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					      Journal of the Senate
                               ________________
                            FRIDAY, MAY 2, 2008
   The Senate was called to order by the President.
                             Devotional Exercises
   A moment of silence was observed in lieu of devotions.
                                 Pages Honored
  In appreciation of their many services to the members of the General
Assembly, the President and President pro tempore recognized the following-
named pages who are completing their services today and presented them with
commemorative posters:
                           Samuel Coxon of Sharon
                           Joshua Crane of Montpelier
                           Victoria DeLuca of Williston
                           Samuel Hooper of Sharon
                           Reilly Johnson of Bradford
                           Eleanor Laukaitis of Williston
                           Lara Loughlin of Dorset
                           Maureen T. Myrick of St. Johnsbury
                           Mikaela Osler of Jericho
                           Rebecca Westcom of Enosburg Falls
                    Senate Resolution Placed on Calendar
                                       S.R. 30.
   Senate resolution of the following title was offered, read the first time and is
as follows:
   By the Committee on Education,
   S.R. 30. Senate resolution encouraging the Business-Education Alliance to
continue working for an effective organizational structure for state education
governance.
   Whereas, the elementary and secondary student population in Vermont’s
schools should be performing at a sufficiently high level to meet the
educational challenges of the 21st century, and



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   Whereas, both a new state-wide vision and an effective organizational
structure for state education governance are essential for preparing children to
meet these challenges, and
  Whereas, a clear state-wide vision is necessary so that children in every
Vermont school are offered the highest quality curriculum, and
   Whereas, strong leadership and accountability in the state of Vermont’s
system of educational governance and the most effective organizational
structure are vital if we are to update the materials and teaching methods used
in Vermont’s public schools, and
   Whereas, recent test scores in some Vermont schools are flat or falling, and
improvements in these scores these inadequate test results must be reversed if
the students in our state are to be prepared to enter the ever-changing global
economy, and
  Whereas, the Business-Education Alliance, in a report entitled “Vision,
Goals, and Governance in Vermont’s Public Education System,” identifies the
needs that must be addressed if a new vision for education is to be achieved,
now therefore be it
  Resolved by the Senate:
   That the Senate of the State of Vermont requests that the
Business-Education Alliance continue to prepare detailed documentation of the
findings listed in its recently issued report on the status of public education in
Vermont and that the documentation be presented to the House and Senate
committees on education and to the commissioner of education on or before
January 20, 2009, and be it further
   Resolved: That the Secretary of the Senate be directed to send a copy of
this resolution to Governor James Douglas, and to Mary Powell and Mary
Moran, co-chairs of the Business-Education Alliance.
  Thereupon, in the discretion of the President, under Rule 51, the resolution
was placed on the Calendar for action tomorrow.
                          Senate Resolution Adopted
                                      S.R. 29.
   Senate resolution entitled:
  Senate resolution relating to the Connecticut River Valley Flood Control
Commission.
   Having been placed on the Calendar for action, was taken up and adopted.
                             FRIDAY, MAY 2, 2008                            1605
                       Join Resolution Ordered to Lie
                                      J.R.H. 64.
   Joint House resolution entitled:
   Joint resolution recognizing all Vermont firefighters, police officers, and
emergency medical service (EMS) personnel for the professional level of
service they provide to their communities.
   Was taken up.
   Thereupon, pending the question, Shall the joint resolution be adopted in
concurrence, on motion of Senator Shumlin, the bill was ordered to lie.
  Rules Suspended; Reports of Committees of Conference Accepted and
                   Adopted on the Part of the Senate
                                       H. 599.
    Appearing on the Calendar for notice, on motion of Senator Shumlin, the
rules were suspended and the report of the Committee of Conference on House
bill entitled:
   An act relating to boating while intoxicated and driving while intoxicated.
   Was taken up for immediate consideration.
   Senator Sears, for the Committee of Conference, submitted the following
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:
   H. 599. An act relating to boating while intoxicated and driving while
intoxicated.
   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. 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.
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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
                             FRIDAY, MAY 2, 2008                           1607
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
                                     ***
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   (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
                             FRIDAY, MAY 2, 2008                            1609
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:
1610                       JOURNAL OF THE SENATE
       (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:
                              FRIDAY, MAY 2, 2008                          1611
      (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.
1612                      JOURNAL OF THE SENATE
        (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
                              FRIDAY, MAY 2, 2008                          1613
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 shall be repealed effective July 1, 2009.
Sec. 13. EFFECTIVE DATE
   Secs. 8 and 9 of this act shall take effect July 1, 2010.
                                                  RICHARD W. SEARS, JR.
                                                  JOHN F. CAMPBELL
                                                  VINCENT ILLUZZI
                                              Committee on the part of the Senate
                                                  WILLIAM LIPPERT
                                                  AVIS GERVAIS
                                                  GEORGE ALLARD
                                              Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
1614                      JOURNAL OF THE SENATE
                                       H. 617.
    Appearing on the Calendar for notice, on motion of Senator Shumlin, the
rules were suspended and the report of the Committee of Conference on House
bill entitled:
   An act relating to guardianships.
   Was taken up for immediate consideration.
   Senator Nitka, for the Committee of Conference, submitted the following
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:
   H. 617. An act relating to guardianships.
   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:
                             FRIDAY, MAY 2, 2008                            1615
      (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.
1616                      JOURNAL OF THE SENATE
      (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
                              FRIDAY, MAY 2, 2008                           1617
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.
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§ 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
                             FRIDAY, MAY 2, 2008                            1619
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.
1620                      JOURNAL OF THE SENATE
   (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,
                             FRIDAY, MAY 2, 2008                          1621
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.
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§ 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:
                             FRIDAY, MAY 2, 2008                           1623
        (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
1624                      JOURNAL OF THE SENATE
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.
                                FRIDAY, MAY 2, 2008                        1625
§ 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.
1626                      JOURNAL OF THE SENATE
       (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.
                                FRIDAY, MAY 2, 2008                          1627
   (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.
1628                      JOURNAL OF THE SENATE
§ 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:
                               FRIDAY, MAY 2, 2008                            1629
     (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.
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§ 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;
                             FRIDAY, MAY 2, 2008                          1631
    (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
1632                      JOURNAL OF THE SENATE
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
                              FRIDAY, MAY 2, 2008                            1633
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.
1634                      JOURNAL OF THE SENATE
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.
                             FRIDAY, MAY 2, 2008                         1635
     (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.
                                                ALICE W. NITKA
                                                RICHARD W. SEARS, JR.
                                                ANN E. CUMMINGS
                                            Committee on the part of the Senate
                                                WILLEM JEWETT
                                                MARGARET FLORY
                                                AVIS GERVAIS
                                            Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                                     H. 635.
    Appearing on the Calendar for notice, on motion of Senator Shumlin, the
rules were suspended and the report of the Committee of Conference on House
bill entitled:
  An act relating to reports of child abuse or neglect.
  Was taken up for immediate consideration.
   Senator Racine, for the Committee of Conference, submitted the following
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:
  H. 635. An act relating to reports of child abuse or neglect.
   Respectfully reports that it has met and considered the same and
recommends that the Senate recede from its proposals of amendment and that
1636                      JOURNAL OF THE SENATE
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”
                             FRIDAY, MAY 2, 2008                            1637
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.
1638                      JOURNAL OF THE SENATE
     (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.
                             FRIDAY, MAY 2, 2008                           1639
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
1640                       JOURNAL OF THE SENATE
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:
                              FRIDAY, MAY 2, 2008                             1641
       (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
1642                       JOURNAL OF THE SENATE
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.
                              FRIDAY, MAY 2, 2008                            1643
      (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
1644                      JOURNAL OF THE SENATE
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.
                              FRIDAY, MAY 2, 2008                            1645
   (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.
1646                      JOURNAL OF THE SENATE
       (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.
                              FRIDAY, MAY 2, 2008                            1647
      (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
1648                       JOURNAL OF THE SENATE
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.
                              FRIDAY, MAY 2, 2008                            1649
       (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
1650                      JOURNAL OF THE SENATE
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
                             FRIDAY, MAY 2, 2008                           1651
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.
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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.
                             FRIDAY, MAY 2, 2008                          1653
   (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.
1654                       JOURNAL OF THE SENATE
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.
                            FRIDAY, MAY 2, 2008                          1655
      (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.
1656                      JOURNAL OF THE SENATE
   (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.
                             FRIDAY, MAY 2, 2008                             1657
   (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
1658                         JOURNAL OF THE SENATE
         (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
                              FRIDAY, MAY 2, 2008                         1659
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.
                                                  DOUGLAS A. RACINE
                                                  EDWARD S. FLANAGAN
                                                  KEVIN J. MULLIN
                                             Committee on the part of the Senate
                                                  ANN PUGH
                                                  NORMAN McALLISTER
                                                  RICHARD MAREK
                                             Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                                       H. 887.
    Appearing on the Calendar for notice, on motion of Senator Shumlin, the
rules were suspended and the report of the Committee of Conference on House
bill entitled:
   An act relating to health care reform.
   Was taken up for immediate consideration.
   Senator Racine, for the Committee of Conference, submitted the following
report:
1660                      JOURNAL OF THE SENATE
   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:
   H. 887. An act relating to health care reform.
   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:
                         * * * 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
                             FRIDAY, MAY 2, 2008                          1661
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
1662                     JOURNAL OF THE SENATE
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
                             FRIDAY, MAY 2, 2008                            1663
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.
1664                       JOURNAL OF THE SENATE
       (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.
                              FRIDAY, MAY 2, 2008                         1665
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) Notwithstanding any other provision of law, when an individual is
enrolled in Catamount Health solely under the high deductible standard
1666                      JOURNAL OF THE SENATE
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) Notwithstanding 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 the
Vermont health access plan for the 12-month period following the date of
enrollment in Catamount Health.
                            FRIDAY, MAY 2, 2008                          1667
Sec. 9. 33 V.S.A. § 1974 is amended to read:
§ 1974.    EMPLOYER-SPONSORED                     INSURANCE;        PREMIUM
ASSISTANCE
                                     ***
  (b) VHAP-eligible premium assistance.
                                     ***
      (6) Notwithstanding 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
1668                       JOURNAL OF THE SENATE
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
                             FRIDAY, MAY 2, 2008                            1669
            (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
1670                      JOURNAL OF THE SENATE
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.
                             FRIDAY, MAY 2, 2008                          1671
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.
1672                     JOURNAL OF THE SENATE
                                     ***
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
                             FRIDAY, MAY 2, 2008                            1673
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.
1674                      JOURNAL OF THE SENATE
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
                             FRIDAY, MAY 2, 2008                          1675
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.
1676                     JOURNAL OF THE SENATE
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
                             FRIDAY, MAY 2, 2008                            1677
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.
1678                      JOURNAL OF THE SENATE
            * * * 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.
                                     ***
                             FRIDAY, MAY 2, 2008                           1679
    (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;
1680                      JOURNAL OF THE SENATE
      (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
                             FRIDAY, MAY 2, 2008                           1681
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;
1682                      JOURNAL OF THE SENATE
      (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
                                FRIDAY, MAY 2, 2008                            1683
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
1684                       JOURNAL OF THE SENATE
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
                             FRIDAY, MAY 2, 2008                           1685
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
1686                       JOURNAL OF THE SENATE
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
                             FRIDAY, MAY 2, 2008                            1687
      (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
1688                      JOURNAL OF THE SENATE
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.
                                                  DOUGLAS A. RACINE
                                                  KEVIN J. MULLIN
                                                  JEANETTE K. WHITE
                                              Committee on the part of the Senate
                                                  STEVEN B. MAIER
                                                  HARRY CHEN
                                                  LUCY LERICHE
                                              Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                                     Recess
   On motion of Senator Shumlin the Senate recessed until 3:00 P.M.
                                 Called to Order
   At 3:10 P.M. the Senate was called to order by the President.
                            FRIDAY, MAY 2, 2008                          1689
                      Message from the House No. 72
    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 considered 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 members of the Vermont state retirement system.
  And has concurred therein with proposal of amendment in the adoption of
which the concurrence of the Senate is requested.
                      Message from the House No. 73
    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 considered the reports of
the Committees of Conference upon the disagreeing votes of the two Houses
on Senate bills of the following titles:
  S. 107. An act relating to mapping class four town highways and trail 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 Health Care Administration.
  S. 322. An act relating to the Vermont Dairy Promotion Council.
   S. 345.   An act relating to lowering the cost workers’ compensation
insurance.
  And has adopted the same on its part.
1690                      JOURNAL OF THE SENATE
       Rules Suspended; House Proposal of Amendment Concurred In
                                      S. 261
   Appearing on the Calendar for notice, on motion of Senator Shumlin, the
rules were suspended and House proposal of amendment to Senate bill entitled:
   An act relating to phthalates in products for young children.
   Was taken up for immediate consideration.
   The House proposes to the Senate to amend the bill as follows:
   First: In Sec. 1, subsection (b), following the words “child care article” by
inserting the words: intended for use by a child under three years of age if and
following the word “that” by inserting the word product
   Second: In Sec. 1, subsection (g), following the words “The attorney
general” by striking out the following: “may investigate and prosecute
violations of this section pursuant to the provisions of the Consumer Fraud
Act” and inserting in lieu thereof the following: has the same authority to make
rules, conduct civil investigations, enter into assurances of discontinuance, and
bring civil actions, and private parties have the same rights and remedies as
provided under subchapter 1 of chapter 63 of Title 9
   Third: In Sec. 1, by adding a new subsection (h) to read as follows:
   (h) Nothing in this section shall be construed to regulate firearms;
ammunition or components thereof; pellets from air rifles; shooting ranges or
circumstances resulting from shooting, handling, storing, casting, or reloading
ammunition; or hunting or fishing equipment or components thereof.
  Thereupon, the question, Shall the Senate concur in the House proposal of
amendment?, was decided in the affirmative.
   Rules Suspended; House Proposal of Amendment Not Concurred In;
     Committee of Conference Requested; Committee of Conference
                             Appointed
                                      S. 358.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and House proposal of amendment to Senate bill
entitled:
   An act relating to enhanced driver licenses.
   Was taken up for immediate consideration.
   The House proposes to the Senate to amend the bill by striking out all after
the enacting clause and inserting in lieu thereof the following:
                             FRIDAY, MAY 2, 2008                           1691
Sec. 1. 23 V.S.A. § 4(78)and (79) are 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.
      (79) “Personal radio frequency identification number chip” shall mean
the number assigned to the transmitting chip in an enhanced license.
Sec. 2. 23 V.S.A. § 102(d) is amended to read:
   (d) The commissioner may authorize background investigations for
potential employees that may include criminal, traffic, and financial records
checks; provided, however, that the potential employee is notified and has the
right to withdraw his or her name from application. Additionally, employees
who are authorized to manufacture or produce operators’ licenses and
identification cards, including enhanced licenses, may be subject to appropriate
security clearance if required by federal law, including background
investigations that may include criminal and traffic, records checks, and
providing proof of United States citizenship. The commissioner may, in
connection with a formal disciplinary investigation, authorize an appropriate a
criminal or traffic record background investigation of a current employee;
provided, however, that the background review is necessary and relevant to the
issue under disciplinary investigation. Information acquired through a
background the investigation that may be shall be provided to the
commissioner or designated division director, and must be maintained in a
secure manner. If the information acquired is used as a basis for any
disciplinary action, it must be given to the employee during any
pre-termination hearing or contractual grievance hearing to allow the employee
an opportunity to respond to or dispute the information. If no disciplinary
action is taken against the employee, the information acquired through the
background check shall be destroyed.
Sec. 3. 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.             Any additional personal identity
1692                      JOURNAL OF THE SENATE
information not currently required by the Department of Homeland Security
shall need the approval of either the general assembly or the legislative
committee on administration rules prior to the implementation of the
requirements.
   (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. Any
additional personal identity information not currently required by the
Department of Homeland Security shall need the approval of either the general
assembly or the legislative committee on administration rules prior to the
implementation of the requirements.
   (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 or for the prevention of fraud or abuse or other criminal conduct.
   (d) The fee for an enhanced license shall be $25.00 in addition to the fees
otherwise established by this title.
   (e) The commissioner shall report annually to the house and senate
committees on transportation by January 15 for the purpose of reporting the
associated costs, the number of enhanced licenses issued, implementation
problems, recommended revisions, and other relevant information.
Sec.4. 23 V.S.A. § 8 is added to read:
§ 8. PERSONAL RADIO FREQUENCY IDENTIFICATION CHIP
NUMBER PROTECTION
   Personal radio frequency identification chip numbers shall be given
protections as codified in 18 U.S.C. §2721 et. seq, (Drivers Privacy Protection
Act), as of January 1, 2008, not including any subsequent amendments.
                                 FRIDAY, MAY 2, 2008                         1693
Sec. 5. 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. 6. REPEAL
   The following in Title 23 are repealed:
      (1) § 7(e) ( commissioner reporting on costs of enhanced license) is
repealed on June 30, 2011;
          (2) § 618 (anatomical gifts);
          (3) § 4111(a)(10) (commercial driver license form regarding anatomical
gifts).
Sec. 7. 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. 8. 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
1694                      JOURNAL OF THE SENATE
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. 9. 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.
                              FRIDAY, MAY 2, 2008                           1695
Sec. 10. 19 V.S.A. § 10c(k) is added to read:
   (k) To the extent that federal regulations permit, signage for all state and
town bridge projects spanning more than 20 feet in length shall be erected on
both sides of the project for the duration of the project as follows:
      (1) The agency of transportation shall design the signs, and the
contractor shall purchase and install the signs as part of the contract bid price.
      (2) The signs shall indicate the cost of the project.
      (3) Signs for state bridge projects shall include the following: “This is
an agency of transportation project paid for with your tax dollars.”
      (4) Signs for town bridge projects shall include the following: “This is a
project sponsored by (name of municipality) and the agency of transportation,
and paid for with your tax dollars.”
Sec. 11. EFFECTIVE DATE
   This act shall take effect from passage except for Sec. 3 which shall not take
effect until the commissioner of motor vehicles determines that the systems
necessary to operate the program are available.
   Thereupon, pending the question, Shall the Senate concur in the House
proposal of amendment?, on motion of Senator Mazza, the Senate refused to
concur in the House proposal of amendment and requested a Committee of
Conference.
   Thereupon, pursuant to the request of the Senate, the President announced
the appointment of
                             Senator Mazza
                             Senator Scott
                             Senator Shumlin
as members of the Committee of Conference on the part of the Senate to
consider the disagreeing votes of the two Houses.
  Rules Suspended; Proposals of Amendment; Third Reading Ordered;
     Rules Suspended; Bill Passed in Concurrence with Proposal of
                             Amendment
                                      H. 776.
   Appearing on the Calendar for notice, on motion of Senator Shumlin, the
rules were suspended and House bill entitled:
  An act relating to computation of the basic needs budget and the livable
wage.
1696                       JOURNAL OF THE SENATE
   Was taken up for immediate consideration.
  Senator Miller, for the Committee on Economic Development, Housing and
General Affairs, to which the bill was referred, reported recommending that the
Senate propose 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.
                             FRIDAY, MAY 2, 2008                            1697
  And that the bill ought to pass in concurrence with such proposals of
amendment.
   Senator Bartlett, for the Committee on Appropriations, to which the bill was
referred, reported recommending that the bill ought to pass in concurrence with
proposal of amendment as recommended by the Committee on Economic
Development, Housing and General Affairs.
   Thereupon, the bill was read the second time by title only pursuant to
Rule 43, the proposals of amendment were collectively agreed to, and third
reading of the bill was ordered.
   Thereupon, on motion of Senator Shumlin, the rules were suspended and
the bill was placed on all remaining stages of its passage in concurrence with
proposals of amendment forthwith.
   Thereupon the bill was read the third time and passed in concurrence with
proposals of amendment.
  Rules Suspended; Reports of Committees of Conference Accepted and
                   Adopted on the Part of the Senate
                                      H. 203.
    Appearing on the Calendar for notice, on motion of Senator Shumlin, the
rules were suspended and the report of the Committee of Conference on House
bill entitled:
   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.
   Was taken up for immediate consideration.
   Senator Campbell, for the Committee of Conference, submitted the
following 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:
   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.
   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:
1698                       JOURNAL OF THE SENATE
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.
                              FRIDAY, MAY 2, 2008                           1699
§ 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
personalty 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.
1700                       JOURNAL OF THE SENATE
   (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.
                              FRIDAY, MAY 2, 2008                            1701
   (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
1702                       JOURNAL OF THE SENATE
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
                             FRIDAY, MAY 2, 2008                            1703
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.
1704                       JOURNAL OF THE SENATE
   (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
                             FRIDAY, MAY 2, 2008                           1705
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.
1706                       JOURNAL OF THE SENATE
§ 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 after passage, the title of the bill is to be amended to read:
  AN ACT RELATING TO DISPOSITION OF PROPERTY UPON
DEATH, TRANSFER OF INTEREST IN VEHICLE UPON DEATH, AND
HOMESTEAD EXEMPTION.
                                                  JOHN F. CAMPBELL
                                                  VINCENT ILLUZZI
                                                  ROBERT M. HARTWELL
                                             Committee on the part of the Senate
                                                  MARGARET FLORY
                                                  WILLEM JEWETT
                                                  MAXINE JO GRAD
                                             Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                                       H. 885.
    Appearing on the Calendar for notice, on motion of Senator Shumlin, the
rules were suspended and the report of the Committee of Conference on House
bill entitled:
   An act relating to developing consistent measurement standards for
economic growth.
                            FRIDAY, MAY 2, 2008                        1707
  Was taken up for immediate consideration.
   Senator Miller, for the Committee of Conference, submitted the following
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:
   H. 885. An act relating to developing consistent measurement standards for
economic growth.
   Respectfully reports that it has met and considered the same and
recommends that that the House accede to the Senate proposal of amendment
with further amendment by striking out 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.
1708                      JOURNAL OF THE SENATE
   (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.
                             FRIDAY, MAY 2, 2008                            1709
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
1710                      JOURNAL OF THE SENATE
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
                             FRIDAY, MAY 2, 2008                         1711
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
program. If 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:
1712                      JOURNAL OF THE SENATE
      (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
                              FRIDAY, MAY 2, 2008                            1713
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
1714                      JOURNAL OF THE SENATE
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.
                             FRIDAY, MAY 2, 2008                          1715
    (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 after passage, the title of the bill is to be amended to read:
 AN ACT RELATING TO ECONOMIC                          DEVELOPMENT AND
WORKFORCE DEVELOPMENT.
                                                 HINDA MILLER
                                                 VINCENT ILLUZZI
                                                 JAMES C. CONDOS
                                             Committee on the part of the Senate
                                                 SHAP SMITH
                                                 BILL BOTZOW
                                                 MICHELE F. KUPERSMITH
                                             Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                                      S. 301.
    Appearing on the Calendar for notice, on motion of Senator Shumlin, the
rules were suspended and the report of the Committee of Conference on Senate
bill entitled:
   An act relating to enhancing the penalties for assaulting a law enforcement
officer and to the crime of assault with bodily fluids.
  Was taken up for immediate consideration.
   Senator Mullin, for the Committee of Conference, submitted the following
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:
1716                       JOURNAL OF THE SENATE
   S. 301. An act relating to enhancing the penalties for assaulting a law
enforcement officer and to the crime of assault with bodily fluids.
   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. 13 V.S.A. § 1028 is amended to read:
§ 1028. ASSAULT OF LAW ENFORCEMENT OFFICER, FIREFIGHTER,
EMERGENCY ROOM PERSONNEL, OR EMERGENCY MEDICAL
PERSONNEL MEMBER; ASSAULT WITH BODILY FLUIDS
   (a) A person convicted of a simple or aggravated assault against a law
enforcement officer, firefighter, emergency room personnel, or member of
emergency services personnel as defined in subdivision 2651(6) of Title 24
while the officer, firefighter, or emergency medical personnel member is
performing a lawful duty, in addition to any other penalties imposed under
sections 1023 and 1024 of this title, shall:
       (1) For the first offense, be imprisoned not more than one year;
     (2) For the second offense and subsequent offenses, be imprisoned not
more than ten years.
   (b)(1) No person shall intentionally cause blood, vomitus, excrement,
mucus, saliva, semen, or urine to come in contact with a law enforcement
officer while the officer is performing a lawful duty.
      (2) A person who violates this subsection shall be imprisoned not more
than one year or fined not more than $1,000.00, or both.
   And after passage, the title of the bill is to be amended to read:
  AN ACT RELATING TO ASSAULT OF EMERGENCY ROOM
PERSONNEL AND TO ASSAULTING A LAW ENFORCEMENT
OFFICER WITH BODILY FLUIDS.
                                                  KEVIN J. MULLIN
                                                  JOHN F. CAMPBELL
                                                  ALICE W. NITKA
                                             Committee on the part of the Senate
                                                  AVIS GERVAIS
                                                  ANDREW DONAGHY
                                                  KATHY PELLETT
                                             Committee on the part of the House
                             FRIDAY, MAY 2, 2008                            1717
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                                      S. 311.
    Appearing on the Calendar for notice, on motion of Senator Shumlin, the
rules were suspended and the report of the Committee of Conference on Senate
bill entitled:
   An act relating to the use value appraisal program.
   Was taken up for immediate consideration.
   Senator Ayer, for the Committee of Conference, submitted the following
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:
   S. 311. An act relating to the use value appraisal program.
   Respectfully reports that it has met and considered the same and
recommends that the Senate accede to the House proposal of amendment with
further amendment to read as follows:
   First: In Sec. 11, ELECTRONIC COORDINATION PROJECT AND
REPORT, in the third sentence, after the words “parts of the project” by
inserting the following: to implement electronic coordination by July, 1, 2010
and by striking out the last sentence and inserting in lieu thereof the following:
   The report shall document consistent, useful, and verifiable information on
what the project will consist of and the costs involved. The report shall
determine what additional funds are needed to accomplish the appropriate
levels of program coordination by July 1, 2010. The report shall analyze
different funding options, including a one-time or time-limited administrative
fee based on a per-parcel, per-acre, or other basis and make a recommendation
on how to fund the proposed budget for coordination. The report shall also
analyze the historical use of the free opt-out when the program is changed by
the legislature.
   Second:      In Sec. 12, OUTREACH EDUCATION ABOUT THE
PROGRAM, in subdivision (a)(2)(A) at the end, before the semicolon, by
inserting the following: , including whether the definitions should enable the
enrollment of the farm buildings of animal and crop operations that do not
qualify for the program under the existing definitions in subdivision (a)(2)(B),
after “use” by inserting the words or restrictions on the use and at the end,
1718                      JOURNAL OF THE SENATE
before the semicolon, by inserting the following: , including hunting, fishing,
other recreational activities and posting
                                                 CLAIRE D. AYER
                                                 HULL P. MAYNARD, JR.
                                                 MARK A. MacDONALD
                                            Committee on the part of the Senate
                                                 DAVID DEEN
                                                 ALISON CLARKSON
                                                 PHILIP WINTERS
                                            Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                                      H. 691.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and the report of the Committee of Conference on
House bill entitled:
   An act relating to executive and judicial branch fees.
   Was taken up for immediate consideration.
   Senator Ayer, for the Committee of Conference, submitted the following
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:
   H. 691. An act relating to executive and judicial branch fees.
   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:
                    * * * 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:
                                FRIDAY, MAY 2, 2008                          1719
         (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
1720                       JOURNAL OF THE SENATE
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;
                             FRIDAY, MAY 2, 2008                           1721
            (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
1722                      JOURNAL OF THE SENATE
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 lift. An 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.
                             FRIDAY, MAY 2, 2008                           1723
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.
1724                      JOURNAL OF THE SENATE
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
                             FRIDAY, MAY 2, 2008                          1725
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.
1726                      JOURNAL OF THE SENATE
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
                              FRIDAY, MAY 2, 2008                             1727
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
1728                       JOURNAL OF THE SENATE
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
                              FRIDAY, MAY 2, 2008                            1729
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
1730                      JOURNAL OF THE SENATE
       (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,
                                FRIDAY, MAY 2, 2008                         1731
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.
1732                       JOURNAL OF THE SENATE
   (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.
                             FRIDAY, MAY 2, 2008                           1733
              * * * 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.
1734                        JOURNAL OF THE SENATE
   (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
                              FRIDAY, MAY 2, 2008                           1735
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
1736                      JOURNAL OF THE SENATE
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
                             FRIDAY, MAY 2, 2008                           1737
[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
DATABASEINFORMATION; 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
1738                         JOURNAL OF THE SENATE
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).
                              FRIDAY, MAY 2, 2008                           1739
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.
1740                       JOURNAL OF THE SENATE
   (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.
                                                  CLAIRE D. AYER
                                                  MARK A. MacDONALD
                                                  HULL P. MAYNARD, JR.
                                             Committee on the part of the Senate
                                                  CAROLYN BRANAGAN
                                                  MICHAEL OBUCHOWSKI
                                                  WILLIAM N. ASWAD
                                             Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                             FRIDAY, MAY 2, 2008                            1741
                      Rules Suspended; Bills Delivered
    On motion of Senator Shumlin, the rules were suspended, and the following
bills were ordered messaged to the House forthwith:
   S. 261, S. 301, S. 311.
                      Rules Suspended; Bills Messaged
    On motion of Senator Shumlin, the rules were suspended, and the following
bills were ordered messaged to the House forthwith:
   S. 358, H. 203, H. 599, H. 617, H. 635, H. 691, H. 776, H. 885, H. 887
                                     Recess
   On motion of Senator Shumlin the Senate recessed until 5:30 P.M.
                                 Called to Order
   At 5:55 P.M. the Senate was called to order by the President.
  Rules Suspended; Reports of Committees of Conference Accepted and
                   Adopted on the Part of the Senate
                                      H. 615.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and the report of the Committee of Conference on
House bill entitled:
   An act relating to juvenile judicial proceedings.
   Was taken up for immediate consideration.
   Senator Nitka, for the Committee of Conference, submitted the following
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:
   H. 615. An act relating to juvenile judicial proceedings.
   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:
1742                     JOURNAL OF THE SENATE
Sec. 1. 33 V.S.A. chapter 51 is added to read:
                  CHAPTER 51. GENERAL PROVISIONS
§ 5101. PURPOSES
   (a) The juvenile judicial proceedings chapters shall be construed in
accordance with the following purposes:
      (1) To provide for the care, protection, education, and healthy mental,
physical, and social development of children coming within the provisions of
the juvenile judicial proceedings chapters.
      (2) To remove from children committing delinquent acts the taint of
criminality and the consequences of criminal behavior and to provide
supervision, care, and rehabilitation which assure:
         (A) balanced attention to the protection of the community;
         (B) accountability to victims and the community for offenses; and
         (C) the development of competencies to enable children to become
responsible and productive members of the community.
      (3) To preserve the family and to separate a child from his or her parents
only when necessary to protect the child from serious harm or in the interests
of public safety.
      (4) To assure that safety and timely permanency for children are the
paramount concerns in the administration and conduct of proceedings under
the juvenile judicial proceedings chapters.
       (5) To achieve the foregoing purposes, whenever possible, in a family
environment, recognizing the importance of positive parent-child relationships
to the well-being and development of children.
       (6) To provide judicial proceedings through which the provisions of the
juvenile judicial proceedings chapters are executed and enforced and in which
the parties are assured a fair hearing, and that their constitutional and other
legal rights are recognized and enforced.
   (b) The provisions of the juvenile judicial proceedings chapters shall be
construed as superseding the provisions of the criminal law of this state to the
extent the same are inconsistent with this chapter.
§ 5102. DEFINITIONS AND PROVISIONS OF GENERAL APPLICATION
   As used in the juvenile judicial proceedings chapters, unless the context
otherwise requires:
                              FRIDAY, MAY 2, 2008                            1743
      (1) “Care provider” means a person other than a parent, guardian, or
custodian who is providing the child with routine daily care but to whom
custody rights have not been transferred by a court.
      (2) “Child” means any of the following:
         (A) An individual who is under the age of 18 and is a child in need of
care or supervision as defined in subdivision (3)(A), (B), or (D) of this section
(abandoned, abused, without proper parental care, or truant).
         (B)(i) An individual who is under the age of 18, is a child in need of
care or supervision as defined in subdivision (3)(C) of this section (beyond
parental control), and was under the age of 16 at the time the petition was filed;
or
            (ii) an individual who is between the ages of 16 to 17.5, is a child
in need of care or supervision as defined in subdivision (3)(C) of this section
(beyond parental control), and who is at high risk of serious harm to himself or
herself or others due to problems such as substance abuse, prostitution, or
homelessness.
        (C) An individual who has been alleged to have committed or has
committed an act of delinquency after becoming ten years of age and prior to
becoming 18 years of age; provided, however:
             (i) that an individual who is alleged to have committed an act
specified in subsection 5204(a) of this title after attaining the age of 10 but not
the age of 14 may be treated as an adult as provided therein;
             (ii) that an individual who is alleged to have committed an act
specified in subsection 5204(a) of this title after attaining the age of 14 but not
the age of 16 shall be subject to criminal proceedings as in cases commenced
against adults, unless transferred to the court in accordance with the juvenile
judicial proceedings chapters;
            (iii) that an individual who is alleged to have committed an act
before attaining the age of 10 which would be murder as defined in section
2301 of Title 13 if committed by an adult may be subject to delinquency
proceedings; and
            (iv) that an individual may be considered a child for the period of
time the court retains jurisdiction under section 5104 of this title.
      (3) “Child in need of care or supervision (CHINS)” means a child who:
         (A) has been abandoned or abused by the child’s parent, guardian, or
custodian. A person is considered to have abandoned a child if the person is:
unwilling to have physical custody of the child; unable, unwilling, or has failed
1744                      JOURNAL OF THE SENATE
to make appropriate arrangements for the child’s care; unable to have physical
custody of the child and has not arranged or cannot arrange for the safe and
appropriate care of the child; or has left the child with a care provider and the
care provider is unwilling or unable to provide care or support for the child, the
whereabouts of the person are unknown, and reasonable efforts to locate the
person have been unsuccessful.
         (B) is without proper parental care or subsistence, education,
medical, or other care necessary for his or her well-being;
         (C) is without or beyond the control of his or her parent, guardian, or
custodian; or
         (D) is habitually and without justification truant from compulsory
school attendance.
      (4) “Commissioner” means the commissioner of the department for
children and families or the commissioner’s designee.
       (5) “Conditional custody order” means an order issued by the court in a
juvenile proceeding conferring legal custody of a child to a parent, guardian,
relative, or a person with a significant relationship with the child subject to
such conditions and limitations as the court may deem necessary to provide for
the safety and welfare of the child. Any conditions and limitations shall apply
only to the individual to whom custody is granted.
       (6) “Court” means the Vermont family court.
      (7) “Custodial parent” means a parent who, at the time of the
commencement of the juvenile proceeding, has the right and responsibility to
provide the routine daily care and control of the child. The rights of the
custodial parent may be held solely or shared and may be subject to the court-
ordered right of the other parent to have contact with the child.
      (8) “Custodian” means a person other than a parent or legal guardian to
whom legal custody of the child has been given by order of a Vermont family
or probate court or a similar court in another jurisdiction.
       (9) “Delinquent act” means an act designated a crime under the laws of
this state, or of another state if the act occurred in another state, or under
federal law. A delinquent act shall include 7 V.S.A. §§ 656 and 657; however,
it shall not include:
        (A) Snowmobile offenses in subchapter 1 and motorboat offenses in
subchapter 2 of chapter 29 of Title 23, except for violations of sections 3207a,
3207b, 3207c, 3207d, and 3323.
                             FRIDAY, MAY 2, 2008                           1745
         (B) Motor vehicle offenses committed by an individual who is at
least 16 years of age, except for violations of subchapter 13 of chapter 13 and
of section 1091 of Title 23.
    (10) “Delinquent child” means a child who has been adjudicated to have
committed a delinquent act.
      (11) “Department” means the department for children and families.
      (12) “Guardian” means a person who, at the time of the commencement
of the juvenile judicial proceeding, has legally established rights to a child
pursuant to an order of a Vermont probate court or a similar court in another
jurisdiction.
      (13) “Judge” means a judge of the family court.
      (14) “Juvenile judicial proceedings chapters” means this chapter and
chapters 52 and 53 of this title.
      (15) “Juvenile proceeding” means a proceeding in the family court
under the authority of the juvenile judicial proceedings chapters.
       (16)(A) “Legal custody” means the legal status created by order of the
court under the authority of the juvenile judicial proceedings chapters which
invests in a party to a juvenile proceeding or another person the following
rights and responsibilities:
           (i) The right to routine daily care and control of the child and to
determine where and with whom the child shall live.
             (ii) The authority to consent to major medical, psychiatric, and
surgical treatment for a child.
            (iii) The responsibility to protect and supervise a child and to
provide the child with food, shelter, education, and ordinary medical care.
             (iv) The authority to make decisions which concern the child and
are of substantial legal significance, including the authority to consent to
marriage and enlistment in the armed forces of the United States, and the
authority to represent the child in legal actions.
         (B) If legal custody is transferred to a person other than a parent, the
rights, duties, and responsibilities so transferred are subject to the residual
parental rights of the parents.
      (17) “Listed crime” means the same as defined in 13 V.S.A. § 5301.
       (18) “Noncustodial parent” means a parent who is not a custodial parent
at the time of the commencement of the juvenile proceeding.
1746                      JOURNAL OF THE SENATE
       (19) “Officer” means a law enforcement officer, including a state police
officer, sheriff, deputy sheriff, municipal police officer, or constable who has
been certified by the criminal justice training council pursuant to section 2358
of Title 20.
      (20) “Parent” means a child’s biological or adoptive parent, including
custodial parents, noncustodial parents, parents with legal or physical
responsibilities or both and parents whose rights have never been adjudicated.
      (21) “Parent-child contact” means the right of a parent to have visitation
with the child by court order.
       (22) “Party” includes the following persons:
         (A) The child with respect to whom the proceedings are brought.
          (B) The custodial parent, the guardian, or the custodian of the child in
all instances except a hearing on the merits of a delinquency petition.
        (C) The noncustodial parent for the purposes of custody, visitation,
and such other issues which the court may determine are proper and necessary
to the proceedings, provided that the noncustodial parent has entered an
appearance.
         (D) The state’s attorney.
         (E) The commissioner.
        (F) Such other persons as appear to the court to be proper and
necessary to the proceedings.
      (23) “Probation” means the legal status created by order of the family
court in proceedings involving a violation of law whereby a delinquent child is
subject to supervision by the department under conditions specified in the
court’s juvenile probation certificate and subject to return to and change of
legal status by the family court for violation of conditions of probation at any
time during the period of probation.
       (24) “Protective supervision” means the authority granted by the court
to the department in a juvenile proceeding to take reasonable steps to monitor
compliance with the court’s conditional custody order, including unannounced
visits to the home in which the child currently resides.
      (25) “Reasonable efforts” means the exercise of due diligence by the
department to use appropriate and available services to prevent unnecessary
removal of the child from the home or to finalize a permanency plan. When
making the reasonable efforts determination, the court may find that no
services were appropriate or reasonable considering the circumstances. If the
court makes written findings that aggravated circumstances are present, the
                             FRIDAY, MAY 2, 2008                            1747
court may make, but shall not be required to make, written findings as to
whether reasonable efforts were made to prevent removal of the child from the
home. Aggravated circumstances may exist if:
         (A) a court of competent jurisdiction has determined that the parent
has subjected a child to abandonment, torture, chronic abuse, or sexual abuse;
         (B) a court of competent jurisdiction has determined that the parent
has been convicted of murder or manslaughter of a child;
          (C) a court of competent jurisdiction has determined that the parent
has been convicted of a felony crime that results in serious bodily injury to the
child or another child of the parent; or
        (D) the parental rights of the parent with respect to a sibling have
been involuntarily terminated.
      (26) “Residual parental rights and responsibilities” means those rights
and responsibilities remaining with the parent after the transfer of legal custody
of the child, including the right to reasonable contact with the child, the
responsibility for support, and the right to consent to adoption.
      (27) “Shelter” means a shelter designated by the commissioner where a
child taken into custody pursuant to subdivision 5301(3) of this title may be
held for a period not to exceed seven days.
     (28) “Youth” shall mean a person who is the subject of a motion for
youthful offender status or who has been granted youthful offender status.
§ 5103. JURISDICTION
   (a) The family court shall have exclusive jurisdiction over all proceedings
concerning a child who is or who is alleged to be a delinquent child or a child
in need of care or supervision brought under the authority of the juvenile
judicial proceedings chapters, except as otherwise provided in such chapters.
    (b) Orders issued under the authority of the juvenile judicial proceedings
chapters shall take precedence over orders in other family court proceedings
and any order of another court of this state, to the extent they are inconsistent.
This section shall not apply to child support orders in a divorce, parentage, or
relief from abuse proceedings until a child support order has been issued in the
juvenile proceeding.
   (c) Except as otherwise provided by this title, jurisdiction over a child shall
not be extended beyond the child’s 18th birthday.
   (d) The court may terminate its jurisdiction over a child prior to the child’s
18th birthday by order of the court. If the child is not subject to another
1748                       JOURNAL OF THE SENATE
juvenile proceeding, jurisdiction shall terminate automatically in the following
circumstances:
       (1) Upon the discharge of a child from juvenile probation, providing the
child is not in the legal custody of the commissioner.
     (2) Upon an order of the court transferring legal custody to a parent,
guardian, or custodian without conditions or protective supervision.
       (3) Upon the adoption of a child following a termination of parental
rights proceeding.
§ 5104.   RETENTION OF JURISDICTION OVER YOUTHFUL
OFFENDERS
   (a) The family court may retain jurisdiction over a youthful offender up to
the age of 22.
   (b) In relation to the retention of jurisdiction provision of subsection (a) of
this section, any party may request, or the court on its own motion may
schedule, a hearing to determine the propriety of extending the jurisdictional
time period. This hearing shall be held within the three-month time period
immediately preceding the child’s 18th birthday, and the order of continued
jurisdiction shall be executed by the court on or before that birthday. In
determining the need for continued jurisdiction, the court shall consider the
following factors:
       (1) the extent and nature of the child’s record of delinquency;
      (2) the nature of past and current treatment efforts and the nature of the
child’s response to them;
     (3) the prospects for reasonable rehabilitation of the child by use of
procedures, services, and facilities currently available to the court; and
      (4) whether the safety of the community will best be served by a
continuation of jurisdiction.
   (c) A hearing under subsection (b) of this section shall be held in
accordance with the procedures provided in section 5113 of this title.
§ 5105. VENUE AND CHANGE OF VENUE
  (a) Proceedings under the juvenile judicial proceedings chapters may be
commenced in the county where:
       (1) the child is domiciled;
       (2) the acts constituting the alleged delinquency occurred; or
                             FRIDAY, MAY 2, 2008                           1749
       (3) the child is present when the proceedings commenced, if it is alleged
that a child is in need of care or supervision.
    (b) If a child or a parent, guardian, or custodian changes domicile during
the course of a proceeding under the juvenile judicial proceedings chapters or
if the petition is not brought in the county in which the child is domiciled, the
court may change venue upon the motion of a party or its own motion, taking
into consideration the domicile of the child and the convenience of the parties
and witnesses.
§ 5106. POWERS AND DUTIES OF COMMISSIONER
   Subject to the limitations of the juvenile judicial proceedings chapters or
those imposed by the court, and in addition to any other powers granted to the
commissioner under the laws of this state, the commissioner has the following
authority with respect to a child who is or may be the subject of a petition
brought under the juvenile judicial proceedings chapters:
      (1) To undertake assessments and make reports and recommendations to
the court as authorized by the juvenile judicial proceedings chapters.
     (2) To investigate complaints and allegations that a child is in need of
care or supervision for the purpose of considering the commencement of
proceedings under the juvenile judicial proceedings chapters.
      (3) To supervise and assist a child who is placed under the
commissioner’s supervision or in the commissioner’s legal custody by order of
the court.
       (4) To place a child who is in the commissioner’s legal custody in a
family home or a treatment, rehabilitative, detention, or educational facility or
institution subject to the provisions of sections 5292 and 5293 of this title. To
the extent that it is appropriate and possible siblings in the commissioner’s
custody shall be placed together.
      (5) To make appropriate referrals to private or public agencies.
      (6) To perform such other functions as are designated by the juvenile
judicial proceedings chapters.
§ 5107. CONTEMPT POWER
   Subject to the laws relating to the procedures therefor and the limitations
thereon, the court has the power to punish any person for contempt of court for
disobeying an order of the court or for obstructing or interfering with the
proceedings of the court or the enforcement of its orders.
1750                      JOURNAL OF THE SENATE
§ 5108. AUTHORITY TO ISSUE WARRANTS
   (a) The court may order a parent, guardian, or custodian to appear at any
hearing or to appear at the hearing with the child who is the subject of a
petition.
    (b) If, after being summoned, cited, or otherwise notified to appear, a party
fails to do so, the court may issue a warrant for the person’s appearance.
   (c) If the child is with the parent, guardian, or custodian, the court may
issue a warrant for the person to appear in court with the child or, in the
alternative, the court may issue an order for an officer to pick up the child and
bring the child to court.
   (d) If a summons cannot be served or the welfare of the child requires that
the child be brought forthwith to the court, the court may issue a warrant for
the parent, guardian, or custodian to appear in court with the child. In the
alternative, the court may issue an order for an officer to pick up the child and
bring the child to court during court hours.
   (e) A person summoned who fails to appear without reasonable cause may
be found in contempt of court.
§ 5109. SUBPOENA
   Upon application of a party or on the court’s own motion, the clerk of the
court shall issue subpoenas requiring attendance and testimony of witnesses
and production of papers at any hearing under the juvenile judicial proceedings
chapters.
§ 5110. CONDUCT OF HEARINGS
   (a) Hearings under the juvenile judicial proceedings chapters shall be
conducted by the court without a jury and shall be confidential.
   (b) The general public shall be excluded from hearings under the juvenile
judicial proceedings chapters, and only the parties, their counsel, witnesses,
persons accompanying a party for his or her assistance, and such other persons
as the court finds to have a proper interest in the case or in the work of the
court, including a foster parent or a representative of a residential program
where the child resides, may be admitted by the court. This subsection shall
not prohibit a victim’s exercise of his or her rights under sections 5333 and
5234 of this title, and as otherwise provided by law.
   (c) There shall be no publicity given by any person to any proceedings
under the authority of the juvenile judicial proceedings chapters except with
the consent of the child, the child’s guardian ad litem, and the child’s parent,
guardian, or custodian. A person who violates this provision may be subject to
                             FRIDAY, MAY 2, 2008                           1751
contempt proceedings pursuant to Rule 16 of the Vermont Rules for Family
Proceedings.
§ 5111. NONCUSTODIAL PARENTS
    (a) If a child is placed in the legal custody of the department and the
identity of a parent has not been legally established at the time the petition is
filed, the court may order that the mother, the child, and the alleged father
submit to genetic testing and may issue an order establishing parentage
pursuant to subchapter 3A of Title 15. A parentage order issued pursuant to
this subsection shall not be deemed to be a confidential record.
   (b) If a child is placed in the legal custody of the department, the
department shall make reasonably diligent efforts to locate a noncustodial
parent as early in the proceedings as possible, and notify the court of the
noncustodial parent’s address. A hearing shall not be delayed by reason of the
inability of the department to locate or serve a noncustodial parent.
   (c) The court may order a custodial parent to provide the department with
information regarding the identity and location of a noncustodial parent.
   (d) As soon as his or her address is known, a noncustodial parent shall be
served with the petition and a copy of the summons. Thereafter, the court shall
mail notices of the hearing to the noncustodial parent. The noncustodial parent
shall be responsible for providing the court with information regarding any
changes in address.
§ 5112. ATTORNEY AND GUARDIAN AD LITEM FOR CHILD
   (a) The court shall appoint an attorney for a child who is a party to a
proceeding brought under the juvenile judicial proceedings chapters.
   (b) The court shall appoint a guardian ad litem for a child who is a party to
a proceeding brought under the juvenile judicial proceedings chapters. In a
delinquency proceeding, a parent, guardian, or custodian of the child may
serve as a guardian ad litem for the child, providing his or her interests do not
conflict with the interests of the child. The guardian ad litem appointed under
this section shall not be a party to that proceeding or an employee or
representative of such party.
§ 5113. MODIFICATION OR VACATION OF ORDERS
   (a) An order of the court may be set aside in accordance with Rule 60 of
the Vermont Rules of Civil Procedure.
   (b) Upon motion of a party or the court’s own motion, the court may
amend, modify, set aside, or vacate an order on the grounds that a change in
circumstances requires such action to serve the best interests of the child. The
1752                      JOURNAL OF THE SENATE
motion shall set forth in concise language the grounds upon which the relief is
requested.
   (c) Any order under this section shall be made after notice and hearing;
however, the court may waive the hearing upon stipulation of the parties. All
evidence helpful in determining the questions presented, including hearsay,
may be admitted and relied upon to the extent of its probative value, even
though not competent in a hearing on the petition.
§ 5114. BEST INTERESTS OF THE CHILD
   (a) At the time of a permanency review under section 5321 of this title, a
modification hearing under section 5113 of this title, or at any time a petition
or request to terminate all residual parental rights of a parent without limitation
as to adoption is filed by the commissioner or the attorney for the child, the
court shall consider the best interests of the child in accordance with the
following:
      (1) The interaction and interrelationship of the child with his or her
parents, siblings, foster parents, if any, and any other person who may
significantly affect the child’s best interests.
       (2) The child’s adjustment to his or her home, school, and community.
      (3) The likelihood that the parent will be able to resume or assume
parental duties within a reasonable period of time.
      (4) Whether the parent has played and continues to play a constructive
role, including personal contact and demonstrated emotional support and
affection, in the child’s welfare.
   (b) Except in cases where a petition or request to terminate all residual
parental rights of a parent without limitation as to adoption is filed by the
commissioner or the attorney for the child, the court shall also consider
whether the parent is capable of playing a constructive role, including
demonstrating emotional support and affection, in the child’s welfare.
§ 5115. PROTECTIVE ORDER
   (a) On motion of a party or on the court’s own motion, the court may make
an order restraining or otherwise controlling the conduct of a person if the
court finds that such conduct is or may be detrimental or harmful to a child.
   (b) The person against whom the order is directed shall be served with
notice of the motion and the grounds therefor and be given an opportunity to
be heard.
                             FRIDAY, MAY 2, 2008                          1753
   (c) Upon a showing that there is a risk of immediate harm to a child, the
court may issue a protective order ex parte. A hearing on the motion shall be
held no more than 10 days after the issuance of the order.
   (d) The court may review any protective order at a subsequent hearing to
determine whether the order should remain in effect.
   (e) A person who is the subject of an order issued pursuant to this section
and who intentionally violates a provision of the order that concerns contact
between the child and that person shall be punished in accordance with
13 V.S.A. § 1030.
§ 5116. COSTS AND EXPENSES FOR CARE OF CHILD
   (a) The commissioner may incur such expenses for the proper care,
maintenance, and education of a child, including without limitation, the
expenses of medical, surgical, or psychiatric examination or treatment, as the
commissioner considers necessary in connection with proceedings under the
juvenile judicial proceedings chapters.
   (b) The costs of any proceeding under the juvenile judicial proceedings
chapters incurred under the provisions of Title 33 shall be borne by the court.
   (c) The court may, in any order of disposition under the juvenile judicial
proceedings chapters, make and enforce by levy and execution an order of
child support to be paid by the parent of the child.
   (d) The court may delegate to the office of magistrate its authority to make
and enforce an order of child support to be paid by the parent of a child.
   (e) A child support order shall only remain in effect as long as the child
who is the subject of the support order is in the legal custody of the
commissioner and placed with someone other than the parent or parents
responsible for support.
   (f) Except as otherwise provided in section 5119 of this title, orders issued
pursuant to this section shall not be confidential.
   (g) Notwithstanding subsection 5103(b) of this title, an order terminating a
parent’s residual parental rights ends that parent’s obligation to pay child
support. However, in no event shall an order terminating residual parental
rights terminate an obligation for child support arrearages accrued by the
parent prior to the date of the termination of parental rights order.
§ 5117. RECORDS OF JUVENILE JUDICIAL PROCEEDINGS
    (a) Except as otherwise provided, court and law enforcement reports and
files concerning a person subject to the jurisdiction of the court shall be
1754                      JOURNAL OF THE SENATE
maintained separate from the records and files of other persons. Unless a
charge of delinquency is transferred for criminal prosecution under chapter 52
of this title or the court otherwise orders in the interests of the child, such
records and files shall not be open to public inspection nor their contents
disclosed to the public by any person. However, upon a finding that a child is
a delinquent child by reason of commission of a delinquent act which would
have been a felony if committed by an adult, the court, upon request of the
victim, shall make the child’s name available to the victim of the delinquent
act. If the victim is incompetent or deceased, the child’s name shall be
released, upon request, to the victim’s guardian or next of kin.
   (b)(1) Notwithstanding the foregoing, inspection of such records and files
by the following is not prohibited:
        (A)    A court having the child before it in any juvenile judicial
proceeding.
        (B) The officers of public institutions or agencies to whom the child
is committed as a delinquent child.
          (C) A court in which a person is convicted of a criminal offense for
the purpose of imposing sentence upon or supervising the person, or by
officials of penal institutions and other penal facilities to which the person is
committed, or by a parole board in considering the person’s parole or discharge
or in exercising supervision over the person.
         (D) Court personnel, the state’s attorney or other prosecutor
authorized to prosecute criminal or juvenile cases under state law, the child’s
guardian ad litem, the attorneys for the parties, probation officers, and law
enforcement officers who are actively participating in criminal or juvenile
proceedings involving the child.
          (E) The child who is the subject of the proceeding, the child’s
parents, guardian, custodian, and guardian ad litem may inspect such records
and files upon approval of the family court judge.
          (F) Any other person who has a need to know may be designated by
order of the family court.
    (2) Files inspected under this subsection shall be marked: UNLAWFUL
DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE
BY A FINE UP TO $2,000.00.
   (c) Upon motion of a party in a divorce or parentage proceeding related to
parental rights and responsibilities for a child or parent-child contact, the court
may order that court records in a juvenile proceeding involving the same child
or children be released to the parties in the divorce proceeding. Files inspected
                             FRIDAY, MAY 2, 2008                            1755
under this subsection shall be marked: UNLAWFUL DISSEMINATION OF
THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE OF UP TO
$2,000.00. The public shall not have access to records from a juvenile
proceeding that are filed with the court or admitted into evidence in the divorce
or parentage proceeding.
   (d) Such records and files shall be available to state’s attorneys and all
other law enforcement officers in connection with record checks and other
legal purposes.
   (e) Any records or reports relating to a matter within the jurisdiction of the
court prepared by or released by the court or the department for children and
families, any portion of those records or reports, and information relating to the
contents of those records or reports shall not be disseminated by the receiving
persons or agencies to any persons or agencies, other than those persons or
agencies authorized to receive documents pursuant to this section.
   (f) This section does not provide access to records sealed in accordance
with section 5119 of this title unless otherwise provided in section 5119.
§ 5118. LIMITED EXCEPTION TO CONFIDENTIALITY OF RECORDS
OF JUVENILES MAINTAINED BY THE FAMILY COURT
   (a) For the purposes of this section:
      (1) “Delinquent act requiring notice” means conduct resulting in a
delinquency adjudication related to a listed crime as defined in 13 V.S.A.
§ 5301(7).
     (2) “Independent school” means an approved or recognized independent
school under 16 V.S.A. § 166.
   (b) While records of juveniles maintained by the family court should be
kept confidential, it is the policy of the general assembly to establish a limited
exception for the overriding public purposes of rehabilitating juveniles and
protecting students and staff within Vermont’s public and independent schools.
   (c) Notwithstanding any law to the contrary, a court finding that a child has
committed a delinquent act requiring notice shall, within seven days of such
finding, provide written notice to the superintendent of schools for the public
school in which the child is enrolled or, in the event the child is enrolled in an
independent school, the school’s headmaster.
   (d) The written notice shall contain only a description of the delinquent act
found by the court to have been committed by the child and shall be marked:
“UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME
PUNISHABLE BY A FINE UP TO $2,000.00.” The envelope in which the
1756                      JOURNAL OF THE SENATE
notice is sent by the court shall be marked: “CONFIDENTIAL: TO BE
OPENED BY THE SUPERINTENDENT OR HEADMASTER ONLY.”
   (e) The superintendent or headmaster, upon receipt of the notice, shall
inform only those persons within the child’s school with a legitimate need to
know of the delinquent act, and only after first evaluating rehabilitation and
protection measures that do not involve informing staff or students. Persons
with a legitimate need to know are strictly limited to only those for whom the
information is necessary for the rehabilitation program of the child or for the
protection of staff or students. “Need to know” shall be narrowly and strictly
interpreted. Persons receiving information from the superintendent or
headmaster shall not, under any circumstances, discuss such information with
any other person except the child, the child’s parent, guardian, or custodian,
others who have been similarly informed by the superintendent or headmaster,
law enforcement personnel, or the juvenile’s probation officer.
   (f) The superintendent and headmaster annually shall provide training to
school staff about the need for confidentiality of such information and the
penalties for violation of this section.
   (g) The written notice shall be maintained by the superintendent or
headmaster in a file separate from the child’s education record. If the child
transfers to another public or independent school, the superintendent or
headmaster shall forward the written notice in the original marked envelope to
the superintendent or headmaster for the school to which the child transferred.
If the child either graduates or turns 18 years of age, the superintendent or
headmaster then possessing the written notice shall destroy such notice.
   (h) If legal custody of the child is transferred to the commissioner, or if the
commissioner is supervising the child’s probation, upon the request by a
superintendent or headmaster, the commissioner shall provide to the
superintendent or headmaster information concerning the child which the
commissioner determines is necessary for the child’s rehabilitation or for the
protection of the staff or students in the school in which the child is enrolled.
   (i) A person who intentionally violates the confidentiality provisions of this
section shall be fined not more than $2,000.00.
   (j) Except as provided in subsection (i) of this section, no liability shall
attach to any person who transmits, or fails to transmit, the written notice
required under this section.
§ 5119. SEALING OF RECORDS
   (a)(1) In matters relating to a child who has been adjudicated delinquent on
or after July 1, 1996, the court shall order the sealing of all files and records
                                FRIDAY, MAY 2, 2008                            1757
related to the proceeding if two years have elapsed since the final discharge of
the person unless, on motion of the state’s attorney, the court finds:
         (A) the person has been convicted of a listed crime as defined in
13 V.S.A. § 5301 or adjudicated delinquent of such an offense after such initial
adjudication, or a proceeding is pending seeking such conviction or
adjudication; or
          (B) rehabilitation of the person has not been attained to the
satisfaction of the court.
      (2) At least 60 days prior to the date upon which a person is eligible to
have his or her delinquency record automatically sealed pursuant to
subdivision (1) of this subsection, the court shall provide such person’s name
and other identifying information to the state’s attorney in the county in which
the person was adjudicated delinquent. The state’s attorney may object, and a
hearing may be held to address the state’s attorney’s objection.
      (3) The order to seal shall include all the files and records relating to the
matter in accordance with subsection (d) of this section; however, the court
may limit the order to the court files and records only upon good cause shown
by the state’s attorney.
      (4) The process of sealing files and records under this subsection for a
child who was adjudicated delinquent on or after July 1, 1996, but before
July 1, 2001 shall be completed by January 1, 2010. The process of sealing
files and records under this subsection for a child who was adjudicated
delinquent on or after July 1, 2001 but before July 1, 2004 shall be completed
by January 1, 2008.
   (b) In matters relating to a child who has been adjudicated delinquent prior
to July 1, 1996, on application of the child or on the court’s own motion and
after notice to all parties of record and hearing, the court shall order the sealing
of all files and records related to the proceeding if it finds:
       (1) the person has not been convicted of a listed crime as defined in
13 V.S.A. § 5301 or adjudicated delinquent for such an offense after such
initial adjudication, and no new proceeding is pending seeking such conviction
or adjudication; and
         (2) the person’s rehabilitation has been attained to the satisfaction of the
court.
   (c) On application of a person who, while a child, was found to be in need
of care or supervision or, on the court’s own motion, after notice to all parties
of record and hearing, the court may order the sealing of all files and records
related to the proceeding if it finds:
1758                         JOURNAL OF THE SENATE
       (1) the person has reached the age of majority; and
       (2) sealing the person’s record is in the interest of justice.
   (d) Except as provided in subdivision (a)(3) and subsection (h) of this
section or otherwise provided, orders issued in accordance with this section
shall include the files and records of the court, law enforcement, prosecution,
and the department for children and families related to the specific court
proceeding that is the subject of the sealing.
   (e)(1) Except as provided in subdivision (2) of this subsection, upon the
entry of an order sealing such files and records under this section, the
proceedings in the matter under this act shall be considered never to have
occurred, all general index references thereto shall be deleted, and the person,
the court, and law enforcement officers and departments shall reply to any
request for information that no record exists with respect to such person upon
inquiry in any matter. Copies of the order shall be sent to each agency or
official named in the order.
      (2)(A) Any court, agency, or department that seals a record pursuant to
an order under this section may keep a special index of files and records that
have been sealed. This index shall only list the name and date of birth of the
subject of the sealed files and records and the docket number of the proceeding
which was the subject of the sealing. The special index shall be confidential
and may be accessed only for purposes for which a department or agency may
request to unseal a file or record pursuant to subsection (f) of this section.
           (B) Access to the special index shall be restricted to the following
persons:
              (i) the commissioner and general counsel of any administrative
department;
              (ii)   the secretary and general counsel of any administrative
agency;
              (iii) a sheriff;
              (iv) a police chief;
              (v) a state’s attorney;
              (vi) the attorney general;
              (vii) the director of the Vermont crime information center; and
           (viii) a designated clerical staff person in each office identified in
subdivisions (i)–(vii) of this subdivision (B) who is necessary for establishing
and maintaining the indices for persons who are permitted access.
                             FRIDAY, MAY 2, 2008                            1759
         (C) Persons authorized to access an index pursuant to subdivision (B)
of this subdivision (2) may access only the index of their own department or
agency.
   (f)(1) Except as provided in subdivisions (2), (3), and (4) of this subsection,
inspection of the files and records included in the order may thereafter be
permitted by the court only upon petition by the person who is the subject of
such records, and only to those persons named in the record.
        (2) Upon a confidential motion of any department or agency that was
required to seal files and records pursuant to subsection (d) of this section, the
court may permit the department or agency to inspect its own files and records
if it finds circumstances in which the department or agency requires access to
such files and records to respond to a legal action, a legal claim, or an
administrative action filed against the department or agency in relation to
incidents or persons that are the subject of such files and records. The files and
records shall be unsealed only for the minimum time necessary to address the
circumstances enumerated in this subdivision, at which time the records and
files shall be resealed.
       (3) Upon a confidential motion of the department for children and
families, the court may permit the department to inspect its own files and
records if the court finds extraordinary circumstances in which the state’s
interest in the protection of a child clearly outweighs the purposes of the
juvenile sealing law and the privacy rights of the person or persons who are the
subjects of the record, and the sealed record is necessary to accomplish the
state’s interest. The motion may be heard ex parte if the court, based upon an
affidavit, finds a compelling purpose exists to deny notice to the subject of the
files and records when considering whether to grant the order. If the order to
unseal is issued ex parte, the court shall send notice of the unsealing to the
subject of the files and records within 20 days unless the department provides a
compelling reason why the subject of the files and records should not receive
notice. The files and records shall be unsealed only for the minimum time
necessary to address the extraordinary circumstances, at which time the files
and records shall be resealed.
       (4) Upon a confidential motion of a law enforcement officer or
prosecuting attorney, the court may permit the department or agency to inspect
its own files and records if the court finds extraordinary circumstances in
which the state’s interest in public safety clearly outweighs the purposes of the
juvenile sealing law and the privacy rights of the person or persons who are the
subjects of the record, and the sealed record is necessary to accomplish the
state’s interest. The motion may be heard ex parte if the court, based upon an
affidavit, finds a compelling public safety purpose exists to deny notice to the
1760                         JOURNAL OF THE SENATE
subject of the files and records when considering whether to grant the order. If
the order to unseal is issued ex parte, the court shall send notice of the
unsealing to the subject of the files and records within 20 days unless the law
enforcement officer or prosecuting attorney provides a compelling public
safety reason why the subject of the files and records should not receive notice.
The files and records shall be unsealed only for the minimum time necessary to
address the extraordinary circumstances, at which time the files and records
shall be resealed.
      (5) The order unsealing a record must state whether the record is
unsealed entirely or in part and the duration of the unsealing. If the court’s
order unseals only part of the record or unseals the record only as to certain
persons, the order must specify the particular records that are unsealed or the
particular persons who may have access to the record, or both.
   (g) On application of a person who has pleaded guilty to or has been
convicted of the commission of a crime committed under the laws of this state
prior to attaining the age of majority, or on the motion of the court having
jurisdiction over such a person, after notice to all parties of record and hearing,
the court shall order the sealing of all files and records related to the
proceeding if it finds:
         (1) two years have elapsed since the final discharge of the person;
      (2) the person has not been convicted of a listed crime as defined in
13 V.S.A. § 5301 or adjudicated delinquent for such an offense after the initial
conviction, and no new proceeding is pending seeking such conviction or
adjudication; and
         (3) the person’s rehabilitation has been attained to the satisfaction of the
court.
   (h)(1) In matters relating to a person who was charged with a criminal
offense on or after July 1, 2006 and prior to the person attaining the age of
majority, the files and records of the court applicable to the proceeding shall be
sealed immediately if the case is dismissed.
      (2) In matters relating to a person who was charged with a criminal
offense prior to July 1, 2006 and prior to the person attaining the age of
majority, the person may apply to seal the files and records of the court
applicable to the proceeding. The court shall order the sealing, provided that
two years have elapsed since the dismissal of the charge.
   (i) Upon receipt of a court order to seal a record relating to an offense for
which there is an identifiable victim, a state’s attorney shall record the name
and date of birth of the victim, the offense, and the date of the offense. The
name and any identifying information regarding the defendant shall not be
                             FRIDAY, MAY 2, 2008                            1761
recorded. Victim information retained by a state’s attorney pursuant to this
subsection shall be available only to victims’ advocates, the victims’
compensation program, and the victim and shall otherwise be confidential.
    (j) For purposes of this section, to “seal” a file or record means to
physically and electronically segregate the record in a manner that ensures
confidentiality of the record and limits access only to those persons who are
authorized by law or court order to view the record. A “sealed” file or record
is retained and shall not be destroyed unless a court issues an order to expunge
the record.
   (k) The court shall provide assistance to persons who seek to file an
application for sealing under this section.
   (l) Any entities subject to sealing orders pursuant to this section shall
establish policies for implementing this section and shall provide a copy of
such policies to the house and senate committees on judiciary no later than
January 15, 2007. State’s attorneys, sheriffs, municipal police, and the
judiciary are encouraged to adopt a consistent policy that may apply to each of
their independent offices and may submit one policy to the general assembly.
§ 5120. INDIAN CHILD WELFARE ACT
   The federal Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., governs
any proceeding under this title that pertains to an Indian child, as defined by
the Indian Child Welfare Act, and prevails over any inconsistent provision of
this title.
§ 5121. CASE PLANNING PROCESS
   The department shall actively engage families, and solicit and integrate into
the case plan the input of the child, the child’s family, relatives and other
persons with a significant relationship to the child. Whenever possible,
parents, guardians and custodians shall participate in the development of the
case plan.
§ 5122. MISCONDUCT DURING COURT PROCEEDINGS
   A person who engages in misconduct while participating in a court
proceeding under the juvenile judicial proceedings chapters may be subject to
appropriate sanctions, including criminal charges, as provided by relevant law,
regulation, rule, or employment policy. The confidentiality requirements of
subsection 5110(c) of this title shall not apply to the extent necessary to report
and respond to allegations of misconduct under the juvenile judicial
proceedings chapters. This section shall not be construed to create a private
right of action or a waiver of sovereign immunity.
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Sec. 2. 33 V.S.A. chapter 52 is added to read:
               CHAPTER 52. DELINQUENCY PROCEEDINGS
                 Subchapter 1. Commencement of Proceedings
§ 5201. COMMENCEMENT OF DELINQUENCY PROCEEDINGS
   (a) Proceedings under this chapter shall be commenced by:
      (1) transfer to the court of a proceeding from another court as provided
in section 5203 of this title; or
       (2) the filing of a delinquency petition by a state’s attorney.
   (b) If the proceeding is commenced by transfer from another court, no
petition need be filed; however, the state’s attorney shall provide to the court
the name and address of the child’s custodial parent, guardian, or custodian
and the name and address of any noncustodial parent if known.
   (c) Consistent with applicable provisions of Title 4, any proceeding
concerning a child who is alleged to have committed an act specified in
subsection 5204(a) of this title after attaining the age of 14, but not the age of
18, shall originate in district or superior court, provided that jurisdiction may
be transferred in accordance with this chapter.
   (d) If the state requests that custody of the child be transferred to the
department, a temporary care hearing shall be held as provided in subchapter 3
of this chapter.
    (e) A petition may be withdrawn by the state’s attorney at any time prior to
the hearing thereon, in which event the child shall be returned to the custodial
parent, guardian, or custodian, the proceedings under this chapter terminated,
and all files and documents relating thereto sealed under section 5119 of this
title.
§ 5202. ORDER OF ADJUDICATION; NONCRIMINAL
   (a)(1) An order of the juvenile court in proceedings under this chapter shall
not:
          (A) be deemed a conviction of crime;
         (B) impose any civil disabilities sanctions ordinarily resulting from a
conviction; or
        (C) operate to disqualify the child in any civil service application or
appointment.
      (2) Notwithstanding subdivision (1) of this subsection, an order of
delinquency in proceedings transferred under subsection 5203(b) of this title,
                               FRIDAY, MAY 2, 2008                             1763
where the offense charged in the initial criminal proceedings was a violation of
those sections of Title 23 specified in subdivision 801(a)(1), shall be an event
in addition to those specified therein, enabling the commissioner of motor
vehicles to require proof of financial responsibility under chapter 11 of
Title 23.
   (b) The disposition of a child and evidence given in a hearing in a juvenile
proceeding shall not be admissible as evidence against the child in any case or
proceeding in any other court except after a subsequent conviction of a felony
in proceedings to determine the sentence.
§ 5203. TRANSFER FROM OTHER COURTS
   (a) If it appears to a district court that the defendant was under the age of
16 years at the time the offense charged was alleged to have been committed
and the offense charged is not one of those specified in subsection 5204(a) of
this title, that court shall forthwith transfer the case to the juvenile court under
the authority of this chapter.
    (b) If it appears to a district court that the defendant was over the age of 16
years and under the age of 18 years at the time the offense charged was alleged
to have been committed, or that the defendant had attained the age of 14 but
not the age of 16 at the time an offense specified in subsection 5204(a) of this
title was alleged to have been committed, that court may forthwith transfer the
proceeding to the juvenile court under the authority of this chapter, and the
minor shall thereupon be considered to be subject to this chapter as a child
charged with a delinquent act.
   (c) If it appears to the state’s attorney that the defendant was over the age
of 16 and under the age of 18 at the time the offense charged was alleged to
have been committed and the offense charged is not an offense specified in
subsection 5204(a) of this title, the state’s attorney may file charges in a
juvenile court or the district court. If charges in such a matter are filed in
district court, the district court may forthwith transfer the proceeding to the
juvenile court under the authority of this chapter, and the person shall
thereupon be considered to be subject to this chapter as a child charged with a
delinquent act.
   (d) Any such transfer shall include a transfer and delivery of a copy of the
accusatory pleading and other papers, documents, and transcripts of testimony
relating to the case. Upon any such transfer, that court shall order that the
defendant be taken forthwith to a place of detention designated by the juvenile
court or to that court itself, or shall release the child to the custody of his or her
parent or guardian or other person legally responsible for the child, to be
brought before the juvenile court at a time designated by that court. The
1764                       JOURNAL OF THE SENATE
juvenile court shall then proceed as provided in this chapter as if a petition
alleging delinquency had been filed with the court under section 5223 of this
title on the effective date of such transfer.
   (e) Motions to transfer a case to family court for youthful offender
treatment shall be made under section 5281 of this title.
§ 5204. TRANSFER FROM JUVENILE COURT
   (a) After a petition has been filed alleging delinquency, upon motion of the
state’s attorney and after hearing, the juvenile court may transfer jurisdiction of
the proceeding to district court, if the child had attained the age of 10 but not
the age of 14 at the time the act was alleged to have occurred, and if the
delinquent act set forth in the petition was any of the following:
       (1) arson causing death as defined in 13 V.S.A. § 501;
     (2) assault and robbery with a dangerous weapon as defined in
13 V.S.A. § 608(b);
     (3) assault and robbery causing bodily injury as defined in 13 V.S.A.
§ 608(c);
       (4) aggravated assault as defined in 13 V.S.A. § 1024;
       (5) murder as defined in 13 V.S.A. § 2301;
       (6) manslaughter as defined in 13 V.S.A. § 2304;
       (7) kidnapping as defined in 13 V.S.A. § 2405;
       (8) unlawful restraint as defined in 13 V.S.A. § 2406 or 2407;
       (9) maiming as defined in 13 V.S.A. § 2701;
       (10) sexual assault as defined in 13 V.S.A. § 3252(a)(1) or (a)(2);
       (11) aggravated sexual assault as defined in 13 V.S.A. § 3253; or
     (12)     burglary into an occupied dwelling as defined in 13 V.S.A.
§ 1201(c).
    (b) The state’s attorney of the county where the juvenile petition is pending
may move in the juvenile court for an order transferring jurisdiction under
subsection (a) of this section within ten days of the filing of the petition
alleging delinquency. The filing of the motion to transfer jurisdiction shall
automatically stay the time for the hearing provided for in section 5225 of this
title, which stay shall remain in effect until such time as the juvenile court may
deny the motion to transfer jurisdiction.
                              FRIDAY, MAY 2, 2008                            1765
   (c) Upon the filing of a motion to transfer jurisdiction under subsection (b)
of this section, the juvenile court shall conduct a hearing in accordance with
procedures specified in subchapter 2 of this chapter to determine whether:
       (1) there is probable cause to believe that the child committed an act
listed in subsection (a) of this section; and
      (2) public safety and the interests of the community would not be served
by treatment of the child under the provisions of law relating to juvenile courts
and delinquent children.
   (d) In making its determination as required under subsection (c) of this
section, the court may consider, among other matters:
      (1) The maturity of the child as determined by consideration of his or
her age, home, environment; emotional, psychological and physical maturity;
and relationship with and adjustment to school and the community.
      (2) The extent and nature of the child’s prior record of delinquency.
     (3) The nature of past treatment efforts and the nature of the child’s
response to them.
      (4) Whether the alleged offense was committed in an aggressive,
violent, premeditated, or willful manner.
     (5) The nature of any personal injuries resulting from or intended to be
caused by the alleged act.
      (6) The prospects for rehabilitation of the child by use of procedures,
services, and facilities available through juvenile proceedings.
      (7) Whether the protection of the community would be better served by
transferring jurisdiction from the juvenile court to the district court.
    (e) A transfer under this section shall terminate the jurisdiction of the
juvenile court over the child only with respect to those delinquent acts alleged
in the petition with respect to which transfer was sought.
   (f) The juvenile court, following completion of the transfer hearing, shall
make written findings and, if the court orders transfer of jurisdiction from the
juvenile court, shall state the reasons for that order. If the juvenile court orders
transfer of jurisdiction, the child shall be treated as an adult. The state’s
attorney shall commence criminal proceedings as in cases commenced against
adults.
   (g) The order granting or denying transfer of jurisdiction shall not
constitute a final judgment or order within the meaning of Rules 3 and 4 of the
Vermont Rules of Appellate Procedure.
1766                      JOURNAL OF THE SENATE
    (h) If a person who has not attained the age of 16 at the time of the alleged
offense has been prosecuted as an adult and is not convicted of one of the acts
listed in subsection (a) of this section but is convicted only of one or more
lesser offenses, jurisdiction shall be transferred to the juvenile court for
disposition. A conviction under this subsection shall be considered an
adjudication of delinquency and not a conviction of crime, and the entire
matter shall be treated as if it had remained in juvenile court throughout. In
case of an acquittal for a matter specified in this subsection and in case of a
transfer to juvenile court under this subsection, the court shall order the sealing
of all applicable files and records of the court, and such order shall be carried
out as provided in subsection 5119(e) of this title.
    (i) The record of a hearing conducted under subsection (c) of this section
and any related files shall be open to inspection only by persons specified in
subsections 5117(b) and (c) of this title in accordance with section 5119 of this
title and by the attorney for the child.
§ 5205. FINGERPRINTS; PHOTOGRAPHS
   (a) Fingerprint files of a child under the jurisdiction of the court shall be
kept separate from those of other persons under special security measures
limited to inspection by law enforcement officers only on a need-to-know basis
unless otherwise authorized by the court in individual cases.
   (b) Copies of fingerprints shall be maintained on a local basis only and not
sent to central state or federal depositories except in national security cases.
   (c) Fingerprints of persons under the jurisdiction of the court shall be
removed and destroyed when:
      (1) the petition alleging delinquency with respect to which such
fingerprints were taken does not result in an adjudication of delinquency; or
      (2) jurisdiction of the court is terminated, provided that there has been
no record of a criminal offense by the child after reaching 16 years of age.
   (d) If latent prints are found at the scene of an offense and there is reason to
believe that a particular child was involved, the child may be fingerprinted for
purposes of immediate comparison, and, if the result is negative, the
fingerprint card shall be immediately destroyed.
   (e) No photograph shall be taken of any child when taken into custody
without the consent of the judge unless the case is transferred for criminal
proceeding.
  (f) A person who violates this section shall be imprisoned not more than six
months or fined not more than $500.00, or both.
                              FRIDAY, MAY 2, 2008                            1767
                Subchapter 2. Petition, Merits, and Disposition
§ 5221. CITATION AND NOTICE TO APPEAR AT PRELIMINARY
HEARING
   (a) Citation. If an officer has probable cause to believe that a child has
committed or is committing a delinquent act and the circumstances do not
warrant taking the child into custody pursuant to subchapter 3 of this chapter,
the officer may issue a citation to appear before a judicial officer in lieu of
arrest.
   (b) Appearance in court. A child who receives a citation described in this
section shall appear at the court designated in the citation at the time and date
specified in the citation unless otherwise notified by the court.
   (c) Notice to parent. The officer who issues the citation shall also issue or
cause to be issued a notice to the child’s custodial parent, guardian, or
custodian. The notice shall indicate the date, time, and place of the
preliminary hearing and shall direct the responsible adult to appear at the
hearing with the child.
   (d) Form. The citation to appear shall be dated and signed by the issuing
officer and shall direct the child to appear before a judicial officer at a stated
time and place. The citation shall state the name of the child to whom it is
addressed, the delinquent act that the child is alleged to have committed, and a
notice that the child is entitled to be represented by an attorney at the hearing
and that an attorney will be appointed for the child if the parent or guardian is
indigent and cannot afford an attorney.
   (e) Filing of citation. The issuing officer shall sign the citation and file the
citation and an affidavit as to probable cause with the state’s attorney.
§ 5222. PETITION; CONTENTS
  (a) The petition shall be supported by an affidavit as to probable cause.
The petition shall contain the following:
      (1) A concise statement of the facts which support the conclusion that
the child has committed a delinquent act, together with a statement that it is in
the best interests of the child that the proceedings be brought.
      (2) The name, date of birth, telephone number, and residence address, if
known, of the child and the custodial and noncustodial parents or the guardian
or custodian of the child, if other than parent. If a parent is a participant in the
Safe At Home Program pursuant to 15 V.S.A. § 1152, the petition shall so
specify.
1768                       JOURNAL OF THE SENATE
   (b) If a temporary care order has been issued or the state is requesting that
custody be transferred to the commissioner, the petition shall contain
jurisdictional information as required by the Uniform Child Custody
Jurisdiction Act, 15 V.S.A. § 1032 et seq.
   (c) A petition alleging a delinquent act may not be amended to allege that a
child is in need of care or supervision, and a child who has been adjudged a
delinquent child as a result of a delinquency petition may not be subsequently
adjudged a child in need of care or supervision, unless a separate petition
alleging that the child is in need of care or supervision is filed.
§ 5223. FILING OF PETITION
   (a) When notice to the child is provided by citation, the state’s attorney
shall file the petition and supporting affidavit at least ten days prior to the date
for the preliminary hearing specified in the citation.
   (b) The court shall send or deliver a copy of the petition and affidavit to all
persons required to receive notice, including the noncustodial parent, as soon
as possible after the petition is filed and at least five days prior to the date set
for the preliminary hearing.
§ 5224. FAILURE TO APPEAR AT PRELIMINARY HEARING
   If a child or custodial parent, guardian or custodian fails to appear at the
preliminary hearing as directed by a citation, the court may issue a summons to
appear, an order to have the child brought to court, or a warrant as provided in
section 5108 of this title.
§ 5225. PRELIMINARY HEARING
   (a) A preliminary hearing shall be held at the time and date specified on the
citation or as otherwise ordered by the court. If a child is taken into custody
prior to the preliminary hearing, the preliminary hearing shall be at the time of
the temporary care hearing.
   (b) Counsel for the child shall be assigned prior to the preliminary hearing.
   (c) At the preliminary hearing, the court shall appoint a guardian ad litem
for the child. The guardian ad litem may be the child’s parent, guardian or
custodian. On its own motion or motion by the child’s attorney, the court may
appoint a guardian ad litem other than a parent, guardian or custodian.
   (d) At the preliminary hearing, a denial shall be entered to the allegations
of the petition, unless the juvenile, after adequate consultation with the
guardian ad litem and counsel, enters an admission.
   (e) The court may order the child to abide by conditions of release pending
a merits or disposition hearing.
                             FRIDAY, MAY 2, 2008                            1769
§ 5226. NOTIFICATION OF CONDITIONS OF RELEASE TO VICTIM IN
DELINQUENCY PROCEEDINGS
    A victim in a delinquency proceeding based on a listed crime shall be
notified promptly by the prosecutor’s office when conditions of release are
initially ordered or modified by the court and of the identity of the child when
the conditions of release relate to the victim or a member of the victim’s family
or current household. A victim in a delinquency proceeding based on an act
that is not a listed crime shall be notified promptly by the court when
conditions of release are initially ordered or modified by the court and shall be
notified promptly of the identity of the child when the conditions of release
relate to the victim or a member of the victim’s family or current household.
Victims are entitled only to information contained in the conditions of release
that pertain to the victim or a member of the victim’s family or current
household.
§ 5227. TIMELINES FOR PRETRIAL AND MERITS HEARING
   (a) Pre-trial hearing. At the preliminary hearing, the court shall set a date
for a pretrial hearing on the petition. The pretrial hearing shall be held within
15 days of the preliminary hearing. In the event there is no admission or
dismissal at the pretrial hearing, the court shall set the matter for a hearing to
adjudicate the merits of the petition.
   (b) Merits hearing. Except for good cause shown, a merits hearing shall be
held and merits adjudicated no later than 60 days from the date of the
preliminary hearing.
§ 5228. CONSTITUTIONAL PROTECTIONS FOR A CHILD IN
DELINQUENCY PROCEEDINGS
   A child charged with a delinquent act need not be a witness against, nor
otherwise incriminate, himself or herself. Any extrajudicial statement, if
constitutionally inadmissible in a criminal proceeding, shall not be used against
the child. Evidence illegally seized or obtained shall not be used over
objection to establish the charge against the child. A confession out of court is
insufficient to support an adjudication of delinquency unless corroborated in
whole or in part by other substantial evidence.
§ 5229. MERITS ADJUDICATION
   (a) The parties at a merits hearing in a delinquency proceeding shall be
limited to the state’s attorney and the child who is the subject of the petition.
A merits adjudication hearing shall not proceed forward unless the child who is
the subject of the delinquency petition is present in court.
1770                       JOURNAL OF THE SENATE
  (b) The state shall have the burden of establishing beyond a reasonable
doubt that the child has committed a delinquent act.
   (c) If the child who is the subject of the delinquency petition enters an
admission to the petition, the court shall not accept the admission without first
addressing the child personally in open court and determining that:
       (1) the plea is voluntary;
       (2) the child understands the nature of the delinquent act charged, the
right to contest the charge, and the rights which will be waived if the admission
is accepted by the court; and
       (3) there is a factual basis for the delinquent act charged in the petition.
  (d) A merits hearing shall be conducted in accordance with the Vermont
Rules of Evidence.
  (e) If the merits are contested, the court, after hearing the evidence, shall
make its findings on the record.
   (f) If the court finds that the allegations made in the petition have not been
established beyond a reasonable doubt, the court shall dismiss the petition and
vacate any orders transferring custody to the state or other person or any
conditional custody orders.
    (g) If, based on the child’s admission or the evidence presented, the court
finds beyond a reasonable doubt that the child has committed a delinquent act,
the court shall order the department to prepare a disposition case plan within
28 days of the merits adjudication and shall set the matter for a disposition
hearing. In no event, shall a disposition hearing be held later than 35 days after
a finding that a child is delinquent.
   (h) The court may proceed directly to disposition providing that the child,
the custodial parent, the state’s attorney, and the department agree.
§ 5230. DISPOSITION CASE PLAN
   (a) Filing of case plan. The department shall file a disposition case plan no
later than 28 days from the date of the finding by the court that a child is
delinquent. The disposition case plan shall not be used or referred to as
evidence prior to a finding that a child is delinquent.
   (b) Content of case plan.         A disposition case plan shall include, as
appropriate:
     (1) An assessment of the child’s medical, psychological, social,
educational, and vocational needs.
                             FRIDAY, MAY 2, 2008                           1771
      (2) An assessment of the impact of the delinquent act on the victim and
the community, including, whenever possible, a statement from the victim.
      (3) A description of the child’s home, school, community, and current
living situation.
      (4) An assessment of the child’s and family’s strengths and risk factors.
      (5) Proposed conditions of probation which address the identified risks
and provide for, to the extent possible, repair of the harm to victims and the
community. Proposed conditions may include a recommendation as to the
term of probation.
      (6) The plan of services shall describe the responsibilities of the child,
the parent, guardian or custodian, the department, other family members, and
treatment providers, including a description of the services required to achieve
successful completion of the goals of probation and, if the child has been
placed in the custody of the department, the permanency goal.
   (c) Case plan for child in custody. If a child is in the custody of the
commissioner at the time of disposition or if a transfer of custody is requested,
the case plan shall include the following additional information:
      (1) A permanency goal if the child is in custody. The long-term goal for
a child found to be delinquent and placed in the custody of the department is a
safe and permanent home. A disposition case plan shall include a permanency
goal and an estimated date for achieving the permanency goal. The plan shall
specify whether permanency will be achieved through reunification with a
parent, custodian, or guardian; adoption; permanent guardianship; or other
permanent placement. In addition to a primary permanency goal, the plan may
identify a concurrent permanency goal.
     (2) A recommendation with respect to custody for the child and a
recommendation for parent-child contact if appropriate.
      (3) A request for child support if the child has been placed in the
custody of the department or the department recommends a transfer of custody.
§ 5231. DISPOSITION HEARING
    (a) Timeline. A disposition hearing shall be held no later than 35 days after
a finding that a child is delinquent.
   (b) Hearing procedure. If disposition is contested, all parties shall have the
right to present evidence and examine witnesses. Hearsay may be admitted
and may be relied on to the extent of its probative value. If reports are
admitted, the parties shall be afforded an opportunity to examine those persons
1772                       JOURNAL OF THE SENATE
making the reports, but sources of confidential information need not be
disclosed.
   (c) Standard of proof. If the court terminates the parental rights of one or
both parents, the standard of proof on the issue of such termination shall be
clear and convincing evidence. On all other issues, the standard of proof shall
be a preponderance of the evidence.
   (d) Termination of parental rights. If the commissioner or the attorney for
the child seeks an order terminating parental rights of one or both parents and
transfer of custody to the commissioner without limitation as to adoption, the
court shall consider the best interests of the child in accordance with section
5114 of this title.
   (e) Further hearing. On its own motion or the motion of a party, the court
may schedule a further hearing to obtain reports or other information necessary
for the appropriate disposition of the case. The court shall make an appropriate
order for the temporary care of the child pending a final disposition order. The
court shall give scheduling priority to cases in which the child has been
removed from the home.
§ 5232. DISPOSITION ORDER
   (a) If a child is found to be a delinquent child, the court shall make such
orders at disposition as may provide for:
       (1) the child’s supervision, care, and rehabilitation;
       (2) the protection of the community;
       (3) accountability to victims and the community for offenses committed;
and
     (4) the development of competencies to enable the child to become a
responsible and productive member of the community.
   (b) In carrying out the purposes outlined in subsection (a) of this section,
the court may:
     (1) Place the child on probation subject to the supervision of the
commissioner, upon such conditions as the court may prescribe. The length of
probation shall be as prescribed by the court or until further order of the court.
      (2) Order custody of the child be given to the custodial parent, guardian,
or custodian. For a fixed period of time following disposition, the court may
order that custody be subject to such conditions and limitations as the court
may deem necessary and sufficient to provide for the safety of the child and
the community. Conditions may include protective supervision for up to one
year following the disposition order unless further extended by court order.
                              FRIDAY, MAY 2, 2008                            1773
The court shall schedule regular review hearings to determine whether the
conditions continue to be necessary.
     (3) Transfer custody of the child to a noncustodial parent, relative, or
person with a significant connection to the child.
      (4) Transfer custody of the child to the commissioner.
      (5) Terminate parental rights and transfer custody and guardianship to
the department without limitation as to adoption.
   (c) If the court orders the transfer of custody of the child pursuant to
subdivisions (b)(4) and (5) of this section, the court shall establish a
permanency goal for the child and adopt a case plan prepared by the
department designed to achieve the permanency goal. If the court determines
that the plan proposed by the department does not adequately support the
permanency goal for the child, the court may reject the plan proposed by the
department and order the department to prepare and submit a revised plan for
court approval.
§ 5233. VICTIM’S STATEMENT AT DISPOSITION PROCEEDING;
VICTIM NOTIFICATION
   (a) Upon the filing of a delinquency petition, the court shall notify a victim
of his or her rights as provided by law and his or her responsibilities regarding
the confidential nature of juvenile proceedings.
    (b) A victim of a delinquent act has the right in a disposition proceeding to
file with the court a written or recorded statement of the impact of the
delinquent act on the victim and the need for restitution. A victim of a
delinquent act involving a listed crime also has the right to be present at the
disposition hearing for the sole purpose of presenting to the court the impact of
the delinquent act on the victim and the need for restitution. A victim of a
delinquent act that is not a listed crime may be present at the disposition
hearing for the sole purpose of presenting to the court the impact of the
delinquent act on the victim and the need for restitution if the court finds that
the victim’s presence at the disposition hearing is in the best interests of the
child and the victim. The court shall take a victim’s views into consideration
in the court’s disposition order. A victim shall not be allowed to be personally
present at any portion of the disposition hearing except to present the impact
statement unless authorized by the court.
   (c) After an adjudication of delinquency has been made involving an act
that is not a listed crime, the court shall inform the victim of the disposition of
the case. Upon request of the victim, the court may release to the victim the
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identity of the child if the court finds that release of the child’s identity to the
victim is in the best interests of both the child and the victim.
   (d) After an adjudication of delinquency has been made involving an act
that is a listed crime, the state’s attorney’s office shall inform the victim of the
disposition in the case. Upon request of the victim, the state’s attorney’s
office shall release to the victim the identity of the child.
   (e) For the purposes of this section, disposition in the case shall include
whether the child was placed on probation and information regarding
conditions of probation relevant to the victim.
§ 5234. RIGHTS OF VICTIMS IN DELINQUENCY PROCEEDINGS
INVOLVING A LISTED CRIME
   The victim in a delinquency proceeding involving a listed crime shall have
the following rights:
      (1) To be notified by the prosecutor’s office in a timely manner when a
predispositional or dispositional court proceeding is scheduled to take place
and when a court proceeding of which he or she has been notified will not take
place as scheduled.
       (2) To be notified by the prosecutor’s office as to whether delinquency
has been found and disposition has occurred, including any conditions or
restitution relevant to the victim.
      (3) To present a victim’s impact statement at the disposition hearing in
accordance with subsection 5233(b) of this title and to be notified as to the
disposition pursuant to subsection 5233(d) of this title.
       (4) Upon request, to be notified by the agency having custody of the
delinquent child before he or she is discharged from a secure or staff-secured
residential facility. The name of the facility shall not be disclosed. An
agency’s inability to give notification shall not preclude the release. However,
in such an event, the agency shall take reasonable steps to give notification of
the release as soon thereafter as practicable. Notification efforts shall be
deemed reasonable if the agency attempts to contact the victim at the address
or telephone number provided to the agency in the request for notification.
     (5) To obtain the name of the child in accordance with sections 5226
and 5233 of this title.
       (6) To be notified by the court of the victim’s rights under this section.
§ 5235. JUVENILE RESTITUTION
   (a) Restitution shall be considered in every case in which a victim of a
delinquent act has suffered a material loss. For purposes of this section,
                             FRIDAY, MAY 2, 2008                            1775
“material loss” means uninsured property loss, uninsured out-of-pocket
monetary loss, uninsured lost wages, and uninsured medical expenses.
   (b) When ordered, restitution may include:
      (1) return of property wrongfully taken from the victim;
      (2) cash, credit card, or installment payments paid to the restitution unit;
and
      (3) payments in kind, if acceptable to the victim.
   (c) In awarding restitution, the court shall make findings in accordance with
subdivision 5262(b)(2) of this title.
   (d) If restitution is ordered, the victim shall be entitled to payment from the
crime victims’ restitution fund, pursuant to 13 V.S.A. § 5363. An order of
restitution shall establish the amount of material loss incurred by the victim,
which shall be the restitution judgment order. Every order of restitution shall
include:
      (1) the juvenile’s name and address;
      (2) the name of the victim;
      (3) the amount ordered; and
      (4) any co-defendant names if applicable.
   (e) In the event the juvenile is unable to pay the restitution judgment order
at the time of disposition, the court shall fix the amount thereof, which shall
not exceed an amount the juvenile can or will be able to pay, and shall fix the
manner of performance or refer to a restorative justice program that will
address how loss resulting from the delinquency will be addressed, subject to
modification under section 5264 of this title.
   (f) The court shall transmit a copy of a restitution order to the restitution
unit, which shall make payment to the victim in accordance with 13 V.S.A.
§ 5363.
   (g) To the extent that the victims’ compensation board has made payment
to or on behalf of the victim in accordance with chapter 167 of Title 13,
restitution, if imposed, shall be paid to the restitution unit, which shall make
payment to the crime victims’ compensation fund.
   (h) When restitution is requested but not ordered, the court shall set forth
on the record its reasons for not ordering restitution.
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   (i) Any information concerning restitution payments made by a juvenile
shall be available to the Vermont restitution unit for purposes of determining
restitution obligations of adult and juvenile co-defendants.
   (j) In accordance with 13 V.S.A. § 5363, the restitution unit is authorized to
make payments to victims of delinquent acts where restitution was ordered by
a court prior to July 1, 2008, and the order was first entered on or after
July 1, 2004.
   (k)(1) The restitution unit may bring an action to enforce a restitution order
issued under this section in the superior or small claims court of the county
where the offender resides or in the county where the order was issued. In an
action under this subsection, a restitution order issued in a juvenile proceeding
shall be enforceable in superior or small claims court in the same manner as a
civil judgment. Superior and small claims court filing fees shall be waived for
an action under this subsection, and for an action to renew a restitution
judgment.
      (2) An action under this subsection may be brought only after the
offender reaches 18 years of age, and shall not be subject to any limitations
period.
      (3) For purposes of this subsection, a restitution order issued in a
juvenile proceeding shall not be confidential.
                        Subchapter 3. Children in Custody
§ 5251. TAKING INTO CUSTODY
   A child may be taken into custody by an officer:
       (1) pursuant to the laws of arrest of this state;
      (2) pursuant to an order of the court under the provisions of this chapter
and chapters 51 and 53 of this title; or
      (3) when the officer has reasonable grounds to believe that the child has
committed a delinquent act; and that the child’s immediate welfare or the
protection of the community, or both, require the child’s removal from the
child’s current home.
§ 5252. REQUEST FOR EMERGENCY CARE ORDER
   (a) If an officer takes a child who is alleged to be delinquent into custody,
the officer shall immediately notify the child’s custodial parent, guardian, or
custodian and release the child to the care of child’s custodial parent, guardian,
or custodian unless the officer determines that the child’s immediate welfare or
the protection of the community, or both, require the child’s continued removal
from the home.
                              FRIDAY, MAY 2, 2008                           1777
   (b) If the officer determines that the child’s immediate welfare, the
protection of the community, or both, require the child’s continued removal
from the home, the officer shall:
      (1) Take the child into custody pending either issuance of an emergency
care order or direction from the state’s attorney to release the child.
       (2) Prepare an affidavit in support of a request for an emergency care
order. The affidavit shall include the reasons for taking the child into custody
and, if known, placements with which the child is familiar, the names,
addresses, and phone numbers of the child’s parents, guardians, or custodians,
and the name, address, and phone number of any relative who has indicated an
interest in taking temporary custody of the child. The officer shall contact the
department, and, if the department has knowledge of the reasons for the
removal of the child, the department may prepare an affidavit as a supplement
to the affidavit of the law enforcement officer.
      (3) Provide the affidavit to the state’s attorney.
   (c) If the child is taken into custody during regular court hours, the state’s
attorney shall immediately file a request for an emergency care order
accompanied by the supporting affidavit or direct the immediate return of the
child to the child’s custodial parent, guardian, or custodian. If the child is
taken into custody after regular court hours or on a weekend or holiday, the
state’s attorney or officer shall contact a judge to request an emergency care
order or return the child to the child’s custodial parent, guardian, or custodian.
If an order is granted, the state’s attorney shall file the supporting affidavit
with the family court on the next day that the court is open.
   (d) If the judge denies a request for an emergency care order, the state’s
attorney shall direct the immediate return of the child to the child’s custodial
parent, guardian, or custodian.
§ 5253.       EMERGENCY CARE ORDER; CONDITIONAL CUSTODY
ORDER
   (a)(1) Transfer of temporary custody. The court may issue an emergency
care order transferring temporary custody of the child to the department
pending a temporary care hearing if the court determines that:
           (A) there is probable cause that the child has committed a delinquent
act; and
           (B) continued residence in the home is contrary to the child’s welfare
because:
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             (i) the child cannot be controlled at home and is at risk of harm to
self or others; or
             (ii) continued residence in the home will not safeguard the
well-being of the child and the safety of the community because of the serious
and dangerous nature of the act the juvenile is alleged to have committed.
      (2) The determination may be made ex parte, provided that it is
reasonably supported by the affidavit prepared in accordance with subsection
5152(b) of this title.
   (b) Contents of emergency care order. The emergency care order shall
contain:
      (1) A written finding that the child’s continued residence in the home is
contrary to the child’s welfare and the factual allegations that support that
finding.
     (2) The date, hour, and place of the temporary care hearing to be held
pursuant to section 5255 of this title.
       (3) Notice of a parent’s right to counsel at the temporary care hearing.
   (c) Conditional custody order. If the court determines that the child may
safely remain in the custody of the custodial parent, guardian, or custodian, the
court may deny the request for an emergency care order and issue an
emergency conditional custody order. The order shall contain:
    (1) Conditions and limitations necessary to protect the child, the
community, or both.
     (2) The date, hour, and place of the temporary care hearing to be held
pursuant to section 5255 of this title.
       (3) Notice of a parent’s right to counsel at the hearing.
§ 5254. NOTICE OF EMERGENCY CARE ORDER AND TEMPORARY
CARE HEARING
   (a) Notice to custodial parent. An officer shall deliver a copy of the
emergency care order or conditional custody order to the custodial parent,
guardian, or custodian of the child. If delivery cannot be made in a timely
manner, the officer shall otherwise notify or cause to be notified the custodial
parent, guardian, or custodian of the order, the date, time, and place of the
temporary care hearing, and the right to counsel. If the custodial parent,
guardian, or custodian cannot be located, the officer shall so certify to the court
in an affidavit describing the efforts made to locate the custodial parent,
guardian, or custodian.
                              FRIDAY, MAY 2, 2008                            1779
   (b) Notice to noncustodial parent. The department shall make reasonable
efforts to locate any noncustodial parent and provide the noncustodial parent
with the emergency care or conditional custody order, notice of the date, hour,
and place of the temporary care hearing and of the right to counsel. If the
noncustodial parent cannot be located, the department shall provide to the
court a summary of the efforts made to locate the noncustodial parent.
   (c) Notice to other parties. The court shall notify the following persons of
the date and time of the temporary care hearing:
      (1) The state’s attorney.
      (2) The department.
      (3) An attorney to represent the child.
      (4) A guardian ad litem for the child.
      (5) An attorney to represent each parent. The attorney may be court-
appointed in the event a parent is eligible, or may be an attorney who has
entered an appearance on behalf of a parent.
§ 5255. TEMPORARY CARE HEARING
   (a) A temporary care hearing shall be held within 72 hours of the issuance
of an emergency care order or conditional custody order under section 5253 of
this title. State holidays shall be excluded from the computation of 72 hours.
If the custodial parent, guardian, or custodian has not been notified in
accordance with section 5254 of this title and does not appear or waive
appearance at the temporary care hearing and files thereafter with the court an
affidavit so showing, the court shall hold another temporary care hearing
within one business day of the filing of the affidavit as if no temporary care
hearing had theretofore been held.
   (b) If the state’s attorney is seeking a temporary care order, the state’s
attorney shall file a petition on or before the temporary care hearing. If the
state’s attorney elects not to file a petition, the state’s attorney shall so notify
the court, and the court shall vacate any temporary orders.
   (c) The following persons shall be present at the temporary care hearing:
      (1) The child.
     (2) The child’s custodial parent, guardian, or custodian, unless he or she
cannot be located or fails to appear in response to notice.
      (3) The child’s guardian ad litem.
      (4) An attorney for the child.
1780                       JOURNAL OF THE SENATE
       (5) An attorney for the custodial parent, if requested.
       (6) A representative of the department.
       (7) The state’s attorney.
   (d) A noncustodial parent and his or her attorney shall have the right to be
present at the hearing. The hearing shall not be delayed by reason of the
inability of the department to locate the noncustodial parent.
   (e) The department shall provide the following information to the court at
the hearing:
      (1) Any reasons for the child’s removal which are not set forth in the
affidavit required pursuant to section 5252 of this title.
     (2) Services, if any, provided to the child and the family in an effort to
prevent removal.
      (3) The need, if any, for continued custody of the child with the
department pending a hearing to adjudicate the merits of the petition.
      (4) Services which could facilitate the return of the child to the custody
of the parent or guardian.
     (5)(A) The identity of a noncustodial parent and any relatives known to
the department who may be suitable, willing, and available to assume
temporary custody of the child.
          (B) With respect to any person whom the department identifies
pursuant to this subdivision, the department shall conduct an assessment of the
suitability of the person to care for the child. The assessment shall include
consideration of the person’s ability to care for the child’s needs, a criminal
history record as defined in 20 V.S.A. § 2056a(a)(1) in accordance with
subdivision (5)(C) of this subsection, and a check of allegations of prior child
abuse or neglect by the person or by other adults in the person’s home. The
court may continue the hearing if necessary to permit the department to
complete the assessment.
          (C) The department shall request from the Vermont criminal
information center criminal history record information for any person being
considered to assume temporary legal custody of the child pursuant to this
subdivision. The request shall be in writing and shall be accompanied by a
release signed by the person. The department through the Vermont criminal
information center shall request criminal history record information from the
appropriate state criminal repositories in all states in which it has reason to
believe the person has resided or been employed. If no disqualifying record is
identified at the state level, the department through the Vermont criminal
                             FRIDAY, MAY 2, 2008                           1781
information center shall request from the Federal Bureau of Investigation a
national criminal history record check of the person's criminal history. The
request to the FBI shall be accompanied by a set of the person's fingerprints
and a fee established by the Vermont criminal information center. The
Vermont criminal information center shall send the department the criminal
history record from any state repository and the FBI of a person about whom a
request is made under this subdivision or inform the department that no record
exists. The department shall promptly provide a copy of the criminal history
record, if any, to the person and shall inform the person that he or she has the
right to appeal the accuracy and completeness of the record through the
Vermont criminal information center. Upon completion of the process under
this subdivision, the person's fingerprint card shall be destroyed.
      (6) Additional information as required by the Uniform Child Custody
Jurisdiction Act pursuant to 15 V.S.A. § 1037 and the Indian Child Welfare
Act pursuant to 25 U.S.C. § 1901 et seq.
    (f) All parties shall have the right to present evidence on their own behalf
and examine witnesses. Hearsay, to the extent it is deemed relevant and
reliable by the court, shall be admissible. The court may in its discretion limit
testimony and evidence to only that which goes to the issues of removal,
custody, and the child’s welfare.
   (g) The temporary care hearing shall also be a preliminary hearing on the
petition.
§ 5256. TEMPORARY CARE ORDER
   (a) The court shall order that custody be returned to the child’s custodial
parent, guardian, or custodian unless the court finds by a preponderance of the
evidence that return to the home would be contrary to the welfare of the child
because of any of the following:
      (1) The child cannot be controlled at home and is at risk of harm to self
or others.
      (2) Continued residence in the home will not protect the community
because of the serious and dangerous nature of the act the child is alleged to
have committed.
      (3) The child’s welfare is otherwise endangered.
   (b) Upon a finding that any of the conditions set forth in subsection (a) of
this section exists, the court may issue such temporary orders related to the
custody of the child as it deems necessary and sufficient to protect the welfare
and safety of the child, and the safety of the community, including:
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      (1) A conditional custody order returning custody of the child to the
custodial parent, guardian, or custodian, subject to such conditions and
limitation as the court may deem necessary and sufficient to protect the child
and the community.
     (2) An order transferring temporary custody of the child to a
noncustodial parent or a relative.
       (3) A temporary care order transferring temporary custody of the child
to the commissioner.
   (c)(1) If the court transfers custody of the child to the commissioner, the
court shall issue a written temporary care order. The order shall include:
         (A) a finding that remaining in the home is contrary to the child’s
welfare and the facts upon which that finding is based; and
        (B) a finding as to whether reasonable efforts were made to prevent
the unnecessary removal of the child from the home.
       (2) If at the conclusion of the hearing the court lacks sufficient evidence
to make findings on whether reasonable efforts were made to prevent the
removal of the child from the home, that determination shall be made at the
next scheduled hearing in the case but, in any event, no later than 60 days after
the issuance of the initial order removing a child from the home.
      (3) The order may include such other provisions as may be necessary for
the protection and welfare of the child:
         (A) Conditions of release.
         (B) An order for parent-child contact under such terms and
conditions as are necessary for the protection of the child.
         (C) An order that the department provide the child with services if
legal custody of the child has been transferred to the commissioner.
         (D) An order that the department refer a parent to services.
         (E) A genetic testing order if parentage of the child is at issue.
        (F) An order that the department make diligent efforts to locate the
noncustodial parent.
        (G) An order that the custodial parent provide the department with
names of all potential noncustodial parents and relatives of the child.
         (H) An order establishing protective supervision and requiring the
department to make appropriate service referrals for the child and the family if
legal custody is transferred to an individual other than the commissioner.
                              FRIDAY, MAY 2, 2008                            1783
     (4) In his or her discretion, the commissioner may provide assistance
and services to children and families to the extent that funds permit,
notwithstanding subdivision (3)(C) of this subsection.
§ 5257. FILING OF INITIAL CASE PLAN
   (a) If a temporary care order is issued granting custody to the
commissioner, the department shall prepare and file with the court an initial
case plan for the child and the family within 60 days of the child’s removal
from the home. The department shall provide a copy of the case plan to the
parties, their attorneys, and the guardian ad litem.
    (b) The initial case plan shall not be used or referred to as evidence prior to
a finding that the child has committed a delinquent act.
§ 5258. POSTDISPOSITION REVIEW AND PERMANENCY REVIEW
FOR DELINQUENTS IN CUSTODY
   Whenever custody of a delinquent child is transferred to the commissioner,
the custody order of the court shall be subject to a postdisposition review
hearing pursuant to section 5320 of this title and permanency reviews pursuant
to section 5321 of this title. At the permanency review, the court shall review
the permanency plan and determine whether the plan advances the permanency
goal recommended by the department. The court may accept or reject the plan,
but may not designate a particular placement for a child in the department’s
legal custody.
                            Subchapter 4. Probation
§ 5261. POWERS AND RESPONSIBILITIES OF THE COMMISSIONER
REGARDING JUVENILE PROBATION
   The commissioner shall be charged with the following powers and
responsibilities regarding the administration of juvenile probation:
      (1) To maintain supervision of juveniles placed on probation.
      (2) To supervise the administration of juvenile probation services,
including the authority to enter into contracts with community-based agencies
to provide probation services which may include restitution and community
service programs and to establish policies and standards and adopt rules
regarding juvenile probation investigation, supervision, casework and
caseloads, record-keeping, and the qualification of juvenile probation officers.
      (3) To prescribe rules, consistent with any orders of the court, governing
the conduct of juveniles on probation.
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§ 5262. CONDITIONS OF PROBATION
   (a) The conditions of probation shall be such as the court in its discretion
deems necessary to ensure to the greatest extent reasonably possible that the
juvenile will be provided a program of treatment, training, and rehabilitation
consistent with the protection of the public interest. The court shall provide as
an explicit condition of every juvenile probation certificate that if the juvenile
is adjudicated a delinquent or is convicted of an adult crime while on
probation, then the court may find the juvenile in violation of the conditions of
probation.
   (b) The court may, as a condition of probation, require that the juvenile:
      (1) Work faithfully for a prescribed number of hours at a community
service activity acceptable to the court or, if so ordered by the court, at a
community service activity acceptable to a probation officer.
       (2) Make restitution or reparation to the victim of the juvenile’s conduct
for the damage or injury which was sustained. When restitution or reparation is
a condition of probation, the court shall fix the amount thereof. The court shall
further determine the amount the juvenile can or will be able to pay and fix the
manner of performance. In the alternative, the court may refer the
determination of the amount, the ability to pay, and the manner of performance
to a restorative justice panel.
      (3) Participate in programs designed to develop competencies to enable
the child to become a responsible and productive member of the community.
      (4) Refrain from purchasing or possessing a firearm or ammunition, any
destructive device, or any dangerous weapon unless granted written permission
by the court or juvenile probation officer.
      (5) Report to a juvenile probation officer at reasonable times as directed
by the court or the probation officer.
      (6) Permit the juvenile probation officer to visit the juvenile at
reasonable times at home or elsewhere.
      (7) Remain within the jurisdiction of the court unless granted permission
to leave by the court or the probation officer.
     (8) Answer all reasonable inquiries by the juvenile probation officer and
promptly notify the probation officer of any change in address or employment.
      (9) Satisfy any other conditions reasonably related to the juvenile’s
rehabilitation.
       (10) Reside at home or other location specified by the court.
                              FRIDAY, MAY 2, 2008                            1785
      (11) Attend or reside at an educational or vocational facility or a facility
established for the instruction, recreation, or residence of persons on probation.
      (12) Work faithfully at suitable employment or faithfully pursue a
course of study or of vocational training that will equip the juvenile for suitable
employment.
      (13) Undergo available medical treatment, participate in psychiatric
treatment or mental health counseling, and participate in alcohol or drug abuse
assessment or treatment on an outpatient or inpatient basis.
§ 5263. JUVENILE PROBATION CERTIFICATE
   (a) When a juvenile is placed on probation, the court shall issue a written
juvenile probation certificate setting forth:
      (1) the name of the juvenile;
      (2) the nature of the delinquent act committed by the juvenile;
      (3) the date and place of the juvenile delinquency hearing;
      (4) the order of the court placing the juvenile on probation; and
      (5) the conditions of the juvenile’s probation.
   (b) The juvenile probation certificate shall be furnished to and signed by
the juvenile and a custodial parent, guardian or custodian of the child, if other
than parent. It shall be fully explained to them, and they shall be informed
about the consequences of violating the conditions of probation, including the
possibility of revocation of probation. A copy of the juvenile probation
certificate shall also be furnished to the commissioner. The probation
certificate is not invalidated if it is not signed as required by this subsection.
   (c) The signature of a custodial parent, guardian, or custodian on a
probation certificate shall constitute verification that the parent, guardian, or
custodian understands the terms of juvenile probation and agrees to facilitate
and support the child’s compliance with such terms and to attend treatment
programs with the child as recommended by the treatment provider.
   (d) The juvenile probation certificate shall be full authority for the exercise
by the commissioner of all the rights and powers over and in relation to the
juvenile prescribed by law and by the order of the court.
§ 5264. MODIFICATION OF CONDITIONS
   (a) During the period of probation, the court, on application of a juvenile
probation officer, the state’s attorney, the juvenile, or on its own motion may
modify the requirements imposed upon the juvenile or add further
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requirements authorized by section 5262 of this title. A juvenile may request
modification of a restitution issue determined by a restorative panel.
   (b) Whenever the court proposes any modification of the conditions of
probation, the juvenile probationer shall have a reasonable opportunity to
contest the modification prior to its imposition.
§ 5265. VIOLATION OF CONDITIONS OF PROBATION
    (a) If the juvenile fails to comply with conditions of probation, the state’s
attorney, a juvenile probation officer, or the court on its own motion may
initiate a proceeding to establish that the juvenile is in violation of probation
conditions.
   (b) A juvenile probationer shall not be found in violation of conditions of
probation unless the juvenile probationer is found to have violated a condition
of probation, is again adjudicated a delinquent, or is convicted of a crime.
§ 5266. SUMMONS, APPREHENSION, AND DETENTION OF JUVENILE
PROBATIONER
   At any time before the discharge of a juvenile probationer or the
termination of the period of probation:
      (1) The court may summon the juvenile to appear before it or may issue
an order for the juvenile’s detention.
      (2) Any juvenile probation officer may detain a juvenile probationer or
may authorize any officer to do so by giving the officer a written statement
setting forth that the juvenile has, in the judgment of the juvenile probation
officer, violated a condition of probation. The written statement delivered with
the juvenile by the detaining officer to the supervisor of the juvenile facility or
residential program to which the juvenile is brought for detention shall be
sufficient authority for detaining the juvenile.
      (3) Any juvenile probationer apprehended or detained in accordance
with the provisions of this chapter shall have no right of action against the
juvenile probation officer or any other person because of such apprehension or
detention.
§ 5267. DETENTION HEARING
   (a) Whenever a juvenile probationer is detained on the grounds that the
juvenile has violated a condition of probation, the juvenile shall be given a
hearing before a judicial officer prior to the close of business on the next court
business day in order to determine whether there is probable cause to hold the
juvenile for a violation hearing. The juvenile and the adult who signed the
probation certificate shall be given:
                             FRIDAY, MAY 2, 2008                           1787
      (1) notice of the detention hearing and its purpose and the allegations of
violations of conditions of probation; and
      (2) notice of the juvenile’s right to be represented by counsel and right
to be assigned counsel if the juvenile is unable to obtain counsel.
   (b) At the detention hearing the juvenile shall be given:
      (1) an opportunity to appear at the hearing and present evidence on his
or her own behalf; and
      (2) upon request, the opportunity to question witnesses against him or
her unless, for good cause, the judicial officer decides that justice does not
require the appearance of the witness.
   (c) If probable cause is found to exist, the juvenile shall be held for a
hearing to determine if the juvenile violated the conditions of probation. If
probable cause is not found to exist, the proceedings shall be dismissed.
   (d) A juvenile held in detention pursuant to a request to find the juvenile in
violation of probation may be released by a judicial officer pending hearing or
appeal.
§ 5268. NOTICE; VIOLATION HEARING
   (a) The court shall not find a juvenile in violation of the juvenile’s
probation without a hearing, which shall be held promptly in the court in which
the probation was imposed. If the juvenile is held in detention prior to the
hearing, the hearing shall take place at the earliest possible time. Prior to the
hearing, the juvenile and the adult who signed the probation certificate shall
receive a written notice of the hearing at his or her last known address stating
that the juvenile has allegedly violated one or more conditions of probation and
which condition or conditions have been violated. At the hearing, the juvenile
shall have:
      (1) The right to legal counsel if requested by the juvenile probationer or
the adult who signed the probation certificate to be assigned by the court in the
same manner as in criminal cases.
      (2) The right to disclosure of evidence against the juvenile.
      (3) The opportunity to appear and to present evidence on the juvenile’s
behalf.
      (4) The opportunity to question witnesses against the juvenile.
   (b) The state’s attorney having jurisdiction or the commissioner shall
establish the alleged violation by a preponderance of the evidence, if the
juvenile probationer contests the allegation.
1788                      JOURNAL OF THE SENATE
§ 5269.  DISPOSITION ALTERNATIVES UPON VIOLATION OF
CONDITIONS OF PROBATION
   If a violation of conditions of probation is established, the court may, in its
discretion, modify the conditions of probation or order any of the disposition
alternatives provided for in section 5232 of this title.
§ 5270. FINAL JUDGMENT
   An order placing a juvenile on probation and a finding that a juvenile
violated a condition of probation shall constitute a final judgment.
§ 5271. DISCHARGE FROM PROBATION
   (a) The court placing a juvenile on probation may terminate probation and
discharge the juvenile at any time.
   (b) Upon the termination of the period of probation, the juvenile
probationer shall be discharged from probation.
§ 5272. JUVENILE JUSTICE UNIT; JUVENILE JUSTICE DIRECTOR
   (a) A juvenile justice unit is created in the family services division of the
department. The unit shall be headed by a juvenile justice director.
   (b) The juvenile justice director shall have the responsibility and authority
to monitor and coordinate all state and participating regional and local
programs that deal with juvenile justice issues, including prevention,
education, enforcement, adjudication, and rehabilitation.
   (c) The juvenile justice director shall ensure that the following occur:
      (1) Development of a comprehensive plan for a coordinated and
sustained statewide program to reduce the number of juvenile offenders,
involving state, regional, and local officials in the areas of health, education,
prevention, law enforcement, corrections, teen activities, and community
wellness.
      (2) Cooperation among state, regional, and local officials, court
personnel, service providers, and law enforcement agencies in the formulation
and execution of a coordinated statewide juvenile justice program.
       (3)    Cooperation among appropriate departments, including the
department and the departments of education, corrections, employment and
training, developmental and mental health services, and public safety, and the
office of alcohol and drug abuse programs.
     (4) A study of issues relating to juvenile justice and development of
recommendations regarding changes in law and rules, as deemed advisable.
                             FRIDAY, MAY 2, 2008                           1789
      (5) Compilation of data on issues relating to juvenile justice and
analysis, study, and organization of such data for use by educators, researchers,
policy advocates, administrators, legislators, and the governor.
                      Subchapter 5. Youthful Offenders
§ 5281. MOTION IN DISTRICT COURT
   (a) A motion may be filed in the district court requesting that a defendant
under 18 years of age in a criminal proceeding who had attained the age of 10
but not the age of 18 at the time the offense is alleged to have been committed
be treated as a youthful offender. The motion may be filed by the state’s
attorney, the defendant, or the court on its own motion.
   (b) Upon the filing of a motion under this section and the entering of a
conditional plea of guilty by the youth, the district court shall enter an order
deferring the sentence and transferring the case to the family court for a
hearing on the motion. Copies of all records relating to the case shall be
forwarded to the family court. Conditions of release and any department of
corrections supervision or custody shall remain in effect until the family court
approves the motion for treatment as a youthful offender and orders conditions
of juvenile probation pursuant to section 5284 of this title.
   (c) A plea of guilty entered by the youth pursuant to subsection (b) of this
section shall be conditional upon the family court granting the motion for
youthful offender status.
   (d)(1) If the family court denies the motion for youthful offender treatment
pursuant to subsection 5284 of this title, the case shall be returned to the
district court and the youth shall be permitted to withdraw the plea. The
conditions of release imposed by the district court shall remain in effect, and
the case shall proceed as though the motion for youthful offender treatment
had not been made.
     (2) Subject to Rule 11 of the Vermont Rules of Criminal Procedure and
Rule 410 of the Vermont Rules of Evidence, the family court’s denial of the
motion for youthful offender treatment and any information related to the
youthful offender proceeding shall be inadmissible against the youth for any
purpose in the subsequent criminal proceeding in district court.
§ 5282. REPORT FROM THE DEPARTMENT
   (a) Within 30 days after the case is transferred to family court, unless the
court extends the period for good cause shown, the department shall file a
report with the family court.
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   (b) A report filed pursuant to this section shall include the following
elements:
     (1) A recommendation as to whether youthful offender status is
appropriate for the youth.
      (2) A disposition case plan including proposed services and proposed
conditions of juvenile probation in the event youthful offender status is
approved.
     (3) A description of the services that may be available for the youth
when he or she reaches 18 years of age.
   (c) A report filed pursuant to this section is privileged and shall not be
disclosed to any person other than the department, the court, the state’s
attorney, the youth, the youth’s attorney, the youth’s guardian ad litem, the
department of corrections, or any other person when the court determines that
the best interests of the youth would make such a disclosure desirable or
helpful.
§ 5283. HEARING IN FAMILY COURT
   (a) Timeline. A hearing on the motion for youthful offender status shall be
held no later than 35 days after the transfer of the case from district court.
   (b) Notice. Notice of the hearing shall be provided to the state’s attorney;
the youth; the youth’s parent, guardian, or custodian; the department; and the
department of corrections.
   (c) Hearing procedure.
      (1) If the motion is contested, all parties shall have the right to present
evidence and examine witnesses. Hearsay may be admitted and may be relied
on to the extent of its probative value. If reports are admitted, the parties shall
be afforded an opportunity to examine those persons making the reports, but
sources of confidential information need not be disclosed.
      (2) Hearings under subsection 5284(a) of this title shall be open to the
public. All other youthful offender proceedings shall be confidential.
   (d) The burden of proof shall be on the moving party to prove by a
preponderance of the evidence that a child should be granted youthful offender
status. If the court makes the motion, the burden shall be on the youth.
   (e) Further hearing. On its own motion or the motion of a party, the court
may schedule a further hearing to obtain reports or other information necessary
for the appropriate disposition of the case.
                             FRIDAY, MAY 2, 2008                            1791
§ 5284. DETERMINATION AND ORDER
    (a) In a hearing on a motion for youthful offender status, the court shall
first consider whether public safety will be protected by treating the youth as a
youthful offender. If the court finds that public safety will not be protected by
treating the youth as a youthful offender, the court shall deny the motion and
return the case to district court pursuant to subsection 5281(d) of this title. If
the court finds that public safety will be protected by treating the youth as a
youthful offender, the court shall proceed to make a determination under
subsection (b) of this section.
   (b)(1) The court shall deny the motion if the court finds that:
         (A) the youth is not amenable to treatment or rehabilitation as a
youthful offender; or
        (B) there are insufficient services in the juvenile court system and the
department to meet the youth’s treatment and rehabilitation needs.
      (2) The court shall grant the motion if the court finds that:
         (A) the youth is amenable to treatment or rehabilitation as a youthful
offender; and
        (B) there are sufficient services in the juvenile court system and the
department to meet the youth’s treatment and rehabilitation needs.
   (c) If the court approves the motion for youthful offender treatment, the
court:
      (1) shall approve a disposition case plan and impose conditions of
juvenile probation on the youth; and
      (2) may transfer legal custody of the youth to a parent, relative, person
with a significant relationship with the youth, or commissioner, provided that
any transfer of custody shall expire on the youth’s eighteenth birthday.
   (d) The department shall be responsible for supervision of and providing
services to the youth until he or she reaches the age of 18. A lead case
manager shall be designated who shall have final decision-making authority
over the case plan and the provision of services to the youth. The youth shall
be eligible for appropriate community-based programming and services
provided by the department.
   (e) The youth shall not be permitted to withdraw his or her plea of guilty
after youthful offender status is approved except to correct manifest injustice
pursuant to rule 32(d) of the Vermont Rules of Criminal Procedure.
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§ 5285. MODIFICATION OR REVOCATION OF DISPOSITION
   (a) If it appears that the youth has violated the terms of juvenile probation
ordered by the court pursuant to subdivision 5284(c)(1) of this title, a motion
for modification or revocation of youthful offender status may be filed in
family court. The court shall set the motion for hearing as soon as practicable.
The hearing may be joined with a hearing on a violation of conditions of
probation under section 5265 of this title. A supervising juvenile or adult
probation officer may detain in an adult facility a youthful offender who has
attained the age of 18 for violating conditions of probation.
  (b) A hearing under this section shall be held in accordance with section
5268 of this title.
   (c) If the court finds after the hearing that the youth has violated the terms
of his or her probation, the court may:
      (1) maintain the youth’s status as a youthful offender, with modified
conditions of juvenile probation if the court deems it appropriate;
      (2) revoke the youth’s status as a youthful offender status and return the
case to the district court for sentencing; or
       (3) transfer supervision of the youth to the department of corrections.
   (d) If a youth’s status as a youthful offender is revoked and the case is
returned to the district court under subdivision (c)(2) of this section, the district
court shall hold a sentencing hearing and impose sentence. When determining
an appropriate sentence, the district court may take into consideration the
youth’s degree of progress toward rehabilitation while on youthful offender
status. The district court shall have access to all family court records of the
proceeding.
§ 5286. REVIEW PRIOR TO THE AGE OF 18
   (a) The family court shall review the youth’s case before he or she reaches
the age of 18 and set a hearing to determine whether the court’s jurisdiction
over the youth should be continued past the age of 18. The hearing may be
joined with a motion to terminate youthful offender status under section 5285
of this title. The court shall provide notice and an opportunity to be heard at
the hearing to the state’s attorney, the youth, the department, and the
department of corrections.
    (b) After receiving a notice of review under this section, the state may file a
motion to modify or revoke pursuant to section 5285 of this title. If such a
motion is filed, it shall be consolidated with the review under this section and
all options provided for under section 5285 of this title shall be available to the
court.
                              FRIDAY, MAY 2, 2008                             1793
   (c) The following reports shall be filed with the court prior to the hearing:
       (1) The department shall report its recommendations, with supporting
justifications, as to whether the family court should continue jurisdiction over
the youth past the age of 18 and, if continued jurisdiction is recommended,
whether the department or the department of corrections should                be
responsible for supervision of the youth.
      (2) If the department recommends that the department of corrections be
responsible for supervision of the youthful offender past the age of 18, the
department shall notify the department of corrections, which shall report on the
services which would be available for the youth in the event supervision over
him or her is transferred to the department of corrections.
   (d) If the court finds that it is in the best interest of the youth and consistent
with community safety to continue the case past the age of 18, it shall make an
order continuing the court’s jurisdiction up to the age of 22. The order shall
specify whether the youth will be supervised by the department or the
department of corrections. Irrespective of which department is specified in the
order, the department and the department of corrections shall jointly develop a
case plan for the youth and coordinate services and share information to ensure
compliance with and completion of the juvenile disposition.
   (e) If the court finds that it is not in the best interest of the youth to
continue the case past the age of 18, it shall terminate the disposition order,
discharge the youth, and dismiss the case in accordance with subsection
5287(c) of this title.
§ 5287. TERMINATION OR CONTINUANCE OF PROBATION
   (a) A motion may be filed at any time in the family court requesting that
the court terminate the youth’s status as a youthful offender and discharge him
or her from probation. The motion may be filed by the state’s attorney, the
youth, the department, or the court on its own motion. The court shall set the
motion for hearing and provide notice and an opportunity to be heard at the
hearing to the state’s attorney, the youth, and the department.
   (b) In determining whether a youth has successfully completed the terms of
probation, the court shall consider:
      (1) the degree to which the youth fulfilled the terms of the case plan and
the probation order;
      (2) the youth’s performance during treatment;
      (3) reports of treatment personnel; and
      (4) any other relevant facts associated with the youth’s behavior.
1794                       JOURNAL OF THE SENATE
   (c) If the court finds that the youth has successfully completed the terms of
the probation order, it shall terminate youthful offender status, discharge the
youth from probation, and file a written order dismissing the family court case.
The family court shall provide notice of the dismissal to the district court,
which shall dismiss the district court case.
   (d) Upon discharge and dismissal under subsection (c) of this section, all
records relating to the case in the district court shall be expunged, and all
records relating to the case in the family court shall be sealed pursuant to
section 5119 of this title.
   (e) If the court denies the motion to discharge the youth from probation, the
court may extend or amend the probation order as it deems necessary.
§ 5288.  RIGHTS            OF    VICTIMS      IN    YOUTHFUL        OFFENDER
PROCEEDINGS
   (a) The victim in a proceeding involving a youthful offender shall have the
following rights:
      (1) To be notified by the prosecutor in a timely manner when a court
proceeding is scheduled to take place and when a court proceeding to which he
or she has been notified will not take place as scheduled.
      (2) To be present during all court proceedings subject to the provisions
of Rule 615 of the Vermont Rules of Evidence and to express reasonably his or
her views concerning the offense and the youth.
      (3) To request notification by the agency having custody of the youth
before the youth is released from a residential facility.
        (4) To be notified by the prosecutor as to the final disposition of the
case.
      (5) To be notified by the prosecutor of the victim’s rights under this
section.
   (b) In accordance with court rules, at a hearing on a motion for youthful
offender treatment, the court shall ask if the victim is present and, if so,
whether the victim would like to be heard regarding disposition. In ordering
disposition, the court shall consider any views offered at the hearing by the
victim. If the victim is not present, the court shall ask whether the victim has
expressed, either orally or in writing, views regarding disposition and shall
take those views into consideration in ordering disposition.
   (c) No youthful offender proceeding shall be delayed or voided by reason
of the failure to give the victim the required notice or the failure of the victim
to appear.
                             FRIDAY, MAY 2, 2008                            1795
   (d) For purposes of this section “victim” shall have the same meaning as in
subdivision 5301(4) of Title 13.
            Subchapter 6. Placement of Minors in Secure Facilities
§ 5291. DETENTION OF MINORS CHARGED AS DELINQUENTS IN A
SECURE FACILITY FOR THE DETENTION OF DELINQUENT
CHILDREN
   (a) Unless ordered otherwise at or after a temporary care hearing, the
commissioner shall have sole authority to place the child who is in the custody
of the department in a secure facility for the detention of minors.
   (b) Upon a finding at the temporary care hearing that no other suitable
placement is available and the child presents a risk of injury to him- or herself,
to others, or to property, the court may order that the child be placed in a
secure facility used for the detention of delinquent children until the
commissioner determines that a suitable placement is available for the child.
Alternatively, the court may order that the child be placed in a secure facility
used for the detention of delinquent children for up to seven days. Any order
for placement at a secure facility shall expire at the end of the seventh day
following its issuance unless, after hearing, the court extends the order for a
time period not to exceed seven days.
§ 5292. DETENTION IN ADULT FACILITIES OF MINORS CHARGED
OR ADJUDICATED AS DELINQUENTS
   (a) A minor charged with a delinquent act shall not be detained under this
chapter in a jail or other facility intended or used for the detention of adults
unless the child is alleged to have committed a crime punishable by life
imprisonment and it appears to the satisfaction of the court that public safety
and protection reasonably require such detention.
   (b) A minor who has been adjudicated as a delinquent child shall not by
virtue of such adjudication be committed or transferred to an institution or
other facility used primarily for the execution of sentences of persons
convicted of a crime.
   (c) The official in charge of a jail or other facility intended or used for the
detention of adult offenders or persons charged with crime shall inform the
court immediately when a minor who is or appears to be under the age of 18
years is received at the facility other than pursuant to subsection (a) of this
section or section 5293 of this title and shall deliver the minor to the court
upon request of the court or transfer the minor to the detention facility
designated by the court by order.
1796                         JOURNAL OF THE SENATE
§ 5293. DISPOSITION OF MINORS ADJUDICATED AS ADULT
OFFENDERS; SEPARATION OF PERSONS UNDER 18 YEARS FROM
ADULTS
   (a) Pretrial detention.
       (1) A minor who is under the age of 18 who has been arrested shall not
be placed in a facility for adult offenders unless a felony charge has been filed
in district court or the district court has exercised jurisdiction over the matter
and the state’s attorney has determined that a felony charge will be filed
without delay. A minor who is eligible for release under chapter 229 of
Title 13 shall be released.
     (2)(A) A minor who is under the age of 18 who has been arrested for a
misdemeanor shall immediately and without first being taken elsewhere:
            (i)   be released to his or her custodial parent, guardian, or
custodian; or
            (ii) be delivered to the district court.
          (B) If the minor is delivered to the district court, the arresting officer
shall immediately file written notice thereof with the court together with a
statement of the reason for taking the minor into custody. A minor who is
eligible for release under chapter 229 of Title 13 shall be released. In the event
that the minor is not released:
            (i) the minor shall not be detained in a facility for adult offenders;
and
           (ii) The court shall defer to the commissioner of corrections
concerning the facility in which the minor shall be detained.
   (b) Sentencing of minor. If a minor is convicted of an offense in a court of
criminal jurisdiction as an adult, the court shall sentence the minor as an adult.
   (c) Placement of minors under 16. The commissioner of corrections shall
not place a minor under the age of 16 who has been sentenced to a term of
imprisonment in a correctional facility used to house adult offenders.
   (d) Placement of minors over 16 convicted of felony. The commissioner of
corrections may place in a facility for adult offenders a minor who has attained
the age of 16 but is under the age of 18 who has been convicted of a felony and
who has been sentenced to a term of imprisonment.
   (e) Placement of minor over 16 convicted of misdemeanor. The
commissioner of corrections shall not place in a facility for adult offenders a
minor who has attained the age of 16 but is under the age of 18 who has been
convicted of a misdemeanor
                             FRIDAY, MAY 2, 2008                          1797
   (f) Transfer of minor at 18th birthday. At the 18th birthday of a minor
convicted of a misdemeanor, the commissioner may transfer the minor to a
facility for adult offenders.
  (g) Applicability. The provisions of this section shall apply to the
commitment of minors to institutions within or outside the state of Vermont.
Sec. 3. 33 V.S.A. chapter 53 is added to read:
          CHAPTER 53. CHILDREN IN NEED OF CARE
                          OR SUPERVISION
§ 5301. TAKING INTO CUSTODY
   A child may be taken into custody:
      (1) Pursuant to an order of the family court under the provisions of this
chapter.
      (2) By an officer when the officer has reasonable grounds to believe that
the child is in immediate danger from his or her surroundings and that removal
from the child’s current home is necessary for the child’s protection.
      (3) By an officer when the officer has reasonable grounds to believe that
the child has run away from a custodial parent, a foster parent, a guardian, a
custodian, a noncustodial parent lawfully exercising parent-child contact, or
care provider.
§ 5302. REQUEST FOR EMERGENCY CARE ORDER
   (a) If an officer takes a child into custody pursuant to subdivision 5301(1)
or (2) of this title, the officer shall immediately notify the child’s custodial
parent, guardian, or custodian and release the child to the care of the child’s
custodial parent, guardian, or custodian unless the officer determines that the
child’s immediate welfare requires the child’s continued absence from the
home.
   (b) If the officer determines that the child’s immediate welfare requires the
child’s continued absence from the home, the officer shall:
      (1) Remove the child from the child’s surroundings, contact the
department, and deliver the child to a location designated by the department.
The department shall have the authority to make reasonable decisions
concerning the child’s immediate placement, safety and welfare pending the
issuance of an emergency care order.
      (2) Prepare an affidavit in support of a request for an emergency care
order and provide the affidavit to the state’s attorney. The affidavit shall
1798                      JOURNAL OF THE SENATE
include: the reasons for taking the child into custody; and to the degree
known, potential placements with which the child is familiar; the names,
addresses, and telephone number of the child’s parents, guardian, custodian, or
care provider; the name, address, and telephone number of any relative who
has indicated an interest in taking temporary custody of the child. The officer
shall contact the department and the department may prepare an affidavit as a
supplement to the affidavit of the law enforcement officer if the department
has additional information with respect to the child or the family.
   (c) If the child is taken into custody during regular court hours, the state’s
attorney shall immediately file a request for an emergency care order
accompanied by the supporting affidavit or direct the immediate return of the
child to the child’s custodial parent, guardian, or custodian. If the child is
taken into custody after regular court hours or on a weekend or holiday, the
state’s attorney or officer shall contact a judge to request an emergency care
order or return the child to the child’s custodial parent, guardian, or custodian.
If an order is granted, the state’s attorney shall file the supporting affidavit
with the court on the next day that the court is open.
   (d) If the judge denies a request for an emergency care order, the state’s
attorney shall direct the immediate return of the child to the child’s custodial
parent, guardian, or custodian.
§ 5303. PROCEDURE FOR RUNAWAY CHILDREN
   (a) If an officer takes a child into custody pursuant to subdivision 5301(3)
of this title, the officer shall deliver the child to:
     (1) the child’s custodial parent, foster parent, guardian, custodian, or
noncustodial parent lawfully exercising parent-child contact; or
       (2) a shelter designated by the department pursuant to section 5304 of
this title as qualified to assist children who have run away for the purpose of
reuniting them with their parents, guardian, or legal custodian.
   (b) Upon delivery of a child to a shelter, the shelter program director or his
or her designee, shall notify the child’s parents, guardian, or custodian that the
child has been taken into custody and make reasonable efforts to mediate the
differences between the parties.
   (c) A child may remain at a designated shelter for a period not to exceed
seven days.
   (d) Upon expiration of the seven-day period or sooner at the request of the
child or the custodial parent:
                            FRIDAY, MAY 2, 2008                           1799
      (1) the child shall be released to his or her custodial parent, foster
parent, guardian, custodian, or noncustodial parent lawfully exercising parent-
child contact; or
     (2) an officer shall seek an emergency care order pursuant to section
5302 of this title.
   (e) Unless otherwise ordered by the court, the custody status of the child
shall remain the same during the period of time the child is at the shelter.
§ 5304. DESIGNATED SHELTERS FOR RUNAWAY CHILDREN
   The commissioner shall designate shelters throughout the state where a
child taken into custody pursuant to subdivision 5301(3) of this title may be
housed for a period not to exceed seven days.
§ 5305.     EMERGENCY CARE ORDER; CONDITIONAL CUSTODY
ORDER
   (a) Transfer of temporary custody. If the court determines that the child’s
continued residence in the home is contrary to the child’s welfare, the court
may issue an emergency care order transferring temporary custody of the child
to the department pending a temporary care hearing. The determination may
be made ex parte, provided that it is reasonably supported by the affidavit
prepared in accordance with section 5302 of this title.
   (b) Contents of emergency care order. The emergency care order shall
contain:
      (1) a written finding that the child’s continued residence in the home is
contrary to the child’s welfare and the factual allegations that support that
finding;
     (2) the date, hour, and place of the temporary care hearing to be held
pursuant to section 5307 of this title; and
     (3) notice of a parent’s right to counsel at the temporary care hearing.
   (c) Conditional custody order. If the court determines that the child may
safely remain in the custody of the custodial parent, guardian, or custodian
subject to such conditions and limitations necessary and sufficient to protect
the child pending a temporary care hearing, the court may deny the request for
an emergency care order and issue an emergency conditional custody order.
An emergency conditional custody order shall contain the date, hour, and place
of the temporary care hearing and notice of a parent’s right to counsel at the
hearing.
1800                       JOURNAL OF THE SENATE
§ 5306. NOTICE OF EMERGENCY CARE ORDER AND TEMPORARY
CARE HEARING
   (a) Notice to custodial parent. An officer shall deliver a copy of the
emergency care order or conditional custody order to the custodial parent,
guardian, or custodian of the child. If delivery cannot be made in a timely
manner, the officer shall otherwise notify or cause to be notified the custodial
parent of the order, the date, the time and place of the temporary care hearing,
and the parent’s right to counsel. If the custodial parent, guardian, or custodian
cannot be located, the officer shall so certify to the court in an affidavit
describing the efforts made to locate such persons.
   (b) Notice to noncustodial parent. The department shall make reasonable
efforts to locate any noncustodial parent and provide the noncustodial parent
with the emergency care order or conditional custody order, notice of the date,
hour, and place of the temporary care hearing, and right to counsel. If the
noncustodial parent cannot be located, the department shall provide to the
court a summary of the efforts made to locate the parent.
   (c) Failure to locate. The hearing shall not be delayed by reason of not
being able to locate either the custodial or noncustodial parent.
   (d) Notice to other parties. The court shall notify the following persons of
the date and time of the temporary care hearing:
       (1) The state’s attorney.
       (2) A representative of the department.
       (3) An attorney to represent the child.
       (4) A guardian ad litem for the child.
      (5) An attorney to represent each parent. The attorney may be court-
appointed in the event the parent is eligible, or may be an attorney who has
entered an appearance on behalf of a parent.
§ 5307. TEMPORARY CARE HEARING
   (a) A temporary care hearing shall be held within 72 hours of the issuance
of an emergency care order or conditional custody order under section 5305 of
this title. State holidays shall be excluded from the computation of 72 hours.
If the custodial parent, guardian, or custodian has not been notified in
accordance with section 5306 of this title and does not appear or waive
appearance at the temporary care hearing and files thereafter with the court an
affidavit so showing, the court shall hold another temporary care hearing
within one business day of the filing of the affidavit as if no temporary care
hearing had theretofore been held.
                              FRIDAY, MAY 2, 2008                            1801
    (b) If the state’s attorney is seeking a temporary care order, he or she shall
file a petition in accordance with section 5308 of this title prior to the
temporary care hearing. If the state’s attorney elects not to file a petition, he or
she shall so notify the court, and the court shall vacate any temporary order
order and order the return of the child to the custodial parent, guardian, or
custodian.
   (c) The following persons shall be present at the temporary care hearing:
      (1) The child, unless the child is under 10 years of age and the presence
of the child is waived by the child’s attorney. For good cause shown, the court
may waive the presence of a child who is 10 years of age or older.
      (2) The child’s custodial parent, guardian, or custodian, unless the
custodial parent, guardian, or custodian cannot be located or fails to appear in
response to notice.
      (3) The child’s guardian ad litem.
      (4) An attorney for the child.
      (5) An attorney for the custodial parent, if requested.
      (6) The department.
      (7) The state’s attorney.
   (d) A noncustodial parent and his or her attorney shall have the right to be
present at the hearing; however, the hearing shall not be delayed by reason of
the inability of the department to locate the noncustodial parent.
   (e) The department shall provide the following information to the court at
the hearing:
      (1) Any reasons for the child’s removal which are not set forth in the
affidavit required pursuant to subsection 5302(b) of this title.
     (2) Services, if any, provided to the child and the family in an effort to
prevent removal.
      (3) The need, if any, for continued custody of the child with the
department, pending a hearing to adjudicate the merits of the petition.
      (4) Services which could facilitate the return of the child to the custodial
parent, guardian, or custodian.
      (5)(A) The identity and location of a noncustodial parent, a relative, or
person with a significant relationship with the child known to the department
who may be appropriate, capable, willing, and available to assume temporary
legal custody of the child. If the noncustodial parent cannot be located, the
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department shall provide to the court a summary of the efforts made to locate
the parent.
          (B) With respect to any person whom the department identifies
pursuant to this subdivision, the department shall conduct an assessment of the
suitability of the person to care for the child. The assessment shall include
consideration of the person’s ability to care for the child’s needs, a criminal
history record as defined in 20 V.S.A. § 2056a(a)(1) in accordance with
subdivision (5)(C) of this subsection, and a check of allegations of prior child
abuse or neglect by the person or by other adults in the person’s home. The
court may continue the hearing if necessary to permit the department to
complete the assessment.
   (C) The department shall request from the Vermont criminal information
center criminal history record information for any person being considered to
assume temporary legal custody of the child pursuant to this subdivision. The
request shall be in writing and shall be accompanied by a release signed by the
person. The department through the Vermont criminal information center shall
request criminal history record information from the appropriate state criminal
repositories in all states in which it has reason to believe the person has resided
or been employed. If no disqualifying record is identified at the state level, the
department through the Vermont criminal information center shall request
from the Federal Bureau of Investigation a national criminal history record
check of the person's criminal history. The request to the FBI shall be
accompanied by a set of the person's fingerprints and a fee established by the
Vermont criminal information center. The Vermont criminal information
center shall send the department the criminal history record from any state
repository and the FBI of a person about whom a request is made under this
subdivision or inform the department that no record exists. The department
shall promptly provide a copy of the criminal history record, if any, to the
person and shall inform the person that he or she has the right to appeal the
accuracy and completeness of the record through the Vermont criminal
information center. Upon completion of the process under this subdivision, the
person's fingerprint card shall be destroyed.
      (6) Additional information as required by the Uniform Child Custody
Jurisdiction Act pursuant to 15 V.S.A. § 1037 and the Indian Child Welfare
Act pursuant to 25 U.S.C. § 1901 et seq.
    (f) All parties shall have the right to present evidence on their own behalf
and examine witnesses. Hearsay, to the extent it is deemed relevant and
reliable by the court, shall be admissible. The court may, in its discretion, limit
testimony and evidence to only that which goes to the issues of removal of the
child from the home and the child’s temporary legal custody.
                             FRIDAY, MAY 2, 2008                          1803
   (g) The temporary care hearing shall also be a preliminary hearing on the
petition.
§ 5308. TEMPORARY CARE ORDER
   (a) The court shall order that legal custody be returned to the child’s
custodial parent, guardian, or custodian unless the court finds by a
preponderance of the evidence that a return home would be contrary to the
child’s welfare because any one of the following exists:
      (1) A return of legal custody could result in substantial danger to the
physical health, mental health, welfare, or safety of the child.
      (2) The child or another child residing in the same household has been
physically or sexually abused by a custodial parent, guardian, or custodian, or
by a member of the child’s household, or another person known to the
custodial parent, guardian, or custodian.
      (3) The child or another child residing in the same household is at
substantial risk of physical or sexual abuse by a custodial parent, guardian, or
custodian, or by a member of the child’s household, or another person known
to the custodial parent, guardian, or custodian. It shall constitute prima facie
evidence that a child is at substantial risk of being physically or sexually
abused if:
          (A) a custodial parent, guardian, or custodian receives actual notice
that a person has committed or is alleged to have committed physical or sexual
abuse against a child; and
         (B) a custodial parent, guardian, or custodian knowingly or recklessly
allows the child to be in the physical presence of the alleged abuser after
receiving such notice.
      (4) The custodial parent, guardian, or guardian has abandoned the child.
       (5) The child or another child in the same household has been neglected
and there is substantial risk of harm to the child who is the subject of the
petition.
   (b) Upon a finding that any of the conditions set forth in subsection (a) of
this section exists, the court may issue such temporary orders related to the
legal custody of the child as it deems necessary and sufficient to protect the
welfare and safety of the child, including, in order of preference:
      (1) A conditional custody order returning legal custody of the child to
the custodial parent, guardian, or custodian, subject to such conditions and
limitations as the court may deem necessary and sufficient to protect the child.
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      (2)(A) An order transferring temporary legal custody to a noncustodial
parent. Provided that parentage is not contested, upon a request by a
noncustodial parent for temporary legal custody and a personal appearance of
the noncustodial parent, the noncustodial parent shall present to the court a
care plan that describes the history of the noncustodial parent’s contact with
the child, including any reasons why contact did not occur, and that addresses:
               (i) the child’s need for a safe, secure, and stable home;
               (ii) the child’s need for proper and effective care and control;
and
               (iii) the child’s need for a continuing relationship with the
custodial parent, if appropriate.
        (B) The court shall consider court orders and findings from other
proceedings related to the custody of the child.
         (C) The court shall transfer legal custody to the noncustodial parent
unless the court finds by a preponderance of the evidence that the transfer
would be contrary to the child’s welfare because any of the following exists:
             (i) The care plan fails to meet the criteria set forth in subdivision
(2)(A) of this subsection.
            (ii) Transferring temporary legal custody of the child to the
noncustodial parent could result in substantial danger to the physical health,
mental health, welfare, or safety of the child.
            (iii) The child or another child residing in the same household as
the noncustodial parent has been physically or sexually abused by the
noncustodial parent or a member of the noncustodial parent’s household, or
another person known to the noncustodial parent.
            (iv) The child or another child residing in the same household as
the noncustodial parent is at substantial risk of physical or sexual abuse by the
noncustodial parent or a member of the noncustodial parent’s household, or
another person known to the noncustodial parent. It shall constitute prima
facie evidence that a child is at substantial risk of being physically or sexually
abused if:
              (I) a noncustodial parent receives actual notice that a person
has committed or is alleged to have committed physical or sexual abuse against
a child; and
                (II) the noncustodial parent knowingly or recklessly allows the
child to be in the physical presence of the alleged abuser after receiving such
notice.
                              FRIDAY, MAY 2, 2008                            1805
            (v) The child or another child in the noncustodial parent’s
household has been neglected, and there is substantial risk of harm to the child
who is the subject of the petition.
         (D) If the noncustodial parent’s request for temporary custody is
contested, the court may continue the hearing and place the child in the
temporary custody of the department, pending further hearing and resolution of
the custody issue. Absent good cause shown, the court shall hold a further
hearing on the issue within 30 days.
       (3) An order transferring temporary legal custody of the child to a
relative, provided:
         (A) The relative seeking legal custody is a grandparent,
great-grandparent, aunt, great-aunt, uncle, great-uncle, stepparent, sibling, or
step-sibling of the child.
          (B) The relative is suitable to care for the child. In determining
suitability, the court shall consider the relationship of the child and the relative
and the relative’s ability to:
            (i) Provide a safe, secure, and stable environment.
            (ii) Exercise proper and effective care and control of the child.
           (iii) Protect the child from the custodial parent to the degree the
court deems such protection necessary.
            (iv) Support reunification efforts, if any, with the custodial parent.
            (v) Consider providing legal permanence if reunification fails.
          (C) In considering the suitability of a relative under this subdivision
(3), the court may order the department to conduct an investigation and file a
written report of its findings with the court. The court may place the child in
the temporary custody of the department, pending such investigation.
      (4) A temporary care order transferring temporary legal custody of the
child to a relative who is not listed in subdivision (3)(A) of this subsection or a
person with a significant relationship with the child, provided that the criteria
in subdivision (3)(B) of this subsection are met. The court may make such
orders as provided in subdivision (3)(C) of this subsection to determine
suitability under this subdivision.
       (5) A temporary care order transferring temporary legal custody of the
child to the commissioner.
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   (c) If the court transfers legal custody of the child, the court shall issue a
written temporary care order.
       (1) The order shall include:
         (A) a finding that remaining in the home is contrary to the child’s
welfare and the facts upon which that finding is based; and
         (B) a finding as to whether reasonable efforts were made to prevent
unnecessary removal of the child from the home. If the court lacks sufficient
evidence to make findings on whether reasonable efforts were made to prevent
the removal of the child from the home, that determination shall be made at the
next scheduled hearing in the case but, in any event, no later than 60 days after
the issuance of the initial order removing a child from the home.
      (2) The order may include other provisions as may be necessary for the
protection and welfare of the child, such as:
         (A)     Establishing parent-child contact under such terms and
conditions as are necessary for the protection of the child.
         (B) Requiring the department to provide the child with services, if
legal custody of the child has been transferred to the commissioner.
        (C) Requiring the department to refer a parent for appropriate
assessments and services, including a consideration of the needs of children
and parents with disabilities, provided that the child’s needs are given primary
consideration.
          (D) Requiring genetic testing if parentage of the child is at issue.
        (E) Requiring the department to make diligent efforts to locate the
noncustodial parent.
        (F) Requiring the custodial parent to provide the department with
names of all potential noncustodial parents and relatives of the child.
         (G) Establishing protective supervision and requiring the department
to make appropriate service referrals for the child and the family, if legal
custody is transferred to an individual other than the commissioner.
     (3) In his or her discretion, the commissioner may provide assistance
and services to children and families to the extent that funds permit,
notwithstanding subdivision (2)(B) of this subsection.
   (d) If a party seeks to modify a temporary care order in order to transfer
legal custody of a child from the commissioner to a relative or a person with a
significant relationship with the child, the relative shall be entitled to
preferential consideration under subdivision (b)(3) of this section, provided
that a disposition order has not been issued and the motion is filed within 90
                              FRIDAY, MAY 2, 2008                            1807
days of the date that legal custody was initially transferred to the
commissioner.
§ 5309. FILING OF A PETITION
   (a) The state’s attorney having jurisdiction shall prepare and file a petition
alleging that a child is in need of care or supervision upon the request of the
commissioner or, in the event the child is truant from school, upon the request
of the superintendent of the school district in which the child is enrolled or
resides. If the state’s attorney fails to file a petition within a reasonable
amount of time, the department or the superintendent of the school district may
request that the attorney general file a petition on behalf of the department.
   (b) If the court has issued an emergency care order placing the child who is
the subject of the petition in the temporary legal custody of the department or
has issued a conditional custody order, the state’s attorney shall file the petition
on or before the date of the temporary care hearing.
    (c) A petition may be withdrawn by the state’s attorney at any time prior to
the hearing thereon, in which event the child shall be returned to the custodial
parent, guardian, or custodian, the proceedings under this chapter terminated,
and all files and documents relating thereto sealed under section 5119 of this
title.
   (d) Upon the request of the secretary of the agency of human services, the
state’s attorney may file a petition pursuant to subsection (a) of this section
alleging that a 16- to 17.5-year-old youth who is not in the custody of the state
is a child in need of care or supervision under subdivision 5102(2)(B)(ii) of
this title when the child meets the criteria set forth in subdivision
5102(2)(B)(ii) of this title. The petition shall be accompanied by a report from
the department which sets forth facts supporting the specific criteria of
subdivision 5102(2)(B)(ii) of this title and that it is in the best interests of the
child to be considered as a child in need of care or supervision.
§ 5310. PETITION, CONTENTS
   (a) The petition shall be supported by an affidavit of an officer or the
department.
   (b) The petition shall contain the following:
        (1) A concise statement of the facts which support the conclusion that
the child is a child in need of care or supervision together with a statement that
it is in the best interests of the child that the proceedings be brought.
    (2) The name, date of birth, telephone number, and residence address, if
known, of the child, the custodial and noncustodial parents, the guardian or
1808                       JOURNAL OF THE SENATE
custodian of the child if other than parent. If a parent is a participant in the
Safe At Home Program pursuant to 15 V.S.A. § 1152, the petition shall so
specify.
     (3) Jurisdictional information required pursuant to the Uniform Child
Custody Jurisdiction Act, 15 V.S.A. § 1032 et seq.
§ 5311. SERVICE OF SUMMONS AND PETITION; NO REQUEST FOR
TEMPORARY CARE ORDER
   (a) When the state’s attorney files a petition but does not request a
temporary care order, the court shall set a date for a preliminary hearing on the
petition no later than 15 days from the date the petition is filed and issue a
judicial summons addressed to the custodial parent, guardian, custodian, or
care provider. A copy of the petition shall be attached to the summons. The
court shall make reasonably diligent efforts to serve a noncustodial parent with
a copy of the summons and petition.
   (b) The summons shall contain:
       (1) The name and address of the person to whom the notice is directed.
       (2) The date, time, and place for the preliminary hearing on the petition.
     (3) The name of the minor on whose behalf the petition has been
brought.
       (4) Notice of a parent’s right to counsel.
      (5) A statement that the parent, guardian or custodian may be liable for
the cost of the support of a child if the child is placed in the legal custody of
the department.
      (6) An order directing the parent, guardian, custodian, or care provider
to appear at the hearing with the child.
   (c) The summons and petition may be served by mailing a copy by certified
mail return receipt requested to the child and to the child’s parent, guardian,
custodian, or care provider. Service of the summons and petition may also be
made by any sheriff, deputy, or constable. The court shall provide a copy of
the summons to the state’s attorney and a copy of the summons and petition to
the department and the attorney for the child.
   (d) Notice and a copy of the petition shall be served on all persons required
to receive notice as soon as possible after the petition is filed and at least five
days prior to the date set for the preliminary hearing.
    (e) A party may waive service of the petition and notice by written
stipulation or by voluntary appearance at the hearing.
                              FRIDAY, MAY 2, 2008                            1809
   (f) Once a parent, guardian, or custodian has been served, the court shall
provide notice of hearing either directly or by mail. The parent shall be
responsible for providing the court with information regarding any changes in
address.
§ 5312. FAILURE TO APPEAR AT PRELIMINARY HEARING
   (a) If a parent, guardian, or custodian has been served by certified mail with
the petition and notice of hearing and fails to appear at the preliminary hearing,
the court may order that the parent, guardian, or custodian be served with a
judicial summons ordering the person to appear in court with the child at a
specified date and time.
    (b) If, after being summoned to appear, the parent, guardian, or custodian
fails to appear or fails to bring the child to court as ordered, the court may issue
a pick-up order or warrant pursuant to section 5108 of this title.
§ 5313. TIMELINES FOR PRETRIAL AND MERITS HEARING
   (a) Pretrial hearing. At the time of the temporary care hearing or at the
preliminary hearing on the petition if there is no request for temporary legal
custody, the court shall set a pretrial hearing on the petition. The hearing shall
be held within 15 days of the temporary care hearing or the preliminary
hearing. In the event that there is no admission or dismissal at or before the
pretrial hearing, the court shall set the matter for a hearing to adjudicate the
merits of the petition.
   (b) Merits hearing. If the child who is the subject of the petition has been
removed from the legal custody of the custodial parent, guardian, or custodian
pursuant to a temporary care order, a merits hearing shall be held and merits
adjudicated no later than 60 days from the date the temporary care order is
issued, except for good cause shown. In all other cases, merits shall be
adjudicated in a timely manner in the best interests of the child.
§ 5314. FILING OF INITIAL CASE PLAN
    (a) If a temporary care order is issued transferring legal custody of the child
to the commissioner, the department shall prepare and file with the court an
initial case plan for the child and the family within 60 days of removal of a
child from home. The department shall provide a copy of the case plan to the
parties, their attorneys, and the guardian ad litem.
    (b) The initial case plan shall not be used or referred to as evidence prior to
a finding that a child is in need of care or supervision.
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§ 5315. MERITS ADJUDICATION
   (a) At a hearing on the merits of a petition, the state shall have the burden
of establishing by a preponderance of the evidence that the child is in need of
care and supervision. In its discretion, the court may make findings by clear
and convincing evidence.
   (b) The parties may stipulate to the merits of the petition. Such stipulation
shall include a stipulation as to the facts that support a finding that the child is
in need of care and supervision.
   (c) If the merits are contested, all parties shall have the right to present
evidence on their own behalf and to examine witnesses.
   (d) A merits hearing shall be conducted in accordance with the Vermont
Rules of Evidence. A finding of fact made after a contested temporary care
hearing based on nonhearsay evidence may be adopted by the court as a
finding of fact at a contested merits hearing provided that a witness who
testified at the temporary care hearing may be recalled by any party at a
contested merits hearing to supplement his or her testimony.
  (e) If the merits are contested, the court after hearing the evidence shall
make its findings on the record.
   (f) If the court finds that the allegations made in the petition have not been
established, the court shall dismiss the petition and vacate any temporary
orders in connection with this proceeding.
   (g) If the court finds that the allegations made in the petition have been
established based on the stipulation of the parties or on the evidence if the
merits are contested, the court shall order the department to prepare a
disposition case plan within 28 days of the merits hearing and shall set the
matter for a disposition hearing.
   (h) The court in its discretion and with the agreement of the parties may
waive the preparation of a disposition case plan and proceed directly to
disposition based on the initial case plan filed with the court pursuant to
section 5314 of this title.
§ 5316. DISPOSITION CASE PLAN
   (a) The department shall file a disposition case plan ordered pursuant to
subsection 5315(g) of this title no later than 28 days from the date of the
finding by the court that a child is in need of care or supervision.
   (b) A disposition case plan shall include, as appropriate:
      (1) A permanency goal. The long-term goal for a child found to be in
need of care and supervision is a safe and permanent home. A disposition case
                              FRIDAY, MAY 2, 2008                            1811
plan shall include a permanency goal and an estimated date for achieving the
permanency goal. The plan shall specify whether permanency will be
achieved through reunification with a custodial parent, guardian, or custodian;
adoption; permanent guardianship; or other permanent placement. In addition
to a primary permanency goal, the plan may identify a concurrent permanency
goal.
     (2) An assessment of the child’s medical, psychological, social,
educational, and vocational needs.
      (3) A description of the child’s home, school, community, and current
living situation.
       (4) An assessment of the family’s strengths and risk factors, including a
consideration of the needs of children and parents with disabilities, provided
that the child’s needs are given primary consideration.
     (5) A statement of family changes needed to correct the problems
necessitating state intervention, with timetables for accomplishing the changes.
     (6) A recommendation with respect to legal custody for the child and a
recommendation for parent-child contact and sibling contact, if appropriate.
      (7) A plan of services that shall describe the responsibilities of the child,
the parents, guardian, or custodian, the department, other family members, and
treatment providers, including a description of the services required to achieve
the permanency goal. The plan shall also address the minimum frequency of
contact between the social worker assigned to the case and the family.
      (8) A request for child support.
      (9) Notice to the parents that failure to accomplish substantially the
objectives stated in the plan within the time frames established may result in
termination of parental rights.
§ 5317. DISPOSITION HEARING
    (a) Timeline. A disposition hearing shall be held no later than 35 days after
a finding that a child is in need of care and supervision.
   (b) Hearing procedure. If disposition is contested, all parties shall have the
right to present evidence and examine witnesses. Hearsay may be admitted
and may be relied on to the extent of its probative value. If reports are
admitted, the parties shall be afforded an opportunity to examine those making
the reports, but sources of confidential information need not be disclosed.
   (c) Standard of proof. If the court terminates the parental rights of one or
both parents, the standard of proof on the issue of termination shall be clear
1812                      JOURNAL OF THE SENATE
and convincing evidence. On all other issues, the standard of proof shall be a
preponderance of the evidence.
   (d) Termination of parental rights. If the commissioner or the attorney for
the child seeks an order at disposition terminating the parental rights of one or
both parents and transfer of legal custody to the commissioner without
limitation as to adoption, the court shall consider the best interests of the child
in accordance with section 5114 of this title.
   (e) Further hearing. On its own motion or on the motion of a party, the
court may schedule a further hearing to obtain reports or other information
necessary for the appropriate disposition of the case. The court shall make an
appropriate order for the temporary care of the child pending a final disposition
order. The court shall give scheduling priority to cases in which the child has
been removed from home.
§ 5318. DISPOSITION ORDER
   (a) Custody. At disposition, the court shall make such orders related to
legal custody for a child who has been found to be in need of care and
supervision as the court determines are in the best interest of the child,
including:
      (1) An order continuing or returning legal custody to the custodial
parent, guardian, or custodian. Following disposition, the court may issue a
conditional custody order for a fixed period of time not to exceed two years.
The court shall schedule regular review hearings to determine whether the
conditions continue to be necessary.
       (2) When the goal is reunification with a custodial parent, guardian, or
custodian an order transferring temporary custody to a noncustodial parent, a
relative, or a person with a significant relationship with the child. The order
may provide for parent-child contact. Following disposition, the court may
issue a conditional custody order for a fixed period of time not to exceed two
years. The court shall schedule regular review hearings to evaluate progress
toward reunification and determine whether the conditions and continuing
jurisdiction of the juvenile court are necessary.
      (3) An order transferring legal custody to a noncustodial parent and
closing the juvenile proceeding. The order may provide for parent-child
contact with the other parent. Any orders transferring legal custody to a
noncustodial parent issued under this section shall not be confidential and shall
be made a part of the record in any existing parentage or divorce proceeding
involving the child. On the motion of a party or on the court’s own motion, the
court may order that a sealed copy of the disposition case plan be made part of
the record in a divorce or parentage proceeding involving the child.
                              FRIDAY, MAY 2, 2008                            1813
      (4) An order transferring legal custody to the commissioner.
      (5) An order terminating all rights and responsibilities of a parent by
transferring legal custody and all residual parental rights to the commissioner
without limitation as to adoption.
      (6) An order of permanent guardianship pursuant to 14 V.S.A. § 2664.
      (7) An order transferring legal custody to a relative or another person
with a significant relationship with the child. The order may be subject to
conditions and limitations and may provide for parent-child contact with one or
both parents. The order shall be subject to periodic review as determined by
the court.
   (b) Case plan. If the court orders the transfer of custody pursuant to
subdivision (a)(2), (4), or (5) of this section, the court shall establish a
permanency goal for the minor child and adopt a case plan prepared by the
department which is designed to achieve the permanency goal. If the court
determines that the plan proposed by the department does not adequately
support the permanency goal for the child, the court may reject the plan
proposed by the department and order the department to prepare and submit a
revised plan for court approval.
   (c) Sixteen- to 17.5-year-olds. In the event that custody of a 16- to 17.5-
year-old is transferred to the department pursuant to a petition filed under
subsection 5309(d) of this title services to the child and to his or her family
shall be provided through a coordinated effort by the agency of human
services, the department of education, and community-based interagency
teams.
  (d) Modification. A disposition order is a final order which may only be
modified based on the stipulation of the parties or pursuant to a motion to
modify brought under section 5113 of this title.
   (e) Findings. Whenever the court orders the transfer of legal custody to a
noncustodial parent, a relative, or a person with a significant relationship with
the child, such orders shall be supported by findings regarding the suitability of
that person to assume legal custody of the child and the safety and
appropriateness of the placement.
§ 5319. PARENT-CHILD CONTACT AND CONTACT WITH SIBLINGS
AND RELATIVES
   (a) The court shall order parent-child contact unless the court finds that it is
necessary to deny parent-child contact because the protection of the physical
safety or emotional well-being of the child so requires. Except for good cause
1814                      JOURNAL OF THE SENATE
shown, the order shall be consistent with any existing parent-child contact
order.
   (b) The court may determine the reasonable frequency and duration of
parent-child contact and may set such conditions for parent-child contact as are
in the child’s best interests including whether parent-child contact should be
unsupervised or supervised. The court may allocate the costs of supervised
visitation.
   (c) Parent-child contact may be modified by stipulation or upon motion of a
party or upon the court’s own motion pursuant to section 5113 of this title.
   (d) The court may terminate a parent-child contact order in a juvenile
proceeding upon a finding that:
      (1) a parent has without good cause failed to maintain a regular schedule
of contact with the child and that the parent’s failure to exercise regular contact
has had a detrimental impact on the emotional well-being of the child; or
      (2) continued parent-child contact in accordance with the terms of the
prior order will have a detrimental impact on the physical or emotional well-
being of the child.
   (e) Upon motion of the child’s attorney, the court may also order contact
between the child and the child’s siblings, an adult relative with whom the
child has a significant relationship, or an adult friend with whom the child has
a significant relationship.
   (f) Failure to provide parent-child contact due to the child’s illness or other
good cause shall not constitute grounds for a contempt or enforcement
proceeding against the department.
§ 5320. POSTDISPOSITION REVIEW HEARING
   If the permanency goal of the disposition case plan is reunification with a
parent, guardian, or custodian, the court shall hold a review hearing within 60
days of the date of the disposition order for the purpose of monitoring progress
under the disposition case plan and reviewing parent-child contact. Notice of
the review shall be provided to all parties. A foster parent, preadoptive parent,
or relative caregiver shall be provided with notice of any post disposition
review hearings and an opportunity to be heard at the hearings. Nothing in this
section shall be construed as affording such person party status in the
proceeding.
§ 5321. PERMANENCY HEARING
   (a) Purpose. Unless otherwise specified therein, an order under the
authority of this chapter transferring legal custody or residual parental rights
                             FRIDAY, MAY 2, 2008                            1815
and responsibilities of a child to the department pursuant to subdivision
5318(a)(4) or (5) of this title shall be for an indeterminate period and shall be
subject to periodic review at a permanency hearing. At the permanency
hearing, the court shall determine the permanency goal for the child and an
estimated time for achieving that goal. The goal shall specify when:
      (1) legal custody of the child will be transferred to the parent, guardian,
or custodian;
      (2) the child will be released for adoption;
      (3) a permanent guardianship will be established for the child;
      (4) a legal guardianship will be established for the child pursuant to an
order under chapter 111 of Title 14; or
       (5) the child will remain in the same living arrangement or be placed in
another planned permanent living arrangement because the commissioner has
demonstrated to the satisfaction of the court a compelling reason that it is not
in the child’s best interests to:
         (A) return home;
        (B)    have residual parental rights terminated and be released for
adoption; or
         (C) be placed with a fit and willing relative or legal guardian.
   (b) The court shall adopt a case plan designed to achieve the permanency
goal. At the permanency review, the court shall review the permanency plan
and determine whether the plan advances the permanency goal recommended
by the department. The court may accept or reject the plan, but may not
designate a particular placement for a child in the department’s legal custody.
   (c) A permanency review hearing shall be held no less than every 12
months with the first hearing to be held 12 months after the date the legal
custody of the child was transferred, subject to the following exceptions:
       (1) If the child was three years of age or younger at the time of the
initial transfer of legal custody, the court may order that permanency review
hearings be held as frequently as every three months.
       (2) If the child is between the ages of three and six at the time of the
initial transfer of legal custody, the court may order that permanency review
hearings be held as frequently as every six months.
    (d) If the court shortens the time for the permanency review hearing for a
younger sibling, that shortened review interval shall be applied to all siblings
in the family who are in the legal custody of the department.
1816                       JOURNAL OF THE SENATE
   (e)(1) The department shall file with the court a notice of permanency
review together with a case plan and recommendation for a permanency goal.
The department shall provide notice to the state’s attorney having jurisdiction
and to all parties to the proceeding in accordance with the rules for family
proceedings. The court shall hold a permanency review hearing within 30 days
of the filing of notice by the department. Failure to give such notice or to
review an order shall not terminate the original order or limit the court’s
jurisdiction.
      (2) A foster parent, preadoptive parent, or relative caregiver for the child
shall be provided notice of and an opportunity to be heard at any permanency
hearing held with respect to the child. Nothing in this subsection shall be
construed as affording such person party status in the proceeding.
   (f) All evidence helpful in determining the questions presented, including
hearsay, may be admitted and relied upon to the extent of its probative value
even though not competent at an adjudication hearing.
   (g) The permanency hearing may be held by an administrative body
appointed or approved by the court. The administrative body may consist of
one but not more than three persons. No person employed by the department
shall be a member of the administrative body. In the event that the
administrative body determines that the existing order should be altered, it
shall submit its recommendation to the court for its consideration. In the event
that the administrative body determines that the existing order should not be
altered, its determination shall be binding unless any party requests review by
the court within ten days of receipt of the determination. A copy of the
determination shall be sent to each party and to the court. The court, on its
own motion or on the request of any party, shall conduct a review de novo
within 30 days of receipt of such request.
   (h) Upon the filing of a petition for a finding of reasonable efforts and a
report or affidavit by the department for children and families with notice to all
parties, the court shall hold a hearing within 30 days of the filing of the petition
to determine, by a preponderance of the evidence, whether the department for
children and families has made reasonable efforts to finalize the permanency
plan for the child that is in effect at the time of the hearing. The hearing may
be consolidated with or separate from a permanency hearing. Reasonable
efforts to finalize a permanency plan may consist of:
      (1) reasonable efforts to reunify the child and family following the
child’s removal from the home, where the permanency plan for the child is
reunification; or
                             FRIDAY, MAY 2, 2008                           1817
      (2) reasonable efforts to arrange and finalize an alternate permanent
living arrangement for the child, in cases where the permanency plan for the
child does not include reunification.
§ 5322. PLACEMENT OF A CHILD IN A FACILITY USED FOR
TREATMENT OF DELINQUENT CHILDREN
   A child found by the court to be a child in need of care and supervision
shall not be placed in or transferred to an institution used solely for the
treatment or rehabilitation of delinquent children unless the child has been
charged with or adjudicated as having committed a delinquent act.
Sec. 4. 33 V.S.A. § 5802 is added to read:
§ 5802. SEPARATION OF VICTIM OF SEXUAL ASSAULT AND
PERPETRATOR
   The commissioner of the department for children and families shall develop
policies applicable when the department knows or learns that a sexual assault
perpetrator and his or her victim have been simultaneously placed at the
facility. The policies shall include processes and procedures for investigation
and, if appropriate, continued separation of or minimizing incidental contact
between the perpetrator and the victim, while ensuring that they both receive
educational and other appropriate services.
Sec. 5. 13 V.S.A. § 1030 is amended to read:
§ 1030. VIOLATION OF AN ABUSE PREVENTION ORDER OR, AN
ORDER AGAINST STALKING OR SEXUAL ASSAULT, OR A
PROTECTIVE ORDER CONCERNING CONTACT WITH A CHILD
   (a) A person who commits an act prohibited by a court or who fails to
perform an act ordered by a court in violation of an abuse prevention order
issued under chapter 21 of Title 15 or chapter 69 of Title 33, a protective order
that concerns contact with a child and is issued under chapter 51 of Title 33, or
an order against stalking or sexual assault issued under chapter 178 of Title 12,
after the person has been served notice of the contents of the order as provided
in those chapters; or a foreign abuse prevention order issued by a court in any
other state, federally recognized Indian tribe, territory or possession of the
United States, the Commonwealth of Puerto Rico, or the District of Columbia;
shall be imprisoned not more than one year or fined not more than $5,000.00,
or both.
   (b) A person who is convicted of a second or subsequent offense under this
section shall be imprisoned not more than three years or fined not more than
$25,000.00, or both.
1818                      JOURNAL OF THE SENATE
                                      ***
   (e) Nothing in this section shall be construed to diminish the inherent
authority of the courts to enforce their lawful orders through contempt
proceedings.
                                      ***
Sec. 6. Rule (3)(c)(6) of the Vermont Rules of Criminal Procedure is amended
to read:
      (6) The person has violated an order issued by a court in this state
pursuant to 12 V.S.A. chapter 178, 15 V.S.A. chapter 21, or 33 V.S.A. chapter
69 or subsection 5115(e).
Sec. 7. Section 6(b) of the Rules of Public Access to Court Records is
amended to read:
   (b) Exceptions. The public shall not have access to the following judicial
branch records:
                                      ***
     (34) Records from a juvenile proceeding that are filed with the court or
admitted into evidence in a divorce or parentage proceeding.
       (35) Any other record to which public access is prohibited by statute.
Sec. 8. 33 V.S.A. § 3902 is amended as follows:
§ 3902. ASSIGNMENT OF SUPPORT RIGHTS BY PUBLIC ASSISTANCE
RECIPIENTS; PROCEEDINGS TO ESTABLISH SUPPORT OBLIGATION
                                      ***
   (e) When a responsible parent is receiving welfare assistance under Title
XVI of the Social Security Act or chapter 11 of this title, on the parent’s own
behalf or on behalf of a dependent child, no amounts shall accrue or be
collected under the support order while the welfare assistance is being
received. The commissioner shall monitor receipt of welfare assistance by
responsible parents to ensure collection action is not instituted while welfare
assistance is being received and that collection action is instituted promptly
when the responsible parent no longer receives assistance.
    (f) If a support order has been entered and the legal custodian and obligee
relinquishes physical responsibility of the child to a caretaker without
modifying the physical rights and responsibilities order, the office of child
support may change the payee of support upon the caretaker’s receipt of Reach
Up family assistance (RUFA) from the department for children and families.
The obligor’s obligation under the support order to pay child support and
                             FRIDAY, MAY 2, 2008                            1819
medical support continues but shall be payable to the office of child support
upon the caretaker’s receipt of RUFA and shall continue so long as the
assignment is in effect. The office of child support shall notify the obligor and
obligee under the support order, by first class mail at last known address, of the
change of payee.
Sec. 9. 33 V.S.A. § 3903 is amended to read:
§ 3903. CHILD SUPPORT DEBT
   (a) Except as otherwise provided in this section, any payment of Reach Up
financial assistance made to or for the benefit of a dependent child creates a
debt due and owing to the department for children and families by any
responsible parent in an amount equal to the amount of Reach Up financial
assistance paid.
       (1) A debt shall not be incurred by any responsible parent while that
parent receives public assistance for the benefit of any of his or her dependent
children. A debt previously incurred by any responsible parent shall not be
collected from the responsible parent while that parent receives public
assistance for the benefit of his or her dependent children, or assistance under
Title XVI of the Social Security Act.
       (2)(b) Collection of child support debts shall be made as provided by
this section and section 3902 of this title and by subchapter 7 of chapter 11 of
Title 15. Regardless of the amount of Reach Up financial assistance paid, the
court may limit the child support debt, taking into consideration the criteria of
section 659 of Title 15. The department for children and families and the
responsible parent may limit the child support debt by stipulation which shall
be enforceable on its terms unless it is modified.
Sec. 10. REPORT FROM THE DEPARTMENT FOR CHILDREN AND
FAMILIES
   (a) No later than March 1, 2009, the department for children and families
shall report to the general assembly on the following:
      (1) Procedures used to identify parents with disabilities.
      (2) Procedures for modifying case plans, disposition of case plans,
service plans, and permanency plans to include the use of adaptive equipment
and parental supports for parents with disabilities.
       (3) Procedures used to assess family strengths and weaknesses as they
relate to children and parents with disabilities.
1820                       JOURNAL OF THE SENATE
      (4) The state’s ability to accommodate the court-related needs of
children and parents with disabilities as they relate to juvenile judicial
proceedings.
   (b) In preparation of the report, the department for children and families
shall consult with:
       (1) The family support project at the University of Vermont.
       (2) The Vermont judiciary.
       (3) The office of the defender general.
       (4) The department of disabilities, aging, and independent living.
Sec. 11. REPORT FROM THE CENTER FOR CRIME VICTIM SERVICES
   The center for crime victim services shall report to the house and senate
committees on judiciary no later than January 15, 2012 on the implementation
and operation of the juvenile restitution provisions established by this act.
Sec. 12. JUVENILE JURISDICTION POLICY AND OPERATIONS
COORDINATING COUNCIL
   (a) The juvenile jurisdiction policy and operations coordinating council is
established in order to plan and develop the steps advisable better to address
age-appropriate responses to older youth within the juvenile justice system.
The council shall report to the house and senate committees on judiciary on or
before December 15, 2008. The report may consider the juvenile justice
jurisdiction study submitted to the agency of human services in December
2007 as well as other relevant information and recommend any changes to
Vermont juvenile justice jurisdiction policy the council decides are advisable.
   (b)(1) The council shall develop an implementation plan for each of the
following options:
          (A) Maintaining the current jurisdiction statute and continuing
jurisdiction of the family court in delinquency proceedings until age 22.
         (B) Changing the initial court of jurisdiction in all misdemeanor
proceedings to the family court, with the possibility to be waived to district
court, and continuing family court jurisdiction until age 22.
         (C) Changing the initial court of jurisdiction in all juvenile
proceedings to the family court with the possibility to be waived to district
court and continuing family court jurisdiction until age 22.
       (2) Each option in subdivision (1) of this subsection shall address:
         (A) Estimated numbers of youth to be served by the department of
corrections and by the department for children and families.
                             FRIDAY, MAY 2, 2008                         1821
         (B) Resource increases needed by the department for children and
families to implement each option, including probation supervision staff,
locked capacity, and contracted services.
        (C) Potential decreases in the department of corrections services.
        (D) Resource increases and decreases in the judicial system.
        (E) The net costs.
   (c) With respect to any policy changes recommended, the report shall
include:
    (1) Necessary statutory changes.
    (2) Necessary structural modifications to the juvenile system, including
personnel and programming requirements and changes.
    (3) Cost implications and financial impacts.
    (4) Review of the impact on 16- and 17-year-olds of being commingled
with older offenders.
      (5) A summary of evidence-based research on outcomes and recidivism
rates by juvenile offenders and juvenile delinquents, including comparisons of
minors processed as juvenile delinquents with minors processed as adult
offenders.
  (d) The council shall consist of the following members:
     (1) The administrative judge or designee.
     (2) The court administrator or designee.
     (3) The defender general or designee.
     (4) The attorney general or designee.
      (5) The executive director of the department of state's attorneys and
sheriffs or designee.
      (6) The commissioner of the department for children and families or
designee.
     (7) The director of the juvenile justice commission or designee.
     (8) The commissioner of corrections or designee.
     (9) The commissioner of public safety or designee.
      (10) A mental health professional with experience working with
juveniles, appointed by the Vermont council of developmental and mental
health services.
1822                      JOURNAL OF THE SENATE
     (11) A law enforcement officer with experience working with juveniles,
appointed by the commissioner of public safety.
      (12) The executive director of the center for crime victim services or his
or her designee.
Sec. 13. REPEAL
   The following are repealed:
       (1) 33 V.S.A. chapter 55 (judicial proceedings).
      (2) 13 V.S.A. § 5320 (notification of conditions of release to victim in
delinquency proceedings).
Sec. 14. EFFECTIVE DATE AND APPLICATION
    This act shall take effect January 1, 2009 and shall apply to any petition
filed after the effect date or any permanency review hearing held after the
effective date.
                                                 ALICE W. NITKA
                                                 M. JANE KITCHEL
                                                 RICHARD W. SEARS, JR.
                                            Committee on the part of the Senate
                                                 WILLIAM LIPPERT
                                                 MARGARET K. FLORY
                                                 SANDY HAAS
                                            Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                                      H. 859.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and the report of the Committee of Conference on
House bill entitled:
   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.
   Was taken up for immediate consideration.
   Senator Sears, for the Committee of Conference, submitted the following
report:
   To the Senate and House of Representatives:
                             FRIDAY, MAY 2, 2008                           1823
   The Committee of Conference to which were referred the disagreeing votes
of the two Houses upon House bill entitled:
    H. 859. An act relating to increasing substance abuse treatment, vocational
training, and transitional housing for offenders in order to reduce recidivism,
increase public safety, and reduce corrections costs.
   Respectfully reports that it has met and considered the same and
recommends that the House recede from its proposal of amendment to the
Senate proposal of amendment, that the Senate recede from its proposal of
amendment and that the bill be further amended by striking out all after the
enacting clause and inserting in lieu thereof:
Sec. 1. FINDINGS AND INTENT
   (a) The general assembly finds that:
        (1) Vermont’s incarcerated population is growing at an unsustainable
rate.
      (2) Property and drug offenders are the fastest growing segment of the
prison population. Between 2000 and 2006, over one-half the increase in the
felony prison population was due to property and substance abuse offenses.
      (3) Seventy-seven percent of those sentenced for a property or drug
felony have a substance abuse disorder. Two-thirds of them report having
received mental health treatment in the past. Fifty-five percent report being
frequently unemployed prior to incarceration.
      (4) Of those incarcerated for a property or drug felony, only 13 percent
are receiving treatment.
   (b) The general assembly further finds that:
      (1) Each month, approximately 70 inmates meet the criteria for
reentering the community under the supervision of the commissioner of
corrections on conditional reentry status. However, almost one-half are not
released because of insufficient housing options.
      (2) Studies show that the length of sentences served by offenders does
not affect their recidivism rates. Therefore, current law authorizes the
commissioner of corrections to release certain offenders on reintegration
furlough 90 days prior to the minimum sentence date. However, on average,
eligible inmates serve only 53 days on reintegration furlough status. If all
those who are eligible serve the full 90 days of reintegration status, the result
could be a savings of up to 90 corrections beds.
   (c) The general assembly intends:
1824                     JOURNAL OF THE SENATE
      (1) to reduce recidivism, increase public safety, and reduce the cost to
the state of incarcerating offenders by increasing substance abuse treatment
services, vocational training, and transitional housing available to offenders,
and by establishing processes for reducing incarceration time when
appropriate; and
     (2) that the provisions of this act are a long-range plan to guide
expenditures from additional corrections savings in future years.
Sec. 2. 28 V.S.A. § 102(b) is amended to read:
   (b) The commissioner is charged with the following powers:
                                     ***
       (5) To order the assignment and transfer of persons committed to the
custody of the commissioner to correctional facilities, including out-of-state
facilities.
                                     ***
Sec. 3. 28 V.S.A. § 202 is amended to read:
§ 202. POWERS AND RESPONSIBILITIES OF THE COMMISSIONER
REGARDING PROBATION
   The commissioner shall be charged with the following powers and
responsibilities regarding the administration of probation:
      (1) To maintain general supervision of persons placed on probation, and
to prescribe rules and regulations, consistent with any orders of the court,
governing the conduct of such persons;
      (2) To supervise the administration of probation services and establish
policies and standards and make rules and regulations regarding probation
investigation, supervision, case work and case loads, record keeping, and the
qualification of probation officers;
      (3) To use electronic monitoring equipment such as global position
monitoring, automated voice recognition telephone equipment, and
transdermal alcohol monitoring equipment to enable more effective or efficient
supervision of individuals placed on probation.        Transdermal alcohol
monitoring equipment shall be used for such purposes as discouraging persons
whose licenses have been suspended for DUI from operating motor vehicles on
Vermont highways.
Sec. 4. 28 V.S.A. § 205(c) is added to read:
   (c)(1) Unless the court in its discretion finds that the interests of justice
require additional standard and special conditions of probation, when the court
                             FRIDAY, MAY 2, 2008                          1825
orders a specific term of probation for a qualifying offense, the offender shall
be placed on administrative probation, which means that the only conditions of
probation shall be that the probationer:
          (A) register with the department of corrections’ probation and parole
office in his or her district;
         (B) notify the probation officer of his or her current address each
month;
          (C) within 72 hours, notify the department of corrections if probable
cause is found for a criminal offense during the term of probation; and
         (D)   not be convicted of a criminal offense during the term of
probation.
      (2) As used in this subsection, “qualifying offense” means:
         (A) Unlawful mischief under 13 V.S.A. § 3701.
         (B) Retail theft under 13 V.S.A. §§ 2575 and 2577.
        (C) Operating after suspension or revocation of license under
23 V.S.A. § 674(a).
         (D) Bad checks under 13 V.S.A. § 2022.
         (E) Theft of services under 13 V.S.A. § 2582.
        (F) Disorderly conduct under 13 V.S.A. § 1026, unless the original
charge was a listed offense as defined in 13 V.S.A. § 5301(7).
         (G) Theft of rented property under 13 V.S.A. § 2591.
         (H) Operation without consent of owner under 23 V.S.A. § 1094(a).
         (I) Petit larceny under 13 V.S.A. § 2502.
        (J)    Negligent operation of a motor vehicle under 23 V.S.A.
§ 1091(a).
         (K) False reports to law enforcement under 13 V.S.A. § 1754.
         (L) Setting fires under 13 V.S.A. § 508.
         (M) A first offense of a minor’s misrepresenting age, procuring,
possessing, or consuming liquors under 7 V.S.A. § 657.
         (N) Simple assault by mutual consent under 13 V.S.A. § 1023(b)
unless the original charge was a listed offense as defined in 13 V.S.A.
§ 5301(7).
         (O) Unlawful trespass under 13 V.S.A. § 3705(a).
1826                      JOURNAL OF THE SENATE
         (P) A first offense of possession under 18 V.S.A. § 4230(a)(1).
    (3) Nothing in this subsection shall prohibit a court from requiring
participation in the restorative justice program established in chapter 12 of this
title.
Sec. 5. 28 V.S.A. § 252(b) is amended and (d) is added to read:
   (b) When imposing a sentence of probation, the court may, as a condition
of probation, require that the offender:
                                      ***
       (16) Satisfy any other conditions reasonably related to his or her
rehabilitation. The court shall not impose a condition prohibiting the offender
from engaging in any legal behavior unless the condition is reasonably related
to the offender’s rehabilitation or necessary to reduce risk to public safety.
   (d) The commissioner shall review the record of each probationer serving a
specified term during the month prior to the midpoint of that probationer’s
specified term and may file a motion requesting the sentencing court to dismiss
the probationer from probation or deduct a portion of the specified term from
the period of probation if the offender has successfully completed a program or
has attained a goal or goals specified by the conditions of probation. The
commissioner may include in the motion a request that the court deduct a
portion of the specified term for each condition completed or goal attained.
Any motion under this section shall be made pursuant to a rule adopted by the
commissioner under 3 V.S.A. chapter 25 which shall provide that the decision
to make or refrain from making a motion shall be made at the sole discretion of
the commissioner and shall not be subject to appeal.
Sec. 6. 28 V.S.A. § 105 is added to read:
§ 105. CASELOAD CAPACITY
   (a) Corrections officers designated to work exclusively with offenders in
the community who are 21 years of age and younger shall have caseloads of no
more than 25 youths.
   (b) The department shall review the severity of offenses and assess the risk
to reoffend of all offenders older than 21 years of age under its jurisdiction in
the community and assign one of the following levels of supervision to each
offender:
      (1) Risk management supervision, which shall mean supervision at a
level of intensity that includes case planning and measures to reduce risk of
reoffense.
                            FRIDAY, MAY 2, 2008                          1827
      (2) Response supervision, which shall mean monitoring of the
offender’s compliance with conditions of probation or parole, including staff
responding to violation behavior.
      (3) Administrative supervision, which shall mean monitoring of the
offender’s address and compliance with the law.
   (c) An offender may be reassigned to a lower supervision level after a
reassessment of the offender’s risk.
   (d) The department shall establish the following caseload ranges for
offender profiles:
     (1) All listed offenders requiring risk management shall be supervised at
no more than 45 offenders per corrections officer.
     (2) All nonlisted offenders requiring risk management shall be
supervised at no more than 60 offenders per corrections officer.
     (3) All offenders requiring response supervision shall be supervised at
no more than 150 offenders per corrections officer.
      (4)    All offenders requiring administrative supervision may be
supervised on caseloads consistent with the capacity of automated status
reporting systems as established by the department.
      (5) When there is a mixed profile caseload in which a single corrections
officer supervises offenders with different supervision levels and at least
one-third of the offenders require a more intensive supervision demand than
the other offenders, the caseload shall be supervised at the lowest level of
offender-to-staff ratio.
   (e) If the caseloads established in subsection (d) of this section are
exceeded for longer than 120 days, the commissioner shall be authorized to
designate community correctional officers to partially augment staffing
caseloads. If such designation does not remedy the excess caseloads:
    (1) The commissioner shall report to the joint corrections oversight
committee the causes for the excess and proposals for addressing them.
      (2) The department shall have the authority, if the commissioner
believes that the excess will not be eliminated within 60 days, to hire persons
from the positions drawn from the state’s vacancy pool as limited service
employees for an initial period of up to one year. The initial period may be
extended for up to two more years if the department deems it necessary.
   (f) Each time a position is established under subdivision (e)(2) of this
section, the commissioner shall report it at the next meeting of the joint
1828                      JOURNAL OF THE SENATE
corrections oversight committee. The costs for each position shall be
presented in the department’s budget adjustment proposal and, if the positions
are necessary for an ongoing period, in the department’s annual budget request.
Sec. 7. 28 V.S.A. § 403(1) is amended to read:
      (1) To supervise and control persons placed on parole, subject to the
rules and orders of the parole board as to the conditions of parole. The
commissioner may use electronic monitoring equipment such as global
position monitoring, automated voice recognition telephone equipment, and
transdermal alcohol monitoring equipment to enable more effective or efficient
supervision of individuals placed on parole. Transdermal alcohol monitoring
equipment shall be used for such purposes as discouraging persons whose
licenses have been suspended for DUI from operating motor vehicles on
Vermont highways;
Sec. 8. 28 V.S.A. § 723(c) is added to read:
   (c) Prior to release under this section, the department shall screen and, if
appropriate, assess each felony drug and property offender for substance abuse
treatment needs using an assessment tool designed to assess the suitability of a
broad range of treatment services, and it shall use the results of this assessment
in preparing a reentry plan. The department shall attempt to identify all
necessary services in the reentry plan and work with the offender to make
connections to necessary services prior to release so that the offender can begin
receiving services immediately upon release.
Sec. 9. 28 V.S.A. § 808(a)(8)(E) and (F) are added to read:
       (8) To prepare for reentry into the community.
                                      ***
         (E) An offender incarcerated for driving while under the influence of
alcohol under 13 V.S.A. § 1210(d) or (e) may be furloughed to the community
up to 180 days prior to completion of the minimum sentence at the
commissioner’s discretion and in accordance with rules adopted pursuant to
subdivision (C) of this subdivision (8), provided that an offender sentenced to a
minimum term of fewer than 270 days shall not be eligible for furlough under
this subdivision until the offender has served at least 90 days of his or her
minimum term of incarceration and provided that the commissioner uses
electronic equipment to continually monitor the offender’s location and blood
alcohol level, or other equipment such as an alcohol ignition interlock system,
or both.
        (F) Prior to release under this subdivision (8), the department shall
screen and, if appropriate, assess each felony drug and property offender for
                              FRIDAY, MAY 2, 2008                            1829
substance abuse treatment needs using an assessment tool designed to assess
the suitability of a broad range of treatment services, and it shall use the results
of this assessment in preparing a reentry plan. The department shall attempt to
identify all necessary services in the reentry plan and work with the offender to
make connections to necessary services prior to release so that the offender can
begin receiving services immediately upon release.
Sec. 10. 28 V.S.A. § 808(b) is amended to read:
   (b) An inmate granted a furlough pursuant to this section may be
accompanied by an employee of the department, in the discretion of the
commissioner, during the period of the inmate’s furlough. The department
may use electronic monitoring equipment such as global position monitoring,
automated voice recognition telephone equipment, and transdermal alcohol
monitoring equipment to enable more effective or efficient supervision of
individuals placed on furlough.
Sec. 11. 33 V.S.A. § 708 is amended to read:
§ 708. TREATMENT AND SERVICES
                                       ***
   (d) A person judged by a law enforcement officer to be incapacitated, and
who has not been charged with a crime, may be lodged in protective custody in
a lockup or community correctional center secure facility not operated by the
department of corrections for up to 24 hours or until judged by the person in
charge of the facility to be no longer incapacitated, if and only if:
      (1) The person refuses to be transported to an appropriate facility for
treatment, or if once there, refuses treatment or leaves the facility before he or
she is considered by the responsible staff of that facility to be no longer
incapacitated; or
      (2) No approved substance abuse treatment program with detoxification
capabilities and no staff physician or other medical professional at the nearest
licensed general hospital can be found who will accept the person for
treatment.
   (e) No person shall be lodged in a lockup or community correctional center
secure facility under subsection (d) of this section without first being evaluated
by a substance abuse crisis team, a designated substance abuse counselor, a
clinical staff person of an approved substance abuse treatment program with
detoxification capabilities or a professional medical staff person at a licensed
general hospital emergency room and found to be indeed incapacitated.
1830                      JOURNAL OF THE SENATE
   (f) No lockup or community correctional center shall A lockup not
operated by the department of corrections shall not refuse to admit an
incapacitated person in protective custody whose admission is requested by a
law enforcement officer, in compliance with the conditions of this section.
    (g) Notwithstanding subsection (d) of this section, a person under 18 years
of age who is judged by a law enforcement officer to be incapacitated and who
has not been charged with a crime shall not be held at a lockup or community
correctional center. If needed treatment is not readily available the person
shall be released to his or her parent or guardian. If the person has no parent or
guardian in the area, arrangements shall be made to house him or her according
to the provisions of chapter 55 of this title. The official in charge of an adult
jail or lockup shall notify the director of the office of drug and alcohol abuse of
any person under the age of 18 brought to an adult jail or lockup pursuant to
this chapter.
   (h) If an incapacitated person in protective custody is lodged in a lockup or
community correctional center secure facility, his or her family or next of kin
shall be notified as promptly as possible. If the person is an adult and requests
that there be no notification, his or her request shall be respected.
   (i) A taking into protective custody under this section is not an arrest.
   (j) Law enforcement officers or , persons responsible for supervision in a
lockup or community correctional center or secure facility, members of a
substance abuse crisis team or , and designated substance abuse counselors
who act under the authority of this section are acting in the course of their
official duty and are not criminally or civilly liable therefor, unless for gross
negligence or willful or wanton injury.
Sec. 12. 33 V.S.A. § 708a is added to read:
§ 708a. INCARCERATION FOR INEBRIATION PROHIBITED
   A person who has not been charged with a crime shall not be incarcerated in
a facility operated by the department of corrections on account of the person’s
inebriation.
Sec. 13. TRANSITION UNITS
   (a) The general assembly intends in this act to provide to offenders who are
eligible for release into the community the opportunity for a successful
transition.
  (b) The commissioner of corrections shall report to the corrections
oversight committee on or before November 1, 2008, on:
                             FRIDAY, MAY 2, 2008                            1831
      (1) the feasibility and costs of establishing within the Northwest State
Correctional Facility a transition unit which is modeled on the transition unit at
the Chittenden Regional Correctional Facility which enables inmates to work
in the community while residing in the facility. In considering options, the
commissioner shall consider remodeling a unit in which the general assembly
has already invested funds for upgrade; and
       (2) the feasibility and costs of incorporating a transition unit into any
facility where renovations are necessary to implement the provisions of this
act.
Sec. 14. CORRECTIONAL FACILITIES REORGANIZATION; PLAN
   (a) Findings. Department of corrections expenditures on correctional
services including out-of-state beds grew from $93,255,650.00 in fiscal year
2004 to $120,533,309.00 in fiscal year 2008. The amount of funding proposed
for fiscal year 2009 is $123,589,833.00. This rate of increase has been and
remains unsustainable.
   (b) Action. In order to reduce the unsustainable increases in the
expenditures of the department of corrections, the following action shall be
taken by the executive branch:
      (1) In fiscal year 2009, the Dale Correctional Facility in Waterbury shall
be closed.
      (2) In fiscal year 2009, the mission of the Southeast State Correctional
Facility in Windsor shall change to be a therapeutic community in a work
camp model, consistent with any further directive set forth in the Capital
Construction and State Bonding Act for fiscal year 2009.
      (3) In fiscal year 2009, sections of the Northwest State Correctional
Facility in St. Albans shall be closed and the facility otherwise configured to
house and program women, with consideration given to housing male
detainees, consistent with any further directive set forth in the Capital
Construction and State Bonding Act for fiscal year 2009.
    (c) Goal; fiscal year 2009. It is the goal of the general assembly to achieve
in the fourth quarter of fiscal year 2009 approximately $600,000.00 in savings
in the department of corrections budget, which will be reinvested in substance
abuse screening, assessment, treatment, and reentry support, the goal of which
is to reduce recidivism for the target group indentified in Sec. 1(a) of this act.
   (d) Goal; fiscal year 2010. It is the goal of the general assembly to achieve
in fiscal year 2010 approximately $3,044,949 in savings in the department of
corrections budget, some of which will be reinvested in a variety of effective
1832                      JOURNAL OF THE SENATE
programs to further reduce recidivism for the target group indentified in
Sec. 1(a) of this act.
   (e) The general assembly recognizes and values the dedication and
experience of the classified state employees of the department of corrections,
whose skill and expertise will continue to be needed as the department
continues to pursue its goals and mission. Therefore, the restructuring
necessary to achieve the cost savings required for this act shall result in the
following:
      (1) The incumbents in the five classified positions that will be
eliminated at Northwest State Correctional Facility shall continue to be
employed at that facility in classified positions that are vacant, unless the
incumbents voluntarily seek employment in other state positions or leave state
service.
       (2) The temporary and exempt superintendent positions at the Dale
facility shall be eliminated.
      (3) An incumbent in a classified position that will be eliminated at the
Dale facility who does not accept any existing vacant classified position and
who exercises the contractual right to fill an existing temporary position at any
department facility shall receive his or her classified position base salary and
the benefits of the bargaining unit to which that temporary position would be
assigned if permanent, with the exceptions of scheduling days of work, shift
assignment, and post assignment. The rights established by this subdivision
shall be available until January 1, 2011, or until an affected employee accepts
an existing classified position, whichever occurs first.
      (4) Except as otherwise provided in this section, all existing state
employee contract provisions and protections shall remain fully in force for
any affected corrections employee covered by the contract.
      (5) Up to 120 hours of training, as appropriate based on levels of
previous training and experience, for employees of those facilities involved in
the reorganization described in this section who will need training due to a
change in assigned duties.
    (f) As part of the reorganization, the department of corrections shall work
with community-based organizations to provide services for inmates, including
at least as many services in the St. Albans facility for women as were offered
in the Windsor and Dale facilities.
                             FRIDAY, MAY 2, 2008                          1833
Sec. 15. BUDGETARY SAVINGS; ALLOCATIONS IN FISCAL YEAR
2009 AND FISCAL YEAR 2010
   (a) It is the intent of the general assembly to achieve savings in the
department of corrections budget which will be reinvested in substance abuse
screening, assessment, and treatment and reentry support to result in reduced
recidivism.
   (b) In fiscal year 2009, from within the amounts appropriated to the
department of corrections from the general fund, the department shall spend
$600,000 as follows:
      (1) The amount of $100,000.00 shall be to increase the capacity of the
department of corrections’ intensive substance abuse program (ISAP) to
provide services to those offenders with drug abuse disorders who are on
preapproved furlough status under 28 V.S.A. § 808(a)(7).
      (2) The amount of $200,000.00 shall be to fund the establishment of a
screening and assessment pilot program at a location approved by the court
administrator to:
        (A) conduct a voluntary and confidential screening and assessment,
when screening indicates that an assessment is appropriate, for substance abuse
and mental health treatment needs at the time of arraignment of individuals
charged with felony property, drug, or fraud offenses;
         (B) conduct a mandatory screening and assessment, when screening
indicates that an assessment is appropriate, for substance abuse and mental
health treatment needs following adjudication and prior to sentencing of
individuals found guilty of felony property, drug, or fraud offenses;
          (C) provide the results of any screening and assessment conducted
under this section to the judge following adjudication and prior to sentencing
so that the judge can use the information to determine the level of treatment to
be provided while the individual is in the custody of the commissioner of
corrections; and
         (D) enable the commissioner to gather data regarding the prevalence
of co-occurring substance abuse and mental health disorders.
      (3) The amount of $88,000.00 shall be to assess offenders for substance
abuse treatment needs prior to release.
      (4) The amount of $150,000.00 shall be used to fund substance abuse
programs and vocational training in the Windsor work camp facility.
      (5) the amount of $62,000.00 shall be for entering into contracts with
several community-based substance abuse treatment providers in different
1834                     JOURNAL OF THE SENATE
geographic regions of the state to provide the substance abuse treatment
services to persons on conditional reentry status pursuant to subchapter 1A of
chapter 11 of 28 V.S.A. or furlough pursuant to 28 V.S.A. § 808.
   (c) Based on a recommendation from the commissioner of corrections and
the corrections oversight committee, the joint fiscal committee may authorize
further spending of funds from the fiscal year 2009 corrections appropriation
for all or part of the amounts of this subsection, in the order listed in this
subsection. In fiscal year 2010, from within the amounts appropriated to the
department of corrections from the general fund, the department shall reinvest
a portion of the savings identified by the commissioner of corrections and the
corrections oversight committee as follows:
      (1) The amount necessary to continue funding the screening and
assessment pilot program established in subdivision (b)(2) of this section for
one more year.
      (2) The amount of $150,000.00 shall be to provide grants to community
providers of transitional housing to increase the number of beds available by
10 beds for three to six months of housing for at least 20 offenders reentering
the community on furlough pursuant to 28 V.S.A. § 808 or on conditional
reentry pursuant to subchapter 1A of chapter 11 of Title 28.
      (3) The amount of $200,000.00 shall be to develop the capacities of
community substance abuse treatment providers to work effectively with
offenders and to function efficiently as a collaborative system.
       (4) The amount of $1,200,000.00 shall be to provide grants to
community providers to increase by 60 the number of beds available for at
least 120 offenders who will be staying in the transitional housing for three to
six months before reentering the community on furlough pursuant to 28 V.S.A.
§ 808 or conditional reentry, pursuant to subchapter 1A of chapter 11 of Title
28. The new transitional housing shall include a range from lightly supervised
with no treatment programs to heavily supervised with wrap-around treatment
programs. Of the amount appropriated in this subdivision, $200,000.00 shall
be used to:
         (A) provide life skills programming;
         (B) expand housing readiness, search, and retention services; and
        (C) expand housing assistance funding which may be granted to
housing authorities and other community agencies in response to requests for
proposals or memorandums of understanding entered into in accordance with
department policy and directives.
                              FRIDAY, MAY 2, 2008                            1835
      (5) The amount of $365,000.00 shall be to expand the ISAP program to
include a residential component for those who have been furloughed to the
community pursuant to 28 V.S.A. § 808(a)(7);
      (6) The amount of $650,000.00 shall be to provide vocational training
and residential substance abuse programs in one or more state-owned and
-operated work camps.
      (7) The amount of $110,000.00 shall be for recovery centers.
      (8) The amount of $50,000.00 shall be to increase the capacity of the
department of corrections’ intensive substance abuse program (ISAP) to
provide services to those offenders with drug abuse disorders who are on
preapproved furlough status under 28 V.S.A. § 808(a)(7).
      (9) The amount of $150,000.00 shall be used to expand the availability
of public inebriate beds outside the department of corrections.
     (10) The amount of $211,000.00 shall be used to purchase electronic
monitoring equipment, including automated voice recognition telephone
equipment, global position monitoring system bracelets, and transdermal
alcohol monitoring equipment. The commissioner shall use the equipment to
augment supervision of offenders on probation, parole, or furlough and to
enhance the capacity of field staff to monitor and control offenders who would
otherwise be incarcerated.
   (d) The joint fiscal office shall track and report to the joint fiscal committee
in January and July of 2009 savings in the corrections budget resulting from
the provisions of this act, including savings resulting from increased use of
electronic monitoring equipment following passage of this act.
Sec. 16. STATEWIDE DRUG COURT STUDY
   The court administrator, the defender general, the executive director of the
department of state’s attorneys and sheriffs, the deputy commissioner of the
department of health in charge of the office of alcohol and drug abuse
programs, and the commissioner of mental health shall report to the house and
senate committees on judiciary by December 15, 2008, on the advisability and
feasibility of expanding the drug court program to every county in the state.
The report shall address:
      (1) the financial costs of expanding the drug court program statewide;
     (2) the workforce impact which a statewide expansion of the program
would have and whether new staff would be required;
     (3) whether current state facilities have the capacity to support statewide
expansion and whether and where any new facilities would be required; and
1836                     JOURNAL OF THE SENATE
     (4) any other matter deemed relevant to the issue of statewide drug court
expansion.
Sec. 17. PUBLIC INEBRIATES TASK FORCE
   (a) A public inebriates task force is established. The task force shall
consist of the following members:
      (1) Two members employed by the office of alcohol and drug abuse
programs appointed by the commissioner of the department of health.
      (2) Two substance abuse treatment providers appointed by the substance
abuse treatment providers association.
       (3) One member appointed by the department of public safety.
       (4) One member appointed by the Vermont police association.
       (5) One member appointed by the Vermont League of Cities and Towns.
      (6) Two members appointed by the Vermont medical society who shall
be hospital emergency department personnel.
       (7) Two members appointed by the Vermont recovery network.
    (8) Two employees of the department of corrections appointed by the
commissioner of the department of corrections.
     (9) A representative of the Vermont Association of Hospitals and Health
Systems.
   (b) The task force shall report to the senate and house committees on
judiciary, institutions, and appropriations no later than January 1, 2010 with a
plan to ensure that public inebriates are given appropriate care rather than
incarcerated. The plan shall ensure the regional availability of supportive
voluntary and secure accommodations for public inebriates by January 1, 2011,
and shall include a timetable for providing reimbursement of expenses to
programs that house and maintain public inebriates.
Sec. 18. ACCOUNTABILITY; REPORTS
   (a) On or before January 15, 2009, the commissioner of corrections and the
court administrator shall report to the senate and house committees on
judiciary and the house committee on corrections and institutions on
implementing the screening and assessment pilot program authorized and
funded in Sec. 15(b)(2) of this act, as well as recommendations for continuing
the program or expanding the program or both.
   (b) On or before January 15, 2010, the commissioner of corrections shall
report to the senate committee on judiciary, the senate committee on
                             FRIDAY, MAY 2, 2008                          1837
institutions, the house committee on corrections and institutions, and the house
committee on judiciary on:
      (1) the prevalence of co-occurring mental health and substance abuse
disorders among those committed to the custody of the commissioner of
corrections;
       (2) the success of and problems encountered in:
         (A) expanding the ISAP program pursuant to Sec. 15(b)(1) of this
act;
         (B) developing reentry plans which identify services needed by
offenders upon release, and in working with community providers to ensure
that each offender receives those services immediately upon release;
         (C) implementing the screening and assessment pilot program
authorized and funded in Sec. 15(b)(2) of this act, as well as recommendations
for continuing the program or expanding the program or both. The
commissioner shall make this report jointly with the court administrator;
     (3) the progress made since passage of this act in establishing a
comprehensive system of community substance abuse treatment services
which is coordinated with corrections services;
      (4) a proposal to increase the furlough days for nonlisted offenders from
the existing average of 53 to a target of 75; and
      (5) the advisability of establishing a third 100-bed work camp in fiscal
year 2011.
   (c) On or before January 15, 2011, the commissioner of corrections shall
report to the senate committee on judiciary, the house committee on
corrections and institutions, and the house committee on judiciary on the
successes of and problems encountered in working to meet the following goals
with the funds provided and through the programs established in this act:
      (1) increase by at least 30 the number of offenders with sentences of one
or more years placed in the department of corrections’ intensive substance
abuse program (ISAP) pursuant to 28 V.S.A. § 808(a)(7);
      (2) move at least 10 offenders who are in the intensive phase of
receiving ISAP services under 28 V.S.A. § 808(a)(7) and who are unsuccessful
and would otherwise be reincarcerated to a community-based residential
substance abuse treatment program which may be a component of ISAP;
      (3) incarcerate no more than 20 percent of offenders who are receiving
substance abuse treatment services under 28 V.S.A. § 808(a)(7);
1838                      JOURNAL OF THE SENATE
      (4) reduce by 10 percent the number of reincarcerations of those on
conditional reentry with a high need for substance abuse treatment;
      (5) increase by 25 the average per month number of inmates released on
furlough, pursuant to 28 V.S.A. § 808; and
      (6) increase the average number of days inmates are released on
reintegration furlough pursuant to 28 V.S.A. § 808(a)(8) prior to the minimum
sentence to as close to 90 days as possible.
   (d) Until the corrections oversight committee informs the commissioner
that it no longer requires the information, the commissioner of corrections shall
include in monthly reports to the committee:
      (1) the number of inmates eligible for furlough under 28 V.S.A. § 808
and considered appropriate for release by the commissioner but who have not
been released because the commissioner is unable to find appropriate housing,
employment, treatment, or other services;
      (2) which treatment or other services would have been necessary and in
which geographic region the services would have been needed to enable
release;
      (3) the number of days of incarceration that could have been avoided if
the community resources had been available and these offenders had been
released; and
      (4) a detailed description of the progress made on increasing the use of
electronic monitoring as authorized by 28 V.S.A. §§ 202, 403(1) and 808(b).
   (e) On or before January 15, 2011, the court administrator’s office, in
consultation with the office of alcohol and drug abuse programs in the
Vermont department of health, the department of corrections, the defender
general, and the executive director of the department of state’s attorneys and
sheriffs, shall report to the senate and house committees on judiciary on the
costs, cost savings, and effectiveness of the screening and assessment pilot
project established pursuant to Sec. 15(b)(2) of this act and shall make a
recommendation as to the continuation of the screening and assessment pilot
project and its expansion to other counties.
   (f) The joint fiscal office and the office of finance and management shall
jointly document the impact of the policies and provisions of this act on
corrections costs and shall report their findings to the general assembly on or
before January 15, 2010, and in January of each year for five years thereafter.
   (g) The Vermont center for justice research shall study and evaluate the
effectiveness of the system of administrative probation established by
subsection 205(c) of Title 28, including whether the people who receive such
                            FRIDAY, MAY 2, 2008                          1839
probation commit further offenses and the nature of those offenses. The center
shall report its evaluation of administrative probation to the senate and house
committees on judiciary on or before December 15, 2011.
Sec. 19. CORRECTIONS OVERSIGHT COMMITTEE; CHILDREN OF
INCARCERATED PARENTS; REPORT
   (a) During the summer and fall of 2008, the corrections oversight
committee shall investigate issues regarding minor children of incarcerated
parents. The investigation shall include:
      (1) A report from the commissioner of corrections on data on the
prevalence of inmates who are parents of minor children including the number
of inmates who are primary caregivers of minor children.
     (2) Identification of mail, telephone, and visiting policies that promote
appropriate family contact.
     (3) A report from the secretary of human services on how to provide
appropriate support and assistance to the children of incarcerated parents.
  (b) The committee shall make recommendations regarding:
      (1) Ways to increase and improve appropriate contact between minor
children and their incarcerated parents.
      (2) Data to be collected to enable the general assembly to understand the
impact of incarceration of parents on minor children and to help policy makers
access resources and formulate solutions. The committee shall also make
recommendations on how the data will be collected.
     (3) Cost estimates of resources needed to make recommended changes.
      (4) Appropriate support and assistance to the children of incarcerated
parents using existing resources, programs, and staff of the agency of human
services.
   (c) The committee shall report its findings and recommendations to the
general assembly on or before January 15, 2009.
Sec. 20. 2 V.S.A. § 801(d) is amended to read:
   (d) When the general assembly is in session, the committee shall meet at
the call of the chair. The committee may meet four six times during
adjournment, and may meet more often subject to approval of the speaker of
the house and the president pro tempore of the senate.
1840                      JOURNAL OF THE SENATE
Sec. 21.  LAW ENFORCEMENT ADVISORY BOARD; ANNUAL
REPORT; CHILDREN OF ARRESTED PARENTS
   The law enforcement advisory board created in 24 V.S.A. § 1939 shall
review and evaluate current law enforcement practices and procedures in
arresting a parent or caretaker of a minor child, particularly when the child is
present at the time of the arrest. The board shall solicit input from Kids Apart,
the Vermont agency of human services’ child trauma work group, and the
Vermont network against domestic and sexual violence. In its 2009 annual
report to the general assembly and the governor, the board shall report its
findings and recommendations for improving current practices and procedures.
Sec. 22. EFFECTIVE DATES
   (a) Secs. 11 and 12 of this act shall take effect on July 1, 2011.
   (b) All remaining sections of this act shall take effect on July 1, 2008.
                                                 RICHARD W. SEARS, JR.
                                                 SUSAN J. BARTLETT
                                                 PHILIP B. SCOTT
                                             Committee on the part of the Senate
                                                 JASON LORBER
                                                 ALICE EMMONS
                                                 JOHN RODGERS
                                             Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
 Rules Suspended; House Proposal of Amendment to Senate Proposal of
                     Amendment Concurred In
                                      H. 402.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and House proposal of amendment to Senate
proposal of amendment to House bill entitled:
  An act relating to recapture of health insurance benefits by Group F
members of the Vermont state retirement system.
   Was taken up for immediate consideration.
  The House concurs in the Senate proposal of amendment with a proposal of
amendment to read as follows:
   By adding Sec. 3 and Sec. 4 to read as follows:
                             FRIDAY, MAY 2, 2008                          1841
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.
   Thereupon, the question, Shall the Senate concur in the House proposal of
amendment to the Senate proposal of amendment?, was decided in the
affirmative.
1842                      JOURNAL OF THE SENATE
    Rules Suspended; Report of Committees of Conference Accepted and
                  Adopted on the Part of the Senate
                                       H. 890.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and the report of the Committee of Conference on
House bill entitled:
  An act relating to compensation for compensation for certain state
employees.
  Was taken up for immediate consideration.
   Senator White, for the Committee of Conference, submitted the following
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:
  H. 890. An act relating to compensation for compensation for certain state
employees.
    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 out 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
                              FRIDAY, MAY 2, 2008                          1843
 (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
1844                      JOURNAL OF THE SENATE
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.
                             FRIDAY, MAY 2, 2008                            1845
      (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
1846                      JOURNAL OF THE SENATE
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
                             FRIDAY, MAY 2, 2008                            1847
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;
1848                      JOURNAL OF THE SENATE
       (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.
                              FRIDAY, MAY 2, 2008                         1849
   (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.
                                                  JEANETTE K. WHITE
                                                  WILLIAM T. DOYLE
                                                  SUSAN J. BARTLETT
                                             Committee on the part of the Senate
1850                      JOURNAL OF THE SENATE
                                                 KENNETH ATKINS
                                                 PATRICIA A. McDONALD
                                            Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                      Rules Suspended; Bills Messaged
    On motion of Senator Shumlin, the rules were suspended, and the following
bills were ordered messaged to the House forthwith:
   H. 402, H. 615, H. 859, H. 890.
  Rules Suspended; Reports of Committees of Conference Accepted and
                   Adopted on the Part of the Senate
                                      S. 107.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and the report of the Committee of Conference on
Senate bill entitled:
   An act relating to mapping class four town highways and trail and mass
discontinuances for unmapped town highways.
   Was taken up for immediate consideration.
   Senator White, for the Committee of Conference, submitted the following
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:
  S. 107. An act relating to mapping class four town highways and trail and
mass discontinuances for 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 out 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
                              FRIDAY, MAY 2, 2008                           1851
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:
                                         ***
                                                   JEANETTE K. WHITE
                                                   EDWARD S. FLANAGAN
                                                   WILLIAM T. DOYLE
                                               Committee on the part of the Senate
1852                      JOURNAL OF THE SENATE
                                                 SUE MINTER
                                                 DENNIS DEVEREUX
                                            Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                                      S. 246.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and the report of the Committee of Conference on
Senate bill entitled:
   An act relating to electronic access to criminal and family court records.
   Was taken up for immediate consideration.
   Senator Campbell, for the Committee of Conference, submitted the
following 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:
   S. 246. 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.
                              FRIDAY, MAY 2, 2008                            1853
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
1854                     JOURNAL OF THE SENATE
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:
                              FRIDAY, MAY 2, 2008                            1855
         (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
1856                      JOURNAL OF THE SENATE
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
                              FRIDAY, MAY 2, 2008                            1857
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:
1858                      JOURNAL OF THE SENATE
      (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.
                              FRIDAY, MAY 2, 2008                         1859
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.
1860                      JOURNAL OF THE SENATE
                                                 JOHN F. CAMPBELL
                                                 KEVIN J. MULLIN
                                                 ALICE W. NITKA
                                            Committee on the part of the Senate
                                                 MAXINE JO GRAD
                                                 JIM CONDON
                                                 KATHLEEN KEENAN
                                            Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                                      S. 250.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and the report of the Committee of Conference on
Senate bill entitled:
   An act relating to decreasing the amounts of cocaine and heroin required to
be possessed to trigger drug trafficking penalties.
   Was taken up for immediate consideration.
   Senator Sears, for the Committee of Conference, submitted the following
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:
   S. 250. An act relating to decreasing the amounts of cocaine and heroin
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 out 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
                             FRIDAY, MAY 2, 2008                            1861
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.
1862                      JOURNAL OF THE SENATE
   (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.
                                                 RICHARD W. SEARS, JR.
                                                 KEVIN J. MULLIN
                                                 WILLIAM H. CARRIS
                                            Committee on the part of the Senate
                                                 WILLIM LIPPERT
                                                 MAXINE JO GRAD
                                                 MARGARET FLORY
                                            Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                                      S. 281.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and the report of the Committee of Conference on
Senate bill entitled:
   An act relating to end-of-life care and plain management.
   Was taken up for immediate consideration.
   Senator Kittell, for the Committee of Conference, submitted the following
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:
   S. 281. An act relating to end-of-life care and plain 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 out 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
                             FRIDAY, MAY 2, 2008                           1863
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
1864                       JOURNAL OF THE SENATE
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.
                                                   SARA B. KITTELL
                                                   EDWARD S. FLANAGAN
                                                   DOUGLAS A. RACINE
                                               Committee on the part of the Senate
                                                   WILLIAM FRANK
                                                   NORMAN McALLISTER
                                                   KATHLEEN C. KEENAN
                                               Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                              FRIDAY, MAY 2, 2008                            1865
  Rules Suspended; Point of Order; Report of Committee of Conference
            Accepted and Adopted on the Part of the Senate
                                       H. 711.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and the report of the Committee of Conference on
House bill entitled:
   An act relating to agricultural, forestry, and horticultural education.
   Was taken up for immediate consideration.
   Senator Starr, for the Committee of Conference, submitted the following
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:
   H. 711. An act relating to agricultural, forestry, and horticultural education.
    Respectfully reports that it has met and considered the same and
recommends that 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:
        * * * Agricultural, Forestry, and Horticultural Education * * *
Sec. 1. INTENT
   It is the intent of Secs. 1–3 of this act to enhance the ability of regional
technical centers and secondary schools in Vermont to teach and prepare
students for careers in agriculture, forestry, and horticulture and to determine
what steps are necessary to prepare the next generation for involvement in
these sectors of Vermont’s economy.
Sec. 2. FINDINGS
   The general assembly finds that:
      (1) Education and training are essential to meeting the goals of No. 38
of the Acts of 2007, pertaining to the viability of Vermont agriculture.
       (2)  There is currently an absence of statewide oversight and
coordination of agriculture, forestry, and horticulture (AF&H) education and
training.
1866                        JOURNAL OF THE SENATE
      (3) There is a teacher crisis in secondary and postsecondary AF&H
education because the pool of applicants is not adequate to replace retiring
faculty, some of whom have more than 40 years of experience.
         (4) Careers in the AF&H fields:
       (A) provide business opportunities while taking advantage of
Vermont’s natural assets;
        (B) benefit local economies due to the multiplier effect of local
investment; and
           (C) provide opportunities for young Vermonters to remain in the
state.
       (5) In order for Vermont to capitalize on opportunities in the AF&H
fields, comprehensive and effective postsecondary education and training are
needed.
       (6) It is critical to understand the current system, methods, and
curriculum of educating students in the AF&H fields before taking additional
steps toward that end.
Sec. 3. AGRICULTURAL, FORESTRY, AND HORTICULTURAL
EDUCATION
   (a) The agency of agriculture, food and markets and the department of
education shall jointly perform a needs assessment on AF&H education in
secondary schools, regional technical centers, and the community high school
of Vermont and provide recommendations for technical assistance for existing
programs.
   (b) A report of the needs assessment required in subsection (a) of this
section shall be delivered to the house and senate committees on agriculture
and on education, the house committee on institutions and corrections, and the
senate committee on economic development, housing and general affairs by
January 15, 2009. The report of the needs assessment shall include discussion
and recommendations relating to the following:
    (1) The ability of secondary schools, regional technical centers, and the
community high school of Vermont to prepare students for AF&H careers.
      (2) The effectiveness of the organizational structures of secondary
schools, regional technical centers, and the community high school of Vermont
in providing AF&H education.
      (3) The reasons why some secondary schools, regional technical centers,
and the community high school of Vermont do not provide AF&H education.
         (4) The opportunities for and barriers to AF&H career paths.
                             FRIDAY, MAY 2, 2008                           1867
      (5) Options for providing statewide leadership on AF&H technical and
curriculum support.
      (6) An assessment of postsecondary teacher degree and certification
programs or opportunities at Vermont institutions of higher learning.
      (7) The role organizations such as FFA, the Vermont youth conservation
corps, FEED (food education every day), Foodworks, NOFA (northeast
organic farming association), and 4-H perform in support of AF&H education.
      (8) The opportunities to enhance AF&H education through collaboration
of secondary and postsecondary educational institutions.
   (c) The secretary of the agency of agriculture, food and markets and the
commissioner of education shall propose funding needed to support the intent
of this act in their respective budgets for FY 2010.
   (d) Resources utilized in preparing the report required in subsection (b) of
this section shall include:
         (1) current and retired instructors;
      (2) regional technical center directors and administrators of the
community high school of Vermont;
      (3) secondary schools and regional technical centers with existing
AF&H education programs;
         (4) postsecondary schools including Vermont Technical College
         (5) the workforce training council and the department of labor;
        (6) other northeastern states where similar efforts are being made and
models have been created.
         (7) the department of corrections
         (8) the Vermont youth conservation corps
   (e) The report required in subsection (b) of this section shall also include a
summary of the agency of agriculture, food and markets’ and the department of
education’s efforts to implement the provisions of Sec. 4 of No. 201 of the
2005 Adj. Sess. (2006).
                         * * * Animal Dissection * * *
Sec. 4. 16 V.S.A. § 912 is added to read:
§ 912. PUPIL’S RIGHT OF REFUSAL; ANIMAL DISSECTION
   (a) A student in a public elementary or secondary school or an approved
independent school shall have the right to be excused from participating in any
1868                      JOURNAL OF THE SENATE
lesson, exercise, or assessment requiring the student to dissect, vivisect, or
otherwise harm or destroy an animal or any part of an animal, or to observe
any of these activities, as part of a course of instruction.
  (b) Each school district and approved independent school shall adopt and
implement policies regarding a student’s right to be excused under this section,
which shall include:
       (1) Procedures by which the school shall provide:
         (A) Timely notification to each student enrolled in the course and to
the student’s parent or guardian of the student’s right to be excused from
participating in or observing the lesson; and
          (B) The process by which a student may exercise this right.
      (2) Alternative education methods through which a student excused
under this section can learn and be assessed on material required by the course.
       (3) A statement that no student shall be discriminated against based on
his or her decision to exercise the right to be excused afforded by this section.
   (c) As used in this section, the word “animal” means any organism of the
kingdom animalia and includes an animal’s cadaver or the severed parts of an
animal’s cadaver.
Sec. 5. PUPIL’S RIGHT OF REFUSAL; ANIMAL DISSECTION
   On or before August 15, 2008, each school district and approved
independent school shall develop and implement procedures pursuant to
16 V.S.A. § 912(b), created in Sec. 4 of this act, which shall be adopted as
policy within the district or approved independent school no later than
November 1, 2008.
       * * * Unnecessary, Duplicative, and Burdensome Reports; Repeal * * *
Sec. 6. REPEAL; MANDATED REPORTING
   The following are repealed:
       (1) 16 V.S.A. § 164(8) (state board of education’s biennial report to the
legislature regarding its activities and including the commissioner’s report).
      (2) 16 V.S.A. § 216(c)(2) (commissioner’s annually updated and
published list of school and community programs that have the potential to
improve childhood wellness).
    (3) 16 V.S.A. § 1165(f) (school district’s annual report to the
commissioner regarding alcohol and drug abuse in the district).
                             FRIDAY, MAY 2, 2008                            1869
     (4) 16 V.S.A. § 1165(g) (commissioner’s annual report to the alcohol
and drug abuse council regarding the progress of alcohol and drug abuse
education in the schools).
      (5) 16 V.S.A. § 1422(d) (superintendent’s annual report to the
department regarding results of hearing and vision tests).
      (6) Sec. 121a(d) of No. 71 of the Acts of the 1997 Adj. Sess. (1998)
(annual report from the department and others to the legislature regarding the
status of technical education pilot projects).
     (7) Sec. 3(b) of No. 150 of the Acts of the 1999 Adj. Sess. (2000) as
amended by Sec. 21 of No. 182 of the Acts of the 2005 Adj. Sess. (2006)
(commissioner’s report concerning initial implementation of regional high
school choice).
       (8) Sec. 156(c) of No. 152 of the Acts of the 1999 Adj. Sess. (2000)
(department’s annual report regarding special education cost-containment
initiatives).
      (9) 16 V.S.A. § 2177(d) (the Vermont state colleges’ biennial report to
the legislature regarding its activities).
      (10) 16 V.S.A. § 2281(c) (the university of Vermont president’s biennial
report to the legislature regarding the activities of the university and the state
agricultural college).
      (11) 16 V.S.A. § 2322 (the state agricultural college dean’s biennial
submission of the estimated budget for the college’s research station and a
statement of federal and other available funding).
       (12) 16 V.S.A. § 2536 (the university of Vermont and state agricultural
college trustees’ annual report to the legislature and the governor concerning
the work of its units, including receipts, disbursements, resources, and
liabilities).
       (13) 16 V.S.A. § 2856(g) (adjutant general’s annual report to the
legislature regarding educational loan programs for national guard members).
       (14) Sec. 90 of No. 60 of the Acts of 1997 as amended by Sec. 33 of
No. 49 of the Acts 1999 (repeal of legislative oversight committee on
restructuring education and assumption of the committee’s duties by standing
legislative committees).
     (15) Sec. 71(f) of No. 68 of the Acts of the 2002 Adj. Sess. (2003) as
amended by Sec. 1 of No. 4 of the Acts of 2005 of No. 4 of the Acts of 2005
(annual report of the council on education governance to the legislature
1870                      JOURNAL OF THE SENATE
regarding its progress and any recommendations for legislation necessary to
comply with the No Child Left Behind Act).
       (16) Sec. 168a(c) of No. 71 of the Acts of 2005 (commissioner issues a
request for proposals, chooses grant recipients, determines the amounts to be
awarded to each recipient, and monitors the progress of each grant recipient for
fiscal year 2006; annual report by the council on education governance to the
legislature regarding its progress and recommendations for legislative change).
Sec. 7. 16 V.S.A. § 165(a)(2) is amended to read:
      (2) The school, at least annually, reports student performance results to
community members in a format selected by the school board. In the case of a
regional technical center, the community means the school districts in the
service region. The school report shall include:
         (A) information indicating progress toward meeting standards from
the most recent measure taken;
         (B) information about the health and social well-being status of
children in the school district;
         (C) information indicating progress toward meeting the goals of an
annual action plan;
          (D) any other statistical information about the school or community
that the school board deems necessary to place student performance results in
context;
         (E) information about early reading instruction provided under
subsection 2903(c) of this title;
         (F) early care and education opportunities available to children;
         (G) community support available to families;
         (H) a description of how the school ensures that each student receives
appropriate career counseling and program information regarding availability
of education and apprenticeship program offerings at technical centers;
         (I) if the school is a secondary school, data describing student
participation in technical education, regional job opportunities and the number
of graduates from the previous year who have entered postsecondary
education, the military and the job market;
         (J) if the school is a secondary school, information and supporting
data presented in a manner designed to protect student confidentiality on the
following:
            (i) student attendance, including unexcused absences;
                              FRIDAY, MAY 2, 2008                            1871
            (ii) student discipline; and
            (iii) if the school is a secondary school, the dropout and
graduation rates; and
         (K) data provided by the commissioner which enable a comparison
with other schools, or school districts if school level data are not available, for
cost-effectiveness. The commissioner shall establish which data are to be
included pursuant to this subdivision and, notwithstanding that the other
elements of the report are to be presented in a format selected by the school
board, shall develop a common format to be used by each school in presenting
the data to community members. The commissioner shall provide the most
recent data available to each school no later than October 1 of each year. Data
to be presented may include student-to-teacher ratio, administrator-to-student
ratio, administrator-to-teacher ratio, and cost per pupil.
Sec. 8. 16 V.S.A. § 909(b) is amended to read:
   (b) The department of education shall:
       (1) provide for pre-service and in-service training programs for school
personnel on alcohol and drug abuse prevention and on the effects and legal
consequences of the possession and use of tobacco products. At least one
training program shall be made available in electronic format. Each
superintendent shall determine the content, duration, and frequency of training
on issues concerning alcohol and drug abuse for the districts in his or her
supervisory union;
                                       ***
Sec. 9. 16 V.S.A. § 2177(b) is amended to read:
   (b) The books and accounts of the corporation shall be audited annually as
of June 30 under the supervision of the auditor of accounts who shall publish
the audit report in detail.
Sec. 10. 16 V.S.A. § 2281(a) is amended to read:
   (a) The books and accounts of the University of Vermont and State
Agricultural College shall be audited annually as of June 30, under the
supervision of the auditor of accounts. The report of such audit shall be
published in detail by the auditor of accounts.
Sec. 11. 24 V.S.A. § 5261 is amended to read:
§ 5261. ANNUAL REPORT; AUDIT
       On or before March 31 of each year, the authority shall report on its
activities for the preceding calendar year to the governor and to the general
1872                     JOURNAL OF THE SENATE
assembly. Each report shall set forth a complete operating and financial
statement covering its operations during the year. The authority shall cause an
audit of its books and accounts to be made at least once in each year by
certified public accountants and the cost thereof shall be considered an expense
of the authority and a copy thereof shall be filed with the state treasurer.
Sec. 12. Sec. 7 of No. 43 of the Acts of 2005 is amended to read:
Sec. 7. UNIVERSITY OF VERMONT
   The sum of $1,700,000 is appropriated to the department of buildings and
general services for the University of Vermont to assist with construction,
renovation, and major facility maintenance to the university campus that
advances the mission of the university to prepare the students to lead
productive lives and to interpret and share knowledge for the benefit of
Vermont and for society as a whole. The university shall file with the general
assembly an annual report, on or before January 15, that details the status of
capital projects funded in whole or in part by state capital appropriations.
(Total appropriation – Section 7                                    $1,700,000)
Sec. 13. Sec. 8 of No. 147 of the Acts of the 2005 Adj. Sess. (2006) is
amended to read:
Sec. 8. UNIVERSITY OF VERMONT
   The sum of $1,800,000 is appropriated to the University of Vermont to
assist with construction of the plant sciences building and with major facility
maintenance to the university campus. The university shall file with the
general assembly an annual report, on or before January 15, that details the
status of capital projects funded in whole or in part by state capital
appropriations.
(Total appropriation – Section 8                                    $1,800,000)
Sec. 14. Sec. 9 of No. 147 of the Acts of the 2005 Adj. Sess. (2006) is
amended to read:
Sec. 9. VERMONT STATE COLLEGES
   The sum of $1,800,000 is appropriated to the Vermont state colleges for
major facility maintenance. The state colleges shall file with the general
assembly an annual report, on or before January 15, that details the status of
capital projects funded in whole or in part by state capital appropriations.
(Total appropriation – Section 9                                    $1,800,000)
                              FRIDAY, MAY 2, 2008                            1873
Sec. 15. Sec. 4(c) of No. 192 of the Acts of the 2005 Adj. Sess. (2006) is
amended to read:
   (c) On or before January 15, 2007, and on or before January 15 for five
years thereafter, the task force shall report on its activities during the preceding
year to the house and senate committees on education and judiciary. The task
force shall cease to exist after it files the report due on January 15, 2012.
Sec. 16. Sec. 9 of No. 52 of the Acts of 2007 is amended to read:
Sec. 9. UNIVERSITY OF VERMONT
   The sum of $1,600,000 is appropriated to the University of Vermont for
construction, renovation, or maintenance projects. The university shall file
with the general assembly an annual report, on or before January 15, that
details the status of capital projects funded in whole or in part by state capital
appropriations.
(Total appropriation – Section 9                                $ 1,600,000)
Sec. 17. Sec. 10 of No. 52 of the Acts of 2007 is amended to read:
Sec. 10. VERMONT STATE COLLEGES
   The sum of $1,600,000 is appropriated to the Vermont State Colleges for
major facility maintenance. The state colleges shall file with the general
assembly an annual report, on or before January 15, that details the status of
capital projects funded in whole or in part by state capital appropriations.
(Total appropriation – Section 10                               $ 1,600,000)
                      * * * Special Education Audits * * *
Sec. 18. SPECIAL EDUCATION AUDITS
   (a) The commissioner of education, in consultation with the Vermont
superintendents association, the Vermont council of special education
administrators, and the Vermont association for school business officials, shall
examine the process by which the department audits special education
expenditure reports submitted for reimbursement under chapter 101 of Title 16.
In addition, the commissioner shall consider whether certified public
accountants who are auditing school districts for other purposes could also
conduct special education expenditure audits with departmental supervision.
The commissioner shall make recommendations to improve the timeliness and
efficiency of the audit process that, at a minimum, include provisions to ensure
that:
       (1) Each audit is completed and provided to the district within one year
after the district submits its expenditure report.
1874                      JOURNAL OF THE SENATE
      (2) The department provides clear guidelines to districts regarding the
type of records that will be audited and how to maintain those records in the
most efficient way.
      (3) Each audit report provides recommendations to a district to help it
correct any deficiencies in its system for making special education
reimbursement claims.
   (b) The commissioner of education, in consultation with the Vermont
superintendents association, the Vermont council of special education
administrators, and the Vermont association for school business officials, shall
also consider and make recommendations to amend the special education
funding provisions of chapter 101 of Title 16 in order to streamline the process
by which districts document costs and submit claims for reimbursement.
   (c) The commissioner shall submit the recommendations required in
subsections (a) and (b) of this section to the house and senate committees on
education by January 15, 2009.
   (d) The department shall not conduct audits of any special education
expenditure report submitted for reimbursement in connection with the 2007–
2008 school year; provided, however, the superintendents of districts
submitting those reports shall certify to the commissioner that:
      (1) Appropriate supporting documentation for eligible expenditures,
such as invoices and tuition bills, have been received and are on file.
       (2) Time studies as described in the Technical Guide for Special
Education Staff Documentation have been conducted and are on file for all
staff time for which reimbursement is sought.
            * * * Union School Districts; Streamlining Process * * *
Sec. 19. 16 V.S.A. § 701 is amended to read:
§ 701. POLICY
   It is declared to be the policy of the state to provide equal educational
opportunities for all children in Vermont by authorizing two or more school
districts, including an existing union school district, to establish a union school
district for the purpose of owning, constructing, maintaining, or operating
schools and to constitute the district so formed a municipal corporation with all
of the rights and responsibilities which a town school district has in providing
education for its youth.
                              FRIDAY, MAY 2, 2008                            1875
Sec. 20. 16 V.S.A. § 701b is amended to read:
§ 701b. APPLICATION OF CHAPTER
    (a) Whenever referred to in this subchapter, the term “school district” shall
include a “town school district,” “incorporated school district,” “union school
district,” or “city school district,” and this subchapter shall accordingly apply
to the organization and operation of a union school district of which any school
district is a member or prospective member. The provisions of this subchapter
shall apply and take precedence in the event of any conflict between those
provisions and the provisions of the charter of a municipality which is a
member or prospective member of a union district. Upon the organization of a
union district under this subchapter, any charter of a member municipality is
considered to be thereby amended accordingly without further action.
   (b) If a union school district votes to participate in a planning committee
pursuant to section 706 of this title, its member districts shall not participate on
the study committee. If the participating union school district votes to join
another union school district that is successfully formed, any conflicting terms
of its articles of agreement are repealed in favor of the terms of the articles of
agreement of the newly formed union school district. If the proposed union
school district is to be a unified union school district, however, only town
districts and incorporated districts may participate in the joint study and vote
on its formation. A successful vote to form a unified union school district
dissolves any preexisting union school district within its borders, and any
assets or liabilities held by that union school district shall be transferred to the
new unified union district.
Sec. 21. 16 V.S.A. § 706 is amended to read:
§ 706.  FORMATION OF PROPOSAL TO FORM                                 PLANNING
COMMITTEE
   When it appears to the boards of school directors of two or more school
districts believe that a planning committee should be established to study the
advisability of forming a union school district, or if petitioned to do so by five
percent of the voters eligible to vote at the last annual or special school district
meeting petition the board of their respective school districts to do so, each of
the boards of school directors shall meet with the superintendent of schools for
each participating district and with his or her. With the advice of the
superintendent, the boards shall establish a budget, and shall fix the number of
persons who will to serve on the planning committee, for the purpose of
preparing that prepares the report required by this subchapter. Each The
boards’ proposal shall ensure that each participating district shall share in the
committee’s budget, and as nearly as possible be represented on the planning
1876                            JOURNAL OF THE SENATE
committee, in that proportion which the equalized pupils (as defined in section
4001 of this title) of the district bear to the total equalized pupils of all school
districts which intending to participate in the committee’s study. It is not
necessary that each participating district vote to establish a union school
district planning committee on the same date. Nothing herein in this section
shall be construed to prohibit informal exploration between and among school
districts prior to the formation of a planning committee established pursuant to
this section.
Sec. 22. 16 V.S.A. § 706a is amended to read:
§ 706a. APPROVAL OF PLANNING BUDGET; APPOINTMENT OF
PLANNING COMMITTEE
   When the budget is established, participating district shares calculated, and
the number of persons to serve on the planning committee is fixed, the
  (a) If the proposed budget established in section 706 of this chapter exceeds
$25,000.00, then:
          (1) The voters of each participating district shall be warned to meet at an
annual or special school district meeting to vote on the following question a
question in substantially the following form: “Shall the school district of
............................... appropriate $ ............................... as funds necessary to
support the district’s financial share of the district in order to finance the a
study of to determine the advisability of forming a union school district with
some or all of the following school districts: ...............................
and………….., and the school directors be authorized to appoint a planning
committee for that purpose? It is estimated that the district’s share, if all the
above-listed districts vote to participate, will be $........................................
The total proposed budget, to be shared by all participating districts, is
$..........” It is not necessary for the voters of each participating district to vote
on the same date to establish a union school district planning committee.
       (2) If the vote is in the affirmative in two or more districts, the board of
school directors of each participating district boards of the participating
districts shall appoint a planning committee consisting of the number of
persons previously fixed. At least one school director from each participating
district shall be on the committee. A district board may appoint residents to
the committee who are not school directors.
       In the event the district votes to join the union school district, any
       (3) The sums expended by it for planning purposes under this section,
shall be considered a part of the approved cost of any project in which the
district participates in pursuant to sections 3447 to through 3449 of this title.
                              FRIDAY, MAY 2, 2008                           1877
    (b) If the proposed budget established in section 706 of this chapter does
not exceed $25,000.00, then the boards of the participating districts shall
appoint a planning committee consisting of the number of persons previously
fixed. At least one school director from each participating district shall be on
the committee. A district board may appoint residents who are not school
directors to the committee. The sums expended for planning purposes under
this section shall be considered a part of the approved cost of any project in
which the district participates pursuant to sections 3447 through 3449 of this
title.
Sec. 23. 16 V.S.A. § 706b is amended to read:
§ 706b. PLANNING COMMITTEE; CONTENTS OF PLANNING
COMMITTEE REPORT
   (a) Planning committee. When a planning committee is appointed, its
chairman the members shall elect a chair who shall notify the commissioner of
education, who of the appointment. The commissioner shall then cooperate
with the planning committee and may make available the department staff of
the department of education in the conduct of a available to assist in the study
of the proposed union school district. The committee is a public body pursuant
to 1 V.S.A. § 310(3). The committee shall cease to exist when the clerk of
each district voting on a proposal to establish a union school district has
certified the results of the vote to the commissioner of education pursuant to
section 706g of this chapter.
    (b) Decision and report. The planning committee shall may determine that
it is inadvisable to form a union school district or it may prepare a report in the
form of an agreement between member districts for the government of the
proposed union school district. The In making its determination, the
committee may contact additional school districts it believes may be advisable
to include within a new union school district. If the committee decides to
recommend formation of a union school district, its report shall specify:
      (1) the names of school districts the committee considers necessary to
the establishment of the proposed union; provided, however, only districts
named in the warning for the vote under section 706a of this chapter may be
identified as necessary;
      (2) the names of additional school districts the committee considers
advisable to be included include in the proposed union school district;
     (3) the class of schools grades to be operated by the proposed union
school district;
1878                      JOURNAL OF THE SENATE
      (4) the cost and general location of any proposed new schools to be
constructed and the cost and general description of any proposed renovations;
       (5) a plan for the first year of the union school district’s operation for
the transportation of students, teaching the assignment of staff, and curriculum
to be provided that is consistent with existing contracts, collective bargaining
agreements, or other provisions of law. The board of the union school district
shall make all subsequent decisions regarding transportation, staff, and
curriculum subject to existing contracts, collective bargaining agreements, or
other provisions of law;
     (6) the indebtedness of proposed member districts which that the union
school district shall assume;
       (7) the specific properties pieces of real property of proposed member
districts which that the union is to shall acquire, their valuation, and how the
union school district shall pay for them;
       (8) the allocation of capital and operating expenses of the union school
district among the member districts;
      (9) consistent with the proportional representation requirements of the
equal protection clause of the Constitution of the United States, the method of
apportioning the representation which that each proposed member district shall
have on the union school board. The union school board shall have no more
than eighteen 18 members, and each member district shall be entitled to at least
one representative;
      (10) the term of office of directors initially elected shall, to be arranged
so that one-third expire on the day of the second annual meeting of the
respective districts, one-third on the day of the third annual meeting of the
respective districts, and one-third on the day of the fourth annual meeting of
the respective districts, or as near to that proportion as possible;
     (11) the date on which the union school district proposal will be
submitted to the voters; and
     (12) the date on which the union school district will begin operating
schools and providing educational services; and
       (13) any other matters which that the committee considers pertinent,
including whether votes on the union school district budget or public questions
shall be by Australian ballot.
                               FRIDAY, MAY 2, 2008                             1879
Sec. 24. 16 V.S.A. § 706c is amended to read:
§ 706c. APPROVAL BY STATE BOARD OF EDUCATION
   The If a planning committee prepares a report under section 706b of this
chapter, the committee shall transmit the report to the commissioner who shall
submit the report with his or her recommendations to the state board of
education. That board after notice to the planning committee and after giving
the committee an opportunity to be heard shall consider the report and the
commissioner’s recommendations, and decide whether the formation of such
union school district will be for the best interest of the state, the students, and
of the school districts proposed as to be members of the union. The board may
request the commissioner and the planning committee to make further
investigation and may consider any other information deemed by it to be
pertinent. If, after due consideration and any further meetings as it may deem
necessary, the board finds that the formation of the proposed union school
district is in the best interests of the state, the students, and the school districts
involved, it shall approve the report submitted by the committee, together with
any amendments, as a final report of the planning committee, and shall give
notice of its action to the committee. The chairman chair of the planning
committee shall file a copy of the final report with the town clerk of each
proposed member district at least 20 days prior to the vote to establish the
union.
Sec. 25. 16 V.S.A. § 706d is amended to read:
§ 706d. VOTE TO ESTABLISH UNION SCHOOL DISTRICTS
   Each school district which that is designated in the final report as necessary
to the establishment of the proposed union school district shall vote, and any
school district which is designated in the final report as advisable to be
included in the proposed union district may, vote on the establishment of the
proposed union school district. The vote shall be held on the date specified in
the final report. The vote shall be warned in each proposed member school
district by the school board of that district, and the vote shall be by Australian
ballot, at separate school district meetings held on the same day and during the
same hours. The polls shall remain open at least eight hours. Early or
absentee voting as provided by sections 2531 to 2550 of Title 17 shall be
permitted. The meetings shall be warned as a special meeting of each school
district voting on the proposal. The school board of a school district
designated as “advisable” in the proposed union school district may choose not
to hold a meeting to vote on the question of establishing the union school
district; provided, however, it shall warn and conduct the meeting on
application of ten percent of the voters in the school district.
1880                      JOURNAL OF THE SENATE
Sec. 26. 16 V.S.A. § 706f is amended to read:
§ 706f. CONTENTS OF WARNING ON VOTE TO ESTABLISH THE
UNION
   The warning for each school district meeting shall contain two articles in
substantially the following form:
   WARNING
   The voters of the town (city, union, etc.) school district of             are
hereby notified and warned to meet at on the day of            ,    , to vote by
Australian ballot between the hours of      , at which time the polls will open,
and       , at which time the polls will close, upon the following articles of
business:
   Article I
   Shall the town (city, union, etc.) school district of   which the State Board
of Education has found (necessary or advisable) to include in the proposed
union school district, join with the school districts of      and     , which the
State Board of Education has found necessary to include in the proposed union
school district, and the school districts of     and     , which the State Board
of Education has found advisable to include in the proposed union school
district, for the purpose of forming a union school district, as provided in Title
16, Vermont Statutes Annotated, upon the following conditions and
agreements:
   (a) Class of schools Grades. The union school district shall operate and
manage (class of school or schools) offering instruction in grades _____
through _____.
                                      ***
Sec. 27. 16 V.S.A. § 706j is amended to read:
§ 706j. ORGANIZATION MEETING, BUSINESS TO BE TRANSACTED
   (a) The meeting shall be called to order by the commissioner of education
or a person designated by him the commissioner, and at such meeting or at an
adjournment thereof:
                                      ***
       (8) The board of directors may be authorized by the electorate to borrow
money pending receipt of payments from the education fund by the issuance of
its notes or orders payable not later than one year from date. A newly formed
union school district, however, is authorized to borrow sufficient funds to meet
pending obligations;
                               FRIDAY, MAY 2, 2008                            1881
                                       ***
Sec. 28. 16 V.S.A. § 706n is amended to read:
§ 706n.   AMENDMENTS TO AGREEMENTS REACHED BY
ESTABLISHMENT VOTE, ORGANIZATION MEETING, OR FINAL
REPORT
   (a) Any specific condition or agreement adopted by the member districts
pursuant to section 706f of this chapter at the vote held to establish the union,
or any amendment subsequently adopted, may be amended only at a special or
annual union district meeting,; provided that, the prior approval of the state
board of education shall be secured if the proposed amendment concerns
reducing the number of grades which that the union is to operate the prior
approval of the state board of education shall be secured. The warning for the
meeting shall contain each proposed amendment as a separate article. The vote
on each proposed amendment shall be by Australian ballot. Ballots shall be
counted in each member district, and the clerks of each member district shall
transmit the results of the vote in that district to the union school district clerk.
Results shall be reported to the public by member district; however, no
amendment is effective unless approved by a majority of those voting.
                                       ***
    (c) Any provision of the final report which was not contained in a separate
article in the warning required pursuant to section 706f of this chapter for the
vote to form the union may be amended by a simple majority vote of the union
board of school directors, or by any other majority of the board as is specified
for a particular matter in the report.
Sec. 29. 16 V.S.A. § 721a is amended to read:
§ 721a. WITHDRAWAL FROM DISTRICT
   (a) A school district which that is a member of a union school district may
vote to withdraw from the union school district if one year has elapsed since
said the union school district has become a body politic and corporate as
provided in section 706g of this title.
   (b) When a majority of the voters of a school district present and voting at
a school district meeting duly warned for that purpose vote votes to withdraw
from a union school district the vote shall be certified by the clerk of the school
district to the secretary of state who shall record the certificate in his or her
office and give notice of the vote to the commissioner of education and to the
other member districts of the union school district. Those member districts
shall vote by Australian ballot on the same day during the same hours whether
to ratify withdrawal of the member district. Withdrawal by a member district
1882                      JOURNAL OF THE SENATE
shall be effective only if approved by an affirmative vote of each of the other
member school districts within the union school district.
   (c) When If the vote to ratify the withdrawal of a member district is
approved by each of the other member districts, the union school district shall
notify the commissioner of education receives the notice from the secretary of
state he who shall advise the state board of education. At a meeting held
thereafter, if the state board finds that the pupils in the withdrawing district
will attend a school which that is in compliance with the rules adopted by the
board pertaining to educational programs, the board shall declare the
membership of the withdrawing school district in the union school district to
be at an end as of July 1 immediately following or as soon thereafter as the
obligations of said the withdrawing district have been paid to, or an agreement
made with, the union school district in an amount satisfactory to the electorate
of each member district of the union school district. The board shall give
notice to the remaining member districts in the union of its meeting and give
representatives of the remaining member districts an opportunity to be heard.
It shall then determine whether it is in the best interests of the state, the
students, and the school districts remaining in the union, that district for the
union to continue to exist. The board may declare the union dissolved as of
July 1 immediately following or as soon thereafter as each member district’s
obligations have been satisfied, or it may declare that the union shall continue
to exist despite the withdrawal of the former member district. The state board
of education shall file the declaration with the secretary of state, the clerk of
the withdrawing district, and the clerk of the union school district concerned.
    (d) A vote of withdrawal taken after a union school district has become a
body politic and corporate as provided in section 706g of this title but less than
one year after that date shall be null and void. Action to withdraw must be
ratified by an affirmative vote of each of the member districts.
Sec. 30. 16 V.S.A. § 721b is amended to read:
§ 721b. DISTRICTS ESTABLISHED UNDER PRIOR LAW
   A union school district established pursuant to the provisions of any statute
existing prior to July 1, 1968 shall be valid. Upon July 1, 1968 any union
school district established pursuant to the provisions of any prior statute shall
be governed in all respects by the provisions of this subchapter. All union
school districts formed prior to July 1, 2007 are ratified and shall be governed
by this chapter.
                              FRIDAY, MAY 2, 2008                            1883
Sec. 31. 16 V.S.A. § 722 is amended to read:
§ 722. UNIFIED UNION DISTRICTS
   In the event If a union school district is organized to operate grades
kindergarten through 12, it shall be known as a unified union district. On the
date the unified union district becomes operative, unless another date is
specified in the planning committee report, it shall supplant all other school
districts within its borders, and they shall cease to exist. If provided for in the
committee report, the unified union district school board may be elected and
may conduct business for the limited purpose of preparing for the transition to
unified union district administration while the proposed member school
districts continue to operate schools. The functions of the legislative branch of
each preexisting school district in warning meetings and conducting elections
of unified union school district board members shall be performed by the
corresponding board of alderpersons of a city or city council, the selectboard of
a town, or the trustees of an incorporated school district as appropriate.
Sec. 32. 16 V.S.A. § 723 is amended to read:
§ 723.  TRANSITION TO UNIFIED UNION SCHOOL DISTRICT
ADMINISTRATION
   Except as may be provided in the approved plan for formation of the unified
union district with respect to real property on On the day that its the
establishment of a unified union school district becomes effective, it the
district gains title to the assets and assumes the existing contractual obligations
and other liabilities of the member school districts within its borders unless
otherwise agreed to by the member districts in the approved plan for the
formation of the unified union school district; provided, however, the unified
union school district shall in all cases assume the contractual obligations of the
member districts regarding each existing collective bargaining agreement or
other employment contract until the agreement’s or contract’s expiration. All
trust funds held or enjoyed by a pre-existing preexisting district shall be held
and applied as the terms of the trust indicate. If such trust allows, the funds
may be applied for the use of the unified union school district. Within five
days of the day a unified union school district becomes effective, the treasurer
of each pre-existing preexisting school district shall pay by check to the
treasurer of the unified union school district the full amount of the balance
standing in his or her school account and transfer to him or her all outstanding
notes and contracts in force. Unless otherwise specified, the school account
balance shall be applied to the member towns proportional costs for the
following year. All other officers of the pre-existing preexisting school
districts shall transfer to the corresponding officer of the unified union school
1884                       JOURNAL OF THE SENATE
district all instruments and other documents giving evidence of the assets,
liabilities, and contractual status of the district.
Sec. 33. 16 V.S.A. § 724 is added to read:
§ 724. WITHDRAWAL FROM OR DISSOLUTION OF A UNIFIED
UNION SCHOOL DISTRICT
   (a) A town or city corresponding to a preexisting school district that voted
to form a unified union school district may vote to withdraw from the district if
one year has elapsed since the unified union school district became a body
politic and corporate as provided under section 706g of this title.
   (b) When a majority of the voters of the town or city present and voting at a
meeting duly warned for that purpose votes to withdraw from a unified union
school district, the vote shall be certified by the clerk of the town or city to the
secretary of state who shall record the certificate in his or her office and give
notice of the vote to the other towns or cities corresponding to the preexisting
school districts that voted to form the unified union school district. Such other
towns and cities shall vote by Australian ballot on the same day during the
same hours whether to ratify the withdrawal of the town or city. To be
effective, action to withdraw shall be approved by an affirmative vote of each
of the other towns or cities within the unified union school district.
   (c) If the vote to ratify the withdrawal of the town or city is approved by
each of the other towns or cities, the unified union school district clerk shall
notify the commissioner of education who shall advise the state board of
education. At a meeting held thereafter, if the state board finds that the
students in the withdrawing town or city will attend a school that is in
compliance with the rules adopted by the board pertaining to educational
programs, the board shall declare the membership of the withdrawing town or
city to be at an end as of July 1 immediately following or as soon thereafter as
the obligations of the withdrawing district have been paid to, or an agreement
made with, the union school district in an amount satisfactory to the electorate
of each of the other towns and cities within the unified union school district.
In addition, the state board shall declare the preexisting school district
corresponding to the withdrawing town or city to be reconstituted. The board
shall give notice to the remaining towns and cities in the unified union school
district of its meeting and give the relevant representatives an opportunity to be
heard. It shall then determine whether it is in the best interests of the state, the
students, and the school districts remaining in the unified union school district
that the unified union district continue to exist. The board may declare the
unified union school district dissolved as of July 1 immediately following or as
soon thereafter as each remaining town’s or city’s obligations have been
satisfied, or it may declare that the unified union district shall continue to exist
                               FRIDAY, MAY 2, 2008                            1885
despite the withdrawal of the former town or city member. The state board of
education shall file its declaration with the secretary of state, the clerk of the
withdrawing town or city, and the clerk of the affected unified union school
district.
   (d) A vote of withdrawal taken after a unified union school district has
become a body politic and corporate as provided in section 706g of this title
but less than one year after that date is void.
Sec. 34. LEGISLATIVE COUNCIL; STATUTORY CHANGES TO
SUPPORT THIS ACT
   Pursuant to its statutory revision authority in 2 V.S.A. § 424, the legislative
council is directed, wherever applicable in chapter 11 of Title 16, to substitute
the term “study” for the term “plan” or “planning.”
                        * * * No Child Left Behind * * *
Sec. 35. Secs. 13 and 14 of No. 182 of the Acts of the 2005 Adj. Sess. (2006)
are amended to read:
Sec. 13. Sec. 2 of No. 64 of the Acts of 2003, as amended by Sec. 2 4 of No.
114 of the Acts of 2004 the 2003 Adj. Sess. (2004) is amended to read:
Sec. 2. COMPLIANCE WITH FEDERAL REQUIREMENTS; MEASURING
ADEQUATE YEARLY PROGRESS TOWARD ACHIEVING STATE
STANDARDS; CONSEQUENCES
   16 V.S.A. § 165 authorizes the commissioner of education to determine
how well schools and students are meeting state standards every two years and
to impose certain consequences if schools are failing to meet standards after
specific time periods. Notwithstanding the provisions of that section, in order
to comply with the provisions of Public Law 107-110, known as the No Child
Left Behind Act of 2001, during school years 2003–2004 through 2006–2008
2008–2009, the commissioner is authorized to determine whether schools and
school districts are meeting state standards annually and the state board of
education is authorized to impose on schools and school districts consequences
allowed in state law and required by the Act within the time frame required in
the Act. However, consistent with Title IX, Part E, Subpart 2, Sec. 9527 of the
No Child Left Behind Act, neither the state nor any subdivision thereof shall
be required to spend any funds or incur any costs not paid for under the Act in
order to comply with the provisions of the Act. The state or any subdivision
thereof may expend other funds for activities they were already conducting
consistent with the Act, or for activities authorized in a state or local fiscal year
2004 budget. It is the intent of the general assembly to continue to study the
provisions of the federal law and to seek guidance from the federal government
1886                       JOURNAL OF THE SENATE
in order to determine permanent changes to Title 16 that will be necessary to
comply with federal law and to avoid having federal law cause state and local
governments to absorb the cost of unfunded mandates.
Sec. 14. Subsections (b), (c), and (e) of Sec. 3 of No. 64 of the Acts of 2003,
as amended by Sec. 2 5 of No. 114 of the Acts of 2004 the 2003 Adj. Sess.
(2004) are amended to read:
   (b) Notwithstanding the provisions of 16 V.S.A. §§ 1075(e), 1093, and
1128(b) which stipulate that a child of parents who become homeless shall be
educated in the school district in which the child is found and that a school
district may choose not to accept nonresident pupils, in order to comply with
the provisions of Public Law 107-110, known as the No Child Left Behind Act
of 2001, the provisions of this section shall apply to children who are homeless
during school years 2003–2004 through 2006-2008 2008–2009. It is the intent
of the general assembly to continue to study the provisions of the federal law
and to seek guidance from the federal government in order to determine
permanent changes to Title 16 that will be necessary to comply with federal
law.
   (c) If a child becomes homeless during school year 2005–2006, 2006–
2007, or 2007–2008, or 2008–2009, the child shall either be educated: in the
school of origin for the duration of the homelessness or for the remainder of
the academic year if the child becomes permanently housed outside the district
of origin; or in the school district in which the child is actually living. The
determination as to which school the child shall attend shall be made by the
school board of the school district in which the child is living according to the
best interests of the child.
    (e) Notwithstanding the provisions of 16 V.S.A. § 4001(1)(A) which
stipulate that a pupil must be a legal resident of the district attending a school
owned and operated by the district in order to be counted in the average daily
membership of the district, during the 2003–2004 through 2006–2008
2008–2009 school years, a child who is homeless during the census period
shall be counted in the school district or districts in which the child is enrolled.
However, if at any time a homeless child enrolls, pursuant to this section, in a
school district other than the district in which the child was counted, the
district in which the child is enrolled shall become responsible for the
education of the child, including payment of education services and, if
appropriate, development and implementation of an individualized education
plan.
                             FRIDAY, MAY 2, 2008                            1887
       * * * Designation of a Public or Elementary School; Study * * *
Sec. 36. DESIGNATION OF A PUBLIC OR ELEMENTARY SCHOOL AS
THE PUBLIC SCHOOL OF A DISTRICT; STUDY
    The general assembly recognizes that, notwithstanding the limitations of
16 V.S.A. § 827, it may at times be necessary or advisable to authorize
Vermont school districts to designate a public or approved independent
elementary or secondary school as the public school of the designating school
district. On or before January 15, 2009, the commissioner shall examine the
issue and provide the senate and house committees on education with detailed
information that will enable the general assembly to determine whether
expanded authorization should be available to all school districts that do not
maintain a school, whether authorization exceeding § 827 should never be
granted, or whether expanded authorization should be limited to specific
situations. The detailed information shall include data regarding school
districts that provide for the education of their students by paying tuition, the
number of students in these districts, the schools the students are able to attend
under current law, and the schools they might reasonably attend if districts
could designate a public or approved independnet elementary school, a public
secondary school, or both as the public school or schools of the district.
              * * * Alternative Education Programs; Study * * *
Sec. 37. ALTERNATIVE EDUCATION PROGRAMS; STUDY
   (a) The commissioner of education shall study and propose alternative
methods by which school districts can support secondary students who are in
danger of terminating their enrollment prior to graduation. The commissioner
shall specifically focus on ways in which districts can encourage students to
attend alternative education programs while remaining enrolled in secondary
school and shall create an inventory of alternative education programs
currently available in the state. Among the issues to be studied are:
    (1) The ways in which an eligible student should be identified and by
whom.
      (2) The nature and qualifications of the alternative education programs
that should be eligible to receive payment from a school district and whether
and by what entity the programs should be approved or accredited.
      (3) Whether and to what extent the alternative education program should
be required to have an existing relationship with the school district.
      (4) The ways in which a school district could ensure academic
continuity and quality while a student attends an alternative education program
on a full- or part-time basis.
1888                       JOURNAL OF THE SENATE
      (5) Methods by which public dollars could be expended to pay the
alternative education program for its role in educating the student.
       (6) The estimated per-pupil financial costs to secondary schools
resulting from each payment method identified in subdivision (5) of this
subsection.
   (b) On or before January 15, 2009, the commissioner shall file a report with
the senate and house committees on education outlining the results of the study
and providing detailed proposals.
                                        ***
                * * * Districts Paying Tuition for All Students * * *
Sec. 38. DISTRICTS PAYING TUITION FOR ALL STUDENTS IN
ELEMENTARY AND SECONDARY SCHOOL; EXCESS SPENDING;
SUNSET
   (a) A school district shall be exempt from the calculation of excess
spending in 32 V.S.A. § 5401(12) and from that calculation’s use in
determining the district spending adjustment under subdivision (13) of that
section if the district:
       (1) Is not a member of a union school district or a unified union school
district;
       (2) Does not maintain an elementary school or a secondary school; and
       (3) Pays tuition for all publicly funded students residing in the district.
   (b) This section shall take effect on July 1, 2008 and shall sunset on
July 1, 2010.
  And after passage, the title of the bill is to be amended to read:
  AN ACT RELATING TO AGRICULTURAL, FORESTRY, AND
HORTICULTURAL EDUCATION; ANIMAL DISSECTION; THE REPEAL
OF BURDENSOME REPORTS; STREAMLINING THE FORMATION OF
UNION DISTRICTS; DISTRICTS THAT PAY TUITION FOR ALL
STUDENTS; AND OTHER CHANGES TO EDUCATION LAW.
                                                   ROBERT A. STARR
                                                   JOHN F. CAMPBELL
                                                   VINCENT ILLUZZI
                                              Committee on the part of the Senate
                            FRIDAY, MAY 2, 2008                          1889
                                               REGINALD GODIN
                                               WILL STEVENS
                                               PETER PELTZ
                                           Committee on the part of the House
    Thereupon, pending the question, Shall the Senate accept and adopt the
report of the Committee of Conference? Senator McCormack raised a point of
order under Sec. 771.2 of Mason’s Manual of Legislative Procedure on the
grounds that the report of the Committee of Conference exceeded the scope of
its authority.
   Thereupon, the President sustained the point of order and ruled that the
report of the Committee of Conference Committee of Conference exceeded the
scope of its authority and could not be considered by the Senate..
   Thereupon, Senator Shumlin, moved that the rules be suspended in order for
the Senate to be able to consider the report of the Committee of Conference
which was decided in the affirmative on a roll call, Yeas 25, Nays 5 (the
necessary 3/4th majority required having been attained).
   Senator McCormack 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, Giard, Hartwell,
Illuzzi, Kitchel, Kittell, Lyons, Maynard, Mazza, Miller, Mullin, Nitka, Scott,
Sears, Shumlin, Snelling, Starr, White.
  Those Senators who voted in the negative were: Condos, Flanagan,
MacDonald, McCormack, Racine.
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
   Rules Suspended; Report of Committee of Conference Accepted and
                  Adopted on the Part of the Senate
                                     H. 888.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and the report of the Committee of Conference on
House bill entitled:
  An act relating to miscellaneous tax amendments.
  Was taken up for immediate consideration.
1890                      JOURNAL OF THE SENATE
   Senator Cummings, for the Committee of Conference, submitted the
following 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:
   H. 888. An act relating to miscellaneous tax amendments.
   Respectfully reports that it has met and considered the same and
recommends that the Senate recede from its following proposals of
amendment:
Sixth; Eighth; Eleventh; Twelfth; Thirteenth, from Sec. 49 only; Fifteenth;
Seventeenth; Eighteenth, from Secs. 56 and 57 only; Twentieth; Twenty-first;
Twenty-second, from Sec. 71 only; Twenty-third, from Sec. 74 only; Twenty-
fifth; Twenty-sixth; Twenty-seventh, from Secs. 109 through 112 only; and
Twenty-ninth;
AND that the House accede to the following Senate proposals of amendment:
First; Second; Third; Fourth; Fifth; Seventh; Ninth; Tenth; Thirteenth, to Secs.
47 and 48 only; Fourteenth; Sixteenth; Eighteenth, to Secs. 54 and 55 only;
Nineteenth; Twenty-second, Sec. 72 only; Twenty-third, Sec. 73 only;
Twenty-fourth; Twenty-seventh, Secs. 82 through 108 only; and Twenty-
eighth;
   And that the bill be further amended as follows:
   First: By striking out Secs. 38, 39 and 40 (fire service training council) and
inserting in lieu thereof new Secs. 38, 39 and 40 to read as follows:
Sec. 38. 32 V.S.A. § 8557 is amended to read as follows:
§ 8557. VERMONT FIRE SERVICE TRAINING COUNCIL
   (a) Sums for the expenses of the operation of training facilities and
curriculum of the Vermont fire service training council not to exceed
$400,000.00 $600,000.00 per year shall be paid to the fire service training
council safety special fund created by section 3157 of Title 20 by insurance
companies writing fire, homeowners multiple peril, allied lines, farmowners
multiple peril, commercial multiple peril (fire and allied lines), private
passenger auto physical damage and commercial auto physical damage ,
surplus lines, and inland marine policies on property and persons situated
within the state of Vermont within 30 days after notice from the commissioner
of banking, insurance, securities, and health care administration of such
estimated expenses. Captive and surplus line companies shall be excluded
from the effect of this section. The commissioner shall annually, on or before
                             FRIDAY, MAY 2, 2008                            1891
July 1, apportion such charges among all such companies and shall assess them
for the same on a fair and reasonable basis as a percentage of their gross direct
written premiums on such insurance written during the second prior calendar
year on property situated in the state. An amount not less than $100,000.00
shall be specifically allocated to the provision of what are now or formerly
referred to as Level I, units I, II, and III (basic) courses for entry level
firefighters.
                                      ***
Sec. 39. 32 V.S.A. § 8557 is amended to read as follows:
§ 8557. VERMONT FIRE SERVICE TRAINING COUNCIL
   (a) Sums for the expenses of the operation of training facilities and
curriculum of the Vermont fire service training council not to exceed
$600,000.00 $800,000.00 per year shall be paid to the fire safety special fund
created by section 3157 of Title 20 by insurance companies writing fire,
homeowners multiple peril, allied lines, farmowners multiple peril, commercial
multiple peril (fire and allied lines), private passenger auto physical damage
and commercial auto physical damage and liability, surplus lines, and inland
marine policies on property and persons situated within the state of Vermont
within 30 days after notice from the commissioner of banking, insurance,
securities, and health care administration of such estimated expenses. Captive
and surplus line companies shall be excluded from the effect of this section.
The commissioner shall annually, on or before July 1, apportion such charges
among all such companies and shall assess them for the same on a fair and
reasonable basis as a percentage of their gross direct written premiums on such
insurance written during the second prior calendar year on property situated in
the state. An amount not less than $100,000.00 shall be specifically allocated
to the provision of what are now or formerly referred to as Level I, units I, II,
and III (basic) courses for entry level firefighters.
                                      ***
Sec. 40. 20 V.S.A. § 3152(a) is amended to read as follows:
   (a) The Vermont fire service training council is created. The council shall
consist of 11 12 members. The commissioner of labor, the commissioner of
public safety, the director of fire safety, the commissioner of forests, parks and
recreation, the commissioner of education, and the commissioner of health, or
their designees, shall serve as ex officio members of the council. Five Six
members shall be appointed by the governor for three-year terms. Of the
appointed members, the governor shall appoint one member who during
incumbency is a representative of the Vermont career fire chiefs association;
one member who, at the time of appointment, is a representative of the
1892                      JOURNAL OF THE SENATE
professional firefighters of Vermont; one member, who, at the time of
appointment, is a representative of the Vermont fire chiefs association and who
is a fire chief of a volunteer fire department; one member who, at the time of
appointment, is a representative of the Vermont state firefighters association
and who is a volunteer firefighter; one member who during incumbency is an
employee, officer, or director of an insurance company domiciled in this state
and subject to the assessment under 32 V.S.A. § 8557; and one member of the
public who is not involved in fire service. To the extent possible, appointments
shall be geographically representative.
   Second: By adding a new Sec. 42 to read as follows:
Sec. 42. EXTENSION OF 2007 FILING DEADLINES FOR CERTAIN
PROPERTY TAX ADJUSTMENT CLAIMS
   (a) Any 2007 filed property tax adjustment claim filed on or before the
September 4, 2007 deadline but which was denied before December 1, 2007,
due to missing information or incomplete filing may be refiled before August
1, 2008, if all of the following conditions are met:
      (1) the claimant submits a written request for reconsideration of claim,
including all information required by the commissioner in the form prescribed
by the commissioner and signed by the claimant under pains and penalties of
perjury; and
      (2) the first 2007 property tax bill issued in the claimant’s town was
issued after September 4, 2007; and
     (3) the commissioner, in his or her judgment, finds that the claimant was
unable to complete the filing or provide the missing information prior to
December 1, 2007, as a result of sickness, absence, or other disability, or other
good cause.
   (b) The commissioner’s determination to allow or deny a claim under this
section shall be final, and the commissioner shall not notify the municipality of
the claimant’s property tax adjustment, but instead shall refund the property
tax adjustment amount to the claimant without interest and without penalty
under 32 V.S.A. § 6066a(d).
   Third: By adding a new Sec. 45 to read as follows:
Sec. 45. EDUCATION PROPERTY TAX EXEMPTION FOR SKATING
RINKS USED FOR PUBLIC SCHOOLS
   Real and personal property operated as a skating rink, owned and operated
on a nonprofit basis but not necessarily by the same entity, and which, in the
most recent calendar year, provided facilities to local public schools for a sport
                             FRIDAY, MAY 2, 2008                            1893
officially recognized by the Vermont Principals’ Association shall be exempt
from education property taxes for fiscal years 2009 and 2010 only.
   Fourth: By striking out subdivision (12) of Sec. 113 in its entirety.
   Fifth: By adding a new Sec. 49 to read as follows:
Sec. 49. Sec. 7b of No. 81 of the Acts of 2007 is amended to read as follows:
Sec. 7b. EFFECTIVE DATE
   Sec. 7a of this act (amendment of sales tax exemption for aircraft parts)
shall take effect July 1, 2011 2018.
   Sixth: By adding a new Sec. 53 to read as follows:
Sec. 53. Sec. 5 of No. 213 of the Acts of 1892, as amended by No. 357 of the
Acts of 1906, is amended to read as follows:
   Sec. 5. Said corporation shall have power to purchase and receive for the
charitable purposes herein indicated, by gift, bequest, devise or otherwise, real
and personal property, and the same to hold, for such purposes only, and to sell
and convey the same or any part thereof when expedient in the judgment of the
Directors. No more than fifty thousand dollars in value of the property of said
corporation which is used directly as a nonprofit elder residential care home
shall be exempt from municipal property taxation, and up to $500,000.00 of
the same property shall be exempt from education property taxation, and such
property, to be so exempt from taxation, shall be located in said Brattleboro.
   Seventh: By striking out subdivision (15) of Sec. 113 in its entirety.
   Eighth: By adding new Secs. 56 and 57 to read as follows:
Sec. 56. 33 V.S.A. § 1952(f) is added to read as follows:
   (f) If a health care provider fails to pay its assessments under this
subchapter according to the schedule or a variation thereof adopted by the
director, the director may, after notice and opportunity for hearing, deduct
these assessment arrears and any late-payment penalties from Medicaid
payments otherwise due to the provider. The deduction of these assessment
arrears may be made in one or more installments on a schedule to be
determined by the director.
Sec. 57. 33 V.S.A. § 1954(d) is amended to read as follows:
   (d) Any nursing home that fails to make a payment to the office on or
before the specified schedule, or under any schedule of delayed payments
established by the director, shall be assessed not more than $1,000.00. The
director may waive this late-payment assessment provided for in this
1894                      JOURNAL OF THE SENATE
subsection for good cause shown by the nursing home. The director may
reduce Medicaid claim payments to satisfy all past due provider taxes assessed.
   Ninth: By adding new Secs. 59 and 60 to read as follows:
Sec. 59. 30 V.S.A. § 209(d)(7) is amended to read as follows :
      (7) Net revenues above costs associated with payments from the New
England Independent System Operator (ISO-NE) for capacity savings resulting
from the activities of the energy efficiency utility designated under subdivision
(2) of this subsection shall be deposited into the electric efficiency fund
established by this section and be used by the entity appointed under
subdivision (2) of this subsection to deliver fossil fuel energy efficiency
services to Vermont heating and process-fuel consumers on a whole-buildings
basis to help meet the state’s building efficiency goals established by
10 V.S.A. § 581.
Sec. 60. 30 V.S.A. § 209(e)(15) is amended to read as follows:
       (15) Ensure that the energy efficiency programs implemented under this
section are designed to make continuous and proportional progress toward
attaining the overall state building efficiency goals established by 10 V.S.A. §
581, by promoting all forms of energy end-use efficiency and comprehensive
sustainable building design. The funds made available under subdivision (d)(7)
of this section may be used by an efficiency entity appointed under subdivision
(2) of this section to deliver fossil fuel energy efficiency services to Vermont
heating and process-fuel consumers on a whole-building basis.
   Tenth: By adding new Secs. 61 through 71 to read as follows:
Sec. 61. 24 V.S.A. § 1891 is amended to read as follows:
§ 1891. DEFINITIONS
   When used in this subchapter:
                                     ***
       (6) “Related costs” means expenses, exclusive of the actual cost of
constructing and financing improvements, as defined in subdivision 1751(3) of
this title, that are directly related to creation of the tax increment financing
district and reimbursement of sums previously advanced by the municipality
for those purposes, and attaining the purposes and goals for which the tax
increment financing district was created, as approved by the Vermont
economic progress council. As used in this subdivision, related costs are
“improvements” as defined in subdivision 1751(3) of this title.
     (7) “Financing” means the following types of debt incurred or used by a
municipality to pay for improvements in a tax increment financing district:
                              FRIDAY, MAY 2, 2008                            1895
         (A) Bonds.
        (B)     Housing and Urban Development Section 108 financing
instruments.
         (C) Interfund loans within a municipality.
         (D) State of Vermont revolving loan funds.
         (E) United States Department of Agriculture loans.
Sec. 62. 24 V.S.A. § 1893 is amended to read as follows:
§ 1893. PURPOSE
   The purpose of tax increment financing districts is to provide revenues for
improvements, located wholly or partly within that serve the district and
related costs, which will stimulate development or redevelopment within the
district, provide for employment opportunities, improve and broaden the tax
base, or enhance the general economic vitality of the municipality, the region,
or the state.
Sec. 63. 24 V.S.A. § 1894 is amended to read as follows:
1894. POWER AND LIFE OF DISTRICT
   (a) Incurring indebtedness.
      (1) A municipality may incur indebtedness against revenues of the tax
increment financing districts for district at any time during a period of up to 20
years following the creation of the district, if approved as required under
subsection 5404a(h) of Title 32. The 20-year borrowing period of the district
shall commence creation of the district shall occur at 12:01 a.m. on April 1 of
the year so voted. Any indebtedness incurred during the borrowing this
20-year period may be retired over any period authorized by the legislative
body of the municipality under section 1898 of this title.
      (2) If no indebtedness is incurred within the first five years after creation
of the district, no indebtedness may be incurred unless the municipality obtains
reapproval from the Vermont economic progress council under subsection
5404a(h) of Title 32.
       (3) The district shall continue until the date and hour the indebtedness is
retired.
   (b) Use of the education property tax increment. Notwithstanding
subsection (a) of this section, any district created to use education tax
increment financing that has not incurred indebtedness within five years
following the creation of the district, shall request reapproval from the
1896                       JOURNAL OF THE SENATE
Vermont economic progress council in order to utilize education tax increment
financing following that period.
   For any debt incurred within the first five years after creation of the district,
or within the first five years after reapproval by the Vermont economic
progress council, but for no other debt, the education tax increment may be
retained for up to 20 years beginning with the initial date of the first debt
incurred within the first five years.
   (c) Prior to requesting municipal approval to secure financing, the
municipality shall provide the council with all information related to the
proposed financing necessary for approval and to assure its consistency with
the plan approved pursuant to 32 V.S.A. § 5404a(h). The council shall also
assure the viability and reasonableness of any proposed financing other than
bonding and least-cost financing.
Sec. 63a. 24 V.S.A. § 1896(a) is amended to read as follows:
§ 1896. TAX INCREMENTS
   (a) In each subsequent year, the listers or assessor shall include no more
than the original taxable value of such the real property in the assessed
valuation upon which the listers or assessor computes the rates of all taxes
levied by the municipality, the school district, and every other taxing district in
which the tax increment financing district is situated; but the listers or assessor
shall extend all rates so determined against the entire assessed valuation of
such real property for that year. In each year for which the assessed valuation
exceeds the original taxable value, the municipality treasurer shall hold apart,
rather than remit to the taxing districts, that proportion of all taxes paid that
year on the real property in the district which such the excess valuation bears
to the total assessed valuation. The amount so held apart each year is referred
to in this act as the “tax increment” for that year. So much of the tax
increments received with respect to the district and pledged and appropriated
under section 1897 of this title for the payment of debt service on bonds issued
for financing for improvements and related costs shall be segregated by the
municipality in a special account on its official books and records until all
capital indebtedness of the district has been fully paid. The final payment shall
be reported to the lister or assessor, who shall thereafter include the entire
assessed valuation of the district in the assessed valuations upon which tax
rates are computed and extended and taxes are remitted to all taxing districts.
Sec. 64. 24 V.S.A. § 1897 is amended to read as follows:
§ 1897. TAX INCREMENT FINANCING
   (a) The legislative body may pledge and appropriate in equal proportion
any part or all of the state and municipal tax increments received from
                              FRIDAY, MAY 2, 2008                           1897
properties contained within the tax increment financing district for the payment
of the principal of and interest on bonds issued financing for improvements
contained wholly or partly within the district and for related costs in the same
proportion by which the infrastructure or related costs directly serve the district
at the time of approval of the project financing by the council, and in the case
of infrastructure essential to the development of the district that does not
reasonably lend itself to a proportionality formula, the council shall apply a
rough proportionality and rational nexus test; provided, that if any tax
increment utilization is approved pursuant to 32 V.S.A. § 5404a(g) 32 V.S.A. §
5404a(f), no more than 75 percent of the state property tax increment and no
less than 75 an equal percent of the municipal tax increment may be used to
service this debt. Bonds shall only be issued if the legal voters of the
municipality, by a majority vote of all voters present and voting on the
question at a special or annual municipal meeting duly warned for the purpose,
shall give authority to the legislative body to pledge the credit of the
municipality for these purposes. Notwithstanding any provision of any
municipal charter, the legal voters of a municipality, by a single vote, shall
authorize the legislative body to pledge the credit of the municipality up to a
specified maximum dollar amount for all debt obligations to be financed with
state property tax increment pursuant to approval by the Vermont economic
progress council and subject to the provisions of this section and 32 V.S.A. §
5404a.
   (b) A municipality’s pledge of credit for the purpose of issuing a bond
financing improvements under this subchapter and 32 V.S.A. § 5404a shall
include notice that if the tax increment received by the municipality from any
property tax source is insufficient to pay the principal and interest on the debt
in any year, for whatever reason, including a decrease in property value or
repeal of a state property tax source, unless determined otherwise at the time of
such repeal, the municipality shall remain liable for full payment of the bond
principal and interest for the term of indebtedness.
Sec. 64a. 24 V.S.A. § 1898(e) is amended to read as follows:
   (e) Prior to the resolution or ordinance of the local governing body
authorizing the bonds issued financing under this section, the legislative body
of the municipality shall hold one or more public hearings, after public notice,
on a financial plan for the proposed improvements and related costs to be
funded, including a statement of costs and sources of revenue, the estimates of
assessed values within the district, the portion of those assessed values to be
applied to the proposed improvements, the resulting tax increments in each
year of the financial plan, the amount of bonded indebtedness or other
financing to be incurred, other sources of financing and anticipated revenues,
1898                      JOURNAL OF THE SENATE
and the duration of the financial plan. A municipality that has approved the
creation of a district under this chapter may designate a coordinating agency to
administer the district to ensure compliance with this chapter and any other
statutory or other requirements.
Sec. 65. 24 V.S.A. § 1900 is amended to read as follows:
§ 1900. DISTRIBUTION
   In addition to all other provisions of this chapter, with respect to any tax
increment financing district, any of the municipal and education tax increment
increments received in any tax year that exceed the amounts pledged for the
payment on principal and interest on the bonds issued of the financing for
improvements and related costs in the district shall be distributed to the city,
town, or village budget in proportion that each budget bears to the combined
total of the budgets unless otherwise negotiated by the city, town, or village.
Any state education tax increment received in any tax year that exceeds the
amount pledged for the payment on principal and interest on the bonds issued
for improvements and related costs in the district shall not be remitted to the
municipality but shall , an equal portion of each increment may be used only
for prepayment of principal and interest on the bonds issued financing, placed
in escrow for bond financing payment, or otherwise used for defeasance of the
bonds financing ; and any remaining portion of the excess municipal tax
increment shall be distributed to the city, town, or village budget, in proportion
that each budget bears to the combined total of the budgets unless otherwise
negotiated by the city, town, or village; and any remaining portion of the
excess education tax increment shall be distributed to the education fund.
Sec. 66. 32 V.S.A. § 5404a(f) and (h) are amended and 32 V.S.A. § 5404a(j)
and (k) are added to read as follows:
   (f) A municipality that establishes a tax increment financing district under
subchapter 5 of chapter 53 of Title 24 shall collect all property taxes on
properties contained within the district and apply up to 75 percent of the tax
increment as defined in 24 V.S.A. § 1896 to repayment of debt issued to
finance financing of the improvements and related costs for up to 20 years
pursuant to 24 V.S.A. § 1894, if approved by the Vermont economic progress
council pursuant to this section.
                                      ***
   (h) Criteria for approval. To approve utilization of incremental revenues
pursuant to subsection (f) of this section, the Vermont economic progress
council shall do all the following:
     (1) Review each application to determine that the new real property
development would not have occurred or would have occurred in a
                             FRIDAY, MAY 2, 2008                          1899
significantly different and less desirable manner but for the proposed
utilization of the incremental tax revenues. A district created in a designated
growth center under 24 V.S.A. § 2793c shall be deemed to have complied with
this subdivision. The review shall take into account:
                                     ***
          (C) The amount of additional revenue expected to be generated as a
result of the proposed development; the percentage of that revenue that shall be
paid to the education fund; the percentage that shall be paid to the
municipality; and the percentage of the revenue paid to the municipality that
shall be used to pay the municipal tax increment bonds financing incurred for
development of the tax increment financing district.
      (2) Process requirements. Determine that each application meets all of
the following four requirements:
                                     ***
         (B) The municipality has developed a tax increment financing district
plan, including: a project description; a development financing plan; a pro
forma projection of expected costs; a projection of revenues; a statement and
demonstration that the project would not proceed without the allocation of a
tax increment; evidence that the municipality is actively seeking or has
obtained other sources of funding and investment; and a development schedule
that includes a list, a cost estimate, and a schedule for public improvements
and projected private development to occur as a result of the improvements.
                                     ***
      (3) Location criteria. Determine that each application meets one of the
following criteria:
         (A) The development or redevelopment is compact, high density, and
located in or near existing industrial areas.
         (B) The proposed district is within an approved growth center,
designated downtown, designated village center, or new town center.
         (C) The development will occur in an area that is economically
distressed, which for the purposes of this subdivision means that the area has
experienced patterns of increasing unemployment, a drop in average wages, or
a decline in real property values.
      (4) Project criteria. Determine that the proposed development within a
tax incentive increment financing district will accomplish at least three of the
following five criteria:
1900                      JOURNAL OF THE SENATE
                                     ***
         (C)    The project will affect the mitigation remediation and
redevelopment of a brownfield located within the district. For the purposes of
this section, “brownfield” means an area in which a hazardous substance,
pollutant, or contaminant is or may be present, and that situation is likely to
complicate the expansion, development, redevelopment, or reuse of the
property.
                                     ***
   (j) The municipality shall provide the council with all information related
to the proposed financing necessary to assure its consistency with the plan
approved pursuant to all other provisions of subsection (h) of this section. The
council shall assure the viability and reasonableness of any proposed financing
other than bonding and least-cost financing.
   (k) The state auditor of accounts shall review and audit all active tax
increment financing districts every three years.
Sec. 67. 24 V.S.A. § 1901 is added to read as follows:
§ 1901. INFORMATION REPORTING
   Every municipality with an active tax increment financing district shall:
      (1) On or before December 1 of each year, report to the Vermont
economic progress council (VEPC) and the tax department all information
described in subsection 5404a(i) of Title 32, in the form prescribed by VEPC.
      (2) Report its tax increment financing actual investment, bond or other
financing repayments, escrow status, and “related cost” accounting to the
Vermont economic progress council according to the municipal audit cycle
prescribed in section 1681 of this title.
Sec. 68. REPEAL
   32 V.S.A. § 5404a(e) (allocations) is repealed.
Sec. 69. 32 V.S.A. § 5404a(g) is amended to read as follows:
    (g) Any allocation approved pursuant to subsection (e) of this section or
utilization of tax increment approved under subsection (f) of this section shall
be in addition to any other payments to the municipality under chapter 133 of
Title 16. Allocations and tax Tax increment utilizations approved pursuant to
subsections (e) and subsection (f) of this section shall affect the education
property tax grand list and the municipal grand list of the municipality under
this chapter beginning April 1 of the year following approval and shall remain
available to the municipality for the full period authorized under 24 V.S.A.
§ 1894, and restricted only to the extent that the real property development
                             FRIDAY, MAY 2, 2008                            1901
giving rise to the increased value to the grand list fails to occur within the
authorized period.
Sec. 70a. TAX INCREMENT FINANCING DATA
   (a) The joint fiscal office and the department of taxes shall analyze:
       (1) Fiscal aspects of the four existing tax increment financing districts
(TIFs). The study shall assemble the details of each TIF’s financial
components since their inception and analyze the fiscal impact on the state
level.
      (2) The best option for addressing how tax increment financing property
should be included in the determination of the host town’s common level of
appraisal, and what provisions may need to be added to tax increment
financing laws to address the possibility of changes to the state education
financing structure.
     (3) How existing tax increment financing districts meet the goals of
economic development, whether they provide municipalities with more useful
development tools than possible alternatives, and how they affect the state’s
education fund stability.
      (4) Homestead property within tax increment financing districts and
whether the education tax revenue retained by the municipality is net or gross
of property tax adjustments; and shall propose language and a method to
ensure that the actual amount of education tax increment retained is net of
property tax adjustments.
       (5) The following types of financing instruments: conventional loans,
certificates of participation, lease-purchase, revenue anticipation notes, and
bank loans.
      (6) In collecting and analyzing data on the issues in subdivisions (1)
through (3) of this section, the joint fiscal office and the department of taxes
shall consult with the Vermont League of Cities and Towns, the Vermont
Economic Progress Council, Smart Growth Vermont, the Lake Champlain
Regional Chamber of Commerce, and the Vermont chapter of the National
Education Association.
      (2) The joint fiscal office and the department of taxes shall report their
findings to the house committee on ways and means and the senate committee
on finance by January 15, 2009.
Sec. 70b. JOINT FISCAL OFFICE REPORTING OF TIF DATA
   The joint fiscal office shall reflect tax increment financing on any education
fund outlooks and balance sheets which it prepares.
1902                     JOURNAL OF THE SENATE
Sec. 70c. Sec. 2i of No. 184 of the Acts of the 2005 Adj. Sess. (2006) is
amended to read as follows:
Sec. 2i. TAX INCREMENT FINANCING DISTRICTS; CAP
   Notwithstanding any other provision of law, the Vermont economic
progress council may not approve the use of education tax increment financing
for more than ten six tax increment financing districts and no more than one
newly created tax increment financing district in any municipality within the
period of five state fiscal years beginning July 1, 2006 2008. Thereafter no tax
increment financing districts may be approved without further authorization by
the General Assembly general assembly.
Sec. 71. Sec. 2j of No. 184 of the Acts of the 2005 Adj. Sess. (2006) is
amended to read as follows:
Sec. 2j.     EXISTING TAX INCREMENT FINANCING DISTRICTS;
MILTON
   Notwithstanding the limitations under 32 V.S.A. § 5404a, the town of
Milton may extend for an additional ten years beyond the initial ten years
approved for the two existing tax increment financing districts identified and
known as the Husky campus and the Catamount Industrial Park, and collect all
state and local property taxes on properties contained wholly or partly within
the tax increment financing districts beyond the original taxable value of those
properties at the time of the initial approval of the tax increment financing
districts and apply no more than 75 percent of the increase in the value and
liability assessed under 32 V.S.A. § 5402 state property tax increment, and an
equal percent of the municipal tax increment, on new real property
improvements to repayment of debt issued to finance improvements within that
serve the tax increment financing district and for related costs, upon
application by the Town of Milton; and such that the Town of Milton shall
apply equal percentages of the state property tax increment and municipal
property tax increment to debt obligations incurred prior to April 1, 2009,
related to the two existing tax increment financing districts identified and
known as Husky campus and Catamount Industrial Park, without regard to the
proportionality rule of 24 V.S.A. § 1897.
   Eleventh: By striking out subdivision (17) of Sec. 113 in its entirety and
inserting in lieu thereof the following:
   (17) The provisions of Sec. 64 of this act pertaining to proportional use of
education and municipal tax in TIF financing shall apply to tax increment
financing districts approved pursuant to 32 V.S.A. § 5404a.
   Twelfth: By adding a new Sec. 74 to read as follows:
                             FRIDAY, MAY 2, 2008                            1903
Sec. 74. Sec. 38(3) of No. 159 of the Acts of 1999 Adj Sess. (2000) is
amended to read as follows:
       (3) The excess valuation of property within a tax increment financing
district organized and created pursuant to Sec. 37 of this act, to the extent that
taxes generated on the excess property valuation are pledged and appropriated
for debt service on bonds issued under section 1897 of Title 24 or the funding
of reserves under subdivision (2) of this section, shall not be included within
the education property tax grand list provided for in section 5404 of Title 32 as
taxable property, nor shall the excess valuation of the property be subject to the
education property tax imposed under section 5402 of Title 32 until bonds
issued under section 1897 of Title 24 are released, discharged, paid, defeased,
or fully reserved; provided, however, that 5 2 percent of the education taxes
imposed annually on the excess valuation of the residential property within the
district shall be paid to the education fund. The tax rate assessed on the excess
value of property within the district shall be the same rate assessed on property
outside the district. Until the bonds are paid in full or have been fully redeemed
or defeased through fully funded reserves and accounts, 100 percent of the
municipal taxes assessed against the excess valuation of property within the
district shall be pledged and appropriated solely for debt service on the bonds.
For purposes of this act, “excess valuation” means the difference between the
current grand list value and the grand list value at commencement of the
development.
   Thirteenth: By adding new Sec. 81a to read as follows:
Sec. 81a. SALES TAX HOLIDAY; ENERGY STAR APPLIANCES
   (a) Notwithstanding the provisions of chapter 233 of Title 32 and section
138 of Title 24, no sales and use tax or local option sales tax shall be imposed
or collected on sales to individuals for personal use of items of tangible
personal property at a sales price of $2,000.00 or less from July 12, 2008,
through July 13, 2008.
    (b) Notwithstanding the provisions of chapter 233 of Title 32 and section
138 of Title 24, no sales and use tax or local option sales tax shall be imposed
or collected on sales to individuals for personal use of Energy Star Appliances
at a sales price of $2,000.00 or less from July 12, 2008, through July 18, 2008.
    (c) A vendor in good standing shall be entitled to claim reimbursement for
its expenditures for reprogramming of cash registers and computer equipment
which were in use at the place of business on and after July 12, 2008. Claims
must be filed on or before November 1, 2008, with the department of taxes
with receipts or such other documentation the department may require. The
amount of reimbursement to each vendor shall not exceed the least of the three
1904                      JOURNAL OF THE SENATE
following amounts: the actual cost to the vendor of reprogramming its cash
registers and computer equipment; $50.00; or $50,000.00 divided by the
number of qualified vendor applicants.
   (d) Any municipality with a local option sales tax affected by the sales tax
holidays imposed by this section shall be reimbursed from the department of
taxes for the amount of local option sales tax revenues lost to the municipality.
The commissioner of taxes shall develop a methodology for determining such
reimbursement. The commissioner shall also adjust the deposit in the PILOT
special fund for lost deposits due to the sales tax holidays. Should the amount
appropriated for these purposes under subsection (e) of this section be
insufficient to fully reimburse the municipalities and adjust the PILOT special
fund, reimbursements to municipalities shall take priority.
   (e) In fiscal year 2009, $50,000.00 in general funds is appropriated for
payments for reprogramming under subsection (c) of this section, and
$100,000.00 in general funds is appropriated for reimbursement to
municipalities and adjustments under subsection (d) of this section.
   Fourteenth: By striking out subdivision (18) of Sec. 113 in its entirety.
   Fifteenth: By adding new Sec. 114 to read as follows:
Sec. 114. HEALTH CARE REFORM PROPERTY TAX EXEMPTION
   In fiscal year 2009 only, the following two properties shall be exempt from
education property tax under chapter 135 of Title 32: Buildings and land
owned and occupied by a health, recreation, and fitness organization which is
exempt under Section 501(c)(3) of the Internal Revenue Code, the income of
which is entirely used for its exempt purpose, one of which is designated by
the Springfield Hospital and the other designated by the North Country
Hospital, to promote exercise and healthy lifestyles for the community and to
serve citizens of all income levels in this mission. This exemption shall apply
notwithstanding the provisions of subdivision 3832(7) of Title 32.
  And by renumbering the sections of the bill and internal references to be
numerically correct.
                                                 ANN E. CUMMINGS
                                                 WILLIAM H. CARRIS
                                                 JAMES C. CONDOS
                                            Committee on the part of the Senate
                                                 SHAP SMITH
                                                 HARVEY B. OTTERMAN
                                                 MARY PETERSON
                            FRIDAY, MAY 2, 2008                         1905
                                           Committee on the part of the House
                         Committee of Conference
                                   H.888
                 MISCELLANEOUS TAX AMENDMENTS
   It is the understanding of the Committee of Conference that the committee
report should read as follows:
1. In Sec. 70c in the Tenth Conference Committee amendment, the phrase
  “within the period of five ten state fiscal years beginning July 1, 2006
2008”
should instead read
   “within the period of five state fiscal years beginning July 1, 2006 2008”;
and
2. In Sec. 74 in the Twelfth Conference Committee amendment, the phrase
       “5 2 percent of the education taxes imposed annually on the excess
valuation of the residential property within the district shall be paid to the
education fund”
should instead read
        “5 2 percent of the education taxes imposed annually on the excess
valuation of the residential property within the district shall be paid to the
education fund”.
                                               ANN E. CUMMINGS
                                               WILLIAM H. CARRIS
                                               JAMES C. CONDOS
                                           Committee on the part of the Senate
                                               SHAP SMITH
                                               HARVEY B. OTTERMAN
                                               MARY PETERSON
                                           Committee on the part of the House
   Senator MacDonald moved that the rules be suspended, so that the Senate
could instruct the Senate conferees to meet with House Conferees, to amend its
report by striking out Sec. 81a [sales tax holiday] from the Committee of
Conference report, which was disagreed to on a roll call, Yeas 2, Nays 28 (the
necessary 3/4th majority required not having been attained).
1906                     JOURNAL OF THE SENATE
   Senator Mullin having demanded the yeas and nays, they were taken and
are as follows:
                                   Roll Call
  Those Senators who voted in the affirmative were: MacDonald,
McCormack.
  Those Senators who voted in the negative were: Ayer, Bartlett,
Campbell, Carris, Collins, Condos, Coppenrath, Cummings, Doyle, Flanagan,
Giard, Hartwell, Illuzzi, Kitchel, Kittell, Lyons, Maynard, Mazza, Miller,
Mullin, Nitka, Racine, Scott, Sears, Shumlin, Snelling, Starr, White.
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
  Rules Suspended; Reports of Committees of Conference Accepted and
                   Adopted on the Part of the Senate
                                     S. 284.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and the report of the Committee of Conference on
Senate bill entitled:
   An act relating to the department of banking, insurance, securities, and
health care administration.
   Was taken up for immediate consideration.
   Senator Cummings, for the Committee of Conference, submitted the
following 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:
   S. 284. An act relating to the department of banking, insurance, securities,
and health care administration.
   Respectfully reports that it has met and considered the same and
recommends that the Senate recede from its proposals of amendment to the
House proposals of amendment, that the Senate accede to the House proposals
of amendment, and that the bill be further amended by striking out Secs. 13, 14
and 15 and inserting in lieu thereof new Secs. 13 and 14 to read as follows:
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
                             FRIDAY, MAY 2, 2008                            1907
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.
                                                 ANN E. CUMMINGS
                                                 HULL P. MAYNARD, JR.
                                                 RICHARD J. McCORMACK
                                            Committee on the part of the Senate
                                                 WARREN F. KITZMILLER
                                                 ANN D. PUGH
                                                 JUDITH LIVINGSTON
                                            Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                                      S. 322.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and the report of the Committee of Conference on
Senate bill entitled:
   An act relating to the Vermont dairy promotion council.
   Was taken up for immediate consideration.
   Senator Giard, for the Committee of Conference, submitted the following
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:
   S. 322. An act relating to the Vermont dairy promotion council.
   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 out all after the enacting clause and inserting in
lieu thereof the following:
1908                       JOURNAL OF THE SENATE
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.
                              FRIDAY, MAY 2, 2008                           1909
     (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
1910                     JOURNAL OF THE SENATE
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.
                             FRIDAY, MAY 2, 2008                          1911
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.
1912                      JOURNAL OF THE SENATE
       (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
                             FRIDAY, MAY 2, 2008                          1913
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:
1914                      JOURNAL OF THE SENATE
        (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
                            FRIDAY, MAY 2, 2008                          1915
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.
                                               HAROLD W. GIARD
                                               HULL P. MAYNARD, JR.
                                               SARA B. KITTELL
                                           Committee on the part of the Senate
                                               DAVID ZUCKERMAN
                                               CHRISTOPHER BRAY
                                               JAMES McNEIL
                                           Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                                     S. 345.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and the report of the Committee of Conference on
Senate bill entitled:
  An act relating to lowering the cost of workers’ compensation insurance.
1916                      JOURNAL OF THE SENATE
   Was taken up for immediate consideration.
   Senator Illuzzi, for the Committee of Conference, submitted the following
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:
   S. 345. 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 House 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. 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
                            FRIDAY, MAY 2, 2008                          1917
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, food and
markets, 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
1918                     JOURNAL OF THE SENATE
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 workers’ 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:
                             FRIDAY, MAY 2, 2008                            1919
   (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.
1920                      JOURNAL OF THE SENATE
     (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
                              FRIDAY, MAY 2, 2008                            1921
for improving enforcement, stimulating interagency cooperation, including
information sharing, prosecution and creating a fraud unit with proposals for
staffing, reporting, structure, and funding.
      (2) 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 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
1922                      JOURNAL OF THE SENATE
Guides to the Evaluation of Permanent Impairment 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
                             FRIDAY, MAY 2, 2008                           1923
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. WORKERS’ 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.
1924                     JOURNAL OF THE SENATE
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
workers’ 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
                             FRIDAY, MAY 2, 2008                            1925
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
1926                     JOURNAL OF THE SENATE
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.
                             FRIDAY, MAY 2, 2008                            1927
      (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 * * *
1928                      JOURNAL OF THE SENATE
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 departments of labor and of 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
                             FRIDAY, MAY 2, 2008                            1929
   The act shall take effect on July 1. 2008, except this section and Secs. 10, 7,
15, 16, 17, and 18 which shall take effect on passage.
1930                     JOURNAL OF THE SENATE
                                                VINCENT ILLUZZI
                                                JAMES C. CONDOS
                                                HINDA MILLER
                                            Committee on the part of the Senate
                                                WARREN KITZMILLER
                                                ERNEST SHAND
                                                JOHN CLERKIN
                                            Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative.
                     Rules Suspended; Bills Messaged
    On motion of Senator Shumlin, the rules were suspended, and the following
bills were ordered messaged to the House forthwith:
  H. 711, H. 888.
                     Rules Suspended; Bills Delivered
    On motion of Senator Shumlin, the rules were suspended, and the following
bills were ordered delivered to the Governor forthwith:
  S. 107, S. 246, S. 250, S. 281, S. 284, S. 322, S. 345.
                         Appointments Confirmed
   Under suspension of the rules (and particularly, Senate Rule 93), as moved
by Senator Shumlin, the following Gubernatorial appointments were confirmed
together as a group by the Senate, without reports given by the Committees to
which they were referred and without debate:
  Richard G. Grassi of White River Junction - Member, Parole Board –
March 1, 2008, to February 28, 2011.
   Heather Shouldice of East Calais - Member, Capitol Complex Commission
– November 1, 2007, to October 31, 2010.
  Susan Hayward of Middlesex - Member, Capitol Complex Commission –
November 7, 2007, to October 31, 2010.
  Dean George of Middlebury - Member, Parole Board – March 1, 2008, to
February 28, 2011.
  Stephanie O’Brien of South Burlington - Member, Liquor Control Board –
September 7, 2007, to January 31, 2009.
                           FRIDAY, MAY 2, 2008                       1931
   John P. Cassarino of Rutland - Member, Liquor Control Board – February
1, 2007, to January 31, 2013.
  Walter E. Free of Dorset - Member, Liquor Control Board – February 1,
2007, to January 31, 2013.
  Richard W. Park of Williston - Member, State Labor Relations Board –
August 18, 2007, to June 30, 2013.
  James Kiehle of Brattleboro - Member, State Labor Relations Board –
September 4, 2007, to June 30, 2008.
  James J. Dunn, Esq. of South Burlington - Member, State Labor Relations
Board – January 2, 2007, to June 30, 2012.
  Leonard J. Berliner of Quechee - Member, State Labor Relations Board –
October 16, 2006, to June 30, 2012.
  Nathan Besio of South Burlington - Member, Human Rights Commission –
August 29, 2007, to February 28, 2012
  Nathan Besio of South Burlington - Member, Human Rights Commission –
May 16, 2007, to July 31, 2007
  Donald R. Vickers of Georgia - Member, Human Rights Commission –
February 15, 2011, to February 28, 2011
   Mary C. Marzec-Gerrior of Pittsford - Member, Human Rights Commission
– March 12, 2008, to February 28, 2013
  David Redmond of St. Johnsbury - Member, State Infrastructure Bank
Board – April 10, 2008, to February 28, 2012
  David E. Luce of Waterbury Center - Member, Community High School of
Vermont Board – March 12, 2008, to February 28, 2011
  John Ewing of Burlington - Member, Vermont Housing and Conservation
Board – February 4, 2008, to January 31, 2011
  John Booth of Essex Junction - Member, Transportation Board – March 7,
2008, to February 28, 1020.
  Joan Hungerford of St. Albans - Member, Transportation Board – March 7,
2008, to February 28, 2010.
  Frederick P. Bullock of Bellows Falls - Member, State Infrastructure Bank
Board – April 10, 2008, to February 28, 2012.
  Alice Olenick of Waitsfield - Member, Natural Resources Board, Land Use
Panel – February 13, 2006, to January 31, 2010.
1932                    JOURNAL OF THE SENATE
  John Nicholls of Barre - Member, Natural Resources Board, Water
Resources Board – February 13, 2006, to January 31, 2010.
  Patrick M. Bartlett of Woodstock - Member, Current Use Advisory Board –
November 27, 2007, to January 31, 2008.
  Patrick M. Bartlett of Woodstock - Member, Current Use Advisory Board –
February 27, 2008, to January 31, 2011.
   Lisa Nolen Birmingham of Stowe - Member, Natural Resources Board –
July 16, 2007, to January 31, 2009.
  Eric Clifford of Starksboro - Member, Vermont Citizens Advisory
Committee on Lake Champlain’s Future – March 1, 2008, to February 28,
2011.
  Robert Darrow of Mendon - Member, Current Use Advisory Board –
February 27, 2008, to January 31, 2011.
   Lori Fisher of Williston - Member, Vermont Citizens Advisory Committee
on Lake Champlain’s Future – March 1, 2008, to February 28, 2011.
  Paul Hansen of South Alburgh - Member, Vermont Citizens Advisory
Committee on Lake Champlain’s Future – March 1, 2008, to February 28,
2011.
  Michael Hebert of Vernon - Member, Natural Resources Board, Water
Resources Panel – February 1, 2008, to January 31, 2012.
  Cynthia C. Jones of Orange - Member, Fish and Wildlife Board – April 18,
2007, to February 28, 2013.
  Sandra Kuehn of Fair Haven - Member, Vermont Citizens Advisory
Committee on Lake Champlain’s Future – March 1, 2008, to February 28,
2011.
  Craig O. Lantagne of Lyndonville - Member, Fish and Wildlife Board –
March 28, 2008, to February 28, 2014.
  John McClain of Randolph - Member, Current Use Advisory Board –
February 27, 2008, to January 31, 2011.
  John Merrill of Stowe – Alternate Member, Natural Resources Board-
February 1, 2008, to January 31, 2012.
   Patricia Nowak of South Burlington - Member, Natural Resources Board –
July 16, 2007, to January 31, 2011.
  William Pettengill of Guilford - Member, Connecticut River Valley Flood
Control Commission – March 1, 2008, to February 28, 2014.
                            FRIDAY, MAY 2, 2008                        1933
  Jeffrey Salvador of Worcester - Member, Fish and Wildlife Board –
February 12, 2008, to February 28, 2013.
  Randall Volk of Hinesburg - Member, Current Use Advisory Board –
March 10, 2008, to January 31, 2010.
  Elizabeth Wilkel of Walden - Member, Natural Resources Board, Land Use
Panel – February 1, 2008, to January 31, 2012.
                         Appointment Confirmed
  The following Gubernatorial appointment was confirmed separately by the
Senate, upon full report given by the Committee to which it was referred:
  The nomination of
   Roy Folsom of Cabot - Member, Vermont Housing and Conservation Board
– February 1, 2008, to January 31, 2011
  Was confirmed by the Senate on a roll call, Yeas 29, Nays 0.
   Senator Doyle 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, Condos, Coppenrath, Cummings, Doyle, Flanagan,
Giard, Hartwell, Illuzzi, Kitchel, Kittell, Lyons, MacDonald, Maynard, Mazza,
McCormack, Miller, Mullin, Nitka, Racine, Scott, Sears, Shumlin, Snelling,
White.
  Those Senators who voted in the negative were: None.
  The Senator absent and not voting was: Starr.
                         Appointment Confirmed
  The following Gubernatorial appointment was confirmed separately by the
Senate, upon full report given by the Committee to which it was referred:
  Laura Pelosi of Barre – Commissioner, Department of Environmental
Conservation- November 26, 2007, to February 28, 2009.
   Rules Suspended; Report of Committee of Conference Accepted and
            Adopted on the Part of the Senate; Bill Messaged
                                    H. 863.
   Pending entry on the Calendar for notice, on motion of Senator Shumlin,
the rules were suspended and the report of the Committee of Conference on
House bill entitled:
1934                      JOURNAL OF THE SENATE
   An act relating to creation and preservation of affordable housing and smart
growth development.
   Was taken up for immediate consideration.
   Senator Illuzzi, for the Committee of Conference, submitted the following
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:
   H. 863. An act relating to creation and preservation of affordable housing
and smart growth development.
   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. LEGISLATIVE ACKNOWLEDGMENT
   The general assembly gratefully thanks and acknowledges Gregory Brown,
the executive director of the Chittenden County regional planning commission,
for:
     (1) his time, commitment, and tenacity in helping to make the Vermont
Neighborhood program a reality.
      (2) his earlier, equally outstanding efforts that greatly contributed to the
creation of the Vermont downtown program.
      (3) his strong and committed leadership as the executive director of the
Chittenden County regional planning commission between March 2003 and
July 1, 2008, when he is scheduled to retire.
Sec. 1a. FINDINGS AND PURPOSE
    (a) Act 250 was enacted as a land use law in 1970 by a general assembly
concerned about large scale, unregulated development in Vermont. At that
time, few towns had planning and zoning, and for the ones that did, there was
limited staffing to enforce those rudimentary municipal laws. Revisions were
made to Act 250 in 1973, including the addition of 11 new subcriteria to
criterion nine, relating to matters such as agricultural soils, energy
conservation, earth resources and development affecting public investments,
but the focus of the law remained to review large scale developments as those
developments were defined. As a result, a large number of developments
around the state have been designed to avoid Act 250 jurisdiction, resulting in
                             FRIDAY, MAY 2, 2008                           1935
no or limited review of the cumulative impact of incremental development of
nine or fewer lots in scattered locations.
   (b) Some argued in the 1970s that Act 250 regulatory review should be
based a comprehensive land use plan that would delineate all the lands of the
state by use classifications, but provided for refinements based on more
detailed studies at the regional and local levels. Others disagreed, arguing that
the regulatory review process under Act 250 was sufficient. In the end, no
such measure was ever approved. The requirement that there be an Act 250
state land use plan was deleted from the law in 1984.
   (c) Since that time, the general assembly incrementally has enacted
legislation to plan land uses and encourage municipalities to approve compact
residential neighborhoods in and around traditional villages and downtowns
and in planned growth centers in accordance with smart growth principles.
This planning act furthers that goal.
   (d) Among the strategies to expedite the development of housing in these
locations is to exempt certain residential development from Act 250, where it
is demonstrated that such proposed land state use review is redundant with
municipal land use review, and, through the careful targeting of eligible
locations to impacted areas served by infrastructure, the potential for
unplanned impact to natural resources and environmental quality is negligible.
   (e) Targeting limited state incentives to smart growth locations must be
balanced with careful planned development in the surrounding countryside. To
this end, strategies for improving certain Act 250 criteria to better manage
scattered residential development and to curb strip development along the
state’s highways should be studied and recommendations brought back before
the general assembly for review and consideration.
   (f) Through the use of higher Act 250 thresholds, coupled with
strengthening criteria related to scattered development, rural growth areas,
transportation and settlement patterns, Vermont can better achieve the state’s
planning and development goal of maintaining Vermont’s historic settlement
pattern of compact village and urban centers separated by rural countryside.
   (g) Regarding affordability, housing units actually developed under this act
could very well have a greater degree of affordability than that required by
law.
     (1) An important component of this act is the creation of a
homeownership affordable housing tax credit, that by itself, creates an
important incentive that will leverage private capital, reducing the cost of
development and the eventual cost of a unit.
1936                      JOURNAL OF THE SENATE
      (2) Because of location and density requirements established in the
Vermont neighborhood program, housing options to be created under the
program may be expected to encourage construction of rental property or
condominiums, or a mix of the two, as well as stand-alone, stick-built homes.
This affects affordability because, statewide, the median price of a
condominium is approximately $10,000.00 less than that of a stick-build home.
      (3) Since many projects will be developed with housing tax credits
allocated by the Vermont housing finance agency, those projects will be
subject to the agency’s qualified allocation plan, which itself considers the
degree of affordability, both regarding the percentage of the units, and
regarding the income level at which they are aimed.
      (4) Housing developed in Vermont neighborhoods by the land trusts or
by Housing Vermont will have significant affordability, and in the case of the
land trusts, that affordability will be permanent.
      (5) Downpayment assistance for low and moderate income homebuyers
by raising the property transfer tax exemption from $100,000.00 to
$110,000.00 for Vermont housing finance agency borrowers, resulting in a 25
percent increase in the maximum consumer benefit, from $500.00 to $625.00.
Downpayment and closing costs are a major obstacle to many potential
homebuyers.
     (6) The state’s financial support for the programs of the Vermont
housing finance agency will result in lower borrowing costs to consumers,
making mortgages more affordable. Specifically:
         (A) The state treasurer is authorized to provide up to $50 million in
short-term credit to the Vermont housing finance agency for interim financing
for its mortgage program.
         (B) The Vermont pension investment committee shall consider
investing up to $17.5 million with the Vermont housing finance agency to
assist with the mobile home financing program and the cash assistance
program, which provides cash assistance with downpayments and closing
costs, both particularly important for low and moderate income Vermonters.
         (C) The state will increase its moral obligation to enhance bonds and
notes issued by the Vermont housing finance agency to $155 million. These
bonds and notes are used to finance VHFA programs for low and moderate
income Vermonters.
      (7)     The affordability standard for rental housing development
established in this act is stricter than that in current law. It is expected that
rental units will be developed in Vermont neighborhoods, especially given the
slow-down in the homeownership market. More middle income Vermonters
                             FRIDAY, MAY 2, 2008                            1937
are turning to rental housing as their most appropriate housing option,
especially as it has gotten more difficult to meet stricter underwriting standards
and as foreclosure rates are increasing.
     (8) Housing affordability will be supported through funding for the
Vermont housing and conservation board. This year alone, $15 million is
appropriated in state funds to provide financial support for housing and
conservation programs.
   (h) As of May 1, 2008, there are 23 designated downtowns and 76 village
centers, but not all of the designated downtown or village centers have zoning
bylaws or subdivision regulations, reducing the number of Vermont
Neighborhood eligible village centers to 24 and designated downtowns to 22.
There is one designated growth center. Therefore, the regulatory relief and
municipal revenue incentive provided by this act will initially apply to those 46
communities.
   (i) The regulatory relief and the municipal revenue incentive for these 46
municipalities may encourage other municipalities to undertake the task of
seeking designation as a downtown, village center or town growth center,
enacting zoning bylaws and subdivision regulations, and then proceeding to
obtain designation as a Vermont neighborhood.
                 * * * Vermont Neighborhoods Program * * *
Sec. 2. 24 V.S.A. § 2791(15) is added to read:
      (15) “Vermont neighborhood” means an area of land that is in a
municipality with an approved plan, a confirmed planning process, zoning
bylaws, and subdivision regulations, and is in compliance with all the
following:
         (A) Is located in one of the following:
           (i) a designated downtown, village center, new town center, or
growth center; or
            (ii) an area of land that is within the municipality and outside but
contiguous to a designated downtown, village center, or new town center and
is not more than 100 percent of the total acreage of the designated downtown,
50 percent of the village center, or 75 percent of the new town center.
         (B) Contains substantially all the following characteristics:
           (i) Its contiguous land, if any, complements the existing
downtown district, village center, or new town center by integrating new
housing units with existing residential neighborhoods, commercial and civic
1938                      JOURNAL OF THE SENATE
services and facilities, and transportation networks, and is consistent with
smart growth principles.
           (ii) It is served by either a municipal sewer infrastructure or a
community or alternative wastewater system approved by the agency of natural
resources.
             (iii) It incorporates minimum residential densities of no fewer than
four units of single-family, detached dwelling units per acre, and higher
densities for duplexes and multi-family housing.
           (iv) It incorporates neighborhood design standards that promote
compact, pedestrian-oriented development patterns and networks of sidewalks
or paths for both pedestrians and bicycles that connect with adjacent
development areas.
Sec. 3. 24 V.S.A. § 2793d is added to read:
§ 2793d. DESIGNATION OF VERMONT NEIGHBORHOODS
    (a) A municipality that has a duly adopted and approved plan and a
planning process that is confirmed in accordance with section 4350 of this title,
has adopted zoning bylaws and subdivision regulations in accordance with
section 4442 of this title, and has a designated downtown district, a designated
village center, a designated new town center, or a designated growth center
served by municipal sewer infrastructure or a community or alternative
wastewater system approved by the agency of natural resources, is authorized
to apply for designation of a Vermont neighborhood. A municipal decision to
apply for designation shall be made by the municipal legislative body after at
least one duly warned public hearing. Designation is possible in two different
situations:
      (1) Per se approval. If a municipality submits an application in
compliance with this subsection for a designated Vermont neighborhood that
would have boundaries that are entirely within the boundaries of a designated
downtown district, designated village center, designated new town center, or
designated growth center, the downtown board shall issue the designation.
      (2) Designation by expanded downtown board in towns without growth
centers. If an application is submitted in compliance with this subsection by a
municipality that does not have a designated growth center and proposes to
create a Vermont neighborhood that has boundaries that include land that is not
within its designated downtown, village center, or new town center, the
expanded downtown board shall consider the application. This application
may be for approval of one or more Vermont neighborhoods that are outside
but contiguous to a designated downtown district, village center, or new town
center. The application for designation shall include a map of the boundaries
                             FRIDAY, MAY 2, 2008                           1939
of the proposed Vermont neighborhood, including the property outside but
contiguous to a designated downtown district, village center, or new town
center and verification that the municipality has notified the regional planning
commission and the regional development corporation of its application for
this designation.
   (b) Designation Process. Within 45 days of receipt of a completed
application, the expanded downtown board, after opportunity for public
comment, shall designate a Vermont neighborhood if the board determines the
applicant has met the requirements of subsections (a) and (c) of this section.
When designating a Vermont neighborhood, the board may change the
boundaries that were contained in the application by reducing the size of the
area proposed to be included in the designated neighborhood, but may not
include in the designation land that was not included in the application for
designation. A Vermont neighborhood decision made by the expanded board
is not subject to appeal. Any Vermont neighborhood designation shall
terminate when the underlying downtown, village center, new town center, or
growth center designation terminates.
  (c) Designation Standards. The board shall determine that the applicant has
demonstrated all of the following:
      (1) The municipality has a duly adopted and approved plan and a
planning process that is confirmed in accordance with section 4350 of this title,
and has adopted zoning bylaws and subdivision regulations in accordance with
section 4442 of this title.
      (2) The cumulative total of all Vermont neighborhood land located
within the municipality but outside a designated downtown district, designated
village center, or designated new town center is not more than 100 percent of
the total acreage of the designated downtown district, 50 percent of the village
center, or 75 percent of the new town center.
      (3) The contiguous land of the Vermont neighborhood complements the
existing designated downtown district, village center, or new town center by
integrating new housing units with existing residential neighborhoods,
commercial and civic services and facilities, and transportation networks, and
the contiguous land, in combination with the designated downtown
development district, village center, or new town center, is consistent with
smart growth principles established under subdivision 2791(13) of this title;
      (4) The Vermont neighborhood shall be served by one of the following:
         (A) a municipal sewer infrastructure; or
1940                        JOURNAL OF THE SENATE
        (B) a community or alternative wastewater system approved by the
agency of natural resources.
      (5) The municipal zoning bylaw requires the following for all land
located within the Vermont neighborhood:
            (A) Minimum residential densities shall require all the following:
             (i) No fewer than four units of single-family, detached dwelling
units per acre, exclusive of accessory apartments.
              (ii) Higher density for duplexes and multi-family housing.
         (B)     Neighborhood design standards that promote compact,
pedestrian-oriented development patterns that include the following:
           (i) Pedestrian scale and orientation of development. Networks of
sidewalks or paths, or both, are provided and available to the public to connect
the Vermont neighborhood with adjacent development areas, existing and
planned adjacent sidewalks, paths, and public streets and the designated
downtown, village center, or new town center.
            (ii) Interconnected and pedestrian-friendly street networks. Street
networks are designed to safely accommodate both pedestrians and bicycles
through the provisions of sidewalks on at least one side of the street, on-street
parking, and traffic-calming features.
      (6)     Residents hold a right to utilize household energy conserving
devices.
   (d) Vermont Neighborhood Incentives for Municipalities and Developers.
Incentives for Vermont neighborhoods include the following:
      (1) The agency of natural resources shall charge no more than a $50.00
fee for wastewater applications under 3 V.S.A. § 2822(j)(4) where the
applicant has received an allocation for sewer capacity from an approved
municipal system. This limitation shall not apply in the case of fees charged as
part of a duly delegated municipal program.
       (2) Act 250 fees under 10 V.S.A. § 6083a for residential developments
in Vermont neighborhoods shall be 50 percent of the fee otherwise applicable.
Fifty percent of the reduced fees shall be paid upon application, and 50 percent
shall be paid within 30 days of the issuance or denial of the permit.
      (3) No land gains tax under chapter 236 of Title 32 shall be levied on a
transfer of undeveloped land in a Vermont neighborhood which is the first
transfer of that parcel following the original designation of the Vermont
neighborhood.
                             FRIDAY, MAY 2, 2008                            1941
   (e) Length of Designation. Initial designation of a Vermont neighborhood
shall be for a period of five years, after which, the expanded state board shall
review a Vermont neighborhood concurrently with the next periodic review
conducted of the underlying designated downtown, village center, new town
center or growth center, even if the underlying designated entity was originally
designated by the downtown board and not by the expanded state board.
However, the expanded board, on its motion, may review compliance with the
designation requirements at more frequent intervals. If at any time the
expanded state board determines that the designated Vermont neighborhood no
longer meets the standards for designation established in this section, it may
take any of the following actions:
      (1) require corrective action within a reasonable time frame;
     (2) remove the Vermont neighborhood designation, with that removal
not retroactively affecting any of the benefits already received by the
municipality or land owner in the designated Vermont neighborhood; and
      (3) prospectively limiting benefits authorized in this chapter, with the
limitation not retroactively affecting any of the benefits already received by the
municipality or land owner in the designated Vermont neighborhood.
                     * * * New Town Center Acreage * * *
Sec. 4. 24 V.S.A. § 2793b(b)(2)(A) is amended to read:
        (A) A map of the designated new town center. The total area of land
encompassed within a designated new town center shall not exceed 125 acres.
In a municipality with a population greater than 15,000, the total area of land
encompassed within a designated new town center may include land in excess
of 125 acres provided that the additional area is needed to facilitate the
redevelopment of predominately developed land in accordance with the smart
growth principles defined under subdivision 2791(13) of this title and shall not
exceed 175 acres.
        * * * Codifying Agency of Natural Resources Incentives * * *
Sec. 5. 3 V.S.A. § 2822(j)(4)(D) is amended to read:
         (D) Notwithstanding the other provisions of this subdivision,:
                                      ***
            (ii) when a potable water supply is subject to the fee provisions of
this subdivision and subdivision (j)(7)(A) of this section, only the fee required
by subdivision (j)(7)(A) shall be assessed; and
1942                     JOURNAL OF THE SENATE
            (iii) when a project is subject to the fee provision for the
subdivision of land and the fee provision for potable water supplies and
wastewater systems of this subdivision, only the higher of the two fees shall be
assessed; and
             (iv) when a project is located in a Vermont neighborhood, as
designated under 24 V.S.A. chapter 76A, the fee shall be no more than $50.00
in situations in which the application has received an allocation for sewer
capacity from an approved municipal system. This limitation shall not apply in
the case of fees charged as part of a duly delegated municipal program.
               * * * Codifying Higher Act 250 Thresholds * * *
Sec. 6. 10 V.S.A. § 6001(3) are amended to read:
       (3)(A) “Development” means:
                                     ***
         (B)(i) Smart Growth Jurisdictional Thresholds. Notwithstanding the
provisions of subdivision (3)(A) of this section, if a project consists
exclusively of any combination of mixed income housing or mixed use and is
located entirely within a growth center designated pursuant to 24 V.S.A.
§ 2793c or within a downtown development district designated pursuant to 24
V.S.A. § 2793, “development” means:
           (i)(I) Construction of mixed income housing with 100 200 or more
housing units or a mixed use project with 100 200 or more housing units, in a
municipality with a population of 20,000 15,000 or more.
           (ii)(II) Construction of mixed income housing with 50 100 or
more housing units or a mixed use project with 50 100 or more housing units,
in a municipality with a population of 10,000 or more but less than 20,000
15,000.
           (iii)(III) Construction of mixed income housing with 30 50 or
more housing units or a mixed use project with 30 50 or more housing units,
in a municipality with a population of 5,000 6,000 or more and less than
10,000.
           (iv)(IV) Construction of mixed income housing with 25 30 or
more housing units or a mixed use project with 25 30 or more housing units, in
a municipality with a population of 3,000 or more but less than 5,000 6,000.
           (v)(V) Construction of mixed income housing with 25 or more
housing units or a mixed use project with 25 or more housing units, in a
municipality with a population of less than 3,000.
                              FRIDAY, MAY 2, 2008                            1943
             (VI) Historic Buildings. Construction of 10 or more units of
mixed income housing or a mixed use project with 10 or more housing units
where the construction involves the demolition of one or more buildings that
are listed on or eligible to be listed on the state or national register of historic
places. However, demolition shall not be considered to create jurisdiction
under this subdivision if the division for historic preservation has determined
the proposed demolition will have: no adverse effect; no adverse effect
provided that specified conditions are met; or, will have an adverse effect, but
that adverse effect will be adequately mitigated. Any imposed conditions shall
be enforceable through a grant condition, deed covenant, or other legally
binding document.
         (ii)      Mixed Income Housing Jurisdictional Thresholds.
Notwithstanding the provisions of subdivision (3)(A) of this section, if a
project consists exclusively of mixed income housing and is located entirely
within a Vermont neighborhood, but outside a growth center designated
pursuant to 24 V.S.A. § 2793c and outside a downtown development district
designated pursuant to 24 V.S.A. § 2793, “development” means:
           (I) Construction of mixed income housing with 200 or more
housing units, in a municipality with a population of 15,000 or more.
           (II) Construction of mixed income housing with 100 or more
housing units, in a municipality with a population of 10,000 or more but less
than 15,000.
           (III) Construction of mixed income housing with 50 or more
housing units, in a municipality with a population of 6,000 or more and less
than 10,000.
            (IV) Construction of mixed income housing with 30 or more
housing units, in a municipality with a population of 3,000 or more but less
than 6,000.
           (V) Construction of mixed income housing with 25 or more
housing units, in a municipality with a population of less than 3,000.
            (VI) Historic Buildings. Construction of 10 or more units of mixed
income housing where the construction involves the demolition of one or more
buildings that are listed on or eligible to be listed on the state or national
register of historic places. However, demolition shall not be considered to
create jurisdiction under this subdivision if the division for historic
preservation has determined the proposed demolition will have: no adverse
effect; no adverse effect provided that specified conditions are met; or will
have an adverse effect, but that adverse effect will be adequately mitigated.
1944                       JOURNAL OF THE SENATE
Any imposed conditions shall be enforceable through a grant condition, deed
covenant, or other legally binding document.
         (C) For the purposes of determining jurisdiction under subdivisions
(3)(A) and (3)(B) of this section, the following shall apply:
            (i) Incentive for Growth Inside Designated Areas. Housing
Notwithstanding subdivision (3)(A)(iv) of this section, housing units
constructed by a person partially or completely outside a designated downtown
development district, or designated growth center, or designated Vermont
neighborhood shall not be counted to determine jurisdiction over housing units
constructed by a that person entirely within a designated downtown
development district, or designated growth center, or designated Vermont
neighborhood.
            (ii) Five Year, Five Mile Radius Jurisdiction Analysis. Within
any continuous period of five years, housing units constructed by a person
entirely within a designated downtown district or, designated growth center, or
designated Vermont neighborhood shall be counted together with housing units
constructed by a that person partially or completely outside a designated
downtown development district or, designated growth center, or designated
Vermont neighborhood to determine jurisdiction over the housing units
constructed by a person partially or completely outside the designated
downtown development district or, designated growth center, or designated
Vermont neighborhood and within a five-mile radius in accordance with
subdivision (3)(A)(iv) of this section.
            (iii) All Discrete Housing Projects in Designated Areas and
Exclusive Counting for Housing Units.              Notwithstanding subdivisions
(3)(A)(iv) and (19) of this section, jurisdiction shall be determined exclusively
by counting housing units constructed by a person within a designated
downtown development district or, designated growth center, within any
continuous period of five years, commencing on or after the effective date of
this subdivision, shall be counted together or designated Vermont
neighborhood, provided that the housing units are part of a discrete project
located on a single tract or multiple contiguous tracts of land.
            (iv) Railroad projects. In the case of a project undertaken by a
railroad, no portion of a railroad line or railroad right-of-way that will not be
physically altered as part of the project shall be included in computing the
amount of land involved. In the case of a project undertaken by a person to
construct a rail line or rail siding to connect to a railroad's line or right-of-way,
only the land used for the rail line or rail siding that will be physically altered
as part of the project shall be included in computing the amount of land
involved.
                             FRIDAY, MAY 2, 2008                           1945
             (v)     Permanently Affordable Housing.             Notwithstanding
subdivision (C)(iii) of this subdivision (3), any subdivisions (3)(A)(iv) and
(19) of this section, jurisdiction shall be determined exclusively by counting
affordable housing units, as defined by this section, that are subject to housing
subsidy covenants as defined in 27 V.S.A. § 610 that preserve their
affordability for a period of 99 years or longer, and that are constructed by a
person within a designated downtown development district, designated village
center, or designated growth center, shall count toward the total number of
housing units used to determine jurisdiction only if they were constructed
within the previous 12-month period, commencing on or after the effective
date of this subdivision provided the affordable housing units are located in a
discrete project on a single tract or multiple contiguous tracts of land,
regardless of whether located within an area designated under 24 V.S.A.
chapter 76A.
                                     ***
                 * * * Rules on Mixed Income Housing * * *
Sec. 7. 10 V.S.A. § 6001(27) is amended to read:
      (27) “Mixed income housing” means a housing project in which the
following apply:
        (A) Owner occupied housing. At the option of the applicant, owner-
occupied housing may be characterized by either of the following:
            (i) at least 15 percent of the total housing units are affordable
housing units have a purchase price which at the time of first sale does not
exceed 85 percent of the new construction, targeted area purchase price limits
established and published annually by the Vermont housing finance agency; or
            (ii) at least 20 percent of the housing units have a purchase price
which at the time of first sale does not exceed 90 percent of the new
construction, targeted area purchase price limits established and published
annually by the Vermont housing finance agency;
         (B) Affordable Rental Housing. At least 20 percent of housing that is
rented by the occupants whose gross annual household income does not exceed
60 percent of the county median income, or 60 percent of the standard
metropolitan statistical area income if the municipality is located in such an
area, as defined by the United States Department of Housing and Urban
Development for use with the Housing Credit Program under Section 42(g) of
the Internal Revenue Code, and the total annual cost of the housing, as defined
at Section 42(g)(2)(B), is not more than 30 percent of the gross annual
1946                      JOURNAL OF THE SENATE
household income as defined at Section 42(g)(2)(C), and with a duration of
affordability of no less than 30 years.
              * * * Act 250 Fees In Vermont Neighborhood * * *
Sec. 8. 10 V.S.A. § 6083a(d) is amended to read:
   (d) Vermont Neighborhood Fees. Fees for residential development in a
Vermont neighborhood designated according to 24 V.S.A. § 2793d shall be no
more than 50 percent of the fee otherwise charged under this section, with 50
percent due with the application, and 50 percent due within 30 days after the
permit is issued or denied.
  * * * Vermont Neighborhood Chapter 117 Conditional Use Appeals * * *
Sec. 9. 24 V.S.A. § 4471(e) is added to read:
   (e) Vermont Neighborhood. Notwithstanding subsection (a) of this section,
a determination by an appropriate municipal panel shall not be subject to
appeal if the determination is that a proposed residential development within a
designated downtown development district, designated growth center, or
designated Vermont neighborhood seeking conditional use approval will not
result in an undue adverse effect on the character of the area affected, as
provided in subdivision 4414(3)(A)(ii) of this title.
                               * * * Report * * *
Sec. 10. REPORT ON POLLUTION CONTROL SYSTEM
   By no later than January 15, 2009, the secretary of natural resources shall
report to the legislative committees on natural resources and energy with
regard to the agency’s implementation of and compliance with the municipal
pollution control priority system rules, and as to the impact of these rules on
development.
                       * * * VHFA Sunset Repeal * * *
Sec. 11. 10 V.S.A. § 625(1) is amended to read:
      (1) The residential housing is primarily for occupancy by persons and
families of low and moderate income, or qualifies for financing with proceeds
of federally tax-exempt obligations, or at least 20 percent of the units are for
occupancy by persons and families of low and moderate income;
Sec. 11a. EFFECTIVE DATE OF SEC 11
   Sec. 11 (VHFA sunset repeal) of this act shall take effect on July 1, 2008, at
which time the prospective repeal provisions of Sec. 7a of No. 189 of the Acts
of the 2005 Adj. Sess. (2006) shall have no force or effect.
                             FRIDAY, MAY 2, 2008                          1947
                       * * * VHFA Reserve Funds * * *
Sec. 11b. 10 V.S.A. § 632(d) is amended to read:
   (d) Moral obligation bonds. In order to assure the maintenance of the debt
service reserve requirement in each debt service reserve fund established by
the agency, there may be appropriated annually and paid to the agency for
deposit in each such fund, such sum as shall be certified by the chair of the
agency, to the governor or the governor-elect, the president of the senate, and
the speaker of the house, as is necessary to restore each such debt service
reserve fund to an amount equal to the debt service reserve requirement for
such fund. The chair shall annually, on or about February 1, make and deliver
to the governor or the governor-elect, the president of the senate, and the
speaker of the house, his or her certificate stating the sum required to restore
each such debt service reserve fund to the amount aforesaid, and the sum so
certified may be appropriated, and if appropriated, shall be paid to the agency
during the then current state fiscal year. The principal amount of bonds or
notes outstanding at any one time and secured in whole or in part by a debt
service reserve fund to which state funds may be appropriated pursuant to this
subsection shall not exceed $125,000,000.00 $155,000,000.00, provided that
the foregoing shall not impair the obligation of any contract or contracts
entered into by the agency in contravention of the Constitution of the United
States of America.
                          * * * Land Gains Tax * * *
Sec. 12. 32 V.S.A. § 10002(p) is added to read:
   (p) Also excluded from the definition of “land” is a transfer of undeveloped
land in a Vermont neighborhood which is the first transfer of that parcel
following the original designation of the Vermont neighborhood.
                        * * * Housing Tax Credit * * *
Sec. 13. 32 V.S.A. § 5930u is amended to read:
§ 5930u. TAX CREDIT FOR AFFORDABLE HOUSING
   (a) As used in this section:
      (1) “Affordable housing project” or “project” means a rental housing
project identified in 26 U.S.C. § 42(g) or owner-occupied housing identified in
26 U.S.C. § 143(e) and (f) and eligible under the Vermont housing finance
agency allocation plan criteria.
                                     ***
1948                      JOURNAL OF THE SENATE
       (9) “Allocation plan” means the plan recommended by the committee
and approved by the Vermont housing finance agency, which sets forth the
eligibility requirements and process for selection of eligible housing projects to
receive affordable housing tax credits under this section. The allocation plan
shall include requirements for creation and retention of affordable housing for
low income persons, and requirements to ensure that eligible housing is
maintained as affordable by subsidy covenant, as defined in 27 V.S.A. § 610
on a perpetual basis, and meets all other requirements of the Vermont housing
finance agency related to affordable housing.
   (b)(1) Affordable housing credit allocation. Prior to the placement of an
affordable housing project in service, the owner, or a person having the right to
acquire ownership of a building, may apply to the committee for an allocation
of affordable housing tax credits under this section. The committee shall
advise the allocating agency on an affordable housing tax credit application
based upon published priorities and criteria. An eligible applicant may apply
to the allocating agency for an allocation of affordable housing tax credits
under this section related to an affordable housing project authorized by the
allocating agency under the allocation plan. In the case of a specific affordable
rental housing project, the eligible applicant must also be the owner or a person
having the right to acquire ownership of the building and must apply prior to
placement of the affordable housing project in service. In the case of
owner-occupied housing units, the applicant must apply prior to purchase of
the unit and must ensure that the allocated funds will be used to ensure that the
housing qualifies as affordable for all future owners of the housing. The
allocating agency shall issue a letter of approval if it finds that the applicant
meets the priorities, criteria, and other provisions of subdivision (2) of this
subsection. The burden of proof shall be on the applicant.
      (2) Upon receipt of a completed application, an allocation of affordable
housing tax credits with respect to a project under this section shall be granted
to an applicant, provided the applicant demonstrates to the satisfaction of the
committee all of the following:
         (A) The owner of the project has received from the allocating agency
a binding commitment for, a reservation or allocation of, an out-of-cap
determination letter for, Section 42 credits, or meets the requirements of the
allocation plan for development of units to be owner-occupied;
         (B) The project has received community support.
                                      ***
   (g) In any fiscal year, the allocating agency may award up to $400,000.00
in total first-year credit allocations to all applicants under this subchapter for
rental housing projects; and may award up to $100,000.00 per year for
                             FRIDAY, MAY 2, 2008                           1949
owner-occupied unit applicants. In any fiscal year, total first-year allocations
plus succeeding-year deemed allocations shall not exceed $2,000,000.00
$2,500.000.00.
Sec. 13a. EFFECTIVE DATE OF SEC. 13
  Sec. 13 (VHFA Home Ownership Tax Credit) of this act, amending 32
V.S.A. § 5930u, shall take effect July 1, 2008.
                       * * * Property Transfer Tax * * *
Sec. 14. 32 V.S.A. § 9602(1) is amended to read:
§ 9602. TAX ON TRANSFER OF TITLE TO PROPERTY
   A tax is hereby imposed upon the transfer by deed of title to property
located in this state. The amount of the tax equals one and one quarter
one-quarter percent of the value of the property transferred, or $1.00,
whichever is greater, except as follows:
      (1) with respect to the transfer of property to be used for the principal
residence of the transferee: the tax shall be imposed at the rate of five-tenths
of one percent of the first $100,000.00 in value of the property transferred and
at the rate of one and one quarter one-quarter percent of the value of the
property transferred in excess of $100,000.00; except that no tax shall be
imposed on the first $110,000.00 in value of the property transferred if the
purchaser obtains a purchase money mortgage funded in part with a homeland
grant through the Vermont housing and conservation trust fund or which the
Vermont housing and finance agency or U.S. Department of Agriculture and
Rural Development has committed to make or purchase and tax at the rate of
one and one-quarter percent shall be imposed on the value of that property in
excess of $110,000.00.
                                     ***
Sec. 14a. APPLICABILITY OF SEC. 14
  Sec. 14 (Low Income Home Ownership Program) of this act, amending 32
V.S.A. § 9602, shall apply to transfers on or after July 1, 2008.
Sec. 15. 24 V.S.A. § 2792(a) is amended to read:
   (a) A “Vermont downtown development board,” also referred to as the
“state board,” is created to administer the provisions of this chapter. The state
board members shall be composed of the following permanent members, or
their designees:
      (1) The the secretary of commerce and community development;
1950                       JOURNAL OF THE SENATE
       (2) The the secretary of transportation;
       (3) The the secretary of natural resources;
       (4) The secretary of human services;
       (5) The the commissioner of public safety;
       (6) The commissioner of housing and community affairs; and
     (5) a person appointed by the governor from a list of three names
submitted by the Vermont Natural Resources Council, the Preservation Trust
of Vermont, and Smart Growth Vermont;
     (6) a person appointed by the governor from a list of three names
submitted by the Association of Chamber Executives; and
      (7) Three three public members representative of local government, one
of whom shall be designated by the Vermont league of cities and towns, and
two shall be appointed by the governor.
Sec. 16. SMART GROWTH; STUDY COMMITTEE
  (a) A smart growth study committee is created to:
       (1) Study Act 250 (10 V.S.A. § 6086) criterion 5, relating to traffic,
criterion 9(H), relating to scattered development, criterion 9(L), relating to
rural development, and other criteria identified by the committee, to determine
the effectiveness of those criteria to promote compact settlement patterns,
prevent sprawl, and protect important natural resources, and to make
recommendations to improve the effectiveness of those criteria in preserving
the economic vitality of Vermont’s existing settlements and preventing sprawl
development.
     (2)     Evaluate the development potential of existing designated
downtowns, new town centers, and village centers and evaluate the community
and natural resource impacts of developing surrounding lands.
     (3) Make recommendations for incentives designed to encourage
municipalities to preserve Vermont’s working landscape and to develop
Vermont neighborhoods and new housing.
      (4) Develop recommendations for how best to conduct periodic
assessments of the effectiveness of the designation programs established under
chapter 76A of Title 24.
  (b) The committee shall be composed of the following 13 members:
      (1) Two members of the house, one from the committee on general,
housing and military affairs and one from the committee on natural resources
and energy.
                            FRIDAY, MAY 2, 2008                         1951
      (2) Two members of the senate, one from the committee on economic
development, housing and general affairs and one from the committee on
natural resources and energy.
     (3) A representative from each of the following organizations:
        (A) Vermont homebuilders and remodelers association.
        (B) Lake Champlain regional chamber of commerce.
        (C) Vermont planners association.
        (D) Vermont association of planning and development agencies.
        (E) Smart growth Vermont.
        (F) Vermont natural resources council.
        (G) Vermont natural resources board.
        (H) Vermont association of realtors.
        (I) Vermont league of cities and towns.
        (J) The land use law center at Vermont Law School.
   (c) The four legislative members shall be entitled to per diem compensation
and reimbursement of necessary expenses as provided to members of standing
committees under 2 V.S.A. § 406 for attendance at a meeting when the general
assembly is not in session.
   (d) The chair shall be elected from any of the four legislative members by
the members of the study committee from among the four legislative members.
The committee shall meet as needed, and the legislative council shall provide
administrative support.
   (e) The committee shall issue a brief report on its findings and
recommendations to the house committees on general, housing and military
affairs and on natural resources and energy and the senate committees on
economic development, housing and general affairs and on natural resources
and energy on or before January 15, 2009.
                    * * * State Surplus Land Inventory * * *
Sec. 17. STATE SURPLUS LAND IN CLOSE PROXIMITY TO OR
WITHIN A DOWNTOWN, VILLAGE CENTER, OR NEW TOWN
CENTER; INVENTORY AND PROGRAM PROPOSALS
  (a) The secretary of commerce and community affairs, in consultation with
Vermont housing finance agency, the Vermont housing and conservation
board, and any other interested parties, shall:
1952                      JOURNAL OF THE SENATE
      (1) compile an inventory of state lands deemed to be surplus to state
needs and located in close proximity to or within a designated downtown, a
designated village center, a designated new town center or a designated growth
center that would be appropriate for developing housing that meets the
community housing needs;
      (2) develop program recommendations for the use of suitable state
surplus land that will ensure that housing development on this land includes a
substantial amount of affordable housing, including permanently affordable
housing; and
       (3) recommend processes and mechanisms for transfer of the land to
assure its use for housing development whether by outright sale, long-term
lease, or some other appropriate mechanism.
   (b) On or before January 15, 2009, the secretary of commerce and
community development shall issue a report that includes an inventory of state
surplus land and recommendations developed pursuant to the goals of
subsection (a) of this section. The report shall be provided to the house
committees on corrections and institutions and on general, housing and
military affairs and the senate committees on institutions and on economic
development, housing and general.
                       * * * VHFA Economic Stimuli * * *
Sec. 18. 3 V.S.A. § 523(e) is amended to read:
   (e) The committee may formulate policies and procedures deemed
necessary and appropriate to carry out its functions. Notwithstanding the
foregoing, the committee shall consider, consistent with chapter 147 of Title 9,
subsection 472a(b) of this title, 16 V.S.A. § 1943a(b), and 24 V.S.A.
§ 5063a(b), investing up to $17,500,000.00 with the Vermont housing finance
agency to assist in its homeownership financing programs for persons and
families of low and moderate income as defined in 10 V.S.A. § 601(11).
Sec. 19. INVESTMENT OF STATE MONEYS
   The treasurer is hereby authorized to establish a short-term credit facility for
the Vermont housing finance agency in an amount of up to $50,000,000.00 to
be used as interim financing for its homeownership mortgage loan program as
authorized under chapter 25 of Title 10.
Sec. 19a. REPEAL OF SEC. 19
       Sec. 19 (Short-Term Loan from State Treasury to VHFA) of this act
shall be repealed on July 1, 2009.
                            FRIDAY, MAY 2, 2008                          1953
Sec. 20. VERMONT NEIGHBORHOOD REPORT; AGENCY OF
COMMERCE AND COMMUNITY AFFAIRS
   (a) On or before January 15, 2010, the secretary of commerce and
community affairs, in collaboration with the regional planning commissions,
shall issue a report on the status of the Vermont neighborhood program to the
senate committees on economic development, housing and general affairs, on
natural resources and energy, and on finance, and the house committees on
general, housing and military affairs, on natural resources and energy, and on
ways and means. The report shall include all the following:
      (1)     The number of Vermont neighborhood applications and
designations.
      (2) The number of housing units, including a description, size, selling
price, and location of each, permitted and constructed in each Vermont
neighborhood.
      (3) With regard to projects of 20 housing units or more within a
Vermont neighborhood , the average cost per unit of becoming fully permitted,
by region, including state and local permitting costs.
      (4) The number and description of rental housing properties permitted or
constructed in each Vermont neighborhood and the rental charges for each
unit.
     (5) By region, the type and amount of fees charged by municipalities,
and how fees are used.
      (6) An evaluation of incentives and disincentives to municipal
participation in the Vermont neighborhood program.
     (7) Any other information useful to determining the success of the
Vermont neighborhood program to stimulate housing development and
encourage smart growth.
   (b) The department of taxes shall track new construction residential
housing transfers through property transfer tax data collection, and shall make
this information public.
Sec. 21. REGIONAL PLANNING COMMISSION REPORT ON INFILL
OPPORTUNITIES
   By no later than January 15, 2009, each regional planning commission is
requested to inventory and map locations within its region that are served by
municipal wastewater and water supply services and that are otherwise suitable
for infill development and redevelopment, giving due regard to the location of
important natural resources and primary agricultural soils. The inventory and
1954                        JOURNAL OF THE SENATE
map shall be provided, by January 30, 2009, to the committees of the general
assembly with jurisdiction over housing, natural resources, and agriculture.
                          * * * Rental Housing Study * * *
Sec. 22. RENTAL HOUSING SAFETY AND HABITABILITY STUDY
   (a) Legislative purpose and intent. It is the intent of the general assembly
to provide for rental housing safety and habitability. A safe rental housing
study committee is hereby established to achieve all the following goals:
        (1) Promote the health and safety of the citizens of Vermont.
        (2) Facilitate compliance with existing health and safety standards.
        (3) Provide support to municipal health officers.
        (4) Create a resource for tenants and landlords.
        (5) Enable communities to focus on problem properties.
        (6) Encourage a private sector response to a public health and safety
need.
        (7) Reduce fire fatalities.
        (8) Establish a statewide rental housing inspection system.
  (b) Safe rental housing study committee. A safe rental housing study
committee is created to consist of the following 14 members:
           (1) The director of the division of fire safety, or designee.
           (2) The commissioner of the department of health, or designee.
          (3) The commissioner of the department of housing and community
affairs, or designee.
           (4) The attorney general, or designee.
        (5) The executive director of the Vermont housing finance agency, or
designee.
           (6) A representative of commercial landlords.
           (7) A representative of nonprofit landlords.
           (8) A tenant representative.
           (9) A municipal inspection program representative.
        (10) A town health officer from a municipality without an exempt
program.
           (11) A regional revolving loan fund representative.
                              FRIDAY, MAY 2, 2008                          1955
         (12) An architect.
         (13) The executive director of the Vermont state housing authority,
or designee.
         (14) A representative of the coalition of Vermont firefighters.
   (c) Appointment of members. The speaker of the house and the senate
president pro tempore shall appoint members of the committee and shall
designate a chair by July 1, 2008.
   (d) Duties. Before January 15, 2010, the committee shall review and
consider:
      (1) The development of a simplified rental housing code, to include lead
safety, habitability, and basic life safety standards.
       (2) A priority for inspections based on factors including: the age of the
rental unit, a score of the rental units’ self-assessment, and complaints from
rental units at the address.
      (3) Procedures for scheduled, complaint-based, emergency and time-of-
sale inspections, including a time frame and a priority for scheduled
inspections.
      (4) Standards for licensed rental housing inspectors to include:
            (A) Training standards.
            (B) A code of professional ethics.
            (C) Curriculum outlines and a delivery mechanism.
      (5) A funding structure necessary and appropriate to implement the
inspection program.
      (6) A procedure for issuing a certificate of habitability.
      (7) Procedures to assure enforcement and compliance.
      (8) Recommendations regarding the role of town health officers in
regard to safe rental housing.
      (9) Training and education resources for landlords and tenants,
including all the following:
         (A) A rental housing code self-assessment checklist.
         (B) A central resource for rental unit owners and managers that
provides:
1956                      JOURNAL OF THE SENATE
            (i) Lead safety, minimum housing habitability, and basic life
safety standards available from one site.
           (ii) Coordinated training across disciplines for owners and
managers of rental housing units.
      (10) Incentives and development of a process for municipalities to
establish an inspection program.
      (11) An implementation schedule, to begin July 1, 2010, that provides
for the commencement of inspections beginning January 1, 2011.
      (12) Staffing levels necessary to establish and maintain the program and
provide for enforcement.
      (13) An appropriation sufficient to fund the certification program,
licensing, complaint-driven inspections, and enforcement.
       (14) A system for coordinating appropriate displacement services.
     (15) A program and the identification of resources for repair and
improvement.
   (e) Reports. The committee shall submit an interim report on its progress
to date on or before January 15, 2009 to the house committee on general,
housing and military affairs and the senate committee on economic
development, housing and general affairs. The committee shall submit a final
written report on its findings on or before January 15, 2010 to the house
committee on general, housing and military affairs and the senate committee
on economic development, housing and general affairs.
   (f) Appropriation. In fiscal year 2009, there is appropriated from the
general fund to the department of public safety the amount of $30,000.00 to be
used by the department for the purpose of assisting the rental housing safety
and habitability study committee in carrying out its duties.
Sec. 22a. 3 V.S.A. § 2473(a) is amended to read:
   (a) The department of housing and community affairs is created within the
agency of commerce and community development. The department shall:
                                     ***
      (3) Administer the community development block grant program
pursuant to 10 V.S.A. chapter 29. When awarding municipal planning grants
prior to fiscal year 2012, the department shall give priority to grants for
downtowns, new town centers, growth centers, and Vermont neighborhoods.
                                     ***
                             FRIDAY, MAY 2, 2008                            1957
                  * * * Staffing Neighborhoods Program * * *
Sec. 23. STAFFING AND RESOURCES; VERMONT NEIGHBORHOOD
PROGRAM
   The natural resources board and the agency of commerce and community
development shall collaborate and develop a protocol to ensure that there are
adequate financial and staffing resources for the growth center program, the
downtown program, the new town center program, and the Vermont
neighborhood program. The board and the agency are authorized to redeploy
staff and resources to accomplish this objective.
Sec. 24. EFFECTIVE DATES OF FIRST 24 SECS. OF BILL
   This section and Secs. 1-23 of this act shall take effect on passage, except as
otherwise provided.
         * * * Lead Provisions Originating in H.352; Secs. 25-37 * * *
Sec. 25. FINDINGS AND INTENT
   The general assembly finds that:
      (1) Lead is highly toxic to humans, particularly to young children, and
can cause irreversible damage resulting in long-lasting, permanent neurological
damage, including decreases in I.Q scores.
       (2) Medical research shows that there is no safe level of lead, and that
decreases in I.Q. scores are greatest for the first ten micrograms of lead per
deciliter of blood in young children.
       (3) In February 2007, the Vermont department of health announced that
it would lower from ten to five micrograms of lead per deciliter the blood lead
level that triggers educational outreach.
      (4) In 2004, four percent of all Vermont children under the age of six
who received lead screening–or approximately 350 children–had blood lead
levels at or above ten micrograms per deciliter. Approximately one-third of
those screened, or nearly 3,000 children, had blood lead levels at or above five
micrograms. In 2006, 2.7 percent of all Vermont children under the age of six
who received lead screening–or approximately 250 children–had blood lead
levels at or above ten micrograms per deciliter. Approximately 20 percent of
those screened, or nearly 2,000 children, under the age of six, had blood lead
levels at or above five micrograms per deciliter.
      (5) The primary exposure to lead for Vermont children is lead-based
paint in housing built prior to 1978 when lead was banned in residential paint.
1958                      JOURNAL OF THE SENATE
Vermont has over 112,000 owner-occupied housing units and over 56,000
rental housing units built prior to 1978.
       (6) Vermont’s existing lead law, which has been in place since 1996,
attempts to prevent exposing children to lead-based paint in rental housing and
child care facilities by requiring that essential maintenance practices (EMP) be
performed in nearly all rental housing units and child care facilities built prior
to 1978. Even though 40 percent of children with blood lead levels above 20
micrograms per deciliter live in owner-occupied housing, the primary
provisions under current law that attempt to prevent elevated blood lead levels
in children in owner-occupied housing are related to public awareness.
      (7) The intent of this act is to decrease Vermonters’ exposure to lead in
pre-1978 housing and child care facilities. This act does not address lead in
other consumer products, in ammunition, or at shooting ranges.
Sec. 26. 18 V.S.A. § 1751 is amended to read:
§ 1751. DEFINITIONS
    (a) Words and phrases used in this chapter or in rules adopted pursuant to
this chapter and not defined herein shall have the meanings given to them have
the same definitions as provided in the Federal Residential Lead-Based Paint
Hazard Reduction Act of 1992. In the event of unless there is an inconsistency
between meanings given in such federal act and meanings given in this
chapter, the federal act shall apply except where meanings given in this chapter
serve to narrow, limit or restrict the applicability of a word or phrase, in which
cases the narrower meaning shall apply in which case, any definition provided
in this section that narrows, limits, or restricts shall control.
   (b) For the purposes of this chapter:
      (1) “Abatement” means any set of measures designed to permanently
eliminate lead-based paint hazards in accordance with standards established by
appropriate state and federal agencies. The term includes:
         (A) the removal Removal of lead-based paint and lead-contaminated
dust, the permanent containment or encapsulation of lead-based paint, the
replacement of lead-painted surfaces or fixtures, and the removal or covering
of lead-contaminated soil; and .
         (B) all All preparation, cleanup, disposal, and post-abatement
clearance testing activities associated with such measures.
      (2) “Certified inspector” or “licensed inspector” means an individual
who has been trained by an accredited training program and certified by the
department to perform the duties of an inspector or risk assessor. “Child” or
                               FRIDAY, MAY 2, 2008                          1959
“children” means an individual or individuals under the age of 18 years, except
where specified as a child or children six years of age or younger.
      (3) “Child care facility” means a day child care facility or family day
child care home as defined in 33 V.S.A. § 4902 that was constructed prior to
1978.
      (4)     “Commissioner” means the commissioner of the department of
health.
      (5) “Comprehensive environmental lead inspection” or “inspection”
means a surface-by-surface investigation to determine the presence of
lead-based paint and the provision of a report explaining the results of the
investigation.
      (6) “Department” means the department of health.
      (7) “Deteriorated paint” means any interior or exterior lead-based paint
or other coating that is peeling, chipping, chalking, flaking, or cracking or any
lead-based paint or other coating located on an interior or exterior surface or
fixture that is otherwise damaged or deteriorated separated from the substrate.
     (8)(5) “Due date” means the date by which an owner of rental target
housing or a child care facility shall file with the department the EMP
compliance statement required by section 1759 of this title. The due date shall
be one of the following:
        (A) No later than 366 days after the most recent EMP compliance
statement or EMP affidavit was received by the department.
        (B) Within 60 days after the closing of the purchase of the property if
no EMP compliance statement was filed with the department within the past 12
months.
            (C) Any other date agreed to by the owner and the department.
            (D) Any other date set by the department.
      (6) “Dwelling” means
         (A) a single-family dwelling, including attached structures such as
porches and stoops; or.
         (B) a single-family dwelling any residential unit in a structure that
contains more than one separate residential dwelling unit, and which is used or
occupied, or intended to be, including attached structures such as porches and
stoops, used or occupied, in whole or in part, as the home or residence of one
or more persons.
1960                      JOURNAL OF THE SENATE
      (7) “Elevated blood lead level” means having a blood lead level of at
least five micrograms per deciliter of human blood, or a lower threshold as
determined by the commissioner.
     (8) “EMP” means essential maintenance practices required by section
1759 of this title.
      (9) “Independent dust clearance” means a visual examination and
collection of environmental samples, including dust samples, by a licensed
inspector in whose firm or corporation the owner of lead inspector or lead risk
assessor who has no financial interest in either the work being performed or the
property to be inspected has no financial interest, and is independent of both
the persons performing the work and the owner of the property. The licensed
inspector lead inspector or lead risk assessor shall use methods specified by the
department and analysis by an accredited laboratory to determine that lead
exposures do not exceed limits set by the department utilizing current
information from the U.S. Environmental Protection Agency or the U.S.
Department of Housing and Urban Development.
      (10) “Inspection” means a surface-by-surface investigation to determine
the presence of lead-based paint and other lead hazards and the provision of a
report explaining the results of the investigation.
      (10)(11) “Interim controls” means a set of measures designed to
temporarily reduce human exposure to lead-based paint hazards, including
specialized cleaning, repairs, maintenance, painting, temporary containment,
ongoing monitoring of lead-based paint hazards or potential hazards, and the
establishment of management and resident education programs.
      (11)(12) “Lead-based paint” means paint or other surface coatings that
contain lead in excess of limits established under section 302(c) of the Federal
Lead-Based Paint Poisoning Prevention Act.
      (12)(13) “Lead contractor” means any person engaged in deleading or
lead hazard reduction as a business and includes consultants and inspectors
who design, perform, oversee or evaluate lead hazard reduction projects
employing one or more individuals licensed by the department under this
chapter.
       (13) “Lead-based paint activities” means:
        (A) in the case of target housing, risk assessment, inspection, and
abatement.
          (B) in the case of any public building constructed before 1978,
identification of lead-based paint and materials containing lead-based paint,
                             FRIDAY, MAY 2, 2008                           1961
deleading, and demolition. The term “lead-based paint activities” may be
further limited or restricted by rule adopted by the secretary.
       (14)    “Lead abatement worker” means any individual who has
satisfactorily completed an accredited training program approved by the
department and has a current license issued by the department to perform
abatements.
         (15) “Lead designer” means any individual who has satisfactorily
completed an accredited training program approved by the department and has
a current license issued by the department to prepare lead abatement project
designs, occupant protection plans, and abatement reports.
      (14)(16) “Lead-based paint hazard” or “LBP” “Lead hazard” means any
condition that causes exposure to lead inside and in the immediate vicinity of
target housing from water, lead-contaminated dust, lead-contaminated soil,
lead-contaminated paint that has deteriorated or is present in accessible
surfaces, friction surfaces, or impact surfaces, or building materials that would
result in adverse human health effects as defined by the department using
current information from the U.S. Environmental Protection Agency or the
U.S. Department of Housing and Urban Development.
      (15) “Lead-based paint hazard control” or “LBP hazard control” or
“lead hazard control” means a measure or set of measures designed to control
or eliminate human exposure to lead-based paint hazards through methods that
include interim controls, abatement, and complete removal.
       (16) “Lead poisoning” means a confirmed blood lead level in a child six
years of age or younger greater than or equal to ten micrograms of lead per
deciliter of whole blood, unless the commissioner finds by rule that a higher or
lower concentration is necessary to protect public health.
      (17) “Lead inspector” means any individual who has satisfactorily
completed an accredited training program approved by the department and has
a current license issued by the department to conduct inspections.
      (18) “Lead risk assessor” means any individual who has satisfactorily
completed an accredited training program approved by the department and has
a current license issued by the department to conduct risk assessments.
       (19) “Lead-safe renovator” means any person who has completed a
lead-safe training program approved by the department and has a current
registration issued by the department to perform renovations in target housing
or child care facilities in which interior or exterior lead-based paint will be
disturbed.
1962                      JOURNAL OF THE SENATE
      (20) “Lead supervisor” means any individual who has satisfactorily
completed an accredited training program approved by the department and has
a current license issued by the department to supervise and conduct abatement
projects and prepare occupant protection plans and abatement reports.
      (17)(21) “Occupant” means any person who resides in, or regularly
uses, a dwelling, car mobile dwelling unit, or structure.
      (18)(22) “Owner” means any person who, alone or jointly or severally
with others:
         (A) Has legal title to any dwelling or dwelling unit or child care
facility with or without accompanying actual possession thereof; or of the
property.
         (B) Has charge, care, or control of any dwelling or dwelling unit or
child care facility as agent of the owner or guardian of the estate of the owner.
An agent of the owner does not include real estate and property management
functions where the agent is only responsible for the property management and
does not have authority to fund capital or major property rehabilitation on
behalf of the owner.
         (C) Has charge, care, or control of any dwelling or child care facility
as property manager for the owner if the property management contract
includes responsibility for any maintenance services, unless the property
management contract explicitly states that the property manager will not be
responsible for compliance with section 1759 of this title.
         (C) For purposes of publicly-owned property only, the owner shall be
         (D) Is the chief executive officer of the municipal or state agency
which that owns, leases, or controls the use of the property publicly owned
target housing or a child care facility.
           (D) A (E) Is a person who holds indicia of ownership in a dwelling
or dwelling unit or child care facility furnished by the owner or person in
lawful possession for the primary purpose of assuring repayment of a financial
obligation shall not be considered an owner unless such person has taken full
legal title of a dwelling or child care facility through foreclosure, deed in lieu
of foreclosure, or otherwise. “Owner” does not include a person who holds
indicia of ownership given by the person in lawful possession for the primary
purpose of assuring repayment of a financial obligation. Indicia of ownership
includes interests in real or personal property that are held as security or
collateral for repayment of a financial obligation such as a mortgage, lien,
security interest, assignment, pledge, surety bond, or guarantee and includes
participation rights of a financial institution used for legitimate commercial
purposes in making or servicing the loan.
                             FRIDAY, MAY 2, 2008                            1963
         (E) Owns a building in which a child care facility is located or owns
the child care business, although the owner of the child care business may not
own the building.
      (19)(23) “Rental target housing” means target housing offered for lease
or rental under a rental agreement as defined in 9 V.S.A. § 4451. “Rental
target housing” does not include a rented single room located within a
residential dwelling unit in which the owner of the dwelling unit resides unless
a child six years of age or younger resides in or is expected to reside in that
dwelling.
      (20)(24) “Risk assessment” means an on-site investigation by a licensed
inspector or risk assessor lead risk assessor to determine and report the
existence, nature, severity, and location of lead- based paint lead hazards,
including information gathering about the age and history of the property and
occupancy by children under the age of six years of age or younger, visual
inspection, limited wipe sampling, or other environmental sampling
techniques, other appropriate risk assessment activities and a report on the
results of the investigation.
      (21) “Secretary” means the secretary of the agency of human services.
      (22) “Severely lead-poisoned” means a confirmed venous blood lead
level in a child six years of age or younger that is greater than or equal to 20
micrograms of lead per deciliter of whole blood or as defined by the
commissioner.
      (23) “State inspector” means the commissioner or any person who is
authorized in writing by the commissioner to conduct inspections for the
department.
     (25) “Screen,” “screened,” or “screening” relating to blood lead levels,
means the initial blood test to determine the presence of lead in a human.
      (24)(26) “Target housing” means any dwelling or dwelling unit
constructed prior to 1978, except any 0-bedroom residential dwelling unit or
any residential dwelling unit located in multiple-unit buildings or projects
reserved for the exclusive use of the elderly or persons with disabilities, unless
a child six years of age or younger resides in or is expected to reside in that
housing dwelling. “Target housing” does not include units in a hotel, motel,
or other lodging, including condominiums, that are designed and rented for
transient occupancy for travelers or vacationers and not intended to be used as
a primary residence 30 days or less.
1964                      JOURNAL OF THE SENATE
Sec. 27. 18 V.S.A. § 1753 is amended to read:
§ 1753. ACCREDITATION, REGISTRATION, CERTIFICATION, AND
LICENSE FEES
   (a) The commissioner shall assess fees for accrediting training programs
and for certifications, registrations, licenses, and license renewals issued in
accordance with this chapter. Fees shall not be imposed on any state or local
government or nonprofit training program and may be waived for the purpose
of training state employees.
   (b) Each accredited training program, registrant, and licensee shall be
subject to the following fees:
       Training courses = $480.00 per year
       Lead contractors = $600.00 per year
       Lead workers = $60.00 per year
       Supervisors Lead supervisors = $120.00 per year
       Inspectors Lead inspectors = $180.00 per year
       Risk Lead risk assessors = $180.00 per year
       Designers Lead designers = $180.00 per year
       Laboratories = $600.00 per year
       Lead-safe renovation contractors Lead-safe renovators = $50.00 per year
   (c) Each lead abatement project shall be subject to the following permit
fees:
       (1) Lead abatement project permit fee $50.00.
       (2) Lead abatement project permit revision fee $25.00.
   (d) Fees imposed by this section shall be deposited into the lead paint
abatement accreditation and licensing special fund. Monies in the fund may be
used by the commissioner only to support departmental accreditation,
registration, certification, and licensing activities related to this chapter. The
fund shall be subject to the provisions of subchapter 5 of chapter 7 of Title 32.
Sec. 28. 18 V.S.A. § 1755 is amended to read:
§ 1755. UNIVERSAL ACCESS TO SCREENING
   (a) Not later than November 1, 1993, the The commissioner shall publish
the results of the department’s lead poisoning prevalence study. Not later than
January 1, 1994, the commissioner shall publish guidelines establishing that
establish the methods by which and the intervals at which children under six
                             FRIDAY, MAY 2, 2008                            1965
years of age are recommended to should be screened and tested given a
confirmation test for elevated blood lead poisoning levels, according to the age
of the children and their probability of exposure to high-dose sources of lead.
The guidelines shall take into account the recommendations of the U.S.
Centers for Disease Control and the American Academy of Pediatrics and shall
be updated as those recommendations are changed. The commissioner may
also shall recommend screening for lead poisoning in other high risk groups.
The commissioner shall ensure that all health care providers who provide
primary medical care to children six years of age or younger are informed of
the guidelines. Once the department has implemented lead screening reports
within the immunization registry, the department shall use the information in
the registry to inform health care providers of their screening rates and to take,
within available resources, other measures necessary to optimize screening
rates, such as mailings to parents and guardians of children ages one and two,
outreach to day care facilities and other community locations, screening at
district offices, and educating parents and guardians of children being served.
   (b) Not later than January 1, 1994, the Vermont the commissioner of
banking, insurance, securities, and health care administration shall recommend
to the general assembly whether lead screening should be a common benefit
under the universal access proposals it has presented, and, if so, how such
benefits should be financed. The cost of implementing the Vermont
commissioner of banking, insurance, securities, and health care
administration’s plan under this chapter shall be included in the unified health
care budget to be adopted by the authority effective July 1, 1994.
   Annually, the commissioner shall determine the percentage of children six
years of age or younger who are being screened in accordance with the
guidelines and shall, unless a final report is available, provide interim
information on screening to the legislature annually on April 15 . If fewer than
85 percent of one-year-olds and fewer than 75 percent of two–year-olds as
specified in the guidelines are receiving screening, the secretary shall adopt
rules to require that all health care providers who provide primary medical care
to young children shall ensure that their patients are screened and tested
according to the guidelines, beginning January 1, 2011.
   (c) Beginning July 1, 1994 , all All health care providers who provide
primary medical care shall ensure that parents and guardians of children below
the age of six years of age or younger are advised of the availability and
advisability of screening and testing their children for lead poisoning in
accordance with the commissioner’s guidelines, . No health care provider shall
be liable for not performing a screening or confirmation test for blood lead
level when a parent or guardian has refused to consent or has failed to follow
1966                      JOURNAL OF THE SENATE
through in response to a referral for a screening or confirmation test. No late
than 120 days after the department has notified health care providers that it has
implemented lead screening reports within the immunization registry, a health
care provider shall report to the department regarding lead screening of
children ages one and two pursuant to the guidelines in subsection (a) of this
section in a form and as required by the department.
   (d) Any health care provider or employee thereof making the diagnosis of
lead poisoning shall report such diagnosis to the department within such time
and using such format as the department shall prescribe. Any laboratory in
Vermont which that analyzes blood samples of children below the age of six
Vermont residents for lead levels shall report to the department such all
information on blood lead analyses as required by the department may require
including data on the number and results of blood lead analyses performed by
the laboratory. All health care providers who analyze blood samples for lead
levels or who use laboratories outside Vermont to analyze blood samples of
children below the age of six for lead levels shall report all information
required by the department to the department such information as the
department may require including data on the number and results of such blood
lead tests. The commissioner shall establish procedures to ensure the
confidentiality of the children and families immediately by telephone if the
result of any analysis is 45 micrograms or more of lead per deciliter of blood,
or by electronic means within 14 days of analysis if the result of the analysis is
less than 45 micrograms of lead per deciliter of blood. All blood lead data
reports to the department shall include the name, date of birth, date of blood
test, and address of the individual whose blood is analyzed and, if known, the
owner of the residence of the individual.
   (e) After the guidelines established pursuant to subsection (a) of this
section have been in place for two years, the commissioner shall determine the
percentage of children below the age of six who are being screened in
accordance with those guidelines. If fewer than 75 percent of such children are
receiving such screening, the secretary shall adopt rules to require that all
health care providers who provide primary medical care to young children
shall ensure that their patients are screened and tested according to the
commissioner’s guidelines beginning January 1, 1997. Such rules shall
provide that no screening or testing shall be required pursuant to this
subsection if the parent or guardian of the child objects to the child undergoing
blood lead screening on the grounds that such screening conflicts with their
moral or religious tenets or practices. No later than 120 days after the
department has notified laboratories that it has implemented lead screening
reports within the immunization registry, a laboratory shall report to the
department regarding lead screening of children ages one and two pursuant to
                               FRIDAY, MAY 2, 2008                            1967
the guidelines in subsection (a) of this section in a form and as required by the
department.
Sec. 29. 18 V.S.A. § 1757 is amended to read:
§ 1757. LEAD POISONED CHILDREN WITH ELEVATED BLOOD LEAD
LEVELS
   (a) Upon receiving a report that a child under age six has been diagnosed
by a qualified physician to have lead poisoning, the a screening test result of
ten or more micrograms of lead per deciliter of blood, or a lower level as
determined by the commissioner, the commissioner shall take prompt action to
confirm the diagnosis ensure that the child obtains a confirmation test.
   (b) If the child is severely lead poisoned has an elevated blood lead level,
the commissioner shall provide for information on lead hazards to the parents
or guardians of the child.
   (c) If a child six years of age or younger has a confirmed blood lead level at
or above ten micrograms of lead per deciliter of blood, and if resources permit,
the commissioner:
       (1) Shall, with the consent of the parent or guardian, provide an
inspection of the dwelling unit occupied by the child or the child care center
facility the child attends, by a state inspector or licensed private inspector lead
risk assessor, and develop a plan in consultation with the parents, owner,
physician, and others involved with the child to minimize the exposure of the
child to lead. The plan developed under this subdivision shall require that any
lead hazards identified through the inspection be addressed. The owner of
rental target housing or a child care facility shall address those lead hazards
within the owner’s control, and shall not be required to abate lead hazards if
interim controls are effective.
      (2) The commissioner may May inspect and evaluate other dwelling
units in a the building in which a severely lead-poisoned the child has been
identified as is living and if it is reasonable to believe that a child under the age
of six years of age or younger occupies, receives care, or otherwise regularly
frequents the other dwelling units dwellings in that building.
   (c) The commissioner shall work with the parents, owner, physician, and
others involved with the child to develop a plan to minimize exposure of the
child to lead hazards.
   (d) Concerning target housing which is rented or leased, on or before
January 1, 1994, the secretary with the concurrence of the commissioner of
housing and community affairs shall adopt rules to implement this section
including rules which assure that prompt action will be taken to confirm a lead
1968                      JOURNAL OF THE SENATE
poisoning diagnosis, to inspect the possible sources of lead poisoning, and to
secure voluntary compliance or to take necessary enforcement action.
Enforcement action shall include providing the child’s parents or guardians
and the owner of the dwelling unit with appropriate educational materials on
lead poisoning prevention and may include requiring the owner of the dwelling
unit to initiate interim controls or abatement of lead-based paint hazards within
a specified time.
   (e) Nothing in this section shall be construed to limit the commissioner’s
authority under any other provision of Vermont law.
Sec. 30. 18 V.S.A. § 1759 is amended to read:
§ 1759. ESSENTIAL MAINTENANCE PRACTICES
   (a) For the purposes of this section, all paint is presumed to be lead-based
unless a certified inspector has determined that it is not lead-based. All owners
of rental target housing and child care facilities shall perform the following
essential maintenance practices on their property
   Essential maintenance practices (EMP) in rental target housing and child
care facilities shall be performed only by a person who has successfully
completed an EMP training program approved by the commissioner or a
person who works under the direct, on-site supervision of a person who has
successfully completed such training. That person shall comply with section
1760 of this title and shall take all reasonable precautions to avoid creating
lead hazards during any renovations, remodeling, maintenance, or repair
project that disturbs more than one square foot of lead-based paint, pursuant to
guidelines issued by the department. The following essential maintenance
practices shall be performed in all rental target housing and child care
facilities, unless a lead inspector or a lead risk assessor has certified that the
property is lead-free:
      (1) Take all reasonable precautions to avoid creating lead hazards during
any renovation, remodeling, maintenance, or repair project that disturbs a
lead-based painted surface pursuant to guidelines issued by the department.
The guidelines shall include the following requirements:
          (A) A prohibition against lead-based paint removal by burning, water
blasting, dry scraping, power sanding, or sandblasting, unless authorized by the
department.
        (B) Use of good work practices and safety precautions to prevent the
spread of lead dust, including limiting access to work areas to workers,
covering the work area with six mil polyethylene plastic or the equivalent,
wearing of protective clothing by workers, protecting belongings of occupants
                             FRIDAY, MAY 2, 2008                            1969
by covering or removing them from the work area, misting painted surfaces
before disturbing the paint, and wetting sweeping debris.
         (C) At the conclusion of the work, specialized cleaning of the work
area shall be performed shall be thoroughly cleaned using methods designed to
remove lead dust and recommended by the department.
      (2) Perform visual on-site inspections of all interior and exterior
surfaces and fixtures of the building to identify deteriorated paint and install
window well inserts into all windows, or protect window wells by another
method approved by the department, no later than July 1, 1998; thereafter,
visual on-site inspections shall be performed annually and upon a change of
tenant. Install window well inserts in all windows or protect window wells by
another method approved by the department.
       (3)(2) At least once a year, with the consent of the tenant, and at each
change of tenant, and annually in units in which a child six years of age or
younger resides clean all window wells and window sills within the unit and in
all areas of the building to which access by tenants is not restricted by the
rental agreement. The cleaning shall be accomplished by using cleaning
methods, products and devices that are effective in the removal of
lead-contaminated dust and recommended by the department perform visual
on-site inspection of all interior and exterior painted surfaces and components
at the property to identify deteriorated paint.
      (4)(3) Promptly and safely remove or stabilize lead-based paint if more
than one square foot of deteriorated lead-based paint is found on any interior or
exterior surface located within any area of the building dwelling to which
access by tenants is not restricted by the rental agreement or on any exterior
porch or an exterior wall, surface or fixture within the exterior porch. An
owner shall restore the assure that all surfaces to be are free of deteriorated
lead-based paint within 30 days after deteriorated lead-based paint has been
visually identified or within 30 days after receipt of a written or oral report of
deteriorated lead-based paint from any person including the department, a
tenant, or from an owner of a child care facility. If Because exterior paint
repairs cannot be completed in cold weather, any exterior repair work is
identified after November 1 of any year, the repair may be delayed for
completion until shall be completed no later than the following May 31 of the
following year provided that access to surfaces and components with lead
hazards and areas directly below the deteriorated surfaces is clearly restricted.
      (5)(4) If more than one square foot of deteriorated paint is found on any
exterior wall surface or fixture not covered by subdivision (4)(3) of this
1970                      JOURNAL OF THE SENATE
subsection and is located in an area frequented by children six years of age or
younger in warm weather, the owner shall:
         (A) promptly and safely repair and stabilize the paint and restore the
surface; or
         (B) prohibit access to the area, surface, or fixture to assure that
children will not come into contact with the deteriorated lead-based paint.
      (5) For any outdoor area, annually remove all visible paint chips from
the ground on the property.
      (6) At least once a year, using methods recommended by the
department, thoroughly clean all interior horizontal surfaces, except ceilings, in
common areas accessible to tenants.
       (6)(7) Provide written LBP hazard information prepared or approved by
the department to current and prospective tenants and current and prospective
owners of child care facilities. At each change of tenant, thoroughly clean all
interior horizontal surfaces of the dwelling, except ceilings, using methods
recommended by the department.
     (7)(8) Post, in a prominent place in buildings containing rental target
housing units or a child care facility, a notice to occupants emphasizing the
importance of promptly reporting deteriorated paint to the owner or to the
owner’s agent. The notice shall include the name, address, and telephone
number of the owner or the owner’s agent.
      (8) Attend a training program offered or approved by the department.
The training, which shall be available to any person who repairs, remodels or
renovates property, shall be attended by the owner, the owner’s property
manager, or a representative of the owner’s regular maintenance staff.
      (9) Ensure that any person who performs essential maintenance work
has completed a department-approved training program or is being supervised
on-site by a person who has completed the training program and complies with
the essential maintenance practices.
      (10) At each change of tenant, the owner shall clean all horizontal
surfaces, except ceilings, within all areas of the building used by tenants and
not otherwise restricted by the rental agreement. This cleaning shall be done
by using cleaning methods, products and devices prescribed by the department
that are effective in cleaning up lead-contaminated dust, such as vacuum
cleaners with HEPA filters, and wet-cleaning with trisodium phosphate or
other lead specific detergents.
   (b) When the essential maintenance practices are completed, the owner
shall sign an affidavit indicating that, to the best of the owner’s knowledge and
                             FRIDAY, MAY 2, 2008                          1971
belief the essential maintenance practices have been performed, the dates they
were completed, and by whom they were performed. The owner shall file the
affidavit with the owner’s lliability insurance carrier and the department.
Annually, the owner shall conduct a visual check, perform required essential
maintenance practices, and sign and file an affidavit as required by this
subsection.
   The owner of rental target housing shall perform all the following:
      (1) File with the department by the due date an EMP compliance
statement certifying that the essential maintenance practices have been
performed, including all the following:
         (A) The addresses of the dwellings in which EMP were performed.
         (B) The dates of completion.
         (C) The name of the person who performed the EMP.
         (D)    A certification of compliance with subdivision (4) of this
subsection.
        (E) A certification that subdivisions (2) and (3) of this subsection
have been or with be complied with within ten days.
      (2) File the statement required in subdivision (1) of this subsection with
the owners’ liability insurance carrier and the department.
      (3) Provide a copy of the statement to all tenants with written materials
regarding lead hazards approved by the department.
      (4) Prior to entering into a lease agreement, provide approved tenants
with written materials regarding lead hazards approved by the department,
along with a copy of the owner’s most recent EMP compliance statement.
The written materials approved by the department pursuant to this subdivision
shall include information indicating that lead is highly toxic to humans,
particularly young children, and may even cause permanent neurological
damage.
   (c) The owner of the premises of a child care facility shall perform all of
the following:
      (1) File with the department by the due date an EMP compliance
statement certifying that the essential maintenance practices have been
performed, including all the following:
         (A) The address of the child care facility.
         (B) The date of completion of the EMP.
1972                      JOURNAL OF THE SENATE
         (C) The name of the person who performed the EMP.
         (D) A certification that subdivision (2) of this subsection has been or
will be complied with within ten days.
      (2) File the statement required in subdivision (1) of this subsection with
the owner’s liability insurance carrier; the department for children and
families; and with the tenant of the facility, if any.
   (d) An owner who desires an extension of time for filing the EMP
compliance statement shall file a written request for an extension from the
department no later than ten days before the due date. The department may
grant or deny an extension.
Sec. 31. 18 V.S.A. § 1760 is amended to read:
§ 1760. CERTIFICATION; RULES; REPORT; FUTURE DEPARTMENT
UNSAFE WORK PRACTICES
   (a) No later than January 1, 1997, the secretary shall adopt rules that
establish methods and practices to be used by licensed inspectors who certify
that target housing and child care facilities are lead free or have had lead-based
paint hazards identified and controlled and have passed independent dust
clearance tests. The rules shall include the duration of validity of any
certifications and requirements for renewal of certifications.
   (b) By January 1, 1999, the secretary shall report to the general assembly
on the need for additional essential maintenance practices or other actions to
further prevent lead poisoning in children based on significant:
      (1) Reductions in the number and percentage of poisoned and severely
lead-poisoned children.
     (2) Increases in the number and percentages of owners of rental target
housing that have performed essential maintenance practices.
      (3) Increases in the number and percentage of housing units that have
achieved higher levels of lead hazard control.
       (4) Advances in lead poisoning prevention technology.
      (5) Impact of public education efforts in reducing the lead levels of
children at risk.
   (c) After July 1, 2000, the secretary may adopt rules for the low cost and
cost effective implementation of the essential maintenance practices
established in section 1759 of this title and additional recommended low cost
and cost effective essential maintenance practices and other actions to further
prevent lead poisoning in children.
                             FRIDAY, MAY 2, 2008                            1973
   All paint in target housing and child care facilities is presumed to be
lead-based unless a lead inspector or lead risk assessor has determined that it is
not lead-based.      Unsafe work practices include the following, unless
specifically authorized by permit by the department:
      (1) Removing lead-based paint by:
         (A) Open flame burning or torching.
         (B) Use of heat guns operated above 1,100 degrees Fahrenheit.
         (C) Dry scraping.
         (D) Machine sanding or grinding.
         (E) Uncontained hydro-blasting or high-pressure washing.
         (F) Abrasive blasting or sandblasting without containment and
high-efficiency particulate exhaust controls.
         (G) Chemical stripping using methylene chloride products.
      (2) Failing to employ one or more of the following lead-safe work
practices:
         (A) Limiting access to interior and exterior work areas.
         (B) Enclosing interior work areas with plastic sheathing or other
effective lead dust barrier.
         (C) Using protective clothing.
         (D) Misting painted surfaces before disturbing paint.
         (E) Wetting paint debris before sweeping to limit dust creation.
         (F) Any other measure required by the department.
   (b) No person shall disturb more than one square foot of lead-based paint
using unsafe work practices in target housing or in child care facilities.
Sec. 32. 18 V.S.A. § 1760a is added to read:
§ 1760a. ENFORCEMENT; ADMINISTRATIVE ORDER; PENALTIES
   (a) A person who violates section 1759 of this title commits a civil
violation and shall be subject to a civil penalty as set forth below which shall
be enforceable by the commissioner in the judicial bureau pursuant to the
provisions of chapter 29 of Title 4.
      (1) An owner of rental target housing who fails to comply with
subsection 1759(b)(1), (2), and (3) of this title by the due date or an owner of a
child care facility who fails to comply with subsection 1759(c) of this title by
1974                      JOURNAL OF THE SENATE
the due date shall pay a civil penalty of not more than $50.00 if the owner
comes into compliance within 30 days after the due date; otherwise the owner
shall pay a civil penalty of not more than $150.00.
       (2) An owner who cannot demonstrate by a preponderance of the
evidence that essential maintenance practices were performed by the due date
shall pay an additional penalty of not more than $250.00.
   (b) Nothing in this section shall limit the commissioner’s authority under
any other provisions of law.
Sec. 32a. EFFECTIVE DATE OF SEC. 32
  Sec. 32 of this act, adding 18 V.S.A. § 1760a, shall take effect on January 1,
2010.
Sec. 33. 18 V.S.A. § 1761 is amended to read:
§ 1761. DUTY OF REASONABLE CARE; NEGLIGENCE; LIABILITY
   (a) Owners of target housing and owners of child care facilities shall take
reasonable care to prevent exposure to, and the creation of, lead-based paint
lead hazards. In an action brought under this section, evidence of actions taken
or not taken to satisfy the requirements of this chapter, including performing
essential maintenance practices EMP, may be admissible evidence of
reasonable care or negligence.
   (b) Any person who suffers an injury proximately caused by an owner’s
breach of this duty of reasonable care shall have a cause of action to recover
damages and for all other appropriate equitable relief.
   (c) A person who is severely lead poisoned as a result of a violation of the
duty of reasonable care before the age of six, or a parent, legal guardian or
other person authorized to act on behalf of that person, shall have a cause of
action to recover damages and other appropriate relief.
   (d) The owner of target housing or a child care facility who has reduced
lead-based paint hazards by completing risk assessment and controls and who
has had a licensed inspector certify, pursuant to rules under section 1760 of
this title the, that identified lead-based paint l hazards have been controlled in
target housing or child care facility premises and the housing or facility
contains no lead-contaminated dust shall not be liable for injury or other relief
claimed to be caused by exposure to lead during the time period covered by the
certification. This immunity does not apply if: shall not be liable to a tenant of
the housing or facility in an individual action for habitability under common
law or pursuant to chapter 63 of Title 9, chapter 137 of Title 9, chapter 153 of
Title 10, or chapter 169 of Title 12 for injury or other relief claimed to be
caused by exposure to lead if, during the relevant time period, the owner is in
                               FRIDAY, MAY 2, 2008                          1975
compliance with section 1759 of this title and any of the following, should they
exist:
      (1) The conditions of a lead risk assessor’s certification, pursuant to
Vermont regulations for lead control, that all identified lead hazards have been
controlled and the housing or facility has passed an independent dust clearance
test.
        (2) Any plan issued pursuant to section 1757 of this title.
      (3) Any assurance of discontinuance, order of the commissioner, or
court order regarding lead hazards.
      (d) The immunity under subsection (c) of this section shall not be available
if:
        (1) there was fraud in the certification process; or
        (2) the owner violated conditions of the certification; or
     (3) the owner created lead-based paint lead hazards during renovation,
remodeling, maintenance, or repair after the certification; or
      (4) the owner failed to respond in a timely fashion to notification that
lead-based paint lead hazards may have recurred on the premises.
   (e) A defendant in an action brought under this section or at common law
has a right of to seek contribution from any other person or persons who have
violated subsection (a) of this section may be responsible, in whole or in part,
for the child’s blood lead level.
   (f) The remedies provided under this section shall be the exclusive
remedies against owners arising from lead-based paint hazards, except for the
following:
        (1) causes of action under 9 V.S.A. chapter 63;
        (2) causes of action for relief under 9 V.S.A. § 4458; and
        (3) common law actions for fraud or fraudulent misrepresentation.
   (g) Nothing in this section shall be construed to limit the right of the
commissioner or any agency or instrumentality of the state of Vermont to seek
remedies available under any other provision of Vermont statutory law.
    (h) In an action under 9 V.S.A. § 4458, compliance by the landlord with
the duties required under section 1759 of this title shall create a conclusive
presumption of habitability with respect to lead-based paint hazards. However,
if a child under the age of six who occupies the dwelling is lead poisoned as
defined in subdivision 1751(b)(16) of this title, this presumption shall be
1976                      JOURNAL OF THE SENATE
rebuttable, not conclusive. Presumptions under this subsection shall be limited
to actions based on a breach of the warranty of habitability under 9 V.S.A. §
4458.
   (i) This section shall apply only to actions arising from acts or omissions
that occur on or after July 1, 1996.
Sec. 34. 18 V.S.A. § 1767 is added to read:
§ 1767. TRANSFER OF OWNERSHIP OF TARGET HOUSING; RISK
ASSESSMENT; EMP COMPLIANCE
   (a) Prior to the time a purchase and sale agreement for target housing is
executed, the seller shall provide the buyer with materials approved by the
commissioner, including a lead paint hazard brochure and materials on other
lead hazards in housing. The seller shall also provide a disclosure form that
shall include any assurance of discontinuance, administrative order, or court
order the terms of which are not completed and, if the property is rental target
housing, verification that the EMP have been completed and that a current
EMP compliance statement has been filed with the department.
   (b) At the time of sale of target housing, sellers and other transferors shall
provide the buyer or transferee with any materials delineated in subsection (a)
of this section not previously disclosed and a lead-safe renovation practices
packet approved by the commissioner and shall disclose any assurance of
discontinuance, administrative order, or court order not disclosed pursuant to
subsection (a) of this section the terms of which are not completed.
   (c) No sale of rental target housing, building, or unit may occur if the
building or unit is currently the subject of an assurance of discontinuance,
administrative order, or court order unless the assurance or order is amended in
writing to transfer to the buyer or other transferee all remaining obligations
under the assurance or order.
   (d) Prior to the time of sale of rental target housing, the real estate agents,
sellers, and other transferors of title shall provide the buyer or transferee with
information approved by the commissioner explaining EMP obligations.
   (e) A buyer or other transferee of title to rental target housing who has
purchased or received a building or unit that is not in full compliance with
section 1759 of this title shall bring the target housing into compliance with
section 1759 of this title within 60 days after the closing. Within the 60-day
period, the buyer or transferee may submit a written request for an extension of
time for compliance, which the commissioner may grant in writing for a stated
period of time for good cause only. Failure to comply with this subsection
shall result in a mandatory civil penalty.
                             FRIDAY, MAY 2, 2008                            1977
   (f) This section shall not apply to target housing that has been certified
lead-free.
   (g) Noncompliance with this section shall not affect marketability of title.
Sec. 35. 4 V.S.A. § 1102(b) is amended to read:
   (b) The judicial bureau shall have jurisdiction of the following matters:
                                      ***
      (14) Violations of chapter 38 of 18 V.S.A. that are subject to civil
penalties pursuant to subsection 1760a(a) relating to reducing lead hazards in
housing.
Sec. 35a. EFFECTIVE DATE OF SEC. 35
   Sec. 35 of this act, amending 4 V.S.A. § 1102(b), shall take effect on
January 1, 2010.
Sec. 36. CONSTRUCTION
   Nothing in Secs. 25 through 35 of this act, relating to the regulation of lead,
shall be construed to regulate firearms, ammunition, or shooting ranges or
circumstances resulting from shooting, handling, storing, or casting and
reloading ammunition.
Sec. 37. EFFECTIVE DATE OF SECTIONS 25 THROUGH 37
   Except as otherwise provided, Secs. 25 through 37 of this act shall take
effect on July 1, 2008.
             * * * Mobile Homes from H.331, Secs. 38 – 43 * * *
Sec. 38. 9 V.S.A. § 2601 is amended to read:
§ 2601. DEFINITIONS
  (a) As used in this chapter, unless the context requires otherwise, “mobile
home” means:
      (1) Mobile home as defined in 10 V.S.A. § 6201.
      (2) An unmotorized vehicle, other than a travel or recreational trailer,
designed to be towed and designed or equipped for use as sleeping, eating or
living quarters.
   (b) A mobile home remains a mobile home for purposes of this chapter
even though it may be used for advertising, sales, display or promotion of
merchandise or services, or for any other commercial purposes except the
transportation of property.
1978                      JOURNAL OF THE SENATE
   (c) A mobile home that was financed as residential real estate shall be
defined as residential real estate.
   (d) “Permanently sited” means the mobile home has become affixed to the
land. Factors that tend to show a mobile home is permanently sited include:
      (1) The mobile home has been set up on blocks or otherwise stabilized
so that the wheels do not form a major part of the structural support.
     (2) The mobile home has been connected to utilities such as electricity,
sewage, water, gas, or oil.
       (3) Skirting has been installed around the base of the mobile home.
       (4) The wheels or axles have been removed.
      (5) The mobile home has been situated in a place that makes removal
unlikely.
Sec. 39. 9 V.S.A. § 2603(b) is amended to read:
    (b) An obligation to finance a mobile home if consummated while the A
mobile home that is or is intended to be permanently sited in a manner
intended for continuous residential occupancy by the owner on land owned that
is:
      (1) Owned by the owner of the mobile home shall be financed as a
residence residential real estate.
      (2) Leased by the owner of the mobile home may be financed as
residential real estate.
Sec. 40. 9 V.S.A. § 2604 is amended to read:
§ 2604. PENALTY REAL ESTATE DEEDS FOR MOBILE HOMES
  A person who violates a provision of this chapter:
      (1) Except for violations of subsection 2603(e) of this title, shall be
fined not more than $5,000.00 for each occurrence.
     (2) Shall be subject to all the remedies and penalties available to a
consumer and the attorney general under chapter 63 of this title.
  (a) Any mobile home purchased from a mobile home dealer on or after
July 1, 2008 that is financed as residential real estate pursuant to subsection
2603(b) of this title shall be conveyed by a warranty deed drafted in
substantially the form provided in subsection (c) of this section.
  (b) An owner of a mobile home shall, upon financing or refinancing a
mobile home as residential real estate or selling a mobile home that has been
                              FRIDAY, MAY 2, 2008                            1979
financed as residential real estate, issue to the grantee either a warranty deed or
a quitclaim deed that is drafted in substantially the form provided in subsection
(c) or (d) of this section.
   (c) A deed that is substantially in the form provided in this subsection shall,
when duly executed and delivered, have the force and effect of a deed in fee
simple to the grantee, the heirs, successors, and assigns, to their own use, with
covenants on the part of the grantor, for the grantor, the grantor’s heirs,
executors, and administrators that, at the time of the delivery of the deed, the
grantor was lawfully seized in fee simple of the mobile home; that the mobile
home was free from all encumbrances, except as stated; that the grantor had
good right to sell and convey the same to the grantee, the grantee’s heirs,
successors, and assigns; and that the grantor and the grantor’s heirs, executors,
and administrators shall warrant and defend the same to the grantee and the
grantee’s heirs, successors and assigns, against the lawful claims and demands
of all persons. No owner of land on which a mobile home is sited shall
unreasonably withhold the consent required by this statutory form.
                    Form for Mobile Home Warranty Deed
                           , of                ,                    County, State
of____________,                     (“Grantor”), for consideration paid, grants
to___________ of                Street, Town (City) of           ,____________
County, State of             (“Grantee”), with warranty covenants, the________
(description of mobile home being conveyed: name of manufacturer, model
and serial number and encumbrances, exceptions, reservations, if any) which
mobile home is situated, or is to be situated, at __________ (state name of
park, if any, and street address), Town (City) of __________, __________
County,                    State                   of                  Vermont.
The tract or parcel of land upon which the mobile home is situated, or is to be
situated, is owned by                  by deed dated and recorded at Book       ,
Page in the land records of the Town (City) of                    .
       _______                   (wife) (husband) of said Grantor, releases to
said Grantee all rights and other interests therein.
         Signed this __________ day of __________, ___.
                          (Here add acknowledgment)
       __________, owner of the tract or parcel of land upon which the
aforesaid mobile home is situated, or is to be situated, hereby consents to the
conveyance of the mobile home.
       Signed this __________ day of __________, ___.
                          (Here add acknowledgment)
1980                      JOURNAL OF THE SENATE
[ ] Check box if the mobile home has been relocated from one site to another
within Vermont, and attach a Relocation Statement in the form provided in
section 2606 of this title.
   (d) A deed that is substantially in the form provided in this subsection shall,
when duly executed and delivered, have the force and effect of a deed in fee
simple to the grantee, the heirs, successors, and assigns, to their own use. No
owner of land on which the mobile home is sited shall unreasonably withhold
consent required by this statutory form.
                   Form for Mobile Home Quitclaim Deed
        ___________, of ___________,           County, State of__________
_________(“Grantor”), for consideration paid, grants to___ ________ of
_________ Street, Town (City) of ____           ,_ ____County, State of
__________(“Grantee”), with quitclaim covenants, the (description of mobile
home being conveyed: name of manufacturer, model and serial number and
encumbrances, exceptions, reservations, if any) which mobile home is
situated, or is to be situated, at ________________ (state name of park, if
any, and street address), Town (City) of _____________ County, State of
Vermont.
        The tract or parcel of land upon which the mobile home is situated, or
is to be situated, is owned by ____________ by deed dated _____________
and recorded at Book ___, Page , in the land records of the Town (City) of
_________.
          _____ (wife) (husband) of said Grantor releases to said Grantee all
rights and other interest therein.
       Signed this ___ day of _______     ,______.
                          (Here add acknowledgment)
         _____________, owner of the parcel of land upon which the
aforesaid mobile home is situated, or is to be situated, hereby consents to the
conveyance of the mobile home.
         Signed this ___day of__             __, _____.
                          (Here add acknowledgment)
   [ ] Check box if the mobile home has been relocated from one site to
another within Vermont, and attach a relocation statement in the form
provided in section 2606 of this title.
                              FRIDAY, MAY 2, 2008                            1981
Sec. 41. 9 V.S.A. § 2605 is added to read:
§ 2605. MOBILE HOME BILL OF SALE CONVERSION PROCESS
   The owner of any mobile home that was initially financed pursuant to a
motor vehicle loan, motor vehicle retail installment contract, or another form
of chattel mortgage shall, if the mobile home is subsequently financed as
residential real estate pursuant to subsection 2603(b) of this title, file a request
for purging of the security interest with the clerk of the municipality where the
chattel mortgage for the mobile home was last recorded.
      (1) A request to purge the security interest of a mobile home shall
include the most recent Vermont uniform bill of sale or certificate of origin,
the terminated UCC financing statement or statements, and an executed
warranty or quitclaim deed, which shall be drafted substantially in the form
provided in section 2604 of this title.
      (2) Upon the filing of a request to purge the security interest of a mobile
home with the clerk of the municipality where the chattel mortgage for the
mobile home was last recorded, and upon the owner’s procuring the consent of
the holders of any security interest in the mobile home shown to be unreleased,
the mobile home shall become residential real estate.
      (3) Upon receiving a request to purge the security interest of a mobile
home, the municipal clerk shall mark or stamp the originally filed Vermont
uniform bill of sale or certificate of origin with the word “converted.”
       (4) A mobile home that has been converted to residential real estate
shall not be converted or redefined as personal property.
Sec. 42. 9 V.S.A. § 2606 is added to read:
§ 2606.   RELOCATING                MOBILE        HOMES        TO      ANOTHER
MUNICIPALITY OR STATE
   (a) If a deed for any mobile home is recorded by the clerk of the
municipality in which the mobile home is sited, and if that mobile home is
relocated to another site within the state of Vermont, the owner of the mobile
home shall, within 10 days of the relocation, do all the following:
      (1) File with the clerk of the municipality where the deed was last
recorded a relocation statement substantially in the form provided in this
subsection.
       (2) File with the clerk of the municipality where the mobile home is
relocated a copy of the relocation statement as required by subdivision (1) of
this subsection, together with the deed filed with the clerk of the municipality
where the mobile home was previously sited. If the records of a municipality
1982                      JOURNAL OF THE SENATE
in which the deed or conveyance is recorded are destroyed, an attested copy of
the deed or other conveyance from the county clerk shall have the same
validity as a copy from the municipal clerk’s office.
      (3) Provide a copy of the relocation statement filed pursuant to
subdivision (1) of this subsection to the holders of any unreleased, recorded
security interests in the mobile home.
                        Form for Relocation Statement
                           , of              ,                County, State
of                 , is the owner of (description of mobile home: name of
manufacturer, model and serial number and encumbrances, exceptions,
reservations, if any), which mobile home has been relocated.
        The mobile home was previously located at __________ (state name of
park, if any, and street address), Town (City) of __________, __________
County, State of Vermont and title, if any, to the same was recorded at Book
___, Page ___, in the records of the Town (City) of __________.
        The mobile home is has been relocated to __________ (state name of
park, if any, and street address), Town (City) of __________, __________
County, State of Vermont and title, if any, to the same was recorded at
Book___ ___, Page ___, in the records of the Town (City) of __________.
      The tract or parcel of land upon which the mobile home is situated is
owned by                  by deed dated                      and recorded at
Book    , Page     in the land records of the Town (City) of        .
      The mobile home is subject to an existing mortgage by
_____________in favor of _____________, recorded at Book ___, Page , in
the land records of the Town (City) of _______ __.
   If the relocation is to a municipality in Vermont other than the municipality
in which the deed to the Grantor was recorded, a duplicate original of the deed
to the Grantor shall be recorded in the land records of the municipality of the
relocation at the same time this statement is recorded.
            Signed this __________ day of __________, ___.
   (b) An out-of-state transfer statement substantially in the form provided in
this subsection shall, when duly executed and recorded by the clerk of the
municipality in which the mobile home was previously located, have the force
and effect of transferring title of the mobile home to the grantee, the grantee’s
heirs, successors, and assigns and terminating the record title or deed of the
mobile home in the municipal records under circumstances by which the
mobile home is relocated outside this state. No owner of land on which a
mobile home is sited shall unreasonably withhold the consent required by this
                            FRIDAY, MAY 2, 2008                         1983
statutory form. No mobile home may be relocated to a site outside this state
unless all holders of liens, attachments, or encumbrances, if any, consent in
writing on the transfer statement.
                  Form for Out-of-State Transfer Statement
       __________, of __________, County, State of __________ (“Grantor”),
for consideration paid, grants to __________, (complete mailing address)
__________, of __________ Street, Town (City) of __________, __________
County, State of __________ (“Grantee”), the __________ (Description of
mobile home being conveyed: name of manufacturer, model and serial number
and encumbrances, exceptions, reservations, if any) which mobile home was
situated at __________ (state name of park, if any, and street address), Town
(City) __________ of __________ County, State of Vermont.
       The tract or parcel of land upon which the mobile home was situated is
owned by __________ by deed __________ dated __________ and recorded
at Book___, Page ___ in the __________ County Registry of Deeds.
__________ (wife) (husband) of said Grantor, releases to said Grantee all
rights and other interest therein.
      The mobile home is transferred subject to an existing mortgage by
__________in favor of _____________, recorded at Book ___, Page , in the
land records of the Town (City) of _________, State of Vermont.
Signed this __________ day of __________, ___.
                         (Here add acknowledgment)
           __________, owner of the tract or parcel of land upon which the
aforesaid mobile home was situated, hereby consents to the conveyance of the
mobile home.
     Signed this __ day of __________, ___.
                         (Here add acknowledgment)
            __________, holder of (lien, attachment or encumbrance) hereby
consent to the conveyance of the aforesaid mobile home, subject to condition
that the aforesaid (lien, attachment or encumbrance) shall remain in force and
effect thereon.
     Signed this __________ day of __________, ___.
                            (Here add acknowledgment)
   (c) An attachment, mortgage, security interest, lien, or other encumbrance
on a mobile home, when properly perfected, shall be enforceable until released
1984                      JOURNAL OF THE SENATE
or discharged notwithstanding the relocation of the mobile home within or
outside this state.
Sec. 43. 9 V.S.A. § 2607 is added to read:
§ 2607. PENALTY
   A person who violates a provision of this chapter:
      (1) Except for violations of subsection 2603(e) of this title, shall be
fined not more than $5,000.00 for each occurrence.
     (2) Shall be subject to all the remedies and penalties available to a
consumer and the attorney general under chapter 63 of this title.
           * * * Landlord – Tenant from S.372, Secs. 44 – 53 * * *
Sec. 44. 9 V.S.A. § 4451(1) is amended to read:
      (1) “Actual notice” means receipt of written notice hand-delivered or
mailed to the last known address. A rebuttable presumption that the notice was
received three days after mailing is created if the sending party proves that the
notice was sent by first class or certified United States mail.
Sec. 45. 9 V.S.A. § 4461(c) is amended to read:
   (c) A landlord shall return the security deposit along with a written
statement itemizing any deductions to a tenant within 14 days from the date on
which the landlord discovers that the tenant vacated or abandoned the dwelling
unit, with a written statement itemizing any deductions or the date the tenant
vacated the dwelling unit, provided the landlord received notice from the
tenant of that date. In the case of the seasonal occupancy and rental of a
dwelling unit not intended as a primary residence, the security deposit and
written statement shall be returned within 60 days.
Sec. 46. 9 V.S.A. § 4462(d) is added to read:
   (d) Any personal property remaining in the dwelling unit or leased
premises after the tenant has vacated may be disposed of by the landlord
without notice or liability to the tenant or owner of the personal property,
provided that one of the following has occurred:
      (1) The tenant provided actual notice to the landlord that the tenant has
vacated the dwelling unit or leased premises.
      (2) The tenant has vacated the dwelling unit or leased premises at the
end of the rental agreement.
                             FRIDAY, MAY 2, 2008                            1985
Sec. 47. 9 V.S.A. § 4465(c) is added to read:
   (c) If a landlord serves notice of termination of tenancy on any grounds
other than for nonpayment of rent within 90 days after notice by any municipal
or state governmental entity that the premises are not in compliance with
applicable health or safety regulations, there is a rebuttable presumption that
any termination by the landlord is in retaliation for the tenant having reported
the noncompliance.
Sec. 48. 9 V.S.A. § 4467 is amended to read:
§ 4467. TERMINATION OF TENANCY; NOTICE
   (a) Termination for nonpayment of rent. Termination for nonpayment of
rent. The landlord may terminate a tenancy for nonpayment of rent by
providing actual notice to the tenant of the date on which the tenancy will
terminate which shall be at least 14 days after the date of the actual notice.
The rental agreement shall not terminate if the tenant pays or tenders all
arrearages prior to the termination date. A tenant may not defeat a notice to
terminate by payment of arrearages more than three times in 12 months rent
due through the end of the rental period in which payment is made or tendered.
Acceptance of partial payment of rent shall not constitute a waiver of the
landlord's remedies for nonpayment of rent.
   (b) Termination for breach of rental agreement.
       (1) The landlord may terminate a tenancy for failure of the tenant to
comply with a material term of the rental agreement or with obligations
imposed under this chapter, by actual notice given to the tenant at least 30 days
prior to the termination date specified in the notice.
      (2) When termination is based on criminal activity, illegal drug activity,
or acts of violence any of which threaten the health or safety of other residents,
the landlord may terminate the tenancy by providing actual notice to the tenant
of the date on which the tenancy will terminate which shall be at least 14 days
from the date of the actual notice.
                                      ***
   (e) Termination by landlord for no cause under terms of written rental
agreement. If the landlord terminates a tenancy in accordance with the terms
of there is a written rental agreement, the notice to terminate for no cause shall
be at least 30 14 days before the end or expiration of the stated term of the
rental agreement, if rent is payable on a monthly basis and the tenancy has
continued for two years or less. The notice to terminate for no cause shall be at
least 60 days the rent is paid on a monthly basis and before the end or
expiration of the term of the rental agreement if the tenancy has continued for
1986                       JOURNAL OF THE SENATE
more than two years. The If there is a written week-to-week rental agreement,
the notice to terminate for no cause shall be at least seven days, if rent is
payable on a weekly basis; however, a notice to terminate for nonpayment of
rent shall be as provided in subsection (a) of this section.
                                        ***
   (i) Multiple notices. All actual notices that are in compliance with this
section shall not invalidate any other actual notice and shall be a valid basis for
commencing and maintaining an action for possession pursuant to this chapter,
chapter 153 of Title 10, chapter 14 of Title 11, or chapter 169 of Title 12,
notwithstanding that the notices may be based on different or unrelated
grounds, dates of termination, or that the notices are sent at different times
prior to or during an ejectment action. A landlord may maintain an ejectment
action and rely on as many grounds for ejectment as is allowed by law at any
time during the eviction process.
   (j)(1) A landlord’s acceptance of full or partial rent payment by or on
behalf of a tenant after the termination of the tenancy for reasons other than
nonpayment of rent or at any time during the ejectment action shall not result
in the dismissal of an ejectment action or constitute a waiver of the landlord’s
remedies to proceed with an eviction action based on any of the following:
         (A) The tenant’s breach of the terms of a rental agreement pursuant
to subsection (b) of this section.
         (B) The tenant’s breach of the tenant’s obligations pursuant to
subsections 4456(a), (b), and (c) of this title.
           (C) For no cause pursuant to subsections (c), (d), (e), and (h) of this
section.
       (2) This subsection shall apply to chapter 153 of Title 10, chapter 14 of
Title 11, and chapter 169 of Title 12.
   (k) A notice to terminate a tenancy shall be insufficient to support a
judgment of eviction unless the proceeding is commenced no later than 60
days from the termination date set forth in the notice.
Sec. 49. 10 V.S.A. § 6204(c) is amended to read:
   (c) To the extent that they are consistent with this chapter, the provisions of
chapter 137 of Title 9 (residential rental agreements) and the provisions of
subchapter 3 of chapter 169 of Title 12 (eviction) shall apply to the occupancy
and rental of a mobile home but not to the rental of a mobile home lot, except
the rental of a mobile home lot shall be subject to the provisions of chapter 169
of Title 12, relating to payment of rent into court.
                             FRIDAY, MAY 2, 2008                            1987
Sec. 50. 12 V.S.A. § 4773 is amended to read:
§ 4773. EJECTMENT FOR NONPAYMENT OF RENT; PROOF;
PAYMENT
    In actions of ejectment for nonpayment of rent, the plaintiff shall not be
required to prove a demand of the rent in arrear or a stipulation for reentry on
nonpayment of rent or a reentry on the premises, but shall recover judgment as
if the rent in arrear had been demanded and reentry made. Before final
judgment a writ of possession is executed, if the defendant in such action pays
into court the rent in arrear with all rent due through the end of the current
rental period, including interest and the costs of suit, such the action shall be
discontinued. A defendant may not defeat an ejectment action by payment of
all rent in arrears, interest, and court costs more than one time in 12 months.
The 12-month period shall begin on the day the payment is made.
Sec. 51. 12 V.S.A. § 4853a(a), (b), and (d) are amended to read:
   (a) In any action against a tenant for possession brought in accordance with
this chapter, chapter 137 of Title 9 or, chapter 153 of Title 10, or chapter 14 of
Title 11, the landlord may file a motion for an order that the tenant pay rent
into court. The motion may be filed and served with the complaint or at any
time after the complaint has been filed. The motion shall be accompanied by
affidavit setting forth particular facts in support of the motion.
   (b) A hearing on the motion shall be held any time after 10 days notice to
the parties. If the tenant appears at the hearing and has not been previously
defaulted, the court shall not enter judgment by default unless the tenant fails
to file a written answer within 10 days after the hearing. Any rent escrow
order shall remain in effect notwithstanding the issuance of a default judgment
but shall cease upon execution of a writ of possession.
   (d) If the court finds the tenant is obligated to pay rent and has failed to do
so, the court shall order full or partial payment into court of rent as it accrues
while the proceeding is pending and prorated rent for the month in which the
hearing is held rent accrued from the date of filing with the court the complaint
for ejectment or the date the summons and complaint for ejectment were
served on the tenant pursuant to Rule 3 of the Vermont Rules of Civil
Procedure, whichever occurs first.
Sec. 52. 12 V.S.A. § 4854 is amended to read:
§ 4854. JUDGMENT FOR PLAINTIFF; WRIT OF POSSESSION
   If the court finds that the plaintiff is entitled to possession of the premises
the plaintiff shall have judgment for possession and rents due, damages and
costs, and when a written rental agreement so provides, the court may award
1988                      JOURNAL OF THE SENATE
reasonable attorney fees. A writ of possession shall issue ten days after on the
date judgment is entered, unless the court for good cause orders a stay. The
writ shall direct the sheriff of the county in which the property or a portion
thereof is located to serve the writ upon the defendant and, no sooner than five
ten days after the writ is served, to put the plaintiff into possession.
            * * * Mobile Home Park Sales from H.332 Secs. * * *
Sec. 53. 10 V.S.A. § 6201(5), (6), and (7) are amended to read:
      (5) “Leaseholder” means a resident lawfully occupying a mobile home
owned by the park owner or the owner of a mobile home sited on a mobile
home lot in a mobile home park regardless of whether the leaseholder has
actual possession of a written lease.
       (6) “Mobile home park resident” or “resident” means an individual,
individuals, or family who occupies a mobile home on a permanent or
temporary basis in a mobile home park as that term is defined in subdivision
(2) of this section.
      (7) “Mobile home park owner” or “park owner” means the owners,
operators, officers, or managing agents of a mobile home park as well as any
person acting through any corporate or other device who has the practical
authority to establish rules, policies, or other requirements for the operation of
the mobile home park. The term shall not include a stockholder for a
corporation owning stock in a mobile home park unless such stockholder has a
controlling interest in the corporation and has the practical authority to
establish rules, policies or other requirements for the operation of the mobile
home park.
Sec. 54. 10 V.S.A. § 6204(c) is amended to read:
   (c) To the extent that they are consistent with this chapter, the provisions of
chapter 137 of Title 9 (residential rental agreements) and the provisions of
subchapter 3 of chapter 169 of Title 12 (eviction) shall apply to the occupancy
and rental of a mobile home but not and the provisions of subchapter 3 of
chapter 169 of Title 12 (eviction) shall apply to the rental of a mobile home lot.
Sec. 55. 10 V.S.A. § 6205(c) is amended to read:
   (c) A resident of a mobile home park leaseholder may bring an action
against a the park owner for a violation of sections 6236-6243 of this title. The
action shall be filed in district court for the district in which the alleged
violation occurred. If the resident's leaseholder’s claim against the owner
exceeds the jurisdictional limit of the district court, an action may be brought
in superior court in the county in which the alleged violation occurred. No
action may be commenced by the resident leaseholder unless the resident
                              FRIDAY, MAY 2, 2008                            1989
leaseholder has first notified the park owner of the violation by certified mail at
least 30 days prior to bringing the action. During the pendency of an action
brought by a resident leaseholder, the resident leaseholder shall pay rent in an
amount designated in the lease, or as provided by law, which rental amount
shall be deposited in an escrow account as directed by the court.
Sec. 56. 10 V.S.A. § 6231 is amended to read:
§ 6231. RULES
                                      ***
   (b) The department of housing and community affairs may adopt rules to
carry out the provisions of sections 6236-6243 of this title into effect. The
department shall seek advice and comment from the advisory commission
prior to adopting rules.
   (c) A mobile home park that has been closed pursuant to subdivision
6237(a)(5) section 6237a of this title and reduced to no more than two
occupied leased lots, shall be required, if the number of occupied leased lots
subsequently is increased to more than two, to obtain all state land use and
environmental permits required for a mobile home park that has been
established or expanded after May 31, 1970.
Sec. 57. 10 V.S.A. § 6236 is amended to read:
§ 6236. LEASE TERMS; MOBILE HOME PARKS
   (a) All terms governing the rental use and occupancy of a mobile home lot
shall be contained in a written lease which shall be furnished to all mobile
home residents. Mobile home park owners shall promulgate reasonable and
fair lease terms governing the rental use and occupancy of a mobile home lot
and shall furnish an initial copy of the lease to all mobile home residents
leaseholders. Any lease term which that prohibits or in any other manner
obstructs the ability of any park leaseholder to act in accordance with the
provisions of this chapter shall be unenforceable. Any lease term which that is
not uniformly applied to all mobile home residents leaseholders of the same or
a similar category shall be unenforceable, except that an a park owner may
establish a different lot rent rate for a mobile home park constructed after
June 1, 1995, or for new lots in an expanded mobile home park constructed
after June 1, 1995. Mobile home park owners shall not restrict access by
representatives of the department to the leaseholders of the park.
   (b) A lease term requiring the removal from a mobile home park of a
mobile home which that is detrimental to the other tenants residents of the park
for either health, safety or aesthetic reasons shall not be considered
unreasonable or unfair.
1990                      JOURNAL OF THE SENATE
    (c) A prospective resident Prospective leaseholders shall be furnished with
a copy of the proposed lease prior to any agreement to lease use or occupy a
mobile home lot, and upon acceptance of the lease terms the lease shall be
signed by the lessor and lessee. Any provision in a lease governing rental and
utility charges shall be effective for a minimum of one year, except in the case
of a new tenant leaseholder in a mobile home park in which there is a uniform
rent schedule which that affects all lots in that park simultaneously. The initial
lease for a new tenant leaseholder may include the anticipated increase in the
rent and utility charge at the time it occurs for the other lots. A mobile home
park owner shall provide residents leaseholders with a minimum of 60 days
notice prior to any rent increase. Rent increase notices shall not be given
within six months prior to the issuance of a closure notice or at any time during
which the closure notice is in effect. All rent increases received by the park
owner during the six months prior to the issuance of a closure notice shall be
returned to the affected leaseholders within seven days of issuance of the
closure notice, except when the commissioner determines the rent increase is
needed to help remedy an emergency situation that affects the resident’s
health, safety, or welfare. This subsection shall not apply to proprietary leases
in mobile home parks owned by limited equity housing cooperatives
established under chapter 14 of Title 11. The rental and utility charge may be
increased during a year if the operating expenses of the park increase 20
percent or more during that year as the result of legislative action taken during
that year and the increase could not have been anticipated. The rental and
utility charge may be increased during a year only to the extent necessary to
cover the increase in operating expenses of the park.
   (d) No person shall sell, lease, or sublease a mobile home resident may
sublet the resident's mobile home without the express permission or sublease
or assign a lease for a lot in a mobile home park without first obtaining the
written approval of the park owner, which shall not be unreasonably withheld.
A violation of this subsection shall be grounds for eviction.
   (e) All mobile home lot leases shall contain the following:
                                      ***
      (5) The requirement of to obtain permission, if any, from the park owner
for subletting prior to leasing or selling a mobile home or assigning or
subleasing a lease for a mobile home lot to another person.
      (6) The notice required from a mobile home resident leaseholder in
order to terminate the lease or occupancy arrangement.
                                      ***
                             FRIDAY, MAY 2, 2008                           1991
   (f) A copy of all new lease terms shall be furnished to all mobile home
residents leaseholders at least 30 days prior to the effective date of any
amendment, addition, or deletion of the existing lease terms. Upon request, the
park owner shall provide to any leaseholder a copy of the current lease for his
or her lot.
Sec. 58. 10 V.S.A. § 6237(a), (b), and (d) are amended to read:
   (a) A mobile home resident leaseholder may be evicted only for
nonpayment of rent or for a substantial violation of the lease terms of the
mobile home park, or if there is a change in use of the park land or parts
thereof or a termination of the mobile home park, and only in accordance with
the following procedure:
      (1) A resident leaseholder shall not be evicted by force or any other self-
help measure.
      (2) Prior to the commencement of any eviction proceeding, the park
owner must notify the mobile home resident leaseholder by certified or
registered mail, except as provided in subdivision (3) of this subsection;
         (A) of the grounds for an eviction proceeding;
         (B) that an eviction proceeding may be commenced if the mobile
home resident leaseholder does not pay the overdue rent within 20 days from
the date of the mailing of the notice.
                                     ***
      (5) A mobile home park owner shall give to each affected leaseholder
and to the commissioner of the department of housing and community affairs
notice by certified mail at least 18 months prior to any voluntary change in use
of all or part of the park land or termination of the mobile home park that
would result in the removal of any or all of the mobile home units. Upon
request, the commissioner of housing and community affairs may waive the
notice requirement if the change in use is necessary to assure the health, safety
or welfare of the park residents. No eviction proceedings may be commenced
during the 18-month notice period, except for nonpayment of rent.
   (b) A mobile home resident leaseholder shall not be evicted when there is
proof that the lease terms he is the leaseholder has been accused of violating
are not enforced with respect to the other mobile home residents or
nonresidents leaseholders or others on the park premises.
                                       ***
   (d) This section shall apply only to evictions undertaken by the park owner
of a mobile home park. Evictions of a mobile home tenant resident by a mobile
1992                        JOURNAL OF THE SENATE
home owner who is not the park owner of the mobile home park shall be
governed by 9 V.S.A. § 4467.
Sec. 59. 10 V.S.A. § 6237a is added to read:
§ 6237a. MOBILE HOME PARK CLOSURES
   (a) At least 18 months prior to the closure of a mobile home park or any
mobile home lot that will result in the eviction of a resident or a leaseholder or
removal of a mobile home, a park owner shall give notice of the closure to
each affected resident or leaseholder and to the commissioner by certified
mail. Upon request, the commissioner may waive some or all of the 18-month
notice period if the closure is necessary to assure the health, safety, or welfare
of park residents. No evictions may be commenced during the 18-month
closure period except for nonpayment of rent or a substantial violation of the
lease terms.
    (b) Prior to issuing a closure notice pursuant to subsection (a) of this
section, a park owner shall first notify all mobile home owners of the park
owner’s intent to sell in accordance with section 6242 of this title. However, if
the park owner sends a notice of closure to the residents and leaseholders
without first providing the mobile home owners with a notice of sale under
section 6242, then the park owner must retain ownership of the land for five
years after the date the closure notice was provided. If required, the park
owner shall record the notice of the five-year restriction in the land records of
the municipality in which the park is located. The park owner may apply to
the commissioner for relief from the notice and holding requirements of this
subsection if the commissioner determines that strict compliance is likely to
cause undue hardship to the park owner or the leaseholders, or both. This
relief shall not be unreasonably withheld.
   (c) When a park owner gives notice of intent to sell pursuant to section
6242 of this title, any previous notice of closure and any evictions commenced
pursuant to the closure notice are void.
   (d) A park owner who gives notice of intent to sell pursuant to section 6242
of this title shall not give notice of closure until after:
       (1) At least 45 days after giving notice of intent to sell.
     (2) If applicable, the commissioner receives notice from the mobile
home owners and the park owner that negotiations have ended following the
90-day negotiation period provided in subdivision 6242(c)(1) of this title.
   (e) A park owner who closes a mobile home park within five years of
providing closure notice by selling the land on which the park was located
without complying with subsection (b) of this section shall be liable to the state
                             FRIDAY, MAY 2, 2008                           1993
in the aggregate amount of $10,000.00 or 50 percent of the gain realized by the
park owner from the sale, whichever is greater, unless the commissioner has
granted relief from strict compliance pursuant to subsection (b) of this section.
   (f) A park owner may bring an action for possession upon the expiration of
the 18-month closure notice. The only defense to an action for possession in
the case of a park closure is improper notice.
Sec. 60. 10 V.S.A. § 6238(a) and (b)(4) are amended to read:
   (a) A prospective resident leaseholder or other person may not be charged
an entrance fee for the privilege of leasing or occupying a mobile home lot. A
reasonable charge for the fair value of services performed in placing a mobile
home on a lot shall not be considered an entrance fee.
   (b) A qualified park owner may charge the initial lessee or occupant of an
eligible site a site improvement fee.
                                       ***
      (4) A mobile home park owner who has collected a site improvement
fee may not terminate the park or change the use of any site which that has
paid the fee without offering to sell the park to the leaseholders mobile home
owners in accordance with the provisions of section 6242 of this title.
Sec. 61. 10 V.S.A. § 6239 is amended to read:
§ 6239. GOODS AND SERVICES
   A mobile home resident leaseholder shall not be restricted in his or her
choice of vendors from whom he or she may purchase goods and services. This
section shall not be construed to prohibit a mobile home park owner or
operator from contracting with any or all mobile home residents leaseholders
for the sale, supply or distribution of goods and services, but such contract
shall not be required as a condition of entrance to the mobile home park.
Sec. 62. 10 V.S.A. § 6240 is amended to read:
§ 6240. SALE OF HOMES LOCATED IN PARKS
   (a) Prior to selling a mobile home located in a mobile home park, the
mobile home owner shall notify the park owner by certified or registered mail
of the name and mailing address of the prospective purchaser. The seller may
be held liable by the purchaser or prospective purchaser for failure to comply
with this section.
   (b) A purchaser or prospective purchaser of a mobile home located in a
park shall not be refused entrance if except for the inability of the purchaser
and his the purchaser’s household to meet the terms of the proposed lease or to
1994                       JOURNAL OF THE SENATE
qualify under the lease terms a valid admission policy of the park. Upon
approval for entrance into the mobile home park, the purchaser or prospective
purchaser shall be offered a written lease pursuant to section 6236 of this title.
If the purchaser or prospective purchaser does not notify the park owner in
writing of any objections to the lease terms prior to occupancy of the mobile
home park, the purchaser shall be deemed to have accepted the lease,
regardless of whether the purchaser signs and returns a copy of the lease to the
park owner. The seller’s failure to provide the notice required in subsection (a)
of this section shall not be grounds to deny the purchaser or prospective
purchaser’s application.
   (c) A park owner shall not charge or collect any commission on the sale of
a mobile home located in a park unless he the park owner contracts to sell the
home.
Sec. 63. 10 V.S.A. § 6241(a) and (b)(4) are amended to read:
   (a) A park owner may enter a mobile home lot in the park with the tenant's
resident’s consent, which shall not be unreasonably withheld.
   (b) A park owner may also enter a mobile home lot in the park between the
hours of 7:00 a.m. and 7:00 p.m. on no less than 12 hours' notice for any of the
following purposes:
                                       ***
     (4) To exhibit show the lot to prospective or actual purchasers,
mortgagees, tenants residents, workers or contractors.
Sec. 64. 10 V.S.A. § 6242 is amended to read:
§ 6242. LEASEHOLDER'S MOBILE HOME OWNERS’ RIGHT TO
NOTIFICATION PRIOR TO PARK SALE
   (a) A mobile home park owner shall give to each leaseholder mobile home
owner and to the commissioner of the department of housing and community
affairs notice by certified mail of his or her intention to sell the mobile home
park. For the purpose of this section, a leaseholder is the holder of a lease for a
lot or a leasehold on which a mobile home owned by the leaseholder is sited.
Nothing herein shall be construed to restrict the price at which the park owner
offers the park for sale. The notice shall state all the following:
       (1) that That the park owner intends to sell the park;.
      (2) the The price, terms and conditions under which the park owner
offers the park for sale;.
    (3) a A list of the affected leaseholders mobile home owners and the
number of leaseholds held by each;.
                             FRIDAY, MAY 2, 2008                           1995
     (4) the The status of compliance with applicable statutes, regulations
and permits, to the park owner's best knowledge, and the reasons for any
noncompliance; and.
      (5) that That for 45 days following the notice the mobile home park
owner shall not make a final unconditional acceptance of an offer to purchase
the park and that if within the 45 days the park owner receives notice pursuant
to subsection (c) of this section that a majority of the leaseholders mobile home
owners intend to consider purchase of the park, the park owner shall not make
a final unconditional acceptance of an offer to purchase the park for an
additional 90 days, starting from the 46th day following notice, except one
from a group representing a majority of the leaseholders mobile home owners
or from a nonprofit corporation approved by a majority of the leaseholders
mobile home owners.
   (b) The leaseholders mobile home owners shall have 45 days following
notice under subsection (a) of this section in which to determine whether they
intend to consider purchase of the park through a group representing a majority
of the leaseholders mobile home owners or a nonprofit corporation approved
by a majority of the leaseholders mobile home owners. A majority of the
leaseholders mobile home owners shall be determined by one vote per
leasehold and no leaseholder mobile home owner shall have more than three
votes or 30 percent of the aggregate park vote, whichever is less. During this
45-day period, the park owner shall not accept a final unconditional offer to
purchase the park. A park owner shall not restrict representatives of the
department from access to the park residents.
   (c) If the park owner receives no notice from the leaseholders mobile home
owners during the 45-day period or if the leaseholders mobile home owners
notify the park owner that they do not intend to consider purchase of the park,
the park owner has no further restrictions regarding sale of the park pursuant to
this section. If during the 45-day period, the park owner receives notice in
writing that a majority of the leaseholders mobile home owners intend to
consider purchase of the park then the park owner shall do all the following:
      (1) shall not Not accept a final unconditional offer to purchase from a
party other than leaseholders for 90 days following the 45-day period, a total of
135 days following the notice from the leaseholders;.
     (2) shall negotiate Negotiate in good faith with the group representing a
majority of the leaseholders mobile home owners or a nonprofit corporation
approved by a majority of the leaseholders mobile home owners concerning
purchase of the park;.
1996                       JOURNAL OF THE SENATE
      (3) shall consider Consider any offer to purchase from a group
representing a majority of the leaseholders mobile home owners or from a
nonprofit corporation approved by a majority of the leaseholders mobile home
owners.
   (d) A park owner who sells a mobile home park without complying with
this section shall be liable to the residents mobile home owners in the
aggregate amount of $10,000.00 or 50 percent of the gain realized by the park
owner from the sale, whichever is greater. A sale, an offer to sell, or an attempt
to sell a mobile home park without complying with this section shall also be
subject to the remedies of section 6205 of this title, including actual and
punitive damages.
   (e) The provisions of this section do not apply when the sale, transfer or
conveyance of the mobile home park is any one or more of the following:
       (1) through Through a foreclosure sale;.
      (2) to To a member of the park owner's family or to a trust for the sole
benefit of members of the park owner's family;
       (3) among Among the partners who own the mobile home park;.
       (4) incidental Incidental to financing the park;.
       (5) between Between joint tenants or tenants in common;.
       (6) pursuant Pursuant to eminent domain.
       (7) Pursuant to a municipal tax sale.
   (f) No additional notice pursuant to subsection (a) of this section shall be
required if the sale is in compliance with either of the following:
      (1) The mobile home park owner completes a sale of the park within one
year from the expiration of the 45-day period following the date of the notice
and the sale price is either of the following:
         (A) No less than the price for which the park was offered for sale
pursuant to subsection (a) of this section.
         (B) Substantially higher than the final written offer from a group
representing a majority of the mobile home owners or a nonprofit corporation
approved by a majority of the mobile home owners.
      (2) The park owner has entered into a binding purchase and sale
agreement with a group representing a majority of the mobile home owners or
a nonprofit corporation approved by a majority of the mobile home owners
with a closing date later than one year from the date of the notice.
                            FRIDAY, MAY 2, 2008                         1997
   (g) A majority of the leaseholders group representing a majority of the
mobile home owners or a nonprofit corporation approved by a majority of the
mobile home owners shall negotiate in good faith with the park owner for
purchase of the park.
Sec. 65. 10 V.S.A. § 6244 is amended to read:
§ 6244. SECURITY DEPOSITS
   (a) A security deposit is any advance, deposit or prepaid rent which is
refundable to a mobile home resident leaseholder at the termination or
expiration of the occupancy. A security deposit is to secure the resident's
leaseholder’s obligation to pay rent and to maintain a rented mobile home or
mobile home lot.
   (b) The mobile home park owner may retain all or a portion of the security
deposit for any of the following reasons:
     (1) Nonpayment of rent.
      (2) Damage to property of the park owner, unless the damage is the
result of normal wear and tear or the result of actions or events beyond the
control of the resident leaseholder.
      (3) Nonpayment of utility or other charges which the resident
leaseholder was required to pay directly to the park owner or to a utility.
      (4) Expenses for removal of articles abandoned by the resident
leaseholder, including personal property, the mobile home, rubbish and motor
vehicles from the mobile home lot.
   (c) A park owner shall return to the resident leaseholder the security
deposit with a written statement itemizing any deductions within 14 days from
the date on which the resident leaseholder:
                                    ***
     (3) has been removed from the park, together with the resident’s mobile
home pursuant to a writ of possession.
   (d) The park owner shall comply with this section by hand-delivering or
mailing the statement and any payment required to the last known address of
the resident leaseholder.
                                    ***
   (f) Upon termination of the park owner's interest in the park, the security
deposit shall be transferred to the new park owner. The new park owner shall
give the resident leaseholder actual notice of the new park owner's name and
1998                      JOURNAL OF THE SENATE
address with a statement that the security deposit has been transferred to the
new park owner.
   (g) A town or municipality may adopt an ordinance governing security
deposits on mobile homes or mobile home lots. The ordinance shall be
supplemental to and not inconsistent with the minimum protections of the
provisions of this section. The ordinance may not limit how a security deposit
is held. The ordinance may authorize the payment of interest on a security
deposit. The ordinance may provide that a housing board of review constituted
pursuant to 24 V.S.A. § 5005 may hear and decide disputes related to security
deposits upon request for a hearing by a park owner or resident leaseholder.
The board's actions shall be reviewable under 24 V.S.A. § 5006.
Sec. 66. 10 V.S.A. § 6245 is amended to read:
§ 6245. ILLEGAL EVICTIONS
   (a) No park owner may wilfuly cause, directly or indirectly, the
interruption or termination of any utility service to a resident mobile home
except for temporary interruptions for necessary repairs.
   (b) No park owner may directly or indirectly deny a resident leaseholder
access to and possession of the resident's rented or leased premises a mobile
home, except through proper judicial process.
   (c) No park owner may directly or indirectly deny a resident leaseholder
access to and possession of the resident's leaseholder’s rented or leased
property, except through proper judicial process.
Sec. 67. 10 V.S.A. § 6246(a) is amended to read:
    (a) Any resident leaseholder who sustains damage or injury as a result of an
illegal eviction, as defined in section 6245 of this title, may bring an action for
injunctive relief, damages, costs, and reasonable attorney fees.
Sec. 68. 10 V.S.A. § 6247(a) is amended to read:
   (a) A park owner may not retaliate by establishing any of the following:
       (1) Establishing or changing terms of a rental agreement or by bringing.
     (2) Bringing or threatening to bring an action against a resident who has
done any of the following:
      (1) has complained (A) Complained in writing to a governmental
agency charged with responsibility for enforcement of a building, housing or
health regulation of a violation applicable to the premises materially affecting
health and safety;.
                             FRIDAY, MAY 2, 2008                            1999
      (2) has complained (B) Complained in writing to the park owner of a
violation of this chapter; or.
      (3) has organized (C) Organized or become a member of a resident’s
association or similar organization.
Sec. 69. 10 V.S.A. § 6252(a) is amended to read:
   (a) If the percentage of a proposed lot rent increase is more than one
percentage point above the U.S. Consumer Price Index for all Urban
Consumers, Housing Component, published by the U.S. Bureau of Labor
Statistics in the periodical "Monthly Labor Review and Handbook of Labor
Statistics" as established annually by the department, and if, within 15 business
days after receipt by the commissioner of the notice required pursuant to
subsection 6251(a) of this title, a majority of the affected leaseholders of the
occupied leased lots files with the commissioner and the park owner a written
petition that includes the name of the person who will act as the representative
of the leaseholders and a statement that they dispute the proposed lot rent
increase, the commissioner shall send a list of qualified professional mediators
compiled by the department in cooperation with park owners and leaseholders
to the park owner and to the leaseholders' representative. Within five business
days of receipt of the list, the park owner and the leaseholders' representative
shall agree on a mediator from the list provided by the commissioner and
notify the commissioner of the name, address and telephone number of the
mediator selected, accompanied by the mediator's agreement to conduct the
mediation. If the commissioner has not been notified of a mediator as required
by this subsection, the commissioner shall appoint a mediator from the
department's list. The mediator may not have any interest, direct or indirect, in
the mobile home park at issue and shall disclose to the park owner, the
leaseholders and the commissioner, any experience as a mobile home park
owner, resident or leaseholder, or any other circumstance that may create a real
or perceived conflict of interest. The department shall pay the reasonable fees
for professional mediation services based on a schedule established by rule of
the department.
Sec. 70. 10 V.S.A. § 6253(a) is amended to read:
   (a) If the parties are unable to resolve the disputed proposed lot rent
increase pursuant to the process provided in section 6252 of this title, an action
for abatement of some or all of the proposed lot rent increase based on a claim
that the increase is clearly excessive may be initiated by the number a majority
of the affected mobile home park leaseholders that corresponds to a majority of
the occupied leased lots by filing a complaint in the superior court in the
2000                      JOURNAL OF THE SENATE
county in which the mobile home park is located within 30 days after the
effective date of the proposed lot rent increase.
Sec. 71. 10 V.S.A. § 6254 is amended to read:
§ 6254. REGISTRATION OF MOBILE HOME PARKS; REPORT
   (a) No later than September 1, 1995, and every three years thereafter on
September 1, each year, each mobile home park owner shall register with the
department on a form provided by the department. The form shall include the
following information:
                                     ***
      (9) The services provided to the mobile home park residents
leaseholders for payment of lot rent.
      (10) Additional charges for services paid by residents leaseholders in
addition to lot rent.
                                     ***
    (c) The department may charge a mobile home park owner an annual fee of
no more than $9.00 for each occupied leased lot in the park on September 1 of
each year. The mobile home park owner may charge this fee to the affected
mobile home park residents leaseholders. The fee shall be submitted to the
department with the registration form required in subsection (a) of this section.
If a mobile home park owner charges the fee under this subsection to the
mobile home park residents, the fee shall not be deemed to be a lot rent
increase and shall not be included in any calculation of a lot rent increase
pursuant to section 6251 of this title. A mobile home park owner shall not be
charged the fee under this subsection for any mobile home park in which all
the mobile homes are owned by the mobile home park owner. The
commissioner may enforce filing of the registration form and payment of the
fee under subsection 6205(a) of this title. A special fund shall be created for
these fees, to be used by the department of housing and community affairs for
its expenses in administering the laws regarding mobile home parks, and to pay
any fees required in the mediation process pursuant to section 6252 of this title
and for legal representation for leaseholders pursuant to section 6253 of this
title. This special fund shall be managed in accordance with subchapter 5 of
chapter 7 of Title 32.
Sec. 72. 10 V.S.A. § 6262(c) is amended to read:
   (c) No rental agreement shall contain any provision by which the resident
leaseholder waives the protections of the implied warranty of habitability. Any
such waiver shall be deemed contrary to public policy and shall be
unenforceable and void.
                             FRIDAY, MAY 2, 2008                          2001
Sec. 73. 10 V.S.A. § 6263 is amended to read:
§ 6263. HABITABILITY; TENANT LEASEHOLDER REMEDIES
   (a) If the mobile home park owner fails to comply with the obligation of
habitability, the park owner shall be deemed to have notice of the
noncompliance if the park owner receives actual notice of the noncompliance
from the resident leaseholder, a governmental entity, or a qualified
independent inspector. If the park owner has received notice from any of those
sources and fails to make repairs within a reasonable time and the
noncompliance materially affects health and safety, the resident leaseholder
may pursue any of the following remedies:
                                     ***
   (b) The remedies under this section are not available to a resident
leaseholder if the noncompliance was caused by the negligent or deliberate act
or omission of the resident leaseholder or of a person on the premises with the
resident's leaseholder’s consent.
Sec. 74. 10 V.S.A. § 6264 is amended to read:
§ 6264. MINOR DEFECTS; REPAIR AND DEDUCT
   (a) If the park owner fails to repair a minor defect or noncompliance with
this chapter or noncompliance with a material provision of the rental
agreement within 30 days of receipt of written notice, the resident leaseholder
may repair the defect or noncompliance and deduct from the rent the actual and
reasonable cost, not to exceed one-half of one month's lot rent. No major work
on water, sewer, or electrical systems may be performed under this section.
The resident leaseholder shall provide the owner with written notice of the cost
of the repair or service when the cost is deducted from the rent. The resident
leaseholder shall be responsible for any damage caused by the repair or
attempts to repair.
   (b) The remedies under this section are not available to a resident
leaseholder if the noncompliance was caused by the negligent or deliberate act
or omission of the resident leaseholder or a person on the premises with the
resident's leaseholder’s consent.
Sec. 75. 10 V.S.A. § 6265 is amended to read:
§ 6265. CONDEMNATION AND RELOCATION OF RESIDENTS
   (a) The owner of a lot or rented mobile home which that is condemned by a
governmental agency due to the wilful failure or refusal of the owner to
comply with any obligations imposed by law shall provide for reasonable
relocation costs of affected leaseholders and residents, except when the owner
2002                       JOURNAL OF THE SENATE
can demonstrate that he or she has no financial capacity to comply. The
affected leaseholders and residents shall have the right to recover the
reasonable costs of relocation, including court costs and reasonable attorney
fees. The agency of natural resources shall grant to the owner in a timely
fashion all permits necessary to correct violations under this subchapter.
   (b) The commissioner may require a park owner who commences a closure
of a mobile home park pursuant to section 6237a of this title within one year of
receiving from a state or municipal enforcement official a notice of a violation
of health, safety, or environmental laws or of section 6262 of this title to pay
reasonable relocation costs not to exceed $3,500.00 to each affected
leaseholder, except when the park owner can demonstrate that he or she has no
financial capacity to comply.
   And after passage, the title of the bill is to be amended to read:
  AN ACT RELATING TO MUNICIPAL PLANNING, CREATING
VERMONT NEIGHBORHOODS, ENCOURAGING SMART GROWTH
DEVELOPMENT, PURCHASING OF MOBILE HOMES, CLOSURE OF
MOBILE HOME PARKS, AND LANDLORD-TENANT RELATIONS.
                                                  VINCENT ILLUZZI
                                                  ANNE CUMMINGS
                                                  VIRGINIA V. LYONS
                                             Committee on the part of the Senate
                                                  HELEN HEAD
                                                  TONY KLEIN
                                             Committee on the part of the House
  Thereupon, the question, Shall the Senate accept and adopt the report of the
Committee of Conference?, was decided in the affirmative on a roll call,
Yeas 28, Nays 1.
   Senator MacDonald 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, Condos, Coppenrath, Cummings, Doyle, Flanagan,
Giard, Hartwell, Illuzzi, Kitchel, Lyons, MacDonald, Maynard, Mazza,
McCormack, Miller, Mullin, Nitka, Racine, Scott, Sears, Shumlin, Snelling,
White.
   The Senator who voted in the negative was: Kittell.
   The Senator absent and not voting was: Starr.
                             FRIDAY, MAY 2, 2008                          2003
   Thereupon, on motion of Senator Shumlin, the rules were suspended, and
the bill was ordered messaged to the House forthwith.
                        Message from the Governor
  A message was received from His Excellency, the Governor, by Dennise
Casey, Secretary of Civil and Military Affairs, as follows:
Mr. President:
   I am directed by the Governor to inform 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 performances.
                                Adjournment
   On motion of Senator Shumlin, the Senate adjourned until ten o’clock and
thirty minutes in the morning.

				
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