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Journal of the Senate

________________

Tuesday, April 3, 2007

The Senate was called to order by the President.

Devotional Exercises

Devotional exercises were conducted by the Reverend Thomas Harty of Randolph.

Pledge of Allegiance

Pages Aaron Locke and Caitlin Morse then led the members of the Senate in the pledge of allegiance.

Message from the House No. 42

     A message was received from the House of Representatives by Ms. Wrask, its Second Assistant Clerk, as follows:

Mr. President:

I am directed to inform the Senate the House has passed a bill of the following title:

H. 248.  An act relating to establishing the Vermont Telecommunications Authority to advance broadband and wireless communications infrastructure throughout the state.

In the passage of which the concurrence of the Senate is requested.

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

J.R.S. 27.  Joint resolution relating to weekend adjournment.

And has adopted the same in concurrence.

     The House has adopted concurrent resolutions of the following titles:

     H.C.R. 82.  Concurrent resolution congratulating the 2007 Mt. Anthony Union High School Patriots’ wrestling team on winning its 19th consecutive state championship.

     H.C.R. 83.  Concurrent resolution congratulating Claire Bohannon of Alburg on her award-winning business “Claire’s Country Garden”.

     H.C.R. 84.  Concurrent resolution honoring Gordon Bruce Foster of Fair Haven for his exemplary community service.

     H.C.R. 85.  Concurrent resolution honoring Daniel O’Brien for his service on the Vermont liquor control board, and as a business and political leader in Vermont.

     H.C.R. 86.  Concurrent resolution congratulating the 2007 Poultney High School championship Division III cheerleading team.

     H.C.R. 87.  Concurrent resolution congratulating the 2007 Proctor High School Phantoms Division IV championship basketball team.

     H.C.R. 88.  Concurrent resolution congratulating the Smugglers’ Notch Resort on its 50th anniversary.

     H.C.R. 89.  Concurrent resolution congratulating the 2007 South Royalton School Royals Division III championship boys’ basketball team.

     H.C.R. 90.  Concurrent resolution congratulating the 2007 Burr and Burton Academy Bulldogs championship Division II girls’ ice hockey team.

     H.C.R. 91.  Concurrent resolution congratulating the 2007 Vergennes Union High School Commodores Division II championship cheerleading team.

     H.C.R. 92.  Concurrent resolution commemorating the 230th anniversary of the Battle of Bennington.

     H.C.R. 93.  Concurrent resolution honoring the scholastic geography events to be held on March 30 in Burlington.

In the adoption of which the concurrence of the Senate is requested.

Committee Bill Introduced

Senate committee bill of the following title was introduced, read the first time, and, under the rule, placed on the Calendar for notice tomorrow:

S. 204.

By the Committee on Economic Development, Housing and General Affairs,

An act relating to increased funding for the downtown and village center tax credit program.

Bill Introduced

Senate bill of the following title was introduced, read the first time and referred:

S. 205.

By Senator Cummings,

An act relating to eliminating safety net coverage and reforming the nongroup health insurance market.

To the Committee on Finance.

Bill Referred

House bill of the following title was read the first time and referred:

H. 248.

An act relating to establishing the Vermont Telecommunications Authority to advance broadband and wireless communications infrastructure throughout the state.

To the Committee on Finance.

Bill Referred to Committee on Appropriations

S. 94.

Senate bill of the following title, appearing on the Calendar for notice and carrying an appropriation or requiring the expenditure of funds, under the rule was referred to the Committee on Appropriations:

An act relating to greenhouse gas reduction, the efficiency utility, assessing an efficiency nega-rate charge on heating fuels, and other matters relating to building efficiency.

Message from the Governor

Appointments Referred

     A message was received from the Governor, by Kiersten Bourgeois, Secretary of Civil and Military Affairs, submitting the following appointments, which were referred to committees as indicated:

     Celine F. Champine of Newport Center - Member of the Community High School of Vermont Board, - from March 28, 2007, to February 28, 2009.

     To the Committee on Education.

     Michael Popowski, III of Northfield - Member of the Fish and Wildlife Board, - from March 29, 2007, to February 28, 2013.

     To the Committee on Natural Resources and Energy.

     James Ehlers of Colchester - Member of the Vermont Citizens Advisory Committee on Lake Champlain’s Future, - from March 28, 2007, to February 28, 2009.

     To the Committee on Natural Resources and Energy.

     Steven Gurin of Barre - Member of the Vermont Educational and Health Buildings Finance Agency, - from April 2, 2007, to January 31, 2010.

     To the Committee on Finance.

Rules Suspended; Committee Relieved of Further Consideration; Bill Committed

H. 353.

On motion of Senator White, the rules were suspended, and H. 353 was taken up for immediate consideration, for the purpose of relieving the Committee on Government Operations from further consideration of the bill. Thereupon, on motion of Senator White, the Committee on Government Operations was relieved of House bill entitled:

An act relating to employee free choice for bargaining representative,

and the bill was committed to the Committee on Economic Development, Housing and General Affairs.

Bill Called Up

S. 194.

Senate bill of the following title was called up by Senator Illuzzi, and, under the rule, placed on the Calendar for action tomorrow:

An act relating to firefighters and cancer caused by employment.

Bill Amended; Bill Passed

S. 196.

Senate bill entitled:

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

Having been called up, was taken up.

Thereupon, pending third reading of the bill, Senator Illuzzi, for the Committee on Economic Development, Housing and General Services moved to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  21 V.S.A. § 690 is amended to read:

§ 690.  CERTIFICATE, FORM; COPY OF POLICY

(a)  An employer subject to the provisions of this chapter who has taken out insurance under sections workers’ compensation insurance coverage pursuant to section 687 or 689 of this title or as provided in subdivisions (a)(1) or (a)(2) of section 687 of this title shall file or cause to be filed with the commissioner, in form prescribed by him, a certificate of the insurance carried by such employer in a form prescribed by the commissionerSuch The certificate shall set forth include the policy number, effective date, date of expiration, operations covered and such other information as the commissioner may require and requests.  The certificate shall be signed by a duly authorized representative of the insurance or guarantee company which has that issued such the insurance coverageSuch Upon request, the insurance or guarantee company shall file with the commissioner, if required by him, a copy of the contract or policy of insurance so issued.

(b)(1)  Upon written request, the commissioner may request from a building or construction industry contractor engaged in the business of nonresidential building or construction a workers’ compensation compliance statement on a form provided by the commissioner.  For the purposes of this subsection, a contractor includes subcontractors and independent contractors.  The form shall require all the following information:

(A)  The number of employees employed during the entire workers’ compensation policy term or the previous year if no policy was in effect or partially in effect prior to the request.

(B)  The total number of hours for which compensation was paid.

(C)  Designation of the hours that were the basis of the appropriate National Council on Compensation Insurance (NCCI) classification code.

(D)  The name of the workers’ compensation insurance carrier, the policy number, and the agent, if any.

(2)  Any contractor who fails to comply with this subsection or falsifies information on the compliance statement may be assessed an administrative penalty of not more than $5,000.00 for each week during which the  noncompliance or falsification occurred and any costs and attorney fees required to enforce this subsection.  The commissioner may also seek injunctive relief in Washington superior court.

(3)  A compliance statement shall be a public record, and the commissioner shall provide a copy of a compliance statement to any person on request.  An insurance company provided with a compliance statement may investigate the information in the statement.  Based on evidence that a contractor is not in compliance with this chapter, the commissioner shall request a compliance statement or an amended compliance statement from the contractor, investigate further, and take appropriate enforcement action.  No contractor shall be required to provide more than one workers’ compensation compliance statement per year, unless requested by the commissioner.

Sec. 2.  21 V.S.A., § 692(a) and (b) are amended to read:

(a)  If after hearing under section 688 of this title, the commissioner determines that an employer has failed to comply with the provisions of section 687 of this title, the employer shall be assessed an administrative penalty of not more than $50.00 $100.00 for every day the employer neglected to secure liability, but in no case shall the fine be more than $5,000.00.

(b)  Additionally, an employer who fails to comply with the provisions of section 687 of this title for a period of five days after notice from the commissioner shall be assessed an administrative penalty of not more than $150.00 $250.00 for every day after five days that the employer fails to secure workers’ compensation coverage as required in section 687 of this title.  The commissioner may, after giving notice and after the expiration of the five-day period, post a notice at a conspicuous place on the premises of the employer informing the employees that their employer has failed to comply with the provisions of section 687 of this title and ordering the premises closed until workers’ compensation insurance is secured.

Sec. 3.  21 V.S.A. § 696 is amended to read:

§ 696.  CANCELLATION OF INSURANCE CONTRACTS

Such a A policy or contract shall not be cancelled within the time limited in such the policy or contract for its expiration, until at least 45 days after a notice of intention to cancel such the policy or contract, on a date specified in such the notice, has been filed in the office of the commissioner and provided to the employer.  Such The notice shall be filed and provided by certified mail or certificate of mailing.  Such The cancellation shall not affect the liability of an insurance carrier on account of an injury occurring prior to such cancellation.

Sec. 4.  21 V.S.A. § 697 is amended to read:

§ 697.  NOTICE OF INTENT NOT TO RENEW POLICY

An insurance carrier who does not intend to renew a policy of workers’ compensation insurance or guarantee contract covering the liability of an employer under the provisions of this chapter, 45 days prior to the expiration of such the policy or contract, shall give notice of such the intention to the commissioner of labor and to the covered employer.  Such The notice shall be given by certified mail or certificate of mailing.  An insurance carrier who fails to give such notice shall continue the policy or contract in force beyond its expiration date for 45 days from the day such the notice is received by the commissioner.  However, this latter provision shall not apply if, prior to such expiration date, the insurance carrier has offered to continue the insurance beyond such the date by delivery of a renewal contract or otherwise or if the employer notifies the insurance carrier that he the employer does not wish the insurance continued beyond such the expiration date, or if the employer complies with the provisions of section 687 of this title, on or before the expiration of the existing insurance or guarantee contract.

Sec. 5.  21 V.S.A. § 708 is amended to read:

§ 708.  PENALTY FOR FALSE REPRESENTATIONS

(a)  Action by the commissioner of labor.  A person who willfully makes a false statement or representation, for the purpose of obtaining any benefit or payment under the provisions of this chapter, either for her or himself or for any other person, after notice and opportunity for hearing may be assessed an administrative penalty of not more than $1,000.00 $5,000.00 total, and shall forfeit all or a portion of any right to compensation under the provisions of this chapter, as determined to be appropriate by the commissioner after a determination by the commissioner that the person has willfully made a false statement or representation of a material fact.

(b)  Action by the commissioner of banking, insurance, securities, and health care administration.  An employer who willfully makes a false statement or representation for the purpose of obtaining a lower workers’ compensation premium, after notice and opportunity for hearing before the commissioner of banking, insurance, securities, and health care administration may be assessed an administrative penalty of not more than $5,000.00 in addition to any other appropriate penalty.  In addition to any other remedy provided by law, the commissioner of banking, insurance, securities, and health care administration may pursue the collection of the administrative penalty imposed by this section in Washington superior court.

Sec. 6.  PROOF OF INSURANCE; STUDY; COMMISSIONER OF LABOR

The commissioner of labor shall study the feasibility and cost associated with making the National Council on Compensation Insurance proof of coverage services available to the public as a workers’ compensation coverage verification through the department of labor’s website.  The commissioner shall present findings and recommendations to the senate committee on economic development, housing and general affairs and to the house committees on commerce and on general, housing and military affairs on or before January 15, 2008.

Which was agreed to

Thereupon, the bill was read the third time and passed.


Consideration Postponed

S. 190.

Senate bill entitled:

An act relating to establishing a brownfields advisory committee.

Was taken up.

Thereupon, without objection consideration of the bill was postponed until the next legislative day.

Third Readings Ordered

H. 51.

Senator Coppenrath, for the Committee on Government Operations, to which was referred House bill entitled:

An act relating to approval of amendments to the charter of the village of Newbury.

Reported that the bill ought to pass in concurrence.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, and third reading of the bill was ordered.

H. 97.

Senator Coppenrath, for the Committee on Government Operations, to which was referred House bill entitled:

An act relating to the ability of the unified town and gores of Essex county to incur indebtedness.

Reported that the bill ought to pass in concurrence.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, and third reading of the bill was ordered.

Bill Amended; Third Reading Ordered

S. 115.

Senate committee bill entitled:

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

Was taken up.

Senator Racine, for the Committee on Health and Welfare, to which the bill was committed, reported recommending that the bill be amended as follows:

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

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

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

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

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

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

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

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

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

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

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

(c)  As used in this section:

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 9473.  ENFORCEMENT

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Subchapter 5.  Unconscionable Pricing

§ 4651.  Purpose

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

§ 4652.  DEFINITIONS

For purposes of this subchapter:

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

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

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

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

§ 4653.  UnconsCionable Pricing PROHIBITED

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

§ 4654.  SERIOUS PUBLIC health THREAT

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

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

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

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

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

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

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

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

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

§ 4655.  Unconscionable pricing; PRIMA FACIE CASE

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

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

§ 4656.  consumer fraud ACTION

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

§ 4657.  Civil Action

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

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

§ 4658.  Remedies FOR CIVIL ACTIONS

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

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

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

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

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

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

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

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

§ 2466a.  Consumer Protections; Prescription Drugs

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

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

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

(2)  For purposes of this section:

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

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

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

     And by renumbering all sections to be numerically correct.

And that when so amended the bill ought to pass.

     Senator Cummings, for the Committee on Finance, to which the bill was referred, reported recommending that the bill be amended as recommended by the Committee on Health and Welfare with the following amendments thereto:

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

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

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

Subchapter 5.  Unconscionable Pricing

§ 4651.  Purpose

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

§ 4652.  DEFINITIONS

For purposes of this subchapter:

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

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

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

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

§ 4653.  UnconsCionable Pricing PROHIBITED

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

§ 4654.  SERIOUS PUBLIC health THREAT

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

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

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

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

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

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

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

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

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

§ 4655.  Unconscionable pricing; PRIMA FACIE CASE

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

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

§ 4656.  consumer fraud ACTION

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

§ 4657.  Civil Action

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

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

§ 4658.  Remedies FOR CIVIL ACTIONS

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

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

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

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

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

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

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

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

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

§ 4634.  Pharmaceutical Marketer Prescription Information Disclosure Program

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

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

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

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

(e)  As used in this section:

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

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

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

Third:  That the bill be amended in Sec. 21 (recodification), in subdivision (a), after the word “section” where it secondly appears by striking out the number “4634” and inserting in lieu thereof the number 4535

And that when so amended the bill ought to pass.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, and pending the question, Shall the recommendation of amendment of the Committee on Health and Welfare be amended as recommended by the Committee on Finance?, Senator Cummings requested and was granted leave to withdraw the second and third recommendations of amendment of the Committee on Finance.

Thereupon, the question, Shall the recommendation of amendment of the Committee on Health and Welfare be amended as firstly recommended by the Committee on Finance?, was agreed to.

Thereupon, the pending question, Shall the bill be amended as recommended by the Committee on Health and Welfare, as amended?, was decided in the affirmative.

Thereupon, third reading of the bill was ordered on a roll call, Yeas 28, Nays 1.

Senator Campbell having demanded the yeas and nays, they were taken and are as follows:

Roll Call

Those Senators who voted in the affirmative were: Ayer, Bartlett, Campbell, Carris, Collins, Coppenrath, Cummings, Doyle, Flanagan, Giard, Hartwell, Illuzzi, Kitchel, Kittell, Lyons, MacDonald, Mazza, McCormack, Miller, Mullin, Nitka, Racine, Scott, Sears, Shumlin, Snelling, Starr, White.

The Senator who voted in the negative was: Maynard.

The Senator absent and not voting was: Condos.


Bill Amended; Third Reading Ordered

S. 121.

Senator Nitka, for the Committee on Education, to which was referred Senate bill entitled:

An act relating to enhancing Vermont’s system of care for individuals with autism spectrum disorders.

     Reported recommending that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

The general assembly finds:

(1)  Autism is identified as a pervasive developmental disorder in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).  Pervasive developmental disorders include: autistic disorder; Asperger’s disorder; pervasive developmental disorder, not otherwise specified; Rett’s disorder; and childhood disintegrative disorder.  These disorders are often referred to as autism spectrum disorders (ASD).

(2)  Although this act pertains to ASD, it is noteworthy that autism is a neurologically based developmental disorder that can have profound lifelong effects in social interaction, the ability to communicate, imagination, and the establishment of relationships.

(3)  Children are diagnosed with autism spectrum disorders by psychologists, developmental pediatricians, psychiatrists, and neurologists.

(4)  In 1992, only 13 Vermont children with autism spectrum disorders received special education in Vermont.  According to the preliminary December 1, 2006 child count, 582 children with autism spectrum disorders are currently receiving special education in Vermont.

(5)  There is no single intervention that will be effective for all individuals with autism spectrum disorders or for the same individual across his or her lifespan.

(6)  National Research Council findings suggest that up to 48 percent of young children with autism spectrum disorders make marked progress when they receive intensive early intervention.

Sec. 2.  INTERAGENCY INITIATIVE TO ENHANCE SERVICES FOR INDIVIDUALS WITH AUTISM SPECTRUM DISORDERS

(a)  ASD Initiative.  On or before January 15, 2008, the secretary of human services and the commissioner of education shall develop a state plan for and begin implementation of a comprehensive initiative designed to sustain and enhance services provided by existing public and private entities to Vermonters with autism spectrum disorders (ASD) and their families.  The plan shall include detailed budget projections, a feasibility analysis for a structured fee schedule, and estimated appropriation requirements for each year of implementation.  The agency of human services, through the department for children and families, the department of health, and the department of disabilities, aging, and independent living, shall assume primary responsibility for the ASD initiative.  The secretary of human services and the commissioner of education shall enter into an interagency agreement detailing their respective responsibilities on or before August 15, 2007.  Subject to receipt of sufficient appropriations as outlined in the initiative plan, the ASD initiative shall be fully implemented by November 15, 2012.  

(b)  Advisory board.  The Act 264 advisory board’s responsibilities are expanded to include serving as the advisory board for the ASD initiative. 

(c)  Services.  In an effort to improve the consistency of both access to and quality of services across the education and human services systems:

(1)  The agency shall enter into contracts with existing and new public and private providers of developmental, mental health, and early intervention services to:

     (A)  Expand the existing capacity for early and accurate diagnosis of ASD by facilitating the sufficient availability of specialists to all regions of the state.

     (B)  Provide technical assistance and training to primary care physicians on screening protocols.

     (C)  Provide training, technical assistance, and consultation to schools, local agencies, and other providers of developmental, mental health, and early intervention services.

(2)  The department of education shall:

(A)  Award grants pursuant to 16 V.S.A. § 2967(b)(3) to the Vermont interdisciplinary team for intensive special education to expand the team’s capacity to serve individuals with ASD and their families.

(B)  Award grants to parent resource centers and other parent organizations offering support to families of individuals with ASD to provide training and technical assistance, to maintain a web-based clearinghouse of resources, including public and private funding opportunities, and strategies for navigating provider services, and to create and expand support groups.

(3)  The agency, the department, or both, may enter into contracts with state or national experts to provide training required by this act and may coordinate with existing entities, such as the higher education collaborative, private autism collaboratives, and early education providers.

(4)  The agency and department shall plan for the gradual development of model regional resource centers at existing locations of developmental services, mental health, and other local agency providers, with satellite sites in other areas of the state.  The purpose of the regional resource centers is to provide consultation, training, technical assistance, and otherwise create a hub of information regarding effective strategies in supporting individuals with ASD and their families.

(d)  Evaluation and report.  Annually, the agency and the department shall evaluate the effectiveness of the initiative, identify unmet needs, and modify the program to address the unmet needs.  The agency and the department shall file a written report of their evaluation with the governor, the house and senate committees on education, the senate committee on health and welfare, and the house committee on human services on or before January 15 of each year through 2012.

     The Committee further recommends that upon passage the title of the bill be amended to read as follows:

     AN ACT RELATING TO AUTISM SPECTRUM DISORDERS.

And that when so amended the bill ought to pass.

Senator Miller, for the Committee on Appropriations, to which the bill was referred, reported recommending that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

The general assembly finds:

(1)  Autism is identified as a pervasive developmental disorder in the Diagnostic and Statistical Manual of Mental Disorders (DSM‑IV).  Pervasive developmental disorders include: autistic disorder; Asperger’s disorder; pervasive developmental disorder, not otherwise specified; Rett’s disorder; and childhood disintegrative disorder.  These disorders are often referred to as autism spectrum disorders (ASD).

(2)  Although this act pertains to ASD, it is noteworthy that autism is a neurologically based developmental disorder that can have profound lifelong effects in social interaction, the ability to communicate, imagination, and the establishment of relationships.

(3)  Children are diagnosed with autism spectrum disorders by psychologists, developmental pediatricians, psychiatrists, and neurologists.

(4)  In 1992, only 13 Vermont children with autism spectrum disorders received special education in Vermont.  According to the preliminary December 1, 2006 child count, 582 children with autism spectrum disorders are currently receiving special education in Vermont.

(5)  There is no single intervention that will be effective for all individuals with autism spectrum disorders or for the same individual across his or her lifespan.

(6)  National Research Council findings suggest that up to 48 percent of young children with autism spectrum disorders make marked progress when they receive intensive early intervention.

Sec. 2.  PLAN FOR AN INTERAGENCY INITIATIVE TO ENHANCE SERVICES FOR INDIVIDUALS WITH AUTISM SPECTRUM DISORDERS

(a)  ASD Initiative Plan.  On or before January 15, 2008, the secretary of human services and the commissioner of education shall develop a proposed state plan for a system of care to address the needs of Vermonters with autism spectrum disorders (ASD) and their families, that is consistent with the Vermont Interagency White Paper on Autism Spectrum Disorders: Report to the Act 264 Board, issued March 2006.  The agency of human services, through the department for children and families, the department of health, and the department of disabilities, aging, and independent living, shall assume primary responsibility for developing the proposed plan.  The agency, together with the department of education, shall engage families of individuals with ASD and members of the Act 264 advisory board in the planning process.

(b)  The proposed plan shall include:

(1)  A review of supports and services currently available to individuals with ASD and their families.

(2)  Strategies for enabling access to early and accurate diagnosis of ASD.

(3)  Identification of deficiencies in the current system of care, regarding both the types of services provided and the availability of services in all areas of the state.

(4)  Projections of the future needs of individuals with ASD in Vermont. 

(5)  Identification of the additional support and services needed for an effective system of care for individuals with ASD and identification of potential federal and other funding sources for this system.

(6)  Strategies for the use of existing and new resources to provide training, technical assistance, information dissemination, and consultation to families, schools, local agencies, and other providers of developmental, mental health, and early intervention services.

(7)  A review of the current role of schools in connection with the provision of ASD-related services, including the financial impact that the provision of these services has on school budgets.

(8)  Recommendations for any change in the role of schools in connection with the provision of ASD-related services, including the financial impact that the recommended changes might have on school budgets.

(9)  Consideration of:

(A)  Whether the current allocation of costs for the provision of ASD-related services between the education system and the agency of human services is appropriate.

(B)  How the current and potential costs of ASD-related services provided by schools might be assumed by the agency of human services and whether such assumption would be appropriate and advisable.

(10)  Strategies for encouraging collaboration with higher education programs to provide a sufficient number of well‑trained professionals to provide ASD‑related services in all regions of the state.

(11)  A process by which the proposed plan for a system of care will be implemented, including consideration of how existing resources might be used or redirected to support the system.

(12)  Recommendations for how unmet needs might be satisfied, including any proposals for amendments to legislation or rules.

(13)  Provisions ensuring regular review and revision of the proposed system of care.

(c)  The agency and the department shall file a written plan consistent with this section with the governor and the general assembly on or before January 15, 2008.

The Committee further recommends that after passage of the bill the title be amended to read as follows:

     AN ACT RELATING TO AUTISM SPECTRUM DISORDERS.

And that when so amended the bill ought to pass.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, and pending the question, Shall the bill be amended as recommended by the Committee on Education?, Senator Nitka requested and was granted leave to withdraw the recommendation of amendment of the Committee on Education.

Thereupon, the pending question, Shall the bill be amended as recommended by the Committee on Appropriations?, was decided in the affirmative.

Thereupon, third reading of the bill was ordered.

Rules Suspended; Committee Relieved of Further Consideration; Bill Committed

H. 248.

On motion of Senator Shumlin, the rules were suspended, and H. 248 was taken up for immediate consideration, for the purpose of relieving the Committee on Finance from further consideration of the bill. Thereupon, on motion of Senator Shumlin, the Committee on Finance was relieved of House bill entitled:

An act relating to establishing the Vermont Telecommunications Authority to advance broadband and wireless communications infrastructure throughout the state.

and the bill was committed to the Committee on Economic Development, Housing and General Affairs.

Adjournment

On motion of Senator Shumlin, the Senate adjourned until one o’clock in the afternoon on Wednesday, April 4, 2007.

 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us