Download this document in MS Word format


AutoFill Template

Journal of the House

________________

FRIDAY, MAY 2, 2008

At nine o'clock and thirty minutes in the forenoon the Speaker called the House to order.

Devotional Exercises

Devotional exercises were conducted by The Legislative Singers.

Pages Honored

In appreciation of their many services to the members of the General Assembly, the Speaker recognized the following named Pages who are completing their service today and presented them with commemorative pins:

                                              Page Samuel Coxon of Sharon

                                              Page Joshua Crane of Montpelier

                                              Page Victoria DeLuca of Williston

                                              Page Samuel Hooper of Sharon

                                              Page Reilly Johnson of Bradford

                                              Page Eleanor Laukaitis of Williston

                                              Page Lara Loughlin of Dorset

                                              Page Maureen T. Myrick of St. Johnsbury

                                              Page Mikaela Osler of Jericho

                                              Page Rebecca Westcom of Enosburg Falls

Senate Proposal of Amendment Concurred in

With a Further Amendment Thereto

H. 402

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

     An act relating to recapture of health insurance benefits by Group F members of the Vermont state retirement system;

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

Sec. 1.  3 V.S.A. § 459(d) is amended to read:

(d) Early retirement allowance.

* * *

(4) Notwithstanding subdivisions (d)(1) and (2) of this subsection, an elected county sheriff, an employee of the department of fish and wildlife assigned to law enforcement duties, an employee of the military department assigned to airport firefighting duties or a group C member shall upon early retirement receive an early retirement allowance which shall be equal to his or her normal retirement allowance computed under subsection (b) of this section.

Sec. 2.  3 V.S.A. § 500 is amended to read:

§ 500. DEFINED CONTRIBUTION RETIREMENT PLAN

* * *

(f)  An employee who has elected to participate in the defined contribution plan and, after having accrued a minimum of five years of service, becomes disabled as determined by the social security administration or by a state purchased disability insurance policy while currently employed by the state, shall be entitled to continue the same health and dental benefits that are available to members of the Vermont state retirement system who qualify for disability retirement benefits.

(g)  Upon retirement, employees who elect to participate in the defined contribution retirement plan shall be entitled to the same life, dental, and health insurance benefits available to members of the Vermont state retirement system.

(g)(h) The state treasurer shall certify to the governor or governor-elect a statement of the percentage of the payroll of all participating employees sufficient to fund all operating expenses of the defined contribution retirement plan and all contributions of the state which will become due and payable during the next biennium. Contributions by the state shall be charged to the departmental appropriation from which the employees' salaries are paid and shall be included in each departmental budgetary request.

(h)(i) The plan shall be administered by the state treasurer who shall adopt rules necessary to implement and administer the provisions of this chapter.

     Pending the question, Shall the House concur in the Senate proposal of amendment? Rep. Sweaney of Windsor moved that the House concur in the Senate proposal of amendment with a further amendment thereto, as follows:

By adding Secs. 3 and 4 to read as follows:

Sec. 3.  3 V.S.A. § 455(a)(9)(B) is amended to read:

(B)  any regular officer or employee of the department of public safety assigned to police and law enforcement duties, including the commissioner of public safety appointed before July 1, 2001; but, irrespective of the member’s classification, shall not include any member of the general assembly as such, any person who is covered by the Vermont teachers’ retirement system, any person engaged under retainer or special agreement or C beneficiary employed by the department of public safety for not more than 208 hours per year, or any person whose principal source of income is other than state employment.  In all cases of doubt, the retirement board shall determine whether any person is an employee as defined in this subchapter.  Also included under this subdivision are employees of the department of liquor control who exercise law enforcement powers, employees of the department of fish and wildlife assigned to law enforcement duties, motor vehicle inspectors, full-time deputy sheriffs employed by the state of Vermont, full-time members of the capitol police force, investigators employed by the criminal division of the office of the attorney general, department of state’s attorneys, department of health, or office of the secretary of state, who have attained full-time certification from the Vermont criminal justice training council, who are required to perform law enforcement duties as the primary function of their employment, and who may be subject to mandatory retirement permissible under 29 U.S.C. section 623(j), who are first included in membership of the system on or after July 1, 2000.  Also included under this subdivision are full‑time firefighters employed by the state of Vermont.

Sec. 4.  GROUP C PARTICIPATION; CAPITOL POLICE; TRANSFER;
 EFFECTIVE DATE

Members of the capitol police force who participate in a state retirement plan other than the group C plan shall have the option to transfer to the group C plan.  Election to join the group C plan shall be made by June 30, 2009 to be effective on July 1, 2009 and shall be irrevocable.  All past service accrued through the date of transfer shall be calculated based upon the plan in which the service accrued with all appropriate provisions and penalties applied.

     Which was agreed to.

Rep. Larson of Burlington in Chair.

Third Reading; Joint Resolution Adopted

J.R.S. 63

Joint resolution, entitled

Joint resolution requesting the sustainable agriculture council to establish a locally grown collaborative to coordinate future policy pertaining to local food growth initiatives in Vermont;

Was taken up, read the third time and adopted on the part of the House.

 

Proposal of Amendment Agreed to; Third Reading Ordered

J.R.S. 60

Rep. Botzow of Pownal, for the committee on Commerce, to which had been referred Joint resolution, entitled

Joint resolution requesting the Attorney General of Vermont to initiate legal action on behalf of the state and its citizens to seek reimbursement for the costs of illegal price-fixing, price-gouging, and conspiracy to restrain trade in retail gasoline and diesel fuel;

Recommended that the House propose to the Senate to amend the resolution by striking it in its entirety and inserting in lieu thereof the following:

Whereas, the prices of crude oil, and in turn gasoline, have skyrocketed to historically high levels, and

Whereas, these high prices are impacting Vermonters’ daily lives in extremely negative ways and forcing them to make difficult and painful personal life choices, and

Whereas, the continuing escalation in gasoline prices is intolerable and requires decisive federal and state actions to reverse this economic crisis, now therefore be it

Resolved by the Senate and House of Representatives:

That the General Assembly urges that, with respect to gasoline prices:

1)     the U.S. Department of Energy organize a national energy summit;

2)     the U.S. Department of Justice, the Federal Trade Commission, and

the Vermont attorney general in cooperation with other state attorney generals launch federal and state investigations related to gasoline pricing to determine whether there are instances of price gouging, price fixing, collusion, and violations of the antitrust laws;

3)     Congress enact legislation further restricting the ability for price

speculation to occur in the energy trading markets, especially with regard to electronic trading;

4)     the President issue an executive order or, in the alternative, Congress

enact legislation to suspend temporarily the flow of oil into the strategic petroleum reserve;

5)     the President launch a new diplomatic bargaining initiative with

OPEC to reduce the price per barrel for crude oil;

6)     Congress enact a new excess profits tax on the oil companies with the

proceeds directed to the Low Income Heating Assistance Program; and

7)   investigate the creation of appropriate initiatives such as tax credits to stimulate the creation of innovative, alternative energy technologies to reduce the nation’s reliance on fossil fuels, and be it further

Resolved:  That the secretary of state be directed to send a copy of this resolution to the President of the United States, the U.S. Secretary of Energy, the U.S. Secretary of State, the U.S. Attorney General, the chair of the Federal Trade Commission, the Vermont congressional delegation, and the Vermont attorney general.

And when so amended the House proposes to amend the title as follows:

Joint resolution urging state, federal, and international actions to reduce gasoline prices.

The resolution, having appeared on the Calendar one day for notice, was taken up and read the second time.

Pending the question, Shall the House propose to the Senate to amend the resolution as recommended by the committee on Commerce? Rep. Adams of Hartland moved to amend the House proposal of amendment as follows:

By striking the words “the oil” in number (6) of the first resolved clause, and inserting in lieu thereof the word “all”.

Which was disagreed to and the recommendation of proposal of amendment offered by the committee on Commerce was agreed to.

Pending the question, Shall the resolution be read the third time? Rep. Fisher of Lincoln demanded the Yeas and Nays, which demand was sustained by the Constitutional number. 

     Pending the call of the roll,  Rep. O’Donnell of Vernon moved to propose to the Senate to amend the resolution as follows:

     In the first resolve clause, in the sixth subdivision, following the word “oil” by adding the phrase “, propane, and natural gas”

Pending the question, Shall the House proposal of amendment be amended as recommended by Rep. O’Donnell of Vermont? Rep. Zuckerman of Burlington moved to amend the proposal of amendment offered by Rep. O’Donnell of Vernon as follows:

 

 

By inserting the word “nuclear” after the word “propane”.

Which was agreed to on a Division vote.  Yeas, 61.  Nays, 26 and the recommendation of amendment offered by Rep. O’Donnell of Vernon, as amended, was disagreed to on a Division vote.  Yeas, 27.  Nays, 62.

Thereupon, the Clerk proceeded to call the roll and the question, Shall the resolution be read the third time?  was decided in the affirmative.  Yeas, 117.  Nays, 16.

Those who voted in the affirmative are:


Acinapura of Brandon

Adams of Hartland

Ainsworth of Royalton

Allard of St. Albans Town

Ancel of Calais

Anderson of Montpelier

Andrews of Rutland City

Aswad of Burlington

Atkins of Winooski

Audette of S. Burlington

Bissonnette of Winooski

Botzow of Pownal

Bray of New Haven

Browning of Arlington

Canfield of Fair Haven

Chen of Mendon

Cheney of Norwich

Clarkson of Woodstock

Clerkin of Hartford

Consejo of Sheldon

Copeland-Hanzas of Bradford

Crawford of Burke

Davis of Washington

Deen of Westminster

Devereux of Mount Holly

Donovan of Burlington

Dostis of Waterbury

Edwards of Brattleboro

Emmons of Springfield

Evans of Essex

Fallar of Tinmouth

Fisher of Lincoln

Fitzgerald of St. Albans City

Flory of Pittsford

Frank of Underhill

French of Randolph

Gervais of Enosburg

Gilbert of Fairfax

Godin of Milton

Grad of Moretown

Grenier of St. Johnsbury

Haas of Rochester

Head of S. Burlington

Hosford of Waitsfield

Howard of Rutland City

Jerman of Essex

Jewett of Ripton

Johnson of South Hero

Johnson of Canaan

Keenan of St. Albans City

Keogh of Burlington

Kitzmiller of Montpelier

Klein of East Montpelier

Koch of Barre Town

Komline of Dorset

Krawczyk of Bennington

Kupersmith of S. Burlington

Larocque of Barnet

Larson of Burlington

Lawrence of Lyndon

Lenes of Shelburne

Leriche of Hardwick

Lewis of Derby

Lippert of Hinesburg

Livingston of Manchester

Lorber of Burlington

Maier of Middlebury

Malcolm of Pawlet

Manwaring of Wilmington

Marek of Newfane

Martin, C. of Springfield

Martin of Wolcott

Masland of Thetford

McAllister of Highgate

McCormack of Rutland City

McCullough of Williston

McDonald of Berlin

McFaun of Barre Town

McNeil of Rutland Town

Milkey of Brattleboro

Miller of Shaftsbury

Mitchell of Barnard

Monti of Barre City

Mook of Bennington

Moran of Wardsboro

Morrissey of Bennington

Mrowicki of Putney

Myers of Essex

Nease of Johnson

Nuovo of Middlebury

Obuchowski of Rockingham

O'Donnell of Vernon

Orr of Charlotte

Oxholm of Vergennes

Pearson of Burlington

Peaslee of Guildhall

Pellett of Chester

Peltz of Woodbury

Peterson of Williston

Potter of Clarendon

Pugh of S. Burlington

Randall of Troy

Rodgers of Glover

Shand of Weathersfield

Sharpe of Bristol

Smith of Morristown

Spengler of Colchester

Stevens of Shoreham

Sweaney of Windsor

Trombley of Grand Isle

Turner of Milton

Valliere of Barre City

Weston of Burlington

Wheeler of Derby

Wright of Burlington

Zenie of Colchester

Zuckerman of Burlington


Those who voted in the negative are:


Bostic of St. Johnsbury

Branagan of Georgia

Brennan of Colchester

Clark of Vergennes

Donaghy of Poultney

Donahue of Northfield

Errecart of Shelburne

Kilmartin of Newport City

Larrabee of Danville

LaVoie of Swanton

Marcotte of Coventry

Otterman of Topsham

Perry of Richford

Scheuermann of Stowe

Winters of Williamstown


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


Baker of West Rutland

Barnard of Richmond

Condon of Colchester

Corcoran of Bennington

Courcelle of Rutland City

Heath of Westford

Helm of Castleton

Howrigan of Fairfield

Hube of Londonderry

Hunt of Essex

Hutchinson of Randolph

Minter of Waterbury

Morley of Barton

Ojibway of Hartford

Partridge of Windham

Pillsbury of Brattleboro

Westman of Cambridge


 

     Rep. Botzow of Pownal explained his vote as follows:

“Madam Speaker:

     This resolution is a voice for all those struggling to keep up with too rapidly increasing fuel prices.”

     Rep. Donahue of Northfield explained her vote as follows:

“Madam Speaker:

     I support the underlying message of this resolution, within a context of a strong distaste for the use of time spent on resolutions such as these that are purely symbolic.  I vote no because I believe even symbolic actions should not be deceptive to other bodies and our Attorney General to the degree that the language in this resolution is.”

     Rep. Fisher of Lincoln explained his vote as follows:

“Madam Speaker:

     If CNN Money has it right, Exxon Mobile will continue to earn $1,385 of profits every second all day long, and for days to come.  I have often heard people talk about how expensive a debate is.  As a demonstration of excessive profits, during this debate Exxon Mobil’s profits have topped $7,479,000,”

     Rep. Kilmartin of Newport City explained his vote as follows:

“Madam Speaker:

     I vote “no”.  While I do not like the increase in gas prices, I cannot consent to assuming, without evidence, that the price increases are the result of criminal activity, and not international market conditions.  By making such unfounded sensational accusations we destroy our integrity in order to create infantile political fuel to fan the flames of an upcoming election.”

     Rep. O’Donnell of Vernon explained her vote as follows:

“Madam Speaker:

     I am voting yes with the hope that this resolution will be fixed to address all windfall corporate taxes by third reading.  The people we represent are suffering just as much with the high cost of propane and natural gas.

     They deserve our help too!  No one should be able to price gouge when it comes to the basic nee of heating our homes.”

     Rep. Zuckerman of Burlington explained his vote as follows:

“Madam Speaker:

     I am glad the support for this resolution is so broad, but as some members stated, what actions could we take on the state level?  For one, last year we could have enacted policies like that urged on this resolution by taxing the excess profits of Vermont Yankee and then, this past winter, the heating bills for thousands of Vermonters could have been lowered with energy efficiency programs.

     There are many other areas such as transportation, taxes, and incentives that we could implement if the members of this body stood in unity on energy law and not just resolutions.”

Joint Resolution Adopted

J.R.H. 66

Joint resolution, entitled

Joint resolution urging Congress to adopt H.R. 5473, “The Strategic Petroleum Reserve Fill Suspension and Consumer Protection Act of 2008;

Was taken up and adopted on the part of the House on a Division vote.  Yeas, 91.  Nays, 15.

Resolution Ordered to Lie

J.R.H. 68

Joint resolution, entitled

     Joint resolution requesting that all financial institutions, insurance companies, health care facilities, public service board regulated utilities, and public water systems refrain temporarily from increasing any consumer costs;

Having appeared on the Calendar one day for notice, was taken up and pending the question, Shall the House adopt the resolution? on motion of Rep. Nease of Johnson, the resolution was ordered to lie.

Rules Suspended; Senate Proposal of Amendment Concurred in

H. 267

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

An act relating to industrial hemp;

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.  LEGISLATIVE FINDINGS

The general assembly finds:

(1)  Industrial hemp is a suitable crop for Vermont, and its production will contribute to the future viability of Vermont agriculture.

(2)  Allowing industrial hemp production will provide farmers an opportunity to sell their products to a marketplace that pays them a reasonable rate of return for their labor and capital investments.  Farmers in Canada report an $800.00 per‑acre return for the crop.

(3)  The infrastructure needed to process industrial hemp will result in increased business opportunities and new jobs in our communities.

(4)  As a food crop, industrial hemp seeds and oil produced from the seeds have high nutritional value, including healthy fats and protein.

(5)  As a fiber crop, industrial hemp can be used in the manufacture of products such as clothing, building supplies, and animal bedding.

(6)  As a fuel crop, industrial hemp seeds can be processed into biodiesel, and stalks can be pelletized or flaked for burning or processed for cellulosic ethanol.  Industrial hemp also expands opportunities for on-farm renewable energy production.

(7)  The production of industrial hemp can play a useful agronomic role in farm land management as part of a crop rotation system.

Sec. 2.  6 V.S.A. chapter 34 is added to read:

CHAPTER 34.  INDUSTRIAL HEMP

§ 561.  INTENT

     The intent of this act is to establish policy and procedures for growing industrial hemp in Vermont so that farmers and other businesses in the Vermont agricultural industry can take advantage of this market opportunity when federal regulations permit.

§ 562.  DEFINITIONS

As used in this chapter:

(1)  “Grower” means any person or business entity licensed under this chapter by the secretary as an industrial hemp grower.

(2)  “Hemp products” means all products made from industrial hemp, including but not limited to cloth, cordage, fiber, food, fuel, paint, paper, particle board, plastics, seed, seed meal, seed oil, and certified seed for cultivation if such seeds originate from industrial hemp varieties.

(3)  “Industrial hemp” means varieties of the plant cannabis sativa having no more than 0.3 percent tetrahydrocannabinol, whether growing or not, that are cultivated or possessed by a licensed grower in compliance with this chapter.

(4)  “Secretary” means the secretary of agriculture, food and markets.

§ 563.  INDUSTRIAL HEMP:  AN AGRICULTURAL PRODUCT

Industrial hemp is an agricultural product which may be grown, produced, possessed, and commercially traded in Vermont pursuant to the provisions of this chapter.

§ 564.  LICENSING; APPLICATION

(a)  Any person or business entity wishing to engage in the production of industrial hemp must be licensed as an industrial hemp grower by the secretary.  A license from the secretary shall authorize industrial hemp production only at a site or sites specified by the license.

(b)  A license from the secretary shall be valid for 24 months from the date of issuance and may be renewed but shall not be transferable.

(c)(1)  The secretary shall obtain from the Vermont criminal information center a record of convictions in Vermont and other jurisdictions for any applicant for a license who has given written authorization on the application form.  The secretary shall file a user's agreement with the center.  The user's agreement shall require the secretary to comply with all statutes, rules, and policies regulating the release of criminal conviction records and the protection of individual privacy.  Conviction records provided to the secretary under this section are confidential and shall be used only to determine the applicant’s eligibility for licensure.

(2)  A person who has been convicted in Vermont of a felony offense or a comparable offense in another jurisdiction shall not be eligible for a license under this chapter.

(d)  When applying for a license from the secretary, an applicant shall provide information sufficient to demonstrate to the secretary that the applicant intends to grow and is capable of growing industrial hemp in accordance with this chapter, which at a minimum shall include:

(1)  Filing with the secretary a set of classifiable fingerprints and written authorization permitting the Vermont criminal information center to generate a record of convictions as required by subdivision (c)(1) of this section.

(2)  Filing with the secretary documentation certifying that the seeds obtained for planting are of a type and variety compliant with the maximum concentration of tetrahydrocannabinol set forth in subdivision 560(3) of this chapter.

(3)  Filing with the secretary the location and acreage of all parcels sown and other field reference information as may be required by the secretary.

(e)  To qualify for a license from the secretary, an applicant shall demonstrate to the satisfaction of the secretary that the applicant has adopted methods to ensure the legal production of industrial hemp, which at a minimum shall include:

(1)  Ensuring that all parts of the industrial hemp plant that do not enter the stream of commerce as hemp products are destroyed, incorporated into the soil, or otherwise properly disposed of.

(2)  Maintaining records that reflect compliance with the provisions of this chapter and with all other state laws regulating the planting and cultivation of industrial hemp.

(f)  Every grower shall maintain all production and sales records for at least three years.

(g)  Every grower shall allow industrial hemp crops, throughout sowing, growing season, harvest, storage, and processing, to be inspected by and at the discretion of the secretary or his or her designee.

§ 565.  REVOCATION AND SUSPENSION OF LICENSE;

             ENFORCEMENT

(a)  The secretary may deny, suspend, revoke, or refuse to renew the license of any grower who:

(1)  Makes a false statement or misrepresentation on an application for a license or renewal of a license.

(2)  Fails to comply with or violates any provision of this chapter or any rule adopted under it.

(b)  Revocation or suspension of a license may be in addition to any civil or criminal penalties imposed on a grower for a violation of any other state law.

§ 566.  RULEMAKING AUTHORITY

The secretary shall adopt rules to provide for the implementation of this chapter, which shall include rules to allow for the industrial hemp to be tested during growth for tetrahydrocannabinol levels and to allow for supervision of the industrial hemp during sowing, growing season, harvest, storage, and processing.

Sec. 3.  EFFECTIVE DATE

This act shall take effect upon passage, except 6 V.S.A. § 566, which shall take effect at such time as the United States Congress amends the definition of "marihuana" for the purposes of the Controlled Substances Act (21 U.S.C. 802(16)) or the United States drug enforcement agency amends its interpretation of the existing definition in a manner affording an applicant a reasonable expectation that a permit to grow industrial hemp may be issued in accordance with part C of chapter 13 of Title 21 of the United States Code Annotated, or the drug enforcement agency takes affirmative steps to approve or deny a permit sought by the holder of a license to grow industrial hemp in another state.

     Which proposal of amendment was considered and concurred in.

Bill Messaged to Senate Forthwith

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

H. 402

     House bill, entitled

     An act relating to recapture of health insurance benefits by Group F members of the Vermont state retirement system;

Recess

At twelve o’clock and twenty minutes in the afternoon, the Speaker declared a recess until the fall of the gavel.

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

Rules Suspended; Bills Taken up for Immediate Consideration

On motion of Rep. Adams of Hartland, the rules were suspended and the following bills, Appearing on the Calendar for notice, were taken up for immediate consideration. 

Report of Committee of Conference Adopted

H. 11

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon House bill, entitled

An act relating to the commissioner of health;

Respectfully reports that it has met and considered the same and recommends that the House accede to the Senate proposal of amendment

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

THE SENATE                                    THE HOUSE

Sen. Jeanette White                                        Rep. Norman McAllister

Sen. Ed Flanagan                                           Rep. Margaret Andrews

Sen. Douglas Racine                                      Rep. Ann Pugh

Which was considered and adopted on the part of the House.

Rep. Jewett of Ripton in Chair.

Report of Committee of Conference Adopted

H. 290

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon House bill, entitled

An act relating to the underground utility damage prevention system;

Respectfully reports that it has met and considered the same and recommends that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  30 V.S.A. § 7001(4) is amended and (11), (12), (13), and (14) are added to read:

(4)  “Excavation activities” means activities involving the removal of earth, rock or other materials in the ground, disturbing the subsurface of the earth, or the demolition of any structure, by the discharge of explosives or the use of powered or mechanized equipment, including but not limited to digging, trenching, blasting, boring, drilling, hammering, post driving, wrecking, razing, or tunneling, within 100 feet of an underground utility facility.  Excavation activities shall not include the tilling of the soil for agricultural purposes, routine home gardening with hand tools outside easement areas and public rights-of-way, activities relating to routine public highway maintenance, or the use of hand tools by a company, or the company’s agent or a contractor working under the agent’s direction, to locate or service the company’s facilities, provided the company has a written damage prevention program.

(11)  “Powered or mechanized equipment” means equipment that is powered or energized by any motor, engine, or hydraulic or pneumatic device and that is used for excavation or demolition work.

(12)  “Hand tools” means tools powered solely by human energy.

(13)  “Verified” means the location and depth have seen physically determined by hand digging.

(14)  “Damage prevention program” means a program established to ensure employees involved in excavation activities are aware of and utilize appropriate and safe excavating practices.

Sec. 2.  30 V.S.A. § 7004(e) is added to read:

(e)  Notice of excavation activities shall be valid for an excavation site until one of the following occurs:

(1)  The excavation is not completed within 30 days of the notification;

(2)  The markings become faded, illegible, or destroyed; or

(3)  The company installs new underground facilities in a marked area still under excavation.

Sec. 3.  30 V.S.A. § 7006b is amended to read:

§ 7006b.  EXCAVATION AREA PRECAUTIONS

Any person engaged in excavating activities in the approximate location of underground utility facilities marked pursuant to section 7006 of this title shall take reasonable precautions to avoid damage to underground utility facilities, including but not limited to any substantial weakening of the structural or lateral support of such facilities or penetration, severance or destruction of such facilities.  When excavation activities involve horizontal or directional boring, the person engaged in excavation activities shall expose underground facilities to verify their location and depth, in a safe manner, at each location where the work crosses will cross a facility and at reasonable intervals when paralleling an underground facility.  Powered or mechanized equipment may only be used within the approximate location where the facilities have been verified.

Sec. 4.  30 V.S.A. § 7008 is amended to read:

§ 7008.  PENALTIES

(a)  Vermont Digsafe Program.  Any person or company who violates any provisions of sections 7004, 7006, 7006a, 7006b, or 7007 of this title shall be subject to a civil penalty of up to $1,000.00 not more than $500.00 for the first offense, not more than $1,000.00 for the second offense within one year of the date of the first offense, not more than $1,500.00 for the third offense within one year of the first offense, and not more than $5,000.00 for the fourth or subsequent offense within one year of the date of a previous offense, in addition to any other remedies or penalties provided by law or any liability for actual damages.  For the purposes of this subsection, “the date of the first offense” means the date on which the violation occurred, not the date on which the adjudication of the offense resulted.

(b)  Any company which does not mark the location of its underground facilities as required by section 7006 or 7006a of this title shall be subject to a civil penalty of up to $1,000.00.

* * *

(e)  Any person who violates any provisions of sections 7004 through 7007 of this title as to an underground gas distribution or transmission facility shall also be subject to the civil penalties described in section 2816 of this title.  However, a person who has been assessed a civil penalty pursuant to section 2816 of this title shall not be subject to the payment of an assessed penalty under the provisions of this section for the same violation.

Sec. 5.    APPEAL PROCESS FOR PENALTIES FOR UNDERGROUND

               UTILITY DAMAGE PREVENTION SYSTEM VIOLATIONS

The department of public service, in collaboration with the public service board and companies and contractors using the underground utility damage prevention system, shall develop a streamlined appeal process before an independent adjudicator for the purpose of appealing fines assessed pursuant to 30 V.S.A. § 7008(a). 

Sec. 6.  30 V.S.A. § 2816(a) is amended to read:

(a)  Gas Pipeline Safety Program.  Any person who violates any statute, rule, regulation, or order of the public service board relating to safety standards or safety practices applicable to transportation of gas through gas pipeline facilities subject to the jurisdiction of the public service board is subject to a civil penalty of not more than $10,000.00 $100,000.00 for each violation for each day that the violation persists.  However, the maximum civil penalty shall not exceed $500,000.00 $1,000,000.00 for any related series of violations.  The penalty may be imposed by the board after notice to the offending person of the alleged violations and opportunity for hearing.

Sec. 7.  REPEAL

30 V.S.A. § 7004(d)(2) is repealed January 1, 2010.

and after passage, the title of the bill shall be:

     AN ACT RELATING TO THE VERMONT DIG SAFE PROGRAM AND THE FEDERAL GAS PIPELINE SAFETY PROGRAM

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

 THE SENATE                                              THE HOUSE

Sen. Hilda Miller                                            Rep. Judith Livingston

Sen. Philip Scott                                             Rep. Michel Consejo

Sen. Vincent Illuzzi                                         Rep. Ernest Shand

Which was considered and adopted on the part of the House.

Report of Committee of Conference Adopted

H. 865

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon House bill, entitled

An act relating to the Vermont Milk Commission;

Respectfully reports that it has met and considered the same and recommends that the House accede to the Senate proposal of amendment with further amendment by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  Sec. 4 of No. 50 of the Acts of 2007 is amended to read:

Sec. 4.  VERMONT MILK COMMISSION ESTABLISHMENT OF A

              MINIMUM PRODUCER PRICE

(a)  The Vermont milk commission shall establish by rule order pursuant to its authority under chapter 161 of Title 6 a minimum producer price that is designed to achieve a price by which the cost of picking up the milk and hauling the milk from the farm to the purchaser will be paid by the purchaser reflect the cost of production

(b)  The cost of picking up the milk and hauling the milk from the farm to the purchaser will be paid by the purchaser.  Notwithstanding 6 V.S.A. § 2925(d), hauling and stop charges of milk loaded at the farm shall not be charged back to the selling dairy farmer.  No additional charges shall be made, and no costs may be shifted from other benefits the farmer receives to contravene the purpose of this act.  Nor shall any funds be transferred away from the farmer in paid producer differentials or any premiums the farmer would receive, but for this act.

Sec. 2.  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 order 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, 2009 July 1, 2010, whichever comes first.

Sec. 3.  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. 4.  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. 5.  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 period of 3 to 12 months.

(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. 6.  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. 7.  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) of this section, 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) of this subsection.

(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 emergency rules 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. 8.  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. 9.  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. 10.  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. 11.  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. 12.  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. 13.  REPEAL

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

Sec. 14.  EFFECTIVE DATE

This act shall take effect on passage.

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

 THE SENATE                                              THE HOUSE

Sen. Sara Kittell                                             Rep. John Malcolm

Sen. Robert Starr                                           Rep. Albert Perry

Sen. Harold Giard                               Rep. David Ainsworth

Which was considered and adopted on the part of the House.

Report of Committee of Conference Adopted

S. 345

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon Senate bill, entitled

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

Respectfully reports that it has met and considered the same and recommends that the Senate accede to the House proposal of amendment and that the bill be further amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS AND PURPOSE

(a)  The general assembly finds the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

(14)  Significant delays in scheduling a hearing and issuing a decision after formal hearing in contested worker compensation cases have an adverse impact on injured workers, who are often without necessary medical benefits or income for up to two years; on health care providers, who do not receive timely payment of medical bills; and on insurers, who must maintain reserves on open and unresolved claims.

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

Sec. 2.  DEFINITIONS

For the purposes of this act:

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

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

* * * Fraud and Misclassification * * *

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

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

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

§ 2031.  INSURANCE FRAUD

(a)  Definitions.  As used in this section:

* * *

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

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

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

* * *

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

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

Sec. 5.  WORKERS’ COMPENSATION EMPLOYEE CLASSIFICATION,

             CODING AND FRAUD ENFORCEMENT TASK FORCE

(a)  There is created a workers’ compensation employee classification, coding and fraud enforcement task force to be composed of ten members to include the following:

(1)  The commissioner of labor or designee.

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

(3)  The attorney general or designee.

(4)  Two members of the house to be appointed by the speaker.

(5)  Two members of the senate to be appointed by the committee on committees.

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

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

(A)  One member who represents labor.

(B)  One member who represents management.

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

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

(d)  The task force shall:

(1)  Investigate and analyze misclassification and miscoding of employees and occurrences of fraud in the workers’ compensation program and offer recommendations to address the following:

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

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

(C)   In consultation with the Vermont trial lawyers association and the Vermont bar association, ways to improve the effectiveness and enforcement of the current fraud statutes, including specific recommendations for improving enforcement, stimulating interagency cooperation, including information sharing, prosecution and creating a fraud unit with proposals for staffing, reporting, structure, and funding. 

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

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

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

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

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

* * * Evaluation of Permanent Impairment * * *

Sec. 6. 21 V.S.A. § 648(b) is amended to read: 

(b) Any determination of the existence and degree of permanent partial impairment shall be made only in accordance with the whole person determinations as set out in the most recent fifth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment. . In order to utilize any subsequent edition of the American Medical Association Guides to the Evaluation of Permanent Impairment or any other appropriate guides to the evaluation of permanent impairment, the commissioner, in consultation with the department of labor advisory council, shall adopt a rule.    The commissioner shall adopt a supplementary schedule for injuries that are not rated by the most recent edition of the American Medical Association Guides to the Evaluation of Permanent Impairment the impairment guide authorized for use by the department to determine permanent disability.

* * * Safety Incentives * * *

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

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

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

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

(3)  Reviewing the fairness of the distribution of workers’ compensation liability for preexisting conditions.

(4)   Surveying other state workplace safety discount programs to evaluate their effectiveness in improving workplace safety as well as their impact on premiums paid by nonparticipants.

(5)  Improving the rate of return to employment for claimants receiving permanent disability benefits by examining best practices for returning injured employees to work that have been used successfully by providers, employers, and relevant programs in Vermont and other jurisdictions.

(6)  Assuring the application of best practices to the vocational rehabilitation system in order to improve its functionality and effectiveness in increasing employability.

(7)  Identifying and facilitating the implementation of industry best practices and other methods designed to increase substantially workplace safety.   

(8) Impact on injured workers’ and workers’ compensation premiums of reducing the maximum weekly wage from 150 percent to 125 percent of the average weekly wage.

(b)  The department of labor shall issue a progress report on September 15, 2009, and a final report on February 1, 2010.  Both reports shall be provided to the governor, the house committee on commerce, and the senate committee on economic development, housing and general affairs.  The progress report shall outline the department of labor’s advancement in its study, and the final report shall contain a comprehensive outline of the study, as well as suggestions for legislation and administrative rulemaking.

* * * First‑Aid‑Only Injuries and Deductible Policies * * *

Sec. 8.  21 V.S.A. § 640(e) is added to read:

(e)  In the case of a work‑related, first‑aid‑only injury, the employer shall file the first report of injury with the department of labor.  The employer shall file the first report of injury with the workers’ compensation insurance carrier or pay the medical bill within 30 days.  If the employer contests a claim, a first report of injury shall be forwarded to the department of labor and the insurer within five days of notice.  If additional treatment or medical visits are required or if the employee loses more than one day of work, the claim shall be promptly reported to the workers’ compensation insurer, which shall adjust the claim.  “Work‑related, first‑aid‑only‑treatment” means any one-time treatment that generates a bill for less than $750.00 and for which the employee loses no time from work except for the time for medical treatment and recovery not to exceed one day of absence from work.

Sec. 9.  21 V.S.A. § 687(e) is added to read:

(e)  All insurance carriers authorized to write workers’ compensation insurance coverage in Vermont shall make available, at the written request of the employer, a workers’ compensation insurance rate that contains a deductible provision that binds the employer to reimburse the workers’ compensation insurer for at least the first $500.00 of benefits, medical or indemnity, due to an injured employee.  Claims shall be adjusted and paid by the insurer, and the employer shall reimburse the insurer for the amount of the deductible.

* * * Workers’ Compensation Dispute Mediation * * *

Sec. 10.  21 V.S.A. §663a is added to read:

663a. WORKER’S COMPENSATION DISPUTE MEDIATION

    (a)  The commissioner shall require mediation in certain workers’ compensation disputes.  In each case, after a request for formal hearing has been filed,  in accordance with the rule, the commissioner may determine whether the disputed issue and the parties are appropriate for mediation prior to a formal hearing and whether mediation would speed resolution of the dispute without the time and expense of a hearing.  If the commissioner determines that mediation is appropriate, the commissioner shall order the parties to attend at least one mediation session prior to a scheduled hearing.  Referring a case to mediation shall not cause a delay in setting a date for the formal hearing.  The commissioner shall, by rule, determine the procedures by which cases are selected and scheduled for mediation. 

(b)  The costs of mediation shall be divided evenly between the claimant and the employer, unless the parties agree otherwise.  The cost of the mediation, up to the amount set by rule, shall be a cost recoverable by the claimant pursuant to section 678 of this Title. 

(c)  The commissioner shall select or make available a list of qualified individuals to act as mediators, which may include non attorneys provided they are experienced in workers’ compensation including former department employees and insurance adjusters.  The mediators shall be compensated at rates set by rule of the commissioner. 

(d)  Prior to implementing this section, the commissioner shall consult with the department of labor advisory council established by 21 V.S.A. § 1306, the worker compensation committees of the Vermont Bar Association and the Vermont Trial Lawyers Association, representatives of insurers who provide worker compensation coverage in Vermont, and with other appropriate parties. 

* * * Hearing Decisions * * *

Sec. 11.  21 V.S.A. §663 is amended to read:

§ 663. HEARINGS, WHERE HELD; DECISION

(a)  If the compensation is not fixed by agreement, either party may apply to the commissioner for hearing and award in the premises who shall set a time and place for hearing and give at least six days' notice thereof to the parties. Such The hearing shall be held at a place designated by the commissioner. No proposed findings of fact shall be required from the parties unless ordered by the commissioner.  If ordered, the proposed findings of fact shall be submitted within 30 days after conclusion of the hearing.

(b)  The decision may include abbreviated findings of fact or conclusions of law, or both, when appropriate.

* * * Computation of Average Weekly Wage and COLA Adjustment * * *

Sec. 12.  21 V.S.A. § 650(a) and (d) are amended to read:

(a)  Average weekly wages shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the 12 26 weeks preceding an injury; but where, by reason of the shortness of the time during which the worker has been in the employment, or the casual nature of the employment, or the terms of the employment, it is impracticable to compute the rate of remuneration, average weekly wages of the injured worker may be based on the average weekly earnings during the 12 26 weeks previous to the injury earned by a person in the same grade employed at the same or similar work by the employer of the injured worker, or if there is no comparable employee, by a person in the same grade employed in the same class of employment and in the same district.  If during the period of 12 26 weeks an injured employee has been absent from employment on account of sickness or suspension of work by the employer, then only the time during which the employee was able to work shall be used to determine the employee’s average weekly wage.  If the injured employee is employed in the concurrent service of more than one insured employer or self-insurer the total earnings from the several insured employers and self-insurers shall be combined in determining the employee’s average weekly wages, but insurance liability shall be exclusively upon the employer in whose employ the injury occurred.  The average weekly wage of a volunteer firefighter, volunteer rescue or ambulance worker, volunteer reserve police officer, or volunteer as set forth in subdivision 1101(b)(4) of Title 3, who is injured in the discharge of duties as a firefighter, rescue or ambulance worker, police officer, or state agency volunteer, shall be the employee’s average weekly wage in the employee’s regular employment or vocation but the provisions of section 642 of this title relative to maximum weekly compensation and weekly net income rates, shall apply.  For the purpose of calculating permanent total or permanent partial disability compensation, the provisions relating to the maximum and minimum weekly compensation rate shall apply.  In any event, if a worker at the time of the injury is regularly employed at a higher wage rate or in a higher grade of work than formerly during the 12 26 weeks preceding the injury and with larger regular wages, only the larger wages shall be taken into consideration in computing the worker’s average weekly wages.

(d)  Compensation computed pursuant to this section shall be adjusted annually on July 1, so that such compensation continues to bear the same percentage relationship to the average weekly wage in the state as computed under this chapter as it did at the time of injury.  Temporary total or temporary partial compensation shall first be adjusted on the first July 1 following the receipt of 26 weeks of benefits.

* * * Temporary Total Two‑Year Review * * *

Sec. 13.  21 V.S.A. § 642a is added to read:

§ 642a.  TEMPORARY TOTAL; INSURER REVIEW

The employer shall review every claim for temporary total disability benefits that continues for more than 104 weeks.  No later than 30 days after 104 weeks of continuous temporary total disability benefits have been paid, the employer shall file with the department and the claimant a medical report from a physician that evaluates the medical status of the claimant, the expected duration of the disability, and when or if the claimant is expected to return to work.  If the evaluating physician concludes that the claimant has reached a medical end result, the employer shall file a notice to discontinue.

* * * Vocational Rehabilitation * * *

Sec. 14.  21 V.S.A. § 641(a)(1) and (c) are amended to read:

(1)  The employer shall designate a vocational rehabilitation provider from a list provided by the commissioner to initially provide services. Thereafter, absent good cause, the employee may have only one opportunity to select another vocational rehabilitation provider from a list provided by the commissioner upon giving the employer written notice of the employee’s reasons for dissatisfaction with the designated provider and the name and address of the provider selected by the employee. 

(c)  Any vocational rehabilitation plan for a claimant presented to the employer shall be deemed valid if the employer was provided an opportunity to participate in the development of the plan and has made no objections or changes within 21 days after submission.

(d)  The commissioner may adopt rules necessary to carry out the purpose of this section.

Sec. 15.  VOCATIONAL REHABILITATION; DEPARTMENT OF LABOR

(a)  The commissioner of labor shall consult with the department of labor advisory council established in 21 V.S.A. § 1306 to review current practices and activities in the following areas:

(1)  Insurance carriers providing timely notification to the department of labor of all claimants who have been out of work for 90 consecutive days and requiring the department to provide immediate administrative enforcement for any failure to provide that notification.

(2)  Ensuring that all lost‑time claimants receive simple, understandable notices of their rights to and how to request vocational rehabilitation services no later than their receipt of their first workers’ compensation indemnity benefits.

(3)  Enabling timely review and resolution of insurance coverage and payment issues and other disputes arising in the development and implementation of vocational rehabilitation services.

(4)  Developing performance standards to measure the success of vocational rehabilitation plans and other appropriate approaches to increase the number of injured workers returning to suitable employment.

(b)  The department shall issue a written report to the house committee on commerce and the senate committee on economic development, housing and general affairs on or before November 15, 2009.  The report shall outline any deficiencies discovered under subsection (a) of this section and any rules to be adopted to solve the deficiencies.

* * * Attorney Fees * * *

Sec. 16.  21 V.S.A. § 678 is amended to read:

§ 678. COSTS; ATTORNEY FEES

* * *

(b)  In appeals to the superior or supreme courts, if the claimant, if he or she prevails, he or she shall be entitled to reasonable attorney’s attorney fees as approved by the court, and interest at the rate of 12 percent per annum on that portion of any award the payment of which is contested.  Interest shall be computed from the date of the award of the commissioner.

* * *

(d)  In cases for which a formal hearing is requested and the case is resolved prior to formal hearing, the commissioner may award reasonable attorney fees if the claimant retained an attorney in response to an actual or effective denial of a claim and thereafter payments were made to the claimant as a result of the attorney’s efforts. 

(e)  An attorney representing a claimant shall submit a claim for attorney fees and costs within 30 days following a decision in which the claimant prevails.

* * * Assistance to Claimants * * *

Sec. 17.  ASSISTANCE TO CLAIMANT; BARGAINING AGENT;
                RULEMAKING; DEPARTMENT OF LABOR

The department of labor shall adopt a rule that permits a representative of the claimant’s bargaining unit to provide informal assistance to a workers’ compensation claimant in regard to any claim for workers’ compensation benefits in all aspects except at a formal hearing.

* * * Farm Safety Programs * * *

Sec. 18.  FARM SAFETY PROGRAMS; AGENCY OF AGRICULTURE,
               FOOD AND MARKETS

The secretary of agriculture, food and markets in collaboration with the department of labor and the University of Vermont extension service shall continue the important work being done in relation to the following:

(1)  In collaboration with farm organizations and other relevant organizations develop farm safety and occupational health best management practices for the protection of farm workers and shall develop educational programs that will enable farm workers to understand and comply with those best management practices.

(2)  In collaboration with the department of banking, insurance, securities, and health care administration and representatives of the insurance industry investigate the feasibility of developing a safety certification program for farms.  The investigation shall consider approaches to providing a premium reduction for farmers certified under such a safety certification program.

(3)  In collaboration with the University of Vermont extension service rural and agricultural vocational rehabilitation program (RAVR) develop rural and agricultural vocational rehabilitation best management practices for use by vocational rehabilitation counselors.

Sec. 19.  SAFETY STANDARDS FOR FORESTRY AND FOREST

               PRODUCTS INDUSTRIES

(a)  The general assembly finds that workers’ compensation insurance rates for the forestry and forest products industries are significantly higher than rates for those industries in neighboring states and significantly higher than those of the vast majority of other industries within the state.

(b)  The general assembly encourages the forestry and forest products industry associations to take immediate and effective action to reduce safety and health risks and thereby reduce costs by the following:

(1)  In consultation with the department of labor and banking, insurance, securities and health care administration, providing education and awareness programs concerning workers’ compensation rates, experience modification, and steps that may be taken to reduce premium costs.

(2)  In consultation with existing department of labor programs like project worksafe, VOSHA, and project road safe, developing safety and health awareness forestry and forestry product industry programs that address compliance with existing safety and health standards and best work practices.

Sec. 20.  EFFECTIVE DATE

     This act shall take effect on July 1, 2008, except this Sec. and Secs. 10, 7, 15, 16, 17, and 18 which shall take effect on passage:

COMMITTEE ON THE PART OF              COMMITTEE ON THE PART OF THE SENATE                                    THE HOUSE

Sen. Vincent Illuzzi                                            Rep. Warren Kitzmiller

Sen. James Condos                                          Rep. Ernest Shand

Sen. Hinda Miller                                              Rep. John Clerkin

Which was considered and adopted on the part of the House.

Report of Committee of Conference Adopted

H. 432

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon House bill, entitled

An act establishing Juneteenth National Freedom Day;

Respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposal of amendment and that the bill be further amended in Sec. 1, subdivision (4), by adding the word “commemorative” immediately preceding the phrase “state holiday

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

THE SENATE                                    THE HOUSE

Sen. Hilda Miller                                            Rep. Christopher Pearson

Sen. Bill Carris                                    Rep. Tim Jerman

Sen. Douglas Racine                                      Rep. Sandra Grenier

Which was considered and adopted on the part of the House.

Report of Committee of Conference Adopted

H. 636

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon House bill, entitled

An act relating to embezzlement by a public official;

Respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposal of amendment, and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  13 V.S.A. § 2537 is amended to read:

§ 2537.  PERSON HOLDING PROPERTY IN OFFICIAL CAPACITY OR BELONGING TO THE STATE OR A MUNICIPALITY

A state, county, town, or municipal officer or other person who in his or her official capacity receives, collects, controls, or holds money, obligations, or securities belonging to a corporation, public or private, or to a private person, or other property, who embezzles or fraudulently converts to his or her own use any of such money, obligations or, securities, or other property, or a person who embezzles or fraudulently converts to his or her own use, money or other property belonging to the state or to a county or municipality, or a municipal corporation, or a special purpose district, shall be guilty of larceny and shall be imprisoned not more than ten years or fined not more than $1,000.00, or both.

Sec. 2.  13 V.S.A. § 7554 is amended to read:

§ 7554.  RELEASE PRIOR TO TRIAL

(a)  Any person charged with an offense, other than a person held without bail under section 7553 or 7553a of this title, shall at his or her appearance before a judicial officer be ordered released pending trial in accordance with this section.

* * *

(2)  If the judicial officer determines that conditions of release imposed to assure appearance will not reasonably protect the public, the judicial officer may in addition impose the least restrictive of the following conditions or the least restrictive combination of the following conditions which will reasonably assure protection of the public:

(A)  Place the person in the custody of a designated person or organization agreeing to supervise him or her.

(B)  Place restrictions on the travel, association, or place of abode of the person during the period of release.

(C)  Require the person to participate in an alcohol or drug treatment program.  The judicial officer shall take into consideration the defendant’s ability to comply with an order of treatment and the availability of treatment resources.

(D)  Impose any other condition found reasonably necessary to protect the public, except that a physically restrictive condition may only be imposed in extraordinary circumstances.

(E)  If the person is a state, county, or municipal officer charged with violating section 2537 of this title, the court may suspend the officer’s duties in whole or in part, if the court finds that it is necessary to protect the public.

* * *

Sec. 3.  24 V.S.A. § 176 is amended to read:

§ 176.  DEPUTY CLERK

A county clerk may, subject to the approval of the assistant judges, appoint one or more deputies who may perform the duties of clerk for whose acts he or she shall be responsible and whose deputations he or she may revoke at pleasure.  A record of the appointments shall be made in the office of the clerk.  In case of the death of the clerk or his or her inability to act, the deputy or deputies in order of appointment shall perform the duties of the office until a clerk is appointed.  In case of the suspension of the clerk’s duties as a condition of release pending trial for violating 13 V.S.A. § 2537, the assistant judges of the county shall appoint a person to perform the duties of the office until the charge of violating 13 V.S.A. § 2537 is resolved.  If the assistant judges cannot agree upon appointing a person, the judge of the superior court of the county shall make the appointment.  The compensation for the deputy clerk shall be fixed by the assistant judges and paid for by the county.  Such compensation may include such employment benefits as are presently provided to state employees including, but not limited to, health insurance, life insurance, and pension plan, the expense for which shall be borne by the county and the employees.

Sec. 4.  24 V.S.A. § 211 is amended to read:

§ 211.  APPOINTMENT; VACANCY

Biennially, on February 1, the assistant judges of the superior court shall appoint a treasurer for the county who shall hold office for two years and until his or her successor is appointed and qualified.  If such treasurer dies or in the opinion of the assistant judges becomes disqualified, they may appoint a treasurer for the unexpired term.  If the treasurer has his or her duties suspended as a condition of release pending trial for violating 13 V.S.A. § 2537, the assistant judges of the county shall appoint a person to perform the duties of the treasurer until the charge of violating 13 V.S.A. § 2537 is resolved.  If the assistant judges cannot agree upon whom to appoint, the auditor of accounts shall make the appointment.

Sec. 5.  24 V.S.A. § 961 is amended to read:

§ 961.  VACANCY OR SUSPENSION OF OFFICER’S DUTIES

(a)  When a town officer resigns his or her office, or has been removed therefrom, or dies, or becomes insane or removes from town, such office shall become vacant.  Notice of this vacancy shall be posted by the legislative body in at least two public places in the town, and in and near the town clerk’s office, within 10 days of the creation of the vacancy.

(b)  In the event there are so many vacancies on the selectboard that a quorum cannot be achieved, the remaining selectperson or selectpersons shall be authorized to draw orders for payment of continuing obligations and necessary expenses until the vacancies are filled pursuant to section 963 of this title.

(c)  The legislative body of a county, municipality, or special purpose district may designate a person to perform the duties of an officer whose duties have been suspended as a condition of release pending trial for violating 13 V.S.A. § 2537.

Sec. 6.  32 V.S.A. § 167(b) is amended to read:

(b)  In connection with any of his or her duties, the auditor of accounts may administer oaths and may subpoena any person to appear before him or her. Such persons shall testify under oath and be subject to the penalties of perjury, and may be examined concerning any matter relating to the statutory duties of the auditor provided by section 163 of this title.  Nothing in this subsection shall limit a person’s fifth amendment rights against self‑incrimination.

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

 THE SENATE                                              THE HOUSE

Sen. Kevin Mullin                                Rep. Margaret Flory

Sen. Richard Sears                                         Rep. Avis Gervais

Sen.  John Campbell                                      Rep. Kathy Pellett

Which was considered and adopted on the part of the House.

Report of Committee of Conference Adopted

H. 709

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon House bill, entitled

An act relating to campgrounds;

Respectfully reports that it has met and considered the same and recommends that the House accede to the Senate proposal of amendment with further amendment in Sec. 3, 9 V.S.A. § 4470(b), by striking subdivision (2) in its entirety, renumbering the remaining subdivisions to be numerically correct and in the newly numbered subdivision (3), by adding at the end before the period “, which may include a rule that requires campers to respect the peace and quiet enjoyment of other campers and the owner, operator, or agent

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

 THE SENATE                                              THE HOUSE

Sen. Vincent Illuzzi                                         Rep. Kurt Wright

Sen. Hinda Miller                                           Rep. Ira Trombley

Sen.  Bill Carris                                              Rep. Bill Botzow

Which was considered and adopted on the part of the House.

Report of Committee of Conference Adopted

H. 870

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon House bill, entitled

An act relating to the regulation of professions and occupations;

Respectfully reports that it has met and considered the same and recommends that the House accede to the Senate’s first through third and fifth through eleventh proposals of amendment and that the Senate recede from its fourth proposal of amendment

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

THE SENATE                                     THE HOUSE

Sen. George Coppenrath                                Rep. Debbie Evans

Sen. Claire Ayer                                            Rep. Ann Manwaring

Sen. Ed Flanagan                                           Rep. Linda Martin

Which was considered and adopted on the part of the House.

Report of Committee of Conference Adopted

S. 250

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon Senate bill, entitled

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

Respectfully reports that it has met and considered the same and recommends that the House recede from its proposals of amendment, and that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

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

(c)(1)  Trafficking.  A person knowingly and unlawfully possessing cocaine in an amount consisting of 300 150 grams or more of one or more preparations, compounds, mixtures, or substances containing cocaine with the intent to sell or dispense the cocaine shall be imprisoned not more than 30 years or fined not more than $1,000,000.00, or both.  There shall be a permissive inference that a person who possesses cocaine in an amount consisting of 300 150 grams or more of one or more preparations, compounds, mixtures, or substances containing cocaine intends to sell or dispense the cocaine.  The amount of possessed cocaine under this subdivision to sustain a charge of conspiracy under 13 V.S.A. § 1404 shall be no less than 800 400 grams in the aggregate.

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

(c)  Trafficking.  A person knowingly and unlawfully possessing heroin in an amount consisting of seven 3.5 grams or more of one or more preparations, compounds, mixtures, or substances containing heroin with the intent to sell or dispense the heroin shall be imprisoned not more than 30 years or fined not more than $1,000,000.00, or both.  There shall be a permissive inference that a person who possesses heroin in an amount of seven 3.5 grams or more of one or more preparations, compounds, mixtures, or substances containing heroin intends to sell or dispense the heroin.  The amount of possessed heroin under this subsection to sustain a charge of conspiracy under 13 V.S.A. § 1404 shall be no less than 20 10 grams in the aggregate.

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

§ 4252.  PENALTIES FOR DISPENSING OR SELLING REGULATED

DRUGS IN A DWELLING

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

(b)  A landlord shall be in violation of subsection (a) of this section only if the landlord knew at the time he or she signed the lease agreement that the tenant intended to use the dwelling, building, or structure for the purpose of illegally dispensing or selling a regulated drug.

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

Sec. 4.  SENTENCING COMMISSION DRUG POLICY STUDY

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

(A)  sentencing for drug offenses;

(B)  prevention and treatment of drug abuse; and

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

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

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

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

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

 THE SENATE                                               THE HOUSE

Sen. Richard Sears                                         Rep. William Lippert

Sen. Kevin Mullin                                Rep. Maxine Jo Grad

Sen. Bill Carris                                    Rep. Margaret Flory

Which was considered and adopted on the part of the House.

Report of Committee of Conference Adopted

S. 246

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon Senate bill, entitled

An act relating to electronic access to criminal and family court records;

Respectfully reports that it has met and considered the same and recommends that the House recede from its proposals of amendment, and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  12 V.S.A. § 5 is amended to read:

§ 5.  DISSEMINATION OF ELECTRONIC CASE RECORDS

(a)  The court shall not permit public access via the internet to criminal case records or family court case records.  The court may permit criminal justice agencies, as defined in 20 V.S.A. § 2056a, Internet access to criminal case records for criminal justice purposes, as defined in section 2056a.

(b)  This section shall not be construed to prohibit the court from providing electronic access to:

(1)  court schedules of the district or family court, or opinions of the district court; or

(2)  state agencies in accordance with data dissemination contracts entered into under Rule 6 of the Vermont Rules of Electronic Access to Court Records.

Sec. 2.  20 V.S.A. § 2056b is amended to read:

§ 2056b.  DISSEMINATION OF CRIMINAL HISTORY RECORDS TO PERSONS CONDUCTING RESEARCH

(a)  The Vermont criminal information center may provide Vermont criminal history records as defined in section 2056a of this title to bona fide persons conducting research related to the administration of criminal justice, subject to conditions approved by the commissioner of public safety to assure the confidentiality of the information and the privacy of individuals to whom the information relates.  Bulk criminal history data may only be provided in a format that excludes the subject’s name and any unique numbers that may reference the identity of the subject, except that the state identification number may be provided.  Researchers must sign a user agreement which specifies data security requirements and restrictions on use of identifying information.

(b)  No person shall confirm the existence or nonexistence of criminal history record information to any person who would not be eligible to receive the information pursuant to this subchapter other than the subject and properly designated employees of an organization who have a documented need to know the contents of the record.

(c)  A person who violates the provisions of this section with respect to unauthorized disclosure of confidential criminal history record information obtained from the center under the authority of this section shall be fined not more than $5,000.00.  Each unauthorized disclosure shall constitute a separate civil violation.

Sec. 3.  20 V.S.A. § 2056c is amended to read:

§ 2056c.  DISSEMINATION OF CRIMINAL HISTORY CONVICTION RECORDS TO EMPLOYERS THE PUBLIC

(a)  As used in this section:

(1)  “Applicant” means an individual seeking or being sought for employment, a volunteer position with an employer, or admission to a course of instruction offered by the Vermont criminal justice training council.

(2)  “Criminal conviction record” means the record of convictions in Vermont.

(3)  “Employer” means any individual, organization, or governmental body, including partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air, or express company or an authorized agent.  Authorized agent shall include a person who is licensed under chapter 59 of Title 26 to provide private investigative services.

(4)  “The center” means the Vermont criminal information center.

(b)(1)  An employer may obtain from the center a criminal conviction record for any applicant who has given written authorization on a release form provided by the center, provided that the employer has filed a user’s agreement with the center.  The user’s agreement shall require the employer to comply with all statutes, rules, and policies regulating the release of criminal conviction records and the protection of individual privacy.  The user’s agreement shall be signed and kept current by the employer.

(2)  An individual, organization, or governmental body doing business in Vermont which has one or more individuals performing services for it within this state and which is a qualified entity that provides care or services to children, the elderly, or persons with disabilities as defined in 42 U.S.C. § 5119c may obtain from the center an out-of-state criminal conviction record for any applicant who has given written authorization on a release form provided by the center, provided that the employer has filed a user’s agreement with the center and complies with all other provisions of this section.

(c)(1)  The employer may obtain a criminal conviction record only:

(A)  after the applicant has been given an offer of employment conditioned on the record check;

(B)  after a volunteer has been offered a position conditioned on the record check.

(2)  The Vermont criminal justice training council may obtain a criminal conviction record only after an applicant has been accepted into a course of instruction offered by the Vermont criminal justice training council conditioned on the record check.

(3)  An organization that receives a criminal conviction record pursuant to this section shall provide a free copy of such record to the record subject within ten days of receipt of the record.

(4)  An organization entitled to receive a criminal conviction record pursuant to this section shall not require an applicant to obtain or submit personally a copy of his or her criminal conviction record for purposes of employment or acceptance into a course offered by the Vermont criminal justice training council.

(d)(1)  Employers shall be provided with informational material by the center prior to authorization to request criminal conviction records.  The materials shall address the following topics:

(A)  Requirements of the user agreement.

(B)  How to obtain criminal conviction records from the center.

(C)  How to interpret criminal conviction records.

(D)  How to obtain source documents summarized in the criminal conviction records.

(E)  Misuse of criminal conviction records.

(2)  Employers shall certify on the user agreement that they have read and understood the materials prior to receiving authorization to request records from the center.

(e)  The release form shall contain the applicant’s name, signature, date of birth, place of birth, and the signature as attested to by a notary public.  The release form shall state that the applicant has the right to appeal the findings to the center, pursuant to rules adopted by the commissioner of public safety.

(f)(1)  Except as otherwise authorized by this chapter, no person shall confirm the existence or nonexistence of criminal conviction record information or disclose the contents of a criminal conviction record without the record subject’s permission to any person other than the applicant and properly designated employees of the employer who have a documented need to know the contents of the record.

(2)  An employer who receives criminal conviction records pursuant to this section shall maintain a confidential log of all record requests as specified by the center.  The employer shall confidentially retain records relating to requests for criminal conviction records for a period of three years.  At the end of the retention period, if logs and records are to be destroyed, they shall be shredded.

(g)  A person who violates subsection (f) of this section shall be assessed a civil penalty of not more than $5,000.00.  Each unauthorized disclosure shall constitute a separate civil violation.  The office of the attorney general shall have authority to enforce this section.

(h)  The center shall provide notice of the penalty for unauthorized disclosure on a form accompanying any report of a criminal conviction record to an employer.  The notice shall include, in boldface print, the following statements:  THE REQUESTOR AGREES TO USE CRIMINAL CONVICTION RECORD INFORMATION RECEIVED FROM THE VERMONT CRIMINAL INFORMATION CENTER FOR THE PURPOSES INTENDED BY LAW.  THE REQUESTOR AGREES NOT TO DISCLOSE THE CONTENTS OF ANY CRIMINAL CONVICTION RECORD WITHOUT THE APPLICANT’S PERMISSION TO ANY PERSON OTHER THAN THE APPLICANT AND PROPERLY DESIGNATED EMPLOYEES WHO HAVE A DOCUMENTED NEED TO KNOW THE CONTENTS OF THE RECORD. A VIOLATION MAY RESULT IN A CIVIL PENALTY OF UP TO $5,000.00. EACH UNAUTHORIZED DISCLOSURE SHALL CONSTITUTE A SEPARATE CIVIL VIOLATION.

(i)  Nothing in this section shall create a statutory duty for an employer to perform a criminal conviction record check on every job applicant hired by the employer.  An employer’s failure to obtain a criminal conviction record on an employee who subsequently commits a criminal offense shall not be the sole factor in determining civil or criminal liability unless otherwise authorized by law.

(a)  As used in this section:

(1)  “The center” means the Vermont criminal information center.

(2)(A)  “Criminal conviction record” means the record of convictions in a Vermont district court.

(B)  Release of conviction records by the center pursuant to this section or pursuant to any other provision of state law which permits release of Vermont criminal records shall include only the charge for which the subject of the record was convicted, and shall not include docket numbers.

(b)  A person may obtain from the center a criminal conviction record for any purpose provided that the requestor has completed a user’s agreement with the center.  The user’s agreement shall prohibit the alteration of criminal records and shall require the requestor to comply with all statutes, rules, and policies regulating the release of criminal conviction records and the protection of individual privacy.  

(c)  Criminal conviction records shall be disseminated to the public by the center under the following conditions:

(1)  Public access to criminal conviction records shall be provided by a secure Internet site or other alternatives approved by the center. 

(2)  A requestor who wishes to receive criminal conviction records from the center shall accept the terms of a user agreement with the center.  The user agreement shall specify the conditions under which record information is being released and specify guidelines for the proper interpretation and use of the information.

(3)  Prior to receiving criminal conviction records using the center’s Internet site, a requestor shall establish a secure, online account with the center.  Issuance of the account is conditioned upon the requestor’s willingness to accept the terms of a user agreement with the center which specifies the conditions under which record information is being released and specifies guidelines for the proper interpretation and use of the information.

(4)  All queries shall be by name and date of birth of the subject.

(5)  Only “no record” responses and record responses which constitute an exact match to the query criteria shall be returned automatically online.  In the event that query criteria suggest a possible match, center staff will determine whether the query criteria match a record in the repository and shall return the result to the requestor.

(6)  An electronic log shall be kept of all transactions that shall indicate the name of the requestor, the date of the request, the purpose of the request, and the result of the request.  This log shall not be available to any person, other than center staff on a need-to-know basis, except pursuant to a court order. 

(7)  The center’s Internet site shall provide an electronic mechanism for users to notify the center of possible record errors.

(8)  The center’s Internet site shall provide links to center training information regarding best practices for the use of record checks as part of a complete background check process.

(9)  The center shall charge a fee of $20.00 for each criminal record check query pursuant to this section.

(10)  No person entitled to receive a criminal conviction record pursuant to this section shall require an applicant to obtain, submit personally, or pay for a copy of his or her criminal conviction record.

Sec. 4.  20 V.S.A. § 2063 is amended to read:

§ 2063.   CRIMINAL HISTORY RECORD FEES; CRIMINAL HISTORY RECORD CHECK FUND

(a)  Except as otherwise provided for in this section, the cost of each check for a criminal history record as defined in section 2056a of this title or a criminal conviction record as defined in section 2056c of this title based on name and date of birth shall be $10.00 $20.00.  Out-of-state criminal history record checks shall include any additional fees charged by the state from which the record is requested.

(b)  Requests made by criminal justice agencies for criminal justice purposes or other purposes authorized by state or federal law shall be exempt from all record check fees.  The following types of requests shall be exempt from the Vermont criminal record check fee:

(1)  Requests made by any individual, organization, or governmental body doing business in Vermont which has one or more individuals performing services for it within this state and which is a qualified entity that provides care or services to children, the elderly, or persons with disabilities as defined in 42 U.S.C. § 5119c.

(2)  Requests made by researchers approved by the Vermont criminal information center to conduct research related to the administration of criminal justice.  A fee, however, may be charged by the center which shall reflect the cost of generating the requested information.

(3)  Requests made by individuals to review their own record at the Vermont criminal information center; however, copies of the individual's record are not exempt from the record check fee.

(4)  Requests made by the Vermont state housing authority and other public housing authorities pursuant to 24 V.S.A § 4010(c).

(c)(1)  The criminal history record check fund is established and shall be managed by the commissioner of public safety in accordance with the provisions of subchapter 5 of chapter 7 of Title 32.  All The first $179,000.00 of fees paid each year under this section shall be placed in the fund and used for personnel and equipment related to the processing, maintenance, and dissemination of criminal history records.  The commissioner of finance and management may draw warrants for disbursements from this fund in anticipation of receipts.

(2)  After the first $179,000.00 of fees paid each year under this section are placed in the criminal history record check fund, all additional fees paid during that year under this section shall go to the general fund.

(d)  The department of public safety shall have the authority, with the approval of the secretary of administration, to establish limited service positions as are necessary to provide criminal record checks in a timely manner, provided that there are sufficient funds in the criminal history record check fund to pay for the costs of these positions.

Sec. 5.  20 V.S.A. § 2056c(c)(9) is amended to read:

(9)  The center shall charge a fee of $20.00 $30.00 for each criminal record check query pursuant to this section.

Sec. 6.  20 V.S.A. § 2063 is amended to read:

§ 2063.  CRIMINAL HISTORY RECORD FEES; CRIMINAL HISTORY RECORD CHECK FUND

(a)  Except as otherwise provided for in this section, the cost of each check for a criminal history record as defined in section 2056a of this title or a criminal conviction record as defined in section 2056c of this title based on name and date of birth shall be $20.00 $30.00.  Out-of-state criminal history record checks shall include any additional fees charged by the state from which the record is requested.

* * *

(c)(1)  The criminal history record check fund is established and shall be managed by the commissioner of public safety in accordance with the provisions of subchapter 5 of chapter 7 of Title 32.  The first $179,000.00 $200,00.00 of fees paid each year under this section shall be placed in the fund and used for personnel and equipment related to the processing, maintenance, and dissemination of criminal history records.  The commissioner of finance and management may draw warrants for disbursements from this fund in anticipation of receipts.

(2)  After the first $179,000.00 $200,00.00 of fees paid each year under this section is are placed in the criminal history record check fund, all additional fees paid during that year under this section shall go to the general fund.

* * *

Sec. 7.  REPORT

On or before January 15, 2010, the joint fiscal office, in consultation with the judiciary and the Vermont crime information center, shall report to the senate and house committees on judiciary on the fiscal impacts of the records request fees established by this act.

Sec. 8.  EFFECTIVE DATE

Secs. 5 and 6 of this act shall take effect on July 1, 2009.

Sec. 9.  REPEALS

(a)  20 V.S.A. § 2056g (dissemination of criminal history records to licensed private investigators) is repealed.

(b)  20 V.S.A. § 20 V.S.A. §§ 2056c(c)(9) and 2063(a) and (c) (all relating to criminal history record check fees and the criminal history record check fund) shall be repealed effective July 1, 2010.

COMMITTEE ON THE PART OF    COMMITTEE ON THE PART OF

 THE  SENATE                                                    THE HOUSE

Sen. John Campbell                                               Rep. Maxine Jo Grad

Sen. Kevin Mullin                                           Rep. Jim Condon

Sen. Alice Nitka                                                    Rep. Kathleen Keenan        

Which was considered and adopted on the part of the House.

Report of Committee of Conference Adopted

S. 281

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon Senate bill, entitled

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

Respectfully reports that it has met and considered the same and recommends that the House recede from its proposal of amendment and that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.    STUDY AND REPORT ON PALLIATIVE CARE, END-OF-LIFE
             CARE, AND PAIN MANAGEMENT

(a)  There is created a legislative study committee on palliative care,

end-of-life care, and pain management.  The study committee shall consist of three members of the house of representatives, appointed by the speaker of the house, and three members of the senate, appointed by the committee on committees.  The study committee shall discuss and make recommendations on legislative and nonlegislative solutions for improving palliative care, end-of-life care, management of chronic pain, and access to these services for children, in collaboration with:

(1)  the department of health;

(2)  the department of disabilities, aging, and independent living;

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

(4)  the Hospice & Palliative Care Council of Vermont;

(5)  the Vermont health care ombudsman;

(6)  the Vermont long-term care ombudsman;

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

(8)  the Vermont Alliance for Ethical Healthcare;

(9)  the Community of Vermont Elders;

(10)  the Vermont Ethics Network;

(11)  the Vermont Health Care Association;

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

(13)  the Vermont Medical Society;

(14)  the Vermont Coalition for Disability Rights;

(15)  the American Cancer Society;

(16)  AARP Vermont; and

(17)  other interested stakeholders.

(b)  The study committee, at its first meeting, shall elect two legislative members as co-chairs.  The legislative council and the joint fiscal office shall provide staff support to the study committee.  Prior to the first meeting of the study committee, the legislative council staff shall collect from the department of health and the office of the attorney general existing data and background material relevant to the work of the committee.

(c)  The study committee shall consider:

(1)  recommendations for improving ongoing coordination of activities directed toward improving palliative care, end-of-life care, and pain management services throughout the state based on available data and studies from existing sources;

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

(A)  have a terminal illness;

(B)  are receiving hospice care; or

(C)  are suffering chronic pain;

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

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

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

(4)  recommendations for improving methods of informing consumers about options in this state for end-of-life care, palliative care, and management of chronic pain, and about the importance of having an advance directive; and

(5)  such other issues as the study committee determines to be necessary and appropriate.

(d)  No later than January 15, 2009, the study committee shall provide a written report on its findings and recommendations, including the appropriateness of an annual report card and future activities, to the house committees on human services and on health care and the senate committee on health and welfare. 

(e)  The study committee shall meet no more than four times and legislative members of the study committee shall be entitled to receive per diem compensation and reimbursement of expenses as provided in section 406 of

Title 2.

COMMITTEE ON THE PART OF    COMMITTEE ON THE PART OF

 THE SENATE                                              THE HOUSE

Sen. Sara Kittell                                             Rep. William Frank

Sen. Ed Flanagan                                           Rep. Norman McAllister

Sen. Douglas Racine                                      Rep. Kathleen Keenan

Which was considered and adopted on the part of the House.

Report of Committee of Conference Adopted

S. 322

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon Senate bill, entitled

An act relating to the Vermont Dairy Promotion Council;

Respectfully reports that it has met and considered the same and recommends that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS AND INTENT

(a)  The general assembly finds:

(1)  A viable agricultural sector in Vermont represents part of a secure regional food supply, which leads to energy and economic efficiencies.

(2)  The general public is increasingly interested in locally produced food.

(3)  Livestock raised on-farm for meat offers profit potential and economic opportunity for Vermont producers.

(4)  Meat from livestock raised on Vermont farms has an excellent reputation for quality and flavor.

(5)  In recent years, there has been increasing interest in the on-farm slaughter of animals for use by households for economic, ethnic, and humane reasons.

(6)  There are limited options for livestock slaughter in Vermont.

(7)  Historically, meat raised on Vermont farms has been safe and healthy; Vermont’s slaughtering and processing practices have excellent safety records.

(8)  The sustainability of Vermont’s local food systems depends on the relationship between the producer and the consumer.  Key aspects of such successful relationships include the producer’s integrity and the consumer’s interest in and knowledge of how the food is raised, harvested, and processed.

(9)  Community-supported agriculture programs can serve as models for meat producers interested in marketing directly to consumers.

(10)  Raising meat, fruits, and vegetables as close as possible to the kitchens of the end-user minimizes the carbon footprint of the entire food system.

(11)  The dairy promotion council should be required to report annually to the legislature, as well as the governor, on its activities, the amount of money received, and the expenditures thereof.

(b)  It is therefore the intent of the general assembly in enacting this legislation to:

(1)  Assure the continuance of a safe, local food supply.

(2)  Maintain the Vermont meat inspection service’s “at least equal to” status with the federal government’s USDA food safety inspection service.

(3)  Provide for collective ownership of animals raised and slaughtered on Vermont farms where the meat is distributed only to the owners.

(4)  Better understand the rules for building approved slaughter and processing facilities in Vermont and compare Vermont’s meat inspection regulations to other states.

(5)  Determine ways to build cost-effective slaughter and processing facilities and the feasibility of cooperative ownership.

(6)  Promote and encourage growth in Vermont’s livestock industry and the production of meat for local consumption by allowing for more on-farm slaughter and processing of livestock, creating opportunity for the development of more commercial slaughter and processing facilities, and by supporting those currently in the industry.

(7)  Provide more opportunities for Vermont livestock farmers and the supporting slaughter and processing industry to meet the growing demand for animals to be slaughtered and processed by ethnic and religious groups in accordance with their practices and beliefs.

* * * Dairy Promotion Council * * *

Sec. 2.  6 V.S.A. § 2972(b) is amended to read:

(b)  Included among the powers of the council in connection with the enforcement of this chapter are the powers to require reports from any person subject to this chapter; to adopt, rescind, modify, and amend all proper and necessary rules, regulations and orders to administer this chapter, which rules, regulations and orders shall be promulgated by publication in the manner prescribed therefor by the council and shall have the force and effect of law when not inconsistent with existing laws; to administer oaths, subpoena witnesses, take depositions, and certify to official acts; to require any dealer to keep such true and accurate records and to make such reports covering purchases, sales, and receipts of dairy products and related matters as the council deems reasonably necessary for effective administration, which records shall be open to inspection by the secretary of agriculture, food and markets at any reasonable time and as often as may be necessary, but information thus obtained shall not be published or be open to public inspection in any manner revealing any individual dealer’s identity, except as required in proceedings to enforce compliance; to keep accurate books, records, and accounts of all of its dealings, and to make annually a full report of its doings to the house and senate committees on agriculture and the governor, which shall show the amount of money received and the expenditures thereof.  The report shall be submitted on or before January 15.  The Vermont agency of agriculture, food and markets shall perform the administrative work of the council as directed by the council.  The council shall reimburse the agency of agriculture, food and markets for the cost of services performed by the agency.

Sec. 3.  LIVESTOCK STUDY

The legislative council shall consult with local producers, the Vermont congressional delegation, the agency of agriculture, food and markets, and the department of education and develop proposals for a Vermont locally produced meat-in-schools program.  The goals shall be to use existing resources to procure locally produced food products processed in Vermont and inspected by the Vermont agency of agriculture, food and markets to bolster the safety of the food in schools while supporting the Vermont agricultural industry.

Sec. 4.    AGENCY OF AGRICULTURE, FOOD AND MARKETS;
               SLAUGHTER ON PREMISES STUDY

In consultation with interested parties, the agency of agriculture, food and markets shall study and recommend actions to meet the objectives set forth in Sec. 1(b) of this act.  The results of such study and any actions recommended shall be included in a report to the house and senate committees on agriculture on or before January 15, 2009.

Sec. 5.  6 V.S.A. § 3306(f) is amended to read:

(f)  Itinerant custom slaughterers, who slaughter solely at a person’s home or farm and who do not own, operate or work at a slaughtering plant shall be exempt from the licensing provisions of this section.  An itinerant custom slaughterer may slaughter livestock owned by an individual who has entered into a contract with a person to raise the livestock on the farm where it is intended to be slaughtered.

Sec. 6.  9 V.S.A. § 2465a is added to read:

§ 2465a.  DEFINITION OF LOCAL AND LOCALLY GROWN

For the purposes of this chapter and rules adopted pursuant to subsection 2453(c) of this chapter, “local,” “locally grown,” and any substantially similar term shall mean that the goods being advertised originated within Vermont or 30 miles of the place where they are sold, measured directly, point to point, except that the term “local” may be used in conjunction with a specific geographic location, such as “local to New England,” or a specific mile radius, such as “local–within 100 miles,” as long as the specific geographic location or mile radius appears as prominently as the term “local,” and the representation of origin is accurate.

Sec. 7.  FINDINGS

The general assembly finds that:

(1)  The forests of Vermont are integral to the economy, culture, beauty, and appeal of the state.

(2)  The annual contributions of forest-based manufacturing and

forest-related recreation and tourism contribute $1.5 billion to the Vermont economy annually.

(3)  Revenues from forest-related recreation and tourism activities totaled $485 million in 2005.

(4)  Forest-based manufacturing contributes approximately 10 percent of Vermont’s total manufacturing sales.

(5)  The forest-based manufacturing industry provides employment for 6,379 people and generates a payroll of over $207.4 million.

(6)  Forest-based recreation and tourism provide employment for over 6,300 people and generate payrolls of $93.0 million.

(7)  Each 1,000 acres of forest land in Vermont supports 1.4 forest-based manufacturing, forestry, and logging jobs and 1.4 forest-related tourism and recreation jobs.

(8)  Wood provides the energy for approximately six percent of electrical and heating use in Vermont.

(9)  The forests of Vermont help maintain the environment and health of Vermont by aiding the filtering of clean water and clean air and by providing wildlife habitat to a diversity of animals.

(10)  Despite the significant, unparalleled contributions of the forests, forest-based manufacturing, and forest-related recreation and tourism to the state’s economy, jobs, energy, and environment, the forestry and forest products industries receive considerably less support and financial assistance than those afforded other Vermont industries, such as agriculture.

Sec. 8.  10 V.S.A. chapter 85 is added to read:

CHAPTER 85.  VALUE-ADDED FORESTRY AND FOREST PRODUCTS

Subchapter 1.  General Provisions

§ 2701.  POLICY

It is the policy of the state to encourage the sustainable management and use of its forests and woodlands; to preserve the natural beauty of the state’s forests and woodlands; to protect its wildlife; to preserve and protect the forest environment and health; and to promote, foster, and encourage the forestry and forest products industries of the state.  To achieve these goals, the general assembly declares it to be in the best interests of the state to promote opportunities and markets for value-added forest products.  Fostering and enhancing the value-added forestry markets will help the state retain and expand the state’s forest products manufacturing sector, will retain manufacturing jobs within the state, and will protect the health and viability of the forest environment.

Subchapter 2.  Forestry and Forest Products Viability Program

§ 2721.  VERMONT FORESTRY AND FOREST PRODUCTS VIABILITY

               PROGRAM

(a)  The Vermont forestry and forest products viability program is a voluntary program established at the department of forests, parks and recreation to provide assistance to Vermont timber harvesters, foresters, and forest products manufacturers to enhance the financial success and

long-term viability of the Vermont forest products industry.  In administering the program, the commissioner shall:

(1)  Collaborate with the Vermont housing and conservation board, the members of the Vermont wood products marketing council, the Vermont woodlands association, the Vermont loggers association, state agencies, federal agencies, private entities, and service groups to develop, coordinate, and provide technical and financial assistance to Vermont timber harvesters, foresters, and forest products manufacturers.

(2)  Include teams of experts to assist timber harvesters, foresters, and forest products manufacturers in areas such as assessing business resources and potential; researching, developing, and adopting new technologies; improving product quality; developing value-added products; finding and reaching new markets; improving and refining existing markets; and lowering costs of production for Vermont’s forest products sector.

(3)  Encourage economic development through investing in improvements to essential infrastructure and the promotion of timber harvesters, foresters, and forest products manufacturers in Vermont.

(4)  Enter into agreements with private organizations or individuals or with any agency or instrumentality of the United States or of this state and employ technical experts to carry out the purposes of this section.

(5)  In consultation with the Vermont housing and conservation board, other state agencies, foresters, harvesters, and forest products manufacturers establish:

(A)  enrollment criteria for the forestry and forest products viability program created by this section;

(B)  criteria for awarding grants from the forestry and forest products viability program special fund created by subsection (b) of this section.  The grant criteria shall include at least the following requirements:

(i)  the grant recipients shall be enrolled in and committed to participating in the forestry and forest products viability program;

(ii)  the grant application is developed in consultation with timber harvesters, foresters, or forest products manufacturers;

(iii)  the use of the funds will improve the economic viability of a timber harvester, forester, or forest products manufacturer.

(C)  performance goals, evaluative measures, and other criteria to implement and evaluate the effectiveness of the forestry and forest products viability program;

(b)(1)  The forestry and forest products viability program special fund is established in the state treasury and shall be administered by the commissioner of forests, parks and recreation 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.  The fund shall be used only for the purpose of implementing and effectuating the forestry and forest products viability program established by this section.  Any monies appropriated by the general assembly or received by the commissioner of forests, parks and recreation for this program from any other source, public or private, shall be deposited in the fund.  The fund shall be used only for the purposes of:

(A)  providing funds for the forestry and forest products viability program as established in this section;

(B)  providing funds to enrolled timber harvesters, foresters, or forest products manufacturers;

(C)  providing funds to service providers for administrative expenses of the program; and

(D)  leveraging other competitive public and private funds, grants, and contributions for the forestry and forest products viability program.

(2)  The commissioner of forests, parks and recreation may solicit federal funds, grants, and private contributions for the forestry and forest products viability program.

(c)  The commissioner of forests, parks and recreation shall report in writing to the senate and house committees on agriculture and the senate and house committees on natural resources and energy on or before January 31 of each year on the activities and performance of the forestry and forest products viability program.  At a minimum, the report shall include:

(1)  an evaluation of the program utilizing the performance goals and evaluative measures established pursuant to subdivision (a)(5)(C) of this section;

(2)  a summary of the money received in the fund and expended from the fund;

(3)  an estimate of the financial impact of the Vermont forestry and forest products viability program on the forestry and forest products industries;

(4)  an assessment of the potential demand for the program over the succeeding three years; and

(5) a listing of individuals, trade associations, and other persons or entities consulted in preparation of the report.

Sec. 9.   DEPARTMENT OF FORESTS, PARKS AND RECREATION REPORT ON SUSTAINABLE CERTIFICATION OF STATE FOREST LANDS

On or before January 15, 2009, the commissioner of forests, parks and recreation, in consultation with Vermont timber harvesters, foresters, and forest products manufacturers, their respective trade associations; the Vermont Sustainable Jobs Fund; and others shall report to the house and senate committees on agriculture, and the house and senate committees on natural resources and energy regarding the feasibility of certifying the management of and sourcing of materials from state forests under the forest stewardship council (FSC) chain of custody, the sustainable forestry initiative (SFI), and the American tree farm system (ATFS) standards.  The report shall include:

(1)  A summary of the requirements for certification under the FSC, the SFI, and the ATFS standards;

(2)  An estimate of the economic value to the Vermont forestry and forest products industries of certification;

(3)  An estimate of the financial cost to the department of forests, parks and recreation to conduct certification of all state forest land;

(4)  An analysis of how certification standards could be of benefit in emerging carbon markets;

(5)  A recommendation as to whether the department of forests, parks and recreation should certify Vermont state forest land under the FSC, the SFI, and the ATFS standards; or

(6)  A recommendation as to whether the department should establish a program under which a certain percentage of timber sales from state forest lands will be reserved for sale to value-added forest products manufacturers in Vermont.

Sec. 10.  EFFECTIVE DATE

This act shall be effective upon passage, except Sec. 5 which shall take effect April 15, 2009.

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

 THE SENATE                                              THE HOUSE

Sen. Harold Giard                               Rep. David Zuckerman

Sen. Hull Maynard                                         Rep. Christopher Bray

Sen. Sara Kittell                                             Rep. James McNeil

Which was considered and adopted on the part of the House.

Report of Committee of Conference Adopted

S. 107

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon Senate bill, entitled

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

Respectfully reports that it has met and considered the same and recommends that the House recede from its proposal of amendment and that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS; INTENT

(a)  The general assembly finds that:

(1)  it has been unclear whether a municipality may, pursuant to 19 V.S.A. § 305(h), discontinue all town highways that are not on the sworn certificate of the description and measurement of town highways, or whether a municipality may discontinue only all town highways that are not otherwise clearly observable by physical evidence of their use as a highway or trail;

(2)  when the general assembly enacted 19 V.S.A. § 305(h), it intended this provision to apply only to those town highways that are not otherwise clearly observable by physical evidence of their use as a highway or trail.

(b)  The general assembly intends that 19 V.S.A. § 305(h) is intended to apply only to those highways that are not otherwise clearly observable by physical evidence of their use as a highway or trail.

Sec. 2.  19 V.S.A. § 302(a)(6)(A) is amended to read:

(A)  Unidentified corridors are town highways that:

(i)  have been laid out as highways by proper authority through the process provided by law at the time they were created or by dedication and acceptance; and

(ii)  do not, as of July 1, 2009 2010, appear on the town highway map prepared pursuant to section 305 of this title; and

(iii)  are not otherwise clearly observable by physical evidence of their use as a highway or trail; and

(iv)  are not legal trails.

Sec. 3.  19 V.S.A. § 305(h) is amended to read:

(h)  Notwithstanding the provisions of subchapter 7 of chapter 7 of this title, on or before July 1, 2009 2010, a municipality's legislative body may vote to discontinue all town highways that are not otherwise clearly observable by physical evidence of their use as a highway or trail and that are not included as such on the sworn certificate of the description and measurement of town highways filed with the town clerk on February 10 of that year pursuant to subsection (b) of this section.  For the purposes of this section, a town highway shall be deemed to be included on the sworn certificate of the description and measurement of town highways if:

* * *

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

 THE SENATE                                              THE HOUSE

Sen. Jeanette White                                        Rep. Sue Minter

Sen. Ed Flanagan                                 Rep. Dennis Devereux

Sen. William Doyle

Which was considered and adopted on the part of the House.

 

Rules Suspended; Report of Committee of Conference Adopted

S. 284

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

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

Was taken up for immediate consideration.

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon the bill respectfully reports that it has met and considered the same and recommends that the House accede to the Senate proposals of amendment, and that the bill be further amended by striking Secs. 13, 14 and 15 and inserting in lieu thereof the following:

 Sec. 13.  REPORT REQUIRED

On or before January 15, 2009 the commissioner of banking, insurance, securities and health care administration shall report to the house committee on commerce, the house committee on human services, the house committee on health care, the senate committee on health and welfare, and the senate committee on finance the commissioner’s recommendations for amending 33 V.S.A. § 1908a (Vermont Partnership for Long-Term Care) so as to conform Vermont law with the requirements of federal law.

Sec. 14.  EFFECTIVE DATE

This act shall take effect July 1, 2008, except for Secs. 2 and 14 (this section) which shall take effect upon passage.

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF THE SENATE                                    THE HOUSE

SEN. ANN E. CUMMINGS                        REP. WARREN F. KITZMILLER

SEN. HULL P. MAYNARD              REP. ANN D. PUGH

SEN. RICHARD J. MCCORMACK            REP. JUDITH LIVINGSTON

Which was considered and adopted on the part of the House.

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:

S. 107

Senate bill, entitled

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

S. 246

Senate bill, entitled

An act relating to electronic access to criminal and family court records;

S. 250

Senate bill, entitled

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

S. 281

Senate bill, entitled

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

S. 284

Senate bill, entitled

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

S. 322

Senate bill, entitled

An act relating to the Vermont Dairy Promotion Council;

S. 345

Senate bill, entitled

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

Recess

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

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

Message from the Senate No. 75

     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 House proposal of amendment to Senate bill of the following title:

S. 261.  An act relating to phthalates in products for young children.

And has concurred therein.

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

H. 776.  An act relating to computation of the basic needs budget and the livable wage.

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 House proposal of amendment to Senate bill entitled:

S. 358.  An act relating to enhanced driver licenses.

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 Mazza

          Senator Scott

          Senator Shumlin

The Senate has considered the reports of the Committees of Conference upon the disagreeing votes of the two Houses upon Senate bills of the following titles:

S. 301.  An act relating to enhancing the penalties for assaulting a law enforcement officer and to the crime of assault with bodily fluids.

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

And has accepted and adopted the same on its part.

The Senate has considered the reports of the Committees of Conference upon the disagreeing votes of the two Houses upon House bills of the following titles:

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.

H. 599.  An act relating to boating while intoxicated and driving while intoxicated.

H. 617.  An act relating to guardianships.

H. 635.  An act relating to reports of child abuse or neglect.

H. 691.  An act relating to executive and judicial branch fees.

H. 885.  An act relating to developing consistent measurement standards for economic growth.

H. 887.  An act relating to health care reform.

And has accepted and adopted the same on its part.

Committee of Conference Appointed

S. 358

     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 enhanced driver licenses;

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

   Rep. Potter of Clarendon

   Rep. Audette of South Burlington

               Rep. Corcoran of Bennington

Message from Governor

A message was received from His Excellency, the Governor, by Ms. Dennise Casey, Secretary of Civil and Military Affairs, as follows:

Madam Speaker:

I am directed by the Governor to inform the House that on the first day of May, 2008, he approved and signed bills originating in the House of the following titles:

H. 170    An act relating to retirees of the University of Vermont

H. 862    An act relating to approval of amendments to the charter of                                       the village of Waterbury

     Rep. Jewett of Ripton in Chair.

Rules Suspended; Senate Proposal of Amendment Concurred in

H. 776

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 computation of the basic needs budget and the livable wage;

Was taken up for immediate consideration.

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

First:  In Sec. 1, in 2 V.S.A. § 505(b), by adding before the final period the following:

.  This calculation may serve as an additional indicator of wage and other economic conditions in the state and shall not be considered official state guidance on wages or other forms of compensation.

Second:  In Sec. 2, by striking out subsection (b) and inserting in lieu thereof the following:

(b)  The basic needs budget technical advisory council shall consist of eight members, who shall serve from July 1, 2008, until January 15, 2009, when the basic needs budget and livable wage report is issued.  Members of the council shall include:

(1)  One member appointed by the speaker of the house who shall be co‑chair and of a different political party from the legislative member appointed under subdivision (2) of this subsection.

(2)  One member appointed by the senate president pro tempore who shall be co-chair and of a different political party from the legislative member appointed under subdivision (1) of this subsection.

(3)  One member jointly appointed by the speaker of the house and the president pro tempore of the senate who may be from either chamber of the legislature.

(4)  Five additional members with expertise and experience with the data and methodology used to calculate the basic needs budgets and who shall include a representative of each of the following selected by the organization:

(A)  The Vermont sustainable jobs fund.

(B)  The Vermont small business development center.

(C)  The agency of human services, division of operations and planning.

(D)  The department of labor, economic and labor market information division.

(E)  The Vermont society for human resources management.

Third:  In Sec. 2, by striking out subsection (d) in its entirety.

     Which proposal of amendment was considered and concurred in.

Rules Suspended; Report of Committee of Conference Adopted

H. 203

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 increasing the amount of an estate to which a surviving spouse is entitled with the deceased spouse dies without a will;

Was taken up for immediate consideration.

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon the bill respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposals of amendment, and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  REPEAL

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

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

Chapter 42.  Descent and Survivors’ Rights

Subchapter 1.  General Provisions

§ 301.  Intestate Estate

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

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

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

§ 302.  Dower and Curtesy Abolished

The estates of dower and curtesy are abolished.

§ 303.  Afterborn Heirs

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

Subchapter 2.  Survivors’ Rights and Allowances

§ 311.  Share of Surviving Spouse

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

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

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

§ 312.  Surviving Spouse to Receive Household Goods

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

§ 313.  Surviving spouse; vessel, snowmobile, or

             all-terrain vehicle

Whenever the estate of a decedent who dies intestate consists principally of a vessel, snowmobile, or all-terrain vehicle, the surviving spouse shall be deemed to be the owner of the vessel, snowmobile, or all-terrain vehicle, and title to the vessel, snowmobile, or all-terrain vehicle shall automatically pass to the surviving spouse.  The surviving spouse may register the vessel, snowmobile, or all-terrain vehicle pursuant to section 3816 of Title 23.

§ 314.  Share of Heirs other than Surviving Spouse

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

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

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

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

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

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

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

§ 315.  Parent and Child Relationship

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

§ 316.  Support of Surviving Spouse and Family During
             Settlement

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

§ 317.  Allowance to Children before Payment of Debts

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

§ 318.  Allowance to Children After Payment of Debts

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

§ 319.  Waiver of Will by Surviving Spouse

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

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

§ 320.  Effect of Divorce Order

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

§ 321.  Conveyances to Defeat Spouse’s Interest

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

§ 322.  Unlawful Killing Affecting InheritancE

Notwithstanding sections 311 through 314 of this title or provisions otherwise made, in any case where an individual is entitled to inherit or receive property under the last will of a decedent, or otherwise, such individual’s share in the decedent’s estate shall be forfeited and shall pass to the remaining heirs or beneficiaries of the decedent if such person intentionally and unlawfully

kills the decedent.  In any proceedings to contest the right of an individual to inherit or receive property under a will, the record of such person’s conviction of intentionally and unlawfully killing the decedent shall be admissible evidence that such person did intentionally kill the decedent.

Subchapter 3.  Descent, Omitted Issue and Lapsed Legacies

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

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

§ 332.  Share of After-Born Child

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

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

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

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

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

§ 335.  Beneficiary Dying before Testator: Descendants

             to Take

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

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

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

§ 337.  Requirement that Individual Survive Decedent for
            120 hours

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

§ 338.  DISTRIBUTION; ORDER IN WHICH ASSETS APPROPRIATED;

            ABATEMENT

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

(A)  property not disposed of by the will;

(B)  residuary devises and bequests;

(C)  general devises and bequests;

(D)  specific devises and bequests.

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

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

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

Sec. 3.  23 V.S.A. § 2023 is amended to read:

§ 2023.  TRANSFER OF INTEREST IN VEHICLE

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

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

(2)  JTEN (joint tenants);

(3)  TEN COM (tenants in common); or

(4)  PTNRS (partners); or

(5)  TOD (transfer on death).

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

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

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

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

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

(2)  This subsection shall apply to no more than two motor vehicles, and shall not apply if the motor vehicle is titled in the name of one or more persons other than the decedent and the surviving spouse.

(f)  Where the title identifies a person who will become the owner upon the death of the principal owner (transfer on death), the principal owner shall have all rights of ownership and rights of transfer until his or her death.  The designated transferee shall have no rights of ownership until such time as the principal owner has died as established by a valid death certificate.  At that time, the transferee shall become the owner of the vehicle subject to any existing security interests.

Sec. 4.  27 V.S.A. §§ 101 and 102 are amended to read:

§ 101.     Definition; exemption from attachment and
               execution

The homestead of a natural person consisting of a dwelling house, outbuildings and the land used in connection therewith, not exceeding $75,000.00 $125,000.00 in value, and owned and used or kept by such person as a homestead together with the rents, issues, profits, and products thereof, shall be exempt from attachment and execution except as hereinafter provided.

§ 102.  Designating homestead in case of levy

When an execution is levied upon real estate of the person of which a homestead is a part or upon that part of a homestead in excess of the limitation of $75,000.00 $125,000.00 in value, that person may designate and choose the part thereof, not exceeding the limited value, to which the exemption created in section 101 of this title shall apply.  Upon designation and choice or refusal to designate or choose, the officer levying the execution, if the parties fail to agree upon appraisers, shall appoint three disinterested freeholders of the vicinity who shall be sworn by him or her and who shall fix the location and boundaries of the homestead to the amount of $75,000.00 $125,000.00 in value.  The officer shall then proceed with the sale of the residue of the real estate on the execution as in other cases, and the doings in respect to the homestead shall be stated in the return upon the execution.

Sec. 5.  EFFECTIVE DATE

Sec. 2 of this act shall only apply to the estates of persons dying after January 1, 2009.

And that upon passage, the title shall read:

AN ACT RELATING TO DISPOSITION OF PROPERTY UPON DEATH, TRANSFER OF INTEREST IN VEHICLE UPON DEATH, AND HOMESTEAD EXEMPTION

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF THE SENATE                                    THE HOUSE

SEN. JOHN CAMPBELL                            REP. MARGARET FLORY

SEN. VINCENT ILLUZZI                            REP. WILLEM JEWETT

SEN. ROBERT HARTWELL                       REP. MAXINE JO GRAD

Which was considered and adopted on the part of the House.

Rules Suspended; Report of Committee of Conference Adopted

H. 599

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 boating while intoxicated and driving while intoxicated;

Was taken up for immediate consideration.

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon the bill respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposals of amendment, and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  LEGISLATIVE INTENT

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

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

(b)  Grossly negligent operation.

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

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

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

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

§ 1133.  ATTEMPTING TO ELUDE A POLICE OFFICER

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

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

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

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

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

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

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

* * *

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

§ 1201.  OPERATING VEHICLE UNDER THE INFLUENCE OF

               INTOXICATING LIQUOR OR OTHER SUBSTANCE; CRIMINAL

               REFUSAL

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

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

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

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

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

* * *

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

* * *

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

§ 1210.  PENALTIES

* * *

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

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

(f)(1)  Injury resulting.  If serious bodily injury, as defined in 13 V.S.A.

§ 1021(2), results to any person other than the operator from a violation of section 1201 of this title, the person convicted of the violation shall be fined not more than $5,000.00, or imprisoned not less than one year nor more than 15 years, or both.

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

* * *

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

§ 3317.  PENALTIES

* * *

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

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

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

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

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

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

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

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

* * *

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

§ 3323.  OPERATING UNDER THE INFLUENCE OF INTOXICATING

               LIQUOR OR DRUGS; B.W.I.

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

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

(2)  under the influence of intoxicating liquor; or

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

* * *

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

Sec. 8.  20 V.S.A. § 2358 is amended to read:

§ 2358.  MINIMUM TRAINING STANDARDS

(a)  Unless waived by the council under standards adopted by rule, and notwithstanding any statute or charter to the contrary, no person shall exercise law enforcement authority:

(1)  as a part-time law enforcement officer without completing a basic training course within a time prescribed by rule of the council; or

(2)  as a full-time law enforcement officer without either:

(A)  completing a basic training course in the time and manner prescribed by the council; or

(B)  having received, before July 1, 1968, permanent full-time appointment as a law enforcement officer, and completing a basic training course before July 1, 1982.

(3)  as a full or part-time law enforcement officer without completing annual in-service training requirements as prescribed by the council.

(b)  All programs required by this section shall be approved by the council. Completion of a program shall be established by a certificate to that effect signed by the executive director of the council.

(c)  For the purposes of this section:

(1)  “Law enforcement officer” means a member of the department of public safety who exercises law enforcement powers, a member of the state police, a municipal police officer, a constable who exercises law enforcement powers, a motor vehicle inspector, an employee of the department of liquor control who exercises law enforcement powers, an investigator employed by the secretary of state, board of medical practice investigators employed by the department of health, attorney general or a state’s attorney, a fish and game warden, a sheriff, or deputy sheriff who exercises law enforcement powers, or a railroad police officer commissioned pursuant to 30 V.S.A. chapter 45, subchapter 8.

(2)  “Full-time law enforcement officer” means a law enforcement officer with duties of a predictable and continuing nature which require more than 32 hours per week and more than 25 weeks per year.

(3)  “Part-time law enforcement officer” means a law enforcement officer who is not employed full time.

(d)  The council may determine whether a particular position is full time or part time.  Any requirements in this section shall be optional for any elected official.

Sec. 9.  24 V.S.A. § 1936a is amended to read:

§ 1936a.  CONSTABLES; POWERS AND QUALIFICATIONS

(a)  A town may vote at a special or annual town meeting:

(1)  to prohibit constables from exercising any law enforcement authority; or

(2)  to prohibit constables from exercising any law enforcement authority without having successfully completed a course of training under chapter 151 of Title 20.

* * *

Sec. 10.  9 V.S.A. chapter 82 is added to read:

CHAPTER 82.  SCRAP METAL PROCESSORS

§ 3021.  DEFINITIONS

As used in this chapter:

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

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

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

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

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

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

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

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

(D)  Metal beer kegs.

(E)  Manhole covers.

               (F)  Catalytic converters.

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

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

§ 3022.  PURCHASE OF NONFERROUS SCRAP, METAL ARTICLES,

               AND PROPRIETARY ARTICLES

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

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

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

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

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

§ 3023.  PENALTIES

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

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

Sec. 11.  4 V.S.A. § 1102(b) is amended to read:

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

* * *

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

SEC. 12  SUNSET

Secs. 10 and 11 of this act and this section shall be repealed effective July 1, 2009.

 

Sec. 13.  EFFECTIVE DATE

Secs. 8 and 9 of this act shall take effect July 1, 2010.

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF THE SENATE                                    THE HOUSE

SEN. RICHARD SEARS                              REP. WILLIAM LIPPERT

SEN. JOHN CAMPBELL                            REP. AVIS GERVAIS

SEN. VINCENT ILLUZZI                            REP. GEORGE ALLARD

Which was considered and adopted on the part of the House.

Rules Suspended; Report of Committee of Conference Adopted

H. 617

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 guardianships;

Was taken up for immediate consideration.

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses the bill respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposals of amendment, and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  14 V.S.A. chapter 111 is amended to read:

Chapter 111.  Guardians and Ward Guardianship

* * *

Subchapter 12.  Total and Limited Guardianship for Mentally Disabled Adults Persons in Need of Guardianship

§ 3060.  POLICY

Guardianship for mentally disabled persons shall be utilized only as necessary to promote the well‑being of the individual and to protect the individual from violations of his or her human and civil rights.  It shall be designed to encourage the development and maintenance of maximum self‑reliance and independence in the individual and only the least restrictive form of guardianship shall be ordered only to the extent required by the individual’s actual mental and adaptive limitations.  The state of Vermont recognizes the fundamental right of an adult with capacity to determine the extent of health care the individual will receive.

§ 3061.  DEFINITIONS

The words and phrases used in this subchapter shall be defined as follows:

(1)  “Mentally disabled person” “Person in need of guardianship” means a person who has been found to be:

(A)  is at least 18 years of age; and

(B)  mentally ill or developmentally disabled; and

(C)  is unable to manage, without the supervision of a guardian, some or all aspects of his or her personal care or financial affairs as a result of:

(i)  significantly subaverage intellectual functioning which exists concurrently with deficits in adaptive behavior; or

(ii)  a physical or mental condition that results in significantly impaired cognitive functioning which grossly impairs judgment, behavior, or the capacity to recognize reality.  

(2)  “Unable to manage his or her personal care” means the inability, as evidenced by recent behavior, to meet one’s needs for medical care, nutrition, clothing, shelter, hygiene, or safety so that physical injury, illness, or disease has occurred or is likely to occur in the near future.

(3)  “Unable to manage his or her financial affairs” means gross mismanagement, as evidenced by recent behavior, of one’s income and resources which has led or is likely in the near future to lead to financial vulnerability.

(4)  “Developmentally disabled” means significantly subaverage intellectual functioning which exists concurrently with deficits in adaptive behavior.

(5)  “Mentally ill” means a substantial disorder of thought, mood, perception, orientation, or memory, any of which grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life, but shall not include mental retardation.

(6)(4)  “Near relative” means a parent, stepparent, brother, sister, grandparent, spouse, domestic partner, or adult child.

(7)(5)  “Person interested in the welfare of the ward” “Interested person” means a responsible adult who has a direct interest in a mentally disabled person in need of guardianship and includes but is not limited to, the proposed mentally disabled person in need of guardianship, a near relative, a close friend, a guardian, public official, social worker, physician, agent named in an advance directive or in a power of attorney, person nominated as guardian in an advance directive, or clergyman member of the clergy.

(8)  “Total guardianship” means the legal status of a mentally disabled person who is subject to a guardian’s exercise of all the powers listed in section 3069 of this title.

(9)  “Limited guardianship” means the legal status of a mentally disabled person who is subject to a guardian’s exercise of some, but not all of the powers listed in section 3069 of this title.

(10)  “Qualified mental health professional” means:

(A)  for the evaluation of an allegedly developmentally disabled person, a licensed psychologist, physician, certified special educator, or certified clinical social worker, or certified clinical mental health counselor, any of whom must also have specialized training and demonstrated competence in the assessment of developmentally disabled persons;

(B)  for the evaluation of an allegedly mentally ill person, a person with professional training and demonstrated competence in the treatment of mental illness, who shall be a physician, licensed psychologist, certified clinical social worker or certified clinical mental health counselor.

(11)(6)  “Respondent” means a person who is the subject of a petition filed pursuant to section 3063 of this title or a ward person under guardianship who is the subject of any subsequent petition, motion, or action filed pursuant to this subchapter.

(12)(7)  “Party” shall have the same meaning as defined by Rule 17(a)(3) and (b) of the Vermont Rules of Probate Procedure.

(13)(8)  “Ward”Person under guardianship” means a person under in need of guardianship for whom a guardianship order has been issued.

(9)  “Do not resuscitate order” shall have the same meaning as in subdivision 9701(7) of Title 18.

(10)  "Capacity to make medical decisions" means an individual's ability to make and communicate a decision regarding proposed health care based upon having a basic understanding of the diagnosed condition and the benefits, risks, and alternatives to the proposed health care.

(11)  "Informed consent" means the consent given voluntarily by an individual with capacity after being fully informed of the nature, benefits, risks, and consequences of the proposed health care, alternative health care, and no health care.

(12)  “Assent” means a communication by a person under guardianship that a proposed health care decision by his or her guardian is consistent with his or her preferences, when that person has been found to lack the capacity to provide informed consent.

§ 3062.  JURISDICTION; REVIEW OF GUARDIAN’S ACTIONS

(a)  The probate court shall have exclusive original jurisdiction over all proceedings brought under the authority of this chapter or pursuant to section 9718 of Title 18.

(b)  The probate court shall have supervisory authority over guardians.  Any interested person may seek review of a guardian’s proposed or past actions by filing a motion with the court.

§ 3063.  PETITION FOR TOTAL OR LIMITED GUARDIANSHIP

Any person interested in the welfare of the ward An interested person may file a petition with the probate court for the appointment of a total or a limited guardian.  The petition shall state:

(1)  the names and addresses of the petitioner and the respondent, and,; if known, the name and address of a near relative of the respondent; the name and address of the person nominated as guardian in an advance directive; and the name and address of the current guardian, and agent named in an advance directive or in a power of attorney;

(2)  the interest of the petitioner in the respondent;

(3)  whether that the respondent is alleged to be mentally ill or developmentally disabled a person in need of guardianship, and whether that the respondent is at least 18 years of age or will become 18 years of age within four months of the filing of a petition;

(4)  specific reasons with supporting facts why guardianship is sought;

(5)  the specific areas where supervision and protection is requested and the powers of the guardian requested for inclusion in the court’s order;

(6)  the nature, description and approximate value of the respondent’s income and resources, including public benefits and pension;

(7)  if a specific individual is proposed as guardian, the name and address of the proposed guardian and the relationship of the proposed guardian to the respondent; and

(8)  alternatives to guardianship that have been considered and an explanation as to why each alternative is unavailable or unsuitable.

§ 3064.  NOTICE OF PETITION AND HEARING

(a)  Upon the filing of the petition, the probate court shall schedule a hearing and notice shall be given as provided by the rules of probate procedure.

(b)  The hearing shall be held not less than 15 nor more than 30 days after the filing with the court of the evaluation required by section 3067 of this title. The hearing may be continued for good cause shown for not more than 15 additional days.

§ 3065.  COUNSEL

(a)(1)  The respondent shall have the right to be represented by counsel of his or her own choosing at any stage of a guardianship proceeding.  Unless a respondent is already represented, the court:

(A)  shall appoint counsel for the respondent when an initial petition for guardianship is filed;

(B)  shall appoint counsel for the respondent in any subsequent proceeding if the respondent or a party requests appointment in writing; and

(C)  may appoint counsel for the respondent on the court’s initiative in any subsequent proceeding.

(2)  Appointed counsel shall have the right to withdraw upon conclusion of the proceeding for which he or she has been appointed.

(b)  Counsel shall receive a copy of the petition upon appointment and copies of all other documents upon filing with the court.  Counsel shall consult with the respondent prior to any hearing and, to the maximum extent possible, explain to the respondent the meaning of the proceedings and of all relevant documents.  Counsel for the respondent shall act as an advocate for the respondent and shall not substitute counsel’s own judgment for that of the respondent on the subject of what may be in the best interest of the respondent. Counsel’s role shall be distinct from that of a guardian ad litem if one is appointed.  At a minimum, counsel shall endeavor to ensure that:

(1)  the wishes of the respondent, including those contained in an advance directive, as to the matter before the court are presented to the court;

(2)  there is no less restrictive alternative to guardianship or to the matter before the court;

(3)  proper due process procedure is followed;

(4)  no substantial rights of the respondent are waived, except with the respondent’s consent and the court’s approval, provided that the evaluation and report required under section 3067 of this title and the hearing required under section 3068 of this title may not be waived;

(5)  the petitioner proves allegations in the petition by clear and convincing evidence in an initial proceeding, and applicable legal standards are met in subsequent proceedings;

(6)  the proposed guardian is a qualified person to serve or to continue to serve, consistent with section 3072 of this title; and

(7)  if a guardian is appointed, the initial order or any subsequent order is least restrictive of the ward’s personal freedom of the person under guardianship consistent with the need for supervision.

(c)  Respondent’s counsel shall be compensated from the respondent’s estate unless the respondent is found indigent in accordance with Rule 3.1 of the Rules of Civil Procedure.  For indigent respondents, the court shall maintain a list of pro bono counsel from the private bar to be used before appointing nonprofit legal services organizations to serve as counsel.

§ 3066.  GUARDIAN AD LITEM

On motion of the respondent’s or ward’s person under guardianship’s counsel or on the court’s own motion the court may appoint a guardian ad litem if it finds the respondent or ward person under guardianship is unable to communicate with or advise counsel.

§ 3067.   EVALUATION AND REPORT; BACKGROUND CHECK; RELEASE OF EVALUATION

(a)  When a petition is filed pursuant to section 3063 of this title, or when a motion for modification or termination is filed pursuant to subdivision 3077(a)(4) of this title, the court shall order an evaluation of the respondent.  Except as otherwise provided in this subsection, the cost of the evaluation shall be paid for out of the respondent’s estate or as ordered by the court.  If the respondent is unable to afford some or all of the cost of the evaluation without expending income or liquid resources necessary for living expenses, the court shall order that the department of mental health or the department of disabilities, aging, and independent living provide the evaluation through community mental health agencies affiliated with the departments qualified evaluators.

(b)  The evaluation shall be performed by a qualified mental health professional someone who has specific training and demonstrated competence to evaluate a person in need of guardianship.  The evaluation shall be completed within 30 days of the filing of the petition with the court unless the time period is extended by the court for cause.

(c)  The evaluation shall:

(1)  describe the nature and degree of the respondent’s disability, if any, and the level of the respondent’s intellectual, developmental, and social functioning;

(2)  contain recommendations, with supporting data, regarding:

(A)  those aspects of his or her personal care and financial affairs which the respondent can manage without supervision or assistance;

(B)  those aspects of his or her personal care and financial affairs which the respondent could manage with the supervision or assistance of support services and benefits;

(C)  those aspects of his or her personal care and financial affairs which the respondent is unable to manage without the supervision of a guardian;

(D)  those powers and duties as set forth in sections 3069 and 3071 of this title which should be given to the guardian, including the specific support services and benefits which should be obtained by the guardian for the respondent.

(d)  The proposed guardian shall provide the court with the information and consents necessary for a complete background check.  Not more than 10 days after receipt of an evaluation supporting guardianship of the respondent, the court shall order from the respective registries background checks of the proposed guardian from any available state registries, including but not limited to the adult abuse registry, child abuse registry, Vermont crime information center, and the Vermont state sex offender registry, and the court shall consider information received from the registries in determining whether the proposed guardian is suitable.  However, if appropriate under the circumstances, the court may waive the background reports or may proceed with appointment of a guardian prior to receiving the background reports, provided that the court may remove a guardian if warranted by background reports which the court receives after the guardian’s appointment.  If the proposed guardian has lived in Vermont for fewer than five years or is a resident of another state, the court may order background checks from the respective state registries of the states in which the proposed guardian lives or has lived in the past five years or from any other source.  The court shall provide copies of background check reports to the petitioner, the respondent, and the respondent’s attorney.

(e)  Regardless of whether the report of the evaluator supports or does not support guardianship, the court shall provide a copy of the evaluation to the respondent, the respondent’s attorney, the petitioner, the guardian upon appointment, and any other individual, including the proposed guardian, determined by the court to have a strong interest in the welfare of the respondent.  The evaluation shall remain confidential, and recipients of the evaluation are prohibited from sharing the evaluation.  Notwithstanding the foregoing, the court may restrict access to the evaluation or portions of the evaluation upon objection by one of the parties or on the court’s own motion. 

§ 3068.  HEARING

(a)  The respondent, the petitioner and all other persons to whom notice has been given pursuant to section 3064 of this title may attend the hearing and testify.  The respondent and the petitioner may subpoena, present and cross‑examine witnesses, including those who prepared the evaluation.  The court may exclude any person not necessary for the conduct of the hearing on motion of the respondent.

(b)  The hearing shall be conducted in a manner consistent with orderly procedure and in a setting not likely to have a harmful effect on the mental or physical health of the respondent.

(c)  The evaluation shall be received into evidence, if the persons who prepared the evaluation are available for the hearing or subject to service of subpoena.  However, the court shall not be bound by the evidence contained in the evaluation, but shall make its determination upon the entire record.  In all cases, the court shall make specific findings of fact, state separately its conclusions of law and direct the entry of an appropriate judgment.

(d)  The petitioner may be represented by counsel in any proceedings brought under this chapter.

(e)  If upon completion of the hearing and consideration of the record the court finds that the respondent is not mentally disabled a person in need of guardianship, it shall dismiss the petition and seal the records of the proceeding.

(f)  If upon completion of the hearing and consideration of the record the court finds that the petitioner has proved by clear and convincing evidence that the respondent is mentally disabled a person in need of guardianship or will be mentally disabled a person in need of guardianship on attaining eighteen 18 years of age, it shall enter judgment specifying the powers of the guardian pursuant to sections 3069 and 3070 of this title and the duties of the guardian pursuant to section 3071 of this title.

(g)  Any party to the proceeding before the court may appeal the court’s decision in the manner provided in section 3080 of this title.

§ 3068a.  RIGHTS OF A WARD PERSON UNDER GUARDIANSHIP

A ward person under guardianship retains the same legal and civil rights guaranteed to all Vermont residents under the Vermont and United States constitutions and all the laws and regulations of Vermont and the United States.  These rights include:

(1)  The right to participate in decisions made by the guardian and to have personal preferences followed unless:

(A)  the preference is unreasonable and would result in actual harm; or

(B)  the ward person under guardianship does not have a basic understanding of the benefits and consequences of his or her chosen preference.

(2)  The right, without interference from anyone, to retain an attorney and to communicate freely with counsel, the court, ombudsmen, advocates of his or her choosing, and other persons authorized by law to act as an advocate for the ward person under guardianship.

(3)  The right to retain an attorney and seek legal advice independently without consent of the guardian, provided that any legal fees not authorized by the guardian are subject to review and approval by the court.

§ 3069.  POWERS OF A TOTAL GUARDIAN

(a)  If the court enters judgment pursuant to subsection 3068(f) of this title, it may appoint a total guardian if it determines that the respondent is unable to manage, without the supervision of a guardian, any or all aspects of his or her personal care and financial affairs.

(b)  When the person under guardianship has an advance directive, the authority of the agent and the instructions contained therein shall remain in effect unless the probate court expressly orders otherwise in a petition for review of the advance directive under 18 V.S.A. § 9718.

(c)  A total guardian shall supervise the ward through the exercise of the following powers The court shall grant powers to the guardian in the least restrictive manner appropriate to the circumstances of the respondent and consistent with any advance directive.  Guardianship powers shall be ordered only to the extent required by the respondent’s actual mental and adaptive limitations.  The court shall specify which of the following powers the guardian shall have and may further restrict each power so as to preserve the respondent’s authority to make decisions commensurate with respondent’s ability to do so:

(1)  the power to exercise general supervision over the ward person under guardianship.  This includes care, habilitation, education, and employment of the person under guardianship and choosing or changing the residence, subject to the requirements of sections 2691, 3073, and 3074 of this title, care, habilitation, education, and employment of the ward;

(2)  to approve or withhold approval of any contract, except for necessaries, which the ward wishes to make the power to seek, obtain, and give or withhold consent to the initiation or continuation of medical or dental treatment, subject to the provisions of section 3075 of this title and any constitutional right of the person under guardianship to refuse treatment, provided that the court in its discretion may place limitations on the guardian’s powers under this subdivision if appropriate under the circumstances, including requiring prior court approval for specific surgeries, procedures, or treatments; 

(3)  to approve or withhold approval of the ward’s request to sell or in any way encumber his or her personal or real property the power to exercise general financial supervision over the income and resources of the person under guardianship.  This includes the power to seek or apply for, receive, invest, and expend all wages, compensation, insurance benefits, public benefits, and pensions for the benefit of the person under guardianship, to liquidate personal property for the benefit of the person under guardianship, to settle accounts, demands, claims, and actions by or against the person under guardianship, and to take any other action reasonably necessary to secure, preserve, protect, and defend the financial interests of the person under guardianship;

(4)  to exercise general supervision over the income and resources of the ward.  This includes the power to receive, invest, and expend all wages, compensation, insurance benefits, public benefits, and pensions for the benefit of the ward and to liquidate resources for the benefit of the ward the power to approve or withhold approval of any contract, except for necessaries, which the person under guardianship wishes to make;

(5)  to consent to surgery or other medical procedures, subject to the provisions of section 3075 of this title, subsection 9711(g) of Title 18, and any constitutional right of the ward to refuse treatment the power to approve or withhold approval of the sale or encumbrance of real property of the person under guardianship subject to subchapter 6 of this chapter;

(6)  to receive, sue for, and recover debts and demands due to the ward, to maintain and defend actions or suits for the recovery or protection of the property or person of the ward, settle accounts, demands, claims, and actions by or against the ward, including actions for injuries to the property or person of the ward, and to compromise, release, and discharge the same on such terms as he or she deems just and beneficial to the ward the power to obtain legal advice and to commence or defend against court actions in the name of the person under guardianship. 

(c)(d)  The total guardian shall exercise his or her supervisory powers over the ward in a manner which is least restrictive of the ward’s personal freedom consistent with the need for supervision.

(1)  When a guardian has been granted some but not all guardianship powers, the guardianship shall be identified as a “limited guardianship” and the guardian identified as a “limited guardian.”

(2)  A person for whom limited guardianship has been granted retains all the powers identified in subsection (c) of this section except those which have been specifically granted to the limited guardian.

(e)  The guardian shall exercise supervisory powers in a manner which is least restrictive of the personal freedom of the person under guardianship consistent with the need for supervision.

(f)  The guardian shall encourage the person under guardianship to participate in decisions, to act on his or her own behalf when practicable, and to develop or regain the capacity to manage his or her own personal affairs to the maximum extent possible.  The wishes, values, beliefs, and preferences of the person under guardianship shall be respected to the greatest possible extent in the exercise of all guardianship powers.

§ 3070.  POWERS OF A LIMITED GUARDIAN

(a)  If the court enters judgment pursuant to section 3068(f) of this title, it may appoint a limited guardian if it determines that the respondent is unable to manage some, but not all, aspects of his personal care and financial affairs.  The court shall specify those powers enumerated in section 3069 of this title which the limited guardian shall have and may further restrict each power so as to permit the ward to care for himself and his property commensurate with his ability to do so.

(b)  A person for whom a limited guardian has been appointed retains all legal and civil rights except those which have been specifically granted to the limited guardian by the court.

(c)  The limited guardian shall exercise his supervisory powers over the ward in a manner which is least restrictive of the ward’s personal freedom consistent with the order of the court.

§ 3071.  DUTIES OF GUARDIAN

(a)  The guardian shall maintain close contact with the ward person under guardianship and encourage maximum self-reliance on the part of the ward under his protection person under guardianship.

(b)  In addition to the powers vested in the guardian by the court pursuant to sections section 3069 and 3070 of this title, the court may order the guardian to assure that the ward person under guardianship receives those benefits and services to which he or she is lawfully entitled and which he needs to maximize his or her opportunity for social and financial independence.  Those benefits and services include, but are not limited to:

(1)  education services for a ward person under guardianship who is of school age;

(2)  residential services for a ward person under guardianship who lacks adequate housing;

(3)  nutrition services;

(4)  medical and dental services, including home health care;

(5)  therapeutic and habilitative services, adult education, vocational rehabilitation or other appropriate services.

(c)  The guardian shall always serve the interests of the person under guardianship and shall bring any potential conflicts of interest to the attention of the court.

§ 3072.  GUARDIANS; INDIVIDUALS WHO MAY SERVE

(a)(1)  Competent individuals of at least eighteen 18 years of age may serve as guardians.  No individual who operates or is an employee of a boarding home, residential care home, nursing home, group home or other similar facility in which the ward resides may serve as guardian.

(2)  No individual may be appointed or serve as guardian for a person under or in need of guardianship if the individual operates a boarding home, residential care home, assisted living residence, nursing home, group home, developmental home, correctional facility, psychiatric unit at a designated hospital, or other similar facility in which the person under or in need of guardianship resides or is receiving care.

(3)  No person may serve as guardian for the respondent who has served as guardian ad litem in the same proceeding. 

(4)  Notwithstanding the provisions of section 2603 of this title, the court shall have the discretion to appoint a guardian who is not a resident of this state, provided that the individual appointed is otherwise qualified to serve.

(b)  In appointing an individual to serve as guardian, the court shall take into consideration:

(1)  the preference of the ward the nomination of a guardian in an advance directive or in a will;

(2)  any current or past expressed preferences of the respondent;

(2)(3)  the geographic location of the proposed guardian;

(3)(4)  the relationship of the proposed guardian to and the ward respondent;

(4)(5)  the ability of the proposed guardian to carry out the powers and duties of the guardianship; and

(5)(6)  the willingness and ability of the proposed guardian to communicate with the respondent and to respect the respondent’s choices and preferences;

(7)  potential financial conflicts of interest between the ward respondent and the proposed guardian, and any conflicts that may arise if the proposed guardian is an employee of a boarding home, residential care home, assisted living residence, nursing home, group home, developmental home, correctional facility, psychiatric unit at a designated hospital, or other similar facility in which the respondent resides or is receiving care; and

(8)  results of any background checks.

§ 3073.  CHANGE OF RESIDENTIAL PLACEMENT

(a)(1)  When a guardian who has been granted the power to choose or change the residence of the ward person under guardianship pursuant to subdivision 3069(b)(1) of this title wishes to admit the ward person under guardianship to a nursing home or change the residential placement of the ward person under guardianship from a private home to a boarding home, residential care home, assisted living residence, group home, or other similar facility, the guardian must first file a motion for permission to do so.

(2)  For any other change of residence sought by a guardian who has been granted the power to choose or change the residence of the ward person under guardianship pursuant to subdivision 3069(b)(1) of this title, the guardian shall give notice to all parties and to such other persons as the court directs as soon as practicable prior to the change of placement.

(b)(1)  In an emergency, a guardian who has been granted the power to choose or change the residence of the ward person under guardianship pursuant to subdivision 3069(b)(1) of this title may change the residential placement of the ward person under guardianship without petitioning the court for prior permission or without giving prior notice to parties.  Immediately after any emergency change in residential placement for which prior permission under subsection (a) of this section would be required in the absence of an emergency, the guardian shall file a motion for permission to continue the placement.

(2)  Immediately after any emergency change of placement for which prior permission under subsection (a) of this section is not required, the guardian shall give notice of the change of placement to all parties and to such other persons as the court directs.

(3)  Any party may request a hearing on a change in residential placement.  The hearing shall be set for the earliest possible date and shall be given precedence over other probate matters.

(c)  In a hearing on a change of placement, the court shall consider:

(1)  the need for the change of placement;

(2)  the appropriateness of the new placement;

(3)  the wishes of the ward person under guardianship, if known; and

(4)  whether the guardian has considered alternatives.

§ 3074.  INSTITUTIONALIZATION OF MENTALLY DISABLED PERSONS COMMITMENT, STERILIZATION, INVOLUNTARY TREATMENT, AND INVOLUNTARY MEDICATION

Nothing in this chapter shall give the guardian of a ward person authority to:

(1) place that person in a state school or hospital except pursuant to section 7601 et seq. of Title 18 or section 8801 et seq. of Title 18.

(2)  consent to an involuntary treatment or medication petition pursuant to chapter 181 of Title 18.

(3)  consent to sterilization or to a petition for involuntary sterilization pursuant to chapter 204 of Title 18.

(4) consent to a petition for custody, care, or habilitation filed pursuant to chapter 206 of Title 18.

§ 3075.  CONSENT FOR MEDICAL OR DENTAL TREATMENT

(a)  When a ward whose right to consent to surgery or other medical procedure has not been restricted pursuant to section 3069(b)(5) of this title is admitted to a hospital for nonemergency surgery or other nonemergency medical procedures requiring consent, the treating physician shall determine if the person’s physical condition is such that the person has sufficient capacity to make a responsible decision.  If the person has such capacity, his informed consent shall be obtained before such surgery or medical procedure is performed.  In such cases, the ward’s consent shall be determinative and no other consent is necessary A person under guardianship retains the right to make medical and dental decisions unless that right has been restricted pursuant to subdivision 3069(c)(2) of this title.

(b)  When a ward whose right to consent to surgery or other medical procedures has been restricted pursuant to section 3069(b)(5) of this title is admitted to a hospital for nonemergency surgery or other nonemergency medical procedures requiring consent, the guardian may give such consent upon the advice of the treating physician and after obtaining permission of the probate court, after hearing, upon such notice as the court may direct. A person whose right to make medical decisions has been restricted pursuant to subdivision 3069(c)(2) of this section who has the capacity to make a specific medical decision retains the right to make that decision.

(c)  Unless an advance directive or the authority of an agent is expressly revoked or modified by the court pursuant to section 9718 of Title 18, the advance directive of a person under guardianship shall remain in effect, and the agent shall have sole authority to make health care decisions for the person under guardianship pursuant to chapter 231 of Title 18. 

(d)  If there is no agent named in the advance directive, or if the office of agent is vacant, the guardian shall follow the instructions contained in the advance directive.

(e)  For a person whose right to consent to medical or dental procedures has been restricted pursuant to subdivision 3069(c)(2) of this title, the guardian may give or withhold consent pursuant to this section and subject to any constitutional right of the person under guardianship to refuse treatment.

(f)  Consent to the procedure shall be given or withheld consistent with the manner in which the person under guardianship would have given or withheld consent, provided there is sufficient information concerning the person’s wishes.  In making this determination, the guardian and the court in reviewing a guardian’s decision under this section shall:

(1)  rely on written and oral expressions of the person under guardianship;

(2)  rely on available information concerning the wishes, values, beliefs, and preferences of the person under guardianship if the person’s written and oral expressions do not provide sufficient information; and

(3)  follow the best interests of the person under guardianship if subdivisions (1) and (2) of this subsection are inapplicable.  No decision to withhold or abate medical treatment will be based solely on the age, economic level, or level of disability of the person under guardianship.

(g)(1)  The guardian shall obtain prior written approval by the probate court following notice and hearing:

(A)  if the person under guardianship objects to the guardian’s decision, on constitutional grounds or otherwise;

(B)  if the court orders prior approval for a specific surgery, procedure, or treatment, either in its initial order pursuant to subdivision 3069(c)(2) of this title or anytime after appointment of a guardian;

(C)  except as provided in subdivision (2) of this subsection, and unless the guardian is acting pursuant to an advance directive, before withholding or withdrawing life-sustaining treatment other than antibiotics; or

(D)  unless the guardian is acting pursuant to an advance directive, before consenting to a do-not-resuscitate order unless a clinician as defined in subdivision 9701(5) of Title 18 certifies that the person under guardianship is likely to experience cardiopulmonary arrest before court approval can be obtained.  In such circumstances, the guardian shall immediately notify the court of the need for a decision, shall obtain the clinician’s certification prior to consenting to the do-not-resuscitate order and shall file the clinician’s certification with the court after consent has been given.

(2)  The requirements of subdivision (1)(C) of this subsection shall not apply if obtaining a court order would be impracticable due to the need for a decision before court approval can be obtained.  In such circumstances, the guardian shall immediately notify the court by telephone of the need for a decision, and shall notify the court of any decision made.

(h)  The procedures in chapter 181 of Title 18 shall be the exclusive mechanism to obtain approval for administration of nonemergency involuntary psychiatric medication to a person under guardianship.

§ 3076.  ANNUAL REPORTS; FINAL ACCOUNTING; FEES

(a)  The guardian of a ward shall file an annual report with the appointing court on within 30 days of the anniversary date of his the appointment.

(b)  The annual report shall contain:

(1)  a financial accounting as required by section 2921 of this title if the guardian has been granted power over the ward’s income and resources pursuant to section subdivision 3069(b)(4) of this title;

(2)  a report on the progress and condition of the ward person under guardianship, including but not limited to, his or her health, medical and dental care, residence, education, employment, and habilitation;

(3)  a report on the manner in which the guardian carried out his or her powers and fulfilled his or her duties; and

(4)  the guardian’s opinion regarding the continued need for guardianship.

(c)  If the guardian has been granted power over the ward’s income and resources pursuant to section subdivision 3069(b)(4) of this title, at the termination of the guardianship, the guardian shall render a final accounting as required by section 2921 of this title.

(d)(1)  Except as provided in subdivision (2) of this subsection, the guardian shall not be paid any fees to which he or she may be entitled, or reimbursed for any of his or her expenses from the estate of the ward person under guardianship until the annual reports or final accounting required by this section have been filed with the court.

(2)  The guardian may at any time apply by motion to the probate court for payment of fees or reimbursement of expenses incurred as a result of the guardianship.  The court may grant the motion and approve payment if it finds the expenses were reasonable and supported by documentary evidence.    

§ 3077.  TERMINATION AND MODIFICATION OF GUARDIANSHIP

(a)  Any A person under guardianship or any person interested in the welfare of the ward person under guardianship may file a motion for termination or modification of the guardianship.  Grounds for the termination or modification of the guardianship shall include:

(1)  the death of the guardian;

(2)  the failure of the guardian to file an annual report, or the failure to file such report in a timely manner;

(3)  the failure of the guardian to act in accord with an order of the court;

(4)  a change in the ability of the ward person under guardianship to manage his or her personal care or financial affairs;

(5)  a change in the capacity or suitability of the guardian for carrying out his or her powers and duties, including but not limited to any current or past expressed preferences of the person under guardianship to have an alternative person appointed as guardian.

(b)  When the grounds for termination or modification are those listed in subsections (a)(1), (2), (3), or (5) of this section, the court may appoint a successor guardian After notice and hearing, the court may terminate or modify the guardianship, appoint a successor guardian, or restrict the powers of a guardian, consistent with the court’s findings and conclusions of law.

(c)  Notice and hearing on the motion shall proceed in the manner set forth in sections 3064 and 3068 of this title.

(d)  Marriage of the person under guardianship shall not extinguish a guardian’s authority.

(e)  The following guardianship powers shall remain for up to two years after the death of a person under guardianship or until the appointment of an executor or administrator of the person’s estate:

(1)  the power to arrange and pay for a funeral;

(2)  the power to request medical, financial or other records of the person in guardianship;

(3)  the power to request an autopsy and to obtain the results thereof;

(4)  the power to make and file a financial accounting; and

(5)  any other powers which are incidental to the closing of and accounting for the guardianship and which are fully reported to the probate court.

§ 3078. ANNUAL NOTICE TO WARD PERSON IN NEED OF GUARDIANSHIP

The appointing court shall send an annual notice to each ward person under guardianship and the ward’s counsel of record of each person under guardianship, advising the ward person under guardianship of his or her right to file a motion for termination or modification of the guardianship pursuant to section 3077 of this title.  The notice shall include a copy of any accountings, reports or other information filed by the guardian during the year, except when there is counsel of record and the court deems it is in the best interest of the ward person under guardianship to send the accountings, reports and other information to counsel only.

§ 3079.  VALIDITY OF PRIOR GUARDIANSHIP

All guardianships approved pursuant to section 2671 et seq. and section 2683 et seq. of this title prior to July 1, 1979 remain valid.  On the first anniversary date of such guardianship after July 1, 1979, the court which approved such guardianship shall send notice to each ward person under guardianship, his or her counsel of record, and a near relative of the ward person under guardianship, if known, advising them of the ward’s right of the person under guardianship to petition for termination or modification of the guardianship pursuant to section 3077 of this title.  Upon the filing of such a petition, the court shall promptly arrange for a comprehensive evaluation of the ward person under guardianship pursuant to section 3067 of this title.

§ 3080.  APPEALS

Orders of the court issued pursuant to the provisions of this subchapter may be appealed in such manner as provided in sections 2551 et seq. of Title 12 and Rule 72, Vermont Rules of Civil Procedure, provided, however, that any order issued pursuant to this subchapter shall not be stayed during the pendency of an appeal except by order of a court of competent jurisdiction.

§ 3081.  EMERGENCY TEMPORARY GUARDIAN PENDING FINAL HEARING ON PETITION

(a)  When a petition for guardianship has been filed, but adherence to the procedures set out in this subchapter would cause serious and irreparable harm to the respondent’s physical health or financial interests, the probate court may appoint a an emergency temporary guardian prior to the final hearing and decision on the petition, subject to the requirements of this section.

(b)  Upon motion of the petitioner, the court shall schedule a hearing on the appointment of a temporary guardian for the earliest possible date, appoint a guardian ad litem for the respondent, and notice shall be given as provided by the rules of probate procedure.  Upon a finding that serious and irreparable harm to the respondent’s physical health or financial interests would result during the pendency of petition, the court shall appoint a temporary guardian and shall specify those powers which the temporary guardian shall have in order to prevent serious and irreparable harm to the respondent.  The duration of the temporary guardianship shall not extend beyond the time the court renders a decision on the petition for guardianship.  If a guardianship petition is accompanied by a motion for emergency temporary guardianship, the court shall schedule a hearing on the appointment of an emergency temporary guardian for the earliest possible date.  The court shall appoint counsel for the respondent and cause notice to be given as provided by the Vermont Rules of Probate Procedure (VRPP).  Upon a showing by sworn affidavit that notice cannot be given within the time periods, in the manner, or to the persons required by the VRPP, the court may allow a hearing to go forward upon such notice as the court may direct.  The court may appoint an emergency temporary guardian if it finds that serious and irreparable harm to the respondent’s physical health or financial interests will likely result during the pendency of the petition.

(c)  A temporary guardian may be appointed without notice to the respondent and guardian ad litem only if it clearly appears from specific facts shown by affidavit or sworn testimony that immediate, serious and irreparable harm will result to the respondent before a hearing on the appointment of a temporary guardian can be held.  On two days’ notice to the party who obtained the appointment of a temporary guardian without notice, or on such shorter notice to that party as the court may prescribe, the respondent or the guardian ad litem may appear and move dissolution or modification of the court’s order, and, in that event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.  An emergency temporary guardian may be appointed without notice to the respondent or respondent’s counsel only if it clearly appears from specific facts shown by affidavit or sworn testimony that immediate, serious, and irreparable harm will result to the respondent before the hearing on the appointment of an emergency temporary guardian can be held.  A request for ex parte emergency temporary guardianship under this section shall be made by written motion, accompanied by a petition for guardianship, unless waived by the court for good cause shown.  If the court appoints an ex parte emergency temporary guardian, the court shall immediately schedule a temporary hearing in accordance with subsection (b) of this section.  The ex parte order shall state why the order was granted without notice and include findings on the immediate, serious, and irreparable harm.  The ex parte order shall be for a fixed period of time, not to exceed 10 days, and shall expire on its terms unless extended after the temporary hearing.  If the temporary hearing cannot be held before the ex parte order expires, the ex parte order can be extended for good cause shown for an additional 10 days until the temporary hearing is held.

(d)  A temporary guardianship order expires when the court renders a final decision on the guardianship petition.  If the final decision is not rendered within 90 days of the filing of the petition, the court shall schedule a hearing to review the need for continuation of the temporary guardianship order.

Sec. 2.  PROPOSAL OF RULES

Within six months after the effective date of this act, the advisory committee on the Vermont Rules of Probate shall report to the legislative committee on judicial rules any changes to rules or forms that the committee determines are necessary or advisable as a result of this act.

Sec. 3.  GUARDIANSHIP TASK FORCE

(a)  The general assembly finds that:

(1)  Individuals under guardianship are among the state’s most vulnerable citizens.

(2)  Guardianship provides legal and human rights protections but may also be used to deprive vulnerable people of resources and fundamental rights.

(3)  Guardianship is increasing in Vermont.

(4)  Private guardians usually have no training or support in carrying out their guardianship responsibilities.

(5)  Probate judges and court registers who once were able to provide a measure of support for and monitoring of guardians are less able to do so as the volume of new guardianships and other court work increases their workload.

(6)  A comprehensive guardianship monitoring program would likely require significant additional staffing and resources and, as such, is not currently a cost effective or viable approach.

(b)  The guardianship education, improvement, and accountability task force is established.  Consistent with the findings in subsection (a) of this section and in recognition of the vulnerability of individuals under guardianship, the task force shall study ways, other than a staff-intensive monitoring model, for improving guardian accountability, assuring the protection of the rights and well-being of individuals under guardianship, and training and supporting guardians in the execution of their guardianship duties.

(c)  The task force shall consist of the following members:

(1)  Two sitting probate judges appointed by the Vermont association of probate judges.

(2)  Two members appointed by Vermont Legal Aid.

(3)  One member appointed by Vermont protection and advocacy.

(4)  Two members appointed by the secretary of human services, one of whom shall be a representative from the office of the public guardian.

(5)  One member appointed by the community of Vermont elders.

(6)   A member appointed by green mountain self-advocates.

(7)  Two members, appointed by the Vermont coalition for disability rights, who shall be family members of adults under guardianship.

(8)  One member appointed by Vermont psychiatric survivors.

 

(9)  One member appointed by the Vermont traumatic brain injury association.

(d)  The committee shall report its findings and recommendations to the house and senate committees on judiciary and the office of the court administrator on or before December 15, 2008.

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF THE SENATE                                    THE HOUSE

SEN. ALICE NITKA                                    REP. WILLEM JEWETT

SEN. RICHARD SEARS                              REP. MARGARET FLORY

SEN. ANN CUMMINGS                             REP. AVIS GERVAIS

Which was considered and adopted on the part of the House.

Rules Suspended; Report of Committee of Conference Adopted

H. 635

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 reports of child abuse or neglect;

Was taken up for immediate consideration.

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon the bill respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposals of amendment and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  33 V.S.A. § 4911 is amended to read:

§ 4911.  Purpose

The purpose of this subchapter is to:

(1)  protect Protect children whose health and welfare may be adversely affected through abuse or neglect;.

(2)  strengthen Strengthen the family and make the home safe for children whenever possible by enhancing the parental capacity for good child care;.

(3)  provide Provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes require the reporting of suspected child abuse and neglect, an assessment or investigation of such reports and provision of services, when needed, to such child and family.

(4)  Establish a range of responses to child abuse and neglect that take into account different degrees of child abuse or neglect and which recognize that child offenders should be treated differently from adults.

(5)  Establish a tiered child protection registry that balances the need to protect children and the potential employment consequences of a registry record for persons who are substantiated for child abuse and neglect. 

Sec. 2.  33 V.S.A. § 4912 is amended to read:

§ 4912.  Definitions

As used in this subchapter:

(1)  “Child” means an individual under the age of majority.

(2)  An “abused or neglected child” means a child whose physical health, psychological growth and development or welfare is harmed or is at substantial risk of harm by the acts or omissions of his or her parent or other person responsible for the child’s welfare.  An “abused or neglected child” also means a child who is sexually abused or at substantial risk of sexual abuse by any person.

(3)  “Harm” can occur by:

(A)  Physical injury or emotional maltreatment;

(B)  Failure to supply the child with adequate food, clothing, shelter, or health care.  For the purposes of this subchapter, “adequate health care” includes any medical or nonmedical remedial health care permitted or authorized under state law.  Notwithstanding that a child might be found to be without proper parental care under chapter 55 of Title 33, a parent or other person responsible for a child’s care legitimately practicing his or her religious beliefs who thereby does not provide specified medical treatment for a child shall not be considered neglectful for that reason alone; or

(C)  Abandonment of the child.

(4)  “Risk of harm” means a significant danger that a child will suffer serious harm other than by accidental means, which harm would be likely to cause physical injury, neglect, emotional maltreatment or sexual abuse.

(5)  “A person responsible for a child’s welfare” includes the child’s parent; guardian; foster parent; any other adult residing in the child’s home who serves in a parental role; an employee of a public or private residential home, institution or agency; or other person responsible for the child’s welfare while in a residential, educational, or child care setting, including any staff person.

(6)  “Physical injury” means death, or permanent or temporary disfigurement or impairment of any bodily organ or function by other than accidental means.

(7)  “Emotional maltreatment” means a pattern of malicious behavior which results in impaired psychological growth and development.

(8)  “Sexual abuse” consists of any act or acts by any person involving sexual molestation or exploitation of a child including but not limited to incest, prostitution, rape, sodomy, or any lewd and lascivious conduct involving a child.  Sexual abuse also includes the aiding, abetting, counseling, hiring, or procuring of a child to perform or participate in any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, depicts a sexual conduct, sexual excitement or sadomasochistic abuse involving a child.

(9)  “Multi‑disciplinary team” means a group of professionals, paraprofessionals and other appropriate individuals, empanelled by the commissioner of social and rehabilitation services under this chapter, for the purpose of assisting in the identification and investigation review of cases of child abuse and neglect, coordinating treatment services for abused and neglected children and their families and promoting child abuse prevention.

(10)  “Substantiated report” means that the commissioner or the commissioner’s designee has determined after investigation that a report is based upon accurate and reliable information that would lead a reasonable person to believe that the child has been abused or neglected.

(11)  [Repealed.]

(12)  “Member of the clergy” means a priest, rabbi, clergy member, ordained or licensed minister, leader of any church or religious body, accredited Christian Science practitioner, person performing official duties on behalf of a church or religious body that are recognized as the duties of a priest, rabbi, clergy, nun, brother, ordained or licensed minister, leader of any church or religious body, or accredited Christian Science practitioner. 

(13)  “Redacted investigation file” means the intake report, the investigation activities summary, and case determination report that are amended in accordance with confidentiality requirements set forth in subsection 4913(d) of this title.

(14)  “Child abuse and neglect protection registry” means a record of all investigations that have resulted in a substantiated report on or after January 1, 1992.

(15)  “Registry record” means an entry in the abuse and neglect child protection registry that consists of the name of an individual substantiated for child abuse or neglect, the date of the finding, the nature of the finding, and at least one other personal identifier, other than a name, listed in order to avoid the possibility of misidentification.

(16)  “Investigation” means a response to a report of child abuse or neglect that begins with the systematic gathering of information to determine whether the abuse or neglect has occurred and, if so, the appropriate response.  An investigation shall result in a formal determination as to whether the reported abuse or neglect has occurred.

(17)  “Assessment” means a response to a report of child abuse or neglect that focuses on the identification of the strengths and support needs of the child and the family, and any services they may require to improve or restore their well-being and to reduce the risk of future harm.  The child and family assessment does not result in a formal determination as to whether the reported abuse or neglect has occurred.

Sec. 3.  33 V.S.A. § 4913 is amended to read:

§ 4913.   REPORTING SUSPECTED CHILD ABUSE AND NEGLECT;
               remedial action

(a)  Any physician, surgeon, osteopath, chiropractor, or physician’s assistant licensed, certified, or registered under the provisions of Title 26, any resident physician, intern, or any hospital administrator in any hospital in this state, whether or not so registered, and any registered nurse, licensed practical nurse, medical examiner, emergency medical personnel as defined in 24 V.S.A.

§ 2651(6), dentist, psychologist, pharmacist, any other health care provider, child care worker, school superintendent, school teacher, school librarian, child care worker, school principal, school guidance counselor, and any other individual who is regularly employed by a school district, or who is contracted and paid by a school district to provide student services for five or more hours per week during the school year, mental health professional, social worker, probation officer, police officer, camp owner, camp administrator, camp counselor, or member of the clergy who has reasonable cause to believe that any child has been abused or neglected shall report or cause a report to be made in accordance with the provisions of section 4914 of this title within 24 hours.  As used in this subsection, “camp” includes any residential or nonresidential recreational program.

(b)  Any other concerned person not listed in subsection (a) of this section who has reasonable cause to believe that any child has been abused or neglected may report or cause a report to be made in accordance with the provisions of section 4914 of this title. The commissioner shall inform the person who made the report under subsection (a) of this section:

(1)  whether the report was accepted as a valid allegation of abuse or neglect;

(2)  whether an assessment was conducted and, if so, whether a need for services was found; and

(3)  whether an investigation was conducted and, if so, whether it resulted in a substantiation.

(c)  Any other concerned person not listed in subsection (a) of this section who has reasonable cause to believe that any child has been abused or neglected may report or cause a report to be made in accordance with the provisions of section 4914 of this title.

(c)(d)(1)  Any person enumerated in subsection (a) or (b) of this section, other than a person suspected of child abuse, who in good faith makes a report to the department of social and rehabilitation services shall be immune from any civil or criminal liability which might otherwise be incurred or imposed as a result of making a report. 

(2)  An employer or supervisor shall not discharge; demote; transfer; reduce pay, benefits, or work privileges; prepare a negative work performance evaluation; or take any other action detrimental to any employee because that employee filed a good faith report in accordance with the provisions of this subchapter.  Any person making a report under this subchapter shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of the reporting party by reason of his or her making a report.

(d)(e)  The name of and any identifying information about either the person making the report or any person mentioned in the report shall be confidential unless:

(1)  the person making the report specifically allows disclosure or unless;

(2)  a human services board proceeding or a judicial proceeding results therefrom or unless;

(3)  a court, after a hearing, finds probable cause to believe that the report was not made in good faith and orders the department to make the name of the reporter available; or

(4)  a review has been requested pursuant to section 4916a of this title, and the department has determined that identifying information can be provided without compromising the safety of the reporter or the persons mentioned in the report.

(e)(f)(1)  A person who violates subsection (a) of this section shall be fined not more than $500.00.

(2)  A person who violates subsection (a) of this section with the intent to conceal abuse or neglect of a child shall be imprisoned not more than six months or fined not more than $1,000.00, or both.

(3)  This section shall not be construed to prohibit a prosecution under any other provision of law.

(f)(g)  Except as provided in subsection (g)(h) of this section, a person may not refuse to make a report required by this section on the grounds that making the report would violate a privilege or disclose a confidential communication.

(g)(h)  A member of the clergy shall not be required to make a report under this section if the report would be based upon information received in a communication which is:

(1)  made to a member of the clergy acting in his or her capacity as spiritual advisor;

(2)  intended by the parties to be confidential at the time the communication is made;

(3)  intended by the communicant to be an act of contrition or a matter of conscience; and

(4)  required to be confidential by religious law, doctrine, or tenet.

(h)(i)  When a member of the clergy receives information about abuse or neglect of a child in a manner other than as described in subsection (g)(h) of this section, he or she is required to report on the basis of that information even though he or she may have also received a report of abuse or neglect about the same person or incident in the manner described in subsection (g)(h) of this section. 

Sec. 4.  33 V.S.A. § 4914 is amended to read:

§ 4914.  NATURE AND CONTENT OF REPORT; TO WHOM MADE

A report shall be made orally or in writing to the commissioner for children and families or designee.  The commissioner or designee shall request the reporter to follow the oral report with a written report, unless the reporter is anonymous.  Reports shall contain the name and address or other contact information of the reporter as well as the names and addresses of the child and the parents or other persons responsible for the child’s care, if known; the age of the child; the nature and extent of the child’s injuries together with any evidence of previous abuse and neglect of the child or the child’s siblings; and any other information that the reporter believes might be helpful in establishing the cause of the injuries or reasons for the neglect as well as in protecting the child and assisting the family.  If a report of child abuse or neglect involves the acts or omissions of the commissioner for children and families or employees of that the department, then the report shall be directed to the secretary of the agency of human services who shall cause the report to be investigated by other appropriate agency staff other than staff of the department for children and families.  If the report is substantiated, services shall be offered to the child and to his or her family or caretaker according to the requirements of section 4915 4915b of this title.

Sec. 5.  33 V.S.A. § 4915 is amended to read:

§ 4915.  ASSESSMENT AND INVESTIGATION; REMEDIAL ACTION

(a)  Upon receipt of a report of abuse or neglect, the department shall promptly determine whether it constitutes an allegation of child abuse or neglect as defined in section 4912 of this title.  The department shall respond to reports of alleged neglect or abuse that occurred in Vermont and to out-of-state conduct when the child is a resident of or is present in Vermont. 

(b)  If the report is accepted as a valid allegation of abuse or neglect, the department shall determine whether to conduct an assessment as provided for in section 4915a of this title or to conduct an investigation as provided for in section 4915b of this title.  The department shall begin either an assessment or an investigation within 72 hours after the receipt of a report made pursuant to section 4914 of this title, provided that it has sufficient information to proceed.  The commissioner may waive the 72-hour requirement only when necessary to locate the child who is the subject of the allegation or to ensure the safety of the child or social worker.

(c)  The decision to conduct an assessment shall include consideration of the following factors:

(1)  the nature of the conduct and the extent of the child’s injury, if any;

(2)  the accused person’s prior history of child abuse or neglect, or lack thereof; and

(3)  the accused person’s willingness or lack thereof to accept responsibility for the conduct and cooperate in remediation. 

(d)  The department shall conduct an investigation when an accepted report involves allegations indicating substantial child endangerment.  For purposes of this section, “substantial child endangerment” includes conduct by an adult involving or resulting in sexual abuse, and conduct by a person responsible for a child’s welfare involving or resulting in abandonment, child fatality, malicious punishment, or abuse or neglect that causes serious physical injury.  The department may conduct an investigation of any report.

(e)  The department shall begin an immediate investigation if, at any time during an assessment, it appears that an investigation is appropriate.

(f)  The department may collaborate with child protection, law enforcement, and other departments and agencies in Vermont and other jurisdictions to evaluate risk to a child and to determine the service needs of the child and family.  The department may enter into reciprocal agreements with other jurisdictions to further the purposes of this subchapter.

(b)  The investigation, to the extent that it is reasonable under the facts and circumstances presented by the particular allegation of child abuse, shall include all of the following:

(1)  A visit to the child’s place of residence or place of custody and to the location of the alleged abuse or neglect.

(2)  An interview with, or observance of the child reportedly having been abused or neglected.  If the investigator elects to interview the child, that interview may take place without the approval of the child’s parents, guardian, or custodian, provided that it takes place in the presence of a disinterested adult who may be, but shall not be limited to being, a teacher, a member of the clergy, child care provider regulated by the department, or a nurse.

(3)  Determination of the nature, extent, and cause of any abuse or neglect.

(4)  Determination of the identity of the person alleged to be responsible for such abuse or neglect.

(5)(A)  The identity, by name, of any other children living in the same home environment as the subject child.  The investigator shall consider the physical and emotional condition of those children and may interview them, in accordance with the provisions of subdivision (2) of this subsection, unless the subject child is the person who is alleged to be responsible for such abuse or neglect.

(B)  The identity, by name, of any other children who may be at risk if the abuse was alleged to have been committed by someone who is not a member of the subject child’s household.  The investigator shall consider the physical and emotional condition of those children and may interview them, in accordance with the provisions of subdivision (2) of this subsection, unless the subject child is the person who is alleged to be responsible for such abuse or neglect.

(6)  A determination of the immediate and long-term risk to each child if that child remains in the existing home or other environment.

(7)  Consideration of the environment and the relationship of any children therein to the person alleged to be responsible for the suspected abuse or neglect.

(8)  All other data deemed pertinent.

(c)  For cases investigated by the department, the commissioner may, to the extent that it is reasonable, provide assistance to the child and the child’s family.

(d)  The commissioner, designee, or any person required to report under section 4913 or any other person performing an investigation pursuant to section 4914 may take or cause to be taken, photographs of trauma visible on a child who is the subject of a report.  The commissioner or designee may seek consultation with a physician.  If it is indicated as appropriate by the physician, the commissioner or designee may cause the child who is subject of a report to undergo a radiological examination, without the consent of the child’s parent or guardian.

(e)  Services may be provided to the child’s immediate family whether or not the child remains in the home.

(f)  The department shall report to and request assistance from law enforcement in the following circumstances:

(1)  Investigations of child sexual abuse by an alleged perpetrator age 10 or older.

(2)  Investigations of serious physical abuse or neglect of a child likely to result in criminal charges or requiring emergency medical care.

(3)  Situations potentially dangerous to the child or department worker.

Sec. 6.  33 V.S.A. § 4915a is added to read:

§ 4915a.  Procedures for Assessment

(a)  An assessment, to the extent that is reasonable under the facts and circumstances presented by the particular valid allegation of child abuse or neglect, shall include the following:

(1)  An interview with the child’s parent, guardian, foster parent, or any other adult residing in the child’s home who serves in a parental role.  The interview shall focus on ensuring the immediate safety of the child and mitigating the future risk of harm to the child in the home environment.

(2)  An evaluation of the safety of the subject child and any other children living in the same home environment.  The evaluation may include an interview with or observation of the child or children.  Such interviews shall occur with the permission of the child’s parent, guardian, or custodian.

(3)  In collaboration with the family, identification of family strengths, resources, and service needs, and the development of a plan of services that reduces the risk of harm and improves or restores family well-being. 

(b)  The assessment shall be completed within 45 days.  Upon written justification by the department, the assessment may be extended, not to exceed a total of 60 days.

(c)  Families have the option of declining the services offered as a result of the assessment.  If the family declines the services, the case shall be closed unless the department determines that sufficient cause exists to begin an investigation or to request the state’s attorney to file a petition pursuant to chapter 55 of this title.  In no instance shall a case be investigated solely because the family declines services.

(d)  When an assessment case is closed, there shall be no finding of abuse or neglect and no indication of the intervention shall be placed in the registry.  However, the department shall document the outcome of the assessment.

Sec. 7.  33 V.S.A. § 4915b is added to read:

§ 4915b.  Procedures for Investigation

(a)  An investigation, to the extent that it is reasonable under the facts and circumstances presented by the particular allegation of child abuse, shall include all of the following:

(1)  A visit to the child’s place of residence or place of custody and to the location of the alleged abuse or neglect.

(2)  An interview with or observation of the child reportedly having been abused or neglected.  If the investigator elects to interview the child, that interview may take place without the approval of the child’s parents, guardian, or custodian, provided that it takes place in the presence of a disinterested adult who may be, but shall not be limited to being, a teacher, a member of the clergy, a child care provider regulated by the department, or a nurse.

(3)  Determination of the nature, extent, and cause of any abuse or neglect.

(4)  Determination of the identity of the person alleged to be responsible for such abuse or neglect.

(5)(A)  The identity, by name, of any other children living in the same home environment as the subject child.  The investigator shall consider the physical and emotional condition of those children and may interview them, unless the child is the person who is alleged to be responsible for such abuse or neglect, in accordance with the provisions of subdivision (2) of this subsection.

(B)  The identity, by name, of any other children who may be at risk if the abuse was alleged to have been committed by someone who is not a member of the subject child’s household.  The investigator shall consider the physical and emotional condition of those children and may interview them, unless the child is the person who is alleged to be responsible for such abuse or neglect, in accordance with the provisions of subdivision (2) of this subsection.

(6)  A determination of the immediate and long‑term risk to each child if that child remains in the existing home or other environment.

(7)  Consideration of the environment and the relationship of any children therein to the person alleged to be responsible for the suspected abuse or neglect.

(8)  All other data deemed pertinent.

(b)  For cases investigated and substantiated by the department, the commissioner shall, to the extent that it is reasonable, provide assistance to the child and the child’s family.  For cases investigated but not substantiated by the department, the commissioner may, to the extent that it is reasonable, provide assistance to the child and the child’s family.  Nothing contained in this section or section 4915a of this title shall be deemed to create a private right of action.

(c)  The commissioner, designee, or any person required to report under section 4913 of this title or any other person performing an investigation may take or cause to be taken photographs of trauma visible on a child who is the subject of a report.  The commissioner or designee may seek consultation with a physician.  If it is indicated appropriate by the physician, the commissioner or designee may cause the child who is subject of a report to undergo a radiological examination without the consent of the child’s parent or guardian. 

 

(d)  Services may be provided to the child’s immediate family whether or not the child remains in the home. 

(e)  The department shall report to and request assistance from law enforcement in the following circumstances:

(1)  Investigations of child sexual abuse by an alleged perpetrator age 10 or older.

(2)  Investigations of serious physical abuse or neglect likely to result in criminal charges or requiring emergency medical care.

(3)  Situations potentially dangerous to the child or department worker.

(f)  The department shall not substantiate cases in which neglect is caused solely by the lack of financial resources of the parent or guardian.

Sec. 8.  33 V.S.A. § 4916 is amended to read:

§ 4916.  CHILD ABUSE AND NEGLECT PROTECTION REGISTRY; RECORDS OF ABUSE AND NEGLECT  

(a)(1)  The commissioner shall maintain a abuse and neglect child protection registry which shall contain a record of all investigations that have resulted in a substantiated report on or after January 1, 1992.  Except as provided in subdivision (2) of this subsection, prior to placement of a substantiated report on the registry, the commissioner shall comply with the procedures set forth in section 4916a of this title.

(2)  In cases involving sexual abuse or serious physical abuse of a child, the commissioner in his or her sole judgment may list a substantiated report on the registry pending any administrative review after:

(A)  Reviewing the investigation file.

(B)  Making written findings in consideration of:

(i)  the nature and seriousness of the alleged behavior; and

(ii)  the person’s continuing access to children.

(3)  A person alleged to have abused or neglected a child and whose name has been placed on the registry in accordance with subdivision (2) of this subsection shall be notified of the registry entry, provided with the commissioner’s findings, and advised of the right to seek an administrative review in accordance with section 4916a of this title.

(4)  If the name of a person has been placed on the registry in accordance with subdivision (2) of this subsection, it shall be removed from the registry if the substantiation is rejected after an administrative review.

(b)  A registry record means an entry in the abuse and neglect child protection registry that consists of the name of an individual substantiated for child abuse or neglect, the date of the finding, the nature of the finding, and at least one other personal identifier, other than a name, listed in order to avoid the possibility of misidentification.

(c)  The commissioner shall adopt rules to permit use of the registry records as authorized by this subchapter while preserving confidentiality of the registry and other department records related to abuse and neglect.

(d)  Registry records shall only be disclosed to the commissioner or person designated by the commissioner to receive such records, persons assigned by the commissioner to investigate reports, the person reported on, an employer as defined in subsection 4919(e) of this title, or a state’s attorney or the attorney general. In no event shall registry records be made available for employment purposes other than as set forth in section 309 or 4919 of this title, or for credit purposes. Any person who violates this subsection shall be fined not more than $500.00. 

For all substantiated reports of child abuse or neglect made on or after the date the final rules are adopted, the commissioner shall create a registry record that reflects a designated child protection level related to the risk of future harm to children.  This system of child protection levels shall be based upon an evaluation of the risk the person responsible for the abuse or neglect poses to the safety of children.  The risk evaluation shall include consideration of the following factors:

(A)  the nature of the conduct and the extent of the child’s injury, if any;

(B)  the person’s prior history of child abuse or neglect as either a victim or perpetrator; 

(C)  the person’s response to the investigation and willingness to engage in recommended services; and

(D)  the person’s age and developmental maturity.

(e)(1)  Verbal Notice.  The commissioner or the commissioner’s designee shall promptly inform a parent or guardian of the child that a report has been made and substantiated.  If a parent or guardian is under investigation for abuse or neglect, such information need only be provided to that parent or guardian in accordance with subsection 4916(d) of this title.

(2)  Written Records. Absent good cause shown by the department, if a report has been substantiated, the commissioner or the commissioner’s designee shall provide upon request the redacted investigation file to the child’s parent or guardian or, if there is a pending juvenile proceeding or if the child is in custody of the commissioner, to the child’s attorney.

The commissioner shall develop rules for the implementation of a system of child protection registry levels for substantiated cases.  The rules shall address:

(1)  the length of time a person’s name appears on the registry;

(2)  when and how names are expunged from the registry;

(3)  whether the person is a juvenile or an adult;

(4)  whether the person was charged with or convicted of a criminal offense arising out of the incident of abuse or neglect; and

(5)  whether a family court has made any findings against the person.

(f)(1)  The commissioner or the commissioner’s designee may inform the following persons that a report has been substantiated:

(A)  The person responsible for supervising the staff in the child’s residential, educational or child care setting.

(B)  Upon request, to the person who made the report under subsection 4913(a) of this title.

(C)  Any person authorized by law to receive such information.

(2)  A person receiving information under this subsection shall not disclose that information to persons who are not involved with the provision of treatment services under section 4915 of this title to the abused or neglected child.

Sec. 9.  33 V.S.A. § 4916a is amended to read:

§ 4916a.  CHALLENGING PLACEMENT ON THE REGISTRY

(a)  If an investigation conducted in accordance with section 4915 4915b of this title results in a determination that a report of child abuse or neglect should be substantiated, the department shall notify the person alleged to have abused or neglected a child of the following:

(1)  The nature of the substantiation decision, and that the department intends to enter the record of the substantiation into the registry.

(2)  Who has access to registry information and under what circumstances.

(3)  The implications of having one’s name placed on the registry as it applies to employment, licensure, and registration.

(4)  The right to request a review of the substantiation determination by an administrative reviewer, the time in which the request for review shall be made, and the consequences of not seeking a review.

(5)  The right to receive a copy of the commissioner’s written findings made in accordance with subdivision 4916(a)(2) of this title if applicable.

(b)  Under this section, notice by the department to a person alleged to have abused or neglected a child shall be by first class mail sent to the person’s last known address.

(c)(1)  A person alleged to have abused or neglected a child may seek an administrative review of the department’s intention to place the person’s name on the registry by notifying the department within 14 days of the date the department mailed notice of the right to review in accordance with subsections (a) and (b) of this section.  The commissioner may grant an extension past the 14-day period for good cause, not to exceed 28 days after the department has mailed notice of the right to review.

(2)  The administrative review may be stayed upon request of the person alleged to have committed abuse or neglect if there is a related criminal or family court case pending in court which arose out of the same incident of abuse or neglect for which the person was substantiated.  During the period the review is stayed, the person’s name shall be placed on the registry.  Upon resolution of the criminal or family court case, the person may exercise his or her right to review under this section.

(d)  The department shall hold an administrative review conference within 14 35 days of receipt of the request for review.  At least seven ten days prior to the administrative review conference, the department shall provide to the person requesting review a copy of the redacted investigation file, notice of time and place of the conference, and conference procedures, including information that may be submitted and mechanisms for providing testimony.  The department shall also provide to the person those redacted investigation files that relate to prior investigations that the department has relied upon to make its substantiation determination in the case in which a review has been requested.

(e)  At the administrative review conference, the person who requested the review shall be provided with the opportunity to present documentary evidence or other information that supports his or her position and provides information to the reviewer in making the most accurate decision regarding the allegation.  The department shall have the burden of proving that it has accurately and reliably concluded that a reasonable person would believe that the child has been abused or neglected by that person.  Upon the person’s request, the conference may be held by teleconference.

(f)  The department shall establish an administrative case review unit within the department and contract for the services of administrative reviewers.  An administrative reviewer shall be a neutral and independent arbiter who has no prior involvement in the original investigation of the allegation. 

(g)  Within seven days of the conference, the administrative reviewer shall:

(1)  reject the department’s substantiation determination;

(2)  accept the department’s substantiation; or

(3)  place the substantiation determination on hold and direct the department to further investigate the case based upon recommendations of the reviewer.

(h)  If the administrative reviewer accepts the department’s substantiation determination, a registry record shall be made immediately.  If the reviewer rejects the department’s substantiation determination, no registry record shall be made.

(i)  Within seven days of the decision to reject or accept or to place the substantiation on hold in accordance with subsection (g) of this section, the administrative reviewer shall provide notice to the person of his or her decision.  If the administrative reviewer accepts the department’s substantiation, the notice shall advise the person of the right to appeal the administrative reviewer’s decision to the human services board in accordance with section 4916b of this title.

(j)  Persons whose names were placed on the registry on or after January 1, 1992 but prior to July September 1, 2007 shall be entitled to an opportunity to seek an administrative review to challenge the substantiation pursuant to this section.

(k)  If no administrative review is requested, the department’s decision in the case shall be final, and the person shall have no further right of review under this section.  The commissioner may grant a waiver and permit such a review upon good cause shown.  Good cause may include an acquittal or dismissal of a criminal charge arising from the incident of abuse or neglect.

(l)  In exceptional circumstances, the commissioner, in his or her sole and nondelegable discretion, may reconsider any decision made by a reviewer.  A commissioner’s decision that creates a registry record may be appealed to the human services board in accordance with section 4916b of this title.

Sec. 10. 33 V.S.A. § 4916b is amended to read:

§ 4916b.  HUMAN SERVICES BOARD HEARING

(a)  Within 30 days of the date on which the administrative reviewer mailed notice of placement of a report on the registry, the person who is the subject of the substantiation may apply in writing to the human services board for relief. The board shall hold a fair hearing pursuant to 3 V.S.A. § 3091.  When the department receives notice of the appeal, it shall make note in the registry record that the substantiation has been appealed to the board.

(b)(1)  The board shall hold a hearing within 60 days of the receipt of the request for a hearing and shall issue a decision within 30 days of the hearing.

(2)  Priority shall be given to appeals in which there are immediate employment consequences for the person appealing the decision.

(c)  A hearing may be stayed upon request of the petitioner if there is a related criminal or family court case pending in court which arose out of the same incident of abuse or neglect for which the person was substantiated.

(d)  If no review by the board is requested, the department’s decision in the case shall be final, and the person shall have no further right for review under this section.  The board may grant a waiver and permit such a review upon good cause shown.

Sec. 11.  33 V.S.A. § 4916c is amended to read:

§ 4916c.  PETITION FOR EXPUNGEMENT FROM THE REGISTRY

(a)  A person whose name has been placed on the registry prior to July 1, 2009 and has been listed on the registry for at least seven three years may file a written request with the commissioner, seeking a review for the purpose of expunging an individual registry record.  A person whose name has been placed on the registry on or after July 1, 2009 and has been listed on the registry for at least seven years may file a written request with the commissioner seeking a review for the purpose of expunging an individual registry record.  The commissioner shall grant a review upon request.

(b)  The person shall have the burden of proving that a reasonable person would believe that he or she no longer presents a risk to the safety or well‑being of children.  Factors to be considered by the commissioner shall include:

(1)  The nature of the substantiation that resulted in the person’s name being placed on the registry.

(2)  The number of substantiations, if more than one.

(3)  The amount of time that has elapsed since the substantiation.

(4)  The circumstances of the substantiation that would indicate whether a similar incident would be likely to occur.

(5)  Any activities that would reflect upon the person’s changed behavior or circumstances, such as therapy, employment, or education.

(6)  References that attest to the person’s good moral character.

(c)  At the review, the person who requested the review shall be provided with the opportunity to present any evidence or other information, including witnesses, that supports his or her request for expungement.  Upon the person’s request, the review may be held by teleconference.

(d)  A person may seek a review under this section no more than once every 36 months. 

(e)  Within 30 days of the date on which the commissioner mailed notice of the decision pursuant to this section, a person may appeal the decision to the human services board.  The person shall be prohibited from challenging his or her substantiation at such hearing, and the sole issue before the board shall be whether the commissioner abused his or her discretion in denial of the petition for expungement.  The hearing shall be on the record below, and determinations of credibility of witnesses made by the commissioner shall be given deference by the board.

(f)  The department shall take steps to provide reasonable notice to persons on the registry of their right to seek an expungement under this section.  Actual notice is not required.   Reasonable steps may include activities such as the production of an informative fact sheet about the expungement process, posting of such information on the department website, and other approaches typically taken by the department to inform the public about the department’s activities and policies.  The department shall send notice of the expungement process to any person listed on the registry for whom a registry check has been requested.

Sec. 12.  33 V.S.A. § 4916d is amended to read:

§ 4916d.  AUTOMATIC EXPUNGEMENT OF REGISTRY RECORDS

Registry entries concerning a person who was substantiated for behavior occurring before the person reached 10 years of age shall be expunged when the person reaches the age of 18, provided that the person has had no additional substantiated registry entries.  A person substantiated for behavior occurring before the person reached 18 years of age and whose name has been listed on the registry for at least three years may file a written request with the commissioner seeking a review for the purpose of expunging an individual registry record in accordance with section 4916c of this title.

Sec. 13.  33 V.S.A. § 4917 is amended to read:

§ 4917.  Multi-disciplinary teams; empaneling

(a)  The commissioner of social and rehabilitation services, or his or her designee may empanel a multi-disciplinary team wherever in the state there may be a probable case of child abuse or neglect which warrants the coordinated use of several professional services.

(b)  The commissioner of social and rehabilitation services, or his or her designee, in conjunction with professionals and community agencies, shall appoint members to the multi-disciplinary teams which may include persons who are trained and engaged in work relating to child abuse or neglect such as medicine, mental health, social work, nursing, day child care, education, law or law enforcement.  Additional persons may be appointed when the services of those persons are appropriate to any particular case.

(c)  The empanelling of a multi-disciplinary team shall be authorized in writing and shall specifically list the members of the team.  This list may be amended from time to time as needed as determined by the commissioner or his or her designee.

Sec. 14.  33 V.S.A. § 4918 is amended to read:

§ 4918.  Multi-disciplinary teams; functions; guidelines

(a)  Multi-disciplinary teams shall assist local district offices of the department of social and rehabilitation services in identifying and treating child abuse and or neglect cases.  With respect to any case referred to it, the team shall may assist the district office by providing:

(1)  case diagnosis or identification,;

(2)  a comprehensive treatment plan,; and

(3)  coordination of services pursuant to the treatment plan.

(b)  Multi-disciplinary teams may also provide public informational and educational services to the community about identification, treatment and prevention of child abuse and neglect.  It shall also foster communication and cooperation among professionals and organizations in its community, and provide such recommendations or changes in service delivery as it deems necessary.

Sec. 15.  33 V.S.A. § 4919 is amended to read:

§ 4919.  DISCLOSURE OF INFORMATION REGISTRY RECORDS

(a)  The commissioner or the commissioner’s designee may disclose a registry information record only as set forth in section 4916 of this title or as follows:

(1)  To the state’s attorney or the attorney general;.

(2)  To the owner or operator of a facility regulated by the department for the purpose of informing the owner or operator that employment of a specific individual may result in loss of license or, registration, certification, or authorization as set forth in section 309 of this title;.

(3)  To an employer if such information is used to determine whether to hire or retain a specific individual providing care, custody, treatment, transportation, or supervision of children or vulnerable adults.  The employer may submit a request concerning a current employee, volunteer, grantee, or contractor or an individual to whom the employer has given a conditional offer of a contract, volunteer position, or employment.  The request shall be accompanied by a release signed by the current or prospective employee, volunteer, grantee, or contractor.  If that individual has a record of a substantiated report, the commissioner shall provide the registry record to the employer;.  The employer shall not disclose the information contained in the registry report.

(4)  To the commissioner commissioners of disabilities, aging, and independent living, and of mental health, or the commissioner’s designee their designees, for purposes related to the licensing or registration of facilities regulated by the department of disabilities, aging, and independent living; those departments.

(5)  To the commissioner commissioners of health or, of disabilities, aging, and independent living, and of mental health, or the commissioner’s designee their designees, for purposes related to oversight and monitoring of persons who are served by or compensated with funds provided by the departments of health and of disabilities, aging, and independent living, those departments, including persons to whom a conditional offer of employment has been made;.

(6)  Upon request or when relevant to other states’ adult protective services offices; and.

(7)  Upon request or when relevant to other states’ child protection agencies.

(8)  To the person substantiated for child abuse and neglect who is the subject of the record.

(b)  An employer providing transportation services to children or vulnerable adults may disclose registry records obtained pursuant to subdivision (a)(3) of this section to the agency of human services or its designee for the sole purpose of auditing the records to ensure compliance with this subchapter.  An employer shall provide such records at the request of the agency or its designee.  Only registry records regarding individuals who provide direct transportation services or otherwise have direct contact with children or vulnerable adults may be disclosed.

(c)  Volunteers shall be considered employees for purposes of this section.

(d)  Disclosure of registry records or information or other records used or obtained in the course of providing services to prevent child abuse or neglect or to treat abused or neglected children and their families by one member of a multidisciplinary team to another member of that team shall not subject either member of the multidisciplinary team, individually, or the team as a whole, to any civil or criminal liability notwithstanding any other provision of law.

(e)  “Employer,” as used in this section, means a person or organization who employs or contracts with one or more individuals to care for or provide transportation services to children or vulnerable adults, on either a paid or volunteer basis. 

(f)  In no event shall registry records be made available for employment purposes other than as set forth in this subsection, or for credit purposes.  Any person who violates this subsection shall be fined not more than $500.00.

(g)  Nothing in this subsection shall limit the department’s right to use and disclose information from its records as provided in section 4921 of this chapter.

Sec. 16.  33 V.S.A. § 4920 is amended to read:

§ 4920.  Retaliatory action by employer prohibited

An employer or supervisor shall not discharge, demote, transfer, reduce pay, benefits or work privileges, prepare a negative work performance evaluation or take any other action detrimental to any employee because that employee filed a good faith report in accordance with the provisions of this subchapter. Any person making a report under this subchapter shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of the reporting party by reason of his or her making a report.

Sec. 17.  33 V.S.A. § 4921 is added to read:

§ 4921.  Department’s Records of abuse and neglect

(a)  The commissioner shall maintain all records of all investigations, assessments, reviews, and responses initiated under this subchapter.  The department may use and disclose information from such records in the usual course of its business, including to assess future risk to children, to provide appropriate services to the child or members of the child’s family, or for other legal purposes.

(b)  The commissioner shall promptly inform the parents, if known, or guardian of the child that a report has been accepted as a valid allegation pursuant to subsection 4915(b) of this title and the department’s response to the report.  The department shall inform the parent or guardian of his or her ability to request records pursuant to subsection (c) of this section.  This section shall not apply if the parent or guardian is the subject of the investigation.

(c)  Upon request, the redacted investigation file shall be disclosed to:

(1)  the child’s parents, foster parent, or guardian, absent good cause shown by the department, provided that the child’s parent, foster parent, or guardian is not the subject of the investigation; and

(2)  the person alleged to have abused or neglected the child, as provided for in subsection 4916a(d) of this title.

(d)  Upon request, department records created under this subchapter shall be disclosed to:

(1)  the court, parties to the juvenile proceeding, and the child’s guardian ad litem if there is a pending juvenile proceeding or if the child is in the custody of the commissioner;

(2)  the commissioner or person designated by the commissioner to receive such records; 

(3)  persons assigned by the commissioner to conduct investigations;

(4)  law enforcement officers engaged in a joint investigation with the department, an assistant attorney general, or a state’s attorney;

(5)  other state agencies conducting related inquiries or proceedings; and 

(6)  probate courts involved in guardianship proceedings.  The probate court shall provide a copy of the record to the respondent, the respondent’s attorney, the petitioner, the guardian upon appointment, and any other individual, including the proposed guardian, determined by the court to have a strong interest in the welfare of the respondent.

(e)(1)  Upon request, relevant department records created under this subchapter may be disclosed to:

(A)  service providers working with a person or child who is the subject of the report; and

(B)  other governmental entities for purposes of child protection.

(2)  Determinations of relevancy shall be made by the department.

Sec. 18.  33 V.S.A. § 4922 is added to read:

§ 4922.  RULEMAKING

(a)  The commissioner shall develop rules to implement this subchapter. These shall include:

(1)  rules setting forth criteria for determining whether to conduct an assessment or an investigation;

(2)  rules setting out procedures for assessment and service delivery;

(3)  rules outlining procedures for investigations;

(4)  rules for conducting the administrative review conference;

(5)  rules regarding access to and maintenance of department records of investigations, assessments, reviews, and responses; and

(6)  rules regarding the tiered registry as required by section 4916 of this title.

(b)  The rules shall strike an appropriate balance between protecting children and respecting the rights of a parent or guardian, including a parent or guardian with disabilities, and shall recognize that persons with a disability can be successful parents.  The rules shall include the possible use of adaptive equipment and supports.

(c)  These rules shall be adopted no later than July 1, 2009.

Sec. 19.  33 V.S.A. § 4923 is added to read:

§ 4923.  REPORTING

The commissioner shall publish an annual report regarding reports of child abuse and neglect no later than June 30, for the previous year.  The report shall include:

(1)  The number of reports accepted as valid allegations of child abuse or neglect.

(2)  The number of reports that resulted in an investigative response; particularly:

(A)  the number of investigations which resulted in a substantiation;

(B)  the types of maltreatment substantiated;

(C)  the relationship of the perpetrator to the victim, by category; and

(D)  the gender and age group of the substantiated victims.

(3)  The number of reports that resulted in an assessment response; particularly:

(A)  the general types of maltreatment alleged in cases which received an assessment response; and

(B)  the number of assessments that resulted in the recommendation of services.

(4)  Trend information over a five-year period.  Beginning with the adoption of the assessment response and continuing over the next five years, the report shall explain the impact of the assessment response on statistical reporting.

Sec. 20.  DEPARTMENT FOR CHILDREN AND FAMILIES CASELOAD
                POLICIES

(a)  The department for children and families shall develop policies for implementing social worker caseload assignments which identify a target of one worker per 12 families and that are consistent with national standards, best practices, and the department’s transformation plan.

(b)  The department shall make a report of its progress implementing the policies required by subsection (a) of this section to the senate committees on health and welfare and on appropriations and to the house committees on human services and on appropriations no later than January 1, 2009.  The report shall include an assessment of the impact of current caseloads on the quality of service of face-to-face visits with abused or neglected children and delinquent children in the custody of the department.

Sec. 21.  EFFECTIVE DATES

(a)  Sec. 3 of this act shall take effect on January 1, 2009.

(b)  In Sec. 5 of this act, the amendments in 33 V.S.A. § 4915(b), (c), (d), and (e) shall take effect upon adoption of final rules by the department for children and families.

(c)  Sec. 6 of this act shall take effect upon adoption of final rules by the department for children and families.

(d)  Sec. 9 of this act shall take effect on September 1, 2008.

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF THE SENATE                                    THE HOUSE

SEN. DOUGLAS RACINE                          REP. ANN PUGH

SEN. ED FLANAGAN                                 REP. NORMAN MCALLISTER

SEN. KEVIN MULLIN                                REP. RICHARD MAREK

Which was considered and adopted on the part of the House.

Remarks Journalized

On motion of Rep. McAllister of Highgate, the following letter from Secretary of Administration, Michael K. Smith was ordered printed in the Journal:

“May 1, 2008

Senator Doug Racine

Representative Ann Pugh

Vermont Sate House

115 State Street

Montpelier, VT. 05633

Dear Senator Racine and Representative Pugh:

     It has come to my attention that there is language included in H.635, An Act Relating to Reports of Child Abuse and Neglect, which states that the administration shall not include social worker positions in the plan to reduce 400 state positions through attrition by the end of fiscal year 2009.

     As you are aware, Agency of Human Services Secretary Cynthia D. LaWare has stated in testimony before both of your committees that she has personally held social worker positions harmless in this first year of our position management process, through fiscal year 2008, as an ongoing effort to mitigate the impact of this process on direct service to our most vulnerable Vermonters. Please let me assure you that I support Secretary LaWare's statements in this regard, and further, that we will not reduce social worker positions through the end of fiscal year 2009.

     Given my personal assurance that social worker positions will continue to be held harmless through fiscal year 2009, I understand that your conference committee will strike this unnecessary language from H.635 and you will work to have similar language struck from the budget bill.

     The Governor and I thank you for your hard work on this bill, which will enhance the way in which the Department for Children and Families responds to allegations of child abuse and neglect. The Governor looks forward to signing this bill shortly.

                                                           Sincerely,

                                                           /s/Michael K. Smith

                                                           Secretary of Administration

cc:     Senator Susan Bartlett

          Representative Martha Heath”

Rules Suspended; Report of Committee of Conference Adopted

H. 885

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 developing consistent measurement standards for economic growth;

Was taken up for immediate consideration.

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon the bill respectfully reports that it has met and considered the same and recommends that the House accede to the Senate proposal of amendment with further amendment by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS; INTENT

(a)  The general assembly finds:

(1)  A review of several rankings for Vermont’s competitiveness and their differentiation shows very disparate results.  For example, the Beacon Hill Institute ranked Vermont twelfth and the American Legislative Exchange Council (ALEC) ranked Vermont fiftieth on their economic development competitiveness index.   Each outside ranking entity chose different factors.

(2)  Within Vermont, our measurement techniques show variations.  Job and employment data in the state suffer from definitional disparities which create conflicts for those trying to use the data.  The newly established and recently released “unified economic development budget” would be improved by the consistent use of benchmarking by state agencies.  Testimony on this study before the general assembly raised concern over state agency benchmarking because of the differing data issues and measuring approaches that affect their use by state government in Vermont.

(b)  The general assembly has a responsibility for the promotion of economic development in Vermont that builds on the unique strengths and challenges of doing business in Vermont.  The general assembly is interested in what criteria it should use to evaluate the effectiveness of economic development efforts.  Many states have structures and methods for measuring the effectiveness of economic development efforts.

(c)  The commission on the future of economic development is charged with benchmarking and measuring economic development.

(d)  Therefore, it is the intent of the general assembly in adopting this act to establish a logical structure and coherent and uniform set of benchmarks for economic development in this state.

Sec. 2.    COMMISSION ON THE FUTURE OF ECONOMIC                                                        DEVELOPMENT

In fiscal year 2009, the Commission on the Future of Economic Development (CFED) shall:

(1)  Finish all 12 public engagement sessions.

(2)  The Snelling Center shall assemble all the products of the CFED meetings and submit them to CFED to develop meaningful, realistic, and verifiable goals and benchmarks for economic development.

(3)  The goals and benchmarks shall be submitted to the joint fiscal office, who shall work with the economists of the executive and legislative branches to:

(A)  review the techniques and products of evaluations of economic development used by other states;

(B)  use the econometrics for Vermont in developing benchmarks for the CFED goals by December 15, 2008.

(4)  Benchmarks shall be submitted to CFED for review and recommendations.

(5)  Benchmarks shall be submitted to the house committee on commerce and the senate committee on economic development, housing and military affairs on or before January 15, 2009.

(6)  CFED, with technical assistance from the joint fiscal office and the economists, shall annually review benchmarks and develop recommendations for adjustments to be submitted to the general assembly for approval.

Sec. 3.  LABOR MARKET MEASURES

The department of labor shall collaborate with the joint fiscal office and the agency of commerce and community development to develop a mutually acceptable set of employment measures and a means of communicating them to the general assembly.

Sec. 4.  REPEAL

Sec. 225 of No. 65 of the Acts of 2007 is repealed.

Sec. 5.  10 V.S.A. § 2 is added to read:

§ 2.  UNIFIED ECONOMIC DEVELOPMENT BUDGET (UEDB)

(a)  For purposes of evaluating the effect on economic development in this state, the commissioner of finance and management, in collaboration with the secretary of commerce and community development, shall submit a unified economic development budget as part of the annual budget report to the general assembly under 32 V.S.A. § 306.

(b)  The unified economic development budget shall include appropriations or expenditures for all of the types of development assistance, workforce training and education, and the development‑related research granted or managed by the state during the prior four fiscal years by all agencies, departments, authorities, and other instrumentalities of the state.  The budget shall adjust expenditures or appropriations to enable year-to-year comparisons to be made.

(c)  The unified development budget shall specifically include:

(1)  The aggregate amount and program‑specific amounts of all state economic development assistance, including grants, loans, and tax expenditures.

(2)  The aggregate amount and program‑specific amounts of uncollected or diverted state tax revenues resulting from each type of development assistance provided in the tax statutes, as reported in the annual tax expenditure report (32 V.S.A. § 312).  If current data are not available, the report may use the average of the three most recent years reported.

(3)  Performance measurements, including estimated jobs created, increases or decreases in payroll including benefits, and other measures of economic advancement, with clear descriptions of data sources and methodologies.

(4)  A report of progress in developing consistent and measurable benchmarks of job creation.

(d)  The data presented shall be organized by categories such as administration, workforce education and training, tax expenditures, agriculture, tourism, technical assistance, planning, housing, transportation, technology, and research, among others deemed appropriate.  Every effort shall be made to standardize definitions of positions and other measures.

Sec. 6.  2009 UNIFIED ECONOMIC DEVELOPMENT BUDGET REPORT

In the 2009 UEDB report, the commissioner of finance and management shall review the various reporting requirements relating to economic development including 10 V.S.A. §§ 2 and 7, and 32 V.S.A. § 307(c), and recommend how to consolidate and coordinate these reports to maximize administrative efficiency and information quality to enable continuing review and oversight by the general assembly.  The report shall include legislative proposals.

Sec. 7.  10 V.S.A. § 543 is amended to read:

§ 543.  WORKFORCE EDUCATION AND TRAINING FUND; GRANT
             PROGRAMS

* * *

(b)  Purposes.  The fund shall be used exclusively for the following two purposes:

* * *

(2)  internships to provide work-based learning opportunities with Vermont employers for students from Vermont colleges, public and private high schools, regional technical centers, and the Community High School of Vermont, and for students who are Vermont residents attending college, high school, technical or vocational schools out of state.

* * *

(d)  Eligible Activities.  Awards from the fund shall be made to employers and entities that offer programs that require collaboration between employees and businesses, including private, public, and nonprofit entities, institutions of higher education, technical centers, and workforce development programs.  Funding shall be for training programs and student internship programs that offer education, training, apprenticeship, mentoring, or work-based learning activities, or any combination; that employ innovative intensive student‑oriented competency-based or collaborative approaches to workforce development; and that link workforce education and economic development strategies.  Training programs or projects that demonstrate actual increased income and economic opportunity for employees and employers may be funded for more than one year.  Student internships and training programs that involve the same employer may be funded multiple times, provided that new students participate.

* * *

(f)  Awards.  Based on guidelines set by the council, the commissioner of labor shall make awards to the following:

(1)  Training Programs.  Public, private, and nonprofit entities for existing or new innovative training programs.  There shall be a preference for programs that include training for newly created or vacant positions.  Awards may be made to programs that retrain incumbent workers.  Awards under this subdivision shall be made to programs or projects that do all the following:

* * *

(G)  demonstrate an integrated connection between training and specific employment opportunities, including an effort and consideration  by participating employers to hire those who successfully complete a training programIf employment is not guaranteed at the successful completion of the training, the applicant must demonstrate employer involvement and that the training is likely to lead to employment in fields in which there is demand for jobs.

(H)  The department shall ensure there are resources available in each quarter of the fiscal year.

* * *

* * * Workforce Development for Green Industries * * *

Sec. 8.  FINDINGS; PURPOSE

(a)  The general assembly finds the following:

(1)  There is a growing global demand for products and services that will reduce the impact on the natural environment by individuals, businesses, governments, and many other entities.

(2)  There is a common international perception that Vermont has a very well‑defined green identity, a reputation developed through years of commitment to environmental integrity.

(3)  Vermont’s resources should be used to build a vibrant and strong environmental industry sector that creates high-wage jobs for Vermonters through the development and export of value‑added products and services designed to reduce our collective impact on the environment.

(4)  Vermont must create a framework that stimulates the innovation and investment necessary to expand the development of new renewable energy sources and distribution capacity.

(5)  Vermont’s economic development strategy must be designed to raise Vermont’s profile as a hub of environmental integrity, innovation, and opportunity for working Vermonters.

(b)  The purpose of this act is to effect the following:

(1)  To understand better and quantify the economic value and market opportunities and benefits of the emerging environmental technology sector in Vermont so that Vermont can derive economic value in the form of job creation, innovation, and development of technologies, products, and services that protect and enhance the environment.

(2)  To formulate a strategy for environmental technology sector workforce development and training and develop programs that promote and market that sector and create a competitive workforce equipped with the necessary skills and competencies to assure that Vermont is strategically positioned to compete effectively in environmental technology industries and the global marketplace and space.

Sec. 9.    WORKFORCE DEVELOPMENT PLAN; ENVIRONMENTAL
               TECHNOLOGY SECTOR JOB TRAINING; LABOR FORCE
               ANALYSIS

(a)  For the purposes of this section:

(1)  “Environmental technology employee” means a fulltime employee primarily engaged in providing goods or delivering services in the environmental technology sector.

(2)  “Environmental technology sector” means businesses and organizations that work in or are related to at least one of the following:

(A)  Waste management, including waste collection, treatment, disposal, reduction, recycling, and remediation.

(B)  Natural resource protection and management, including water and wastewater purification and treatment, air pollution control and prevention or remediation, soil and groundwater protection or remediation, and hazardous waste control or remediation.

(C)  Energy efficiency or conservation.

(D)  Clean energy, including solar, wind, wave, hydro, geothermal, hydrogen, fuel cells, waste-to-energy, or biomass.

(E)  Any other environmental technology certified by the secretary of commerce and community development.

(b)  The commissioner of labor in collaboration with the secretary of commerce shall perform a labor force analysis using the inventory of green business developed by the agency of commerce and the North American Industry Classification System (NAICS).  The analysis shall include the geographic distribution of existing businesses and anticipated opportunities for business recruitment in the environmental technology sector.  The analysis shall be issued in a written report to the house committee on commerce and the senate committee on economic development, housing and general affairs no later than February 1, 2009 and shall include:

(1)  Regional profiles that identify the concentration and distribution of environmental technology opportunities in Vermont.

(2)  The skills and competencies necessary for successful employment in the environmental technology sector.

(3)  Projection of employer needs and employee skills required for the future of the environmental technology sector.

(c)  The commissioner of labor shall develop a workforce development plan relating to green building, energy efficiency, and renewable energy industries.  The plan shall be developed in consultation with the groups with knowledge and expertise pertaining to the workforce development needs of and implementation of training programs for the environmental technology sector as defined in subdivision (a)(2) of this section, including, but not limited to, the following:  representatives of the building trades; the Vermont workforce development council; weatherization contractors; Efficiency Vermont; appropriate educational institutions; Vermont businesses for social responsibility; Vermont fuel dealers association; Renewable Energy Vermont; Vermont green building network; the Lake Champlain Regional Chamber of Commerce; the Vermont Chamber of Commerce; the Greater Burlington Industrial Corporation (GBIC), the green institute for the advancement of sustainability; and Green for All.

* * * Employment Practices * * *

Sec. 10.  21 V.S.A. § 385 is amended to read:

§ 385.  ADMINISTRATION

The commissioner and the commissioner's authorized representatives have full power and authority for all the following:

* * *

(4)  To recommend and determine the amount of deductions for board, lodging, apparel, or other items or services supplied by the employer or any other conditions or circumstances as may be usual in a particular employer-employee relationship, including gratuities; provided, however, that in no case shall the total remuneration received by an employee, including wages, board, lodging, apparel, or other items or services supplied by the employer, including gratuities, be less than the minimum wage rate set forth in section 384 of this title.  No deduction may be made for the care, cleaning, or maintenance of required apparel.  No deduction for required apparel shall be made without the employee’s express written authorization and the deduction shall not:

(A)  Reduce the total remuneration received by an employee below the hourly minimum wage.

(B)  Include any administrative fees or charges.

(C)  Amend, nullify or violate the terms and conditions of any collective bargaining agreement.

* * *

Sec.  11. ADULT TECHNICAL EDUCATION;  workforce                                                      education and training; REPORT

The commissioner of education shall:

(1)  Outline and review the current method or methods by which tuition is paid for students enrolled in secondary schools (“secondary students”) to attend regional technical center programs.

(2)  Consider and propose potential solutions to any barriers preventing, discouraging, or failing to encourage secondary students to attend regional technical center programs, including scheduling issues, availability of classes outside the traditional school day and academic year, and financial disincentives.

(3)  Outline and review the current method or methods by which the cost of adults entering programs at a regional technical center is funded, both for adults who have a high school diploma and for those who do not.

(4)  Consider and propose potential solutions to any barriers preventing, discouraging, or failing to encourage adults, with and without a high school diploma, to attend regional technical centers, including scheduling issues, availability of classes outside the traditional school day and academic year, and financial disincentives.

(5)  Consider and propose potential financial and other incentives to encourage regional technical centers to offer technical education programs at times other than the traditional school day and academic year and to otherwise make technical education programs more available to secondary students and to adults with and without high school diplomas.

(6)  Consider the positive and negative aspects of including within the definition of “pupil” for purposes of determining a district’s average daily membership all adult students with a high school diploma who are attending programs at a regional technical center and consider and propose other methods of subsidizing tuition for these students.

(b)  On or before January 15, 2009, the commissioner shall submit a written report to the senate committee on economic development, housing and general affairs, the house committee on commerce, and the senate and house committees on education detailing the results of the work performed pursuant to this section and all potential methods of addressing the identified issues.

Sec. 12.  EFFECTIVE DATE

This act shall take effect upon passage.

and that upon passage, the title of the bill shall be amended to read:  “AN ACT RELATING TO ECONOMIC DEVELOPMENT AND WORKFORCE DEVELOPMENT”

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF THE SENATE                                    THE HOUSE

SEN HINDA MILLER                                  REP. SHAP SMITH

SEN. VINCENT ILLUZZI                            REP. BILL BOTZOW

SEN. JAMES C. CONDOS                         REP. MICHELE KUPERSMITH

Which was considered and adopted on the part of the House.

Message from the Senate No. 76

     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 House proposal of amendment to Senate proposal of amendment to House bill of the following title:

H. 402.  An act relating to recapture of health insurance benefits by Group F member of the Vermont State Retirement System.

And has concurred therein.

The Senate has considered the reports of the Committees of Conference upon the disagreeing votes of the two Houses upon House bills of the following titles:

H. 615.  An act relating to juvenile judicial proceedings.

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.

H. 890.  An act relating to compensation for certain state employees.

And has accepted and adopted the same on its part.

Rules Suspended; Report of Committee of Conference Adopted

H. 887

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 health care reform;

Was taken up for immediate consideration.

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses the bill respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposal of amendment and that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

* * * Findings and Intent * * *

Sec. 1.  FINDINGS AND INTENT  

(a)  The general assembly hereby finds that:

(1)  Health care costs continue to rise at two to three times the rate of inflation, from approximately $3,000.00 per person per year in Vermont in 1997 to $3,800.00 in 2000 and $6,300.00 in 2006.  These increases cause hardships to individuals, families, businesses, taxpayers, and public institutions and make the need for comprehensive health care reform urgent.

(2)  The Health Care Affordability for Vermonters Act of 2006 has started significant new initiatives to transform the health care system by improving access, controlling costs, and changing the way we pay for and deliver health care.  These system changes will take many years and are dependent upon continued funding and implementation.  To date, these efforts have provided coverage to thousands of Vermonters, instituting changes in the care of chronic conditions, and enabling greater use of health information technology. 

(3)  There continues to be a large number of Vermonters who have no health insurance or are underinsured.  For this population, health care is unaffordable and, as a result, often not received in the most timely and effective manner.

(4)  The rising prevalence of chronic illnesses and the new medical approaches to treat them account for nearly two-thirds of the increase in health care spending.  Health care reform must address the cost drivers that underlie this rise in spending.  First, more effective use of preventive care and chronic care management is needed to prevent or slow the progression of chronic diseases and reduce disease complications, which is the focus of the Blueprint for Health.  Second, reform needs to include a sustained public health approach to decrease the likelihood of individuals developing a chronic illness in the first place.  Reducing major health risks such as poor diet, lack of physical activity, tobacco use, and alcohol and drug abuse will stem the rising incidence of chronic diseases linked to these factors over the long term.  In addition, Vermonters with a chronic mental illness are at a substantially greater risk for other illnesses and conditions than those without a chronic mental illness.  Identifying the mental health needs of Vermonters and integrating health care are an important response to a high risk factor for other illnesses and conditions and will pay dividends in the form of healthier citizens and reductions in costs to the health care system.

(5) Although the quality of health care services in Vermont is generally very good, there is a need to improve quality, efficiency, and safety.  Improvements in health care quality will result in improved health and reduced costs.  A new payment system that relates reimbursement to improved health would encourage better care and greater efficiency than the existing fee-for-service system.  And the implementation and effective use of health information technology will significantly improve patient safety by reducing medical errors and improving the reliability of patient care processes.

(6)  Federal laws and programs, such as Medicaid, Medicare, and the Employee Retirement Income Security Act of 1974 (ERISA), constrain Vermont’s ability to establish immediately an integrated health care system.  In addition, the current federal administration’s unwillingness to allow states to implement innovative approaches to health care reform has hampered Vermont’s ability to make extensive improvements to its own system.

(b)  It is the intent of the general assembly that all Vermonters receive affordable and appropriate health care at the appropriate time, and that health care costs be contained over time.  Building on the reforms enacted in the Health Care Affordability for Vermonters Act of 2006, the general assembly finds that effective next steps to achieving these goals include expanding affordable coverage, reducing the rate of the increase of medical costs, reforming the financing of health care, and supporting health information technology.

* * * Building Blocks for Health Care Reform * * *

Sec. 2.  OVERVIEW

(a)  The commission on health care reform is charged with making recommendations to meet the goal of section 902 of Title 2 that “by 2009, Vermont has an integrated system of care that provides all Vermonters access to affordable, high quality health care that is financed in a fair and equitable manner.”  Achieving this will require a series of fundamental changes which cumulatively will build a more integrated system with aligned financial incentives.  The commission on health care reform should conduct studies to develop key building blocks for moving toward such a system in Vermont, to the extent that funds and staffing resources are available, including: 

(1) The feasibility of community-based payment reform and integration of care.  This study should assess the feasibility of alternative designs for a pilot project to test using a system-wide budgeting initiative at the regional level within the state, including a design based on the accountable care organization model; 

(2) The possible merger of fragmented risk pools.  The continued fragmentation of risk pools and structural issues with the individual and small group markets present major obstacles to achieving universal coverage and stable premium rates.  This study should propose a preliminary design for the merger by calendar year 2011 of the nongroup (including Catamount Health), small group, and association markets; and  

(3) Various health care financing options.  This study will expand upon the completed financing analysis called for in Sec. 277d of No. 215 of the Acts of the 2005 Adj. Sess. (2006) to create a common analytic basis for policy decisions on the public financing of health care, explore broad-based revenue sources, identify and assess major federal issues with public financing, and analyze the impact of different financing options on the underlying cost drivers in health care. 

(b)  One of the objectives of these studies is to position Vermont as first in line for federal health care reform.  Health care reform will be a major priority of the next federal administration, and the federal government is likely to be much more supportive of health care reform efforts at the state level.  Vermont is uniquely situated to be a statewide laboratory for health care reform and needs to be positioned to receive early approval for increased flexibility in areas traditionally constraining reform, such as Medicare demonstrations and waivers and electronic health record demonstrations.  The commission on health care reform’s evaluation should explicitly identify federal and other barriers to the critical steps in health care reform and determine how best to position Vermont at the forefront of progress in health care reform.

* * * Expanding Affordable Coverage * * *

Sec. 3.  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. 4.  EXPEDITED RULEMAKING

(a)  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. 

(b)  “Split benefit design” shall mean a health insurance plan with two or more benefit levels in which the premium for all levels is the same but the benefits differ in the amount of the co-payments, coinsurance, deductibles, out-of-pocket maximums, or a combination of these options.  The rules for the split benefit design shall include provisions that promote good health; identify, manage, and prevent disease; and encourage healthier lifestyles without penalizing individuals due to disability, poor health, or socioeconomic status.  Premium rates shall target a 10 percent reduction in rates below the premium of a comparable product in the relevant market.  The difference between the actuarial value of the benefits in the benefit levels shall not exceed 20 percent, and insurers shall not be permitted to impose additional rate deviations. 

(c)  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. 5.  EXPANDING ACCESS TO CATAMOUNT HEALTH

(a)  No later than February 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 shorten 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. 6.  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. 7.  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)  Not withstanding any other provision of law, when an individual is enrolled in Catamount Health solely under the high deductible standard outlined in 8 V.S.A. § 4080f(a)(9), the individual shall not be eligible for premium assistance for the 12-month period following the date of enrollment in Catamount Health.

Sec. 8.  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)  Not withstanding any other provision of law, when an individual is enrolled in Catamount Health solely under the high deductible standard outlined in 8 V.S.A. § 4080f(a)(9), the individual shall not be eligible for premium assistance for the 12-month period following the date of enrollment in Catamount Health.

Sec. 9.  33 V.S.A. § 1974 is amended to read: 

§ 1974.   EMPLOYER-SPONSORED INSURANCE; PREMIUM                                                     ASSISTANCE

* * *

(b) VHAP-eligible premium assistance.

* * *

(6)  Not withstanding any other provision of law, when an individual is enrolled in Catamount Health solely under the high deductible standard outlined in 8 V.S.A. § 4080f(a)(9), the individual shall not be eligible for premium assistance for the 12-month period following the date of enrollment in Catamount Health.

(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 any other provision of law, when an individual is enrolled in Catamount Health solely under the high deductible standard outlined in section 4080f(a)(9) of Title 8, the individual shall not be eligible for premium assistance for the 12-month period following the date of enrollment in Catamount Health.

* * *

Sec. 10.  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. 11.  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. 12.  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. 13.  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. 14.  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. 15.  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 on 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. 16.  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. 17.  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. 18.  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. 19.  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 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. 20.  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. 21.  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 healthy nutrition choices in food service facilities, including the presence of trans fats.  The department of health shall also recommend methods for making Vermont free of artificial trans fats in prepared foods by 2011.  The department of health 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 no later than January 15, 2009.

Sec. 22.  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. 23.  Vermont Academic Detailing Program

(a)  The University of Vermont (UVM) College of Medicine office of primary care and the Vermont area health education centers (AHEC) shall operate the Vermont academic detailing program, a university-based educational outreach for health care professionals.  The goal of the Vermont academic detailing program is to promote high-quality, evidence-based, patient-centered, cost-effective medication treatment decisions.  This program shall present an objective overview of what evidence from studies shows about various drugs used to treat a medical condition. 

(b)  The UVM office of primary care and AHEC may collaborate with other states that are working on similar programs. 

(c)  The UVM office of primary care may request information and collaboration from prescribers, pharmacists, private insurers, hospitals, pharmacy benefit managers, drug utilization review boards, state agencies, and other programs in order to best utilize resources, prevent redundancies of effort, and facilitate appropriate linkages to complementary programs, such as the Vermont Blueprint for Health. 

(d)  The Vermont Department of Health and the office of Vermont health access shall collaborate with the UVM office of primary care and AHEC Vermont academic detailing program to 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 and, to the extent permitted by funding, the program may include the distribution of vouchers for samples of generic medicines.

(e)  The sum of $100,000.00 is appropriated from the general fund to the UVM College of Medicine in fiscal year 2009 to support the Vermont academic detailing program, 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 shall be redeposited in the general fund.

* * * Supporting Health Information Technology * * *

Sec. 24.  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. 25.  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. 26.  HEALTH IMPROVEMENT APPROPRIATIONS

(a)  The amount of $100,000.00 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.

(b)  In addition to other monies appropriated elsewhere for this program, the sum of $40,000.00 is appropriated from the general fund to the department of health in fiscal year 2009 to be deposited into the Vermont educational loan repayment fund and used for the purposes of loan repayment for nurse educators pursuant to section 10a of Title 18.

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

Sec. 27.  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. 28.  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. 29.  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. 30.  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. 31.  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 on 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. 32.  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. 33.  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.

Sec. 34.  EFFECTIVE DATE

This act shall take effect upon passage. 

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF THE SENATE                                    THE HOUSE

SEN. DOUGLAS RACINE                          REP. STEVEN MAIER

SEN. KEVIN MULLIN                                REP. HARRY CHEN

SEN. JEANETTE WHITE                            REP. LUCY LERICHE

Which was considered and adopted on the part of the House.

Rules Suspended; Report of Committee of Conference Adopted

H. 691

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

An act relating to executive and judicial branch fees;

Was taken up for immediate consideration.

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon the bill respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposals of amendment and that the bill be amended 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.

Sec. 2a.  Rule 16(e) of the Vermont Rules of Criminal Procedure is amended to read:

(e)  Videotapes.  A copy of a videotape made of the alleged offense and subsequent processing shall be available for purchase by the defendant directly from the law enforcement agency responsible for initiating the action upon written request and advance payment of a $15.00 $45.00 fee, except that no fee shall be charged to a defendant whom the court has determined to be indigent. A municipal or county law enforcement agency shall be entitled to all fees it collects for videotapes sold pursuant to this rule. Fees collected by the state for videotapes sold pursuant to this rule shall be deposited in the DUI enforcement special fund created under section 1220a of Title 23.  The original videotape may be erased 90 days after: 

(1)  the entry of final judgment, or

(2)  the date the videotape was made, if no civil or criminal action is filed.

* * * 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 No. 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 worker’s 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 worker’s 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 worker’s compensation insurance, one percent of self-insured worker’s compensation losses, and one percent of worker’s 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

Notwithstanding the requirement that an emergency rule be made in response to “imminent peril to the public health, safety or welfare,” the elevator safety review board shall by emergency rulemaking pursuant to 3 V.S.A. § 844adopt rules that set fees as required by 21 V.S.A. § 152(b).  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.

[Sec. 7.  DELETED]

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 $275.00 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.

Sec. 9.  INTENT

It is the intent of the general assembly that the Vermont traumatic brain injury fund created in 33 V.S.A. § 7801 shall be used for the benefit of all Vermonters suffering from traumatic brain injuries, including residents who have served in the armed forces of the United States in Operation Iraqi Freedom and Operation Enduring Freedom.

Sec. 9a.  33 V.S.A. chapter 78 is added to read:

Chapter 78.  INDIVIDUALS WITH

TRAUMATIC BRAIN INJURY (TBI)

§ 7801.  VERMONT TRAUMATIC BRAIN INJURY Fund

(a)  The Vermont traumatic brain injury fund is established in the office of the state treasurer as a special fund to be a source of financing for services for individuals with TBI and for programs established by or through contracts with the agency of human services for the treatment of traumatic brain injuries.

(b)  Into the fund shall be deposited proceeds from grants, donations, contributions, taxes, and any other sources of revenue as may be provided by statute, rule, or act of the general assembly.

(c)  The fund shall be administered pursuant to subchapter 5 of chapter 7 of Title 32, except that interest earned on the fund and any remaining balance shall be retained in the fund.

(d)  All monies received by or generated to the fund shall be used only as allowed by appropriation of the general assembly for the administration and delivery of services for individuals with TBI and for programs for the treatment of brain injuries established by or through contracts with the agency of human services.

(e)  The agency of human services shall develop a policy for disbursement of monies from the fund created in subsection (a) of this section and submit the policy to the joint fiscal committee for approval at its September 2008 meeting.

Sec. 10.  INITIAL FUNDING

In FY 2009, $140,000.00 is transferred from the Vermont campaign fund established in 17 V.S.A. § 2856 to the Vermont traumatic brain injury fund established in 33 V.S.A. § 7801.

* * * Criminal Justice Training Council * * *

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. § 3581(c) is amended to read:

(c)(1)  A mandatory license fee surcharge of $2.00 $3.00 per license shall be collected by each city, town, or village for the purpose of funding the dog, cat, and wolf-hybrid spaying and neutering program established in subchapter 6 of chapter 193 of this title.

(2)  An optional license fee surcharge of up to $10.00 per license is to be implemented by the legislative body of a city, town, or village which has established an animal and rabies control program for the sole purpose of funding the rabies control program.

(3)  The license fee surcharges in this subsection shall not be considered part of the license fee for purposes of calculating a penalty for late payment.

Sec. 14.  AGENCY OF AGRICULTURE, FOOD AND MARKETS REPORT ON FUNDING OF VERMONT SPAY NEUTER INCENTIVE PROGRAM

On or before January 15, 2009, the secretary of agriculture, food and markets shall report to the house and senate committees on agriculture, the senate committee on finance, the house committee on ways and means, and the house and senate committees on judiciary with a report regarding the continued funding of the Vermont spay neuter incentive program.  The report shall include:

(1)  A summary of the activities and services provided by the Vermont spay neuter incentive program;

(2)  An estimate of the annual cost of operating the Vermont spay neuter incentive program based on a presumption of the program meeting a reasonable demand on program services; and

(3)  A recommendation of a funding mechanism or mechanisms outside  the general fund for the continued operation of the Vermont spay neuter incentive program.

Sec. 15.  RULES RELATING TO THE VERMONT SPAY NEUTER

              INCENTIVE PROGRAM; VETERINARIANS; AGENCY OF

             AGRICULTURE, FOOD AND MARKETS

The agency of agriculture, food and markets shall adopt rules under chapter 25 of Title 3 for the Vermont spay neuter incentive program (VSNIP) that include:

(1)  A requirement that a veterinarian shall biannually provide a copy of the certificate of rabies vaccination or otherwise provide to the agency of agriculture, food and markets identifying information pertaining to the certificate.

(2)  A requirement that the agency of agriculture, food and markets biannually provide a copy of the certificate or otherwise provide identifying information pertaining to the certificate to the clerk of the municipality in which the owner of the dog resides.

Sec. 16.  COLLECTION OF SALES AND USE TAX ON THE SALE OF                           ANIMALS

No later than January 15, 2009, the department of taxes shall issue a report to the house committee on ways and means and the senate committee on finance on its efforts to date and strategies to increase the collection of sales and use tax on the sale of animals by people licensed under chapter 194 or 199 of Title 20 and by people not required to be licensed under those statutory provisions.

Sec. 16a.  STATUTORY REVISION

The legislative council in collaboration with the agency of agriculture, food and markets shall review chapters 194 and 199 of Title 20 and suggest ways to clarify and better organize the language contained therein.  A report of the results of such review shall be provided to the senate committee on finance and the house committee on ways and means no later than January 15, 2009.

* * * 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 $250.00 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)  Estates 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, $100.00.

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.

[Sec. 26.  DELETED]

* * * 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.

* * * Department of Motor Vehicles * * *

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 DATES

This act shall take effect July 1, 2008, except for:

(1)  Sec. 13, which shall take effect April 1, 2009; and

(2)  Sec. 39, which shall not take effect until the commissioner of motor vehicles determines that the systems necessary to operate the program are available.

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF THE SENATE                                    THE HOUSE

SEN. CLAIRE D. AYER                              REP. CAROLYN BRANAGAN

SEN. MARK A. MACDONALD                 REP. MICHAEL OBUCHOWSKI

SEN. HULL P. MAYNARD              REP. WILLIAM N. ASWAD

Which was considered and pending the question, Shall the House adopt the report of the Committee of Conference? Rep. Hube of Londonderry 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 House adopt the report of the Committee of Conference? was decided in the affirmative.  Yeas, 91.  Nays, 42.

Those who voted in the affirmative are:


Acinapura of Brandon

Ancel of Calais

Anderson of Montpelier

Andrews of Rutland City

Aswad of Burlington

Atkins of Winooski

Audette of S. Burlington

Barnard of Richmond

Bissonnette of Winooski

Bostic of St. Johnsbury

Botzow of Pownal

Branagan of Georgia

Bray of New Haven

Browning of Arlington

Clarkson of Woodstock

Consejo of Sheldon

Copeland-Hanzas of Bradford

Corcoran of Bennington

Courcelle of Rutland City

Deen of Westminster

Donovan of Burlington

Dostis of Waterbury

Emmons of Springfield

Evans of Essex

Fallar of Tinmouth

Fisher of Lincoln

Frank of Underhill

French of Randolph

Gilbert of Fairfax

Godin of Milton

Grad of Moretown

Head of S. Burlington

Heath of Westford

Helm of Castleton

Hosford of Waitsfield

Howard of Rutland City

Howrigan of Fairfield

Hunt of Essex

Hutchinson of Randolph

Jerman of Essex

Jewett of Ripton

Johnson of South Hero

Keenan of St. Albans City

Keogh of Burlington

Kitzmiller of Montpelier

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

Masland of Thetford

McCormack of Rutland City

McCullough of Williston

Milkey of Brattleboro

Miller of Shaftsbury

Minter of Waterbury

Mitchell of Barnard

Mook of Bennington

Moran of Wardsboro

Morley of Barton

Mrowicki of Putney

Nease of Johnson

Nuovo of Middlebury

Obuchowski of Rockingham

Ojibway of Hartford

Orr of Charlotte

Pellett of Chester

Peltz of Woodbury

Perry of Richford

Peterson of Williston

Potter of Clarendon

Pugh of S. Burlington

Rodgers of Glover

Shand of Weathersfield

Sharpe of Bristol

Smith of Morristown

Spengler of Colchester

Stevens of Shoreham

Sweaney of Windsor

Trombley of Grand Isle

Westman of Cambridge

Weston of Burlington

Zenie of Colchester


Those who voted in the negative are:


Adams of Hartland

Ainsworth of Royalton

Allard of St. Albans Town

Baker of West Rutland

Canfield of Fair Haven

Clerkin of Hartford

Crawford of Burke

Davis of Washington

Devereux of Mount Holly

Donaghy of Poultney

Donahue of Northfield

Errecart of Shelburne

Flory of Pittsford

Grenier of St. Johnsbury

Haas of Rochester

Hube of Londonderry

Kilmartin of Newport City

Komline of Dorset

Krawczyk of Bennington

Larocque of Barnet

Larrabee of Danville

Lawrence of Lyndon

Lewis of Derby

Marcotte of Coventry

McAllister of Highgate

McDonald of Berlin

McFaun of Barre Town

McNeil of Rutland Town

Morrissey of Bennington

Myers of Essex

O'Donnell of Vernon

Oxholm of Vergennes

Pearson of Burlington

Peaslee of Guildhall

Randall of Troy

Scheuermann of Stowe

Turner of Milton

Valliere of Barre City

Wheeler of Derby

Winters of Williamstown

Wright of Burlington

Zuckerman of Burlington


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


Brennan of Colchester

Chen of Mendon

Cheney of Norwich

Clark of Vergennes

Condon of Colchester

Edwards of Brattleboro

Fitzgerald of St. Albans City

Gervais of Enosburg

Johnson of Canaan

Koch of Barre Town

LaVoie of Swanton

Livingston of Manchester

Monti of Barre City

Otterman of Topsham

Partridge of Windham

Pillsbury of Brattleboro


 

     Rep. Adams of Hartland explained his vote as follows:

“Madam Speaker:

     Just this morning we were considering legislation asking business to refrain from increasing costs to consumers for one year.  In passing this bill we, once again, are increasing costs to businesses in this state.  Do as I say, not as I do.”

          Rep. Donahue of Northfield explained her vote as follows:

“Madam Speaker:

     I voted against this bill because I was unable to finish reading it before we voted.  In finishing reading as we voted, I discovered we re-repealed the anatomical gift statute that we restored this morning after it was inadvertently repealed in the Department of motor vehicle licensing bill.”

     Rep. Zuckerman of Burlington explained his vote as follows:

“Madam Speaker:

     It’s a shame we are reduced to raising state revenues through regressive fees that are almost entirely paid by working class Vermonters.

     We have other options to raise revenues, but they have been “off the table” for the last six years, and average Vermonters are the ones who suffer under such a policy.”

Recess

At seven o’clock and thirty minutes in the evening, the Speaker declared a recess until the fall of the gavel.

At nine o’clock and fifteen minutes in the evening, the Speaker called the House to order.

Message from the Senate No. 77

     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 the reports of the Committees of Conference upon the disagreeing votes of the two Houses upon Senate bills of the following titles:

S. 107.  An act relating to mapping class four town highways and trails and mass discontinuances of unmapped town highways.

S. 246.  An act relating to electronic access to criminal and family court records.

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

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

S. 284.  An act relating to the department of banking, insurance, securities , and heath care administration.

S. 322.  An act relating to dairy promotion council.

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

And has accepted and adopted the same on its part.

The Senate has considered the reports of the Committees of Conference upon the disagreeing votes of the two Houses upon House bills of the following titles:

H. 711.  An act relating to agricultural, forestry and horticultural education.

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

H. 888.  An act relating to miscellaneous tax amendments.

And has accepted and adopted the same on its part.

The Governor has informed the Senate that on the first day of May, 2008, he approved and signed bills originating in the Senate of the following titles:

S. 2.  An act relating to bail and to eligibility for public defender services for defendants charged with retail theft..

S. 146.  An act relating to advertising and producing musical performance.

Rules Suspended; Report of Committee of Conference Adopted

H. 890

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 compensation for certain state employees;

Was taken up for immediate consideration.

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon the bill respectfully reports that it has met and considered the same and recommends that Senate recede from its proposal of amendment and that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  32 V.S.A. § 1003(b)(1) is amended to read:

(1) Heads of the following departments, offices and agencies:

 

                                                                             Base Salary as

                                                                                              of

                                                                       July 8, 2007

   (A)           Administration                                 $90,745

* * *

 

   (Y)           Mental Health                                   84,834

   (Z)         Military                                              76,953 84,834

   (Z)(AA)           Motor vehicles                           76,953

   (AA)(BB)          Natural resources                     90,745

   (BB)(CC)          Natural resources board chair-

                             person                                       76,953

   (CC)(DD)          Public Safety                            84,834

   (DD)(EE)          Public service                            84,834

   (EE)(FF)          Taxes                                           84,834

   (FF)(GG)          Tourism and marketing              76,953

   (GG)(HH)          Transportation                           90,745

   (HH)(II)          Vermont health access                  84,834

   (II)(JJ)          Veterans home                             76,953

Sec. 2.  RATE OF ADJUSTMENT

(a)  For purposes of determining annual salary adjustments, special salary increases, and bonuses under subsections 1003(b) and 1020(b) of Title 32, “the total rate of adjustment available to classified employees under the collective bargaining agreement” shall be deemed to be 3.5 percent for those earning up to and including $28.85/hour for fiscal year 2009, but in no case shall an adjustment result in an annual salary exceeding $60,000.00 for fiscal year 2009.

(b)  Managerial and confidential classified employees in the executive branch earning $28.85/hour or more shall receive no cost of living adjustment in fiscal year 2009.  In no case shall a cost of living adjustment result in an annual salary exceeding $60,000.00 for fiscal year 2009.  In fiscal year 2010, managerial and confidential classified employees in the executive branch shall return to the salary schedule they would be on as if these fiscal year 2009 limitations had not been imposed.

Sec. 3.  PAY ACT APPROPRIATIONS

(a)  Executive branch.  The two-year agreements between the state of Vermont and the Vermont state employees’ association for the defender general, nonmanagement, supervisory, state police, and corrections bargaining units for the period July 1, 2008 through June 30, 2010, shall be funded as follows:

(1)  Fiscal year 2009:

(A)  General fund.  The amount of $538,094.00 is appropriated from the general fund to the secretary of administration for proportional distribution to the departments of corrections, defender general, state’s attorneys and sheriffs, and public safety to fund the fiscal year 2009 collective bargaining agreement and the requirements of this act.

(B)  Transportation fund.  The amount of $1,210,258.00 is appropriated from the transportation fund to the secretary of administration for distribution to the agency of transportation and the department of public safety to fund the fiscal year 2009 collective bargaining agreement and the requirements of this act.

(C)  Other funds.  The administration shall provide additional spending authority to departments through the existing process of excess receipts to fund the fiscal year 2009 collective bargaining agreement and the requirements of this act.  The estimated amounts are $1,205,810.00 from special fund sources and $4,016,461.00 from federal and other sources.

(D)  With due regard to the possible availability of other funds, for fiscal year 2009, the secretary of administration may transfer from the various appropriations and various funds and from the receipts of the liquor control board such sums as the secretary may determine to be necessary to carry out the purposes of this act to the various agencies supported by state funds.

(2)  Fiscal year 2010:

(A)  General fund.  The amount of $6,297,693.00 is appropriated from the general fund to the secretary of administration for distribution to departments for the fiscal year 2010 collective bargaining agreement and the requirements of this act.

(B)  Transportation fund.  The amount of $2,180,510.00 is appropriated from the transportation fund to the secretary of administration for distribution to the agency of transportation and the department of public safety to fund the fiscal year 2010 collective bargaining agreement and the requirements of this act.

(C)  Other funds.  The administration shall provide additional spending authority to departments through the existing process of excess receipts to fund the fiscal year 2010 collective bargaining agreement and the requirements of this act.  The estimated amounts are $1,230,031.00 from special fund sources and $4,095,444.00 from federal and other sources.

(D)  With due regard to the possible availability of other funds, for fiscal year 2010, the secretary of administration may transfer from the various appropriations and various funds and from the receipts of the liquor control board such sums as the secretary may determine to be necessary to carry out the purposes of this act to the various agencies supported by state funds.

(3)  This section shall include sufficient funding to ensure administration of exempt attorney pay plans, including deputy state’s attorneys and public defenders, subject to the approval of the secretary of administration.

(b)  Judicial branch. 

(1)  The annual salary of an exempt employee who earns an annual salary of less than $60,000.00 as of July 5, 2008 shall not be increased to a salary greater than $60,000.00 for fiscal year 2009.

(2)  The two-year agreements between the state of Vermont and the Vermont state employees’ association for the judicial bargaining unit for the period July 1, 2008 through June 30, 2010, and salary increases for exempt employees earning annual salaries of less than $60,000.00 as of July 5, 2008, shall be funded as follows:

(3)  Fiscal year 2009; general fund.  The amount of $330,000.00 is appropriated from the general fund to the judiciary to fund the fiscal year 2009 collective bargaining agreement and the requirements of this act.

(4)  Fiscal year 2010; general fund.  The amount of $706,615.00 is appropriated from the general fund to the judiciary to fund the fiscal year 2010 collective bargaining agreement and the requirements of this act.

(c)  Legislative branch. 

(1)  For the period July 1, 2009 through June 30, 2010, the legislature shall be funded as follows:   Fiscal year 2010; general fund.  The amount of $143,670.00 is appropriated from the general fund to the legislature to fund the fiscal year 2010 requirements of this act.  This appropriation shall be allocated to the respective legislative appropriation units as determined by the chief legislative counsel and the chief legislative fiscal officer.

(2)  The annual salary of an exempt employee who earns $60,000.00 or more shall receive no adjustment in fiscal year 2009.  The annual salary of an exempt employee who earns an annual salary of less than $60,000.00 as of July 5, 2008 shall not be increased to a salary greater than $60,000.00 in fiscal year 2009.

Sec. 4.  APPROPRIATION REDUCTIONS

(a)  Position reductions.  The secretary of administration shall reduce fiscal year 2009 general fund appropriations in the executive branch of state government by $3,670,000.00 consistent with reductions in positions in the executive branch.  In addition, the secretary of administration shall reduce fiscal year 2009 general fund appropriations in the executive branch of state government by $250,000 by not filling up to four exempt positions, not including attorneys and clerical personnel.  In order to maintain direct services to Vermonters, the secretary shall give preference to reducing those positions which do not provide those direct services.  The secretary shall provide a report to the house and senate committees on appropriations and government operations in January 2009 that lists all appropriation reductions, transfers, and substitutions within fiscal year 2009 appropriated funds that are proposed to achieve the general fund savings in this subsection.

(b)  Reductions in contractual services and temporary positions.  The secretary of administration shall reduce fiscal year 2009 general fund appropriations budgeted for contractual services and temporary positions in the executive branch of state government by $2,300,000.00.  The secretary shall provide a report to the house and senate committees on appropriations and government operations in January 2009 that lists all appropriation reductions, transfers, and substitutions within fiscal year 2009 appropriated funds that are proposed to achieve the general fund savings in this subsection.

Sec. 5.    JOINT LEGISLATIVE Government Accountability

               committee

(a)  There is created a joint legislative government accountability committee.  The committee shall recommend mechanisms for state government to be more forward-thinking, strategic, and responsive to the long-term needs of Vermonters.  In pursuit of this goal, the committee shall:

(1)  Make recommendations for enhancing the state’s ability to measure the performance of programs which have been or will be undertaken with government investments. 

(2)  Propose areas for the review of statutory mandates for public services that may result in service duplication and to review the alignment of financial and staff resources required to carry out those mandates.

(3)  Review the legislative process for the creation and elimination of positions and programs and make recommendations for enhancements to the process that support greater long-range planning and responsiveness to the needs of Vermonters.

(4)  Recommend strategies and tools which permit all branches of state government to prioritize the investment of federal, state, and local resources in programs that respond to the needs of the citizens of Vermont in a collaborative, cost-effective, and efficient manner.  Pursuant to those strategies and tools, functions which are not critical to an agency or department mission may be recommended for elimination, while other functions may be optimized.

(5)  Review strategies with similar aims in other jurisdictions in the context of federal, state, and local relationships.

(b)  The membership of the committee shall be appointed each biennial session of the general assembly.  The committee shall comprise eight members:  four members of the house of representatives who shall not all be from the same party, one from the committee on government operations, one from the committee on appropriations, and two other members, appointed by the speaker of the house; and four members of the senate who shall not all be from the same party, one from the committee on government operations, one from the committee on appropriations, and two other members, appointed by the committee on committees.  The committee may also include in its recommendations that the committee membership be altered.

(c)  The committee shall elect a chair, vice chair, and clerk from among its members and shall adopt rules of procedure.  The chair shall rotate biennially between the house and the senate members.  The committee shall keep minutes of its meetings and maintain a file thereof.  A quorum shall consist of five members.

(d)  When the general assembly is in session, the committee shall meet at the call of the chair.  The committee may meet up to four times during adjournment, and may meet more often subject to the approval of the speaker of the house and the president pro tempore of the senate.

(e)  For attendance at a meeting when the general assembly is not in session, members of the committee shall be entitled to compensation for services and reimbursement of expenses as provided under subsection 406(a) of Title 2.

(f)  The professional and clerical services of the joint fiscal office and the legislative council shall be available to the committee.

(g)  At least annually, the committee shall report its activities, together with recommendations, if any, to the general assembly.

Sec. 6.  PAY ACT FUNDING

(a)  The commissioner of finance and management shall submit a preliminary plan to the joint fiscal committee at its September/October 2008 meeting on levels of funding for the pay act for fiscal year 2009 funding.  The plan shall outline the funds available and any additional offsets the commissioner is planning to offer to meet pay act requirements.  The committee shall hear any testimony it deems necessary on the service impact of the pay act funding for fiscal year 2009. 

(b)  At the November meeting of the joint fiscal committee, the commissioner shall submit a  report that includes the following:

(1)  The allocation by department and section from the fiscal year 2008 pay act appropriation and the appropriations for pay act needs of this act and any other offsets to meet pay act needs;

(2)  The source of funds and the specific percentage of need being met in each department from the allocation;

(3)  Any proposed transfers between departments to meet pay act needs;

(4)  A summary of fiscal impacts by department in fiscal year 2009 due to shortfalls in pay act funds and added assessments of internal service funds;

(5)  A preliminary assessment of the administration’s intention to meet departmental pay act expense roll‑outs for fiscal year 2010.

Sec. 7.  3 V.S.A. § 2222(i) is amended to read:

(i)  The secretary of administration is authorized to transfer vacant positions throughout the executive branch of state government, and to adjust appropriations in the executive branch in accordance with the secretary's statewide vacancy savings plan that reflects realistic savings due to vacant positions. Such appropriation adjustments shall result in no change to the total statewide legislative appropriations to the executive branch. This authority is separate from the secretary's authority provided in section 706 of Title 32. A report of all actions taken during the preceding fiscal year pursuant to this authority shall be furnished to the legislature no later than January 15 of each year.  The report shall include a list of all authorized filled and vacant positions by department and all positions subject to this subdivision and shall indicate whether each position is classified, exempt, or temporary.  In addition, the secretary shall periodically furnish the legislature with a report of accomplishments and recommendations concerning improvements in better managing resources on a statewide basis.

Sec. 8.  SECRETARY OF ADMINISTRATION; REPORT; STATE

             EMPLOYEE POSITIONS

(a)  The general assembly finds that the goal in reducing state employee positions is to meet certain financial targets and not to simply reduce positions.  Because the general assembly needs detailed information to evaluate the specific actions required to meet these financial targets, the reports required by this section and 3 V.S.A. § 2222(i) are necessary for the general assembly to perform its constitutional responsibilities.

(b)  The secretary of administration shall submit the report required under 3 V.S.A. § 2222(i) to the joint fiscal committee and chairs of every legislative standing committee on July 1, 2008, September 1, 2008, and November 1, 2008.  In addition to the information required by 3 V.S.A. § 2222(i), the secretary shall also report on the number of positions eliminated since January 1, 2008 by department and indicate whether each position is classified, exempt, or temporary.  The secretary shall also recommend positions for elimination that are necessary to meet the financial targets and explain the projected fiscal year savings attributable to the positions by funding source and appropriations by name and unit.

(c)  When state employee positions are proposed to be eliminated or employees are reduced, the secretary of administration shall submit to the chairs of the house and senate committees on government operations and the joint fiscal committee a report that shall include:

(1)  Total financial implications by department of the position eliminations or reductions, including specific savings by fund type.

(2)  For each specific position:

(A)  The department organizational chart for each division affected, including identification of the position eliminated or reduced and all other positions that are vacant at the start of fiscal year 2009;

(B)  The title, position number, and date the position was vacated;

(C)  The reason that the position is available for elimination or reduction;

(D)  Position classification:  exempt; classified; applicable bargaining unit, if any;

(E)  The projected fiscal year 2009 savings attributable to the position by funding source and appropriations by name and unit.

(F)  A statement on how the service or activity with which that position was involved will be addressed.

Sec. 9.  POSITION ELIMINATIONS

Notwithstanding 3 V.S.A. § 327(b), no position shall be eliminated or abolished unless by act of the general assembly.

Sec. 10.  REPEAL

(a)  Sec. 5 of this act shall be repealed on July 1, 2013.

(b)  Sec. 9 of this act shall be repealed on July 1, 2010.

Sec. 11.  EFFECTIVE DATE

Sec. 5 of this act shall take effect upon passage.

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF THE SENATE                                    THE HOUSE

SEN. JEANETTE WHITE                            REP. KENNETH ATKINS

SEN. WILLIAM DOYLE                             REP. PATRICIA MCDONALD

SEN. SUSAN BARTLETT

Which was considered and adopted on the part of the House.

Rules Not Suspended to Take up Bill for Immediate Consideration

H. 711

Pending entrance of the bill on the Calendar for notice, Rep. Nease of Johnson moved to suspend the rules to take up the bill for immediate consideration on House bill, entitled

An act relating to agricultural, forestry, and horticultural education;

Pending the question, Shall the House suspend the rules to take up the bill for immediate consideration? Rep. Adams of Hartland 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 House suspend the rules to take up the bill for immediate consideration?  was decided in the negative.  Yeas, 87.  Nays, 43.  A ¾ vote of 98 needed.

Those who voted in the affirmative are:


Ancel of Calais

Anderson of Montpelier

Andrews of Rutland City

Atkins of Winooski

Audette of S. Burlington

Barnard of Richmond

Bissonnette of Winooski

Botzow of Pownal

Branagan of Georgia

Bray of New Haven

Browning of Arlington

Clarkson of Woodstock

Consejo of Sheldon

Copeland-Hanzas of Bradford

Courcelle of Rutland City

Crawford of Burke

Deen of Westminster

Donovan of Burlington

Dostis of Waterbury

Emmons of Springfield

Evans of Essex

Fallar of Tinmouth

Fisher of Lincoln

Fitzgerald of St. Albans City

Frank of Underhill

French of Randolph

Gilbert of Fairfax

Godin of Milton

Grad of Moretown

Head of S. Burlington

Heath of Westford

Hosford of Waitsfield

Howard of Rutland City

Howrigan of Fairfield

Hunt of Essex

Hutchinson of Randolph

Jerman of Essex

Jewett of Ripton

Johnson of South Hero

Keogh of Burlington

Kitzmiller of Montpelier

Klein of East Montpelier

Kupersmith of S. Burlington

Larocque of Barnet

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

Masland of Thetford

McCormack of Rutland City

McCullough of Williston

McFaun of Barre Town

Milkey of Brattleboro

Miller of Shaftsbury

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

Orr of Charlotte

Pellett of Chester

Peltz of Woodbury

Perry of Richford

Peterson of Williston

Potter of Clarendon

Pugh of S. Burlington

Rodgers of Glover

Shand of Weathersfield

Sharpe of Bristol

Smith of Morristown

Spengler of Colchester

Stevens of Shoreham

Sweaney of Windsor

Trombley of Grand Isle

Weston of Burlington

Zenie of Colchester


Those who voted in the negative are:


Acinapura of Brandon

Adams of Hartland

Ainsworth of Royalton

Baker of West Rutland

Bostic of St. Johnsbury

Brennan of Colchester

Canfield of Fair Haven

Clerkin of Hartford

Davis of Washington

Devereux of Mount Holly

Donaghy of Poultney

Donahue of Northfield

Errecart of Shelburne

Flory of Pittsford

Grenier of St. Johnsbury

Haas of Rochester

Hube of Londonderry

Kilmartin of Newport City

Komline of Dorset

Krawczyk of Bennington

Larrabee of Danville

Lawrence of Lyndon

Lewis of Derby

Livingston of Manchester

Marcotte of Coventry

McAllister of Highgate

McDonald of Berlin

McNeil of Rutland Town

Morley of Barton

Morrissey of Bennington

Myers of Essex

O'Donnell of Vernon

Oxholm of Vergennes

Pearson of Burlington

Peaslee of Guildhall

Randall of Troy

Scheuermann of Stowe

Turner of Milton

Valliere of Barre City

Wheeler of Derby

Winters of Williamstown

Wright of Burlington

Zuckerman of Burlington


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


Allard of St. Albans Town

Aswad of Burlington

Chen of Mendon

Cheney of Norwich

Clark of Vergennes

Condon of Colchester

Corcoran of Bennington

Edwards of Brattleboro

Gervais of Enosburg

Helm of Castleton

Johnson of Canaan

Keenan of St. Albans City

Koch of Barre Town

LaVoie of Swanton

Minter of Waterbury

Otterman of Topsham

Partridge of Windham

Pillsbury of Brattleboro

Westman of Cambridge


 

     Rep. Donahue of Northfield explained her vote as follows:

“Madam Speaker:

     When we recessed for dinner, I was the last to leave this chamber.  I had reached page 19 of 43 pages reading this report.  I returned as soon as I ate the sandwich I ordered.  I am still on page 19.  It is inappropriate to my ability to fulfill my duties to my constituents to suspend rules and expedite this matter.”

Adjournment

At nine o’clock and thirty minutes in the evening, on motion of Rep. Komline of Dorset, the House adjourned until tomorrow at nine o’clock in the forenoon.

 

 

 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us