonard J. Berliner of Quechee - Member of the State Labor Relations Board.  By Sen. Illuzzi for the Committee on Economic Development, Housing and General Affairs.  (4/24)

FOR INFORMATION PURPOSES

H. 887 - An Act Relating To Health Care Reform

Text of Report of Committee on Health and Welfare:

The Committee on Health and Welfare to which was referred House Bill No. 887, entitled “AN ACT RELATING TO HEALTH CARE REFORM”

respectfully reports that it has considered the same and recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

* * * Expanding Affordable Coverage * * *

Sec. 1.  8 V.S.A. § 4080a(h)(2)(B) is amended to read:

(B)  The commissioner’s rules shall permit a carrier, including a hospital or medical service corporation and a health maintenance organization, to establish rewards, premium discounts, split benefit designs, rebates, or otherwise waive or modify applicable co-payments, deductibles, or other cost‑sharing amounts in return for adherence by a member or subscriber to programs of health promotion and disease prevention.  The commissioner shall consult with the commissioner of health, the director of the blueprint for health, and the director of the office of Vermont health access in the development of health promotion and disease prevention rules that are consistent with the Blueprint for Health.  Such rules shall:

* * *

(iii)  provide that the reward under the program is available to all similarly situated individuals and shall comply with the nondiscrimination provisions of the federal Health Insurance Portability and Accountability Act of 1996; and

* * *

Sec. 2.  EXPEDITED RULEMAKING

No later than January 1, 2009 and notwithstanding the provisions of chapter 25 of Title 3, the department of banking, insurance, securities, and health care administration shall adopt rules to implement the healthy lifestyle insurance discount and split benefit design established in subsection 4080a(h) of Title 8.  The rules for the split benefit design shall include provisions that promote good health, prevent disease, and encourage healthier lifestyles without penalizing individuals due to disability, poor health, or socioeconomic status.  The department shall adopt the rules pursuant to the following expedited rulemaking process:

(1)  After publication in three daily newspapers with the highest average circulation in the state of a notice of the rules to be adopted pursuant to this process and at least a 14-day public comment period following publication, the department shall file final proposed rules with the legislative committee on administrative rules.

(2)  The legislative committee on administrative rules shall review and may approve or may object to the final proposed rules under section 842 of Title 3, except that its action shall be completed by the committee no later than 14 days after the final proposed rules are filed with the committee.

(3)  The department may adopt a properly filed final proposed rule:

(A)  after the passage of 14 days from the date of filing final proposed rules with the legislative committee on administrative rules;

(B)  after receiving notice of approval from the committee; or

(C)  if the department has received a notice of objection from the legislative committee on administrative rules, after having responded to the objection from the committee pursuant to section 842 of Title 3.

(4)  Rules adopted under this section shall be effective upon being filed with the secretary of state and shall have the full force and effect of rules adopted pursuant to chapter 25 of Title 3.  Rules filed by the department with the secretary of state pursuant to this section shall be deemed to be in full compliance with section 843 of Title 3 and shall be accepted by the secretary of state if filed with a certification by the commissioner of banking, insurance, securities, and health care administration that the rule is required to meet the purposes of this section.

Sec. 3.  EXPANDING ACCESS TO CATAMOUNT HEALTH

(a)  No later than March 1, 2009, the secretary of human services shall apply to the federal Centers for Medicare and Medicaid Services for a waiver amendment to allow Vermont to lower the waiting period for coverage under Catamount Health and the Vermont health access plan to six months from the current 12 months.  Within 60 days following approval of the waiver, the secretary of administration shall submit to the commission on health care reform created pursuant to section 901 of Title 2 a recommendation on whether to proceed with reducing the waiting period.  Upon receipt of the secretary’s recommendation, the commission on health care reform shall consider:

(1)  the availability of resources;

(2)  issues surrounding implementation; and

(3)  potential benefits to the health care system.

(b)  The commission on health care reform shall make a recommendation to the senate committees on health and welfare and on appropriations and the house committees on health care and on appropriations on whether to proceed with or delay implementation of the reduction in the waiting period.  The committees shall present their recommendations to the general assembly, which shall make a determination whether to proceed with implementation of the reduced waiting period.

Sec. 4.  8 V.S.A. § 4080f(a)(9) is amended to read: 

(9)  “Uninsured” means an individual who does not qualify for Medicare, Medicaid, the Vermont health access plan, or Dr. Dynasaur, and:  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,; who has had a nongroup health insurance plan with an annual deductible of no less than $10,000.00 for an individual or an annual deductible of no less than $20,000.00 for two‑person or family coverage for at least six months; or who 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, including a reduction in hours that results in ineligibility for employer-sponsored coverage, unless the employer has terminated its employees or reduced their hours 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 receiving coverage 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- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, decreased enrollment below a threshold set for continued coverage, or otherwise terminated studies.

Sec. 5.  33  V.S.A. § 1983 is amended to read: 

§ 1983.  Eligibility

(a)(1)  Except as provided in subdivisions (3), and (4), and (5) of this subsection, an individual shall be eligible for Catamount Health assistance if the individual is an uninsured Vermont resident without access to an approved employer-sponsored insurance plan under section 1974 of this title.

* * *

(5)  An individual shall not be eligible for Catamount Health assistance for the first 12 months of coverage if the individual is solely eligible under the high deductible standard outlined in 8 V.S.A. § 4080f(a)(9).

Sec. 6.  33 V.S.A. § 1973(e) is amended to read: 

(e)  For purposes of this section, “uninsured” means:

(1)  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 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 individual who lost private insurance or employer-sponsored coverage during the prior 12 months for the following reasons:

(A)  the individual’s coverage ended because of:

(i)  loss of employment, including a reduction in hours that results in ineligibility for employer-sponsored coverage, unless the employer has terminated its employees or reduced their coverage 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 receiving coverage 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- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, decreased enrollment below a threshold set for continued coverage, or otherwise terminated studies.

(4)  An individual who was eligible for Catamount Health solely under the high deductible standard outlined in 8 V.S.A. § 4080f(a)(9) shall not be eligible for VHAP for the first 12 months of coverage.

Sec. 7.  33 V.S.A. § 1974 is amended to read: 

* * *

(b) VHAP-eligible premium assistance.

* * *

(6)  An individual shall not be eligible for premium assistance for the first 12 months of coverage if the individual is solely eligible under the high deductible standard outlined in 8 V.S.A. § 4080f(a)(9).

* * *

(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 private insurance or employer-sponsored coverage ended because of:

(I)  loss of employment, including a reduction in hours that results in ineligibility for employer-sponsored coverage, unless the employer has terminated its employees or reduced their hours 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 receiving coverage 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- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, decreased enrollment below a threshold set for continued coverage, or otherwise terminated studies.

* * *

(3) The premium assistance program under this subsection shall provide a subsidy of premiums or cost-sharing amounts based on the household income of the eligible individual, with greater amounts of financial assistance provided to eligible individuals with lower household income and lesser amounts of assistance provided to eligible individuals with higher household income. Until an approved employer-sponsored plan is required to meet the standard in subdivision (4)(B)(ii) of this subsection, the subsidy shall include premium assistance and assistance to cover cost-sharing amounts for chronic care health services covered by the Vermont health access plan that are related to evidence-based guidelines for ongoing prevention and clinical management of the chronic condition specified in the blueprint for health in section 702 of Title 18. Notwithstanding this subsection, an individual shall not be eligible for premium assistance for the first 12 months of coverage if the individual is solely eligible under the high deductible standard outlined in 8 V.S.A. § 4080f(a)(9).

* * *

Sec. 8.  33 V.S.A. § 1982(2) is amended to read: 

(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, including a reduction in hours that results in ineligibility for employer-sponsored coverage, unless the employer has terminated its employees or reduced their hours 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 receiving coverage 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- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, decreased enrollment below a threshold set for continued coverage, or otherwise terminated studies.

* * * Preexisting Conditions under Catamount Health * * *

Sec. 9.  8 V.S.A. § 4080f(e) is amended to read:

(e)(1)  For a 12‑month period from the effective date of coverage earliest date of application, a carrier offering Catamount Health may limit coverage of preexisting conditions which existed during the 12‑month period before the effective date of coverage earliest date of application, except that such exclusion or limitation shall not apply to chronic care if the individual is participating in a chronic care management program, nor apply to pregnancy.  A carrier shall waive any preexisting condition provisions for all individuals and their dependents who produce evidence of continuous creditable coverage during the previous nine months.  If an individual has a preexisting condition excluded under a subsequent policy, such exclusion shall not continue longer than the period required under the original contract or 12 months, whichever is less.  The carrier shall credit prior coverage that occurred without a break in coverage of 63 days or more.  A break in coverage shall be tolled after the earliest date of application, subject to reasonable time limits, as defined by the commissioner, for the individual to complete the application process.  For an eligible individual, as such term is defined in Section 2741 of Title XXVII of the Public Health Service Act the Health Insurance Portability and Accountability Act of 1996, a carrier offering Catamount Health shall not limit coverage of preexisting conditions.

(2)  Notwithstanding subdivision (1) of this subsection, a carrier offering Catamount Health shall not limit coverage of preexisting conditions for subscribers who apply before November 1, 2008.  This subdivision (2) shall not apply to claims incurred prior to the effective date of this section.

* * * 75 Percent Rule * * *

Sec. 10.  8 V.S.A. § 4080a(l) is amended to read:

(l)(1)  A registered small group carrier which is not a nonprofit health maintenance organization shall may require that at least 75 percent or less of the employees or members of a small group with more than 10 employees participate in the carrier’s plan, provided that if a nonprofit health maintenance organization provides a small group plan to more than 25 percent of the employees or members of the small group, a registered small group carrier may offer or continue to provide its small group plan to the remaining employees or members.  A registered small group carrier may require that 50 percent or less of the employees or members of a small group with 10 or fewer employees or members participate in the carrier’s plan.  A small group carrier’s rules established pursuant to this subsection shall be applied to all small groups participating in the carrier’s plans in a consistent and nondiscriminatory manner.

(2)  For purposes of this requirement the requirements set forth in subdivision (1) of this subsection (l), the a registered small group carrier shall not include in its calculation an employee or member who is already covered by another group health benefit plan as a spouse or dependent or who is enrolled in Catamount Health, Medicaid, the Vermont health access plan, or Medicare.  Employees or members of a small group who are enrolled in the employer’s plan and receiving premium assistance under chapter 19 of Title 33 shall be considered to be participating in the plan for purposes of this section.  If the small group is an association, trust, or other substantially similar group, this the participation requirement requirements shall be calculated on an employer-by-employer basis.

(3)  A small group carrier may not require recertification of compliance with the participation requirements set forth in this section more often than annually at the time of renewal.  If, during the recertification process, a small group is found not to be in compliance with the participation requirements, the small group shall have 120 days to become compliant prior to termination of the plan.

* * * Preventing Chronic Conditions Through Healthy Lifestyles * * *

Sec. 11.  COMMUNITY PLANS

The commissioner of health, through the 12 district health offices, shall work with communities in each region to develop comprehensive plans that identify and prioritize community needs relating to wellness and healthy living.  The 12 district health offices shall involve schools, worksites, and other stakeholders interested in improving community health and shall consult existing sources of community‑level population health data.  In drafting the plans, the commissioner shall work with community stakeholders to develop an inventory of policy and environmental supports related to wellness and healthy living.  Such plans shall be made available to the public. 

Sec. 12.  18 V.S.A. § 104b is amended to read:

§ 104b.  COMMUNITY HEALTH AND WELLNESS GRANTS

(a)  The commissioner shall establish a program for awarding competitive, substantial, multi-year grants to comprehensive community health and wellness projects.  Successful projects must:

* * *

(4)  use strategies that have been demonstrated to be effective in reaching the desired outcome; and

(5)  provide data for evaluating and monitoring progress;

(6)  include a plan for ensuring that all food vending machines located in public buildings within the control of the grant recipient contain foods and portion sizes consistent with the Vermont nutrition and fitness policy guidelines or other relevant science-based resources; and

(7)  address socioeconomic or other barriers that stand in the way of fit and healthy lifestyles in their communities.

(b)  The commissioner, through the 12 district health offices, shall assist communities by:

(1)  providing technical assistance to support communities in following a consistent and coordinated approach to planning and implementation, including practices such as needs assessment, defined priorities, action plans, and evaluation;

(2)  providing access to best and promising practices and approved public policies;

(3)  providing assistance to help communities develop public awareness materials and communication tools with well-researched and well-coordinated messaging;

(3) (4)  helping projects communities obtain and maximize funding from all applicable sources; and

(4)(5)  providing other assistance as appropriate.

* * *

(e)  By January 15 1 of each year, the commissioner shall report on the status of the program to the general assembly, the senate committee on health and welfare, and the house committees on human services and on health care by including a section on prevention grants in the annual report of the Blueprint for Health.

* * *

Sec. 13.  INVENTORY OF COORDINATED SCHOOL HEALTH PROGRAMS

The commissioner of health, in collaboration with the commissioner of education and the secretaries of agriculture, food and markets and of transportation, shall compile an inventory of all programs both inside and outside the agencies and departments that award grants or similar funding and that provide technical assistance to supervisory unions and school districts to address issues such as nutrition and physical activity (both indoor and outdoor) for students and staff, obesity, tobacco use, and substance abuse.  The inventory shall include for each program a description of the program purposes, priorities, and any restrictions on the use of funds or technical assistance.  The inventory shall be accompanied by recommendations on how state agencies and other state funding sources may improve coordination of grant awards and technical assistance for school health initiatives and how to work with school districts with a more comprehensive and coordinated approach to planning and implementation, including practices such as needs assessment, defined priorities, action plans, and evaluations and the involvement of school health teams and school health coordinators in community planning efforts.  The recommendations shall also propose a coordinated process for awarding grants to support school health, such as coordination or integration with the community grants process in section 104b of Title 18.  The inventory and recommendations must be submitted to the senate committees on health and welfare and education, the house committees on health care, on human services, and on education, and made available on the internet for review by town offices and school districts, no later than January 15, 2009.

Sec. 14.  NUTRITION GUIDELINES FOR COMPETITIVE FOOD AND BEVERAGE SALES IN SCHOOLS

(a)  The commissioner of education shall collaborate with the commissioner of health and the secretary of agriculture, food and markets to update the current Vermont nutrition policy guidelines applicable to competitive foods and beverages sold outside the federally reimbursable school nutrition programs.  The revised guidelines shall rely on science-based nutrition standards recommended by the alliance for a healthier generation, the institute of medicine, and other relevant science-based resources and shall be available to school districts before the 2008–2009 school year.

(b)  By January 15, 2009, the commissioners of education and of health shall report to the house committees on agriculture, on education, on health care, and on human services, and the senate committees on health and welfare and on education regarding the number of school districts that have and have not adopted a nutrition policy that is substantially the same as the Vermont nutrition policy guidelines applicable to competitive foods and beverages as revised in accordance with subsection (a) of this section.  The report shall include specific information about how policies adopted by the school boards may differ from the Vermont nutrition policy guidelines and include recommendations on how to ensure that all Vermont school districts will meet the state school nutrition guidelines by July 1, 2011.

Sec. 15.  32 V.S.A. § 3802(6) is amended to read:

(6)  Buildings, land and personal property owned and occupied by a Young Men’s Christian Association or a Young Women’s Christian Association for the purposes of its work, the income of which is entirely used for such purposes; or owned and occupied by a health, recreation, and fitness organization, exempt under Section 501(c)(3) of the Internal Revenue Code, for the purposes of its work and the income of which is entirely used for its exempt purpose, and designated by a hospital, as defined in 18 V.S.A. § 9402,  to promote exercise and healthy lifestyles for the community.  A hospital may designate no more than one health, recreation, and fitness facility under this subdivision, and this exemption shall apply, notwithstanding the provisions of subdivision 3832(7) of this title.

Sec. 16.  HEALTHY COMMUNITY DESIGN AND ACCESS TO HEALTHY FOODS

(a)  The commissioner of health, in consultation with the secretaries of agriculture, foods and markets and of transportation, the commissioners of the departments of education, of housing and community affairs, and of forests, parks, and recreation, and the regional planning association, shall make recommendations on how to strengthen strategies for environmental and policy change to increase healthy choices in Vermont communities and how to enhance coordination among existing programs and funding.  In addition, the commissioner, through the 12 district health offices, shall work with communities to support efforts in planning, implementation, and obtaining funding from applicable sources.  Recommended environmental and policy change strategies shall include ways to:

(1)  Promote and support opportunities for physical activity at the community level through increasing access to walking and bicycle paths, bicycle lanes, safe routes to schools, indoor and outdoor recreational facilities, and parks and other recreational areas;

(2)  Increase access to healthy foods in Vermont communities, including local foods, through strategies such as food pricing and economic approaches, food and beverage marketing and promotion, improving access to affordable healthy foods in low income communities, and other promising food‑related policy and environmental strategies; and

(3)  Promote the goals of physical activity, nutrition, and healthy living in planning processes that involve zoning and land use, growth centers, and downtown revitalization.

(b)  The commissioner shall make recommendations in a consolidated report on healthy living initiatives to the senate committee on health and welfare and the house committees on health care and on human services on priorities and recommendations no later than January 15, 2009.

Sec. 17.  HEALTHY WORKSITES

(a)(1)  The commissioner of health shall convene a work group to identify priorities and develop recommendations to enhance collaborative learning and interactive sharing of best practices in worksite wellness and employee health management, through approaches such as statewide or regional worksite wellness conferences, web‑enhanced resources and seminars, and the worksite recognition awards of the governor’s council on physical fitness and sports.

(2)  The work group should examine best practices in Vermont and other states that include:

(A)  Use of premium discounts, reduced cost sharing, or other financial incentives to encourage employee participation in wellness and health promotion activities;

(B)  Strategies to spread the adoption of workplace policies and practices that support breastfeeding for mothers;

(C)  Strategies to reach out to small employers and their employees who lack access to worksite wellness programs, such as the use of the VT 2‑1‑1 information and referral service as an information resource for healthy diet and physical activity, and the use of hospital‑based programs offering classes and one-to-one counseling similar to hospital-based tobacco use prevention programs; and

(D)  Use of financial incentives (such as small grants or tax credits) for small employers to establish worksite wellness programs, and the feasibility of group‑purchasing arrangements to help small employers gain access to worksite wellness products at a lower cost.

(b)  The commissioner shall make recommendations in a consolidated report on healthy living initiatives to the senate committee on health and welfare and the house committees on health care and on human services on priorities and recommendations no later than January 15, 2009.

Sec. 18.  PROMOTING HEALTHY WEIGHT THROUGH PRIMARY CARE

(a)  The commissioner of health shall coordinate with the Blueprint for Health director on practice‑based pilot projects to promote effectiveness in implementing evidence-based recommendations for the promotion of healthy weight and for the assessment, prevention, and treatment of obesity in primary care settings, in consultation with the Vermont child health improvement program and the area health education centers program.  The pilot projects shall focus on best practices in implementation by working with members of the medical practice to design, test, and evaluate strategies for changing office systems to better support efforts to promote healthy weight and prevent obesity in children and adults. 

(b)(1)  The commissioner shall convene a work group comprising the three major insurance carriers in Vermont, the office of Vermont health access, self‑insured employers, school health personnel and students, and health care providers to review recommended best practices in primary care settings for the promotion of healthy weight and for the for the assessment, prevention, and treatment of child and adolescent eating disorders, overweight, and obesity and to recommend changes in coverage and payment policies as needed to support best practices that have a high health impact and cost-effectiveness.  As part of its review, the work group should:

(A)  Review models of successful obesity prevention and care strategies developed by insurance carriers and primary care practices in Vermont and other states;

(B)  Identify the respective roles of health practitioners shown to be most effective and cost-effective in the promotion of healthy weight and the assessment, prevention, and treatment of obesity, including physicians, dieticians, nonmedical counselors, self‑management groups, weight management programs, physical activity counselors, and others;

(C)  Review models for standard third party payment of breastfeeding education and support services;

(D)  Develop a plan for promoting measurement and tracking of the body mass index (BMI) percentile for children and adolescents, such as through the collection of data relating to BMI, lack of physical exercise, and inappropriate diet and eating habits using the ICD‑9‑DM V‑codes in the ninth edition of International Classification of Disease Codes;

(E)  Include in the tracking plan guidelines for how such information will be coordinated and shared in order to maintain reasonable expectations of privacy; and 

(F)  Identify ways that payment policies might encourage stronger relationships among primary care practices, public health supports (such as WIC clinics for children under the age of six years), and school health personnel.

(2)  The commissioner shall make recommendations in a consolidated report on healthy living initiatives to the senate committee on health and welfare and the house committees on health care and on human services on priorities and recommendations no later than January 15, 2009.

Sec. 19.  18 V.S.A. § 11 is amended to read: 

§ 11.  CARDIOVASCULAR HEALTH: COALITION FOR HEALTHY ACTIVITY, MOTIVATION, AND PREVENTION PROGRAMS (CHAMPPS)/FIT AND HEALTHY Advisory Council

The department of health shall:

* * *

(6)  Convene a CHAMPPS/Fit and healthy advisory council chaired by the commissioner of health or designee and composed of state agencies and private sector partners which shall advise the commissioner on developing, implementing, and coordinating initiatives to increase physical activity and improve nutrition and reduce overweight and obesity. 

(A)  The functions and duties of the council shall include:

(i)  Recommending ways that the department of health and other state agencies can reach out to communities, schools, worksites, and municipal and regional planners to assist them in creating environments and policies conducive to healthy living for all Vermonters; and

(ii)  Assessing available resources and funding streams, recommending how best to coordinate those initiatives and resources across state agencies and private sector organizations for the greatest impact, and recommending new initiatives and priorities utilizing data and best-practice guidelines. 

(B)  The department of health shall review the fit and healthy Vermonters prevention plan and the status of its major initiatives with the advisory council at least every three years.  The advisory council shall advise and make recommendations to the department of health as the department develops an annual work plan setting forth prioritized strategies to implement a three-year prevention plan.

Sec. 20.  FOODS CONTAINING ARTIFICIAL TRANS FAT AND MENU LABELING

The Vermont department of health, in collaboration with the Vermont hospitality council, the American Heart Association, and representatives of the food service industry in Vermont, shall develop proposed labeling that will inform consumers of the presence of trans fats in food service facilities.  The department of health shall also recommend methods for making Vermont free of artificial trans fats in prepared foods by 2012.  Recommendations shall be presented to the senate committee on health and welfare and the house committee on health care by January 15, 2009.

Sec. 21.  16 V.S.A. § 133(c) is added to read: 

(c)  Vermont school districts may include a module within the secondary school health class curricula relating to cervical cancer and the human papillomavirus.  The department of education shall work with relevant medical authorities to update the current model module to reflect up-to-date information and practices for health education in this area.

Sec. 22.  AHEC COUNTER DETAILING PROJECT

(a)  The Vermont area health education centers (AHEC) shall establish an evidence‑based prescription drug education program for health care professionals designed to provide information and education to physicians, pharmacists, and other health care professionals on the therapeutic and cost‑effective utilization of prescription drugs.  The program shall use the evidence-based standards developed by the Blueprint for Health, and AHEC shall collaborate with other states that are working on similar programs.  AHEC shall share information that would potentially strengthen programs or leverage limited resources and shall notify prescribers about commonly used brand-name drugs for which the patent has expired within the past 12 months or will expire in the coming 12 months.  The Vermont department of health and the office of Vermont health access shall collaborate in issuing notices.  To the extent permitted by funding, the program may include the distribution of vouchers for samples of generic medicines.

(b)  The sum of $70,000.00 is appropriated from the general fund to AHEC in fiscal year 2009 to support the counter-detailing project, provided that such appropriation shall expire upon collection of the first dollar of the manufacturer fee established in section 2004 of Title 33 and all funds remaining from this appropriation redeposited in the general fund. 

* * * Supporting Health Information Technology * * *

Sec. 23.  22 V.S.A. § 903 is amended to read:

§ 903.  health information technology

* * *

(c)(1)  The commissioner shall contract enter into a grant agreement with the Vermont information technology leaders (VITL), a broad‑based health information technology advisory group that includes providers, payers, employers, patients, health care purchasers, information technology vendors, and other business leaders, to develop the health information technology plan, including applicable standards, protocols, and pilot programs.  In carrying out their responsibilities under this section, members of VITL shall be subject to conflict of interest policies established by the commissioner to ensure that deliberations and decisions are fair and equitable.

(2)  VITL shall be designated in the plan to operate the exclusive statewide health information exchange network for this state, notwithstanding the provisions of subsection (g) of this section requiring the recommendation of the commissioner and the approval of the general assembly before the plan can take effect.  To the extent of its involvement with the operation of the network, VITL shall be immune from civil, criminal, or administrative liability as a result of any action made in good faith; but nothing in this section shall be construed to establish immunity for the failure to exercise due care.  Nothing in this section shall impede local community providers from the exchange of electronic medical data. 

* * *

(g)  On or before January 1, 2007, VITL shall submit to the commission on health care reform, the secretary of administration, the commissioner of information and innovation, the commissioner of banking, insurance, securities, and health care administration, the director of the office of Vermont health access, the senate committee on health and welfare, and the house committee on health care a preliminary health information technology plan for establishing a statewide, integrated electronic health information infrastructure in Vermont, including specific steps for achieving the goals and objectives of this section. A final plan shall be submitted July 1, 2007.  The plan shall include also recommendations for self-sustainable funding for the ongoing development, maintenance, and replacement of the health information technology system.  Upon recommendation by the commissioner of information and innovation and approval by the general assembly, the plan shall serve as the framework within which certificate of need applications for information technology are reviewed under section 9440b of Title 18 by the commissioner.  VITL shall update the plan annually to reflect emerging technologies, the state’s changing needs, and such other areas as VITL deems appropriate and shall submit the updated plan to the commissioner.  Upon approval by the commissioner, VITL shall distribute the updated plan to the commission on health care reform; the secretary of administration; the commissioner of banking, insurance, securities, and health care administration; the director of the office of Vermont health access; the senate committee on health and welfare; the house committee on health care; affected parties; and interested stakeholders.

* * *

(h)  Beginning January 1, 2006, and annually thereafter, VITL shall file a report with the commission on health care reform, the secretary of administration, the commissioner, the commissioner of banking, insurance, securities, and health care administration, the director of the office of Vermont health access, the senate committee on health and welfare, and the house committee on health care.  The report shall include an assessment of progress in implementing the provisions of this section, recommendations for additional funding and legislation required, and an analysis of the costs, benefits, and effectiveness of the pilot program authorized under subsection (e) of this section, including, to the extent these can be measured, reductions in tests needed to determine patient medications, improved patient outcomes, or reductions in administrative or other costs achieved as a result of the pilot program.  In addition, VITL shall file quarterly progress reports with the secretary of administration and the health access oversight committee and shall publish minutes of VITL meetings and any other relevant information on a public website.

* * *

Sec. 24.  E‑PRESCRIBING STUDY

(a)  The director of the commission on health care reform and the VITL project review committee shall conduct a planning and feasibility study to determine the impact of implementing a statewide e‑prescriber program. 

(b)  The study shall address:

(1)  a consideration of the best methods of access to e‑prescribing, including the use of freestanding handheld devices, web-based options, and e‑prescribing modules integrated with electronic medical records; 

(2)  identification of an appropriate business model, including incentives to encourage provider participation;

(3)  an inventory of current e-prescribing activities and existing capacity for e-prescribing in this state;

(4)  a cost-benefit analysis of creating a statewide e-prescriber program;

(5)  the ability of an e-prescriber program to ensure the privacy and security of prescription data, including controls over data-mining;

(6)  state and national studies and reports on data-mining in e-prescribing and the appropriate use of e-prescription information;

(7)  the use of practice management systems and electronic claims data sources through the Vermont health information exchange;

(8)  existing state and national initiatives such as the National

e-Prescribing Patient Safety Initiative and Massachusetts’s Partners Health Care; and

(9)  an assessment of the readiness of pharmacies to participate in e‑prescribing and the impact on independent pharmacies.

(c)  No later than January 15, 2009, the director of the commission on health care reform shall report on the findings of the study to the commission on health care reform, the house committee on health care, and the senate committee on health and welfare.

* * * Investing in Vermont’s Health Care System and Workforce * * *

Sec. 25.  HEALTH IMPROVEMENT APPROPRIATIONS

The amount of $60,000.00 is appropriated from the general fund to the Vermont department of health for the child psychiatry division in the Vermont Center for Children, Youth, and Families (VCCYF) to support child tele-psychiatry pilots in community health centers that will: 

(1)  Pair Vermont health centers’ medical, nursing, social work, and psychology staff with the UVM VCCYF child psychiatric consultative team;

(2)  Provide monthly training and education resources for health center staff by UVM faculty;

(3)  Help strengthen and expand the newly established UVM child psychiatry fellowship program; and

(4)  Provide critical child psychiatry assessment and consulting services across the state that will establish relationships to help recruit and retain new child psychiatrists for Vermont.

* * * Fair Standards for Provider Contracts with Insurers * * *

Sec. 26.  18 V.S.A. § 9418 is amended to read:

§ 9418.  payment for health care services

* * *

(i)  If In addition to any other remedy provided by law, if the commissioner finds that a health plan has engaged in a pattern and practice of violating this section, the commissioner may impose an administrative penalty against the health plan of no more than $500.00 for each violation, and may order the health plan to cease and desist from further violations and order the health plan to remediate the violation.  In determining the amount of penalty to be assessed, the commissioner shall consider the following factors:

(1)  The appropriateness of the penalty with respect to the financial resources and good faith of the health plan.

(2)  The gravity of the violation or practice.

(3)  The history of previous violations or practices of a similar nature.

(4)  The economic benefit derived by the health plan and the economic impact on the health care facility or health care provider resulting from the violation.

(5)  Any other relevant factors.

(j)  A health plan in this state shall not impose on any provider any retrospective denial of a previously paid claim or any part of that previously paid claim, unless: 

(1)  The health plan has provided at least 30 days’ notice of any retrospective denial or overpayment recovery or both in writing to the provider.  The notice must include:

(A)  the patient’s name;

(B)  the service date;

(C)  the payment amount;

(D)  the proposed adjustment; and

(E)  a reasonably specific explanation of the proposed adjustment.

(2)  The time that has elapsed since the date of payment of the previously paid claim does not exceed 12 months. 

(k)  The retrospective denial of a previously paid claim shall be permitted beyond 12 months from the date of payment for any of the following reasons: 

(1)  The plan has a reasonable belief that fraud or other intentional misconduct has occurred;

(2)  The claim payment was incorrect because the provider of the insured was already paid for the health services identified in the claim;

(3)  The health care services identified in the claim were not delivered by the provider; 

(4)  The claim payment is the subject of adjustment with another health insurer; or

(5)  The claim payment is the subject of legal action.

(l) Notwithstanding this section, a health plan may not retroactively deny or recoup a pharmacy point-of-sale payment except in the circumstances of fraud, intentional misconduct, a member not receiving the prescription, or error in the processing of the claim. 

(m)  Nothing in this section shall be construed to prohibit a health plan from applying payment policies that are consistent with applicable federal or state laws and regulations, or to relieve a health plan from complying with payment standards established by federal or state laws and regulations, including rules adopted by the commissioner pursuant to section 9408 of this title relating to claims administration and adjudication standards, and rules adopted by the commissioner pursuant to section 9414 of this title and section 4088f of Title 8 relating to pay for performance or other payment methodology standards.

(n)  The provisions of this section shall not apply to stand-alone dental plans.

Sec. 27.  18 V.S.A. § 9418a is added to read:

§ 9418a.  PROCESSING CLAIMS, DOWNCODING, AND ADHERENCE TO CODING RULES

(a)  As used in this section:

(1)  “Claim” means any claim, bill or request for payment for all or any portion of provided health care services that is submitted by:

(A)  A health care provider or a health care facility pursuant to a contract or agreement with the health plan; or

(B)  A health care provider, a health care facility or a patient covered by the health plan.

(2)  “Contest” means the circumstance in which the health plan was not provided with:

(A)  Sufficient information needed to determine payer liability; or

(B)  Reasonable access to information needed to determine the liability or basis for payment of the claim.

(3)  “Health plan” means a health insurer, disability insurer, health maintenance organization, medical or hospital service corporation, or a workers’ compensation policy of a casualty insurer licensed to do business in Vermont, but does not include a stand-alone dental plan.  “Health plan” also includes a health plan that requires its medical groups, independent practice associations, or other independent contractors to pay claims for the provision of health care services.

(b)  Health plans shall accept and initiate the processing of all health care claims submitted by a health care provider pursuant to and consistent with the current version of the American Medical Association’s current procedural terminology (CPT) codes, reporting guidelines and conventions; the Centers for Medicare and Medicaid Services health care common procedure coding system (HCPCS); the National Correct Coding Initiative; the National Council for Prescription Drug Programs coding; or other appropriate standards, guidelines, or conventions approved by the commissioner. 

(c)  Nothing in this section shall preclude a health plan from determining that any such claim is not eligible for payment in full or in part, based on a determination that: 

(1)  The claim is contested as defined in subdivision 9418(a)(3) of this title;

(2)  The service provided is not a covered benefit under the contract, including a determination that such service is not medically necessary or is experimental or investigational;

(3)  The insured did not obtain a referral, prior authorization, or precertification, or satisfy any other condition precedent to receiving covered benefits from the health care provider;

(4)  The covered benefit exceeds the benefit limits of the contract;

(5)  The person is not eligible for coverage or is otherwise not compliant with the terms and conditions of his or her coverage agreement;

(6)  The health plan has a reasonable belief that fraud or other intentional misconduct has occurred; or

(7)  The health plan determines through coordination of benefits that another health insurer is liable for the claim.  

(d)  Nothing in this section shall be deemed to require a health plan to pay or reimburse a claim, in full or in part, or to dictate the amount of a claim to be paid by a health plan to a health care provider. 

(e)  No health plan shall automatically reassign or reduce the code level of evaluation and management codes billed for covered services (downcoding), except that a health plan may reassign a new patient visit code to an established patient visit code based solely on CPT codes, CPT guidelines, and CPT conventions. 

(f)  Notwithstanding the provisions of subsection (c) of this section, and other than the edits contained in the conventions in subsection (b) of this section, health plans shall continue to have the right to deny, pend, or adjust claims for covered services on other bases and shall have the right to reassign or reduce the code level for selected claims for covered services based on a review of the clinical information provided at the time the service was rendered for the particular claim or a review of the information derived from a health plan’s fraud or abuse billing detection programs that create a reasonable belief of fraudulent or abusive billing practices, provided that the decision to reassign or reduce is based primarily on a review of clinical information. 

(g)  Every health plan shall publish on its provider website and in its provider newsletter the name of the commercially available claims editing software product that the health plan utilizes and any significant edits, as determined by the health plan, added to the claims software product after the effective date of this section, which are made at the request of the health plan.  The health plan shall also provide such information upon written request of a health care provider who is a participating member in the health plan’s provider network. 

(h)  In addition to any other remedy provided by law, if the commissioner finds that a health plan has engaged in a pattern and practice of violating this section, the commissioner may impose an administrative penalty against the health plan of no more than $500.00 for each violation, and may order the health plan to cease and desist from further violations and order the health plan to remediate the violation.  In determining the amount of penalty to be assessed, the commissioner shall consider the following factors:

(1)  The appropriateness of the penalty with respect to the financial resources and good faith of the health plan.

(2)  The gravity of the violation or practice.

(3)  The history of previous violations or practices of a similar nature.

(4)  The economic benefit derived by the health plan and the economic impact on the health care facility or health care provider resulting from the violation.

(5)  Any other relevant factors.

(i)  Nothing in this section shall be construed to prohibit a health plan from applying payment policies that are consistent with applicable federal or state laws and regulations, or to relieve a health plan from complying with payment standards established by federal or state laws and regulations, including rules adopted by the commissioner pursuant to section 9408 of this title relating to claims administration and adjudication standards, and rules adopted by the commissioner pursuant to section 9414 of this title and section 4088f of Title 8 relating to pay for performance or other payment methodology standards.

Sec. 28.  18 V.S.A. § 9418b is added to read:

§ 9418b.  PRIOR AUTHORIZATION

(a)  As used in this section:

(1)  “Claim” means any claim, bill or request for payment for all or any portion of provided health care services that is submitted by:

(A)  A health care provider or a health care facility pursuant to a contract or agreement with the health plan; or

(B)  A health care provider, a health care facility or a patient covered by the health plan.

(2)  “Health plan” means a health insurer, disability insurer, health maintenance organization, medical or hospital service corporation or a workers’ compensation policy of a casualty insurer licensed to do business in Vermont, but does not include a stand-alone dental plan.  “Health plan” also includes a health plan that requires its medical groups, independent practice associations or other independent contractors to pay claims for the provision of health care services.

(b)  Health plans shall pay claims for health care services for which prior authorization was required by and received from the health plan, unless:

(1)  The insured was not a covered individual at the time the service was rendered;

(2)  The insured’s benefit limitations were exhausted;

(3)  The prior authorization was based on materially inaccurate information from the health care provider;

(4)  The health plan has a reasonable belief that fraud or other intentional misconduct has occurred; or 

(5)  The health plan determines through coordination of benefits that another health insurer is liable for the claim.

(c)  Notwithstanding the provisions of subsection (b) of this section, nothing in this section shall be construed to prohibit a health plan from denying continued or extended coverage as part of concurrent review, denying a claim if the health plan is not primarily obligated to pay the claim, or applying payment policies that are consistent with an applicable law, rule, or regulation. 

(d)  A health plan shall furnish, upon request from a health care provider, a current list of services and supplies requiring prior authorization. 

(e)  A health plan shall post a current list of services and supplies requiring prior authorization to the insurer’s website. 

(f)  In addition to any other remedy provided by law, if the commissioner finds that a health plan has engaged in a pattern and practice of violating this section, the commissioner may impose an administrative penalty against the health plan of no more than $500.00 for each violation, and may order the health plan to cease and desist from further violations and order the health plan to remediate the violation.  In determining the amount of penalty to be assessed, the commissioner shall consider the following factors:

(1)  The appropriateness of the penalty with respect to the financial resources and good faith of the health plan.

(2)  The gravity of the violation or practice.

(3)  The history of previous violations or practices of a similar nature.

(4)  The economic benefit derived by the health plan and the economic impact on the health care facility or health care provider resulting from the violation.

(5)  Any other relevant factors.

(g)  Nothing in this section shall be construed to prohibit a health plan from applying payment policies that are consistent with applicable federal or state laws and regulations, or to relieve a health plan from complying with payment standards established by federal or state laws and regulations, including rules adopted by the commissioner pursuant to section 9408 of this title relating to claims administration and adjudication standards, and rules adopted by the commissioner pursuant to section 9414 of this title and section 4088f of Title 8 relating to pay for performance or other payment methodology standards.

Sec. 29.  18 V.S.A. § 9408a is amended to read: 

§ 9408a.  uniform provider credentialing

* * *

(d)  An insurer or a A hospital shall notify a provider concerning the status of the provider’s completed credentialing application not later than:

(1)  Sixty days after the insurer or hospital receives the completed credentialing application form; and

(2)  Every 30 days after the notice is provided under subdivision (1) of this subsection, until the hospital makes a final credentialing determination concerning the provider. 

* * *

(f)  An insurer shall act upon and finish the credentialing process of a completed application submitted by a provider within 60 calendar days of receipt of the application.  An application shall be considered complete once the insurer has received all information and documentation necessary to make its credentialing determination as provided in subsections (b) and (c) of this section. 

Sec. 30.  FAIR CONTRACTING STANDARDS STUDY

The Vermont medical society, in collaboration with the department of banking, insurance, securities, and health care administration; the Vermont association of hospital and health systems; insurers; practice managers; and other interested parties, shall work to address the following issues and report to the house committee on health care and the senate committee on health and welfare or before January 15, 2009:

(1)  Fair and transparent contracting standards for providers participating in health insurance plans;

(2)  Categories of coverage;

(3)  Rental networks; and

(4)  Most favored nation clauses. 

Sec. 31.  RESTRICTIVE COVENANTS STUDY

The Vermont medical society, in collaboration with the department of health, the area health education centers program, and the Vermont association of hospitals and health systems, shall work to address the issue of the use of restrictive covenants in employment contracts of health care professionals and the impact of restrictive covenants on recruitment and retention of health care professionals in Vermont and shall report to the senate committee on health and welfare and the house committee on health care on or before January 15, 2009. 

Sec. 32.  WORKERS’ COMPENSATION STUDY

The Vermont medical society, in collaboration with the Vermont association of hospitals and health systems; the department of banking, insurance, securities, and health care administration; the department of labor; workers’ compensation carriers; practice managers; and other interested parties, shall work to address the following issues and shall report to the senate committees on health and welfare and on economic development, housing and general affairs and the house committees on health care and on commerce on or before January 15, 2009:

(1)  Timely payment of workers’ compensation claims;

(2)  Notification and resolution process for contested claims;

(3)  Enforcement of timely payment, including assessment of interest and penalties;

(4)  Charges for examinations, reviews, and investigations in connection with workers’ compensation claims;

(5)  Filing of carriers’ written claims processing practices with the department of labor; and 

(6)  Development of online claim processing and claim tracking systems accessible to health care providers. 

* * * Phase Out of the Health Insurance Safety Net * * *

Sec. 33.  8 V.S.A. § 4080c is amended to read:

§ 4080c.  HEALTH INSURANCE SAFETY NET

(a)  Upon payment of the required premium, the secretary of administration shall make health insurance available for the following:

(1)  Individuals in the nongroup market as of April 1, 1992 and individuals in the small group market as of July 1, 1992 who lose coverage for any of the following reasons:

(A)  Their insurer withdraws from the marketplace in Vermont.

(B)  Their insurer fails to register as of July 1, 1993 as a carrier qualified to provide nongroup insurance coverage.

(2)  Individuals in the group market who prior to December 31, 2008 are terminated, laid off, or otherwise separated from employment and who are not subsequently covered or eligible for coverage under another group health insurance plan.  Eligibility for coverage under this subdivision shall commence at the end of any health insurance continuation right provided by state or federal law.

(3)  Eligibility under subdivisions (1) and (2) of this subsection shall terminate on December 31, 2008.

(b)  Notwithstanding any provision of law to the contrary, coverage under this section shall be offered by nonprofit hospital and medical service corporations chartered in Vermont pursuant to chapters 123 and 125 of Title 8 at substantially similar terms and prices for the period beginning April 1, 1992 and ending when universal access is implemented by the general assembly on December 31, 2011.  The secretary may make coverage available under this section from any other insurer or health maintenance organization licensed to do business in Vermont.  The provisions of section 5115 of this title, relating to the duty of health maintenance organizations, shall not apply to coverage made available under this section.  No person may offer a health benefit plan or insurance policy under this section as a means of circumventing the requirements of section 4080b of this title, and the commissioner shall adopt, by rule, standards and a process to carry out the provisions of this prohibition.

* * *

(d)  Any surplus income realized by a carrier through participation in the program established by this section shall be applied to reduce or mitigate increases in premiums paid by other nongroup policyholders.  As used in this subsection, “surplus income” means a carrier’s premium income, less the carrier’s claims paid and incurred and the carrier’s reasonable administrative costs of no more than eight percent.

(e)  The commissioner shall by rate authorization provide for the phased adjustment of the prices provided in subsection (c) of this section so that for policies or contracts renewing on or after January 1, 2012, rates under this section shall be identical to rates provided in other nongroup policies or contracts offered or issued to individuals, with attention to making such rate adjustment as smooth as practicable over the years 2009, 2010, and 2011.  A nongroup carrier required to offer safety net coverage may withdraw all safety net products for policies or contracts renewing on or after January 1, 2012.

(f)  No later than October 1, 2008, the commissioner shall issue guidelines for the development and approval of a plan for the reasonable phase-out by December 31, 2011 of the separate safety net risk pool established in this section.  On or after October 1, 2008, a nongroup carrier covering lives in the safety net pool may propose a phase-out plan to the commissioner together with such information necessary to review the plan adequately.  The commissioner shall approve the plan if he or she finds that the plan will carry out the purposes of this section, provides adequate protection for lives covered in the safety net pool, and allows former safety net subscribers to choose coverage with any nongroup carrier or purchase any other health insurance product for which they are eligible.  The plan shall be deemed approved within 60 days of an adequate filing, as determined by the commissioner, unless sooner approved, disapproved, or approved subject to such conditions as the commissioner determines are necessary to carry out the purposes of this section and to provide adequate protection for lives covered in the safety net pool.

(g)  This section is repealed as of December 31, 2011, except that such repeal shall not affect the rate authorizations required under subsection (e) of this section or the ability of a nongroup carrier to withdraw safety net rates and forms for policies and contracts renewing on or after January 1, 2012.

Sec. 34.  8 V.S.A. § 4080b(h) is amended to read:

(h)(1)  A registered nongroup carrier shall use a community rating method acceptable to the commissioner for determining premiums for nongroup plans.  Except as provided in subdivision (2) of this subsection, the following risk classification factors are prohibited from use in rating individuals and their dependents:

(A)  demographic rating, including age and gender rating;

(B)  geographic area rating;

(C)  industry rating;

(D)  medical underwriting and screening;

(E)  experience rating;

(F)  tier rating; or

(G)  durational rating.

(2)(A)  The Notwithstanding any provision in sections 4516, 4588, and 5115 of this title, the commissioner shall, by rule, adopt standards and a process for permitting registered nongroup carriers to use one or more risk classifications in their community rating method, provided that the premium charged shall not deviate above or below the community rate filed by the carrier by more than 20 percent, and provided further that the commissioner’s rules may not permit any medical underwriting and screening and shall give due consideration to the need for affordability and accessibility of health insurance.  The commissioner in applying such rule shall not discriminate between or among nongroup carriers.

* * *

Sec. 35.  8 V.S.A. § 4516 is amended to read:

§ 4516.  ANNUAL REPORT TO COMMISSIONER

Annually, on or before March 15, a hospital service corporation shall file with the commissioner of banking, insurance, securities, and health care administration a statement sworn to by the president and treasurer of the corporation showing its condition on December 31.  The statement shall be in such form and contain such matters as the commissioner shall prescribe.  To qualify for the tax exemption set forth in section 4518 of this title, the statement shall include a certification that the hospital service corporation operates on a nonprofit basis for the purpose of providing an adequate hospital service plan to individuals of the state, both groups and nongroups, without discrimination based on age, gender, geographic area, industry, and medical history, except as allowed by subdivisions 4080a(h)(2)(B) and 4080b(h)(2)(B) 4080b(h)(2) of this title. 

Sec. 36.  8 V.S.A. § 4588 is amended to read:

§ 4588.  ANNUAL REPORT TO COMMISSIONER

Annually, on or before March 15, a medical service corporation shall file with the commissioner of banking, insurance, securities, and health care administration a statement sworn to by the president and treasurer of the corporation showing its condition on December 31, which shall be in such form and contain such matters as the commissioner shall prescribe.  To qualify for the tax exemption set forth in section 4590 of this title, the statement shall include a certification that the medical service corporation operates on a nonprofit basis for the purpose of providing an adequate medical service plan to individuals of the state, both groups and nongroups, without discrimination based on age, gender, geographic area, industry, and medical history, except as allowed by subdivisions 4080a(h)(2)(B) and 4080b(h)(2)(B) 4080b(h)(2) of this title. 

Sec. 37.  8 V.S.A. § 5115 is amended to read:

§ 5115.  DUTY OF NONPROFIT HEALTH MAINTENANCE ORGANIZATIONS

Any nonprofit health maintenance organization subject to this chapter shall offer nongroup plans to individuals in accordance with section 4080b of this title without discrimination based on age, gender, industry, and medical history, except as allowed by subdivisions 4080a(h)(2)(B) and 4080b(h)(2)(B) 4080b(h)(2) of this title. 

Sec. 38.  INAPPLICABILITY TO CATAMOUNT HEALTH

The provisions of Secs. 33 through 37 of this act shall not apply to products or coverage offered under Catamount Health pursuant to section 4080f of Title 8.

Sec. 39.  EFFECTIVE DATES

This act shall take effect on passage, except that Sec. 15 of this act shall apply to grand lists of April 1, 2009 and thereafter. 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us