Thumbnails Outlines
House Calendar
Thursday, May 01, 2014
115th DAY OF THE ADJOURNED SESSION
House Convenes at 9:30 A.M.
TABLE OF CONTENTS
Page No.
ACTION CALENDAR
Action Postponed Until May 1, 2014
Favorable with Amendment
S. 184
An act relating to eyewitness identification policy .......................... 2826
Rep. Grad for Judiciary
S. 287
An act relating to involuntary treatment and medication ................. 2831
Rep. Koch for Judiciary
Rep. Donahue et al Amendment .................................................................. 2850
Rep. Donahue et al Amendment .................................................................. 2851
S. 295
An act relating to pretrial services, risk assessments, and criminal
justice programs ........................................................................................... 2854
Rep. Haas for Human Services
Rep. Lippert for Judiciary ............................................................................ 2866
Rep. O’Brien for Appropriations ................................................................. 2878
Senate Proposal of Amendment
H. 758
Notice of potential layoffs ............................................................... 2878
NEW BUSINESS
Third Reading
S. 252
An act relating to financing for Green Mountain Care .................... 2884
Favorable with Amendment
S. 281
An act relating to vision riders and a choice of providers for vision and
eye care services .......................................................................................... 2884
Rep. Dakin for Health Care
Favorable
J.R.S. 27
Joint resolution relating to an application of the General Assembly
for Congress to call a convention for proposing amendments to the U.S.
Constitution ................................................................................................. 2886
Rep. Townsend for Government Operations
Senate Proposal of Amendment
H. 297
Duties and functions of the Department of Public Service ............. 2887
H. 325
A bill of rights for children of arrested and incarcerated parents .... 2906
H. 350
The posting of medical unprofessional conduct decisions and to
investigators of alleged unprofessional conduct .......................................... 2908
H. 581
Guardianship of minors ................................................................... 2910
H. 690
The definition of serious functional impairment ............................. 2923
H. 699
Temporary housing .......................................................................... 2923
H. 795
Victim’s compensation and restitution procedures ......................... 2923
H. 809
Designation of new town centers and growth centers ..................... 2931
NOTICE CALENDAR
Favorable with Amendment
S. 28
An act relating to gender-neutral nomenclature for the identification of
parents on birth certificates ......................................................................... 2933
Rep. Waite-Simpson for Judiciary
S. 168
An act relating to making miscellaneous amendments to laws governing
municipalities .............................................................................................. 2935
Rep. Mook for Government Operations
S. 218
An act relating to temporary employees .......................................... 2937
Rep. Mook for Government Operations
S. 221
An act relating to providing statutory purposes for tax expenditures2938
Rep. Condon for Ways and Means
S. 256
An act relating to the solemnization of a marriage by a Judicial Bureau
hearing officer ............................................................................................. 2952
Rep. Lippert for Judiciary
S. 314
An act relating to miscellaneous amendments to laws related to motor
vehicles ........................................................................................................ 2953
Rep. Brennan for Transportation
Rep. Johnson for Ways and Means ............................................................. 2978
Favorable
J.R.H. 19
Relating to encouraging New Hampshire to enact laws protecting
emergency responders from across state lines ............................................. 2981
Rep. Devereux for Government Operations
S. 195
An act relating to increasing the penalties for second or subsequent
convictions for disorderly conduct, and creating a new crime of aggravated
disorderly conduct ....................................................................................... 2981
Rep. Conquest for Judiciary
S. 225
An act relating to a report on recommended changes in the structure of
Vermont State employment in order to reduce employment-related stress. 2981
Rep. Cole for Government Operations
Committee Relieved
S. 213
An act relating to an employee’s use of benefits ............................. 2981
Rep. Moran for General, Housing and Military Affairs
Senate Proposal of Amendment
S. 299
An act relating to sampler flights ..................................................... 2983
Committee of Conference Report
S. 86
An act relating to miscellaneous changes to election laws ................ 2984
Ordered to Lie
S. 91
An act relating to privatization of public schools .............................. 2986
Consent Calendar
H.C.R. 341
Congratulating Marc Chabot on winning State and national
teaching awards ........................................................................................... 2986
H.C.R. 342
Honoring Ron Hance for his leadership of the Heritage Family
Credit Union ................................................................................................ 2986
H.C.R. 343
Honoring Betty Kinsman for her pioneering leadership of the
Springfield Area Parent Child Center .......................................................... 2986
H.C.R. 344
Honoring Francis Whitcomb of Albany as an extraordinary
citizen, educator, and as Vermont’s active community member of the year2986
H.C.R. 345
Congratulating 10th grade composer Susalina Francy on the
Vermont Symphony Orchestra’s premier of Beowulf’s Last Battle ........... 2986
H.C.R. 346
Designating April 29, 2014 as Alzheimer’s Awareness Day in
Vermont ....................................................................................................... 2986
H.C.R. 347
Congratulating Lisa Bianconi on being selected as a Grammy
Music Educator Award finalist .................................................................... 2986
H.C.R. 348
Congratulating the 2013 St. Johnsbury All-Star Babe Ruth 14 and
Under Vermont championship baseball team .............................................. 2987
H.C.R. 349
Honoring Prevention Works! VT ............................................ 2987
H.C.R. 350
Celebrating the 25th anniversary of Outright Vermont ........... 2987
H.C.R. 351
Honoring Bruce Corwin for his musical leadership of the
Brattleboro American Legion Band ............................................................ 2987
H.C.R. 352
Congratulating Champlain Valley Union High School on its
golden anniversary ....................................................................................... 2987
H.C.R. 353
Honoring Grace Worcester Greene of Berlin for inspiring children
to read and discover their local public library ............................................. 2987
H.C.R. 354
Congratulating the Vermont Arts Council on its 50th anniversary
and designating 2015 as the Year of the Arts in Vermont .......................... 2987
H.C.R. 355
Congratulating Jacob Cady and David Gratton on their age group
championships in the Elks Vermont and New England Hoop Shoots ........ 2987
S.C.R. 56
Senate concurrent resolution designating May 11–17 as Women’s
Lung Health Week in Vermont ................................................................... 2987
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ORDERS OF THE DAY
ACTION CALENDAR
Action Postponed Until May 1, 2014
Favorable with Amendment
S. 184
An act relating to eyewitness identification policy
Rep. Grad of Moretown,
for the Committee on
Judiciary,
recommends
that the House propose to the Senate that the bill be amended by striking all
after the enacting clause and inserting in lieu thereof the following:
Sec. 1.
13 V.S.A. chapter 182, subchapter 3 is added to read:
Subchapter 3.
Law Enforcement Practices
§ 5581.
EYEWITNESS IDENTIFICATION POLICY
(a)
On or before January 1, 2015, every State, county, and municipal law
enforcement agency and every constable who exercises law enforcement
authority pursuant to 24 V.S.A. § 1936a and who is trained in compliance with
20 V.S.A. § 2358 shall adopt an eyewitness identification policy.
(b)
The written policy shall contain, at a minimum, the following essential
elements as identified by the Law Enforcement Advisory Board:
(1) Protocols guiding the use of a show-up identification procedure.
(2) The photo or live lineup shall be conducted by a blind administrator
who does not know the suspect’s identity.
For law enforcement agencies with
limited
staff,
this
can
be
accomplished
through
a
procedure
in
which
photographs are placed in folders, randomly numbered and shuffled, and then
presented to an eyewitness such that the administrator cannot see or track
which photograph is being presented to the witness until after the procedure is
completed.
(3) Instructions to the eyewitness, including that the perpetrator may or
may not be among the persons in the identification procedure.
(4) In
a
photo
or live
lineup,
fillers
shall
possess
the
following
characteristics:
(A)
All fillers selected shall resemble the eyewitness’s description of
the perpetrator in significant features such as face, weight, build, or skin tone,
including any unique or unusual features such as a scar or tattoo.
- 2827 -
(B)
At least five fillers shall be included in a photo lineup, in addition
to the suspect.
(C)
At least four fillers shall be included in a live lineup, in addition
to the suspect.
(5) If the eyewitness makes an identification, the administrator shall
seek and document a clear statement from the eyewitness, at the time of the
identification and in the eyewitness’s own words, as to the eyewitness’s
confidence level that the person identified in a given identification procedure is
the perpetrator.
(c)
The model policy issued by the Law Enforcement Advisory Board shall
encourage ongoing law enforcement training in eyewitness identification
procedures for State, county, and municipal law enforcement agencies and
constables who exercise law enforcement authority pursuant to 24 V.S.A.
§ 1936a and are trained in compliance with 20 V.S.A. § 2358.
(d)
If a law enforcement agency does not adopt a policy by January 1, 2015
in
accordance
with
this
section,
the
model
policy
issued
by
the
Law
Enforcement Advisory Board shall become the policy of that law enforcement
agency or constable.
Sec. 2.
REPORTING EYEWITNESS IDENTIFICATION POLICIES
The Vermont Criminal Justice Training Council shall report to the General
Assembly
on
or
before
April
15,
2015
regarding
law
enforcement’s
compliance with Sec. 1 of this act.
Sec. 3.
20 V.S.A. § 2366 is amended to read:
§ 2366.
LAW ENFORCEMENT AGENCIES; BIAS-FREE POLICING
POLICY; RACE DATA COLLECTION
(a)
No later than January 1, 2013 On or before September 1, 2014, every
State, local, county, and municipal law enforcement agency that employs one
or more certified law enforcement officers, and every law enforcement officer
who exercises law enforcement authority pursuant to 24 V.S.A. § 1936a and
who is trained in compliance with section 2358 of this title, shall adopt a
bias-free policing policy.
The policy shall contain the following essential
substantially the same elements of such a policy as determined by the Law
Enforcement Advisory Board after its review of either the current Vermont
State Police Policy and bias-free policing policy or the most current model
policy issued by the Office of the Attorney General.
(b)
The policy shall encourage ongoing bias-free law enforcement training
for State, local, county, and municipal law enforcement agencies If a law
enforcement agency or officer that is required to adopt a policy pursuant to
- 2828 -
subsection (a) of this section fails to do so on or before September 1, 2014, that
agency or officer shall be deemed to have adopted, and shall follow and
enforce, the model policy issued by the Office of the Attorney General.
(c)
On or before September 7, 2014, and annually thereafter as part of their
annual training report to the Council, every State, local, county, and municipal
law enforcement agency, and every law enforcement officer who exercises law
enforcement authority pursuant to 24 V.S.A. § 1936a and who is trained in
compliance with section 2358 of this title, shall report to the Council whether
the agency or officer has adopted a bias-free policing policy in accordance
with subsections (a) and (b) of this section and which policy has been adopted.
The Criminal Justice Training Council shall determine, as part of the Council’s
annual certification of training requirements, if current officers have received
training on bias-free policing.
(d)
On or before October 15, 2014, and annually thereafter on April 1, the
Criminal Justice Training Council shall report to the House and Senate
Committees on Judiciary which departments and officers have adopted a
bias-free policing policy, which policy has been adopted, and whether officers
have received training on bias-free policing.
(e)
On or before September 1, 2014, every State, local, county, and
municipal law enforcement agencies that employ one or more certified law
enforcement officers are encouraged to work with the Vermont Association of
Chiefs of Police to extend the collection of roadside-stop race data uniformly
throughout state law enforcement agencies, with the goal of obtaining uniform
roadside-stop race data for analysis agency shall collect roadside stop data,
including the age, gender, race, and ethnicity of drivers.
Law enforcement
agencies shall work with the Vermont Criminal Justice Training Council with
the goals of collecting uniform data, adopting uniform storage methods and
periods, and ensuring that data can be analyzed.
Roadside stop data shall be
public.
Sec. 4.
13 V.S.A. chapter 182, subchapter 3 of is added to read:
Subchapter 3.
Law Enforcement Practices
§ 5581.
ELECTRONIC RECORDING OF A CUSTODIAL
INTERROGATION
(a)
As used in this section:
(1)
―Custodial interrogation‖ means any interrogation:
(A)
involving questioning by a law enforcement officer that is
reasonably likely to elicit an incriminating response from the subject; and
- 2829 -
(B)
in which a reasonable person in the subject’s position would
consider himself or herself to be in custody, starting from the moment a person
should have been advised of his or her Miranda rights and ending when the
questioning has concluded.
(2)
―Electronic recording‖ or ―electronically recorded‖ means an audio
and visual recording that is an authentic, accurate, unaltered record of a
custodial interrogation, or if law enforcement does not have the current
capacity to create a visual recording, an audio recording of the interrogation.
(3)
―Place of detention‖ means a building or a police station that is a
place of operation for the State police, a municipal police department, county
sheriff department, or other law enforcement agency that is owned or operated
by a law enforcement agency at which persons are or may be questioned in
connection with criminal offenses or detained temporarily in connection with
criminal charges pending a potential arrest or citation.
(4)
―Statement‖ means an oral, written, sign language, or nonverbal
communication.
(b)(1)
A custodial interrogation that occurs in a place of detention
concerning the investigation of a felony violation of chapter 53 (homicide) or
72 (sexual assault) of this title shall be electronically recorded in its entirety.
(2)
In consideration of best practices, law enforcement shall strive to
record simultaneously both the interrogator and the person being interrogated.
(c)(1)
The following are exceptions to the recording requirement in
subsection (b) of this section:
(A)
exigent circumstances;
(B)
a person’s refusal to be electronically recorded;
(C)
interrogations conducted by other jurisdictions;
(D)
a reasonable belief that the person being interrogated did not
commit a felony violation of chapter 53 (homicide) or 72 (sexual assault) of
this title and, therefore, an electronic recording of the interrogation was not
required;
(E)
the safety of a person or protection of his or her identity; and
(F)
equipment malfunction.
(2) If law enforcement does not make an electronic recording of a
custodial interrogation as required by this section, the prosecution shall prove
by a preponderance of the evidence that one of the exceptions identified in
subdivision (1) of this subsection applies. If the prosecution does not meet the
- 2830 -
burden of proof, the evidence is still admissible, but the Court shall provide
cautionary
instructions
to
the
jury
regarding
the
failure
to
record
the
interrogation.
Sec. 5.
LAW ENFORCEMENT ADVISORY BOARD
(a)
The Law Enforcement Advisory Board (LEAB) shall develop a plan for
the implementation of Sec. 1 of this act, 13 V.S.A. § 5581 (electronic recording
of a custodial interrogation).
(b)
The LEAB, in consultation with practitioners and experts in recording
interrogations, including the Innocence Project, shall:
(1)
assess the scope and location of the current inventory of recording
equipment in Vermont;
(2)
develop recommendations, including funding options, regarding how
to equip adequately law enforcement with the recording devices necessary to
carry out Sec. 1 of this act, 13 V.S.A. § 5581 (electronic recording of a
custodial interrogation); and
(3)
develop recommendations for expansion of recordings to questioning
by a law enforcement officer that is reasonably likely to elicit an incriminating
response from the subject regarding any felony offense.
(c)
On or before October 1, 2014, the LEAB shall submit a written report to
the Senate and House Committees on Judiciary with its recommendations for
the implementation of Sec. 1 of this act, 13 V.S.A. § 5581 (electronic recording
of a custodial interrogation).
Sec. 6.
EFFECTIVE DATES
This act shall take effect on passage except for Sec. 4 which shall take
effect on October 1, 2015.
and that after passage the title of the bill be amended to read:
―An act relating
to law enforcement policies on eyewitness identification and bias-free policing
and on recording of custodial interrogations in homicide and sexual assault
cases‖.
(Committee vote: 7-0-4 )
(For text see Senate Journal 2/5/2014 )
- 2831 -
S. 287
An act relating to involuntary treatment and medication
Rep. Koch of Barre Town,
for the Committee on
Judiciary,
recommends
that the House propose to the Senate that the bill be amended by striking all
after the enacting clause and inserting in lieu thereof the following:
Sec. 1.
18 V.S.A. § 7101(9) is amended to read:
(9)
―Interested party‖ means a guardian, spouse, parent, adult child,
close adult relative, a responsible adult friend, or person who has the individual
in his or her charge or care.
It also means a mental health professional, a law
enforcement officer, a licensed physician, or a head of a hospital, a selectman,
a town service officer, or a town health officer.
Sec. 2.
18 V.S.A. § 7256 is amended to read:
§ 7256.
REPORTING REQUIREMENTS
Notwithstanding
2
V.S.A.
§
20(d),
the department
of
mental
health
Department of Mental Health shall report annually on or before January 15 to
the senate committee on health and welfare and the house committee on human
services Senate Committee on Health and Welfare and the House Committee
on Human Services regarding the extent to which individuals with mental
health conditions receive care in the most integrated and least restrictive setting
available.
The Department shall consider measures from a variety of sources,
including the Joint Commission, the National Quality Forum, the Centers for
Medicare and Medicaid Services, the National Institute of Mental Health, and
the Substance Abuse and Mental Health Services Administration.
The report
shall address:
(1)
Utilization use of services across the continuum of mental health
services;
(2)
Adequacy adequacy of the capacity at each level of care across the
continuum of mental health services;
(3)
Individual individual experience of care and satisfaction;
(4)
Individual individual recovery in terms of clinical, social, and legal
outcomes; and
(5)
Performance performance of the state’s State’s mental health system
of care as compared to nationally recognized standards of excellence;
(6)
ways
in
which
patient
autonomy
and
self-determination
are
maximized within the context of involuntary treatment and medication;
(7)
outcome measures and other data on individuals for whom petitions
- 2832 -
for involuntary medication are filed; and
(8)
progress on alternative treatment options across the system of care
for individuals seeking to avoid or reduce reliance on medications, including
supported withdrawal from medications.
Sec. 3.
18 V.S.A. § 7257 is amended to read:
§ 7257.
REPORTABLE ADVERSE EVENTS
(a)
An acute inpatient hospital, an intensive residential recovery facility, a
designated agency, or a secure residential facility shall report to the department
of mental health
Department of Mental Health instances of death or serious
bodily injury to individuals with a mental health condition in the custody or
temporary custody of the commissioner Commissioner.
(b)
An acute inpatient hospital shall report to the Department of Mental
Health any staff injuries caused by a person in the custody or temporary
custody of the Commissioner that are reported to both the Department of Labor
and to the hospital’s workers’ compensation carrier.
Sec. 4.
18 V.S.A. § 7259 is amended to read:
§ 7259.
MENTAL HEALTH CARE OMBUDSMAN
(a)
The department of mental health Department of Mental Health shall
establish the office of the mental health care ombudsman Office of the Mental
Health Care Ombudsman within the agency designated by the governor
Governor as the protection and advocacy system for the state State pursuant to
42 U.S.C. § 10801 et seq.
The agency may execute the duties of the office of
the
mental
health
care
ombudsman Office
of
the
Mental
Health
Care
Ombudsman, including authority to assist individuals with mental health
conditions and to advocate for policy issues on their behalf; provided,
however, that nothing in this section shall be construed to impose any
additional
duties
on
the
agency
in
excess
of
the
requirements
under
federal law.
(b)
The agency may provide a report annually to the general assembly
General Assembly regarding the implementation of this section.
(c)
In the event the protection and advocacy system ceases to provide
federal funding to the agency for the purposes described in this section, the
general assembly General Assembly may allocate sufficient funds to maintain
the office of the mental health care ombudsman Office of the Mental Health
Care Ombudsman.
(d)
The Department of Mental Health shall provide a copy of the certificate
of need for all emergency involuntary procedures performed on a person in the
- 2833 -
custody or temporary custody of the Commissioner to the Office of the Mental
Health Care Ombudsman on a monthly basis.
Sec. 5.
18 V.S.A. § 7504 is amended to read:
§
7504.
APPLICATION AND
CERTIFICATE FOR
EMERGENCY
EXAMINATION
(a)
A
Upon written application by an interested party made under the pains
and penalties of perjury and accompanied by a certificate by a licensed
physician who is not the applicant, a person shall be admitted to a designated
held for admission to a hospital for an emergency examination to determine if
he or she is a person in need of treatment upon written application by an
interested party accompanied by a certificate by a licensed physician who is
not the applicant.
The application and certificate shall set forth the facts and
circumstances which that constitute the need for an emergency examination
and which that show that the person is a person in need of treatment.
(b)
The application and certificate shall be authority for transporting the
person to a designated
hospital for an emergency examination, as provided in
section 7511 of this title.
(c)
For the purposes of admission of an individual to a designated hospital
for care and treatment under this section, a head of a hospital, as provided in
subsection (a) of this section, may include a person designated in writing by
the head of the hospital to discharge the authority granted in this section.
A designated person must be an official hospital administrator, supervisory
personnel, or a licensed physician on duty on the hospital premises other than
the certifying physician under subsection (a) of this section.
Sec. 6.
18 V.S.A. § 7505 is amended to read:
§
7505.
WARRANT
AND
CERTIFICATE
FOR
IMMEDIATE
EMERGENCY EXAMINATION
(a)
In emergency circumstances where a certification by a physician is not
available
without
serious
and
unreasonable
delay,
and
when
personal
observation of the conduct of a person constitutes reasonable grounds to
believe that the person is a person in need of treatment, and he or she presents
an immediate risk of serious injury to himself or herself or others if not
restrained, a law enforcement officer or mental health professional may make
an application, not accompanied by a physician’s certificate, to any district or
superior Superior judge
for
a
warrant
for
an immediate emergency
examination.
(b)
The law enforcement officer or mental health professional may take the
person into temporary custody and shall apply to the court Court without delay
- 2834 -
for the warrant.
(c)
If the judge is satisfied that a physician’s certificate is not available
without serious and unreasonable delay, and that probable cause exists to
believe that the person is in need of an immediate emergency examination, he
or she may order the person to submit to an immediate examination at a
designated hospital evaluation by a physician for that purpose.
(d)
If necessary, the court Court may order the law enforcement officer or
mental health professional to transport the person to a designated hospital for
an immediate examination evaluation by a physician to determine if the person
should be certified for an emergency examination.
(e)
Upon
admission
to
a
designated
hospital,
the
person
shall
be
immediately examined by a
A person transported pursuant to subsection (d) of
this section shall be evaluated as soon as possible after arrival at the hospital.
If after evaluation the licensed physician determines that the person is a person
in need of treatment, he or she shall issue an initial certificate that sets forth the
facts and circumstances constituting the need for an emergency examination
and showing that the person is a person in need of treatment.
If the physician
certifies that the person is a person in need of treatment
Once the physician
has issued the initial certificate, the person shall be held for an emergency
examination in accordance with section 7508 of this title.
If the physician does
not certify that the person is a person in need of treatment, he or she shall
immediately discharge the person and cause him or her to be returned to the
place from which he or she was taken, or to such place as the person
reasonably directs.
Sec. 7.
18 V.S.A. § 7508 is amended to read:
§ 7508.
EMERGENCY EXAMINATION AND SECOND CERTIFICATION
(a)
When a person is admitted to a designated hospital an initial
certification is issued for an emergency examination of a person in accordance
with section 7504 or subsection 7505(e) of this title, he or she shall be
examined and certified by a psychiatrist as soon as practicable, but not later
than one working day 24 hours after admission initial certification.
(b)
If the person is admitted held for admission on an application and
physician’s certificate, the examining psychiatrist shall not be the same
physician who signed the certificate.
(c)
If the psychiatrist does not certify issue a second certification stating
that the person is a person in need of treatment, he or she shall immediately
discharge or release the person and cause him or her to be returned to the place
from which he or she was taken or to such place as the person reasonably
- 2835 -
directs.
(d)
If the psychiatrist does certify issue a second certification that the
person is a person in need of treatment, the person’s hospitalization person
may
continue to
be
held for
an
additional
72
hours,
at which
time
hospitalization shall terminate the person shall be discharged or released,
unless within that period:
(1)
the person has been accepted for voluntary admission under section
7503 of this title; or
(2)
an application for involuntary treatment is filed with the appropriate
court under section 7612 of this title, in which case the patient shall remain
hospitalized continue to be held pending the court’s decision on the application
Court’s finding of probable cause on the application.
(e)(1)(A)
A person shall be deemed to be in the temporary custody of
the Commissioner when the first of the following occurs:
(i)
a physician files an initial certification for the person while the
person is in a hospital; or
(ii)
a person is certified by a psychiatrist to be a person in need of
treatment during an emergency examination.
(B)
Temporary custody under this subsection shall continue until the
Court issues an order pursuant to subsection 7617(b) of this title or the person
is discharged or released.
(2)
The Commissioner shall make every effort to ensure that a person
held for an emergency examination pending a hospital admission is receiving
temporary care and treatment that:
(A)
uses the least restrictive manner necessary to protect the safety of
both the person and the public;
(B)
respects the privacy of the person and other patients; and
(C)
prevents physical and psychological trauma.
(3)
All persons admitted or held for admission shall receive a notice of
rights as provided for in section 7701 of this title, which shall include contact
information for Vermont Legal Aid, the Office of the Mental Health Care
Ombudsman, and the mental health patient representative.
The Department of
Mental Health shall develop and regularly update informational material on
available peer-run support services, which shall be provided to all persons
admitted or held for admission.
(4)
A person held for an emergency examination may be admitted at an
- 2836 -
appropriate hospital at any time after the second certification occurs.
Sec. 8.
18 V.S.A. § 7509 is amended to read:
§ 7509.
TREATMENT; RIGHT OF ACCESS
(a)
Upon admission to the hospital pursuant to section 7503, 7508, 7617, or
7624 of this title, the person shall be treated with dignity and respect and shall
be given such medical and psychiatric treatment as is indicated.
(b)
The person All persons admitted or held for admission shall be given
the opportunity, subject to reasonable limitations, to communicate with others,
including visits by a peer support person designated by the person, presence of
the presence the peer support person at all treatment team meetings the person
is entitled to attend, the reasonable use of a telephone, and the reasonable use
of electronic mail and the Internet.
(c)
The person shall be requested to furnish the names of persons he or she
may want notified of his or her hospitalization and kept informed of his or her
status.
The head of the hospital shall see that such persons are notified of the
status of the patient, how he or she may be contacted and visited, and how they
may obtain information concerning him or her.
Sec. 9.
18 V.S.A. § 7612 is amended to read:
§ 7612.
APPLICATION FOR INVOLUNTARY TREATMENT
(a)
An interested party may, by filing a written application, commence
proceedings for the involuntary treatment of an individual by judicial process.
(b)
The application shall be filed in the criminal division of the superior
court of the proposed patient’s residence or, in the case of a nonresident, in any
district court Family Division of the Superior Court.
(c)
If the application is filed under section 7508 or 7620 of this title, it shall
be filed in the criminal division of the superior court unit of the Family
Division of the Superior Court in which the hospital is located. In all other
cases, it shall be filed in the unit in which the proposed patient resides.
In the
case of a nonresident, it may be filed in any unit.
The Court may change the
venue of the proceeding to the unit in which the proposed patient is located at
the time of the trial.
(d)
The application shall contain:
(1)
The name and address of the applicant; and.
(2)
A statement of the current and relevant facts upon which the
allegation of mental illness and need for treatment is based.
The application
shall be signed by the applicant under penalty of perjury.
- 2837 -
(e)
The application shall be accompanied by:
(1)
A a certificate of a licensed physician, which shall be executed under
penalty of perjury stating that he or she has examined the proposed patient
within five days of the date the petition is filed, and is of the opinion that the
proposed patient is a person in need of treatment, including the current and
relevant facts and circumstances upon which the physician’s opinion is
based; or
(2)
A a written statement by the applicant that the proposed patient
refused to submit to an examination by a licensed physician.
(f)
Before an examining physician completes the certificate of examination,
he or she shall consider available alternative forms of care and treatment that
might be adequate to provide for the person’s needs, without requiring
hospitalization.
The examining physician shall document on the certificate the
specific alternative forms of care and treatment that he or she considered and
why those alternatives were deemed inappropriate, including information on
the availability of any appropriate alternatives.
Sec. 10.
18 V.S.A. § 7612a is added to read:
§ 7612a.
PROBABLE CAUSE REVIEW
(a)
Within three days after an application for involuntary treatment is filed,
the Family Division of the Superior Court shall conduct a review to determine
whether there is probable cause to believe that the person was a person in need
of treatment at the time of his or her admission.
The review shall be based
solely on the application for an emergency examination and accompanying
certificate
by
a
licensed
physician
and
the
application
for
involuntary
treatment.
(b)
If, based on a review conducted pursuant to subsection (a) of this
section the Court finds probable cause to believe that the person was a person
in need of treatment at the time of his or her admission, the person shall be
ordered held for further proceedings in accordance with Part 8 of this title.
If
probable cause is not established, the person shall be ordered discharged or
released from the hospital and returned to the place from which he or she was
transported or to such place as the person may reasonably direct.
(c)
An application for involuntary treatment shall not be dismissed solely
because the probable cause review is not completed within the time period
required by this section if there is good cause for the delay.
Sec. 11.
18 V.S.A. § 7615 is amended to read:
§
7615.
HEARING
ON
APPLICATION
FOR
INVOLUNTARY
TREATMENT
- 2838 -
(a)(1)
Upon receipt of the application, the court Court shall set a date for
the hearing to be held within 10 days from the date of the receipt of the
application or 20 days from the date of the receipt of the application if a
psychiatric examination is ordered under section 7614 of this title unless the
hearing is continued by the court Court pursuant to subsection (b) of this
section.
(2)(A)
The applicant or a person who is certified as a person in need of
treatment pursuant to section 7508 may file a motion to expedite the hearing.
The motion shall be supported by an affidavit, and the Court shall rule on the
motion on the basis of the filings without holding a hearing.
After viewing the
evidence in the light most favorable to the moving party:
(i)
The Court shall grant the motion if it finds that the person
demonstrates a significant risk of causing the person or others serious bodily
injury as defined in 13 V.S.A. § 1021 even while hospitalized and clinical
interventions have failed to address the risk of harm to the person or others.
(ii)
The Court may grant the motion if it finds that the person has
received involuntary medication pursuant to section 7624 of this title during
the past two years and, based upon the person’s response to previous and
ongoing treatment, there is good cause to believe that additional time will not
result in the person establishing a therapeutic relationship with providers or
regaining competence.
(B)
If the Court grants the motion for expedited hearing pursuant to
this subdivision, the hearing shall be held within ten days from the date of the
order for expedited hearing.
(b)(1)
The court For hearings held pursuant to subdivision (a)(1) of this
section, the Court may grant either each party an a onetime extension of time
of up to seven days for good cause.
(2)
The
Court
may
grant
one
or
more
additional
seven-day
continuances if:
(A)
the Court finds that the proceeding or parties would be
substantially prejudiced without a continuance; or
(B)
the parties stipulate to the continuance.
(c)
The hearing shall be conducted according to the rules of evidence
Vermont Rules of Evidence applicable in civil actions in the criminal division
of the superior courts of the state, and to an extent not inconsistent with this
part, the rules of civil procedure of the state Vermont Rules of Civil Procedure
shall be applicable.
(d)
The applicant and the proposed patient shall have a right to appear at
- 2839 -
the hearing to testify.
The attorney for the state State and the proposed patient
shall have the right to subpoena, present, and cross-examine witnesses, and
present oral arguments.
The court Court may, at its discretion, receive the
testimony of any other person.
(e)
The proposed patient may at his or her election attend the hearing,
subject to reasonable rules of conduct, and the court Court may exclude all
persons, except a peer support person designated by the proposed patient, not
necessary for the conduct of the hearing.
Sec. 12.
18 V.S.A. § 7624 is amended to read:
§ 7624.
PETITION FOR INVOLUNTARY MEDICATION
(a)
The commissioner Commissioner may commence an action for the
involuntary medication of a person who is refusing to accept psychiatric
medication and meets any one of the following three five conditions:
(1)
has been placed in the commissioner’s Commissioner’s care and
custody pursuant to section 7619 of this title or subsection 7621(b) of this title;
(2)
has previously received treatment under an order of hospitalization
and is currently under an order of nonhospitalization, including a person on an
order of nonhospitalization who resides in a secure residential recovery
facility; or
(3)
has been committed to the custody of the commissioner of
corrections Commissioner of Corrections as a convicted felon and is being held
in a correctional facility which is a designated facility pursuant to section 7628
of this title and for whom the department of corrections Departments of
Corrections and the department of mental health of Mental Health have jointly
determined jointly that involuntary medication would be appropriate pursuant
to 28 V.S.A. § 907(4)(H);
(4)
has an application for involuntary treatment pending for which
the Court
has
granted
a
motion
to
expedite
pursuant
to
subdivision
7615(a)(2)(A)(i) of this title; or
(5)(A)
has an application for involuntary treatment pending;
(B)
waives the right to a hearing on the application for involuntary
treatment until a later date; and
(C)
agrees to proceed with an involuntary medication hearing without
a ruling on whether he or she is a person in need of treatment.
(b)(1)
A Except as provided in subdivision (2) and (3) of this subsection, a
petition for involuntary medication shall be filed in the family division of the
superior court Family Division of the Superior Court in the county in which
- 2840 -
the person is receiving treatment.
(2)
If the petition for involuntary medication is filed pursuant to
subdivision (a)(4) of this section:
(A)
the petition shall be filed in the county in which the application
for involuntary treatment is pending; and
(B)
the Court shall consolidate the application for involuntary
treatment with the petition for involuntary medication and rule on the
application
for
involuntary
treatment
before
ruling
on
the
petition
for
involuntary medication.
(3)
If the petition for involuntary medication is filed pursuant to
subdivision (a)(5) of this section, the petition shall be filed in the county in
which the application for involuntary treatment is pending.
(c)
The petition shall include a certification from the treating physician,
executed under penalty of perjury, that includes the following information:
(1)
the nature of the person’s mental illness;
(2)
that the person is refusing medication proposed by the physician;
(3)
that the person lacks the competency to decide to accept or refuse
medication and appreciate the consequences of that decision;
(4)
the necessity for involuntary medication, including the person’s
competency to decide to accept or refuse medication;
(3)(5)
any proposed medication, including the method, dosage range,
and length of administration for each specific medication;
(4)(6)
a statement of the risks and benefits of the proposed medications,
including the likelihood and severity of adverse side effects and its effect on:
(A)
the
person’s
prognosis
with
and
without
the
proposed
medications; and
(B)
the person’s health and safety, including any pregnancy;
(5)(7)
the current relevant facts and circumstances, including any history
of psychiatric treatment and medication, upon which the physician’s opinion is
based;
(6)(8)
what alternate treatments have been proposed by the doctor, the
patient, or others, and the reasons for ruling out those alternatives, including
information on the availability of any appropriate alternatives; and
(7)(9)
whether the person has executed a durable power of attorney for
health
care an
advance
directive in
accordance
with
the
provisions
of
- 2841 -
18 V.S.A. chapter 111, subchapter 2 chapter 231 of this title, and the identity
of the health care agent or agents designated by the durable power of attorney
advance directive.
(d)
A copy of the durable power of attorney advance directive, if available,
shall be attached to the petition.
Sec. 13.
18 V.S.A. § 7625 is amended to read:
§ 7625.
HEARING ON PETITION FOR INVOLUNTARY MEDICATION;
BURDEN OF PROOF
(a)
A Unless consolidated with an application for involuntary treatment
pursuant to subdivision 7624(b)(2) of this title, a hearing on a petition for
involuntary medication shall be held within seven days of filing and shall be
conducted in accordance with sections 7613, 7614, 7615(b)–(e), and 7616 and
subsections 7615(b)–(e) of this title.
(b)
In a hearing conducted pursuant to this section, section 7626, or section
7627 of this title, the commissioner Commissioner has the burden of proof by
clear and convincing evidence.
(c)
In determining whether or not the person is competent to make a
decision regarding the proposed treatment, the court Court shall consider
whether the person is able to make a decision and appreciate the consequences
of that decision.
Sec. 14.
18 V.S.A. § 7626 is amended to read:
§ 7626.
DURABLE POWER OF ATTORNEY ADVANCE DIRECTIVE
(a)
If a person who is the subject of a petition filed under section 7624 of
this title has executed a durable power of attorney an advance directive in
accordance with the provisions of 18 V.S.A. chapter 111 chapter 231 of this
title, subchapter 2 for health care, the court Court shall suspend the hearing and
enter an order pursuant to subsection (b) of this section, if the court Court
determines that:
(1)
the person is refusing to accept psychiatric medication;
(2)
the person is not competent to make a decision regarding the
proposed treatment; and
(3)
the decision regarding the proposed treatment is within the scope of
the valid, duly executed durable power of attorney for health care advance
directive.
(b)
An order entered under subsection (a) of this section shall authorize the
commissioner Commissioner to administer treatment to the person, including
- 2842 -
involuntary medication in accordance with the direction set forth in the durable
power of attorney advance directive or provided by the health care agent or
agents acting within the scope of authority granted by the durable power of
attorney advance directive.
If hospitalization is necessary to effectuate the
proposed treatment, the court Court may order the person to be hospitalized.
(c)
In the case of a person subject to an order entered pursuant to
subsection (a) of this section, and upon the certification by the person’s
treating physician to the court that the person has received treatment or no
treatment consistent with the durable power of attorney for health care for
45 days after the order under subsection (a) of this section has been entered,
then the court shall reconvene the hearing on the petition.
(1)
If the court concludes that the person has experienced, and is likely
to continue to experience, a significant clinical improvement in his or her
mental state as a result of the treatment or nontreatment directed by the durable
power of attorney for health care, or that the patient has regained competence,
then the court shall enter an order denying and dismissing the petition.
(2)
If the court concludes that the person has not experienced a
significant clinical improvement in his or her mental state, and remains
incompetent then the court shall consider the remaining evidence under the
factors described in subdivisions 7627(c)(1)-(5) of this title and render a
decision on whether the person should receive medication.
[Repealed.]
(d)(1)
The Commissioner of Mental Health shall develop a protocol for use
by designated hospitals for the purpose of educating hospital staff on the use
and applicability of advance directives pursuant to chapter 231 of this title and
other
written
or
oral
expressions
of
treatment
preferences
pursuant
to
subsection 7627(b) of this title.
(2)
Prior to a patient’s discharge or release, a hospital shall provide
information
to
a
patient
in
the
custody
or
temporary custody
of
the
Commissioner regarding advance directives, including relevant information
developed by the Vermont Ethics Network and Office of the Mental Health
Care Ombudsman.
Sec. 15.
18 V.S.A. § 7627 is amended to read:
§ 7627.
COURT FINDINGS; ORDERS
* * *
(b)
If a person who is the subject of a petition filed under section 7625 of
this title has not executed a durable power of attorney an advance directive, the
court Court shall follow the person’s competently expressed written or oral
preferences
regarding
medication,
if
any,
unless
the
commissioner
- 2843 -
Commissioner demonstrates that the person’s medication preferences have not
led to a significant clinical improvement in the person’s mental state in the past
within an appropriate period of time.
(c) If the court Court finds that there are no medication preferences or that
the person’s medication preferences have not led to a significant clinical
improvement in the person’s mental state in the past within an appropriate
period of time, the court Court shall consider at a minimum, in addition to the
person’s expressed preferences, the following factors:
(1)
The the person’s religious convictions and whether they contribute
to the person’s refusal to accept medication.;
(2)
The the impact of receiving medication or not receiving medication
on the person’s relationship with his or her family or household members
whose opinion the court Court finds relevant and credible based on the nature
of the relationship.;
(3)
The the likelihood and severity of possible adverse side-effects side
effects from the proposed medication.;
(4)
The the risks and benefits of the proposed medication and its
effect on:
(A)
the person’s prognosis; and
(B)
the person’s health and safety, including any pregnancy.; and
(5)
The the various treatment alternatives available, which may or may
not include medication.
(d)
As
a
threshold
matter,
the
Court
shall
consider
the
person’s
competency.
If the court Court finds that the person is competent to make a
decision regarding the proposed treatment or that involuntary medication is not
supported by the factors in subsection (c) of this section, the court Court shall
enter a finding to that effect and deny the petition.
(e)
As
a
threshold
matter,
the
Court
shall
consider
the
person’s
competency.
If the court Court finds that the person is incompetent to make a
decision regarding the proposed treatment and that involuntary medication is
supported by the factors in subsection (c) of this section, the court Court shall
make specific findings stating the reasons for the involuntary medication by
referencing those supporting factors.
(f)(1)
If the court Court grants the petition, in whole or in part, the court
Court shall enter an order authorizing the commissioner Commissioner to
administer involuntary medication to the person.
The order shall specify the
types of medication, the permitted dosage range, length of administration, and
- 2844 -
method of administration for each.
The order for involuntary medication shall
not include electric convulsive therapy, surgery, or experimental medications.
Long-acting injections and nasogastric intubation shall not be ordered without
clear and convincing evidence, particular to the patient, that these treatments
are appropriate.
(2)
The order shall require the person’s treatment provider to conduct
monthly weekly reviews of the medication to assess the continued need for
involuntary medication, the effectiveness of the medication, the existence of
any side effects, and whether the patient has become competent pursuant to
subsection 7625(c) of this title, and shall document this review in detail in the
patient’s
chart and
provide
the
person’s
attorney
with
a
copy
of
the
documentation within five days of its production.
(g)
For a person receiving treatment pursuant to an order of hospitalization,
the commissioner Commissioner may administer involuntary medication as
authorized by this section to the person for up to 90 days, unless the court
Court finds that an order is necessary for a longer period of time. Such an
order
shall
not
be
longer
than
the
duration
of
the
current
order
of
hospitalization.
If at any time a treatment provider finds that a person subject
to an order for involuntary medication has become competent pursuant to
subsection 7625(c) of this title, the order shall no longer be in effect.
* * *
Sec. 16.
18 V.S.A. § 7629 is amended to read:
§ 7629.
LEGISLATIVE INTENT
(a)
It is the intention of the general assembly to recognize the right of a
legally competent person to determine whether or not to accept medical
treatment,
including
involuntary
medication,
absent
an
emergency
or
a
determination that the person is incompetent and lacks the ability to make a
decision and appreciate the consequences.
The State of Vermont recognizes
the fundamental right of an adult to determine the extent of health care the
individual will receive, including treatment provided during periods of lack of
competency that the individual expressed a desire for when he or she was
competent.
(b)
This act protects this right through a judicial proceeding prior to the use
of nonemergency involuntary medication and by limiting the duration of an
order for involuntary treatment to no more than one year. The least restrictive
conditions consistent with the person’s right to adequate treatment shall be
provided in all cases.
The General Assembly adopts the goal of high-quality,
patient-centered health care, which the Institute of Medicine defines as
―providing care that is respectful of and responsive to individual patient
- 2845 -
preferences, needs, and values and ensuring that patient values guide all
clinical decisions.‖
(c)
It is the policy of the general assembly General Assembly to work
towards toward a mental health system that does not require coercion or the
use of involuntary medication when a person is opposing it.
The distress and
insult to human dignity that results from compelling a person to participate in
medical procedures against his or her will are real regardless of how poorly
the person may understand the procedures or how confused or mistaken the
person may be about the procedures.
(d)
This act will render the J. L. v. Miller consent judgment no longer
applicable.
This chapter protects the rights and values described in this section
through a judicial process to determine competence prior to an order for
nonemergency involuntary medication and by limiting the duration of an order
for involuntary treatment to no more than one year.
The least restrictive order
consistent with the person’s right to adequate treatment shall be provided in all
cases.
Sec. 17.
18
V.S.A. § 9701 is amended to read:
§ 9701.
DEFINITIONS
As used in this chapter:
* * *
(21)
―Ombudsman‖ means an individual appointed as a long-term care
ombudsman
under
the
Program
contracted
through the
Department
of
Disabilities, Aging, and Independent Living pursuant to the Older Americans
Act of 1965, as amended or the agency designated as the Office of the Mental
Health Care Ombudsman Pursuant to section 7259 of this title.
* * *
(32)
―Patient
representative‖
means
the
mental
health
patient
representative established by section 7253 of this title.
Sec. 18.
18 V.S.A. § 9703 is amended to read:
§ 9703.
FORM AND EXECUTION
* * *
(d)
An advance directive shall not be effective if, at the time of execution,
the principal is being admitted to or is a resident of a nursing home as defined
in 33 V.S.A. § 7102 or a residential care facility unless an ombudsman, a
patient representative, a recognized member of the clergy, an attorney licensed
to practice in this state State, or a probate division of the superior court Probate
Division of the Superior Court designee signs a statement affirming that he or
she has explained the nature and effect of the advance directive to the
- 2846 -
principal.
It is the intent of this subsection to ensure that residents of nursing
homes and residential care facilities are willingly and voluntarily executing
advance directives.
(e)
An advance directive shall not be effective if, at the time of execution,
the principal is being admitted to or is a patient in a hospital, unless an
ombudsman, a patient representative, a recognized member of the clergy, an
attorney licensed to practice in this state State, a probate division of the
superior
court Probate
Division
of
the Superior
Court designee,
or an
individual designated under subsection 9709(c) of this title by the hospital
signs a statement that he or she has explained the nature and effect of the
advance directive to the principal.
* * *
Sec. 19.
18 V.S.A. § 9706(c) is amended to read:
(c)
Upon a determination of need by the principal’s clinician, or upon the
request of the principal, agent, guardian, ombudsman, a patient representative,
health care provider, or any interested individual, the principal’s clinician,
another clinician, or a clinician’s designee shall reexamine the principal to
determine whether the principal has capacity.
The clinician shall document the
results of the reexamination in the principal’s medical record and shall make
reasonable efforts to notify the principal and the agent or guardian, as well as
the individual who initiated the new determination of capacity, of the results of
the reexamination, if providing such notice is consistent with the requirements
of HIPAA.
Sec. 20.
18 V.S.A. § 9707(h) is amended to read:
(h)(1)
An advance directive executed in accordance with section 9703 of
this title may contain a provision permitting the agent, in the event that the
principal lacks
capacity, to
authorize or withhold health care over the
principal’s objection.
In order to be valid, the provision shall comply with the
following requirements:
(A)
An agent shall be named in the provision.
(B)
The agent shall accept in writing the responsibility of authorizing
or withholding health care over the principal’s objection in the event the
principal lacks capacity.
(C)
A clinician for the principal shall sign the provision and affirm
that the principal appeared to understand the benefits, risks, and alternatives to
the health care being authorized or rejected by the principal in the provision.
(D)(i)
An ombudsman, a patient representative recognized member
of the clergy, attorney licensed to practice law in this state State, or probate
- 2847 -
division of the superior court Probate Division of the Superior Court designee
shall sign a statement affirming that he or she has explained the nature and
effect of the provision to the principal, and that the principal appeared to
understand the explanation and be free from duress or undue influence.
(ii)
If the principal is a patient in a hospital when the provision is
executed, the ombudsman, patient representative recognized member of the
clergy, attorney, or probate division of the superior court Probate Division of
the Superior Court designee shall be independent of the hospital and not an
interested individual.
(E)
The provision shall specify the treatments to which it applies, and
shall include an explicit statement that the principal desires or does not desire
the proposed treatments even over the principal’s objection at the time
treatment is being offered or withheld.
The provision may include a statement
expressly granting to the health care agent the authority to consent to the
principal’s voluntary hospitalization, and to agree that the principal’s discharge
from the hospital may be delayed, pursuant to section 8010 of this title.
(F)
The provision shall include an acknowledgment that the principal
is knowingly and voluntarily waiving the right to refuse or receive treatment at
a time of incapacity, and that the principal understands that a clinician will
determine capacity.
(2)
A provision executed in compliance with subdivision (1) of this
subsection shall be effective when the principal’s clinician and a second
clinician have determined pursuant to subdivision 9706(a)(1) of this title that
the principal lacks capacity.
(3)
If an advance directive contains a provision executed in compliance
with this section:
(A)
The agent may, in the event the principal lacks capacity, make
health care decisions over the principal’s objection, provided that the decisions
are made in compliance with subsection 9711(d) of this title.
(B)
A clinician shall follow instructions of the agent authorizing or
withholding health care over the principal’s objection.
Sec. 21.
18 V.S.A. § 9718(a) is amended to read:
(a)
A petition may be filed in probate division of the superior court Probate
Division of the Superior Court under this section by:
(1)
a principal, guardian, agent, ombudsman, a patient representative, or
interested individual other than one identified in an advance directive, pursuant
to subdivision 9702(a)(10) of this title, as not authorized to bring an action
under this section;
- 2848 -
(2)
a social worker or health care provider employed by or directly
associated with the health care provider, health care facility, or residential care
facility providing care to the principal;
(3)
the defender general Defender General if the principal is in the
custody of the department of corrections Department of Corrections;
(4)
a representative of the state-designated State-designated protection
and advocacy system if the principal is in the custody of the department of
health Department of Health; or
(5)
an individual or entity identified in an advance directive, pursuant to
subdivision 9702(a)(10) of this title, as authorized to bring an action under this
section.
Sec. 22.
Rule 12 of the Vermont Rules for Family Proceedings is amended to
read:
Rule 12.
STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT
(a)
Automatic Stay Prior to Appeal; Exceptions.
(1)
Automatic Stay.
Except as provided in paragraph (2) of this
subdivision and in subdivision (c), no execution shall issue upon a judgment
nor shall proceedings be taken for its enforcement until the expiration of
30 days after its entry or until the time for appeal from the judgment as
extended by Appellate Rule 4 has expired.
(2)
Exceptions.
Unless otherwise ordered by the court, none of the
following orders shall be stayed during the period after its entry and until an
appeal is taken:
(A)
In an action under Rule 4 of these rules, an order relating to
parental rights and responsibilities and support of minor children or to separate
support of a spouse (including maintenance) or to personal liberty or to the
dissolution of marriage;
(B)
An order of involuntary treatment, involuntary medication,
nonhospitalization, or hospitalization, in an action pursuant to 18 V.S.A.
§§ 7611-7623 chapter 181;
(C)
Any order of disposition in a juvenile case, including an order
terminating residual parental rights; or
(D)
Any order in an action under Rule 9 of these rules for prevention
of abuse, including such an action that has been consolidated or deemed
consolidated with a proceeding for divorce or annulment pursuant to Rule 4(n).
The provisions of subdivision (d) of this rule govern the modification or
- 2849 -
enforcement of the judgment in an action under Rule 4 of these rules, during
the pendency of an appeal.
* * *
(d)
Stay Pending Appeal.
(1)
Automatic Stay.
In any action in which automatic stay prior to
appeal is in effect pursuant to paragraph (1) or subdivision (a) of this rule, the
taking of an appeal from a judgment shall operate as a stay of execution upon
the judgment during the pendency of the appeal, and no supersedeas bond or
other security shall be required as a condition of such stay.
(2)
Other Actions.
(A)
When an appeal has been taken from judgment in an action under
Rule 4 of these rules in which no stay pursuant to paragraph (1) of
subdivision (a) of this rule is in effect, the court in its discretion may, during
the pendency of the appeal, grant or deny motions for modification or
enforcement of that judgment.
(B)(i)
When an appeal has been taken from an order for involuntary
treatment, nonhospitalization, or hospitalization or involuntary treatment, in an
action pursuant to chapter 181 of Title 18 V.S.A. chapter 181, the court in its
discretion may, during the pendency of the appeal, grant or deny applications
for continued treatment, modify its order, or discharge the patient, as provided
in 18 V.S.A. §§ 7617, 7618, 7620, and 7621.
(ii)(I)
If an order of involuntary medication is appealed, the
appellant may file a motion in the Family Division to stay the order during the
pendency of the appeal.
A motion to stay filed under this subdivision shall
stay the involuntary medication order while the motion to stay is pending.
(II)
The Family Division’s ruling on a motion to stay filed
under subdivision (I) of this subdivision (ii) may be modified or vacated by the
Supreme Court upon motion by a party filed within seven days after the ruling
is issued.
If the appellant is the moving party, the order for involuntary
medication shall remain stayed until the Supreme Court rules on the motion to
vacate or modify the stay.
A motion to vacate or modify a stay under this
subdivision shall be determined by a single Justice of the Supreme Court, who
may hear the matter or at his or her discretion refer it to the entire Supreme
Court for hearing.
No further appeal may lie from the ruling of a single Justice
in matters to which this subdivision applies.
The motion shall be determined
as soon as practicable and to the extent possible shall take priority over other
matters.
* * *
Sec. 23.
REPORT; EMERGENCY INVOLUNTARY PROCEDURES
- 2850 -
On or before January 15, 2015, the Office of Legislative Council shall
submit a report to the House Committee on Human Services and to the Senate
Committee on Health and Welfare that:
(1)
identifies provisions in 2012 Acts and Resolves No. 79 which
require that protections for psychiatric hospital patients meet or exceed those at
the former Vermont State Hospital; and
(2)
identifies policies that may require clarification of legislative intent
in order for the Department of Mental Health to proceed with rulemaking
pursuant to 2012 Acts and Resolves No.79, Sec. 33a.
Sec. 24.
AVAILABILITY OF PSYCHIATRISTS FOR EXAMINATIONS
The Agency of Human Services shall ensure that Vermont Legal Aid’s
Mental Health Law Project has a sufficient number of psychiatrists to conduct
psychiatric examinations pursuant to 18 V.S.A. § 7614 in the time frame
established by 18 V.S.A. § 7615.
Sec.
25.
LEGISLATIVE
COUNCIL
STATUTORY
REVISION
AUTHORITY
The Office of Legislative Council, in its statutory revision capacity, is
authorized and directed to make such amendments to the Vermont Statutes
Annotated as are necessary to effect the purpose of this act, including, where
applicable, substituting the words ―application for involuntary medication‖ and
―application,‖
as
appropriate,
for
the
words
―petition
for
involuntary
medication‖ and ―petition.‖
Sec. 26.
EFFECTIVE DATE
This act shall take effect on July 1, 2014.
(Committee vote: 8-0-3 )
(For text see Senate Journal 2/26/2014 & 2/27/2014 )
Amendment to be offered by Reps. Donahue of Northfield, Pugh of
South Burlington, Batchelor of Derby, Burditt of West Rutland, Conquest
of Newbury, Donaghy of Poultney, Fay of St. Johnsbury, Frank of
Underhill, French of Randolph, Goodwin of Weston, Grad of Moretown,
Haas of Rochester, Koch of Barre Town, Krowinski of Burlington,
Lippert of Hinesburg, Marek of Newfane, McFaun of Barre Town,
Mrowicki of Putney, O’Brien of Richmond, Strong of Albany, Toll of
Danville, Waite-Simpson of Essex, and Wizowaty of Burlington to S. 287
By inserting a new Sec. 28 after Sec. 27 to read as follows:
Sec. 28.
SOTERIA HOUSE
- 2851 -
If the Commissioner of Mental Health determines that Soteria House is
available to accept residents prior to January 1, 2015 and there are funds
available in the Department’s budget to do so, the Commissioner shall
prioritize the opening of Soteria House.
and by renumbering the remaining section to be Sec. 29.
Amendment to be offered by Reps. Donahue of Northfield, Batchelor of
Derby, French of Randolph, Haas of Rochester, McFaun of Barre Town,
and Pugh of South Burlington to S. 287
First:
By striking Sec. 1 in its entirety and inserting in lieu thereof a new
Sec. 1 as follows:
Sec. 1.
18 V.S.A. § 7101 is amended to read;
§ 7101.
DEFINITIONS
As used in this part of this title, the following words, unless the context
otherwise requires, shall have the following meanings:
* * *
(9)
―Interested party‖ means a guardian, spouse, parent, adult child,
close adult relative, a responsible adult friend, or person who has the individual
in his or her charge or care.
It also means a mental health professional, a law
enforcement officer, a licensed physician, or a head of a hospital, a selectman,
a town service officer, or a town health officer.
* * *
(29)
―Peer‖ means an individual who has a personal experience of living
with a mental health condition or psychiatric disability.
(30)
―Peer services‖ means support services provided by trained peers or
peer-managed organizations focused on helping individuals with mental health
and other co-occurring conditions to support recovery.
Second:
By adding a new Sec. 2 after Sec. 1 to read as follows:
Sec. 2.
18 V.S.A. § 7252 is amended to read:
§ 7252.
DEFINITIONS
As used in this chapter:
* * *
(10)
―Peer‖ means an individual who has a personal experience of living
with a mental health condition or psychiatric disability.
[Repealed.]
(11)
―Peer services‖ means support services provided by trained peers or
peer-managed organizations focused on helping individuals with mental health
- 2852 -
and other co-occurring conditions to support recovery.
[Repealed.]
* * *
and by renumbering the remaining sections accordingly
Third:
In the new Sec. 8, 18 V.S.A. § 7508, by striking out subdivision
(e)(4) in its entirety and inserting in lieu thereof the following:
(4)
A person held for an emergency examination may be admitted to an
appropriate hospital at any time.
Fourth:
In the new Sec. 9, 18 V.S.A. § 7509, in subsection (b), by striking
out ―the presence‖ before ―the peer support person‖.
Fifth:
In the new Sec. 12, 18 V.S.A. § 7615, by striking subdivision
(a)(2)(A) in its entirety and inserting in lieu thereof the following:
(2)(A)
The applicant or a person who is certified as a person in need of
treatment pursuant to section 7508 of this title may file a motion to expedite
the hearing.
The motion shall be supported by an affidavit, and the Court shall
rule on the motion on the basis of the filings without holding a hearing.
The
Court:
(i)
shall grant the motion if it finds that the person demonstrates a
significant risk of causing the person or others serious bodily injury as defined
in 13 V.S.A. § 1021 even while hospitalized, and clinical interventions have
failed to address the risk of harm to the person or others;
(ii)
may grant the motion if it finds that the person has received
involuntary medication pursuant to section 7624 of this title during the past
two years and, based upon the person’s response to previous and ongoing
treatment, there is good cause to believe that additional time will not result in
the person establishing a therapeutic relationship with providers or regaining
competence.
Sixth:
In the new Sec. 13, 18 V.S.A. § 7624, in subdivision (c)(3), by
striking out ―competency‖ and inserting in lieu thereof competence.
Seventh:
In the new Sec. 16, 18 V.S.A. § 7627, in subdivision (f)(1), by
striking out the last sentence and inserting in lieu thereof the following:
A long-acting injection shall not be ordered without clear and convincing
evidence, particular to the patient, that this treatment is the most appropriate
under the circumstances.
Eighth:
In the new Sec. 17, 18 V.S.A. § 7629, in subsection (c), in the first
sentence, by striking out ―involuntary‖ before ―medication‖.
Ninth:
In the new Sec. 18, 18 V.S.A. § 9701, in subdivision (21), by
- 2853 -
striking out ―Pursuant‖ and inserting in lieu thereof pursuant.
Tenth:
By inserting a new Sec. 27 after Sec. 26 to read as follows:
Sec. 27.
1998 Acts and Resolves No. 114, Sec. 6 is amended to read:
Sec. 6.
STUDY AND REPORT
(a)
An annual independent study shall be commissioned by the department
of developmental and mental health services Department of Mental Health
which shall:
(1)
evaluate and critique the performance of the institutions and staff of
those institutions that are implementing the provisions of this act;
(2)
include interviews with persons subjected to orders of involuntary
medication subject to proceedings under 18 V.S.A. § 7624, regardless of
whether involuntarily medicated, and their families on the outcome and effects
of the order;
(3)
include the steps taken by the department Department to achieve a
mental health system free of coercion; and
(4)
include any recommendations to change current practices or statutes.
(b)
The person who performs the study shall prepare a report of the results
of the study, which shall be filed with the general assembly General Assembly
and the department Department annually on or before January 15.
(c)
Interviews with patients pursuant to this section may be conducted with
the assistance of the mental health patient representative established in
18 V.S.A. § 7253.
and by renumbering the remaining section to be Sec. 28.
Eleventh:
By striking out renumbered Sec. 28 in its entirety and inserting in
lieu thereof the following:
Sec. 28.
EFFECTIVE DATES
(a)
Except
for
Secs.
6
(application
and
certificate
for
emergency
examination), 7 (warrant and certificate for emergency examination), and 8
(emergency examination and second certification), this act shall take effect on
July 1, 2014.
(b)
Secs. 6–8 shall take effect on November 1, 2014.
- 2854 -
S. 295
An act relating to pretrial services, risk assessments, and criminal justice
programs
Rep.
Haas
of
Rochester,
for
the
Committee
on
Human
Services,
recommends that the House propose to the Senate that the bill be amended by
striking all after the enacting clause and inserting in lieu thereof the following:
Sec. 1.
LEGISLATIVE FINDINGS
(a)
It is the intent of the General Assembly that law enforcement officials
and criminal justice professionals develop and maintain programs at every
stage of the criminal justice system to provide alternatives to a traditional
punitive criminal justice response for people who, consistent with public
safety, can effectively and justly benefit from those alternative responses.
These programs shall be reflective of the goals and principles of restorative
justice pursuant to 28 V.S.A. § 2a.
Commonly referred to as the sequential
intercept model, this approach was designed to identify five points within the
criminal
justice
system
where
innovative
approaches
to
offenders
and
offending behavior could be taken to divert individuals away from a traditional
criminal justice response to crime.
These intercept points begin in the
community with law enforcement interaction with citizens, proceed through
arrest, the judicial process, and sentencing, and conclude with release back into
communities.
Alternative justice programs may include the employment of
police-social
workers,
community-based
restorative
justice
programs,
community-based dispute resolution, precharge programs, pretrial services and
case management, recovery support, DUI and other drug treatment courts,
suspended fine programs, and offender reentry programs.
(b)
Research
shows
the
risk-need-responsivity
model
approach
to
addressing criminal conduct is successful at reducing recidivism.
The model’s
premise is that the risk and needs of a person charged with or convicted of a
criminal offense should determine the strategies appropriate for addressing the
person’s criminogenic factors.
(c)
Some
studies
show
that
incarceration
of
low-risk
offenders
or
placement of those offenders in programs or supervision designed for high-risk
offenders may increase the likelihood of recidivism.
(d)
The General Assembly recommends use of evidence-based risk
assessments
and
needs
screening
tools
for
eligible
offenses
to
provide
information to the Court for the purpose of determining bail and appropriate
conditions of release and informing decisions by the State’s Attorney and the
Court related to a person’s participation and level of supervision in an
alternative justice program.
- 2855 -
(e)
As used in this act:
(1)
―Clinical assessment‖ means, after a client has been screened, the
procedures by which a licensed or otherwise approved counselor identifies and
evaluates an individual’s strengths, weaknesses, problems, and needs for the
development of a treatment plan.
(2)
―Needs screening‖ means a preliminary systematic procedure to
evaluate the likelihood that an individual has a substance abuse or a mental
health condition.
(3)
―Risk assessment‖ means a pretrial assessment that is predictive of a
person’s failure to appear in court and risk of violating pretrial conditions of
release with a new alleged offense.
(f)
The General Assembly intends this act to be a continuation of justice
reinvestment
efforts
initiated
in
2007
by
the
Legislative,
Judicial,
and
Executive Branches.
Justice reinvestment is a data-driven approach to improve
public safety, reduce corrections and related criminal justice spending, and
reinvest savings
in
strategies
that
can
decrease
crime
and
strengthen
communities.
(g)
Buprenorphine/Naloxone (Suboxone or Subutex) is a well-known
medication used in the treatment of opioid addiction.
Vermont spends
$8.3 million in Medicaid funds annually on these drugs.
As medicated-assisted
treatment for opiate addiction has increased substantially in the last several
years, so has illegal diversion of these drugs and their misuse.
Suboxone is
currently the number one drug smuggled into Vermont correctional facilities
and evidence suggests that the nonmedical use of such drugs is gaining in
popularity.
The General Assembly urges the administration to prioritize efforts
to ensure that people with opiate addictions are provided access to necessary
medication, while taking all possible measures to prevent the diversion and
misuse of these drugs, including working with drug manufacturers.
(h)
Approximately 54,000 Vermonters have abused, or been dependent on,
alcohol or illicit drugs in the past year, according to the current National
Survey on Drug Use and Health.
More people abuse or are dependent on
alcohol (approximately 39,000) than all illicit drugs combined (18,000).
Many
Vermonters struggle with both alcohol and illicit drugs.
Substance abuse is
expensive, and not solely due to the cost of providing treatment.
Research
indicates that $1.00 invested in addiction treatment saves between $4.00 and
$7.00 in reduced drug-related crime, criminal justice costs, and theft.
Earlier
intervention to provide services before major problems develop can save even
more.
- 2856 -
(i)
According to the Agency of Human Services’ Report on Substance
Abuse Continuum of Services and Recommendations, dated January 15, 2014,
despite the number of people with substance use disorders, this condition is
significantly undertreated for many reasons.
In addition, it reports that one of
the challenges associated with attracting and retaining qualified individuals to
the field of substance abuse treatment and prevention is that there are
insufficient training opportunities, no opportunities for private practitioner
Licensed Alcohol and Drug Counselors (LADC) to receive payment for
providing services to Medicaid-eligible patients, and low wages for LADCs
working in community provider settings.
Sec. 2.
13 V.S.A. § 7554c is added to read:
§ 7554c.
PRETRIAL RISK ASSESSMENTS; NEEDS SCREENINGS
(a)(1)
The objective of a pretrial risk assessment is to provide information
to the Court for the purpose of determining whether a person presents a risk of
nonappearance or a threat to public safety, so the Court can make an
appropriate order concerning bail and conditions of pretrial release.
(2)
The objective of a pretrial needs screening is to obtain a preliminary
indication of whether a person has a substantial substance abuse or mental
health issue that would warrant a subsequent court order for a more detailed
clinical assessment.
(3)
Participation in a risk assessment or needs screening pursuant to this
section does not create any entitlement for the assessed or screened person.
(b)(1)
A person whose offense or status falls into any of the following
categories shall be offered a risk assessment and, if deemed appropriate by the
pretrial monitor, a needs screening prior to arraignment:
(A)
misdemeanor drug offenses cited into court;
(B)
felony drug offenses cited into court;
(C)
felonies that are not listed crimes cited into court;
(D)
persons who are arrested and lodged and unable to post bail
within 24 hours of lodging, excluding persons who are charged with an offense
for which registration as a sex offender is required upon conviction pursuant to
subchapter 3 of chapter 167 of this title or an offense punishable by up to life
imprisonment; and
(E)
persons not charged with a listed crime who are identified by law
enforcement, the prosecution, the defense, probation and parole, the Court, a
treatment provider, or a family member or friend as having a substantial
substance abuse or mental health issue.
- 2857 -
(2)
Participation in an assessment or screening shall be voluntary.
(3)
In the event an assessment or screening cannot be obtained prior to
arraignment, the Court shall direct the assessment and screening to be
conducted as soon as practicable.
(4)
A person who qualifies pursuant to subdivision (1)(A)–(E) of this
subsection and who has an additional pending charge or a violation of
probation shall not be excluded from being offered a risk assessment or needs
screening unless the other charge is a listed crime as defined in section 5301 of
this title.
(5)
Nothing in this section shall be construed to limit the Court’s
authority to order an assessment or screening as a condition of release under
section 7554 of this title.
(6)
The Administrative Judge and Court Administrator, in consultation
with the Secretary of Human Services and the Commissioner of Corrections,
shall develop a statewide plan for the phased, consistent rollout of the
categories identified in subdivisions (1)(A) through (E) of this subsection.
All
persons whose offense or status falls into one of the categories shall be eligible
for a risk assessment or needs screening on or before January 1, 2016.
Prior to
that date, a person shall not be guaranteed the offer of a risk assessment or
needs screening solely because the person’s offense or status falls into one of
the categories.
Criminal justice professionals charged with implementation
shall adhere to the plan.
(c)
The results of the assessment and screening shall be provided to the
prosecutor who, upon filing a criminal charge against the person, shall provide
the results to the person and his or her attorney and the Court.
(d)(1)
In consideration of the assessment and screening, the Court may
order the person to comply with any of the following conditions:
(A)
meet with a pretrial monitor on a schedule set by the Court;
(B)
participate in a clinical assessment by a substance abuse
treatment provider;
(C)
comply with any level of treatment or recovery support
recommended by the provider;
(D)
provide confirmation to the pretrial monitor of the person’s
attendance and participation in the clinical assessment and any recommended
treatment; and
(E)
provide confirmation to the pretrial monitor of the person’s
compliance with any other condition of release.
- 2858 -
(2)
If possible, the Court shall set the date and time for the assessment at
arraignment.
In the alternative, the pretrial monitor shall coordinate the date,
time, and location of the clinical assessment and advise the Court, the person
and his or her attorney, and the prosecutor.
(3)
The conditions authorized in subdivision (1) of this subsection shall
be in addition to any other conditions of release permitted by law and shall not
limit the Court in any way.
(e)(1)
Information obtained from the person during the risk assessment or
needs screening shall be exempt from public inspection and copying under the
Public Records Act and, except as provided in subdivision (2) of this
subsection, only may be used for determining bail, conditions of release, and
appropriate programming for the person in the pending case.
The immunity
provisions of this subsection apply only to the use and derivative use of
information gained as a proximate result of the risk assessment or needs
screening.
(2)
The person shall retain all of his or her due process rights throughout
the assessment and screening process and may release his or her records at his
or her discretion.
(3)
The Vermont Supreme Court and the Department of Corrections
shall
adopt
rules
related
to
the
custody,
control,
and
preservation
of
information consistent with the confidentiality requirements of this section.
(f)
The Vermont Supreme Court or its designee shall develop guidelines for
the appropriate use of court-ordered pretrial monitoring services based upon
the risk and needs of the defendant.
Sec. 3.
RISK ASSESSMENT AND NEEDS SCREENING TOOLS AND
SERVICES
(a)
The Department of Corrections shall select risk and needs assessment
and screening tools for use in the various decision points in the criminal justice
system,
including
pretrial,
community
supervision
screening,
community
supervision, prison screening, prison intake, and reentry.
The Department
shall validate the selected tools for the population in Vermont.
(b)
In selection and implementation of the tools, the Department shall
consider tools being used in other states and shall consult with and have the
cooperation of all criminal justice agencies.
(c)
The Department shall have the tools available for use on or before
September 1, 2014. The Department, the Judiciary, the Defender General, and
the Executive Director and the Department of State’s Attorneys and Sheriffs
shall conduct training on the risk assessment tools on or before December 15,
- 2859 -
2014.
(d)
The Department, in consultation with law enforcement agencies and the
courts, shall contract for or otherwise provide pretrial services described in this
section, including performance of risk assessments, needs screenings, and
pretrial monitoring.
(e)
Pretrial monitoring may include:
(1)
reporting to the Court concerning the person’s compliance with
conditions of release;
(2)
supporting the person in meeting the conditions imposed by the
Court, including the condition to appear in Court as directed;
(3)
identifying community-based treatment, rehabilitative services,
recovery supports, and restorative justice programs; and
(4)
supporting a prosecutor’s precharge program.
(f)
The Department, in consultation with the Judiciary and the Center for
Criminal Justice Research, shall develop and implement a system to evaluate
performance of the pretrial services described in this section and report to the
General Assembly annually on or before December 15.
(g)
The Secretary of Human Services, with staff and administrative support
from the Criminal Justice Capable Core Team, shall map services and assess
the impact of court referrals and the capacity of the current service provision
system in each region.
The Secretary, in collaboration with service providers
and other stakeholders, shall consider regional resources, including services for
assessment, early intervention, treatment, and recovery support.
Building on
existing models and data, the Secretary and the Criminal Justice Capable Core
Team shall develop recommendations for a system for referral based on the
appropriate level of need, identifying existing gaps to optimize successful
outcomes.
Funding models for those services shall be examined by the
appropriate State departments.
The recommendation for the system for referral
shall be inclusive of all initiatives within the Agency of Human Services,
including
those
within
the
Blueprint
for
Health
and
Screening, Brief
Intervention, and Referral for Treatment (SBIRT), as well as initiatives within
the Green Mountain Care Board and the State Innovation Model (SIM) grant.
* * * Alternative Justice Programs * * *
Sec. 4.
PROSECUTOR PRECHARGE PROGRAM GUIDELINES AND
REPORTING
(a)
The Department of State’s Attorneys and Sheriffs, in consultation with
the Judiciary and the Attorney General, shall develop broad guidelines for
- 2860 -
precharge programs to ensure there is probable cause and that there are
appropriate opportunities for victim input and restitution.
(b)
On or before October 1, 2014, and annually thereafter, the Executive
Director of the Department of State’s Attorneys and Sheriffs shall report to the
General Assembly detailing the alternative justice programs that exist in each
county together with the protocols for each program, the annual number of
persons served by the program, and a plan for how a sequential intercept model
can be employed in the county.
The report shall be prepared in cooperation
with the Director of Court Diversion, a co-chair of the Community Justice
Network of Vermont, and State, municipal, and county law enforcement
officials.
Sec. 5.
[Deleted.]
Sec. 6.
13 V.S.A. § 5362(c) is amended to read:
(c)
The Restitution Unit shall have the authority to:
* * *
(7)
Enter into a repayment contract with a juvenile or adult accepted into
a diversion program or alternative justice program and to bring a civil action to
enforce the contract when a diversion program has referred an individual
pursuant to 3 V.S.A. § 164a or an alternative justice program contract pursuant
to section 7554c of this title or a prosecutor precharge program.
Sec. 7.
13 V.S.A. § 5363(d)(2) is amended to read:
(2)
The Restitution Unit may make advances of up to $10,000.00
$5,000.00 under this subsection to the following persons or entities:
* * *
(B)
A victim who is a natural person or the natural person’s legal
representative in a case where the defendant, before or after an adjudication of
guilt, enters into a drug court contract or an alternative justice program contract
pursuant to section 7554c of this title or a prosecutor precharge program
requiring payment of restitution.
* * * Criminal Provisions * * *
Sec. 8.
18 V.S.A. § 4235b is added to read:
§ 4235b.
TRANSPORTATION OF DRUGS INTO THE STATE;
AGGRAVATING FACTOR
When imposing a sentence for a felony violation of dispensing or selling a
regulated drug in violation of this chapter, the Court shall consider whether the
- 2861 -
person knowingly and unlawfully transported the regulated drug into Vermont
with the intent to sell or dispense the drug.
Sec. 9.
13 V.S.A. § 1201 is amended to read:
§ 1201.
BURGLARY
(a)
A person is guilty of burglary if he or she enters any building or
structure knowing that he or she is not licensed or privileged to do so, with the
intent to commit a felony, petit larceny, simple assault, or unlawful mischief.
This provision shall not apply to a licensed or privileged entry, or to an entry
that takes place while the premises are open to the public, unless the person,
with the intent to commit a crime specified in this subsection, surreptitiously
remains in the building or structure after the license or privilege expires or
after the premises no longer are open to the public.
(b)
As used in this section, the words ―building,‖ ―structure,‖ and
―premises‖:
(1)
―Building,‖ ―premises,‖ and ―structure‖ shall, in addition to their
common meanings, include and mean any portion of a building, structure, or
premises which differs from one or more other portions of such building,
structure, or premises with respect to license or privilege to enter, or to being
open to the public.
(2)
―Occupied dwelling‖ means a building used as a residence, either
full-time or part-time, regardless of whether someone is actually present in the
building at the time of entry.
(c)(1)
A person convicted of burglary into an occupied dwelling shall be
imprisoned not more than 25 years or fined not more than $1,000.00, or both.
Otherwise, a person convicted of burglary shall be imprisoned not more than
15 years or fined not more than $1,000.00, or both.
(2)
When imposing a sentence under this section, the Court shall
consider whether, during commission of the offense, the person:
(A)
entered the building when someone was actually present;
(B)
used or threatened to use force against the occupant; or
(C)
carried a dangerous or deadly weapon, openly or concealed,
during the commission of the offense, and the person has not been convicted of
a violation of section 4005 of this title in connection with the offense.
Sec. 10.
DEPARTMENT OF PUBLIC SAFETY REPORT
The Department of Public Safety, in consultation with the Department of
Health, shall examine 18 V.S.A. § 4234 (depressant, stimulant, narcotic drug)
- 2862 -
for the purpose of establishing clear dosage amounts for narcotics as they
relate to unlawful possession, dispensing, and sale.
The Department shall
consider
section
4234
in
relation
to
18
V.S.A.
§ 4233
(heroin).
The
Department
shall
report
its
recommendations
to
the
Senate
and
House
Committees on Judiciary on or before December 15, 2014.
* * * Regulation of Opiates * * *
Sec. 11.
DVHA AUTHORITY; USE OF AVAILABLE SANCTIONS
The Department of Vermont Health Access shall use its authority to
sanction Medicaid-participating prescribers, whether practicing in or outside
the State of Vermont, operating in bad faith or not in compliance with State or
federal requirements.
Sec. 12.
CONTINUED MEDICATION-ASSISTED TREATMENT FOR
INCARCERATED PERSONS
(a)
The
Department
of
Corrections,
in
consultation
with
the
Medication-Assisted Treatment for Inmates Work Group created by 2013 Acts
and Resolves No. 67, Sec. 11, shall develop and implement a one-year
demonstration
project
to
pilot
the
continued
use
of
medication-assisted
treatment within Department facilities for detainees and sentenced inmates.
(b)
The pilot project shall offer continued medication-assisted treatment for
opioid dependence with methadone or buprenorphine to incarcerated persons
who were participating in medication-assisted treatment in the community
immediately prior to incarceration as follows:
(1)
for a period of 180 days from the date of incarceration for a person
held on detainee status, followed by a prescribed taper; or
(2)
for a period of one year from the date of incarceration for a person
serving a sentence, followed by a prescribed taper.
(c)
As
used
in
this
section,
―prescribed
taper‖
means
a
clinically
appropriate
medication
taper
that
is
designed
to
minimize
withdrawal
symptoms and limit avoidable suffering.
(d)
The Commissioner of Corrections shall publish an interim revision
memorandum
to
replace
Directive
363.01.
The
Medication-Assisted
Treatment for Inmates Work Group shall provide details of the demonstration
project, including:
(1)
an update on the implementation of the recommendations provided
in the ―Medication-Assisted Treatment for Inmates: Work Group Report
and Recommendations‖ submitted to the Vermont General Assembly on
November 26, 2013;
- 2863 -
(2)
medication-assisted treatment time frames;
(3)
Department protocols for detainees and inmates transitioning in and
out of treatment settings, or between correctional facilities and treatment
services;
(4)
protocols regarding medical tapers, detoxification, and withdrawal;
(5)
plans and timing for expansion of the pilot project; and
(6)
an evaluation plan that includes appropriate metrics for determining
treatment
efficacy,
reincarceration
episodes,
Department-
and
community-based collaboration challenges, and system costs.
(e)
On or before July 30, 2014, the Department shall enter into memoranda
of understanding with the Department of Health and with hub treatment
providers regarding ongoing medication-assisted treatment for persons in the
custody of the Department.
(f)
The Department shall collaborate with the Department of Health to
facilitate the provision of opioid overdose prevention training for persons who
are incarcerated and distribution of overdose rescue kits with naloxone at
correctional facilities to persons who are transitioning from incarceration back
into the community.
(g)
The Departments of Corrections and of Health shall continue the
Medication-Assisted Treatment for Inmates Work Group created by 2013 Acts
and Resolves No. 67, Sec. 11 to inform and monitor implementation of the
demonstration project.
The Departments shall evaluate the demonstration
project and provision of medication-assisted treatment to persons who are
incarcerated in Vermont and report their findings, including a proposed
schedule
of
expansion,
to
the
House
Committees
on
Corrections
and
Institutions, on Human Services, and on Judiciary and the Senate Committees
on Health and Welfare and on Judiciary on or before January 1, 2015.
Sec. 13.
VPMS QUERY; RULEMAKING
The Secretary of Human Services shall adopt rules requiring:
(1)
All Medicaid participating providers, whether licensed in or outside
Vermont, who prescribe buprenorphine or a drug containing buprenorphine to
a Vermont Medicaid beneficiary to query the Vermont Prescription Monitoring
System the first time they prescribe buprenorphine or a drug containing
buprenorphine for the patient and at regular intervals thereafter.
Regular
intervals shall exceed the requirements for other Schedule III pharmaceuticals,
and queries shall be done prior to prescribing a replacement prescription.
The
rules shall also include dosage thresholds, which may be exceeded only with
prior approval from the Chief Medical Officer of the Department of Vermont
- 2864 -
Health Access or designee.
(2)
All providers licensed in Vermont who prescribe buprenorphine or a
drug containing buprenorphine to a Vermont patient who is not a Medicaid
beneficiary to query the Vermont Prescription Monitoring System the first time
they prescribe buprenorphine or a drug containing buprenorphine for the
patient and at regular intervals thereafter.
Regular intervals shall exceed the
requirements for other Schedule III pharmaceuticals and queries shall be done
prior to prescribing a replacement prescription.
The rules shall also include
dosage thresholds.
Sec. 14.
MEDICATION-ASSISTED THERAPY; RULEMAKING
The
Commissioner
of
Health
shall
adopt
rules
relating
to
medication-assisted therapy for opioid dependence for physicians treating
fewer than 30 patients, which shall include a requirement that such physicians
ensure that their patients are screened or assessed to determine their need for
counseling and that patients who are determined to need counseling or other
support services are referred for appropriate counseling from a licensed clinical
professional or for other services as needed.
Sec. 15.
26 V.S.A. chapter 36, subchapter 8 is added to read:
Subchapter 8.
Naloxone Hydrochloride
§ 2080.
NALOXONE
HYDROCHLORIDE;
DISPENSING
OR
FURNISHING
(a)
The Board of Pharmacy shall adopt protocols for licensed pharmacists
to dispense or otherwise furnish naloxone hydrochloride to patients who do not
hold an individual prescription for naloxone hydrochloride.
Such protocols
shall be consistent with rules adopted by the Commissioner of Health.
(b)
Notwithstanding any provision of law to the contrary, a licensed
pharmacist may dispense naloxone hydrochloride to any person as long as the
pharmacist complies with the protocols adopted pursuant to subsection (a) of
this section.
Sec. 16.
33 V.S.A. § 813 is added to read:
§ 813.
MEDICAID PARTICIPATING PROVIDERS
The Department of Vermont Health Access shall grant authorization to a
licensed alcohol and drug abuse counselor to participate as a Medicaid
provider to deliver clinical and case
coordination services to Medicaid
beneficiaries, regardless of whether the counselor is a preferred provider.
Sec. 16a.
DEPARTMENT OF CORRECTIONS AND HEALTH CARE
- 2865 -
REFORM
(a)
The Agency of Human Services and its departments shall assist the
Department of Corrections in fully enacting the provisions of the Affordable
Care Act and Vermont’s health care reform initiatives as they pertain to
persons
in
the
criminal
justice
population,
including
access
to
health
information technology, the Blueprint for Health, Medicaid enrollment, health
benefit exchange, health plans, and other components under the Department of
Vermont Health Access that support and ensure a seamless process for reentry
to the community or readmission to a correctional facility.
(b)
The Department of Corrections shall include substance abuse services
in its request for proposal (RFP) process for inmate health services.
Through
the RFP, the Department shall require that substance abuse services be
provided to persons while incarcerated.
Sec. 17.
18 V.S.A. § 4254 is amended to read:
§ 4254.
IMMUNITY FROM LIABILITY
* * *
(d)
A person who seeks medical assistance for a drug overdose or is the
subject of a good faith request for medical assistance pursuant to subsection (b)
or (c) of this section shall not be subject to any of the penalties for violation of
13 V.S.A. § 1030 (violation of a protection order), for a violation of this
chapter or 7 V.S.A §§ 656 and 657, for being at the scene of the drug overdose,
or for being within close proximity to any person at the scene of the drug
overdose.
(e)
A person who seeks medical assistance for a drug overdose or is the
subject of a good faith request for medical assistance pursuant to subsection (b)
or (c) of this section shall not be subject to any sanction for a violation of a
condition of pretrial release, probation, furlough, or parole for a violation of
this chapter or 7 V.S.A §§ 656 and 657, for being at the scene of the drug
overdose, or for being within close proximity to any person at the scene of the
drug overdose.
* * *
Sec. 18.
AGENCY OF HUMAN SERVICES POSITION
One exempt position is created within the Agency of Human Services for
the purpose of overseeing the implementation of the pretrial services of
this act.
Sec. 19.
EFFECTIVE DATES
(a)
Secs. 2, 6, and 7 shall take effect on January 1, 2015.
- 2866 -
(b)
This section and Secs. 1 (legislative intent), 3 (risk assessment and
needs screening tools), 4 (prosecutor precharge programs and reporting),
10 (Department of Public Safety report), 13 (VPMS query; rulemaking),
14 (medication assisted therapy, rulemaking), and 17 (immunity from liability)
shall take effect on passage.
(c)
The remaining sections shall take effect on July 1, 2014.
(Committee vote: 10-0-1 )
(For text see Senate Journal 3/12/2014 )
Rep. Lippert of Hinesburg,
for the Committee on
Judiciary,
recommends
the bill ought to pass when amended as recommended by the Committee on
Human Services
and when further amended as follows:
Sec. 1.
LEGISLATIVE FINDINGS
(a)
It is the intent of the General Assembly that law enforcement officials
and criminal justice professionals develop and maintain programs at every
stage of the criminal justice system to provide alternatives to a traditional
punitive criminal justice response for people who, consistent with public
safety, can effectively and justly benefit from those alternative responses.
These programs shall be reflective of the goals and principles of restorative
justice pursuant to 28 V.S.A. § 2a.
Commonly referred to as the sequential
intercept model, this approach was designed to identify five points within the
criminal
justice
system
where
innovative
approaches
to
offenders
and
offending behavior could be taken to divert individuals away from a traditional
criminal justice response to crime.
These intercept points begin in the
community with law enforcement interaction with citizens, proceed through
arrest, the judicial process, and sentencing, and conclude with release back into
communities.
Alternative justice programs may include the employment of
police-social
workers,
community-based
restorative
justice
programs,
community-based dispute resolution, precharge programs, pretrial services and
case management, recovery support, DUI and other drug treatment courts,
suspended fine programs, and offender reentry programs.
(b)
Research
shows
the
risk-need-responsivity model
approach
to
addressing criminal conduct is successful at reducing recidivism.
The model’s
premise is that the risk and needs of a person charged with or convicted of a
criminal offense should determine the strategies appropriate for addressing the
person’s criminogenic factors.
(c)
Some
studies
show
that
incarceration
of
low-risk
offenders
or
placement of those offenders in programs or supervision designed for high-risk
offenders may increase the likelihood of recidivism.
- 2867 -
(d)
The General Assembly recommends use of evidence-based risk
assessments
and
needs
screening
tools
for
eligible
offenses
to
provide
information to the Court for the purpose of determining bail and appropriate
conditions of release and informing decisions by the State’s Attorney and the
Court related to a person’s participation and level of supervision in an
alternative justice program.
(e)
As used in this act:
(1)
―Clinical assessment‖ means the procedures, to be conducted after a
client has been screened, by which a licensed or otherwise approved counselor
identifies and evaluates and individual’s strengths, weaknesses, problems, and
needs for the development of a treatment plan.
(2)
―Needs screening‖ means a preliminary systematic procedure to
evaluate the likelihood that an individual has a substance abuse or a mental
health condition.
(3)
―Risk assessment‖ means a pretrial assessment that is designed to be
predictive of a person’s failure to appear in court and risk of violating pretrial
conditions of release with a new alleged offense.
(f)
The General Assembly intends this act to be a continuation of justice
reinvestment
efforts
initiated
in
2007
by
the
Legislative,
Judicial,
and
Executive Branches.
Justice reinvestment is a data-driven approach to improve
public safety, reduce corrections and related criminal justice spending, and
reinvest
savings
in
strategies
that
can
decrease
crime
and
strengthen
communities.
(g)
Buprenorphine/Naloxone (Suboxone or Subutex) is a well-known
medication used in the treatment of opioid addiction.
Vermont spends
$8.3 million in Medicaid funds annually on these drugs.
As medicated-assisted
treatment for opiate addiction has increased substantially in the last several
years, so has illegal diversion of these drugs and their misuse.
Suboxone is
currently the number one drug smuggled into Vermont correctional facilities
and evidence suggests that the nonmedical use of such drugs is gaining in
popularity.
The General Assembly urges the administration to prioritize efforts
to ensure that people with opiate addictions are provided access to necessary
medication, while taking all possible measures to prevent the diversion and
misuse of these drugs, including working with drug manufacturers.
(h)
Approximately 54,000 Vermonters have abused or been dependent on
alcohol or illicit drugs in the past year, according to the current National
Survey on Drug Use and Health.
More people abuse or are dependent on
alcohol (approximately 39,000) than all illicit drugs combined (18,000).
Many
Vermonters struggle with both alcohol and illicit drugs.
Substance abuse is
- 2868 -
expensive, and not solely due to the cost of providing treatment.
Research
indicates that $1.00 invested in addiction treatment saves between $4.00 and
$7.00 in reduced drug-related crime, criminal justice costs, and theft.
Earlier
intervention to provide services before major problems develop can save even
more.
(i)
According to the Agency of Human Services’ Report on Substance
Abuse Continuum of Services and Recommendations, dated January 15, 2014,
despite the number of people with substance use disorders, this condition is
significantly under-treated for many reasons.
In addition, it reports that one of
the challenges associated with attracting and retaining qualified individuals to
the field of substance abuse treatment and prevention is that there are
insufficient training opportunities, no opportunities for private practitioner
Licensed Alcohol and Drug Counselors (LADC) to receive payment for
providing services to Medicaid eligible patients, and low wages for LADCs
working in community provider settings.
Sec. 2.
13 V.S.A. § 7554c is added to read:
§ 7554c.
PRETRIAL RISK ASSESSMENTS; NEEDS SCREENINGS
(a)(1)
The objective of a pretrial risk assessment is to provide information
to the Court for the purpose of determining whether a person presents a risk of
nonappearance or a threat to public safety, so the Court can make an
appropriate order concerning bail and conditions of pretrial release.
(2)
The objective of a pretrial needs screening is to obtain a preliminary
indication of whether a person has a substantial substance abuse or mental
health issue that would warrant a subsequent court order for a more detailed
clinical assessment.
(3)
Participation in a risk assessment or needs screening pursuant to this
section does not create any entitlement for the assessed or screened person.
(b)(1)
A person whose offense or status falls into any of the following
categories shall be offered a risk assessment and, if deemed appropriate by the
pretrial monitor, a needs screening prior to arraignment:
(A)
misdemeanor drug offenses cited into court;
(B)
felony drug offenses cited into court;
(C)
felonies that are not listed crimes cited into court;
(D)
persons who are arrested and lodged and unable to post bail
within 24 hours of lodging, excluding persons who are charged with an offense
for which registration as a sex offender is required upon conviction pursuant to
subchapter 3 of chapter 167 of this title or an offense punishable by up to life
- 2869 -
imprisonment; and
(E)
persons not charged with a listed crime who are identified by law
enforcement, the prosecution, the defense, probation and parole personnel, the
Court, a treatment provider, or a family member or friend as having a
substantial substance abuse or mental health issue.
(2)
Participation in an assessment or screening shall be voluntary.
(3)
In the event an assessment or screening cannot be obtained prior to
arraignment, the Court shall direct the assessment and screening to be
conducted as soon as practicable.
(4)
A person who qualifies pursuant to subdivision (1)(A)–(E) of this
subsection and who has an additional pending charge or a violation of
probation shall not be excluded from being offered a risk assessment or needs
screening unless the other charge is a listed crime as defined in section 5301 of
this title.
(5)
Nothing in this section shall be construed to limit the Court’s
authority to order an assessment or screening as a condition of release under
section 7554 of this title.
(6)
The Administrative Judge and Court Administrator, in consultation
with the Secretary of Human Services and the Commissioner of Corrections,
shall develop a statewide plan for the phased, consistent rollout of the
categories identified in subdivisions (1)(A) through (E) of this subsection.
All
persons whose offense or status falls into one of the categories shall be eligible
for a risk assessment or needs screening on or before January 1, 2016.
Prior to
that date, a person shall not be guaranteed the offer of a risk assessment or
needs screening solely because the person’s offense or status falls into one of
the categories.
Criminal justice professionals charged with implementation
shall adhere to the plan.
(c)
The results of the assessment and screening shall be provided to the
prosecutor who, upon filing a criminal charge against the person, shall provide
the results to the person and his or her attorney and the Court.
(d)(1)
In consideration of the assessment and screening, the Court may
order the person to comply with any of the following conditions:
(A)
meet with a pretrial monitor on a schedule set by the Court;
(B)
participate in a clinical assessment by a substance abuse
treatment provider;
(C)
comply
with
any
level
of
treatment
or
recovery
support
recommended by the provider;
- 2870 -
(D)
provide confirmation to the pretrial monitor of the person’s
attendance and participation in the clinical assessment and any recommended
treatment; and
(E)
provide confirmation to the pretrial monitor of the person’s
compliance with any other condition of release.
(2)
If possible, the Court shall set the date and time for the assessment at
arraignment.
In the alternative, the pretrial monitor shall coordinate the date,
time, and location of the clinical assessment and advise the Court, the person
and his or her attorney, and the prosecutor.
(3)
The conditions authorized in subdivision (1) of this subsection shall
be in addition to any other conditions of release permitted by law and shall not
limit the Court in any way.
(e)(1)
Information obtained from the person during the risk assessment or
needs screening shall be exempt from public inspection and copying under the
Public Records Act and, except as provided in subdivision (2) of this
subsection, only may be used for determining bail, conditions of release, and
appropriate programming for the person in the pending case.
The immunity
provisions of this subsection apply only to the use and derivative use of
information gained as a proximate result of the risk assessment or needs
screening.
(2)
The person shall retain all of his or her due process rights throughout
the assessment and screening process and may release his or her records at his
or her discretion.
(3)
The Vermont Supreme Court in accordance with judicial rulemaking
as provided in 12 V.S.A. § 1 shall promulgate and the Department of
Corrections in accordance with the Vermont Administrative Procedure Act
pursuant to 3 V.S.A. chapter 25 shall adopt rules related to the custody,
control, and preservation of information consistent with the confidentiality
requirements of this section.
Emergency rules adopted prior to January 1,
2015 pursuant to this section shall be considered to meet the ―imminent peril‖
standard under 3 V.S.A. § 844(a).
(f)
The Administrative Judge shall develop guidelines for the appropriate
use of court-ordered pretrial monitoring services based upon the risk and needs
of the defendant.
Sec. 3.
RISK ASSESSMENT AND NEEDS SCREENING TOOLS AND
SERVICES
(a)
The Department of Corrections shall select risk and needs assessment
and screening tools for use in the various decision points in the criminal justice
- 2871 -
system,
including
pretrial,
community
supervision
screening,
community
supervision, prison screening, prison intake, and reentry.
(b)
In selection and implementation of the tools, the Department shall
consider tools being used in other states and shall consult with and have the
cooperation of all criminal justice agencies.
(c)
The Department shall have the tools available for use on or before
September 1, 2014.
The Department, the Judiciary, the Defender General, and
the Executive Director and the Department of State’s Attorneys and Sheriffs
shall conduct training on the risk assessment tools on or before December 15,
2014.
(d)
The Department, in consultation with law enforcement agencies and the
courts, shall contract for or otherwise provide pretrial services described in this
section, including performance of risk assessments, needs screenings, and
pretrial monitoring.
The contract shall include requirements to comply with
data collection and evaluation procedures.
(e)
Pretrial monitoring may include:
(1)
reporting to the Court concerning the person’s compliance with
conditions of release;
(2)
supporting the person in meeting the conditions imposed by the
Court, including the condition to appear in Court as directed;
(3)
identifying community-based treatment, rehabilitative services,
recovery supports, and restorative justice programs; and
(4)
supporting a prosecutor’s precharge program.
(f)(1)
The Department, in consultation with the Judiciary and the Crime
Research Group, shall develop and implement a system to evaluate goals and
performance of the pretrial services described in this section and report to the
General Assembly annually on or before December 15.
(2)
The
Agency
of
Human
Services,
in
consultation
with
the
Judiciary, shall ensure that a study is conducted to include an outcome study,
process evaluation and cost benefit analysis.
(g)
The Secretary of Human Services, with staff and administrative support
from the Criminal Justice Capable Core Team, shall map services and assess
the impact of court referrals and the capacity of the current service provision
system in each region.
The Secretary, in collaboration with service providers
and other stakeholders, shall consider regional resources, including services for
assessment, early intervention, treatment, and recovery support.
Building on
existing models and data, the Secretary and the Criminal Justice Capable Core
- 2872 -
Team shall develop recommendations for a system for referral based on the
appropriate level of need, identifying existing gaps to optimize successful
outcomes.
Funding models for those services shall be examined by the
appropriate State departments.
The recommendation for the system for referral
shall be inclusive of all initiatives within the Agency of Human Services,
including
those
within
the
Blueprint
for
Health
and
Screening, Brief
Intervention, and Referral for Treatment (SBIRT), as well as initiatives within
the Green Mountain Care Board and the State Innovation Model (SIM) grant.
* * * Alternative Justice Programs * * *
Sec. 4.
PROSECUTOR PRECHARGE PROGRAM GUIDELINES AND
REPORTING
(a) The Department of State’s Attorneys and Sheriffs, in consultation with
the Judiciary and the Attorney General, shall develop broad guidelines for
precharge programs to ensure there is probable cause and that there are
appropriate opportunities for victim input and restitution.
(b)
On or before October 1, 2014, and annually thereafter, the Executive
Director of the Department of State’s Attorneys and Sheriffs shall report to the
General Assembly detailing the alternative justice programs that exist in each
county together with the protocols for each program, the annual number of
persons served by the program, and a plan for how a sequential intercept model
can be employed in the county.
The report shall be prepared in cooperation
with the Director of Court Diversion, a co-chair of the Community Justice
Network of Vermont, and State, municipal, and county law enforcement
officials.
Sec. 5.
[Deleted.]
Sec. 6.
13 V.S.A. § 5362(c) is amended to read:
(c)
The Restitution Unit shall have the authority to:
* * *
(7)
Enter into a repayment contract with a juvenile or adult accepted into
a diversion program or alternative justice program and to bring a civil action to
enforce the contract when a diversion program has referred an individual
pursuant to 3 V.S.A. § 164a or an alternative justice program contract pursuant
to section 7554c of this title or a prosecutor precharge program.
Sec. 7.
13 V.S.A. § 5363(d)(2) is amended to read:
(2)
The Restitution Unit may make advances of up to $10,000.00
$5,000.00 under this subsection to the following persons or entities:
- 2873 -
* * *
(B)
A victim who is a natural person or the natural person’s legal
representative in a case where the defendant, before or after an adjudication of
guilt, enters into a drug court contract or an alternative justice program contract
pursuant to section 7554c of this title or a prosecutor precharge program
requiring payment of restitution.
* * * Criminal Provisions * * *
Sec. 8.
18 V.S.A. § 4235b is added to read:
§ 4235b.
TRANSPORTATION OF DRUGS INTO THE STATE;
AGGRAVATING FACTOR
When imposing a sentence for a felony violation of dispensing or selling a
regulated drug in violation of this chapter, the Court shall consider as an
aggravating factor whether the person knowingly and unlawfully transported
the regulated drug into Vermont.
Sec. 9.
13 V.S.A. § 1201 is amended to read:
§ 1201.
BURGLARY
(a)
A person is guilty of burglary if he or she enters any building or
structure knowing that he or she is not licensed or privileged to do so, with the
intent to commit a felony, petit larceny, simple assault, or unlawful mischief.
This provision shall not apply to a licensed or privileged entry, or to an entry
that takes place while the premises are open to the public, unless the person,
with the intent to commit a crime specified in this subsection, surreptitiously
remains in the building or structure after the license or privilege expires or
after the premises no longer are open to the public.
(b)
As used in this section, the words ―building,‖ ―structure,‖ and
―premises‖:
(1)
―Building,‖ ―premises,‖ and ―structure‖ shall, in addition to their
common meanings, include and mean any portion of a building, structure, or
premises which differs from one or more other portions of such building,
structure, or premises with respect to license or privilege to enter, or to being
open to the public.
(2)
―Occupied dwelling‖ means a building used as a residence, either
full-time or part-time, regardless of whether someone is actually present in the
building at the time of entry.
(c)(1)
A person convicted of burglary into an occupied dwelling shall be
imprisoned not more than 25 years or fined not more than $1,000.00, or both.
- 2874 -
Otherwise, a person convicted of burglary shall be imprisoned not more than
15 years or fined not more than $1,000.00, or both.
(2)
When imposing a sentence under this section, the Court shall
consider as an aggravating factor whether, during commission of the offense,
the person:
(A)
entered the building when someone was actually present;
(B)
used or threatened to use force against the occupant; or
(C)
carried a dangerous or deadly weapon, openly or concealed,
during the commission of the offense, and the person has not been convicted of
a violation of section 4005 of this title in connection with the offense.
Sec. 10.
DEPARTMENT OF PUBLIC SAFETY REPORT
The Department of Public Safety, in consultation with the Department of
Health, shall examine 18 V.S.A. § 4234 (depressant, stimulant, narcotic drug)
for the purpose of establishing clear dosage amounts for narcotics as they
relate to unlawful possession, dispensing, and sale.
The Department shall
consider
section
4234
in
relation
to
18
V.S.A.
§ 4233
(heroin).
The
Department
shall
report
its
recommendations
to
the
Senate
and
House
Committees on Judiciary on or before December 15, 2014.
* * * Regulation of Opiates * * *
Sec. 11.
DVHA AUTHORITY; USE OF AVAILABLE SANCTIONS
The Department of Vermont Health Access shall use its authority to
sanction Medicaid-participating prescribers, whether practicing in or outside
the State of Vermont, operating in bad faith or not in compliance with State or
federal requirements.
Sec. 12.
CONTINUED MEDICATION-ASSISTED TREATMENT FOR
INCARCERATED PERSONS
(a)
The
Department
of
Corrections,
in
consultation
with
the
Medication-Assisted Treatment for Inmates Work Group created by 2013 Acts
and Resolves No. 67, Sec. 11, shall develop and implement a one-year
demonstration
project
to
pilot
the
continued
use
of
medication-assisted
treatment within Department facilities for detainees and sentenced inmates.
(b)
The pilot project shall offer continued medication-assisted treatment for
opioid dependence with methadone or buprenorphine and a prescribed taper as
appropriate
to
incarcerated
persons
who
were
participating
in
medication-assisted
treatment
in
the
community
immediately
prior
to
incarceration.
- 2875 -
(c)
As
used
in
this
section,
―prescribed
taper‖
means
a
clinically
appropriate
medication
taper
that
is
designed
to
minimize
withdrawal
symptoms and limit avoidable suffering.
(d)
The Commissioner of Corrections shall publish an interim revision
memorandum to replace Directive 363.01 as recommended by the Medication-
Assisted Treatment for Inmates Work Group.
(e)
On or before July 30, 2014, the Department shall enter into memoranda
of understanding with the Department of Health and with hub treatment
providers regarding ongoing medication-assisted treatment for persons in the
custody of the Department.
(f)
The Department shall collaborate with the Department of Health to
facilitate the provision of opioid overdose prevention training for pilot project
participants who are incarcerated and the distribution of overdose rescue kits
with naloxone at correctional facilities to persons who are transitioning from
incarceration back into the community.
(g)
The Departments of Corrections and of Health shall continue the
Medication-Assisted Treatment for Inmates Work Group created by 2013 Acts
and Resolves No. 67, Sec. 11 to inform and monitor implementation of the
demonstration project.
The Departments shall evaluate the demonstration
project and provision of medication-assisted treatment to persons who are
incarcerated in Vermont and report their findings, including a proposed
schedule
of
expansion,
to
the
House
Committees
on
Corrections
and
Institutions, on Human Services, and on Judiciary, the Senate Committees on
Health and Welfare and on Judiciary, and the Joint Committee on Corrections
Oversight on or before January 1, 2015.
Sec. 13.
VPMS QUERY; RULEMAKING
The Secretary of Human Services shall adopt rules requiring:
(1)
All Medicaid participating providers, whether licensed in or outside
Vermont, who prescribe buprenorphine or a drug containing buprenorphine to
a Vermont Medicaid beneficiary to query the Vermont Prescription Monitoring
System the first time they prescribe buprenorphine or a drug containing
buprenorphine for the patient and at regular intervals thereafter.
Regular
intervals shall exceed the requirements for other Schedule III pharmaceuticals,
and queries shall be done prior to prescribing a replacement prescription.
The
rules shall also include dosage thresholds, which may be exceeded only with
prior approval from the Chief Medical Officer of the Department of Vermont
Health Access or designee.
(2)
All providers licensed in Vermont who prescribe buprenorphine or a
- 2876 -
drug containing buprenorphine to a Vermont patient who is not a Medicaid
beneficiary to query the Vermont Prescription Monitoring System the first time
they prescribe buprenorphine or a drug containing buprenorphine for the
patient and at regular intervals thereafter.
Regular intervals shall exceed the
requirements for other Schedule III pharmaceuticals, and queries shall be done
prior to prescribing a replacement prescription.
The rules shall also include
dosage thresholds.
Sec. 14.
MEDICATION-ASSISTED THERAPY; RULEMAKING
The
Commissioner
of
Health
shall
adopt
rules
relating
to
medication-assisted therapy for opioid dependence for physicians treating
fewer than 30 patients, which shall include a requirement that such physicians
ensure that their patients are screened or assessed to determine their need for
counseling and that patients who are determined to need counseling or other
support services are referred for appropriate counseling from a licensed clinical
professional or for other services as needed.
Sec. 15.
26 V.S.A. chapter 36, subchapter 8 is added to read:
Subchapter 8.
Naloxone Hydrochloride
§ 2080.
NALOXONE
HYDROCHLORIDE;
DISPENSING
OR
FURNISHING
(a)
The Board of Pharmacy shall adopt protocols for licensed pharmacists
to dispense or otherwise furnish naloxone hydrochloride to patients who do not
hold an individual prescription for naloxone hydrochloride.
Such protocols
shall be consistent with rules adopted by the Commissioner of Health.
(b)
Notwithstanding any provision of law to the contrary, a licensed
pharmacist may dispense naloxone hydrochloride to any person as long as the
pharmacist complies with the protocols adopted pursuant to subsection (a) of
this section.
Sec. 16.
33 V.S.A. § 813 is added to read:
§ 813.
MEDICAID PARTICIPATING PROVIDERS
The Department of Vermont Health Access shall grant authorization to a
licensed alcohol and drug abuse counselor to participate as a Medicaid
provider to deliver clinical and case
coordination services to Medicaid
beneficiaries, regardless of whether the counselor is a preferred provider.
Sec. 16a.
DEPARTMENT OF CORRECTIONS AND HEALTH CARE
REFORM
(a)
The Agency of Human Services and its departments shall assist the
- 2877 -
Department of Corrections in fully enacting the provisions of the Affordable
Care Act and Vermont’s health care reform initiatives as they pertain to
persons
in
the
criminal
justice
population,
including
access
to health
information technology, the Blueprint for Health, Medicaid enrollment, the
health benefit exchange, health plans, and other components under the
Department of Vermont Health Access that support and ensure a seamless
process for reentry to the community or readmission to a correctional facility.
(b)
The Department of Corrections shall include substance abuse and
mental health services in its request for proposal (RFP) process for inmate
health services.
Through the RFP, the Department shall require that substance
abuse and mental health services be provided to persons while incarcerated.
Sec. 17.
18 V.S.A. § 4254 is amended to read:
§ 4254.
IMMUNITY FROM LIABILITY
* * *
(d)
A person who seeks medical assistance for a drug overdose or is the
subject of a good faith request for medical assistance pursuant to subsection (b)
or (c) of this section shall not be subject to any of the penalties for violation of
13 V.S.A. § 1030 (violation of a protection order), for a violation of this
chapter or 7 V.S.A §§ 656 and 657, for being at the scene of the drug overdose,
or for being within close proximity to any person at the scene of the drug
overdose.
(e)
A person who seeks medical assistance for a drug overdose or is the
subject of a good faith request for medical assistance pursuant to subsection (b)
or (c) of this section shall not be subject to any sanction for a violation of a
condition of pretrial release, probation, furlough, or parole for a violation of
this chapter or 7 V.S.A §§ 656 and 657, for being at the scene of the drug
overdose, or for being within close proximity to any person at the scene of the
drug overdose.
* * *
(g)
The immunity provisions of this section apply only to the use and
derivative use of evidence gained as a proximate result of the person’s seeking
medical assistance for a drug overdose, being the subject of a good faith
request for medical assistance, being at the scene, or being within close
proximity to any person at the scene of the drug overdose for which medical
assistance was sought and do not preclude prosecution of the person on the
basis of evidence obtained from an independent source.
Sec. 18.
EFFECTIVE DATES
(a)
Secs. 2, 6, and 7 shall take effect on January 1, 2015.
- 2878 -
(b)
This section and Secs. 1 (legislative intent), 3 (risk assessment and
needs screening tools), 4 (prosecutor precharge programs and reporting),
10 (Department of Public Safety report), 13 (VPMS query; rulemaking),
14 (medication assisted therapy, rulemaking), and 17 (immunity from liability)
shall take effect on passage.
(c)
The remaining sections shall take effect on July 1, 2014.
( Committee Vote: 9-0-2)
Rep. O'Brien of Richmond,
for the Committee on
Appropriations,
recommends the bill ought to pass when amended as recommended by the
Committees on
Human Services and Judiciary
and when further amended as
follows:
First:
In Sec. 1, by striking out subsection (i) in its entirety
Second:
By striking out Secs. 6, 7, and 16 in their entirety
Third:
In Sec. 18 (effective dates), in subsection (a), by striking out
―Secs. 2, 6, and 7‖ and inserting in lieu thereof Sec. 2
( Committee Vote: 10-1-0)
Senate Proposal of Amendment
H. 758
An act relating to notice of potential layoffs
The Senate proposes to the House to amend the bill by striking all after the
enacting clause and inserting in lieu thereof the following:
Sec. 1.
FINDINGS
The General Assembly finds:
(1)
The 21st century workplace is fundamentally different from the 20th
century workplace.
Along with a changing workplace comes a different
workforce.
Policies and resources must be updated to reflect the changing
workplace and workforce.
(2)
Businesses
retain
sensitive
information
for
proprietary
and
competitive reasons.
(3)
When the State requires this information, the sensitivity of this
information must be respected and protected.
(4)
The Department, as well as other agencies, are able to access federal
and
State
resources
to
mitigate
adverse
employment
impacts
affecting
employers, employees, communities, and the Unemployment Insurance Trust
- 2879 -
Fund.
(5)
The Department and the Agency of Commerce and Community
Development, as well as other agencies, must be able to respond to and assist
with economic and workforce training and retention initiatives in a timely
fashion.
(6)
Municipalities, school districts, and local for-profit and nonprofit
businesses are all affected by plant closings and mass layoffs.
In order to
mitigate
adverse
impacts,
communities
and
stakeholders
need
timely
information pertaining to plant closings and mass layoffs.
Private and public
sectors need to work together to reduce the volatility and disruptions that come
with layoffs.
Sec. 2.
21 V.S.A. chapter 5, subchapter 3A is added to read:
Subchapter 3A.
Notice of Potential Layoffs Act
§ 411.
DEFINITIONS
As used in this subchapter:
(1)
―Affected employees‖ means employees who may be expected to
experience an employment loss as a consequence of a proposed or actual
business closing or mass layoff by their employer.
(2)
―Business closing‖ means:
(A)
the permanent shutdown of a facility;
(B)
the permanent cessation of operations at one or more worksites in
the State that results in the layoff of 50 or more employees over a 90-day
period; or
(C)
the cessation of work or operations not scheduled to resume
within 90 days that affects 50 or more employees.
(3)
―Commissioner‖ means the Commissioner of Labor.
(4)
―Department‖ means the Department of Labor.
(5)
―Employer‖ means any person that employs:
(A)
50 or more full-time employees;
(B)
50 or more part-time employees who work at least 1,040 hours
per employee per year; or
(C)
a combination of 50 or more:
(i)
full-time employees; and
(ii)
part-time employees who work at least 1,040 hours per
- 2880 -
employee per year.
(6)
―Employment loss‖ means the termination of employment that is the
direct result of a business closing or mass layoff.
An employee will not be
considered to have suffered an employment loss if the employee is offered a
transfer to a different site of employment within 35 miles; or if prior to the
layoff notice to the employee, the employee voluntarily separates or retires or
was separated by the employer for unsatisfactory performance or misconduct.
(7)
―Mass layoff‖ means a permanent employment loss of at least
50 employees at one or more worksites in Vermont during any 90-day period.
In determining whether a mass layoff has occurred or will occur, employment
losses for two or more groups of employees, each of which is below this
threshold but which in the aggregate exceed this threshold and which occur
within any 90-day period shall be considered to be a mass layoff unless the
employer demonstrates that the employment losses are the result of separate
and distinct actions and causes.
(8)
―Representative‖ means an exclusive bargaining agent as legally
recognized under State or federal labor laws.
§ 412.
EDUCATION AND OUTREACH
The
Department
and
the
Agency
of
Commerce
and
Community
Development shall prepare information and materials for the purpose of
informing and educating Vermont employers with regard to programs and
resources that are available to assist with economic and workforce retention
initiatives in order to avoid business closings and mass layoffs.
The
Department and the Agency of Commerce and Community Development shall
also inform Vermont employers of the employers’ obligations that will be
required for proper notice under the provisions of this act.
§ 413.
NOTICE AND WAGE PAYMENT OBLIGATIONS
(a)
An employer who will engage in a closing or mass layoff shall provide
notice to the Secretary of Commerce and Community Development and the
Commissioner in accordance with this section to enable the State to present
information on potential support for the employer and separated employees.
(b)
Notwithstanding subsection (a) of this section, an employer who will
engage in a closing or mass layoff shall provide notice to the Secretary of
Commerce and Community Development and the Commissioner 45 days prior
to the effective date of the closing or layoffs that reach the thresholds defined
in section 411 of this subchapter, and shall provide 30-days’ notice to the local
chief elected official or administrative officer of the municipality, affected
employees, and bargaining agent, if any.
- 2881 -
(c)
The employer shall send to the Commissioner and the Secretary the
approximate number and job titles of affected employees, the anticipated date
of the employment loss, and the affected worksites within the time allotted for
notice to the Commissioner and Secretary under subsection 413(b) or 414(b) of
this subchapter.
Concurrent with the notification to the affected employees, in
accordance with subsection 413(b) of this subchapter, the employer shall send
to the Commissioner in writing the actual number of layoffs, job titles, date of
layoff, and other information as the Commissioner deems necessary for the
purposes of unemployment insurance benefit processing and for accessing
federal and State resources to mitigate adverse employment impacts affecting
employers, employees, and communities.
(d)
In the case of a sale of part or all of an employer’s business where mass
layoffs will occur, the seller and the purchaser are still required to comply with
the notice requirements under subsection (b) of this section.
(e)
Nothing in this subchapter shall abridge, abrogate, or restrict the right of
the State to require an employer that is receiving State economic development
funds or incentives from being required to provide additional or earlier notice
as a condition for the receipt of such funds or incentives.
(f)
An employer is required to pay all unpaid wage and compensation owed
to any laid-off worker, as required under this title.
(g)
This section shall not apply to a nursing home in situations where Rules
2.8 and 3.14 of the Vermont Licensing and Operating Rules for Nursing
Homes apply or where the CMS Requirements for Long-Term Care Facilities
apply, pursuant to 42 C.F.R. §§ 483.12 and 483.75.
§ 414.
EXCEPTIONS
(a)
In the case of a business closing or mass layoff, an employer is not
required to comply with the notice requirement in subsection 413 of this
subchapter and may delay notification to the Department if:
(1)
the business closing or mass layoff results from a strike or a lockout;
(2)
the employer is actively attempting to secure capital or investments
in order to avoid closing or mass layoffs; and the capital or investments sought,
if obtained, would have enabled the employer to avoid or postpone the
business closing or mass layoff, and the employer reasonably and in good faith
believed that giving the notice would have precluded the employer from
securing the needed capital or investment;
(3)
the
business
closing
or
mass
layoff
is
caused
by
business
circumstances that were not reasonably foreseeable at the time the 45-day
notice would have been required;
- 2882 -
(4)
the business closing or mass layoff is due to a disaster beyond the
control of the employer; or
(5)(A)
the business closing or the mass layoff is the result of the
conclusion of seasonal employment or the completion of a particular project or
undertaking; or
(B)
the affected employees were hired with the understanding that
their employment was limited to the duration of the season, facility, project, or
undertaking.
(b)
An employer that is unable to provide the notice otherwise required by
this subchapter as a result of circumstances described in subsection (a) of this
section shall provide as much notice as is practicable and at that time shall
provide a brief statement to the Commissioner regarding the basis for failure to
meet the notification period.
In such situations, the mailing of the notice by
certified mail or any other method approved by the Commissioner shall be
considered acceptable in the fulfillment of the employer’s obligation to give
notice to each affected employee under this subchapter.
At the time of notice
to the Commissioner, the employer shall provide the required information
under subdivisions 413(c) of this subchapter.
§ 415.
VIOLATIONS
(a)
An employer who violates subsection 413(b) or 414(b) of this
subchapter is liable to each employee who lost his or her employment for:
(1)
one day of severance pay for each day after the first day in the 45 -
day notice period required in subsection 413(b) of this subchapter, up to a
maximum of ten days severance pay; and
(2)
the continuation, not to exceed one month after an employment loss,
of existing medical or dental coverage under an employment benefit plan, if
any, necessary to cover any delay in an employee’s eligibility for obtaining
alternative coverage resulting directly from the employer’s violation of notice
requirements.
(b)
The amount of an employer’s liability under subsection (a) of this
section shall be reduced by the following:
(1)
any voluntary and unconditional payments made by the employer to
the employee that were not required to satisfy any legal obligation;
(2)
any payments by the employer to a third party or trustee, such as
premiums for health benefits or payments to a defined contribution pension
plan, on behalf of and attributable to the employee for the period of the
violation; and
- 2883 -
(3)
any liability paid by the employer under any applicable federal law
governing notification of mass layoffs, business closings, or relocations.
(c)
If an employer proves to the satisfaction of the Commissioner that the
act
or
omission
that
violated
this
subchapter
was
in
good
faith,
the
Commissioner may reduce the amount of liability provided for in this section.
In determining the amount of such a reduction, the Commissioner shall
consider any efforts by the employer to mitigate the violation.
(d)
If, after an administrative hearing, the Commissioner determines that an
employer has
violated
any
of
the
requirements
of
this
subchapter,
the
Commissioner shall issue an order including any penalties assessed by the
Commissioner under sections 415 and 417 of this subchapter.
The employer
may appeal a decision of the Commissioner to the Superior Court within
30 days of the date of the Commissioner’s order.
§ 416.
POWERS OF THE COMMISSIONER
(a)
The Commissioner may adopt rules as necessary, pursuant to 3 V.S.A.
chapter 25, to carry out this subchapter.
The rules shall include provisions that
allow the parties access to administrative hearings for any actions of the
Department under this subchapter.
(b)
In
any
investigation
or
proceeding
under
this
subchapter,
the
Commissioner has, in addition to all other powers granted by law, the authority
to subpoena and examine information of an employer necessary to determine
whether a violation of this subchapter has occurred, including to determine the
validity of any defense.
(c)
Information obtained through administration of this subchapter by the
Commissioner and the Secretary of Commerce and Community Development
shall be confidential, except that the number of layoffs, the types of jobs
affected, and work locations affected shall cease to be confidential after local
government and the affected employees have been notified.
The Department
may provide the information collected pursuant to subsection 413(c) of this
subchapter to the U.S. Department of Labor and any other governmental
entities for the purposes of securing benefits for the affected employees.
(d)
Neither the Commissioner nor any court shall have the authority to
enjoin a business closing, relocation, or mass layoff under this subchapter.
§ 417.
ADMINISTRATIVE PENALTY
An employer who fails to give notice as required by subsection 413(b) or
414(b) of this subchapter shall be subject to an administrative penalty of
$500.00 for each day that the employer was deficient in the notice to the
Department.
The Commissioner may waive the administrative penalty if the
- 2884 -
employer:
(1)
demonstrates good cause under subsection 414(b) of this subchapter;
(2)
pays to all affected employees the amounts for which the employer
is liable under section 415 of this title within 30 days from the date the
employer enacts the business closing or mass layoff; and
(3)
pays to all affected employees any unpaid wage and compensation
owed to any laid-off worker, as required under this title.
§ 418.
OTHER RIGHTS
The rights and remedies provided to employees by this subchapter do not
infringe upon or alter any other contractual or statutory rights and remedies of
the employees.
Nothing in this section is intended to alter or diminish or
replace any federal or State regulatory mandates for a shutdown or closure of a
regulated business or entity.
Sec. 3.
EFFECTIVE DATES
(a)
This section, Sec. 1, and in Sec. 2, 21 V.S.A. §§
412 (education and
outreach) and 416(a) shall take effect on passage.
(b)
Sec. 2, except for 21 V.S.A. §§
412 and 416(a), shall take effect on
January 15, 2015.
(For text see House Journal 3/19/2014 )
NEW BUSINESS
Third Reading
S. 252
An act relating to financing for Green Mountain Care
Favorable with Amendment
S. 281
An act relating to vision riders and a choice of providers for vision and eye
care services
Rep. Dakin of Chester,
for the Committee on
Health Care,
recommends
that the House propose to the Senate that the bill be amended by striking all
after the enacting clause and inserting in lieu thereof the following:
Sec. 1.
8 V.S.A. § 4088j is added to read:
§ 4088j.
CHOICE OF PROVIDERS FOR VISION CARE AND MEDICAL
EYE CARE SERVICES
- 2885 -
(a)
To the extent a health insurance plan provides coverage for vision care
or medical eye care services, it shall cover those services whether provided by
a licensed
optometrist or by a licensed ophthalmologist, provided the health
care professional is acting within his or her authorized scope of practice and
participates in the plan’s network.
(b)
A
health
insurance
plan
shall
impose
no
greater
co-payment,
coinsurance, or other cost-sharing amount for services when provided by an
optometrist than for the same service when provided by an ophthalmologist.
(c)
A health insurance plan shall provide to a licensed health care
professional acting within his or her scope of practice the same level of
reimbursement or other compensation for providing vision care and medical
eye care services that are within the lawful scope of practice of the professions
of medicine, optometry, and osteopathy, regardless of whether the health care
professional is an optometrist or an ophthalmologist.
(d)(1)
A health insurer shall permit a licensed optometrist to participate in
plans or contracts providing for vision care or medical eye care to the same
extent as it does an ophthalmologist.
(2)
A health insurer shall not require a licensed optometrist or
ophthalmologist to provide discounted materials benefits or to participate as a
provider in another medical or vision care plan or contract as a condition or
requirement for the optometrist’s or ophthalmologist’s participation as a
provider in any medical or vision care plan or contract.
(e)(1)
An agreement between a health insurer or an entity that writes vision
insurance and an optometrist or ophthalmologist for the provision of vision
services to plan members or subscribers in connection with coverage under a
stand-alone vision plan or other health insurance plan shall not require that an
optometrist or ophthalmologist provide services or materials at a fee limited or
set by the plan or insurer unless the services or materials are reimbursed as
covered services under the contract.
(2)
An optometrist or ophthalmologist shall not charge more for services
and materials that are noncovered services under a vision plan than his or her
usual and customary rate for those services and materials.
(3)
Reimbursement paid by a vision plan for covered services and
materials shall be reasonable and shall not provide nominal reimbursement in
order to claim that services and materials are covered services.
(f)
As used in this section:
(1)
―Covered
services‖
means
services
and
materials
for
which
reimbursement from a vision plan or other health insurance plan is provided by
- 2886 -
a member’s or subscriber’s plan contract, or for which a reimbursement would
be available but for application of the
deductible, co-payment, or coinsurance
requirements under the member’s or subscriber’s health insurance plan.
(2)
―Health insurance plan‖ means any health insurance policy or health
benefit plan offered by a health insurer or a subcontractor of a health insurer,
as well as Medicaid and any other public health care assistance program
offered or administered by the State or by any subdivision or instrumentality of
the State.
The term includes vision plans but does not include policies or plans
providing coverage for a specified disease or other limited benefit coverage.
(3)
―Health insurer‖ shall have the same meaning as in 18 V.S.A.
§ 9402.
(4)
―Materials‖ includes lenses, devices containing lenses, prisms, lens
treatments and coatings, contact lenses, and prosthetic devices to correct,
relieve, or treat defects or abnormal conditions of the human eye or its adnexa.
(5) ―Ophthalmologist‖ means a physician licensed pursuant to 26 V.S.A.
chapter 23 or an osteopathic physician licensed pursuant to 26 V.S.A. chapter
33 who has had special training in the field of ophthalmology.
(6)
―Optometrist‖ means a person licensed pursuant to 26 V.S.A.
chapter 30.
Sec. 2.
EFFECTIVE DATE
This act shall take effect on January 1, 2015.
(Committee vote: 9-0-2 )
(For text see Senate Journal 2/28/2014 )
Favorable
J.R.S. 27
Joint resolution relating to an application of the General Assembly for
Congress to call a convention for proposing amendments to the U.S.
Constitution
Rep. Townsend of South Burlington,
for the Committee on
Government
Operations
, recommends that the bill ought to pass in concurrence.
(Committee Vote: 9-2-0)
(For text see Senate Journal March 20, 2014 )
- 2887 -
Senate Proposal of Amendment
H. 297
An act relating to duties and functions of the Department of Public Service
The Senate proposes to the House to amend the bill by striking all after the
enacting clause and inserting in lieu thereof the following:
* * * Legislative Purpose; Intent * * *
Sec. 1.
LEGISLATIVE PURPOSE; FINDINGS
It is the intent of the General Assembly to maintain a robust and modern
telecommunications network in Vermont by making strategic investments in
improved technology for all Vermonters.
To achieve that goal, it is the
purpose of this act to upgrade the State’s telecommunications objectives and
reorganize government functions in a manner that results in more coordinated
and efficient State programs and policies, and, ultimately, produces operational
savings that may be invested in further deployment of broadband and mobile
telecommunications services for the benefit of all Vermonters.
In addition, it
is the intent of the General Assembly to update and provide for a more
equitable
application
of
the
Universal
Service
Fund
(USF)
surcharge.
Together, these operational savings and additional USF monies will raise at
least $1.45 million annually, as follows:
(1)
$650,000.00 from an increase in the USF charge to a flat two
percent;
(2)
$500,000.00 from application of the USF charge to prepaid wireless
telecommunications service providers; and
(3)
$300,000.00
in
operational
savings
from
the
transfer
and
consolidation of State telecommunications functions.
* * * USF; Connectivity Fund; Prepaid Wireless; Rate of Charge * * *
Sec. 2.
30 V.S.A. § 7511 is amended to read:
§ 7511.
DISTRIBUTION GENERALLY
(a)
As directed by the public service board, Public Service Board funds
collected by the fiscal agent, and interest accruing thereon, shall be distributed
as follows:
(1)
To to pay costs payable to the fiscal agent under its contract with the
public service board. Board;
(2)
To to support the Vermont telecommunications relay service in the
manner provided by section 7512 of this title.;
- 2888 -
(3)
To to support the Vermont lifeline Lifeline program in the manner
provided by section 7513 of this title.;
(4)
To to support enhanced-911 Enhanced-911 services in the manner
provided by section 7514 of this title.; and
(5)
To reduce the cost to customers of basic telecommunications service
in high-cost areas, in the manner provided by section 7515 of this title to
support the Connectivity Fund established in section 7516 of this chapter.
(b)
If insufficient funds exist to support all of the purposes contained in
subsection (a) of this section, the public service board Board shall conduct an
expedited proceeding to allocate the available funds, giving priority in the
order listed in subsection (a).
Sec. 3.
30 V.S.A. § 7516 is added to read:
§ 7516.
CONNECTIVITY FUND
(a)
There is created a Connectivity Fund for the purpose of providing
access to Internet service that is capable of speeds of at least 4 Mbps download
and 1 Mbps upload to every E-911 business and residential location in
Vermont, beginning with locations not served as of December 31, 2013
according to the minimum technical service characteristic objectives applicable
at that time.
Within this category of unserved Vermonters, priority shall be
given to locations having access to only satellite or dial-up Internet service.
Any new services funded in whole or in part by monies in this Fund shall be
capable of being continuously upgraded to reflect the best available, most
economically feasible service capabilities.
(b)
The fiscal agent shall determine annually, on or before September 1, the
amount of funds available to the Connectivity Fund.
The Department of Public
Service shall publish annually a list of census blocks eligible for funding based
on the Department’s most recent broadband mapping data.
The Department
annually
shall
solicit
proposals
from
service
providers,
the
Vermont
Telecommunications Authority, and the Division for Connectivity to deploy
broadband to eligible census blocks.
The Department shall give priority to
proposals that reflect the lowest cost of providing services to unserved
locations; however, the Department also shall consider:
(1)
the proposed data transfer rates and other data transmission
characteristics of services that would be available to consumers;
(2)
the price to consumers of services;
(3)
the proposed cost to consumers of any new construction, equipment
installation service, or facility required to obtain service;
- 2889 -
(4)
whether the proposal would use the best available technology that is
economically feasible;
(5)
the availability of service of comparable quality and speed; and
(6)
the objectives of the State’s Telecommunications Plan.
Sec. 4.
30 V.S.A. § 7521 is amended to read:
§ 7521.
CHARGE IMPOSED; WHOLESALE EXEMPTION
(a)
A universal service charge is imposed on all retail telecommunications
service provided to a Vermont address.
Where the location of a service and the
location receiving the bill differ, the location of the service shall be used to
determine whether the charge applies.
The charge is imposed on the person
purchasing the service, but shall be collected by the telecommunications
provider.
Each telecommunications service provider shall include in its tariffs
filed at the public service board Public Service Board a description of its
billing procedures for the universal service fund charge.
(b)
The universal service charge shall not apply to wholesale transactions
between
telecommunications
service
providers
where
the
service
is
a
component part of a service provided to an end user.
This exemption includes,
but is not limited to, network access charges and interconnection charges paid
to a local exchange carrier.
(c)
In the case of mobile telecommunications service, the universal service
charge is imposed when the customer’s place of primary use is in Vermont.
The
terms
―customer,‖
―place
of
primary
use,‖
and
―mobile
telecommunications service‖ have the meanings given in 4 U.S.C. § 124.
All
provisions of 32 V.S.A. § 9782 shall apply to the imposition of the universal
service charge under this section.
(d)(1)
Notwithstanding any other provision of law to the contrary, in the
case of prepaid wireless telecommunications services, the universal service
charge shall be imposed on the provider in the manner determined by the
Public Service Board pursuant to subdivision (3) of this section.
(2)
For
purposes
of
this
subsection,
―prepaid
wireless
telecommunications service‖ means a telecommunications service as defined
in section 203(5) of this title that a consumer pays for in advance and that is
sold in predetermined units or dollars that decline with use.
(3)
The Public Service Board shall establish a formula to ensure the
universal service charge imposed on prepaid wireless telecommunications
service
providers
reflects
two
percent
of
retail
prepaid
wireless
telecommunications service in Vermont beginning on September 1, 2014.
- 2890 -
Sec. 5.
30 V.S.A. § 7523 is amended to read:
§ 7523.
RATE ADJUSTED ANNUALLY OF CHARGE
(a)
Annually, after considering the probable expenditures for programs
funded pursuant to this chapter, the probable service revenues of the industry
and seeking recommendations from the department, the public service board
shall establish a rate of charge to apply during the 12 months beginning on the
following September 1.
However, the rate so established shall not at any time
exceed two percent of retail telecommunications service.
The board’s decision
shall be entered and announced each year before July 15.
However, if the
general assembly does not enact an authorization amount for E-911 before
July 15,
the
board
may
defer
decision
until
30
days
after
the
E-911
authorization is established, and the existing charge rate shall remain in effect
until the board establishes a new rate Beginning on July 1, 2014, the annual
rate of charge shall be two percent of retail telecommunications service.
(b)
Universal service charges imposed and collected by the fiscal agent
under this subchapter shall not be transferred to any other fund or used to
support the cost of any activity other than in the manner authorized by section
7511 of this title.
Sec. 6.
30 V.S.A. § 7524 is amended to read:
§ 7524.
PAYMENT TO FISCAL AGENT
(a)
Telecommunications service providers shall pay to the fiscal agent all
universal service charge receipts collected from customers.
A report in a form
approved by the public service board Public Service Board shall be included
with each payment.
(b)
Payments shall be made monthly, by the 15th day of the month, and
shall be based upon amounts collected in the preceding month.
If the amount
is small, the board Board may allow payment to be made less frequently, and
may permit payment on an accrual basis.
(c)
Telecommunications service providers shall maintain records adequate
to demonstrate compliance with the requirements of this chapter.
The board
Board or the fiscal agent may examine those records in a reasonable manner.
(d)
When a payment is due under this section by a telecommunications
service provider who has provided customer credits under the lifeline Lifeline
program, the amount due may be reduced by the amount of credit granted.
(e)
The fiscal agent shall examine the records of telecommunications
service providers to determine whether their receipts reflect application of the
universal service charge on all assessable telecommunications services under
this chapter, including the federal subscriber line charge, directory assistance,
- 2891 -
enhanced services unless they are billed as separate line items, and toll-related
services.
* * * State Telecommunications Plan; Division for Connectivity; VTA * * *
Sec. 7.
30 V.S.A. § 202c is amended to read:
§ 202C.
STATE TELECOMMUNICATIONS; POLICY AND PLANNING
(a)
The General Assembly finds that advances in telecommunications
technology and changes in federal regulatory policy are rapidly reshaping
telecommunications services, thereby promising the people and businesses of
the State communication and access to information, while creating new
challenges for maintaining a robust, modern telecommunications network in
Vermont.
(b)
Therefore, to direct the benefits of improved telecommunications
technology to all Vermonters, it is the purpose of this section and section 202d
of this title to:
(1)
Strengthen the State’s role in telecommunications planning.
(2)
Support the universal availability of appropriate infrastructure and
affordable services for transmitting voice and high-speed data.
(3)
Support
the
availability
of
modern
mobile
wireless
telecommunications services along the State’s travel corridors and in the
State’s communities.
(4)
Provide for high-quality, reliable telecommunications services for
Vermont businesses and residents.
(5)
Provide the benefits of future advances in telecommunications
technologies to Vermont residents and businesses.
(6)
Support
competitive
choice
for
consumers
among
telecommunications
service
providers
and
promote
open
access
among
competitive service providers on nondiscriminatory terms to networks over
which broadband and telecommunications services are delivered.
(7)
Support, to the extent practical and cost effective, the application of
telecommunications technology to maintain and improve governmental and
public services, public safety, and the economic development of the State.
(8)
Support deployment of broadband infrastructure that:
(A)
Uses the best commercially available technology.
(B)
Does not negatively affect the ability of Vermont to take
advantage of future improvements in broadband technology or result in
- 2892 -
widespread installation of technology that becomes outmoded within a short
period after installation.
(9)
In the deployment of broadband infrastructure, encourage the use of
existing facilities, such as existing utility poles and corridors and other
structures, in preference to the construction of new facilities or the replacement
of existing structures with taller structures.
(10)
Support measures designed to ensure that by the end of the year
2024
every
E-911
business
and
residential
location
in
Vermont
has
infrastructure capable of delivering Internet access with service that has a
minimum download speed of 100 Mbps and is symmetrical.
Sec. 8.
30 V.S.A. § 202d is amended to read:
§ 202D.
TELECOMMUNICATIONS PLAN
(a)
The department of public service Department of Public Service shall
constitute the responsible planning agency of the state State for the purpose of
obtaining for all consumers in the state State stable and predictable rates and a
technologically advanced telecommunications network serving all service
areas in the state State.
The department of public service Department shall be
responsible for the provision of plans for meeting emerging trends related to
telecommunications technology, markets, financing, and competition.
(b)
The department
of
public
service Department shall
prepare
a
telecommunications plan Telecommunications Plan for the state State.
The
department of innovation and information Department of Innovation and
Information, the Division for Connectivity and the agency of commerce and
community development Agency of Commerce and Community Development
shall assist the department of public service Department of Public Service in
preparing the plan Plan.
The plan Plan shall be for a seven-year ten-year
period and shall serve as a basis for state State telecommunications policy.
Prior to preparing the plan Plan, the department of public service Department
shall prepare:
(1)
an overview, looking seven ten years ahead, of future requirements
for telecommunications services, considering services needed for economic
development, technological advances, and other trends and factors which, as
determined by the department of public service Department of Public Service,
will significantly affect state State telecommunications policy and programs;
(2)
a survey of Vermont residents and businesses, conducted in
cooperation with the agency of commerce and community development
Agency of Commerce and Community Development and the Division for
Connectivity, to determine what telecommunications services are needed now
- 2893 -
and in the succeeding seven ten years;
(3)
an
assessment
of
the
current
state
of
telecommunications
infrastructure;
(4)
an assessment, conducted in cooperation with the department of
innovation and information Department of Innovation and Information and the
Division for Connectivity, of the current state State telecommunications
system and evaluation of alternative proposals for upgrading the system to
provide the best available and affordable technology for use by government;
and
(5)
an assessment of the state of telecommunications networks and
services in Vermont relative to other states, including price comparisons for
key services and comparisons of the state of technology deployment.
(c)
In developing the plan Plan, the department Department shall take into
account the policies and goals of section 202c of this title.
(d)
In establishing plans, public hearings shall be held and the department
of public service Department shall consult with members of the public,
representatives of telecommunications utilities, other providers, and other
interested state State agencies, particularly the agency of commerce and
community development Agency of Commerce and Community Development,
the
Division
for
Connectivity, and
the department
of
innovation
and
information Department of Innovation and Information, whose views shall be
considered in preparation of the plan Plan.
To the extent necessary, the
department of public service Department shall include in the plan Plan surveys
to
determine
existing,
needed,
and
desirable
plant
improvements
and
extensions, access and coordination between telecommunications providers,
methods of operations, and any change that will produce better service or
reduce costs.
To this end, the department of public service Department may
require the submission of data by each company subject to supervision by the
public service board Public Service Board.
(e)
Before adopting a plan Plan, the department Department shall conduct
public hearings on a final draft and shall consider the testimony presented at
such hearings in preparing the final plan Plan.
At least one hearing shall be
held jointly with committees Committees of the general assembly General
Assembly designated by the general assembly General Assembly for this
purpose.
The plan Plan shall be adopted by September 1, 2004 September 1,
2014.
(f)
The department Department, from time to time, but in no event less than
every three years, institute proceedings to review a plan Plan and make
revisions, where necessary.
The three-year major review shall be made
- 2894 -
according to the procedures established in this section for initial adoption of
the plan Plan.
For good cause or upon request by a joint resolution Joint
Resolution passed by the general assembly General Assembly, an interim
review and revision of any section of the plan Plan may be made after
conducting public hearings on the interim revision.
At least one hearing shall
be held jointly with committees Committees of the general assembly General
Assembly designated by the general assembly General Assembly for this
purpose.
(g)
The Department shall review and update the minimum technical service
characteristic objectives not less than every three years beginning in 2017.
In
the event such review is conducted separately from an update of the Plan, the
Department shall issue revised minimum technical service
characteristic
objectives as an amendment to the Plan.
Sec. 9.
3 V.S.A. § 2225 is added to read:
§ 2225.
DIVISION FOR CONNECTIVITY
(a)
Creation.
The Division for Connectivity is created within the Agency
of Administration as the successor in interest to and the continuation of the
Vermont Telecommunications Authority.
A Director for Connectivity shall be
appointed by the Secretary of Administration.
The Division shall receive
administrative support from the Agency.
(b)
Purposes.
The purposes of the Division are to promote:
(1)
access to affordable broadband service to all residences and
businesses in all regions of the State, to be achieved in a manner that is
consistent with the State Telecommunications Plan;
(2)
universal
availability
of
mobile
telecommunication
services,
including voice and high-speed data along roadways, and near universal
availability statewide;
(3)
investment in telecommunications infrastructure in the State that
creates or completes the network for service providers to create last-mile
connection to the home or business and supports the best available and
economically feasible service capabilities;
(4)
the continuous upgrading of telecommunications and broadband
infrastructure in all areas of the State is to reflect the rapid evolution in the
capabilities
of
available
mobile
telecommunications
and
broadband
technologies,
and
in
the
capabilities
of
mobile
telecommunications
and
broadband services needed by persons, businesses, and institutions in the
State; and
(5)
the most efficient use of both public and private resources through
- 2895 -
State
policies
by
encouraging
the
development
of
open
access
telecommunications infrastructure that can be shared by multiple service
providers.
(c)
Duties.
To achieve its purposes, the Division shall:
(1)
provide resources to local, regional, public, and private entities in the
form of grants, technical assistance, coordination, and other incentives;
(2)
prioritize the use of existing buildings and structures, historic or
otherwise,
as
sites
for
visually-neutral
placement
of
mobile
telecommunications and wireless broadband antenna facilities; and
(3)
inventory and assess the potential to use federal radio frequency
licenses held by instrumentalities of the State to enable broadband service in
unserved areas of the State; take steps to promote the use of those licensed
radio frequencies for that purpose; and recommend to the General Assembly
any further legislative measures with respect to ownership, management, and
use of these licenses as would promote the general good of the State.
(4)
coordinate telecommunications initiatives among Executive Branch
agencies, departments, and offices.
(5)
from information reasonably available after public notice to and
written requests made of mobile telecommunications and broadband service
providers, develop and maintain an inventory of locations at which mobile
telecommunications and broadband services are not available within the State,
develop and maintain an inventory of infrastructure that is available or
reasonably likely to be available to support the provision of services to
unserved areas, and develop and maintain an inventory of infrastructure
necessary for the provision of these services to the unserved areas;
(6)
identify the types and locations of infrastructure and services needed
to carry out the purposes stated in subsection (b) of this section;
(7)
formulate
an
action
plan
that
conforms
with
the
State
Telecommunications Plan and carries out the purposes stated in subsection (b)
of this section;
(8)
coordinate the agencies of the State to make public resources
available
to
support
the
extension
of
mobile
telecommunications
and
broadband infrastructure and services to all unserved areas;
(9)
support and facilitate initiatives to extend the availability of mobile
telecommunications and broadband services, and promote development of the
infrastructure that enables the provision of these services; and
(10)
through the Department of Innovation and Information, aggregate
- 2896 -
and broker access at reduced prices to services and facilities required to
provide wireless telecommunications and broadband services; and waive or
reduce State fees for access to State-owned rights-of-way in exchange for
comparable value to the State, unless payment for use is otherwise required by
federal law.
(11)
receive all technical and administrative assistance as deemed
necessary by the Director for Connectivity.
(d)(1)
Deployment.
The Director may request voluntary disclosure of
information
regarding
deployment
of
broadband,
telecommunications
facilities, or advanced metering infrastructure that is not publicly funded.
Such
information may include data identifying projected coverage areas, projected
average speed of service, service type, and the anticipated date of completion
in addition to identifying the location and routes of proposed cables, wires, and
telecommunications facilities.
(2)
The Director may enter into a nondisclosure agreement with respect
to any voluntary
disclosures under this subsection and the information
disclosed pursuant thereto shall remain confidential.
Alternatively, entities that
voluntarily provide information requested under this subsection may select a
third party to be the recipient of such information.
The third party may
aggregate information provided by the entities, but shall not disclose the
information it has received to any person, including the Director.
The third
party shall only disclose the aggregated information to the Director.
The
Director
may
publicly
disclose
aggregated
information
based
upon
the
information provided under this subsection.
The confidentiality requirements
of this subsection shall not affect whether information provided to any agency
of the State or a political subdivision of the State pursuant to other laws is or is
not subject to disclosure.
(e)
Minimum technical service characteristics.
The Division only shall
promote the expansion of broadband services that offer actual speeds that meet
or exceed the minimum technical service characteristic objectives contained in
the State’s Telecommunications Plan.
(f)
Annual Report.
Notwithstanding 2 V.S.A. § 20(d), on or before
January 15 of each year, the Director shall submit a report of its activities for
the preceding fiscal year to the General Assembly.
Each report shall include
an operating and financial statement covering the Division’s operations during
the
year,
including
a
summary
of
all
grant
awards
and
contracts
and
agreements entered into by the Division, as well as the action plan required
under subdivision (c)(7) of this section.
In addition, the report shall include an
accurate map and narrative description of each of the following:
- 2897 -
(1)
the
areas
served
and
the
areas
not
served
by
wireless
communications service, as identified by the Department of Public Service,
and cost estimates for providing such service to unserved areas;
(2)
the areas served and the areas not served by broadband that has a
download speed of at least 0.768 Mbps and an upload speed of at least 0.2
Mbps, as identified by the Department of Public Service, and cost estimates for
providing such service to unserved areas;
(3)
the areas served and the areas not served by broadband that has a
combined download and upload speed of at least 5 Mbps, as identified by the
Department of Public Service, and the costs for providing such service to
unserved areas; and
(4)
the areas served and the areas not served by broadband that has a
download speed of at least 100 Mbps and is symmetrical, as identified by the
Department of Public Service, and the costs for providing such service to
unserved areas.
Sec. 10.
REPEAL
3 V.S.A. § 2222b (Secretary of Administration responsible for coordination
and planning); 3 V.S.A. § 2222c (Secretary of Administration to prepare
deployment
report);
30
V.S.A.
§ 8077
(minimum
technical
service
characteristics); and 30 V.S.A. § 8079 (broadband infrastructure investment)
are repealed.
Sec.
11.
CREATION
OF
POSITIONS;
TRANSFER
OF
VACANT
POSITIONS; REEMPLOYMENT RIGHTS
(a)
The following exempt positions are created within the Division for
Connectivity:
one full-time Director and up to six additional full-time
employees as deemed necessary by the Secretary of Administration.
(b)
The positions created under subsection (a) of this section shall only be
filled to the extent there are existing vacant positions in the Executive Branch
available to be transferred and converted to the new positions in the Division
for Connectivity, as determined by the Secretary of Administration and the
Commissioner of Human Resources, so that the total number of authorized
positions in the State shall not be increased by this act.
(c)
All full-time personnel of the Vermont Telecommunications Authority
employed by the Authority on the day immediately preceding the effective date
of this act, who do not obtain a position in the Division for Connectivity
pursuant to subsection (a) of this section, shall be entitled to the same
reemployment or recall rights available to non-management State employees
under the existing collective bargaining agreement entered into between the
- 2898 -
State and the Vermont State Employees’ Association.
Sec. 12.
TRANSITIONAL PROVISIONS
(a)
Personnel.
The Secretary of Administration shall determine where the
offices of the Division for Connectivity shall be housed.
(b)
Assets and liabilities.
The assets and liabilities of the Vermont
Telecommunications Authority (VTA) shall become the assets and liabilities of
the Agency of Administration.
(c)
Legal and contractual obligations.
The Executive Director of the VTA,
in consultation with the Secretary of Administration, shall identify all grants
and contracts of the VTA and create a plan to redesignate the Agency of
Administration as the responsible entity.
The plan shall ensure that all existing
grantors, grantees, and contractors are notified of the redesignation.
* * * Conduit Standards; Public Highways * * *
Sec. 13.
3 V.S.A. § 2226 is added to read:
§ 2226.
PUBLIC HIGHWAYS; CONDUIT STANDARDS
(a)
Intent.
The intent of this section is to provide for the construction of
infrastructure sufficient to allow telecommunications service providers seeking
to deploy communication lines in the future to do so by pulling the lines
through the conduit and appurtenances installed pursuant to this section.
This
section is intended to require those constructing public highways, including
State, municipal, and private developers, to provide and install such conduit
and
appurtenances
as
may
be
necessary
to
accommodate
future
telecommunications needs within public highways and rights-of-way without
further excavation or disturbance.
(b)
Rules; standards.
On or before January 1, 2015, the Secretary of
Administration, in consultation with the Commissioner of Public Service, the
Secretary of Transportation, and the Vermont League of Cities and Towns,
shall adopt rules requiring the installation of conduit and such vaults and other
appurtenances
as
may
be
necessary
to
accommodate
installation
and
connection of telecommunications lines within the conduit during highway
construction projects.
The rules shall specify construction standards with due
consideration given to existing and anticipated technologies and industry
standards.
The standards shall specify the minimum diameter of the conduit
and interducts to meet the requirements of this section.
All conduit and
appurtenances installed by private parties under this section shall be conveyed
and dedicated to the State or the municipality, as the case may be, with the
dedication and conveyance of the public highway or right-of-way.
Any and all
installation costs shall be the responsibility of the party constructing the public
- 2899 -
highway.
* * * Extension of 248a; Automatic Party Status * * *
Sec. 14.
30 V.S.A. § 248a is amended to read:
§ 248a.
CERTIFICATE OF PUBLIC GOOD FOR COMMUNICATIONS
FACILITIES
(a)
Certificate.
Notwithstanding any other provision of law, if the applicant
seeks approval for the construction or installation of telecommunications
facilities that are to be interconnected with other telecommunications facilities
proposed or already in existence, the applicant may obtain a certificate of
public good issued by the Public Service Board under this section, which the
Board may grant if it finds that the facilities will promote the general good of
the
State
consistent
with subsection
202c(b)
of
this
title the
State
Telecommunications Plan.
A single application may seek approval of one or
more telecommunications facilities.
An application under this section shall
include a copy of each other State and local permit, certificate, or approval that
has been issued for the facility under a statute, ordinance, or bylaw pertaining
to the environment or land use.
* * *
(i)
Sunset of Board authority.
Effective July 1, 2014 2016, no new
applications
for
certificates
of
public
good
under
this
section
may
be
considered by the Board.
* * *
(m) Municipal bodies; participation. The legislative body and the planning
commission for the municipality in which a telecommunications facility is
located shall have the right to appear and participate on any application under
this section seeking a certificate of public good for the facility.
Sec. 15.
10 V.S.A. § 1264(j) is amended to read:
(j)
Notwithstanding any other provision of law, if an application to
discharge stormwater runoff pertains to a telecommunications facility as
defined in 30 V.S.A. § 248a and is filed before July 1, 2014 2016 and the
discharge will be to a water that is not principally impaired by stormwater
runoff:
(1)
The Secretary shall issue a decision on the application within 40
days of the date the Secretary determines the application to be complete, if the
application seeks authorization under a general permit.
(2)
The Secretary shall issue a decision on the application within 60
days of the date the Secretary determines the application to be complete, if the
- 2900 -
application seeks or requires authorization under an individual permit.
Sec. 16.
10 V.S.A. § 8506 is amended to read:
§ 8506.
RENEWABLE ENERGY PLANT; TELECOMMUNICATIONS
FACILITY; APPEALS
(a)
Within 30 days of the date of the act or decision, any person aggrieved
by an act or decision of the secretary Secretary, under the provisions of law
listed in section 8503 of this title, or any party by right may appeal to the
public service board Public Service Board if the act or decision concerns a
renewable energy plant for which a certificate of public good is required under
30 V.S.A. § 248 or a telecommunications facility for which the applicant has
applied or has served notice under 30 V.S.A. § 248a(e) that it will apply for
approval under 30 V.S.A. § 248a.
This section shall not apply to a facility that
is subject to section 1004 (dams before the Federal Energy Regulatory
Commission) or 1006 (certification of hydroelectric projects) or chapter 43
(dams) of this title. This section shall not apply to an appeal of an act or
decision of the secretary Secretary regarding a telecommunications facility
made on or after July 1, 2014 2016.
* * *
Sec. 17.
2011 Acts and Resolves No. 53, Sec. 14d is amended to read:
Sec.
14d.
PROSPECTIVE
REPEALS;
EXEMPTIONS
FROM
MUNICIPAL BYLAWS AND ORDINANCES
Effective July 1, 2014 2016:
(1)
24 V.S.A. § 4413(h) (limitations on municipal bylaws) shall be
repealed; and
(2)
24
V.S.A.
§
2291(19)
(municipal
ordinances;
wireless
telecommunications facilities) is amended to read:
* * *
Sec. 18.
3 V.S.A. § 2809 is amended to read:
§ 2809.
REIMBURSEMENT OF AGENCY COSTS
(a)(1)
The Secretary may require an applicant for a permit, license,
certification, or order issued under a program that the Secretary enforces under
10 V.S.A. § 8003(a) to pay for the cost of research, scientific, programmatic,
or engineering expertise provided by the Agency of Natural Resources,
provided:
(A)
the The Secretary does not have such expertise or services and
such expertise is required for the processing of the application for the permit,
- 2901 -
license, certification, or order; or.
(B)
the The Secretary does have such expertise but has made a
determination that it is beyond the agency’s Agency’s internal capacity to
effectively utilize that expertise to process the application for the permit,
license, certification, or order.
In addition, the Secretary shall determine that
such expertise is required for the processing of the application for the permit,
license, certification, or order.
(2)
The Secretary may require an applicant under 10 V.S.A. chapter 151
to pay for the time of Agency of Natural Resources personnel providing
research, scientific, or engineering services or for the cost of expert witnesses
when agency Agency personnel or expert witnesses are required for the
processing of the permit application.
(3)
In addition to the authority set forth under 10 V.S.A. chapters 59 and
159 and § section 1283, the Secretary may require a person who caused the
agency Agency to incur expenditures or a person in violation of a permit,
license, certification, or order issued by the Secretary to pay for the time of
agency Agency personnel
or
the
cost
of
other
research,
scientific,
or
engineering services incurred by the agency Agency in response to a threat to
public health or the environment presented by an emergency or exigent
circumstance.
* * *
(g)
Concerning an application for a permit to discharge stormwater runoff
from a telecommunications facility as defined in 30 V.S.A. § 248a that is filed
before July 1, 2014 2016:
(1)
Under subdivision (a)(1) of this section, the agency Agency shall not
require an applicant to pay more than $10,000.00 with respect to a facility.
(2)
The provisions of subsection (c) (mandatory meeting) of this section
shall not apply.
* * * Administration Report; E-911; Vermont USF Fiscal Agent; Vermont
Communications Board; FirstNet * * *
Sec.
19.
ADMINISTRATION
REPORT;
TRANSFERS
AND
CONSOLIDATION; VERMONT USF FISCAL AGENT
(a)
On January 1, 2015, after receiving input from State and local agencies
potentially impacted, the Secretary of Administration shall submit a report to
the General Assembly proposing a plan for transferring the responsibilities and
powers of the Enhanced 911 Board, including necessary positions, to the
Division
for
Connectivity,
the
Department
of
Public
Service,
or
the
Department of Public Safety, as he or she deems appropriate.
The plan shall
- 2902 -
include
budgetary
recommendations
and
shall
strive
to
achieve
annual
operational savings of at least $300,000.00, as well as enhanced coordination
and efficiency, and reductions in operational redundancies.
The report shall
include draft legislation implementing the Secretary’s plan.
In addition, the
report shall include findings and recommendations on whether it would be cost
effective to select an existing State agency to serve as fiscal agent to the
Vermont Universal Service Fund.
(b)
As part of the report required in subsection (a) of this section, the
Secretary shall also make findings and recommendations regarding the status
of the Vermont Communications Board, Department of Public Safety, and the
Vermont Public Safety Broadband Network Commission (Vermont FirstNet).
If not prohibited by federal law, the Secretary shall propose draft legislation
creating an advisory board within the Division for Connectivity or the
Department of Public Safety comprised of 15 members appointed by the
Governor to assume functions of the current Enhanced 911 Board, the
Vermont Communications Board, and Vermont FirstNet, as the Secretary
deems appropriate.
Upon establishment of the new advisory board and not
later than July 1, 2015, the E-911 Board and the Vermont Communications
Board shall cease to exist.
* * * DPS Deployment Report * * *
Sec. 20.
DEPARTMENT OF PUBLIC SERVICE; DEPLOYMENT REPORT
On July 15, 2015, the Commissioner of Public Service shall submit to the
General Assembly a report, including maps, indicating the service type and
average
speed
of
service
of
mobile
telecommunications
and
broadband
services available within the State by census block as of June 30, 2015.
* * * VTA; Dormant Status * * *
Sec. 21.
30 V.S.A. § 8060a is added to read:
§ 8060a.
PERIOD OF DORMANCY
On July 1, 2015, the Division for Connectivity established under 3 V.S.A.
§ 2225 shall become the successor in interest to and the continuation of the
Vermont Telecommunications Authority, and the Authority shall cease all
operations and shall not resume its duties as specified under this chapter or
under any other Vermont law unless directed to do so by enactment of the
General Assembly or, if the General Assembly is not in session, by order of the
Joint Fiscal Committee.
The Joint Fiscal Committee shall issue such order
only upon finding that, due to an unforeseen change in circumstances,
implementation of the Authority’s capacity to issue revenue bonds would be
the most effective means of furthering the State’s telecommunications goals
- 2903 -
and policies.
Upon the effective date of such enactment or order, the duties of
the Executive Director and the Board of Directors of the Authority shall
resume in accordance with 30 V.S.A. chapter 91 and the Director for
Connectivity shall be the acting Executive Director of the Authority, until the
position is filled pursuant to 30 V.S.A. § 8061(e).
* * * Telecommunications; CPGs; Annual Renewals;
Retransmission Fees * * *
Sec. 22.
30 V.S.A. § 231 is amended to read:
§
231.
CERTIFICATE
OF
PUBLIC
GOOD;
ABANDONMENT
OF
SERVICE; HEARING
(a)
A person, partnership, unincorporated association, or previously
incorporated association, which desires to own or operate a business over
which the public service board Public Service Board has jurisdiction under the
provisions of this chapter shall first petition the board Board to determine
whether the operation of such business will promote the general good of the
state, State
and
conforms
with
the
State
Telecommunications
Plan,
if
applicable, and shall at that time file a copy of any such petition with the
department Department.
The department Department, within 12 days, shall
review the petition and file a recommendation regarding the petition in the
same manner as is set forth in subsection 225(b) of this title.
Such
recommendation shall set forth reasons why the petition shall be accepted
without hearing or shall request that a hearing on the petition be scheduled.
If
the department Department requests a hearing on the petition, or, if the board
Board deems a hearing necessary, it shall appoint a time and place in the
county where the proposed corporation is to have its principal office for
hearing the petition, and shall make an order for the publication of the
substance thereof and the time and place of hearing two weeks successively in
a newspaper of general circulation in the county to be served by the petitioner,
the last publication to be at least seven days before the day appointed for the
hearing.
The director for public advocacy Director for Public Advocacy shall
represent the public at such hearing.
If the board Board finds that the operation
of such business will promote the general good of the state, State and will
conform with the State Telecommunications Plan, if applicable, it shall give
such
person,
partnership,
unincorporated
association
or
previously
incorporated association a certificate of public good specifying the business
and territory to be served by such petitioners.
For good cause, after
opportunity for hearing, the board Board may amend or revoke any certificate
awarded under the provisions of this section.
If any such certificate is revoked,
the person, partnership, unincorporated association, or previously incorporated
association shall no longer have authority to conduct any business which is
- 2904 -
subject to the jurisdiction of the board Board whether or not regulation
thereunder has been reduced or suspended, under section 226a or 227a of
this title.
(b)
A company subject to the general supervision of the public service
board Public Service Board under section 203 of this title may not abandon or
curtail any service subject to the jurisdiction of the board Board or abandon all
or any part of its facilities if it would in doing so effect the abandonment,
curtailment or impairment of the service, without first obtaining approval of
the public service board Board, after notice and opportunity for hearing, and
upon finding by the board Board that the abandonment or curtailment is
consistent with the public interest and the State Telecommunications Plan, if
applicable; provided, however, this section shall not apply to disconnection of
service pursuant to valid tariffs or to rules adopted under section 209(b) and (c)
of this title.
Sec. 23.
30 V.S.A. § 504 is amended to read:
§ 504.
CERTIFICATES OF PUBLIC GOOD
(a)
Certificates of public good granted under this chapter shall be for a
period of 11 years.
(b)
Issuance of a certificate shall be after opportunity for hearing and
findings by the board Board that the applicant has complied or will comply
with requirements adopted by the board Board to ensure that the system
provides:
(1)
designation of adequate channel capacity and appropriate facilities
for public, educational, or governmental use;
(2)
adequate and technically sound facilities and equipment, and signal
quality;
(3)
a reasonably broad range of public, educational, and governmental
programming;
(4)
the
prohibition
of
discrimination
among
customers
of
basic
service; and
(5)
basic service in a competitive market, and if a competitive market
does not exist, that the system provides basic service at reasonable rates
determined in accordance with section 218 of this title; and
(6)
service that conforms with the relevant provisions of the State
Telecommunications Plan.
(c)
In addition to the requirements set forth in subsection (b) of this section,
the board Board shall insure ensure that the system provides or utilizes:
- 2905 -
(1)
a reasonable quality of service for basic, premium or otherwise,
having regard to available technology, subscriber interest, and cost;
(2)
construction, including installation, which conforms to all applicable
state State and federal laws and regulations and the National Electric Safety
Code;
(3)
a competent staff sufficient to provide adequate and prompt service
and to respond quickly and comprehensively to customer and department
Department complaints and problems;
(4)
unless waived by the board Board, an office which shall be open
during usual business hours, have a listed toll-free telephone so that complaints
and requests for repairs or adjustments may be received; and
(5)
reasonable rules and policies for line extensions, disconnections,
customer deposits, and billing practices.
(d)
A certificate granted to a company shall represent nonexclusive
authority of that company to build and operate a cable television system to
serve customers only within specified geographical boundaries.
Extension of
service beyond those boundaries may be made pursuant to the criteria in
section 504 of this title this section, and the procedures in section 231 of
this title.
(e)
Subdivision (b)(6) of this section (regarding conformity with the State
Telecommunications Plan) shall apply only to certificates that expire or new
applications that are filed after the year 2014.
Sec. 24.
30 V.S.A. § 518 is added to read:
§ 518.
DISCLOSURE OF RETRANSMISSION FEES
A
retransmission
agreement
entered
into
between
a
commercial
broadcasting station and a cable company pursuant to 47 U.S.C. § 325 shall not
include terms prohibiting the company from disclosing to its subscribers any
fees incurred for program content retransmitted on the cable network under the
retransmission agreement.
* * * Statutory Revision Authority * * *
Sec.
25.
LEGISLATIVE
COUNCIL
STATUTORY
REVISION
AUTHORITY; LEGISLATIVE INTENT
(a)
The staff of the Office of the Legislative Council in its statutory
revision capacity is authorized and directed to amend the Vermont Statutes
Annotated as follows:
(1)
deleting all references to ―by the end of the year 2013‖ in 30 V.S.A.
- 2906 -
chapter 91; and
(2)
during the interim of the 2015 biennium of the General Assembly, in
30 V.S.A. § 227e, replacing every instance of the words ―Secretary of
Administration‖ and ―Secretary‖ with the words ―Director for Connectivity‖
and ―Director,‖ respectively.
(b)
Any duties and responsibilities that arise by reference to the Division
for Connectivity in the Vermont Statutes Annotated shall not be operative until
the Division is established pursuant to 3 V.S.A. § 2225.
* * * Effective Dates * * *
Sec. 26.
EFFECTIVE DATES
This act shall take effect on passage, except that Secs. 9, 10, and 11
(regarding the Division for Connectivity) shall take effect on July 1, 2015.
And that after passage the title of the bill be amended to read:
―An act
relating to Vermont telecommunications policy‖
(For text see House Journal April 4, 2013 )
H. 325
An act relating to a bill of rights for children of arrested and incarcerated
parents
The Senate proposes to the House to amend the bill by striking all after the
enacting clause and inserting in lieu thereof the following:
Sec. 1.
LEGISLATIVE FINDINGS
(a)
Children of incarcerated parents have committed no crime, yet they pay
a steep penalty.
They often forfeit their homes, their safety, their public status
and private self-image, and their primary source of comfort and affection.
(b)
The General Assembly and the State have a strong interest in assuring
that children of incarcerated parents are provided with the services and support
necessary to thrive despite the hardship they face due to their parent’s status.
Sec. 2.
REPORT
(a)
The Secretary of Human Services, Commissioner of Corrections, and
the
Commissioner
for
Children
and
Families
shall
study
and
develop
recommendations, within the Integrated Family Services Initiative (IFS), on
the following issues:
(1)
the capacity needed to identify and connect children and families of
incarcerated individuals to appropriate services within the Integrated Family
Services Initiative;
- 2907 -
(2)
existing services available to children with incarcerated parents and
the need for any additional services to:
(A)
build and maintain healthy relationships between children and
incarcerated parents, including parent-child visits, parenting classes, and
supervised visits;
(B)
develop child- and family-centered tools or strategies that can be
used
throughout
the
criminal
justice
system
to
mitigate
unintended
consequences on children; and
(C)
support children and their families or caregivers by including the
use of Family Impact Statements in the Court process;
(3)
appropriate physical settings for children to visit incarcerated parents
and services while the parent is incarcerated;
(4)
a mechanism to ensure that coordinated services are provided to
children of incarcerated parents by the Department for Children and Families
and the Department of Corrections;
(5)
agency data systems to track and coordinate services for children of
incarcerated parents; and
(6)
the cost of services necessary to implement a comprehensive system
of care addressing the unique needs of children of incarcerated parents.
(b)
Recommendations
shall
be
developed
in
consultation
with
the
following stakeholders:
(1)
the Department of Corrections;
(2)
the Department for Children and Families;
(3)
the Department of Mental Health;
(4)
the Prisoners’ Rights Office;
(5)
LUND;
(6)
the Parent Child Center Network; and
(7)
kinship organizations.
(c)
The Secretary and Commissioners shall consider the Inmate Family
Survey Project and its recommendations for best practices.
(d)
On or before January 15, 2015, the Secretary shall submit a report and
recommendations to the Senate Committee on Health and Welfare, Senate
Committee on Institutions, House Committee on Human Services, and House
Committee on Corrections and Institutions.
- 2908 -
Sec. 3. 28 V.S.A. § 204(d) is amended to read:
(d)
Any presentence report, pre-parole report, or supervision history
prepared by
any
employee of the Department in the discharge of the
employee’s official duty, except as provided in subdivision 204a(b)(5) and
section 205 of this title, is privileged and shall not be disclosed to anyone
outside the Department other than the judge or the Parole Board, except that
the Court or Board may in its discretion permit the inspection of the report or
parts thereof by the state’s attorney, the defendant or inmate, or his or her
attorney, or other persons having a proper interest therein, whenever the best
interest or welfare of the defendant or inmate makes that action desirable or
helpful.
Nothing in this section shall prohibit the Department for Children and
Families from accessing the supervision history of probationers or parolees for
the purpose of child protection.
Sec. 4.
EFFECTIVE DATE
This act shall take effect on passage.
(For text see House Journal March 19, 2014 )
H. 350
An act relating to the posting of medical unprofessional conduct decisions and
to investigators of alleged unprofessional conduct
The Senate proposes to the House to amend the bill as follows:
First:
In Sec. 2, 26 V.S.A. § 1368, in subdivision (a)(4)(B), at the end of the
subdivision following ―within five business days of the expiration of the appeal
period‖, by inserting or within five business days of the request of the licensee,
whichever is later.
Second:
By adding a new section to be numbered Sec. 5a to read as
follows:
Sec. 5a.
18 V.S.A. § 4631a is amended to read:
§ 4631a.
EXPENDITURES BY MANUFACTURERS OF PRESCRIBED
PRODUCTS
(a)
As used in this section:
(1) ―Allowable expenditures‖ means:
* * *
(H)
Sponsorship of an educational program offered by a medical
device manufacturer at a national or regional professional society meeting at
which programs accredited by the Accreditation Council for Continuing
- 2909 -
Medical Education, or a comparable professional accrediting entity, are also
offered, provided:
(i)
no payment is made directly to a health care professional or
pharmacist; and
(ii)
the funding is used solely for bona fide educational purposes,
except that the manufacturer may provide meals and other food for program
participants.
(I)
Other reasonable fees, payments, subsidies, or other economic
benefits provided by a manufacturer of prescribed products at fair market
value.
* * *
(7)(C)
―Regularly practices‖ means to practice at least periodically
under contract with, as an employee of, or as the owner of, a medical practice,
health care facility, nursing home, hospital, or university located in Vermont.
* * *
(12)
―Prescribed product‖ means a drug or device as defined in section
201 of the federal Food, Drug and Cosmetic Act, 21 U.S.C. § 321, a compound
drug or drugs, a medical device as defined in this subsection, a biological
product as defined in section 351 of the Public Health Service Act, 42 U.S.C.
§ 262, for human use, or a combination product as defined in 21 C.F.R.
§ 3.2(e), but shall not include prescription eyeglasses, prescription sunglasses,
or other prescription eyewear.
* * *
(15)
―Medical device‖ means an instrument, apparatus, implement,
machine, contrivance, implant, in vitro reagent, or other similar or related
article, including any component, part, or accessory, that is:
(A)
recognized in the official National Formulary or the United
States Pharmacopeia, or any supplement to them;
(B)
intended for use in the diagnosis of disease or other conditions, or
in the cure, mitigation, treatment, or prevention of disease, in humans or other
animals; or
(C)
intended to affect the structure or any function of the body of
humans or other animals, and which does not achieve its primary intended
purposes through chemical action within or on such body and which is not
dependent upon being metabolized for the achievement of its primary intended
purposes.
- 2910 -
Third:
By striking out Sec. 6 (Effective Dates) in its entirety and inserting
in lieu thereof a new Sec. 6 to read as follows:
Sec. 6.
EFFECTIVE DATES
This act shall take effect on passage, except:
(1)
Secs. 1 (amending 26 V.S.A. § 1318), 3 (amending 26 V.S.A.
§ 1351), and 5a (amending 18 V.S.A. § 4631a) shall take effect on July 1,
2014; and
(2)
Sec. 2 (amending 26 V.S.A. § 1368) shall take effect on July 1,
2015.
(For text see House Journal January 23, 2014 )
H. 581
An act relating to guardianship of minors
The Senate proposes to the House to amend the bill by striking all after the
enacting clause and inserting in lieu thereof the following:
Sec. 1.
14 V.S.A. chapter 111, subchapter 2, article 1 is amended to read:
Article 1.
Guardians of Minors
§ 2621.
POLICY; PURPOSES
This article shall be construed in accordance with the following purposes
and policies:
(1)
It is presumed that the interests of minor children are best promoted
in the child’s own home.
However, when parents are temporarily unable to
care for their children, guardianship provides a process through which parents
can arrange for family members or other parties to care for the children.
(2)
Family members can make better decisions about minor children
when they understand the consequences of those decisions and are informed
about the law and the available supports.
(3)
Decisions about raising a child made by a person other than the
child’s parent should be based on the informed consent of the parties unless
there has been a finding of parental unsuitability.
(4)
When the informed consent of the parents cannot be obtained,
parents have a fundamental liberty interest in raising their children unless a
proposed guardian can show parental unsuitability by clear and convincing
evidence.
(5)
Research demonstrates that timely reunification between parents and
- 2911 -
their children is more likely when children have safe and substantial contact
with their parents.
(6)
It is in the interests of all parties, including the children, that parents
and proposed guardians have a shared understanding about the length of time
that they expect the guardianship to last, the circumstances under which the
parents will resume care for their children, and the nature of the supports and
services that are available to assist them.
§ 2622.
DEFINITIONS
As used in this article:
(1)
―Child‖ means an individual who is under 18 years of age and who
is the subject of a petition for guardianship filed pursuant to section 2623 of
this title.
(2)
―Child in need of guardianship‖ means:
(A)
A child who the parties consent is in need of adult care because
of any one of the following:
(i)
The child’s custodial parent has a serious or terminal illness.
(ii)
A custodial parent’s physical or mental health prevents the
parent from providing proper care and supervision for the child.
(iii)
The child’s home is no longer habitable as the result of a
natural disaster.
(iv)
A custodial parent of the child is incarcerated.
(v)
A
custodial parent of the child is on active military duty.
(vi)
The parties have articulated and agreed to another reason that
guardianship is in the best interests of the child.
(B)
A child who is:
(i)
abandoned or abused by the child’s parent;
(ii)
without proper parental care, subsistence, education, medical,
or other care necessary for the child’s well-being; or
(iii)
without or beyond the control of the child’s parent.
(3)
―Custodial parent‖ means a parent who, at the time of the
commencement
of
the
guardianship
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. If
- 2912 -
physical parental rights and responsibilities are shared pursuant to court order,
both parents shall be considered ―custodial parents‖ for purposes of this
subdivision.
(4)
―Nonconsensual guardianship‖ means a guardianship with respect to
which:
(A)
a parent is opposed to establishing the guardianship; or
(B)
a parent seeks to terminate a guardianship that the parent
previously agreed to establish.
(5)
―Noncustodial parent‖ means a parent who is not a custodial parent
at the time of the commencement of the guardianship proceeding.
(6)
―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.
(7)
―Parent-child contact‖ means the right of a parent to have visitation
with the child by court order.
§ 2623.
PETITION FOR GUARDIANSHIP OF MINOR; SERVICE
(a)
A parent or a person interested in the welfare of a minor may file a
petition with the Probate Division of the Superior Court for the appointment of
a guardian for a child.
The petition shall state:
(1)
the names and addresses of the parents, the child, and the proposed
guardian;
(2)
the proposed guardian’s relationship to the child;
(3)
the names of all members of the proposed guardian’s household and
each person’s relationship to the proposed guardian and the child;
(4)
that the child is alleged to be a child in need of guardianship;
(5)
specific reasons with supporting facts why guardianship is sought;
(6)
whether the parties agree that the child is in need of guardianship
and that the proposed guardian should be appointed as guardian;
(7)
the child’s current school and grade level;
(8)
if the proposed guardian intends to change the child’s current school,
the name and location of the proposed new school and the estimated date when
the child would enroll;
(9)
the places where the child has lived during the last five years, and
the names and present addresses of the persons with whom the child has lived
- 2913 -
during that period; and
(10)
any prior or current court proceedings, child support matters, or
parent-child contact orders involving the child.
(b)(1)
A petition for guardianship of a child under this section shall be
served on all parties and interested persons as provided by Rule 4 of the
Vermont Rules of Probate Procedure.
(2)(A)
The Probate Division may waive the notice requirements of
subdivision (1) of this subsection (c) with respect to a parent if the Court finds
that:
(i)
the identity of the parent is unknown; or
(ii)
the
location
of
the
parent
is
unknown
and
cannot
be
determined with reasonable effort.
(B)
After a guardianship for a child is created, the Probate Division
shall reopen the proceeding at the request of a parent of the child who did not
receive notice of the proceeding as required by this subsection.
§ 2624.
JURISDICTION; TRANSFER TO FAMILY DIVISION
(a)
Except as provided in subsection (b) of this section, the Probate
Division shall have exclusive jurisdiction over proceedings under this article
involving guardianship of minors.
(b)(1)(A)
A custodial minor guardianship proceeding brought in the
Probate Division under this article shall be transferred to the Family Division if
there is an open proceeding in the Family Division involving custody of the
same child who is the subject of the guardianship proceeding in the Probate
Division.
(B)
A minor guardianship proceeding brought in the Probate Division
under this article may be transferred to the Family Division on motion of a
party or on the court’s own motion if any of the parties to the probate
proceeding was a party to a closed divorce proceeding in the Family Division
involving custody of the same child who is the subject of the guardianship
proceeding in the Probate Division.
(2)(A)
When a minor guardianship proceeding is transferred from the
Probate Division to the Family Division pursuant to subdivision (1) of this
subsection (b), the Probate judge and a Superior judge assigned to the Family
Division shall confer regarding jurisdiction over the proceeding.
Except as
provided in subdivision (B) of this subdivision (2), all communications
concerning jurisdiction between the Probate judge and the Superior judge
under this subsection shall be on the record.
Whenever possible, a party shall
- 2914 -
be provided notice of the communication and an opportunity to be present
when it occurs.
A party who is unable to be present for the communication
shall be provided access to the record.
(B)
It shall not be necessary to inform the parties about or make a
record of a communication between the Probate judge and the Superior judge
under this subsection (b) if the communication involves scheduling, calendars,
court records, or other similar administrative matters.
(C)
After the Superior judge and Probate judge confer under
subdivision (2)(A) of this subsection (b), the Superior judge may:
(i)
consolidate the minor guardianship case with the pending
matter in the Family Division and determine whether a guardianship should be
established under this article; or
(ii)
transfer the guardianship petition back to the Probate Division
for further proceedings after the pending matter in the Family Division has
been adjudicated.
(D)
If a guardianship is established by the Family Division pursuant
to subdivision (2)(C)(i) of this subsection, the guardianship case shall be
transferred back to the Probate Division for ongoing monitoring pursuant to
section 2631 of this title.
§ 2625.
HEARING; COUNSEL; GUARDIAN AD LITEM
(a)
The Probate Division shall schedule a hearing upon the filing of the
petition and shall provide notice of the hearing to all parties and interested
persons who were provided notice under subdivision 2623(c)(1) of this title.
(b)
The child shall attend the hearing if he or she is 14 years of age or older
unless the child’s presence is excused by the Court for good cause.
The child
may attend the hearing if he or she is less than 14 years of age.
(c)
The Court shall appoint counsel for the child if the child will be called
as a witness.
In all other cases, the Court may appoint counsel for the child.
(d)(1)
The child may be called as a witness only if the Court finds after
hearing that:
(A)
the child’s testimony is necessary to assist the Court in
determining the issue before it;
(B)
the probative value of the child’s testimony outweighs the
potential detriment to the child; and
(C)
the evidence sought is not reasonably available by any other
means.
- 2915 -
(2)
The examination of a child called as a witness may be conducted by
the Court in chambers in the presence of such other persons as the Court may
specify and shall be recorded.
(e)
The Court may appoint a guardian ad litem for the child on motion of a
party or on the Court’s own motion.
(f)(1)
The Court may grant an emergency guardianship petition filed
ex parte by the proposed guardian if the Court finds that:
(A)
both parents are deceased or medically incapacitated; and
(B)
the best interests of the child require that a guardian be appointed
without delay and before a hearing is held.
(2)
If the Court grants an emergency guardianship petition pursuant to
subdivision (1) of this subsection (e), it shall schedule a hearing on the petition
as soon as practicable and in no event more than 72 hours after the petition
is filed.
§ 2626.
CONSENSUAL GUARDIANSHIP
(a)
If the petition requests a consensual guardianship, the petition shall
include a consent signed by the custodial parent or parents verifying that the
parent or parents understand the nature of the guardianship and knowingly and
voluntarily
consent to the guardianship.
The consent required by
this
subsection shall be on a form approved by the Court Administrator.
(b)
On or before the date of the hearing, the parties shall file an agreement
between the proposed guardian and the parents.
The agreement shall address:
(1)
the responsibilities of the guardian;
(2)
the responsibilities of the parents;
(3)
the expected duration of the guardianship, if known; and
(4)
parent-child contact and parental involvement in decision making.
(c)
Vermont Rule of Probate Procedure 43 (relaxed rules of evidence in
probate proceedings) shall apply to hearings under this section.
(d)
The Court shall grant the petition if it finds after the hearing by clear
and convincing evidence that:
(1)
the child is a child in need of guardianship as defined in subdivision
2622(2)(A) of this title;
(2)
the child’s parents had notice of the proceeding and knowingly and
voluntarily consented to the guardianship;
- 2916 -
(3)
the agreement is voluntary;
(4)
the proposed guardian is suitable; and
(5)
the guardianship is in the best interests of the child.
(e)
If the Court grants the petition, it shall approve the agreement at the
hearing and issue an order establishing a guardianship under section 2628 of
this title.
The order shall be consistent with the terms of the parties’ agreement
unless the Court finds that the agreement was not reached voluntarily or is not
in the best interests of the child.
§ 2627.
NONCONSENSUAL GUARDIANSHIP
(a)
If the petition requests a nonconsensual guardianship, the burden shall
be on the proposed guardian to establish by clear and convincing evidence that
the child is a child in need of guardianship as defined in subdivision
2622(2)(B) of this title.
(b)
The Vermont Rules of Evidence shall apply to a hearing under this
section.
(c)
The Court shall grant the petition if it finds after the hearing by clear
and convincing evidence that the proposed guardian is suitable and that the
child is a child in need of guardianship as defined in subdivision 2622(2)(B) of
this title.
(d)
If the Court grants the petition, it shall issue an order establishing a
guardianship under section 2628 of this title.
§ 2628.
GUARDIANSHIP ORDER
(a)
If the Court grants a petition for guardianship of a child under
subsection 2626(d) or 2627(d) of this title, the Court shall enter an order
establishing a guardianship and naming the proposed guardian as the child’s
guardian.
(b)
A guardianship order issued under this section shall include provisions
addressing the following matters:
(1)
the powers and duties of the guardian consistent with section 2629 of
this title;
(2)
the expected duration of the guardianship, if known;
(3)
a family plan on a form approved by the Court Administrator that:
(A)
in a consensual case is consistent with the parties’ agreement; or
(B)
in a nonconsensual case includes, at a minimum, provisions that
address parent-child contact consistent with section 2630 of this title; and
- 2917 -
(4)
the process for reviewing the order consistent with section 2631 of
this title.
§ 2629.
POWERS AND DUTIES OF GUARDIAN
(a)
The Court shall specify the powers and duties of the guardian in the
guardianship order.
(b)
The duties of a custodial guardian shall include the duty to:
(1)
take custody of the child and establish his or her place of residence,
provided that a guardian shall not change the residence of the child to a
location outside the State of Vermont without prior authorization by the Court
following notice to the parties and an opportunity for hearing;
(2)
make decisions related to the child’s education;
(3)
make decisions related to the child’s physical and mental health,
including consent to medical treatment and medication;
(4)
make decisions concerning the child’s contact with others, provided
that the guardian shall comply with all provisions of the guardianship order
regarding parent-child contact and contact with siblings;
(5)
receive funds paid for the support of the child, including child
support and government benefits; and
(6)
file an annual status report to the Probate Division, with a copy to
each parent at his or her last known address, including the following
information:
(A)
the current address of the child and each parent;
(B)
the child’s health care and health needs, including any medical
and mental health services the child received;
(C)
the child’s educational needs and progress, including the name of
the child’s school, day care, or other early education program, the child’s grade
level, and the child’s educational achievements;
(D)
contact between the child and his or her parents, including the
frequency and duration of the contact and whether it was supervised;
(E)
how the parents have been involved in decision making for
the child;
(F)
how the guardian has carried out his or her responsibilities and
duties, including efforts made to include the child’s parents in the child’s life;
(G)
the
child’s
strengths,
challenges,
and
any
other areas
of
concern; and
- 2918 -
(H)
recommendations with supporting reasons as to whether the
guardianship order should be continued, modified, or terminated.
§ 2630.
PARENT-CHILD CONTACT
(a)
The Court shall order parent-child contact unless it finds that denial of
parent-child contact is necessary to protect the physical safety or emotional
well-being of the child.
Except for good cause shown, the order shall be
consistent with any existing parent-child contact order.
The order should
permit the child to have contact of reasonable duration and frequency with the
child’s siblings, if appropriate.
(b)
The Court may determine the reasonable frequency and duration of
parent-child contact and may set conditions for parent-child contact that are in
the child’s best interests.
(c)
The Court may modify the parent-child contact order upon motion of a
party or upon the Court’s own motion, or if the parties stipulate to the
modification.
§ 2631.
REPORTS; REVIEW HEARING
(a)
The guardian shall file an annual status report to the Probate Division
pursuant to subdivisions 2629(b)(4) and 2629(c)(5) of this title, and shall
provide copies of the report to each parent at his or her last known address.
The Court may order that a status report be filed more frequently than once
per year.
(b)
The Probate Division may set a hearing to review a report required by
subsection (a) of this section or to determine progress with the family plan
required by subdivision 2628(b)(3) of this title.
The Court shall provide notice
of the hearing to all parties and interested persons.
§ 2632.
TERMINATION
(a)
A parent may file a motion to terminate a guardianship at any time.
The
motion shall be filed with the Probate Division that issued the guardianship
order and served on all parties and interested persons.
(b)(1)
If the motion to terminate is made with respect to a consensual
guardianship established under section 2626 of this title, the Court shall grant
the motion and terminate the guardianship unless the guardian files a motion
to continue the guardianship within 30 days after the motion to terminate
is served.
(2)
If the guardian files a motion to continue the guardianship, the
matter shall be set for hearing and treated as a nonconsensual guardianship
proceeding under section 2627 of this title.
The parent shall not be required to
- 2919 -
show a change in circumstances, and the Court shall not grant the motion to
continue
the
guardianship
unless
the
guardian
establishes
by
clear
and
convincing evidence that the minor is a child in need of guardianship under
subdivision 2622(2)(B) of this title.
(3)
If the Court grants the motion to continue, it shall issue an order
establishing a guardianship under section 2628 of this title.
(c)(1)
If the motion to terminate the guardianship is made with respect to a
nonconsensual guardianship established under section 2627 or subdivision
2632(b)(3) of this title, the Court shall dismiss the motion unless the parent
establishes that a change in circumstances has occurred since the previous
guardianship order was issued.
(2)
If the Court finds that a change in circumstances has occurred since
the previous guardianship order was issued, the Court shall grant the motion to
terminate the guardianship unless the guardian establishes by clear and
convincing evidence that the minor is a child in need of guardianship under
subdivision 2622(2)(B) of this title.
§ 2633.
APPEALS
Notwithstanding 12 V.S.A. § 2551 or 2553, the Vermont Supreme Court
shall have appellate jurisdiction over orders of the Probate Division issued
under this article.
§ 2634.
DEPARTMENT FOR CHILDREN AND FAMILIES POLICY
The Department for Children and Families shall adopt a policy defining its
role with respect to families who establish a guardianship under this article.
The policy shall be consistent with the following principles:
(1)
The Family Services Division shall maintain a policy ensuring that
when a child must be removed from his or her home to ensure the child’s
safety, the Division will pursue a CHINS procedure promptly if there are
sufficient grounds under 33 V.S.A. § 5102.
(2)
When the Family Services Division is conducting an investigation or
assessment related to child safety and the child may be a child in need of care
and supervision as defined in 33 V.S.A. § 5102(3), the Division shall not make
any recommendation regarding whether a family should pursue a minor
guardianship. The staff may provide referrals to community-based resources
for information regarding minor guardianships.
(3)
In response to a request from the Probate judge, the Family Services
Division social worker shall attend a minor guardianship hearing and provide
information relevant to the proceeding.
- 2920 -
(4)
If a minor guardianship is established during the time that the Family
Services Division has an open case involving the minor, the social worker shall
inform the guardian and the parents about services and supports available to
them in the community and shall close the case within a reasonable time unless
a specific safety risk is identified.
Sec. 2.
14 V.S.A. chapter 111, subchapter 2, article 1A is added to read:
Article 1A.
Financial Guardians of Minors
§ 2659.
FINANCIAL GUARDIANSHIP; MINORS
(a)
The Probate Division may appoint a financial guardian for a minor
pursuant to this section if the minor is the owner of real or personal property.
A financial guardian appointed pursuant to this section shall have the care and
management of the estate of the minor but shall not have custody of the minor.
(b)(1)
A parent or a person interested in the welfare of a minor may file a
petition with the Probate Division of the Superior Court for the appointment of
a guardian for a child.
The petition shall state:
(A)
the names and addresses of the parents, the child, and the
proposed guardian;
(B)
the proposed guardian’s relationship to the child; and
(C)
any real and personal property owned by the minor.
(2)
A petition for financial guardianship of a minor under this section
shall be served on all parties and interested persons as provided by Rule 4 of
the Vermont Rules of Probate Procedure.
(c)
The Probate Division shall schedule a hearing upon the filing of the
petition and shall provide notice of the hearing to all parties.
(d)
If the Court grants the petition for financial guardianship of the minor,
the Court shall enter an order establishing a financial guardianship, naming the
proposed guardian as the child’s financial guardian, and specifying the powers
and duties of the guardian.
(e)
The duties of a financial guardian shall include the duty to:
(1)
pursue, receive, and manage any property right of the minor’s,
including inheritances, insurance benefits, litigation proceeds, or any other real
or personal property, provided the benefits or property shall not be expended
without prior court approval;
(2)
deposit any cash resources of the minor in accounts established for
the guardianship, provided the cash resources of the minor shall not be
comingled with the guardian’s assets;
- 2921 -
(3)
responsibly invest and re-invest the cash resources of the minor;
(4)
obtain
court
approval
for
expenditures
of
funds
to
meet
extraordinary needs of the minor which cannot be met with other family
resources;
(5)
establish special needs trusts with court approval; and
(6)
file an annual financial accounting with the Probate Division stating
the funds received, managed, and spent on behalf of the minor.
Sec. 3.
14 V.S.A. chapter 111, subchapter 2, article 1A is redesignated as
article 1B to read:
Article 1B.
Permanent Guardianship for Minors
Sec. 4.
4 V.S.A. § 22 is amended to read:
§ 22.
DESIGNATION AND SPECIAL ASSIGNMENT OF JUDICIAL
OFFICERS AND RETIRED JUDICIAL OFFICERS
(a)(1)
The chief justice Chief Justice may appoint and assign a retired
justice Justice or judge with his or her consent or a superior Superior or
Probate judge to a special assignment on the supreme court Supreme Court.
The chief justice Chief Justice may appoint, and the administrative judge
Administrative Judge shall assign, an active or retired justice Justice or a
retired judge, with his or her consent, to any special assignment in the superior
court Superior Court or the judicial bureau Judicial Bureau.
(2) The administrative judge shall Administrative Judge may appoint
and assign a judge to any special assignment in the superior court Superior
Court.
As used in this subdivision, a judge shall include a Superior judge, a
Probate judge, a Family Division magistrate, or a judicial hearing officer.
(b)
The administrative judge Administrative Judge may appoint and assign
a member of the Vermont bar Bar residing within the state State of Vermont to
serve temporarily as:
(1)
an acting judge in superior court Superior Court;
(2)
an acting magistrate; or
(3)
an acting Probate judge; or
(4)
an acting hearing officer to hear cases in the judicial bureau Judicial
Bureau.
* * *
Sec. 5.
4 V.S.A. § 455 is amended to read:
- 2922 -
§ 455.
TRANSFER OF PROBATE PROCEEDINGS
(a)
Any guardianship action filed in the probate division of the superior
court Probate
Division
of
the
Superior
Court pursuant
to 14 V.S.A.
chapter 111, subchapter 2, article 1 of Title 14 and any adoption action filed in
the probate division Probate Division pursuant to Title 15A may be transferred
to the family division of the superior court as provided in this section Family
Division of the Superior Court.
(b)
The family division In an adoption action filed in the Probate Division
pursuant to Title 15A, the Family Division shall order the transfer of the
proceeding on motion of a party or on its own motion if it finds that the
identity of the parties, issues, and evidence are so similar in nature to the
parties, issues, and evidence in a proceeding pending in the family division
Family Division that transfer of the probate action to the family division
Family Division would expedite resolution of the issues or would best serve
the interests of justice.
Sec. 6.
REPEAL
14 V.S.A. §§
2645 (appointment of guardian), 2651 (when minor refuses to
choose), and 2653 (extent of guardian’s control) are repealed.
Sec. 7.
13 V.S.A. § 4501 is amended to read:
§ 4501.
LIMITATION OF PROSECUTIONS FOR CERTAIN CRIMES
* * *
(c)
Prosecutions for any of the following offenses alleged to have been
committed against a child under 18 years of age shall be commenced within 40
years after the commission of the offense, and not after:
(1)
sexual assault;
(2)
lewd and lascivious conduct;
(3)
sexual exploitation of a minor as defined in subsection 3258(c) of
this title; and
(4)
lewd or lascivious conduct with a child; and
(5)
manslaughter.
* * *
Sec. 8.
EFFECTIVE DATE
This act shall take effect on September, 1, 2014.
(For text see House Journal February 20, 2014 )
- 2923 -
H. 690
An act relating to the definition of serious functional impairment
The Senate proposes to the House to amend the bill as follows:
In
Sec. 2, by striking out ―July 1, 2014‖ and inserting in lieu thereof passage
(For text see House Journal March 14, 2014 )
H. 699
An act relating to temporary housing
The Senate proposes to the House to amend the bill by striking all after the
enacting clause and inserting in lieu thereof the following:
Sec. 1.
33 V.S.A. § 2103 is amended to read:
§ 2103.
ELIGIBILITY
* * *
(f)
An eligible participant for temporary housing shall not be required to
furnish more than 30 percent of his or her income toward the cost of temporary
housing.
The Secretary of Human Services may adopt rules as necessary,
pursuant to 3 V.S.A. chapter 25, to implement this subsection.
Sec. 2.
EFFECTIVE DATE
This act shall take effect on passage.
(For text see House Journal March 19, 2014 )
H. 795
An act relating to victim’s compensation and restitution procedures
The Senate proposes to the House to amend the bill by striking all after the
enacting clause and inserting in lieu thereof the following:
Sec. 1.
13 V.S.A. § 5362 is amended to read:
§ 5362.
RESTITUTION UNIT
(a)
A Restitution Unit is created within the Center for Crime Victim
Services
for
purposes
of assuring ensuring that
crime
victims
receive
restitution when it is ordered by the Court.
(b)
The Restitution Unit shall administer the Restitution Fund established
under section 5363 of this title.
(c)
The Restitution Unit shall have the authority to:
(1)
Collect restitution from the offender when it is ordered by the court
- 2924 -
Court under section 7043 of this title.
(2)
Bring an action to enforce Enforce a restitution obligation as a civil
judgment under section 7043 of this title.
The Restitution Unit shall enforce
restitution orders issued prior to July 1, 2004 pursuant to the law in effect on
the date the order is issued.
(3)(A)
Share and access information, including information maintained
by the National Criminal Information Center, consistent with Vermont and
federal law, from the Court, the Department of Corrections, the Department of
Motor Vehicles, the Department of Taxes, and the Department of Labor, and
law enforcement agencies in order to carry out its collection and enforcement
functions.
The Restitution Unit, for purposes of establishing and enforcing
restitution payment obligations, is designated as a law enforcement agency for
the sole purpose of requesting and obtaining access to information needed to
identify or locate a person, including access to information maintained by the
National Criminal Information Center.
(B)
Provide information to the Department of Corrections concerning
supervised offenders, including an offender’s restitution payment history and
balance,
address
and
contact
information,
employment
information,
and
information concerning the Restitution Unit’s collection efforts.
(C)
The Restitution Unit is specifically authorized to collect, record,
use, and disseminate Social Security numbers as needed for the purpose of
collecting restitution and enforcing restitution judgment orders issued by the
Court, provided that the Social Security number is maintained on a separate
form that is confidential and exempt from public inspection and copying under
the Public Records Act.
(4)
Investigate and verify losses as determined by the Restitution Unit,
including losses that may be eligible for advance payment from the Restitution
Special Fund, and verify the amount of insurance or other payments paid to or
for the benefit of a victim, and reduce the amount collected or to be collected
from the offender or disbursed to the victim from the Crime Victims’
Restitution Special Fund accordingly.
The Restitution Unit, when appropriate,
shall submit to the court Court a proposed revised restitution order stipulated to
by the victim and the unit, with copies provided to the victim and the offender.
No hearing shall be required, and the Court shall amend the judgment order to
reflect the amount stipulated to by the victim and the Restitution Unit.
(5)
Adopt such administrative rules as are reasonably necessary to carry
out the purposes set forth in this section.
(6)(A)
Report offenders’ payment histories to credit reporting agencies,
provided that the Unit shall not report information regarding offenders who are
- 2925 -
incarcerated.
The Unit shall not make a report under this subdivision (6) until
after it has notified the offender of the proposed report by first class mail or
other like means to give actual notice, and provided the offender a period not
to exceed 20 days to contest the accuracy of the information with the Unit.
The Unit shall immediately notify each credit bureau organization to which
information has been furnished of any increases or decreases in the amount of
restitution owed by the offender.
(B)
Obtain offenders’ credit reports from credit reporting agencies.
The Unit shall not obtain a report under this subdivision (6) until after it has
notified the offender by first class mail or other means likely to give actual
notice of its intent to obtain the report.
(7)
Enter into a repayment contract with a juvenile or adult accepted into
a diversion program and to bring a civil action to enforce the contract when a
diversion program has referred an individual pursuant to 3 V.S.A. § 164a.
(8)
Contract with one or more sheriff’s departments for the purposes of
serving process, warrants, demand letters, and mittimuses in restitution cases,
and contract with one or more law enforcement agencies or other investigators
for
the
purpose
of
investigating
and
locating
offenders
and
enforcing
restitution judgment orders.
(9)
Collect from an offender subject to a restitution judgment order all
fees and direct costs, including reasonable attorney’s fees, incurred by the
Restitution Unit as a result of enforcing the order and investigating and
locating the offender.
Sec. 2.
13 V.S.A. § 5363 is amended to read:
§ 5363.
CRIME VICTIM’S RESTITUTION SPECIAL FUND
* * *
(d)(1)
The Restitution Unit is authorized to advance up to $10,000.00
$5,000.00 to a victim or to a deceased victim’s heir or legal representative if
the victim:
(A)
was first ordered by the Court to receive restitution on or after
July 1, 2004;
(B)
is a natural person or the natural person’s legal representative;
(C)
has
not
been
reimbursed
under
subdivision
(2)
of
this
subsection; and
(D)
is a natural person and has been referred to the Restitution Unit
by a diversion program pursuant to 3 V.S.A. § 164a.
- 2926 -
(2)
The Restitution Unit may make advances of up to $10,000.00
$5,000.00 under this subsection to the following persons or entities:
(A)
A victim service agency approved by the Restitution Unit if the
agency has advanced monies which would have been payable to a victim under
subdivision (1) of this subsection.
(B)
A victim who is a natural person or the natural person’s legal
representative in a case where the defendant, before or after an adjudication of
guilt, enters into a drug court contract requiring payment of restitution.
(3)
An advance under this subsection shall not be made to the
government or to any governmental subdivision or agency.
(4)
An advance under this subsection shall not be made to a victim who:
(A)
fails to provide the Restitution Unit with the documentation
necessary to support the victim’s claim for restitution; or
(B)
violated a criminal law of this State which caused or contributed
to the victim’s material loss; or
(C)
has crime-related losses that are eligible for payment from the
Victim Compensation Special Fund.
(5)
An advance under this subsection shall not be made for the amount
of cash loss included in a restitution judgment order.
(6)
An advance under this subsection shall not be made for:
(A)
jewelry or precious metals; or
(B)
luxury items or collectibles identified in rules adopted by the
Unit pursuant to subdivision 5362(c)(5) of this title.
* * *
Sec. 3.
13 V.S.A. § 7043 is amended to read:
§ 7043.
RESTITUTION
* * *
(e)(1)
An order of restitution shall establish the amount of the material loss
incurred by the victim, which shall be the restitution judgment order.
In the
event the offender is unable to pay the restitution judgment order at the time of
sentencing, the Court shall establish a restitution payment schedule for the
offender based upon the offender’s current and reasonably foreseeable ability
to pay, subject to modification under subsection (k)(l) of this section.
Notwithstanding 12 V.S.A. chapter 113 or any other provision of law, interest
shall not accrue on a restitution judgment.
- 2927 -
(2)(A)
Every order of restitution shall:
(i)
include the offender’s name, address, telephone number, and
Social Security number, provided that the Social Security number is redacted
pursuant to the Vermont Rules for Public Access to Court Records;
(ii)
include the name, address, and telephone number of the
offender’s employer; and
(iii)
require the offender, until his or her restitution obligation is
satisfied, to notify the Restitution Unit within 30 days if the offender’s address,
telephone number, or employment changes, including providing the name,
address, and telephone number of each new employer.
(B)
[Repealed.]
(3)
An order of restitution may require the offender to pay restitution for
an offense for which the offender was not convicted if the offender knowingly
and voluntarily executes a plea agreement which provides that the offender pay
restitution for that offense.
A copy of the plea agreement shall be attached to
the restitution order.
(f)(1)
If not paid at the time of sentencing, restitution may be ordered as a
condition of probation, supervised community sentence, furlough, preapproved
furlough, or parole if the convicted person is sentenced to preapproved
furlough, probation, or supervised community sentence, or is sentenced to
imprisonment and later placed on parole.
A person shall not be placed on
probation solely for purposes of paying restitution.
An offender may not be
charged with a violation of probation, furlough, or parole for nonpayment of a
restitution obligation incurred after July 1, 2004.
(2)
The Department of Corrections shall work collaboratively with the
Restitution Unit to assist with the collection of restitution.
The Department
shall provide the Restitution Unit with information about the location and
employment status of the offender.
(g)(1)
When restitution is requested but not ordered, the Court shall set
forth on the record its reasons for not ordering restitution.
(2)(A)
If restitution was not requested at the time of sentencing as the
result of an error by the State, or if expenses arose after the entry of a
restitution order, the State may file a motion with the sentencing court to
reopen the restitution case in order to consider a the victim may request for
restitution payable from the Restitution Fund.
Restitution ordered paid under
this subdivision shall be payable from the Restitution Fund and shall not be
payable by the offender.
If the restitution is for expenses that arose after the
entry of a restitution order, the restitution shall be capped at $1,000.00.
- 2928 -
(B)
A motion request under this subdivision shall be filed with the
Restitution Unit within one year after the imposition of sentence or the entry of
the restitution order.
(h)
Restitution ordered under this section shall not preclude a person from
pursuing an independent civil action for all claims not covered by the
restitution order.
(i)(1)
The court Court shall transmit a copy of a restitution order and the
plea agreement, if any, to the Restitution Unit, which shall make payment to
the victim in accordance with section 5363 of this title.
(2)
To the extent that the Victims Compensation Board has made
payment to or on behalf of the victim in accordance with chapter 167 of this
title, restitution, if imposed, shall be paid to the Restitution Unit, which shall
make payment to the Victims Compensation Fund.
(j)
The Restitution Unit may bring an action, including a small claims
procedure, on a form approved by the Court Administrator, to enforce a
restitution judgment order entered by the Criminal Division of the Superior
Court.
The action shall be brought against an the offender in the Civil
Division of the Superior Court of the unit where the offender resides or in the
unit where the order was issued.
In an action under this subsection, a
restitution order issued by the Criminal Division of the Superior Court shall be
enforceable in the Civil Division of the Superior Court or in a small claims
procedure in the same manner as a civil judgment.
Superior and Small Claims
Court filing fees shall be waived for an action brought under this subsection,
and for an action to renew a restitution judgment.
* * *
(m)(1)
If the offender fails to pay restitution as ordered by the court, the
Restitution Unit may file an action to enforce the restitution order in Superior
or Small Claims Court.
After an enforcement action is filed pursuant to
subsection (j) of this section, any further proceedings related to the action shall
be heard in the court Court where it was filed.
The court Court shall set the
matter for hearing and shall provide notice to the Restitution Unit, the victim,
and the offender.
Upon filing of a motion for financial disclosure, the Court
may order the offender to appear at the hearing and disclose assets and
liabilities and produce any documents the Court deems relevant.
(2)
If the court Court determines the offender has failed to comply with
the restitution order, the court Court may take any action the Court deems
necessary to ensure the offender will make the required restitution payment,
including:
- 2929 -
(1)(A)
amending the payment schedule of the restitution order;
(2)(B)
ordering, in compliance with the procedures required in Rule 4.1
of the Vermont Rules of Civil Procedure, the disclosure, attachment, and sale
of assets and accounts owned by the offender;
(3)(C)
ordering trustee process against the offender’s wages withheld
pursuant to subsection (n) of this section; or
(4)(D)
ordering the suspension of any recreational licenses owned by the
offender.
(3)
If the Court finds that the offender has an ability to pay and willfully
refuses to do so, the offender may be subject to civil contempt proceedings
under 12 V.S.A. chapter 5.
* * *
(p)
An obligation to pay restitution is part of a criminal sentence and is:
(1)
nondischargeable in the United States Bankruptcy Court to the
maximum extent provided under 11 U.S.C. §§ 523 and 1328; and
(2)
not subject to any statute of limitations; and
(3)
not
subject
to
the
renewal
of
judgment
requirements
of
12 V.S.A. § 506.
* * *
Sec. 4. 13 V.S.A. § 5573 is amended to read:
§ 5573.
COMPLAINT
(a)
A complaint filed under this subchapter shall be supported by facts and
shall allege that:
(1)
the complainant has been convicted of a felony crime, been
sentenced to a term of imprisonment, and served all or any part at least six
months of the sentence in a correctional facility; and
(2)
the complainant was exonerated pursuant to subchapter 1 of this
chapter through the complainant’s conviction being reversed or vacated, the
information or indictment being dismissed, the complainant being acquitted
after a second or subsequent trial, or the granting of a pardon.
(b)
The court may dismiss the complaint, upon its own motion or upon
motion of the state State, if it determines that the complaint does not state a
claim for which relief may be granted.
Sec. 5.
13 V.S.A. § 5574 is amended to read:
- 2930 -
§ 5574.
BURDEN OF PROOF; JUDGMENT; DAMAGES
(a)
A claimant shall be entitled to judgment in an action under this
subchapter if the claimant establishes each of the following by a preponderance
of the clear and convincing evidence:
(1)
The complainant was convicted of a felony crime, was sentenced to
a term of imprisonment, and served all or any part at least six months of the
sentence in a correctional facility.
(2)
As a result of DNA evidence:
(A)
The complainant’s conviction was reversed or vacated, the
complainant’s information or indictment was dismissed, or the complainant
was acquitted after a second or subsequent trial; or.
(B)
The complainant was pardoned for the crime for which he or she
was sentenced.
(3)
DNA evidence establishes that the complainant did not commit the
crime
for
which
he
or
she
was
sentenced
The
complainant
is
actually innocent of the felony or felonies that are the basis for the claim.
As
used in this chapter, a person is ―actually innocent‖ of a felony or felonies if he
or she did not engage in any illegal conduct alleged in the charging documents
for which he or she was charged, convicted, and imprisoned.
(4)
The complainant did not fabricate evidence or commit or suborn
perjury during any proceedings related to the crime with which he or she was
charged.
* * *
Sec. 6.
VICTIM’S COMPENSATION FUND; BILLING OF HEALTH
CARE FACILITIES IN FY 2015; SUNSET
(a)
Notwithstanding 13 V.S.A. § 5356(c) and 32 V.S.A. § 1407, during
fiscal year 2015, the Victim’s Compensation Fund shall reimburse health care
facilities and health care providers at 50 percent of the billed charges for
compensation.
The health care facility or health care provider shall not bill
any balance to the crime victim.
(b)
This section shall be repealed on July 1, 2015.
Sec. 7.
EFFECTIVE DATE
This act shall take effect on July 1, 2014 and shall apply to restitution orders
issued after that date.
(For text see House Journal March 11, 2014 )
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H. 809
An act relating to designation of new town centers and growth centers
The Senate proposes to the House to amend the bill as follows:
First:
In Sec. 3, 24 V.S.A. § 2793c, by striking out subdivisions (c)(5)(A)
and (B) and inserting in lieu thereof two new subdivisions to be (c)(5)(A) and
(B) to read:
(5)
Each application for designation as a growth center shall include:
(A)
a description from the regional planning commission in which
each applicant municipality is located of the role of the proposed growth center
in the region, and the relationship between the proposed growth center and
neighboring communities;
(B)
written confirmation from the applicable regional planning
commission that the proposed growth center conforms with the regional plan
for the region in which each applicant municipality is located;
Second:
In Sec. 3, 24 V.S.A. § 2793c, in subdivision (c)(5)(D)(iii), by
striking out ―25‖ and inserting in lieu thereof 20.
Third:
In Sec. 3, 24 V.S.A. § 2793c, in subdivision (d)(1)(A), by striking
out ―subdivision (B) of this subdivision (1)‖ and inserting in lieu thereof
subsection (c) of this section.
Fourth:
In Sec. 3, 24 V.S.A. § 2793c, by striking out subdivision (d)(6) in
its entirety and inserting in lieu thereof a new subdivision (d)(6) to read:
(6)
Designation decision.
Within 90 days of the receipt of a completed
application, after providing notice as required in the case of a proposed
municipal plan or amendment to each person listed under subsection 4384(e)
of this title and to the executive director of each adjacent regional planning
commission, and after providing an opportunity for the public to be heard, the
State Board formally shall designate a growth center if the State Board finds,
in a written decision, that the growth center proposal meets the requirements of
subsection (b) of this section.
An application that complies with all of the
requirements of subsection (b) of this section other than the size requirement
set forth in subdivision (b)(1) may be approved by the State Board if the
applicant
presents
compelling
justification
for
deviating
from
the
size
requirement and provided that at least two-thirds but no fewer than seven of
the members of the State Board present vote in favor of the application.
Fifth:
In Sec. 6, 24 V.S.A. § 4382, by striking out subdivision (a)(2) in its
entirety and inserting in lieu thereof a new subdivision (a)(2) to read:
(2)
A land use plan:
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(A)
consisting of a map and statement of present and prospective
land uses, indicating those areas proposed for forests, recreation, agriculture
(using the agricultural lands identification process established in 6 V.S.A. § 8),
residence, commerce, industry, public, and semi-public uses and open spaces
reserved
for
flood
plain,
wetland
protection,
or
other
conservation
purposes; and
(B)
setting forth the present and prospective location, amount,
intensity, and character of such land uses and the appropriate timing or
sequence of land development activities in relation to the provision of
necessary community facilities and service; and
(C)
identifying those areas, if any, proposed for designation under
chapter 76A of this title, together with, for each area proposed for designation,
an explanation of how the designation would further the plan’s goals and the
goals of section 4302 of this title, and how the area meets the requirements for
the type of designation to be sought;
Sixth:
By inserting a new Sec. 10 to read as follows:
Sec. 10.
24 V.S.A. § 4451 is amended to read:
§ 4451.
ENFORCEMENT; PENALTIES
(a)
Any person who violates any bylaw after it has been adopted under this
chapter or who violates a comparable ordinance or regulation adopted under
prior enabling laws shall be fined not more than $200.00 for each offense.
No
action may be brought under this section unless the alleged offender has had at
least seven days’ warning notice by certified mail.
An action may be brought
without the seven-day notice and opportunity to cure if the alleged offender
repeats the violation of the bylaw or ordinance after the seven-day notice
period and within the next succeeding 12 months.
(1)
The seven-day warning notice shall state that a violation exists, that
the alleged offender has an opportunity to cure the violation within the seven
days, and that the alleged offender will not be entitled to an additional warning
notice for a violation occurring after the seven days.
(2)
A notice of violation issued under this chapter also shall state:
(A)
the bylaw or municipal land use permit condition alleged to have
been violated;
(B)
the facts giving rise to the alleged violation;
(C)
to whom appeal may be taken and the period of time for taking
an appeal; and
(D)
that failure to file an appeal within that period will render the
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notice of violation the final decision on the violation addressed in the notice.
(3)
In default of payment of the fine, the person, the members of any
partnership, or the principal officers of the corporation shall each pay double
the amount of the fine.
Each day that a violation is continued shall constitute a
separate offense.
All fines collected for the violation of bylaws shall be paid
over to the municipality whose bylaw has been violated.
(b)
Any person who, being the owner or agent of the owner of any lot,
tract, or parcel of land, lays out, constructs, opens, or dedicates any street,
sanitary sewer, storm sewer, water main, or other improvements for public use,
travel, or other purposes or for the common use of occupants of buildings
abutting thereon, or sells, transfers, or agrees or enters into an agreement to sell
any land in a subdivision or land development whether by reference to or by
other use of a plat of that subdivision or land development or otherwise, or
erects any structure on that land, unless a final plat has been prepared in full
compliance with this chapter and the bylaws adopted under this chapter and
has been recorded as provided in this chapter, shall be fined not more than
$200.00, and each lot or parcel so transferred or sold or agreed or included in a
contract to be sold shall be deemed a separate violation.
All fines collected for
these violations shall be paid over to the municipality whose bylaw has been
violated.
The description by metes and bounds in the instrument of transfer or
other document used in the process of selling or transferring shall not exempt
the seller or transferor from these penalties or from the remedies provided in
this chapter.
And by renumbering the remaining section to be numerically correct.
(For text see House Journal February 4, 2014 )
NOTICE CALENDAR
Favorable with Amendment
S. 28
An act relating to gender-neutral nomenclature for the identification of
parents on birth certificates
Rep.
Waite-Simpson
of
Essex,
for
the
Committee
on
Judiciary,
recommends that the House propose to the Senate that the bill be amended as
follows:
First:
In Sec. 1, 18 V.S.A. § 5071, in subsection (a), in the first new
sentence, after ―a parent of the child‖ and before ―shall file‖ insert or a legal
guardian of a mother under 18 years of age
and in subsection (b), by striking out subdivision (2) in its entirety and by
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striking out the subdivision (1) designation
and by striking out subsection (e) in its entirety and inserting in lieu thereof the
following:
(e)
When a birth certificate is issued, a parent or parents shall be identified
with gender-neutral nomenclature.
Second:
By striking out Sec. 5 in its entirety and inserting in lieu thereof
three new sections to read as follows:
Sec.
5.
18
V.S.A.
§ 5078
is
amended
to
read:
§ 5078.
ADOPTION; NEW BIRTH CERTIFICATE
(a)
The supervisor of vital records registration Supervisor of Vital Records
Registration shall establish a new birth certificate for a person born in the state
State when the supervisor Supervisor receives a record of adoption as provided
in 15 V.S.A. § 449 or a record of adoption prepared and filed in accordance
with the laws of another state or foreign country.
(b) The new birth certificate shall be on a form prescribed by the
commissioner of health Commissioner of Health.
The new birth certificate
shall include:
(1)
the actual place and date of birth;
(2)
the date of the filing of the original birth certificate; and
(3)
the adoptive parents as though they were natural parents;
(3) a notation that it was issued by authority of this chapter.
(c)
The new birth certificate shall not contain a statement whether the
adopted person was illegitimate and it shall not contain any content or
statement that would distinguish it from any other original certificate of birth.
(d)
The new certificate, and sufficient information to identify the original
certificate, shall be transmitted to the clerk of the town of birth to be filed
according to the procedures in 15 V.S.A. § 451.
(e)
The supervisor of vital records registration Supervisor of Vital Records
Registration shall not establish a new birth certificate if the supervisor
Supervisor receives, accompanying the record of adoption, a written request
that a new certificate not be established:
(1)
from the adopted person if 18 years of age or older; or
(2)
from the adoptive parent or parents if the adopted person is under
18 years of age.
(f)
When the supervisor of vital records registration Supervisor of Vital