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Journal of the House

________________

MONDAY, APRIL 28, 2008

At one o'clock in the afternoon the Speaker called the House to order.

Devotional Exercises

Devotional exercises were conducted by Representative William Aswad of Burlington.

Pledge of Allegiance

Page Maureen T. Myrick of St. Johnsbury led the House in the Pledge of Allegiance.

Bill Referred to Committee on Ways and Means

S. 358

     Senate bill, entitled

     An act relating to enhanced driver licenses;

     Appearing on the Calendar, affecting the revenue of the state, under the rule, was referred to the committee on Ways and Means.

Petition Referred to Committee

     A petition submitted by Brian Pearl regarding Vermont Commission on Family Recognition and Protection was read and referred to the committee on Judiciary.

Rules Suspended; Senate Proposal of Amendment Not Concurred in;

Committee of Conference Requested and Appointed

H. 870

On motion of Rep. Adams of Hartland, the rules were suspended and House bill, entitled

An act relating to the regulation of professions and occupations;

Appearing on the Calendar for notice, was taken up for immediate consideration. 

The Senate proposed to the House to 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.

Tenth:  By adding a new Sec. 47 to read as follows:

Sec. 47.  NURSING; MILITARY SERVICE; OFFICE OF PROFESSIONAL REGULATION; REPORT

By January 1, 2009, the office of professional regulation shall file a report with the general assembly that evaluates whether, and if so under what circumstances, an applicant for licensure to practice nursing should be eligible for licensure if he or she has received appropriate training and performed duties while enlisted in military service in lieu of satisfaction of a required educational program.  The office, as appropriate, shall consult with the Vermont state board of nursing, the military department, and the Vermont office of veterans’ affairs.

Eleventh:  By adding a new Sec. 47a to read as follows:

Sec. 47a.  EMERGENCY MEDICAL TECHNICIANS; MILITARY SERVICE; DEPARTMENT OF HEALTH; REPORT; COLLABORATION

(a)  The General Assembly finds that there is a critical shortage of nurses and emergency medical technicians in Vermont, hampering the ability of Vermonters to obtain affordable and timely and quality medical care.

(b)  By January 15, 2009, the commissioner of the Department of Health shall file a report with the House and Senate Government Operations that evaluates whether, and if so under what circumstances, an applicant for licensure as an emergency medical technician should be eligible for licensure, exemption from licensure when employed by certain health care facilities, if he or she has received comparable training and performed duties while enlisted in military service in lieu of satisfaction of a required educational or testing program, or both.  The commissioner, as appropriate, shall consult with the executive director of the Vermont state board of nursing, the adjutant general, and the director of the Vermont office of veterans’ affairs.

(c)  The commissioner of health shall collaborate to the extent feasible with the director of the office of professional regulation regarding the comparable evaluation required by Sec. 47 of this Act for individuals with military service qualifying for licensing as nurses.

Pending the question, Will the House concur in the Senate proposal of amendment? Rep. Evans of Essex moved that the House refuse to concur and ask for a Committee of Conference, which was agreed to, and the Speaker appointed as members of the Committee of Conference on the part of the House:

Rep. Evans of Essex

Rep. Manwaring of Wilmington

Rep. Martin of Wolcott

Rules Suspended; Senate Proposal of Amendment Not Concurred in;

Committee of Conference Requested and Appointed

H. 691

On motion of Rep. Adams of Hartland, the rules were suspended and House bill, entitled

An act relating to executive and judicial branch fees;

Appearing on the Calendar for notice, was taken up for immediate consideration. 

The Senate proposed to the House to the bill as follows:

     By striking all after the enacting clause and inserting in lieu thereof the following:

* * * Department of Public Safety * * *

Sec. 1.  20 V.S.A § 39(a) is amended to read:

(a)  Every person required to report the use or storage of hazardous chemicals or substances pursuant to EPCRA shall pay the following annual fees for each hazardous chemical or substance, as defined by the state emergency response commission, that is present at the facility:

(1)  $33.00 $35.00 for quantities between 100 and 999 pounds.

(2)  $50.00 $55.00 for quantities between 1,000 and 9,999 pounds.

(3)  $80.00 $90.00 for quantities between 10,000 and 99,999 pounds.

(4)  $250.00 $265.00 for quantities between 100,000 and 999,999 pounds.

(5)  $750.00 $800.00 for quantities exceeding 999,999 pounds.

(6)  An additional fee of $150.00 $175.00 will be assessed for each extremely hazardous chemical or substance as defined in 42 U.S.C. § 11002.

Sec. 2.  23 V.S.A. § 1203(k) is amended to read:

(k)  A copy of a videotape made of the alleged offense shall be provided to the defendant within ten days after the defendant requests the copy and pays a $15.00 $45.00 fee for its reproduction.  No fee shall be charged to a defendant whom the court has determined to be indigent.

* * * Department of Environmental Conservation * * *

Sec. 3.  3 V.S.A. § 2822(i) is amended to read:

(i)  The secretary shall not process an application for which the applicable fee has not been paid unless the secretary specifies that the fee may be paid at a different time or unless the person applying for the permit is exempt from the permit fee requirements pursuant to section 710 of Title 32.  In addition, the persons who are exempt under section 710 of Title 32 are also exempt from the application fees for stormwater operating permits specified in subdivisions (j)(2)(A)(iii)(I) and (II) of this section if they otherwise meet the requirements of section 710.  Municipalities shall be exempt from the payment of fees under this section except for those fees prescribed in subdivisions (j)(1), (2), (7), (8), (14), and (15) of this section for which a municipality may recover its costs by charging a user fee to those who use the permitted services, except that a municipality shall also be exempt from those fees for orphan stormwater systems prescribed in subdivision subdivisions (j)(2)(A)(iii) and (2)(B)(iv)(I) or (II) of this section when the municipality agrees to become an applicant or co-applicant for an orphan stormwater system under section 1264c of Title 10.  Applicants operating under SIC codes 2411, 2421, 2426, and 2429 shall be exempt from administrative processing fees pursuant to subdivision (j)(2) of this section and application review fees pursuant to subdivision (j)(2)(A)(iii)(IV) of this section.

Sec. 4.  Sec. 30b of Act 76 of the Acts of 2007 is amended to read:

Sec. 30b.  IMPLEMENTATION AND REVERSION

(a)  Sec. 30a (exclusion from general permit fees) shall take effect upon passage and shall be effective retroactively back to August 1, 2006.  The department of environmental conservation shall refund any fees collected from applicants operating under SIC codes 2411, 2421, 2426 and 2429 pursuant to 3 V.S.A. § 2822(j)(2)(A)(iii)(IV) between August 1, 2006 and the effective date of this section June 30, 2008.

(b)  Sec. 30a (exclusion from general permit fees) shall expire on July 1, 2008 and, on that date, the content of 3 V.S.A. § 2822(i) shall revert to the content that existed before the amendment contained in this act.

* * * Sheriffs * * *

Sec. 5.  32 V.S.A. § 1591(1)(A) is amended to read:

(A)  For serving each process, the fees shall be as follows:

* * *

(ii)  $30.00 $50.00 upon presentation of each return of service for the service of papers relating to divorce, annulments, separations, or support complaints;

(iii)  $30.00 $50.00 upon presentation of each return of service for the service of papers relating to civil suits except as provided in subdivisions 1591(1)(A)(ii) and 1591(1)(A)(vii) of this title;

(iv)  $30.00 $50.00 upon presentation of each return of service for the service of a subpoena and shall be limited to that one fee for each return of service;

* * *

* * * Department of Labor * * *

Sec. 6.  21 V.S.A. § 711(a) is amended to read:

(a)  A workers’ compensation administration fund is created pursuant to subchapter 5 of chapter 7 of Title 32 to be expended by the commissioner for the administration of the workers’ compensation and occupational disease programs.  The fund shall consist of contributions from employers made at a rate of 0.42 0.81 percent of the direct calendar year premium for workers’ compensation insurance, one percent of self-insured workers’ compensation losses, and one percent of workers’ compensation losses of corporations approved under the chapter 9 of this title.  Disbursements from the fund shall be on warrants drawn by the commissioner of finance and management in anticipation of receipts authorized by this section.

Sec. 6a.  21 V.S.A. § 144(a) is amended to read:

(a)  The elevator safety review board is established within the department, and shall consist of five seven members, one of whom shall be the commissioner or the commissioner’s designee, one of whom shall be the commissioner of labor or the commissioner of labor’s designee, and four five members to be appointed by the governor as follows: one representative from a major elevator manufacturing company; one representative from an elevator servicing company; an owner or manager of a multistoried building, in which a conveyance is installed; an elevator inspector; and an individual who actually installs, maintains and repairs conveyances.  The members appointed by the governor shall be appointed for staggered terms of three years, and shall be entitled to compensation and expenses as provided in 32 V.S.A. § 1010.

Sec. 6b.  21 V.S.A. § 152 is amended to read:

§ 152.  NEW INSTALLATIONS; ANNUAL INSPECTIONS AND REGISTRATIONS

(a)  A new conveyance shall not be placed in operation until it has been inspected by an elevator inspector other than the installer, and a certificate of operation has been issued.

(b)  Every conveyance subject to this subchapter shall be inspected annually by an elevator inspector who may charge a fee for the service as established by the board by rule.  Rules adopted by the board under this subsection shall take into account the degree of difficulty required by the inspection, the frequency of use of the conveyance, and the mode of operation of the conveyance, such as cable, traction, hydraulic, light use, or platform liftAn inspector may charge a fee not to exceed $100.00 for each inspection.  The inspector shall notify the department if a conveyance is found to be in violation of this subchapter or any rule adopted under this subchapter.

(c)  An elevator inspector shall issue a certificate of operation after the inspector has inspected a new or existing conveyance, and has determined that the conveyance is in compliance with this subchapter.  A certificate of operation shall be renewed annually.  An owner of a conveyance shall ensure that the required inspections and tests are performed at intervals that comply with rules adopted by the board.  Certificates of operation shall be clearly displayed on or in each conveyance or in each machinery room.

(d)  The department may issue a conditional certificate of operation for a conveyance that is not in complete compliance, provided the conveyance has been inspected and determined to be safe for temporary operation.  This conditional certificate of operation permits shall permit a conveyance to operate for no more than 30 180 days or until the conveyance is in compliance, whichever occurs first.

(e)  The inspector shall submit $25.00 of the fee charged for each inspection to the department for each certificate of operation issued under this subchapter.

(f)  As established by the board by rule, an inspector may charge a fee not to exceed $250.00 for each inspection, and this fee shall be subject to the provisions of subchapter 6 of chapter 7 of Title 32.

(g)  Until rules are adopted under subsection (f) of this section, an inspector may charge a fee not to exceed $100.00, and this fee shall be subject to the provisions of subchapter 6 of chapter 7 of Title 32.

Sec. 6c.  COMMISSIONER OF PUBLIC SAFETY; REPORT

By January 15, 2009, the commissioner of public safety shall file a report with the house and senate committees on government operations that identifies barriers to adequate training of elevator inspectors, elevator mechanics, and lift mechanics.

Sec. 6d.  REPEAL

21 V.S.A. § 152(g) (inspector fee cap of $100.00) shall be repealed on the effective date of rules adopted pursuant to 21 V.S.A. § 152.

Sec. 6e.  ELEVATOR SAFETY REVIEW BOARD; RULEMAKING

The general assembly finds that there exists an imminent peril to the public health, safety, or welfare that necessitates the adoption of emergency rules pursuant to 3 V.S.A. § 844 by the elevator safety review board as required by 21 V.S.A. § 152.  Emergency rules shall be filed as soon as possible after notice and an opportunity to be heard by persons who may be affected by them.  The board shall propose a permanent rule on the same subject at the same time that it adopts an emergency rule.

* * * Department of Motor Vehicles * * *

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

§ 7.  ENHANCED DRIVER LICENSE; MAINTENANCE OF DATABASE INFORMATION; FEE

(a)  The face of an enhanced license shall contain the individual’s name, date of birth, gender, a unique identification number, full facial photograph or imaged likeness, address, signature, issuance and expiration dates, and citizenship.  The back of the enhanced license shall have a machine readable zone.  A Gen 2 vicinity Radio Frequency Identification chip shall be imbedded in the enhanced license in compliance with the security standards of the Department of Homeland Security.

(b)  In addition to any other requirement of law or rule, before an enhanced license may be issued to a person, the person shall present for inspection and copying satisfactory documentary evidence to determine identity and United States citizenship.  An application shall be accompanied by: a photo identity document, documentation showing the person’s date and place of birth, proof of the person’s Social Security account number, and documentation showing the person’s principal residence address.  Before an application may be processed, the documents and information shall be verified as determined by the commissioner.

(c)  No person shall compile or maintain a database of electronically readable information derived from an operator’s license, junior operator’s license, enhanced license, learner permit, or nondriver identification card.  This prohibition shall not apply to a person who accesses, uses, compiles, or maintains a database of the information for law enforcement or governmental purposes.

(d)  The fee for an enhanced license shall be $25.00 in addition to the fees otherwise established by this title.

Sec. 8.  23 V.S.A. § 1402(e) is added to read:

(e)  Pilot project allowing annual permits for low bed trailers.

(1)  The commissioner may issue an annual permit to allow the transportation of a so-called “low-bed” trailer.  A “low-bed” trailer is defined as a trailer manufactured for the primary purpose of carrying heavy equipment on a flat-surfaced deck, which deck is at a height equal to or lower than the top of the rear axle group.

(2)  A blanket permit may be obtained for an annual fee of $250.00 per unit, provided the total vehicle length does not exceed 75 feet, does not exceed a loaded width of 12’6”, does not exceed a total weight of 108,000 lbs., and has a height not exceeding 14 feet.

(3)  Warning signs and flags shall be required if the vehicle exceeds 75 feet in length, or exceeds 8’6” in width.

(4)  This subsection shall expire on June 30, 2010.  No later than

January 15, 2010, the department of motor vehicles, after consultation with the agency of transportation, Vermont League of Cities and Towns, and Vermont Truck and Bus Association, shall report to the house and senate committees on transportation on the results of this two year pilot project.  The report shall include recommendations on extending this provision on low bed trailers, as well as other recommendations relating to longer vehicle lengths.

* * * Criminal Justice Training Council * * *

[Sec. 9.  DELETED]

[Sec. 10.  DELETED]

Sec. 11.  20 V.S.A. § 2355(f)(1) is amended to read:

(1)  The tuition fee for basic training required under section 2358 of this title shall be $5,847.00 $6,417.00.  This fee shall not be charged for persons employed by police agencies at the time of training.

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

Sec. 12.  6 V.S.A. § 2964(a) is amended to read:

(a)  A producer or packer of agricultural products produced in Vermont annually may apply to the secretary for an identification label which may be applied to his or her products to indicate that they have been produced in Vermont and have met standards of quality as have been or may be established by the secretary.  The person requesting the labels shall annually pay a fee based on the volume of sales for each category of products in the previous year according to the following fee schedule:  $20.00 $25.00 for a prior annual sales volume less than $20,000.00 $25,000.00; $50.00 for a prior annual sales volume from $20,000.00 $25,000.00 to under $100,000.00; $150.00 $100.00 for a prior annual sales volume from $100,001.00 to $500,000.00; $250.00 for a prior annual sales volume from $500,001.00 to $1,000,000.00 $100,000.00 to $250,000.00; and $500.00 for a prior annual sales volume greater than $1,000,000.00 $250,000.00.  The applicant shall also pay for the cost of all labels requested.

Sec. 13.  20 V.S.A. § 4301(4) is added to read:

(4)  “Animal vendor” means a person permitted under this chapter to advertise for the sale or exchange for value of one or more animals. 

Sec. 14.   20 V.S.A. § 4303a is added to read:

§ 4303a.  ANIMAL VENDOR PERMIT; PROHIBITIONS

(a)  A person may apply for an animal vendor’s permit in a manner prescribed by the commissioner, accompanied by a permit fee of $50.00.  A permit shall be valid for 60 days from the date of issuance by the  commissioner.

(b)  A person may not advertise in print, on television or radio, or on the Internet the sale or exchange for value of one or more animals unless the person:

(1)  Holds a valid animal vendor permit pursuant to subsection (a) of this section;

(2)  Is a registered animal shelter pursuant to section 3903 of this title;

(3)  Holds a kennel permit issued pursuant to 3681 of this title; or

(4)  Holds a pet dealer license issued pursuant to section 3906 of this title.

(c)  Any person permitted to advertise the sale of an animal under this  section shall include the title of the permit and the permit number in any  printed sale material, including websites, advertisements in periodicals, brochures, signs, and in any advertisement on television or radio.  This permit information also shall be provided to a purchaser of an animal from the permit holder.

(d)  A person who violates this section shall be assessed a civil penalty of $300.00 for each day the person fails to comply with this section.

(e)  Any monies generated by the permit fees or the penalties assessed under this section shall be used to fund the Vermont spay neuter incentive program administered by the agency of agriculture, food and markets and shall be used only for:

(1)  Costs associated with animal sterilization and associated procedures;

(2)  Enforcement of this section; and

(3)  Costs of administration of this section.

Sec. 15.  4 V.S.A. § 1102 is amended to read:

§ 1102.  JUDICIAL BUREAU; JURISDICTION

* * *

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

* * *

(14)  Violations of 20 V.S.A. § 4303a, relating to animal vendor permits.

* * *

Sec. 16.  ADMINISTRATION

The agency of agriculture, food and markets  may contract the administration of the requirements created by Sec. 13 of this act with the contract administrator of the Vermont spay and neuter incentive program; provided that no more than five hours per week will be authorized for this purpose; and provided that the contractor shall be responsible for contacting individuals in violation of this chapter in an attempt to bring them into compliance.

* * * Judiciary * * *

Sec. 17.  4 V.S.A. § 1105 is amended to read:

§ 1105.  Answer to complaint; default

* * *

(b)  A person who is charged with a violation shall have 20 days from the date the complaint is issued to admit or deny the allegations or to state that he or she does not contest the allegations in the complaint.  The judicial bureau shall assess against a defendant a fee of $10.00 $20.00 for failure to answer a complaint within the time allowed.  The fee shall be assessed in the default judgment and deposited in the court technology special fund established pursuant to section 27 of this title.

* * *

Sec. 18.  4 V.S.A. § 1109 is amended to read:

§ 1109.  Remedies for failure to pay

* * *

(b)  A judicial bureau judgment shall provide notice that a $15.00 $30.00 fee shall be assessed for failure to pay within 30 days.  If the defendant fails to pay the amount due within 30 days, the fee shall be added to the judgment amount and deposited in the court technology special fund established pursuant to section 27 of this title.

* * *

Sec. 19.  32 V.S.A § 1431 is amended to read:

§ 1431.  Fees in supreme, superior, district, family, and environmental courts

(a)  Prior to the entry of any cause in the supreme court there shall be paid to the clerk of the court for the benefit of the state a fee of $225.00 $250.00 in lieu of all other fees not otherwise set forth in this section.

(b)(1)  Prior to the entry of any cause in the superior court or environmental court there shall be paid to the clerk of the court for the benefit of the state a fee of $225.00 $250.00 in lieu of all other fees not otherwise set forth in this section.

(2)  Prior to the entry of any divorce or annulment proceeding in the family court there shall be paid to the clerk of the court for the benefit of the state a fee of $225.00 $275.00 in lieu of all other fees not otherwise set forth in this section; however, if the divorce or annulment complaint is filed with a stipulation for a final order acceptable to the court, the fee shall be $75.00.

* * *

(4)  Prior to the entry of any motion or petition to vacate, modify or enforce an order for parental rights and responsibilities, parent-child contact, or maintenance in the family court there shall be paid to the clerk of the court for the benefit of the state a fee of $75.00 in lieu of all other fees not otherwise set forth in this section; however,.  Prior to the entry of any motion or petition to vacate or modify an order for parental rights and responsibilities, parent-child contact, or maintenance in the family court, there shall be paid to the clerk of the court for the benefit of the state a fee of $100.00 in lieu of all other fees not otherwise set forth in this section.  However, if the motion or petition is filed with a stipulation for an order acceptable to the court, the fee shall be $25.00.  All motions or petitions filed by one party at one time shall be assessed one fee.

* * *

(c)  Prior to the entry of a small claims action there shall be paid to the clerk for the benefit of the state county in lieu of all other fees not otherwise set forth in this section, a fee of $60.00 $75.00 if the claim is for more than $500.00 $1,000.00 and $35.00 $50.00 if the claim is for $500.00 $1,000.00 or less.  The filing fee for civil suspension proceedings filed pursuant to 23 V.S.A § 1205 shall be $75.00, which shall be taxed in the bill of costs in accordance with sections 1433 and 1471 of this title  Prior to the entry of any postjudgment motion in a small claims action, there shall be paid to the clerk for the benefit of the county a fee of $50.00.  The fee for every counterclaim in small claims’ proceedings shall be $25.00, payable to the county, if the counterclaim is for more than $500.00, and $15.00 if the counterclaim is for $500.00 or less.

(d)  Prior to the entry of any subsequent pleading which sets forth a claim for relief in the supreme court or the superior, environmental, or district court, there shall be paid to the clerk of the court for the benefit of the state a fee of $100.00 for every appeal, cross-claim, or third-party claim and a fee of $75.00 for every counterclaim in the superior or environmental court in lieu of all other fees not otherwise set forth in this section.  The fee for every counterclaim in small claims’ proceedings shall be $25.00 if the counterclaim is for more than $500.00 and $15.00 if the counterclaim is for $500.00 or less.  The fee for an appeal of a magistrate’s decision in the family court shall be $100.00.  The filing fee for civil suspension proceedings filed pursuant to

23 V.S.A § 1205 shall be $75.00, which shall be taxed in the bill of costs in accordance with sections 1433 and 1471 of this title.

(e)  Prior to the filing of any postjudgment motion in the superior, environmental, or district court, including motions to reopen civil suspensions, there shall be paid to the clerk of the court for the benefit of the state a fee of $50.00 $75.00 except for small claims actions for which the fee shall be $25.00 in lieu of all other fees not otherwise set forth in this section.

(f)  The filing fee for all actions filed in the judicial bureau shall be $30.00 $50.00; the state or municipality shall not be required to pay the fee; however, if the respondent denies the allegations on the ticket, the fee shall be taxed in the bill of costs in accordance with sections 1433 and 1471 of this title and shall be paid to the clerk of the bureau for the benefit of the state.

(g)  Prior to the filing of any postjudgment motion in the judicial bureau there shall be paid to the clerk of the bureau, for the benefit of the state, a fee of $25.00 $35.00.  Prior to the filing of any appeal from the judicial bureau to the district court there shall be paid to the clerk of the court, for the benefit of the state, a fee of $75.00 $100.00.

(g)(h)  Pursuant to Vermont Rules of Civil Procedure 3.1, Vermont Rules of Appellate Procedure 24(a), or District Court Civil Rules 3.1, part or all of the filing fee may be waived if the court finds that the applicant is unable to pay it.  The clerk of the court or the clerk's designee shall establish the in forma pauperis fee in accordance with procedures and guidelines established by administrative order of the supreme court.

Sec. 20.  32 V.S.A. § 1434(a) is amended to read:

(a)  The following entry fees shall be paid to the probate court for the benefit of the state, except for subdivision (13)(17) of this subsection which shall be for the benefit of the county in which the fee was collected:

(1)  Estates of $10,000.00 or less                                 $35.00        $25.00

(2)  Estates of more than $10,000.00 to

not more than $150,000.00 $50,000.00                                           $75.00

(3)  Estates of more than $50,000.00 to

not more than $150,000.00                                                            $200.00

(4)  Estates of more than $150,000.00 to

not more than $500,000.00                                           $150.00    $375.00

(4)(5)  Estates of more than $500,000.000 to

not more than $1,000,000.00                                        $325.00    $625.00

(6)  Estate of more than $1,000,000.00 to

not more than $5,000,000.00                                                      $1,000.00

(7)  Estates of more than $5,000,000.00 to

not more than $10,000,000.00                                                    $1,500.00

(8)  Estates of more than $10,000,000.00                                   $1,750.00

(5)(9)  Testamentary trusts of $20,000.00 or less             $50.00

(6)(10)  Testamentary trusts of more than $20,000.00        $100.00

(7)(11)  Annual accounts on testamentary trusts of

more than $20,000.00                                                     $25.00      $30.00

(8)(12)  Annual accounts on decedents’ estates

filed for any period ending more than one year

following the opening of the estate                                                     $25.00

(9)(13)  Adoptions                                                                           $75.00

(10)(14)  Guardianships for minors                                                   $35.00

(11)(15)  Guardianships for adults                                                    $50.00

(12)(16)  Petitions for change of name                  $50.00 $75.00

(13)(17)  Filing of a will for safekeeping, except

that there shall be no fee for the filing of subsequent

wills in that district for the same person                                 $20.00

(14)(18)  Corrections for vital records                                  $25.00

(15)(19)  Orders of authorization                                                      $25.00

(16)(20)  Conveyances of title to real estate pursuant

to section 1801 of Title 14                                                                $50.00

(17)(21)  Petitions for the removal of a trustee pursuant

to 14 V.S.A. § 2314(c) of trusts of $20,000.00 or less         $50.00

(18)(22)  Petitions for removal of a trustee pursuant

to 14 V.S.A. § 2314(c) of trusts more than $20,000.00      $100.00

(19)(23)  Petitions concerning advance directives pursuant

to 18 V.S.A. § 9718                                                                        $75.00

(20)(24)  Civil actions brought pursuant to subchapter 3

of chapter 107 of Title 18.                                                                $50.00

Sec. 21.  32 V.S.A. § 1751 is amended to read:

§ 1751.  Fees when not otherwise provided

* * *

(b)  Whenever probate, district, environmental, family, or superior court officers and employees or officers and employees of the judicial bureau furnish copies or certified copies of records, the following fees shall be collected for the benefit of the state:

* * *

(5)  For a response to a request for a record of criminal history of a person based upon name and date of birth, $10.00 $30.00.

(6)  For appointment as an acting judge pursuant to 4 V.S.A § 22(b) for the purpose of performing a marriage, $150.00.

However, the fees provided for in this subsection shall not be assessed by these officers and employees in furnishing copies or certified copies of records to any agency of any municipality, state, or federal government or to veterans honorably discharged from the armed forces of the United States, their dependents or beneficiaries, in the prosecution of any claim for benefits from the United States government, or any state agency.

Sec. 22.  32 V.S.A. chapter 7, subchapter 6 is amended to read:

Subchapter 6.  Executive and Judicial Branch Fees

§ 601.  STATEMENT OF PURPOSE

     It is the purpose of this subchapter to establish a uniform policy on the creation and review of executive and judicial branch fees, and to require that any such fee be created solely by the general assembly.

§ 602.  DEFINITIONS

* * *

(2)  "Fee":

(A)  Means a monetary charge by an agency or the judiciary for a service or product provided to, or the regulation of, specified classes of individuals or entities.

* * *

§ 605.  CONSOLIDATED EXECUTIVE BRANCH ANNUAL FEE REPORT AND REQUEST

* * *

§ 605a.  CONSOLIDATED JUDICIAL BRANCH FEE REPORT AND REQUEST

(a)  The justices of the supreme court or the court administrator if one is appointed pursuant to 4 V.S.A. § 21, in consultation with the justices of the supreme court, shall submit a consolidated judicial branch fee report and request no later than the third Tuesday of the legislative session of 2011 and every three years thereafter.  The report shall be submitted to the house committee on ways and means, the senate committee on finance, and the house and senate committees on government operations.

(b)  A fee report shall contain for each fee in existence on the preceding July 1:

(1)  Its statutory authorization and termination date if any.

(2)  Its current rate or amount and the date this was last set or adjusted by the general assembly or by the joint fiscal committee.

(3)  The fund into which its revenues are deposited.

(4)  The revenues derived from it in each of the two previous fiscal years.

(c)  A fee request shall contain any proposal to:

(1)  Create a new fee, or change, reauthorize, or terminate an existing fee, which shall include a description of the services provided or the function performed.

(2)  Set a new or adjust an existing fee rate or amount.  Each new or adjusted fee rate shall be accompanied by information justifying the rate, which may include:

(A)  The relationship between the revenue to be raised by the fee or change in the fee and the cost or change in the cost of the service, product, or regulatory function supported by the fee, with costs construed pursuant to subdivision 603(2) of this title.

(B)  The inflationary pressures that have arisen since the fee was last set.

(C)  The effect on budgetary adequacy if the fee is not increased.

(D)  The existence of comparable fees in other jurisdictions.

(E)  Policies that might affect the acceptance or the viability of the fee amount.

(F)  Other considerations.

(3)  Designate, or redesignate, the fund into which revenue from a fee is to be deposited.

(d)  For the purpose of the review and report a "fee" shall mean any source of state revenue classified by the department of finance and management accounting system as "fees."

§ 606.  LEGISLATIVE FEE REVIEW PROCESS; FEE BILL

When the consolidated fee report reports and request is requests are submitted to the general assembly pursuant to section sections 605 and 605a of this title, it they shall immediately be forwarded to the house ways and means committee, which shall consult with other standing legislative committees having jurisdiction of the subject area of a fee contained in the report reports and request requests.  As soon as possible, the ways and means committee shall prepare and introduce a "consolidated fee bill" proposing:

(1)  The creation, change, reauthorization, or termination of any fee.

(2)  The amount of a newly created fee, or change in amount of an existing or reauthorized fee.

(3)  The designation, or redesignation, of the fund into which revenue from a fee is to be deposited.

* * * Department of Buildings and General Services * * *

Sec. 23.  3 V.S.A. § 2476 is amended to read:

§ 2476.  DEPARTMENT OF TOURISM AND MARKETING

(a)  The department of tourism and marketing of the agency is created, as successor to the department of travel.  The department shall be administered by a commissioner.

(b)  The department of tourism and marketing shall be responsible for the promotion of Vermont goods and services as well as the promotion of Vermont's travel, recreation and cultural attractions through advertising and other informational programs, and for provision of travel and recreation information and services to visitors to the state, in coordination with other agencies of state government, chambers of commerce and travel associations, and the private sector.

(c)  A special fund is established to be administered as provided under subchapter 5 of chapter 7 of Title 32, and to be known as the brochure distribution special fund for the purposes of ensuring that the fees collected under this subsection are utilized to fund travel destination promotion and information at the state's travel information centers. Revenues to the fund shall be those fees collected for the placement and distribution of brochures of businesses in the state travel information centers and in other locations deemed appropriate by the department.

(d)  The department of tourism and marketing is authorized to accept brochure distribution fees, and to enter into agreements with other state agencies and departments to provide marketing, promotion and advertising services.  On and after July 1, 1997, all departments engaging in marketing activities shall submit to and coordinate marketing plans with the commissioner of the department of tourism and marketing.

(e)(d)  The department shall annually prepare a report, to be included in the report of the agency required by section 2422 of this title, on the status of the Connecticut River valley tourism district, and how it is meeting the goals of the department.

Sec. 24.  29 V.S.A. § 169 is added to read:

§ 169.  BROCHURE DISTRIBUTION FEES

(a)  The department of buildings and general services is authorized to accept brochure distribution fees, and to enter into agreements with other state agencies and departments to provide marketing, promotion, and advertising services.

(b)  A special fund is established to be administered as provided under subchapter 5 of chapter 7 of Title 32, and to be known as the brochure distribution special fund for the purposes of ensuring that the fees collected under this section are utilized to fund travel destination promotion and information at the state's travel information centers.  Revenues to the fund shall be those fees collected for the placement and distribution of brochures of businesses in the state travel information centers and in other locations deemed appropriate by the department.

(c)  Brochure distribution fees authorized under subsection (a) of this section shall be set by the department and shall be based on the location or locations of distribution, the size of the brochures, and the number of brochures distributed.  The department shall report the details of the fees established under this section every three years pursuant to 32 V.S.A. § 605.

Sec. 25.  32 V.S.A § 603 is amended to read:

§ 603.  FEE CREATION, AMOUNT AND ADJUSTMENT OF AMOUNT

* * *

(3)  Fees for transcripts, reproductions not covered by subsection 316(d) of Title 1, conferences, forms for commercial use, publications and costs of distribution, advertising, training, charges to attend one-time agency events, and sales of products are hereby authorized, and the following, unless otherwise specified by law, may be set by the department providing the service or product, and shall be reasonably and directly related to their costs, as provided in subdivision (2) of this section:

(A)  transcripts;

(B)  reproductions not covered by subsection 316(d) of Title 1;

(C)  conferences;

(D)  forms for commercial use;

(E)  publications of the department;

(F)  costs of distribution of department materials;

(G)  advertising for department services or products;

(H)  training;

(I)  charges to attend one-time department events; and

(J)  sales of department products.

(4)  Fees collected under this subdivision (3) of this section shall be credited to special funds established and managed pursuant to subchapter 5 of chapter 7 of this title, and shall be available to the charging departments to offset the costs of providing these services or products.  However, for purposes of fees established under this subdivision for copies of public records, the fees shall be calculated as provided in 1 V.S.A. § 316.  These fees shall be reported in accordance with section 605 of this title.

* * * Department of Corrections * * *

Sec. 26.  28 V.S.A § 801 is amended to read:

§ 801.  Medical care of inmates

* * *

(d)  The department is authorized to deduct a fee of up to $5.00 from inmate accounts for each request for sick call initiated by an inmate.  The fee shall be deposited into a special fund administered pursuant to subchapter 5 of chapter 7 of Title 32 and used to offset the department’s costs of medical services.  If the department implements a program to collect fees pursuant to this subsection it shall do so in accordance with the most recent National Commission on Correctional Health Care recommendations on charging inmates a fee for health care services.  The department shall report on a quarterly basis the development and implementation of an inmate co-payment system to the Joint Corrections Oversight Committee. 

(e)  The department shall establish and maintain policies for the delivery of health care in accordance with the above standards.

* * * Vermont State Archives * * *

Sec. 27.  32 V.S.A. § 1715(a) is amended to read:

(a)  Upon payment of a $10.00 fee, the commissioner of health or the commissioner of buildings and general services Vermont state archives and records administration shall provide certified copies of vital records or shall ascertain and certify what the vital records available to the commissioners show, except that the commissioners shall not copy the word "illegitimate" from any birth certificate furnished.  The fee for the search of the vital records is $3.00 which is credited toward the fee for the first certified copy based upon the search.

* * * Attorney General * * *

Sec. 28.  3 V.S.A. § 163(c)(9) is amended to read:

(9)  Each participant shall pay a fee to the local juvenile court diversion project.  The amount of the fee shall be determined by project officers based upon the financial capabilities of the participant.  The fee shall not exceed $50.00 $150.00.  The fee shall be a debt due from the participant, but shall not be grounds for exclusion from participation in the program.  Fees under this subdivision shall be paid to the court diversion fund and shall be used solely for the purpose of the court diversion program.

* * * Department of Banking, Insurance, Securities, and Health Care Administration * * *

Sec. 29.  9 V.S.A. § 5302(e) is amended to read:

(e)  At the time of the filing of the information prescribed in subsections (a), (b), (c), or (d) of this section, the issuer shall pay to the commissioner a fee of $1.00 for each $1,000.00 of the aggregate amount of the offering of the securities to be sold in this state for which the issuer is seeking to perfect a notice filing under this section, but in no case shall such fee be less than $400.00 nor more than $1,250.00 $600.00.  If the notice filing is withdrawn or otherwise terminated, the commissioner shall retain the fee paid.  Open-end investment companies subject to 15 U.S.C. § 80a-1 et seq. shall pay an initial notice filing fee and annual renewal fee for each portfolio or class of investment company securities for which a notice filing is submitted.

Sec. 30.  9 V.S.A. § 5305(b) is amended to read:

(b)  A person filing a registration statement shall pay a filing fee of $1.00 for each $1,000.00 of the aggregate amount of the offering of the securities to be sold in this state for which the applicant is seeking registration, but in no case shall such fee be less than $400.00 nor more than $1,250.00 $600.00.  Open-end investment companies shall pay a registration fee and an annual renewal fee for each portfolio as long as the registration of those securities remains in effect.  If a registration statement is withdrawn before the effective date or a preeffective stop order is issued under section 5306 of this chapter, the commissioner shall retain the fee.

Sec. 31.  9 V.S.A. § 5410(b) is amended to read:

(b)  The fee for an individual is $55.00 $60.00 when filing an application for registration as an agent, $55.00 $60.00 when filing a renewal of registration as an agent, and $55.00 $60.00 when filing for a change of registration as an agent.  If the filing results in a denial or withdrawal, the commissioner shall retain the fee.

* * * Secretary of State * * *

Sec. 32.  9A V.S.A. § 9-525(a)(1) and (2) are amended to read:

(1)  $20.00 $25.00 if the record is communicated in writing; and

(2)  $20.00 $25.00 if the record is communicated by another medium authorized by filing office rule.

Sec. 33.  11 V.S.A. § 1625(a) is amended to read:

(a)  A person, copartnership, association, limited liability company, or corporation required by the provisions of this chapter to file a return, shall, at the time of filing as provided, pay a registration fee of $40.00 $50.00 to the secretary of state for the benefit of the state.

Sec. 34.  11 V.S.A. § 3013(a) (1), (15), and (16) are amended to read:

(1)  Articles of organization $ 75.00 $100.00

(15)  Annual report of a domestic limited liability company 20.00 25.00

(16)  Annual report of a foreign limited liability company 100.00 125.00

* * *

Sec. 35.  11A  V.S.A. § 1.22(a)(16) and (17) are amended to read:

* * *

(16)  Annual report of a foreign corporation 150.00 175.00

(17)  Annual report of a domestic corporation 25.00 $35.00

* * *

[Sec. 36.  DELETED]

Sec. 37.  23 V.S.A. § 4(78) is added to read:

(78)  “Enhanced license” shall mean an operator’s license, commercial driver license, junior operator’s license, or nondriver identification card that denotes identity and citizenship, and includes facilitative technology identified by the Department of Homeland Security.

Sec. 38.  23 V.S.A. § 102(d) is amended to read:

(d)  The commissioner may authorize background investigations for potential employees that may include criminal, traffic, and financial records checks; provided, however, that the potential employee is notified and has the right to withdraw his or her name from application.  Additionally, employees who are authorized to manufacture or produce operators’ licenses and identification cards, including enhanced licenses, may be subject to appropriate security clearance if required by federal law, including background investigations that may include criminal and traffic, records checks, and providing proof of United States citizenship.  The commissioner may, in connection with a formal disciplinary investigation, authorize an appropriate a criminal or traffic record background investigation of a current employee; provided, however, that the background review is necessary and relevant to the issue under disciplinary investigation.  Information acquired through a background the investigation that may be shall be provided to the commissioner or designated division director, and must be maintained in a secure manner.  If the information acquired is used as a basis for any disciplinary action, it must be given to the employee during any pre‑termination hearing or contractual grievance hearing to allow the employee an opportunity to respond to or dispute the information.  If no disciplinary action is taken against the employee, the information acquired through the background check shall be destroyed.
Sec. 39.  23 V.S.A. § 7 is added to read: 
§ 7.  ENHANCED DRIVER LICENSE; MAINTENANCE OF DATABASE INFORMATION; FEE
(a)  The face of an enhanced license shall contain the individual’s name, date of birth, gender, a unique identification number, full facial photograph or imaged likeness, address, signature, issuance and expiration dates, and citizenship.  The back of the enhanced license shall have a machine-readable zone.  A Gen 2 vicinity Radio Frequency Identification chip shall be embedded in the enhanced license in compliance with the security standards of the Department of Homeland Security.

(b)  In addition to any other requirement of law or rule, before an enhanced license may be issued to a person, the person shall present for inspection and copying satisfactory documentary evidence to determine identity and United States citizenship.  An application shall be accompanied by:  a photo identity document, documentation showing the person’s date and place of birth, proof of the person’s Social Security number, and documentation showing the person’s principal residence address.  To be issued, an enhanced license must meet the same requirements as those for the issuance of a United States passport.  Before an application may be processed, the documents and information shall be verified as determined by the commissioner.

(c)  No person shall compile or maintain a database of electronically readable information derived from an operator’s license, junior operator’s license, enhanced license, learner permit, or nondriver identification card.  This prohibition shall not apply to a person who accesses, uses, compiles, or maintains a database of the information for law enforcement or governmental purposes.

(d)  The fee for an enhanced license shall be $25.00 in addition to the fees otherwise established by this title.

Sec. 40.  23 V.S.A. § 601(a) is amended to read:

(a)  A resident who intends to operate motor vehicles shall procure a proper license.  A resident who has moved into the state from another jurisdiction with a valid license to operate motor vehicles under section 411 of this title shall procure a license within 60 days of moving into the state.  Operators’ licenses shall not be issued to nonresidents.  All operator licenses issued under this chapter shall expire every four years at midnight on the eve of the anniversary of the date of birth of the applicant at the end of the term for which they were issued.  All junior operator licenses shall expire at midnight on the eve of the anniversary of the date of birth of the applicant at the end of the term for which they were issued.  A person born on February 29 shall, for the purposes of this section, be considered as born on March 1. 

Sec. 41.  REPEAL

The following in Title 23 are repealed:

(1)  § 618 (anatomical gifts); and

(2)  § 4111(a)(10) (commercial driver license form regarding anatomical gifts).

Sec. 42.  18 V.S.A. § 5238(3) is amended to read:

(3)  “Document of gift” means an organ donor card, a statement attached to or imprinted on the reverse side of a Vermont motor vehicle operator’s license, a will, or other writing used to make an anatomical gift.

Sec. 43.  18 V.S.A. § 5239 is amended to read:

§ 5239.  MAKING, AMENDING, REVOKING, AND REFUSING TO MAKE ANATOMICAL GIFTS BY AN INDIVIDUAL

(a)  An individual who is at least 18 years of age may:

(1)  Make an anatomical gift for any of the purposes stated in

section 5242 of this title.

(2)  Limit an anatomical gift to one or more of those purposes.

(3)  Refuse to make an anatomical gift.

(b)  An anatomical gift may be made only by a document of gift signed by the donor.  If the donor cannot sign, the document of gift must be signed by another individual and by two witnesses, all of whom have signed at the direction and in the presence of the donor and of each other, and state that it has been so signed.

(c)  If a document of gift is attached to or imprinted on a donor’s motor vehicle operator’s license, the document of gift must comply with subsection (b) of this section. Revocation, suspension, expiration or cancellation of the license does not invalidate the anatomical gift.

(d)  An anatomical gift by will takes effect upon death of the testator, whether or not the will is probated.  If, after death, the will is declared invalid for testamentary purposes, the validity of the anatomical gift is unaffected.

(e)(d)  A donor may amend or revoke an anatomical gift, not made by will, only by one of the following methods:

(1)  A signed statement.

(2)  An oral statement made in the presence of two individuals.

(3)  Any form of communication during a terminal illness or injury addressed to a physician.

(4)  The delivery of a signed statement to a specified donee to whom a document of gift had been delivered.

(f)(e)  The donor of an anatomical gift made by will may amend or revoke the gift in the manner provided for amendment or revocation of wills or as provided in subsection (e)(d) of this section.

(g)(f)  An anatomical gift that is not revoked by the donor before death is irrevocable and does not require the consent or concurrence of any person after the donor’s death.

(h)(g)  An individual may refuse to make an anatomical gift of the individual’s body or part by any one either of the following:

(1)  A writing signed in the same manner as a document of gift.

(2)  A statement attached to or imprinted on the donor’s Vermont motor vehicle operator’s license.

(3)  Any other writing used to identify the individual as refusing to make an anatomical gift.  During a terminal illness or injury, the refusal may be an oral statement or other form of communication. 

Sec. 44.  AUTHORITY FOR LIMITED SERVICE POSITIONS FOR THE DEPARTMENT OF MOTOR VEHICLES

Three limited service positions are created within the department of motor vehicles.  These shall be used for the administration of the enhanced license program and shall be for a period of three years. 

Sec. 45.  EFFECTIVE DATE

This act shall take effect on passage, except for Sec. 3 which shall not take effect until the commissioner of motor vehicles determines that the systems necessary to operate the program are available.

Pending the question, Will the House concur in the Senate proposal of amendment? Rep. Branagan of Georgia moved that the House refuse to concur and ask for a Committee of Conference, which was agreed to, and the Speaker appointed as members of the Committee of Conference on the part of the House:

Rep. Branagan of Georgia

Rep. Obuchowski of Rockingham

Rep. Aswad of Burlington

 

Rules Suspended; Senate Proposal of Amendment Not Concurred in;

Committee of Conference Requested and Appointed

H. 887

On motion of Rep. Adams of Hartland, the rules were suspended and House bill, entitled

An act relating to health care reform;

Appearing on the Calendar for notice, was taken up for immediate consideration. 

The Senate proposed to the House to the bill as follows:

     By striking 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.  [DELETED]:

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.

* * *

(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 or to a workers’ compensation policy of a casualty insurer licensed to do business in Vermont.

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, or medical or hospital service corporation, but does not include a stand-alone dental plan or a workers’ compensation policy of a casualty insurer licensed to do business in Vermont.  “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, or medical or hospital service corporation but does not include a stand-alone dental plan or a workers’ compensation policy of a casualty insurer licensed to do business in Vermont.  “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;

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

(7)  Uniform claims processing standards for workers’ compensation insurers.

* * * 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.  EFFECTIVE DATE

This act shall take effect on passage. 

Pending the question, Will the House concur in the Senate proposal of amendment? Rep. Leriche of Hardwick moved that the House refuse to concur and ask for a Committee of Conference, which was agreed to, and the Speaker appointed as members of the Committee of Conference on the part of the House:

Rep. Maier of Middlebury

Rep. Chen of Mendon

Rep. Leriche of Hardwick

Committee of Conference Appointed

S. 283

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill, entitled

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

     The Speaker appointed as members of the Committee of Conference on the part of the House:

   Rep. Chen of Mendon

   Rep. Milkey of Brattleboro

               Rep. O’Donnell of Vernon

 Committee of Conference Appointed

H. 748

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on House bill, entitled

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

     The Speaker appointed as members of the Committee of Conference on the part of the House:

   Rep. Clark of Vergennes

   Rep. Gilbert of Fairfax

               Rep. Barnard of Richmond

Committee of Conference Appointed

S. 322

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill, entitled

     An act relating to the Vermont dairy promotion Council;

     The Speaker appointed as members of the Committee of Conference on the part of the House:

   Rep. Zuckerman of Burlington

   Rep. Bray of New Haven

               Rep. McNeil of Rutland Town

Committee of Conference Appointed

S. 336

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill, entitled

     An act relating to juvenile judicial proceedings;

     The Speaker appointed as members of the Committee of Conference on the part of the House:

   Rep. Lippert of Hinesburg

   Rep. Flory of Pittsford

               Rep. Haas of Rochester

Bills Messaged to Senate Forthwith

On motion of Rep. Adams of Hartland, the rules were suspended and the following bills were ordered messaged to the Senate forthwith:

H. 691

House bill, entitled

An act relating to executive and judicial branch fees;

H. 870

House bill, entitled

An act relating to the regulation of professions and occupations;

H. 887

House bill, entitled

An act relating to health care reform;

Third Reading; Bill Passed in Concurrence

With Proposal of Amendment

S. 350

Senate bill, entitled

An act relating to energy independence and economic prosperity;

Was taken up, read the third time and passed in concurrence with proposal of amendment.

Proposal of Amendment Agreed to; Third Reading Ordered

S. 152

Rep. Mrowicki of Putney, for the committee on Human Services, to which had been referred Senate bill, entitled

An act relating to prevention of lead poisoning by exposure to lead in consumer products;

Reported in favor of its passage in concurrence with proposal of amendment as follows:

By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

The general assembly finds that:

(1)  Lead is highly toxic to humans, particularly to young children.

(2)  Exposure to lead can cause irreversible damage that results in

long-lasting, permanent neurological damage, such as decreases in I.Q. scores.

(3)  Lead exposure has also been shown to be associated with school failure, delinquency, and criminal behavior.

(4)  There is no safe level of lead for humans.  Recent medical evidence has demonstrated that serious adverse health effects appear at extremely low blood levels.  Moreover, the effects of lead exposure are cumulative, and exposure to a very small amount of lead dust over time can cause a serious increase in lead levels in blood.

(5)  There are multiple sources of lead exposure, including lead-based paint; soil; certain children’s products; water fixtures; and certain occupational environments.

(6)  Although federal law limits the amount of lead in residential paint and in surface coatings on children’s products, it does not set specific caps on lead in children’s products generally or in other consumer products.

(7)  There is no reason for children’s products made with lead to be sold or marketed in Vermont, or for not taking reasonable steps to reduce lead in all consumer products.

Sec. 2.  9 V.S.A. chapter 63, subchapter 1C is added to read:

Subchapter 1C.  Lead in Consumer Products

§ 2470e.  DEFINITIONS

As used in this subchapter:

(1)  “Children’s product” means any consumer product marketed for use by children under the age of 12, or whose substantial use or handling by children under 12 years of age is reasonably foreseeable, including toys, furniture, jewelry, vitamins and other supplements, personal care products, clothing, food, and food containers and packaging.

(2)(A)  “Contain or containing lead,” unaccompanied by a specific standard, means containing or having a surface coating containing the following amount of lead by weight of lead or lead compound, unless the commissioner of health, in consultation with the attorney general by rule, reduces this percentage generally or with respect to specific products:

(i)  0.06 percent as of October 1, 2008;

(ii)  0.03 percent as of July 1, 2009; and

(iii)  0.01 percent as of January 1, 2010.

(B)  If the standard set under this subsection is preempted by a federal standard as to any class of products, then “contain (or containing) lead,” unaccompanied by a specific standard, means the lowest such federal standards and federal effective dates applicable to such a class of products.

(3)  “Nonresidential paints and primers” does not mean artists’ supplies.

§ 2470f.  PROHIBITION OF LEAD IN CHILDREN’S PRODUCTS

Except to the extent specifically preempted by federal law, no person shall manufacture, regardless of location, for sale in, offer for sale, sell in or into the stream of commerce, or otherwise introduce into the stream of commerce in Vermont any children’s product any component part of which contains lead.  This prohibition shall not apply to:

(1)  any part of a children’s product that is not accessible to a child through normal and reasonably foreseeable use and abuse of such product.  A component part is not accessible under this section if such component part is not physically exposed by reason of a sealed covering or casing and does not

become physically exposed through reasonably foreseeable use and abuse of the product, except that paint, coatings, and electroplating shall not be considered barriers that would render lead in the substrate inaccessible to a child under this subdivision;

(2)  any component of a children’s product that is intended for children age eight and under, that complies with any more stringent federal or European Union standard for lead in consumer products or with a similar standard applicable in states with a total population of 25 million, and that is contained within a battery compartment that cannot be opened without a coin, screwdriver, or other common household tool; or

(3)  any power cord, USB cable, audio-visual cable, jack, connector, or similar device or component used in connection with or attached to a children’s product that:

(A)  conducts electric current;

(B)  is not a small part, as defined by the Consumer Product Safety Commission in 16 C.F.R. part 1501;

(C)  does not have a casing or coating that contains lead; and

(D)  complies with any more stringent federal or European Union standard for lead in consumer products or with a similar standard applicable in states with a total population of 25 million.

§ 2470g.  PROHIBITION OF LEAD IN JEWELRY

Except to the extent specifically preempted by federal law and in addition to the prohibition in section 2470f of this subchapter, no person shall manufacture, regardless of location, for sale in, offer for sale, or sell in or into the stream of commerce, or otherwise introduce into the stream of commerce in Vermont any article of jewelry or other metal decorative item containing lead that is not a children’s product as defined in section 2470e of this title, where the article, or any detachable part of the article, is the size of a small part as defined by the Consumer Product Safety Commission in 16 C.F.R. part 1501, unless the article is:

(1)  expressly and prominently advertised as adult jewelry;

(2)  not commonly understood to be an article for use by a child under age 12; and

(3)  accompanied by a point-of-sale disclosure prescribed by the attorney general to the effect that the article may contain lead at or above the prevailing legal limit for lead in children's products, if that is true.

§ 2470h.  CONSUMER WARNINGS; NOTIFICATION; PHASE-OUTS

Except to the extent specifically preempted by federal law:

(1)  Wheel weights.  Beginning January 1, 2010, the state of Vermont shall not use wheel weights containing lead in vehicles owned by the state or vehicles operated by the state under a long-term lease.  Beginning September 1, 2011, no person shall sell or offer for sale in or into the state of Vermont a new motor vehicle with wheel weights containing lead.

(2)(A)  Plumbing fixtures and related supplies.  As prescribed by the attorney general, beginning January 1, 2009, and ending December 31, 2009, any person who sells or offers for sale in or into the state of Vermont plumbing fixtures whose wetted surfaces contain more than a weighted average of 0.25 percent lead, shall clearly and conspicuously post a warning at the point of sale, stating that these products contain lead and shall also provide to each buyer prior to sale information on the risks of lead exposure.

(B)  Beginning January 1, 2010, no person shall sell or offer for sale in or into the state of Vermont, or use in the state of Vermont, solder or flux for plumbing containing more than 0.2 percent lead, or plumbing fixtures whose wetted surfaces contain more than a weighted average of 0.25 percent lead.

(C)  As prescribed by the attorney general, beginning January 1, 2009, any person who sells or offers for sale in or into the state of Vermont solder or flux containing more than 0.2 percent lead shall clearly and conspicuously post a warning at the point of sale, stating that these products contain lead and shall also provide to each buyer prior to sale information on the risks of lead exposure.

(D)  For the purpose of subdivision (2) of this section, the term “plumbing fixtures” means pipes, pipe and plumbing fittings, and fixtures used to convey or dispense water for human consumption; and the “weighted average” lead content shall be calculated by multiplying the percentage of lead content within each component that comes into contact with water by the percent of the total wetted surface of the entire pipe and pipe fittings, plumbing fittings, and fixtures, and adding all of the percentages. 

(3)  Nonresidential paints and primers.  As prescribed by the attorney general, beginning January 1, 2009, and ending December 31, 2010, any person who sells or offers for sale in or into the state of Vermont nonresidential paints and primers containing lead shall clearly and conspicuously post a warning at the point of sale, stating that these products contain lead and shall also provide to each buyer prior to sale information on the risks of lead exposure.  Beginning January 1, 2011, no person shall sell or offer for sale in or into the state of Vermont nonresidential paints or primers containing lead.  Beginning January 1, 2012, no person shall use nonresidential paints or primers containing lead in the state of Vermont.

(4)  Salvage building materials.  As prescribed by the attorney general, beginning January 1, 2009, any person in commerce who sells or offers for sale in or into the state of Vermont salvage building materials made prior to 1978 shall clearly and conspicuously post a warning at the point of sale, stating that these products may contain lead and shall also provide to each buyer prior to sale information on the risks of lead exposure. 

(5)  Other.  The attorney general, in consultation with the commissioner of health, may by rule require warnings, notifications, or a combination of these relating to other products containing lead.

§ 2470i.  PROHIBITION ON REMOVAL OF LABELS

No person in commerce shall remove from a consumer product any warning label affixed to it that relates in whole or part to lead or lead hazards and which label is required by this state, the federal government, or any other state or country.

§ 2470j.  PROHIBITION ON PROVIDING SUBSTANTIAL ASSISTANCE

No person shall provide substantial assistance to a person in violation of section 2470f, 2470g, 2470h, or 2470i of this section with knowledge or reason to know of the violation. 

§ 2470k.  VIOLATIONS

(a)  A violation of this subchapter is deemed to be a violation of section 2453 of this title.

(b)  The attorney general has the same authority to make rules, conduct civil investigations, enter into assurances of discontinuance, and bring civil actions, and private parties have the same rights and remedies, as provided under subchapter 1 of this chapter.

§ 2470l.  SCOPE

(a)  Nothing in this act shall be construed to regulate firearms, ammunition or components thereof, hunting or fishing equipment or components thereof, lead pellets from air rifles, shooting ranges or circumstances resulting from shooting, handling, storing, casting, or reloading ammunition.

(b)  Nothing in this act shall be construed to alter the existing authority of the agency of natural resources to regulate the lead content of products used in connection with fishing and hunting.

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time and the recommendation of proposal of amendment agreed to and third reading ordered.

 

Action on Bill Postponed

S. 261

Senate bill, entitled

An act relating to phthalates in products for young children;

Was taken up and pending the reading of the report of the committee on Human Services, on motion of Rep. Fisher of Lincoln, action on the bill was postponed until the next legislative day.

Proposal of Amendment Agreed to; Third Reading Ordered

S. 340

Rep. Copeland-Hanzas of Bradford, for the committee on Health Care, to which had been referred Senate bill, entitled

An act relating to mammography patient cost containment;

Reported in favor of its passage in concurrence with proposal of amendment as follows:

By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  8 V.S.A. § 4100a is amended to read:

§ 4100a.  MAMMOGRAMS; COVERAGE REQUIRED

(a)  Insurers shall provide coverage for screening by low-dose mammography for the presence of occult breast cancer, as provided by this subchapter.  Benefits provided shall be at least as favorable as coverage for other radiological examinations and subject to the same dollar limits, deductibles, and coinsurance factors within the provisions of the policy cover the full cost of the mammography service, subject to a co-payment no greater than the co-payment applicable to care or services provided by a primary care physician under the insured’s policy, provided that no co-payment shall exceed $25.00.  Mammography services shall not be subject to deductible or coinsurance requirements.

 (b)  For females 50 40 years or older, coverage shall be provided for an annual screening. For females less than 50 40 years of age, coverage for screening shall be provided upon recommendation of a health care provider.

* * *

Sec. 2.  APPLICABILITY AND EFFECTIVE DATE

This act shall take effect on October 1, 2008 and shall apply to all health benefit plans on and after October 1, 2008 on such date as a health insurer offers, issues, or renews the health benefit plan, but in no event later than October 1, 2009.

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time and the recommendation of proposal of amendment agreed to and third reading ordered.

Favorable Report; Third Reading Ordered

S. 220

Rep. Clarkson of Woodstock, for the committee on Judiciary, to which had been referred House bill, entitled

An act relating to the confidentiality of library patron records;

Reported in favor of its passage.  The bill, having appeared on the Calendar one day for notice, was taken up and read the second time.

Pending the question, Shall the bill be read a third time? Rep. Komline of Dorset demanded the Yeas and Nays, which demand was sustained by the Constitutional number.  The Clerk proceeded to call the roll and the question,
Shall the bill be read a third time? was decided in the affirmative.  Yeas, 91. Nays, 33.

Those who voted in the affirmative are:


Ancel of Calais

Anderson of Montpelier

Andrews of Rutland City

Aswad of Burlington

Atkins of Winooski

Barnard of Richmond

Bissonnette of Winooski

Botzow of Pownal

Branagan of Georgia

Bray of New Haven

Chen of Mendon

Clarkson of Woodstock

Condon of Colchester

Consejo of Sheldon

Copeland-Hanzas of Bradford

Corcoran of Bennington

Courcelle of Rutland City

Davis of Washington

Deen of Westminster

Donaghy of Poultney

Donahue of Northfield

Donovan of Burlington

Edwards of Brattleboro

Emmons of Springfield

Evans of Essex

Fallar of Tinmouth

Fisher of Lincoln

Fitzgerald of St. Albans City

Frank of Underhill

Gervais of Enosburg

Gilbert of Fairfax

Godin of Milton

Grad of Moretown

Haas of Rochester

Head of S. Burlington

Hosford of Waitsfield

Howard of Rutland City

Hutchinson of Randolph

Jerman of Essex

Jewett of Ripton

Johnson of South Hero

Keenan of St. Albans City

Keogh of Burlington

Klein of East Montpelier

Kupersmith of S. Burlington

Larson of Burlington

Lenes of Shelburne

Leriche of Hardwick

Lippert of Hinesburg

Lorber of Burlington

Maier of Middlebury

Malcolm of Pawlet

Manwaring of Wilmington

Marek of Newfane

Martin, C. of Springfield

Martin of Wolcott

McCormack of Rutland City

McCullough of Williston

McFaun of Barre Town

McNeil of Rutland Town

Milkey of Brattleboro

Miller of Shaftsbury

Minter of Waterbury

Mitchell of Barnard

Monti of Barre City

Mook of Bennington

Moran of Wardsboro

Mrowicki of Putney

Nease of Johnson

Nuovo of Middlebury

Obuchowski of Rockingham

Ojibway of Hartford

Otterman of Topsham

Partridge of Windham

Pearson of Burlington

Peltz of Woodbury

Peterson of Williston

Potter of Clarendon

Randall of Troy

Rodgers of Glover

Scheuermann of Stowe

Shand of Weathersfield

Sharpe of Bristol

Smith of Morristown

Spengler of Colchester

Stevens of Shoreham

Sweaney of Windsor

Weston of Burlington

Wheeler of Derby

Winters of Williamstown

Zenie of Colchester


Those who voted in the negative are:


Acinapura of Brandon

Adams of Hartland

Ainsworth of Royalton

Allard of St. Albans Town

Baker of West Rutland

Bostic of St. Johnsbury

Brennan of Colchester

Canfield of Fair Haven

Clark of Vergennes

Clerkin of Hartford

Devereux of Mount Holly

Errecart of Shelburne

Hube of Londonderry

Kilmartin of Newport City

Koch of Barre Town

Komline of Dorset

Larocque of Barnet

Larrabee of Danville

Lawrence of Lyndon

Lewis of Derby

Livingston of Manchester

Marcotte of Coventry

McAllister of Highgate

McDonald of Berlin

Morley of Barton

Morrissey of Bennington

Myers of Essex

O'Donnell of Vernon

Oxholm of Vergennes

Peaslee of Guildhall

Turner of Milton

Valliere of Barre City

Westman of Cambridge


Those members absent with leave of the House and not voting are:


Audette of S. Burlington

Browning of Arlington

Cheney of Norwich

Crawford of Burke

Dostis of Waterbury

Flory of Pittsford

French of Randolph

Grenier of St. Johnsbury

Heath of Westford

Helm of Castleton

Howrigan of Fairfield

Hunt of Essex

Johnson of Canaan

Krawczyk of Bennington

LaVoie of Swanton

Masland of Thetford

Orr of Charlotte

Pellett of Chester

Perry of Richford

Pillsbury of Brattleboro

Pugh of S. Burlington

Symington of Jericho

Trombley of Grand Isle

Wright of Burlington

Zuckerman of Burlington


 

Senate Proposal of Amendment Concurred in

H. 558

     The Senate proposed to the House to amend House bill, entitled

     An act relating to waste facility franchise tax exemption for mining waste;

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.

     Which proposal of amendment was considered and concurred in.

 

 

Senate Proposal of Amendment Concurred in

H. 619

     The Senate proposed to the House to amend House bill, entitled

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

by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  DESIGNATION

33 V.S.A. chapter 3, §§ 301–311 are designated as:

Subchapter 1.  General Provisions

Sec. 2.  33 V.S.A. chapter 3, subchapter 2 is added to read:

Subchapter 2.  Sexual Assault Nurse Examiners

§ 321.  DEFINITION

As used in this chapter, “SANE” means sexual assault nurse examiner.

§ 322.  SANE BOARD

(a)  The SANE board is created for the purpose of regulating sexual assault nurse examiners.

(b)  The SANE board shall be composed of the following members:

(1)  the executive director of the Vermont nurses association, or designee;

(2)  the executive director of the Vermont hospital association, or designee;

(3)  the director of the Vermont state police crime lab, or designee;

(4)  the director of the Vermont network against domestic and sexual violence, or designee;

(5)  an attorney with experience prosecuting sexual assault crimes, appointed by the attorney general;

(6)  the executive director of the Vermont center for crime victim services, or designee;

(7)  a law enforcement officer assigned to one of Vermont’s special units of investigation, appointed by the commissioner of public safety;

(8)  a law enforcement officer employed by a municipal police department, appointed by the executive director of the Vermont criminal justice training council;

(9)  three sexual assault nurse examiners, appointed by the attorney general;

(10)  a physician whose practice includes the care of victims of sexual assault, appointed by the Vermont medical society;

(11)  a pediatrician whose practice includes the care of victims of sexual assault, appointed by the Vermont chapter of the American Academy of Pediatricians;

(12)  the coordinator of the Vermont victim assistance program, or designee;

(13)  the president of the Vermont alliance of child advocacy centers, or designee; and

(14)  the chair of the Vermont state board of nursing, or designee; and

(15)  the commissioner for children and families, or designee.

§ 323.  SANE PROGRAM CLINICAL COORDINATOR

A grant program shall be established by the Vermont center for crime victim services, subject to available funding, to fund a clinical coordinator position for the purpose of staffing the SANE program.  The position shall be contracted through the Vermont network against domestic and sexual violence.  The clinical coordinator shall consult with the SANE board in performing the following duties:

(1)  oversee the recruitment and retention of SANEs in the state of Vermont;

(2)  administer a statewide training program, including:

(A)  the initial SANE certification training;

(B)  ongoing training to ensure currency of practice for SANEs; and

(C)  advanced training programs as needed;

(3)  provide consultation and technical assistance to SANEs and hospitals regarding the standardized sexual assault protocol;

(4)  provide training and outreach to criminal justice and

community-based agencies as needed.

§ 324.  SANE BOARD; DUTIES

(a)  A person licensed under chapter 28 of Title 26 may obtain a specialized certification as a sexual assault nurse examiner if he or she demonstrates compliance with the requirements for specialized certification as established by the SANE board by rule.

(b)  The SANE board shall adopt the following by rule:

(1)  educational requirements for obtaining specialized certification as a sexual assault nurse examiner and statewide standards for the provision of education;

(2)  continuing education requirements and clinical experience necessary for maintenance of the SANE specialized certification;

(3)  a standardized sexual assault protocol and kit to be used by all physicians or hospitals in this state when providing forensic examinations of victims of alleged sexual offenses;

(4)  a system of monitoring for compliance; and

(5)  processes for investigating complaints, revoking certification, and appealing decisions of the board.

(c)  The SANE board may investigate complaints against a SANE and may revoke certification as appropriate.

     Which proposal of amendment was considered and concurred in.

Recess

At two o’clock and forty-five minutes in the afternoon, the Speaker declared a recess until the fall of the gavel.

At four o’clock and thirty minutes in the afternoon, the Speaker called the House to order.

Committee of Conference Appointed

S. 107

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill, entitled

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

     The Speaker appointed as members of the Committee of Conference on the part of the House:

 

   Rep. Minter of Waterbury

   Rep. Devereaux of Mount Holly

               Rep. Potter of Clarendon

Committee of Conference Appointed

S. 171

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill, entitled

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

     The Speaker appointed as members of the Committee of Conference on the part of the House:

   Rep. Flory of Pittsford

   Rep. Marek of Newfane

               Rep. Koch of Barre Town

Committee of Conference Appointed

S. 301

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill, entitled

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

     The Speaker appointed as members of the Committee of Conference on the part of the House:

   Rep. Gervais of Enosburg

   Rep. Donaghy of Poultney

               Rep. Pellett of Chester

Rules Suspended; Senate Proposal of Amendment Not Concurred in;

Committee of Conference Requested and Appointed

H. 353

On motion of Rep. Adams of Hartland, the rules were suspended and House bill, entitled

An act relating to employee free choice for bargaining representative;

Appearing on the Calendar for notice, was taken up for immediate consideration. 

 

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

     By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  3 V.S.A. § 941(g) and (h) are amended to read:

(g)(1)  In determining the representation of state employees in a collective bargaining unit the board shall conduct a secret ballot of the employees and certify the results to the interested parties and to the state employer.  The original ballot shall be so prepared as to permit a vote against representation by anyone named on the ballot.  No representative will be certified with less than a majority of the votes cast.

* * *

(4)  Notwithstanding subdivisions (1), (2), and (3) of this subsection, if the board determines that the petition filed is supported by the valid signature cards of 70 percent or more of the employees in the bargaining unit deemed appropriate by the board, it shall certify the petitioner as the bargaining representative.  Certification under this subdivision applies only when no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit.  An exclusive bargaining representative shall be decertified if the board determines that a decertification petition is supported by valid signature cards of 70 percent or more of the employees in the existing bargaining unit. If the 70 percent threshold is not met, decertification petitions shall be governed by subdivisions (1), (2), and (3) of this subsection. A petitioner shall not be certified as exclusive bargaining representative pursuant to this subdivision unless the petitioner has notified the employer at the outset that the petitioner has commenced a campaign to organize employees of the employer and that the petitioner may seek to file a petition to represent employees without an election pursuant to this subdivision.  The board shall develop rules of practice to implement this subdivision.  The rules shall include model language for signature cards to ensure that the purpose of the card will be clearly understood by employees, including a provision that the card may be used to gain recognition of or decertify an exclusive bargaining representative without the board’s conducting an election.  The rules also shall include procedures that the board shall use to determine the validity of signature cards.  A card is invalid if it is coerced, obtained by fraud, or inauthentic.

(h)  A representative chosen by secret ballot for the purposes of collective bargaining by a majority of the votes cast or certified by the board pursuant to subdivision (g)(4) of this section shall be the exclusive representative of all the employees in such the unit for a minimum of one year.  Such The representative shall be eligible for reelection or recertification pursuant to subdivision (g)(4) of this section.

Pending the question, Will the House concur in the Senate proposal of amendment? Rep. Moran of Wardsboro moved that the House refuse to concur and ask for a Committee of Conference, which was agreed to, and the Speaker appointed as members of the Committee of Conference on the part of the House:

Rep. Moran of Wardsboro

Rep. Trombley of Grand Isle

Rep. Howrigan of Fairfield

Rules Suspended; Action on Bill Postponed

H. 599

On motion of Rep. Adams of Hartland, the rules were suspended and House bill, entitled

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

Was taken up and pending the question, Shall the House concur in the Senate proposal of amendment? on motion of Rep. Jewett of Ripton, action on the bill was postponed until the next legislative day.

Rules Suspended; Senate Proposal of Amendment Not Concurred in;

Committee of Conference Requested and Appointed

H. 890

On motion of Rep. Adams of Hartland, the rules were suspended and House bill, entitled

An act relating to compensation for certain state employees;

Appearing on the Calendar for notice, was taken up for immediate consideration. 

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

     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.

Pending the question, Will the House concur in the Senate proposal of amendment? Rep. Atkins of Winooski moved that the House refuse to concur and ask for a Committee of Conference, which was agreed to, and the Speaker appointed as members of the Committee of Conference on the part of the House:

Rep. Atkins of Winooski

Rep. Hutchinson of Randolph

Rep. McDonald of Berlin

Rules Suspended; Senate Proposal of Amendment Not Concurred in;

Committee of Conference Requested and Appointed

H. 865

Pending entrance of the bill on the Calendar for notice, on motion of Rep. Adams of Hartland,  the rules were suspended and House bill, entitled

An act relating to the Vermont Milk Commission;

Was taken up for immediate consideration.

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

     By striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  Sec. 6(c) of No. 50 of the Acts of 2007 is amended to read:

(c)  The milk commission shall commence the rulemaking process necessary to implement the provisions of Sec. 4 of this act within 60 days of the effective date of this act.  The rule shall take effect when, by rule, legislation, or other agreement, New York and one other state in the Northeast Marketing Area, Federal Order 1, have accomplished the purpose of Sec. 4 of this act or on January 15 July 1, 2009, whichever comes first.

Sec. 2.  6 V.S.A. § 2922 is amended to read:

§ 2922.  VERMONT MILK COMMISSION; MEMBERSHIP

(a)  There shall be a Vermont milk commission, to consist of seven nine members, one member of which shall be the secretary of agriculture, food and markets.  The secretary shall be chair of the commission and serve without compensation.  A quorum shall be a majority of the commission.  The commission shall act only by an affirmative vote of at least six members.  The remaining commission members shall serve for terms of three years, except for the legislative members who shall serve for the term of their election, and be chosen as follows:

* * *

(5)  One member from the house committee on agriculture chosen by the speaker and one member from the senate committee on agriculture chosen by the president pro tempore of the senate.  For attendance at a meeting when the general assembly is not in session, these two legislative members shall be entitled to the same per diem compensation and reimbursement of necessary expenses as provided members of standing committees under 2 V.S.A. § 406.

(b)  All expenditures under this subchapter shall be paid from the receipts hereunder.

Sec. 3.  6 V.S.A. § 2923 is amended to read:

§ 2923.  ADMINISTRATIVE WORK

The Vermont agency of agriculture, food and markets shall perform the administrative work of the commission as directed by the commission.  The commission shall may reimburse the agency of agriculture, food and markets for the cost of services performed by the department agency.  The commission may enter into contracts with and employ technical experts and authorize and retain legal counsel, and other such officers, agents, and employees as are necessary to effect the purposes of this chapter, and may fix their qualifications, duties, and compensation.  The contract remuneration and employment compensation shall be paid from the Vermont milk commission fund and shall be subject to the limitations of section 2924 of this chapter.

Sec. 4.  6 V.S.A. § 2924 is amended to read:

§ 2924.  POWERS AND DUTIES; PRICING AUTHORITY; PUBLIC HEARINGS

(a)  Authority over milk prices.  The commission may establish an equitable minimum or maximum price, or both, and the manner of payments, which shall be paid producers or associations of producers by handlers, and the prices charged consumers and others for fluid milk used in dairy products by distributors or handlers.

(b)  Equitable minimum producer prices.  The commission may establish by rule order after notice and hearing an equitable minimum price to be paid to dairy producers for milk produced in Vermont on the basis of the use thereof in the various classes, grades, and forms.  Because of the need to react immediately to changing market conditions and prices, an equitable minimum price may be established by emergency rule.  Prices so established which exceed federal order prices shall be collected by the commission from the handlers for distribution to dairy producers as a blend price.  The cost of the contracts and employment pursuant to section 2923 of this title and of administering the collection and distribution of these moneys shall be covered by such moneys, not to exceed $50,000.00 $100,000.00.

* * *

(c)  Public hearings.  In order to be informed of the status of the state's dairy industry, the commission shall hold a public hearing:

(1)  At least annually.

(2)  Whenever the price paid to producers in Vermont, including the federal market order price and any over-order premiums, on average, has been reduced $0.50 or more for the previous month, except when such increase is attributable to normal seasonal changes in price by five percent or more over the last month or by 10 percent or more over the last three months.

(3)  Whenever the retail price, on average, has increased by more than $0.08 10 percent per gallon within a three-month period or $0.32 15 percent per gallon within a 12-month period.

(4)  Whenever the cost of production increases by 10 percent or more within a 12-month period.

(5)  Whenever a loss or substantial lessening of the supply of fluid dairy products of proper quality in a specified market has occurred or is likely to occur and that the public health is menaced, jeopardized, or likely to be impaired or deteriorated by the loss or substantial lessening of the supply of fluid dairy products of proper quality in a specified market.

* * *

(e)  Premiums on handlers and distributors for milk used in dairy products sold at retail in Vermont.  The commission may assess a premium on handlers and distributors for milk used in dairy products sold at retail in Vermont.  The premiums assessed and received shall be paid to the state treasury and deposited in the special fund established pursuant to section 2938 of this chapter.  The proceeds of the premium shall be distributed to dairy producers as a blend price.  Any applicable provision of subsections 2925(b)-(f) of this title shall apply to the assessment of such premiums.  In assessing these premiums, the commission shall also take into account any similar assessments made by other New England states.

Sec. 5.  6 V.S.A. § 2925 is amended to read:

§ 2925.  MINIMUM PRODUCER PRICE REGULATION

(a)  The commission may make, rescind, or amend a rule an order regulating minimum producer prices if the commission finds that the federal milk marketing order minimum price is adequate or inadequate as the case may be to ensure that the price paid to dairy producers will cover the costs of milk production and provide a reasonable economic return to dairy producers sufficient to ensure a stable milk production and distribution system in Vermont.  The commission may amend or rescind a rule without a public hearing when necessary to conform the price with an increase in the federal market order price.

(b)  Guidelines for setting prices.  In setting equitable minimum prices, the commission may investigate and ascertain what are reasonable costs and charges for producing, hauling, handling, processing and any other services performed in respect to fluid dairy products.  The board commission shall take into consideration the balance between production and consumption of milk dairy products, the costs of production and distribution, the purchasing power of the public and the price necessary to yield a reasonable return to the producer producers, handlers, and to the distributors.

* * *

(2)  Minimum retail prices should reflect the lowest price at which milk purchased from Vermont producers can be received, processed, packaged, and distributed by handlers and distributors at a just and reasonable return.

(3)  In establishing minimum producer and retail prices, the commission shall make applicable findings regarding the competitive position of Vermont producers and their costs, handler and distributor costs, and reasonable rates of return, and actual handler and distributor rates of return.

* * *

(e)  Purchases by or sales to authorized officials of any town or city charity or public welfare department or by charitable organizations approved by the city or town officials for charitable uses, and school lunch milk, shall be exempt from the price-fixing provisions of this chapter.

(f)  This chapter shall apply to milk produced outside the state subject to regulation by the state in the exercise of its constitutional police powers.  Any sale or purchase by distributors or handlers of such milk within this state at a price less than a regulated minimum price shall be unlawful.

(g)  This section shall not apply to a producer-handler with an annual production of one million pounds of milk or less.

Sec. 6.  6 V.S.A. § 2929 is amended to read:

§ 2929.  POWER TO MAKE ORDERS AND CONDUCT HEARINGS; REGULATIONS

(a)  In administering this section and sections 2675, 2725, 2726, 2921-2928, and 2931-2933 of this title chapter, the commission shall have the power to make orders hereunder, conduct hearings, subpoena, and examine under oath producers, handlers, and distributors, their books, records, documents, correspondence, and accounts, and any other person it deems necessary to carry out the purposes and intent of said sections this chapter.

(b) Any order issued under this chapter shall only be made final after a public hearing and after publication of a proposed order for public review and comment for 30 days following the publication of the proposed order.

(1)  The Commission shall provide notice of the hearing on the proposed order  to interested persons in accordance with the applicable provisions of 3 V.S.A. § 809(b), and to the public by advertisement in the newspapers of record approved by the secretary of state under 3 V.S.A. § 839(d).  The notice shall include proposed regulatory procedures for administration of the pricing order, as appropriate, and otherwise provide sufficient notice and explanation of the potential operation and impact of the order, including proposed findings and conclusions consistent with the requirements of section 2925 of this chapter.

(2) Interested persons shall not be considered “parties” and, except as otherwise specifically provided by subsection (c), the provisions of 3 V.S. A. chapter 25 relating to contested cases shall not apply to the procedure for the conduct of the hearing, the issuance of a proposed pricing order or the promulgation of a final order.  The hearing on the proposed order shall be held in accordance with the applicable provisions of 3 V.S.A. § 840(c) and (d), other than the provisions therein relating to notice and the requirements of 3 V.S.A. § 832a.   The hearing procedure shall provide for the establishment of a formal record of sworn evidence received, matters officially noticed, questions and offers of proof submitted by interested persons, and any proposed findings presented.

(3) The final order shall contain separate findings of fact and conclusions responsive to the requirements of section 2925 of this chapter and based exclusively on the evidence presented at the hearing and on matters officially noticed.  The final order shall also provide specific response to any submissions filed by interested persons, including proposed findings.  The final order shall be issued again in accordance with the procedural requirements of subdivision (1).

(4) The commission shall hold at least one formal deliberative meeting before the issuance of a proposed or final order.  Except as provided in section 2299 of this chapter with respect to affirmative votes, a majority of the commission shall constitute a quorum for these deliberative meetings, as well as for any hearing conducted in accordance with this section.

(c) The procedure relating to ex parte communications set forth in 3 V.S.A. § 813 shall apply as the commission deems appropriate to the development of a proposed order and to the deliberation and issuance of a final order.

(d)  The commission shall adopt rules of procedure for the conduct of a hearing and issuance of a proposed and final pricing order under this chapter. Such rules may be adopted as an emergency rule in accordance with 3 V.S.A. § chapter 25. The commission may adopt, promulgate and enforce such reasonable rules, and regulations, and procedures as are deemed necessary to carry out the administration of the provisions of this section and sections 2675, 2725, 2726, 2921-2928 and 2931-2933 of this title chapter.

Sec. 7.  6 V.S.A. § 2931(a) is amended to read:

(a)  Within 20 days after any final order or decision has been made by the commission, any party to the action or proceeding before the commission, or any person directly affected thereby, may apply for a rehearing in respect to any matter determined in the action or proceeding, or covered or included in the order, specifying in the motion for rehearing the ground therefor.  The commission may grant such rehearing if in its opinion good reason therefore is stated in such motion.

Sec. 8.  6 V.S.A. § 2932 is amended to read:

§ 2932.  DETERMINATION OF MOTION FOR REHEARING

Upon the filing of a motion for rehearing, the commission shall within ten days, either grant or deny the motion, or suspend the order or decision complained of pending further consideration, and any order of suspension may be upon terms and conditions prescribed by the commission.

Sec. 9.  6 V.S.A. § 2938 is added to read:

§ 2938.  FUND ESTABLISHED

The Vermont milk commission fund is established in the state treasury and shall be administered by the secretary of agriculture, food and markets in accordance with the provisions of subchapter 5 of chapter 7 of Title 32, except that interest earned on the fund shall be retained in the fund.  Proceeds from this chapter shall be deposited into the fund.  The fund shall be used as necessary for the purposes of this chapter.  The treasurer shall distribute funds as directed by the commission.

Sec. 10.  6 V.S.A. § 2723a(a) is amended to read:

(a)  It shall be unlawful for any person to distribute fluid dairy products as a distributor, as defined in this chapter, without a license issued by the commissioner secretary.  The commissioner secretary shall license all distributors annually.  Application for the license shall be made to the commissioner secretary upon a form furnished by the commissioner secretary.  The application shall be accompanied by an annual license fee of $15.00 for one year or any part thereof.  The license period shall be from January 1 to December 31.

Sec. 11.  6 V.S.A. § 2981(b) is amended to read:

(b)  Each distributor handler shall pay the Vermont milk commission council each month two cents per hundredweight on all fluid milk sold for consumption within the state of Vermont.  Each distributor handler shall file a report and pay the distributor's handler’s hundredweight fee to the commission council on forms provided for that purpose, except that distributors handlers who sell less than 100 quarts of fluid milk per day may file reports and pay the prescribed hundredweight fees at the end of each three-month period.  In case the same fluid milk is handled by more than one distributor handler, the first distributor handler within the state dealing in or handling the fluid milk shall be the distributor handler within the meaning of this chapter.

Sec. 12.  REPEAL

6 V.S.A. §§ 2928, 2930, 2951, and 2987(b) are repealed.

Sec. 13.  EFFECTIVE DATE

This act shall take effect on passage.

Pending the question, Will the House concur in the Senate proposal of amendment? Rep. Malcolm of Pawlet moved that the House refuse to concur and ask for a Committee of Conference, which was agreed to, and the Speaker appointed as members of the Committee of Conference on the part of the House:

Rep. Malcolm of Pawlet

Rep. Perry of Richford

Rep. Ainsworth of Royalton

Bills Messaged to Senate Forthwith

On motion of Rep. Komline of Dorset, the rules were suspended and the following bills were ordered messaged to the Senate forthwith:

S. 350

Senate bill, entitled

An act relating to energy independence and economic prosperity;

H. 353

House bill, entitled

An act relating to employee free choice for bargaining representative;

H. 865

House bill, entitled

An act relating to the Vermont Milk Commission;

H. 890

House bill, entitled

An act relating to compensation for certain state employees.

Message from the Senate No. 66

     A message was received from the Senate by Mr. Marshall, its Assistant Secretary, as follows:

Madam Speaker:

I am directed to inform the House that the Senate has considered bills originating in the House of the following titles:

H. 545.  An act relating to the agency of human services.

H. 560.  An act relating to the offender work programs board.

H. 863.  An act relating to creation and preservation of affordable housing and smart growth development.

H. 865.  An act relating to Vermont Milk Commission.

H. 873.  An act relating to the cleanup of Lake Champlain and other state waters.

     And has passed the same in concurrence with proposals of amendment in the adoption of which the concurrence of the House is requested.

The Senate has considered a joint resolution originating in the House of the following title:

J.R.H. 59.  Joint resolution urging secondary school and post secondary educators and administrators to collaborate on accelerated learning opportunities for Vermont high school students.

And has adopted the same in concurrence.

The Senate has considered House proposals of amendment to Senate bill of the following titles:

S. 304.  An act relating to a groundwater withdrawal permit program.

S. 313.  An act relating to a license to store and ship wine.

And has concurred therein.

The Senate has considered House proposal of amendment to Senate proposal of amendment to House bill of the following title:

H. 884.  An act relating to ensuring quality in prekindergarten education programs offered by or through school districts.

And has concurred therein.

Pursuant to the request of the House for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill entitled:

S. 290.  An act relating to agricultural water quality financing.

The President pro tempore announced the appointment as members of such Committee on the part of the Senate:

    

          Senator Kittell

          Senator Giard

          Senator Maynard

Pursuant to the request of the House for a Committee of Conference on the disagreeing votes of the two Houses on House bill entitled:

H. 203.  An act relating to increasing the amount of an estate to which a surviving spouse is entitled when the deceased spouse dies without a will.

The President pro tempore announced the appointment as members of such Committee on the part of the Senate:

          Senator Campbell

          Senator Illuzzi

          Senator Hartwell

The Senate has considered House proposal of amendment to Senate proposal of amendment to House bill entitled:

H. 859.  An act relating to increasing substance abuse treatment, vocational training, and transitional housing for offenders in order to reduce recidivism, increase public safety, and reduce corrections costs.

And has refused to concur therein and asks for a Committee of Conference upon the disagreeing votes of the two Houses.

The President pro tempore announced the appointment as members of such Committee on the part of the Senate:

          Senator Sears

          Senator Bartlett

          Senator Scott

The Senate has considered House proposals of amendment to the following Senate bills and has refused to concur therein and asks for Committees of Conference upon the disagreeing votes of the two Houses to which the President pro tempore announced the appointment as members of such Committees on the part of the Senate:

S. 114.  An act relating to enhancing mental health parity.

          Senator Racine

          Senator White

          Senator Mullin

S. 168.  An act relating to operating a motor vehicle under the influence of alcohol or drugs.

          Senator Campbell

          Senator Nitka

          Senator Sears

S. 250.  An act relating to decreasing the amounts of cocaine and heroin required to be possessed to trigger drug trafficking penalties.

          Senator Sears

          Senator Mullin

          Senator Carris

S. 281.  An act relating to end-of-life care and pain management.

          Senator Kittell

          Senator Flanagan

          Senator Racine

S. 311.  An act relating to the use value appraisal program.

          Senator Ayer

          Senator Maynard

          Senator MacDonald

S. 345.  An act relating to lowering the cost of workers’ compensation                                             Senator Illuzzi

          Senator Condos

          Senator Miller

S. 357.  An act relating to domestic violence.

          Senator Campbell

          Senator Cummings

          Senator Sears

S. 364.  An act relating to a comprehensive vertical audit and reliability assessment of the Vermont Yankee nuclear facility

          Senator Cummings

          Senator MacDonald

          Senator Carris

Adjournment

At four o’clock and forty-five minutes in the afternoon, on motion of Rep. Komline of Dorset, the House adjourned until tomorrow at ten o’clock and in the forenoon.

 



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The Vermont General Assembly
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Montpelier, Vermont


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